DOL PROVIDES MORE GUIDANCE ON KIDS’ SUMMER PROGRAMS AND FFCRA PAID LEAVE

Posted On June 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 30, 2020

 

On Friday we posted a legislative update covering the status of pending leave of absence bills throughout the states. This post comes right on the heels of that so if you didn't see it, just scroll down below this post or click here to check on happenings in the states where you do business.

COVID’s not gone, but leave of absence news has slowed to a manageable pace.  The latest update from the Department of Labor is much-needed guidance on how an employee can establish entitlement to paid leave under the Families First Coronavirus Response Act (FFCRA) when their child’s summer care program is closed.  After all, many parents had not yet made summer child care plans when COVID-19 became a thing earlier this year.  On June 26, the DOL addressed this issue in Field Assistance Bulletin No. 2020-4.   (FABs are written by the Office of Regulations and Interpretations to provide guidance in response to questions that have arisen in DOL field operations.)

As a refresher, FFCRA provides certain paid leave for an employee who is unable to work or telework due to a need to care for a child if the child’s school or place of care has been closed or the child care provider is unavailable for reasons related to COVID-19: 

  • The Emergency Paid Sick Leave (EPSL) provisions of FFCRA require employers with 1-499 employees to provide up to 2 weeks/80 hours of paid leave at 2/3 the employee’s usual salary (up to $200 per day, $2000 total).
  • In addition, the Expanded Family and Medical Leave (EFML) provisions require the same employers to provide up to 12 weeks of FMLA leave.The first 2 weeks of such EFML is unpaid (covered instead by the EPSL) and the remaining 10 weeks (or as much as is taken) is paid at 2/3 the employee’s usual salary (up to $200 per day, $10,000 total).

In FAB 2020-4 the DOL reviews the basic principles already established with respect to “school closure” leave under the FFCRA.  A “place of care” is a physical location in which care is provided to an employee’s child while the employee works.  The term includes summer camps and summer enrichment programs.  An employee requesting leave due to a school closure must inform the employer of, among other things, the name of the child, the name of the school or place of care that closed due to COVID-19, and a statement that no other suitable person is available to care for the child.  

Identifying the place of care.  When an employee needs leave due to the closure of a summer program the requirement is the same:  The employee must name the specific summer camp or program that would have been the place of care for the child had it not closed. 

However, unlike regular schools or day care centers, many summer programs closed in response to COVID-19 before any children were in attendance or even before the program commenced enrollment.  As a result, it can be challenging to identify the place the child would have attended but for COVID-19.  Although absolute proof is not required, a parent’s mere interest in a place of care is not enough.  Rather, the parent needs to show that, more likely than not, the child would have attended the specific place now closed.    

According to the DOL, the requirement to identify the program that would have been the child’s place of care but for COVID-19 can be satisfied in various ways.  The simplest is to show that the parent had applied to, submitted a deposit for, or enrolled the child in the program before it was closed. 

The parent can also show that the child attended the program in prior summers and was eligible to attend in 2020.  A child’s attendance at a camp or program during the summer of 2018 or 2019 may indicate that the same program would have been the child’s place of care during summer 2020 as long as the child is still eligible.  For example, a child who previously attended a camp for children ages 12 and under would not be eligible if the child is now 13 in 2020, so the closure of that camp would not be a basis for school closure leave to care for that child.  Moreover, the DOL says the attendance must be fairly recent, so if a child hasn’t attended a program since 2017 that won’t establish, without more, that it is “more likely than not” the child would have attended that program in 2020.

Reduced capacity at the planned place of care that results in no space for the employee’s child will also be considered a “closure” if the parent can otherwise establish that the child would have attended that program.

The DOL recognizes that there cannot be a one-size-fits-all rule to establish that a child, more likely than not, would have attended a specific summer place of care but for a COVID-19 closure.  While actual enrollment or recent prior attendance are valid considerations, neither is required and other factors may be shown.  A parent’s delay in making plans due to uncertainty in whether a specific place would be open, the child attaining an age of program eligibility, or being on a wait list in case the program reopens could all be indicators of a specific summer program the child more likely than not would have attended.

Two more points to remember.  First, for other types of schools or day care providers, the regular rules still apply.  If, for example, the child’s school is usually in session more than the typical 9-10 months per year, the actual closure of the physical place may still support paid leave and job protection under EPSL and EFML.  Same for the unavailability of a usual day care provider such as a nanny, neighbor, or family member. 

Second, it is not clear whether this kind of evidence of an employee’s need for school closure leave will be sufficient to qualify the employer’s FFCRA payments for the tax credits.

For more information.  If you need a refresher on the FFCRA you can review our prior blog post summarizing the act here.  We’ve had many FFCRA updates and have covered other COVID-19 issues in the last several weeks, so just scroll through the blog or search for “COVID” or your state to catch up.  

For more information regarding the school closure paid leave and expanded FMLA, see the DOL’s FFCRA Questions & Answers, particularly Questions 66-70 and 93 – or search the document for “school” to find all related questions and answers.  

LEGISLATIVE UPDATE – WHAT’S GOING ON BESIDES CORONAVIRUS

Posted On June 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 26, 2020

 

Seems like in the past several weeks this blog has been consumed by COVID-19 news – almost every day, at some points.  And before that, it was mostly paid family and medical leave.  Well, the world isn’t all COVID-19 and PFML so we thought we’d take a look at the bigger picture of legislative activity throughout the country. 

At Matrix we track LOTS of pending legislation; currently, we have almost 600 bills on OUR radar.  Many of these were introduced in early 2020 and have seen no activity since COVID-19 took over our lives.  So in order to bring this down to a manageable size, we are focusing here on bills of interest that (1) relate to leave, accommodations, pregnancy, or COVID-19; and (2) have progressed in the applicable legislature in the past few weeks. 

This information is current as of 6/25/2020.

COVID-19 and PFML

There are still bits of COVID and PFML legislative news.  See the blurbs below on Rhode Island and Virginia for some PFML developments; and District of Columbia (an emergency bill already enacted), Massachusetts, Washington, and the U.S. for COVID updates.  No other trends going on that we can see except both California and Massachusetts have introduced bills for bereavement leave.

Passed legislation               

Oh, and one more thing.  Remember that a few previously-passed laws go into effect soon: 

  • The increase in New Jersey Family Leave Insurance benefits from 6 weeks to 12 weeks is effective July 1.
    See our blog post here.
  • The increases in California Paid Family Leave and San Francisco Paid Parental Leave benefits, each going
    from 6 to 8 weeks, are also effective July 1.See our blog post here.
  • Illinois’s School Visitation leave (provides up to 8 hours per school year for school conferences) adds new
    leave reasons relating to a parent’s need for time off due to academic and behavioral issues.
    This is effective August 1, 2020 – helpful if any schools return to in-person education, I guess!

Now, let’s take a cruise together to see what’s happening in your state:

 

CALIFORNIA:      CA A 2399

  • Introduced:           02/28/2020
  • Status:                   05/26/2020 – Passed Assembly, to Senate
  • Subject:                 Amends CA Paid Family Leave law
  • Provisions:
    • For purposes of military exigency leaves under Paid Family Leave, revises definitions of “care recipient,”
      “care provider,” and “family care leave”
  • Proposed effective date:01/01/2021

CALIFORNIA:      CA S 1383

  • Introduced:           02/21/2020
  • Status:                   06/09/2020 – In Senate Committee on Appropriations: To Suspense File
  • Subject:                 Amends CA Family-School Partnership Act
  • Provisions:
    • Removes the employer size limitation of 25 or more employees in one worksite
    • Clarifies that leave to address a child care provider or school emergency includes a school closure
      due to a federal, state, or local government declaration of a state of emergency
    • Removes the limitation of 40 hours per year for leave due to a child care provider or school emergency
    • Leave to enroll a child in school or a child care facility and to attend school activities remains limited to
      40 hours per year and 8 hours per calendar month
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2992

  • Introduced:           02/21/2020
  • Status:                   06/11/2020 Passed Assembly; to Senate
  • Subject:                 Amends laws relating to leave for victims of domestic violence, stalking, and sexual assault
  • Provisions:
    • Expands leave of absence and other protections to include victims of a crime or that caused physical injury
      or that caused mental injury and a threat of physical injury.
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2999

  • Introduced:            02/21/2020
  • Status:                    06/10/2020 – Passed Assembly; to Senate
  • Subject:                 Bereavement leave
  • Provisions:
    • Requires employers to provide up to 10 business days of unpaid bereavement leave due to loss
      of a family member (parent, child, spouse, domestic partner, sibling, grandparent, grandchild); leave
      need not be taken consecutively;
      must be used within 3 months of date of death
  • Proposed effective date:01/01/2021

 

COLORADO:       CO S 205 

  • Introduced:           05/26/2020
  • Status:                   06/11/2020 – In House, to second reading
  • Subject:                 “Healthy Families and Workplaces Act” – creates paid sick and safe leave law
  • Provisions:
    • Requires employers to provide up to 48 hours of paid leave per year to employees for the following reasons:
    • Employee’s or a family member’s medical needs
    • Employee or a family member is a victim of domestic abuse, sexual assault, or harassment
    • Closure of a child’s school orplace of care, or the employee’s place of business, due to a public health
      emergency
    • Provides an additional 14 days of paid sick leave (up to 80 hours) due to a public health emergency for
      leave reasons similar to the Families first Coronavirus Response Act
  • Proposed effective date:
    • Paid sick &safe leave – 01/01/2021
    • Public health emergency leave – upon passage through 12/31/2020

 

DISTRICT OF COLUMBIA               DC B 757 and DC B 759

  • Introduced:           05/18/2020
  • Status:                   Enacted – Emergency Law – Signed by Mayor
  • Subject:                 Amends DC FMLA and DC Accrued Sick and Safe Leave Act
  • Provisions:
    • Adds DC FMLA leave for quarantine, caring for family member with COVID-19, or school closures;
      applies to all employers regardless of size; employee eligibility is 30 days; included in DC FMLA total
      16-week entitlement
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:
    • DC B 757 & 759: In effect immediately, through 09/06/2020
    • NOTE:DC B 758:Identical. 758 is pending as a “temporary bill,” so if it passes will go into effect following
      a 30-day congressional review and then remain in effect for 225 days.

 

DISTRICT OF COLUMBIA:              DC B 734

  • Introduced:           05/21/2020
  • Status:                   05/21/2020 – ENACTED
    • TEMP LAW Signed by Mayor 05/21/2020; pending 30-day Congressional review period
  • Subject:                 Amends DC Accrued Sick and Safe Leave Act to provide COVID-19-related leave
  • Provisions:
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:30 days after Mayor’s signature (06/20/2020) if no Congressional action – but may
    cover leaves starting with public emergency declared on 03/11/2020; expires 225 days after going into effect

 

ILLINOIS:                              IL H 4871

  • Introduced:           02/11/2020
  • Status:                   03/05/2020 – In House Committee on Labor & Commerce: To Subcommittee on Business
    and Industry Regulations
  • Subject:                 Amends Victims’ Economic Security and Safety Act
  • Provisions:
    • Adds protections for victims gender violence (violence based at least in part on individual’s actual
      or perceived gender)
  • Proposed effective date:If passed before July 1, 2020, effective date is January 1, 2021; if passed July 1, 2020,
    or after, effective date is June 1, 2021

 

MASSACHUSETTS:           MA S 2713

  • Introduced:           05/21/2020
  • Status:                   05/21/20 – To Senate Ways & Means Committee
  • Subject:                 Bereavement leave
  • Provisions:
    • Leave up to 10 business days per 12-month period to grieve or make arrangements due to the death of a
      family member (child, parent, guardian, spouse, or person in a substantive dating or
      engagement relationship who lived with the employee);
      • Must be taken within 30 days of employee’s notice of death
      • Covers employers with 25 or more employees in Massachusetts
  • Proposed effective date:01/01/2021

 

MASSACHUSETTS:           MA H 4566

  • Introduced:           03/12/2020
  • Status:                   06/22/2020 – To House Ways & Means Committee
  • Subject:                 Employment protections for contract workers subject to abuse
  • Provisions:
    • Provides up to 15 work days of leave in any 12-month period to contract workers (not employees)
      who are victims of abuse (including domestic violence, sexual assault, stalking, and kidnapping)
      for numerous related reasons, including medical care, victim services or legal counseling, court appearances,
      relocation, etc.
  • Proposed effective date:90 days after approval

 

MASSACHUSETTS:           MA H 4738

  • Introduced:           05/14/2020
  • Status:                   05/22/2020: Filed as House Docket 5071
  • Subject:                 Provides workplace procedures for manufacturing and factory workers
  • Provisions:
    • Provides up to 14 days of paid sick leave for manufacturing and factory workers who self-report potential
      COVID-19 symptoms or close contact, even if testing availability is limited or workers are awaiting result
    • Includes other workplace safety procedures related to COVID-19
  • Proposed effective date:90 days after approval
NEW HAMPSHIRE:          NH S 759

 

  • Introduced:           02/13/2020
  • Status:                   03/12/2020: Passed Senate; to House
  • Subject:                  Reasonable Accommodations for Pregnant Employees
  • Summary:
    • Requires an employer to provide reasonable accommodations to an employee related to the employee's
      pregnancy or childbirth and makes the failure to provide such accommodations an unlawful discriminatory
      practice
  • Proposed Effective Date:90 days after passage

 

NEW YORK:                        NY A 10466/NY S 8292

  • Introduced:           05/22/2020
  • Status:                   05/24/2020 – amended in Assembly Committee on Labor
  • Subject:                 Amends NY paid sick/quarantine leave law related to COVID-19
  • Provisions:
    • Adds coverage for individuals subject to quarantine who voluntarily participate in a precautionary quarantine
      or pursuant to a health care provider’s recommendation
    • Makes paid benefits available “in each instance” the employee meets the qualifications for
      quarantine or isolation due to COVID-19 under the act
  • Proposed effective date:Immediately upon passage

 

RHODE ISLAND:                RI S 2831

  • Introduced:           03/12/2020
  • Status:                   03/12/2020 – to Senate Committee on Labor
  • Subject:                 Temporary Caregiver Insurance Benefits
  • Provisions:
    • Increases TCI benefits per year from 4 weeks to 6 weeks (effective 01/01/2021)
      and 8 weeks (effective 01/01/2022)
  • Proposed effective date:01/01/2021 and 01/01/2022
TENNESSEE:                        TN S 2520 (same as TN H 2708)

 

  • Introduced:           02/05/2020
  • Status:                   06/11/2020 – to Governor
  • Subject:                 Tennessee Pregnant Workers Fairness Act
  • Provisions:
    • Requires employers to provide workplace accommodations to employees for medical needs
      arising from pregnancy, childbirth, or related conditions; prohibits employer from requiting employee to take
      leave if a workplace
      accommodation is available and won’t impose an undue hardship
  • Proposed effective date:07/01/2020

 

UNITED STATES:               US H 6800

  • Introduced:           05/15/2020
  • Status:                   06/01/2020 – passed House; second reading in Senate
  • Subject:                 Amendments to Families First Coronavirus Response Act
  • Provisions:
    • Numerous expansions of existing FFCRA including:
      • Changing expiration date to 12/31/2021
      • Changing employer coverage to all employers with 1 or more employees
      • Expanding leave reasons under Emergency FMLA to include same leave reasons as under Emergency
        Paid Sick Leave Act
      • Increasing cap for EFML benefits to $12,000
      • Providing expansive definitions of “parent” and ”family member”
      • Creating a separate 12-week bank of leave entitlement for EFMLA
      • Creating job restoration rights to same or equivalent position following EPSL
  • Proposed effective date:Not stated

 

VIRGINIA:                           VA H 30

  • Introduced:           01/08/2020
  • Status:                   Enacted 05/21/2020
  • Subject:                 Paid family and Medical Leave
  • Provisions:
    • Requires Chief Workforce Development Advisor and Secretary of Commerce and Trade to conduct a
      study and deliver a report to Governor by September 30, 2020, regarding development, implementation,
      and costs of a statewide PFML program for all employers in VA
  • Effective date:July 1, 2020

 

WASHINGTON:                 PROCLAMATION 20-46.1

  • Introduced:           06/09/2020
  • Status:                   Signed by Governor 06/9/2020
  • Subject:                 Protections for workers with high risk of COVID-19 complications per CDC guidelines
  • Provisions:
    • Continues provisions of Proclamation 20-46 “ . . . to prevent all employers, public or private, from failing to
      provide accommodation to high-risk workers, as defined by the Centers for Disease control and Prevention,
      that protects them from risk of exposure to the COVID-19 disease on the job. If an employer determines
      that alternative work arrangements are not feasible, the employer is prohibited from failing to permit
      an employee to utilize all available accrued leave options free from risk of adverse employment action.”
  • Effective date: Effective immediately, through 08/01/2020

Whew! That was a ride, wasn’t it? Don’t worry, there’s a lot going on but you don’t need to keep track of every single thing because, frankly, you have us! So sit back, pour a cold one and enjoy the summer in Future-Post-COVID World, and let us keep you informed and prepared.

ADA PRACTICES & PITFALLS – A TIMELY WEBINAR!

Posted On June 15, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 15, 2020

 

You know, some people vacation in the summer. Some work on their tans. Here at Matrix Radar, we like to dive in the deep end…of leave related compliance!

Don’t judge us, you know you’re interested. Which brings us to our point:

JOIN US for the first of a two part overview of the Americans with Disabilities Act: ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next?

In Part 1, we will explore using industry ADA benchmark data to manage resources and expectations. Learn about bringing employees back to work after COVID closures; how to identify a suitable accommodation without setting a precedent; and that Accommodation of Last Resort.  And, get comfortable with what medical info you can (and cannot) ask for to support an accommodation:  When?  How?  How often?  What if it’s not enough?

This is a free informational webinar, starring yours truly along with Senior Director, Employment Law & Compliance, Gail Cohen; and moderated by National Absence Practice Leader, Tim Suchecki.

Click here to register for this event and submit questions in advance. Feel free to forward to others in your organization who might be interested. (Note: Once you see a window with your name, you have been successfully registered and can close the window. An email will be sent before the event as confirmation and reminder.)

Oh, and hey: If you missed our May 28th webinar on Paid Family and Medical Leave – To Massachusetts and Beyond! well, first of all, shame on you! But you can still Click to view a recording. Because we’re nice! 

See you Thursday.

COVID-19 AND WORKERS’ COMPENSATION

Posted On May 27, 2020  

by Mark Antonson - AVP, Workers Compensation Administration

& Jose Reynoso - Director, WC Administration

May 27, 2020

 

Did you know that Matrix Absence Management administers workers’ compensation claims? We do and, in fact, workers’ comp was Matrix’s original line of business back in the day! Yet for all the COVID-19 coverage we have provided, this is a topic we haven’t covered yet.

I’m not a workers’ compensation expert so I turned to my Matrix colleagues, AVP Mark Antonson and Director Jose Reynoso, for assistance. Thanks, guys!

If Matrix isn’t your workers’ comp claims administrator, I think this article will still be helpful – be sure your administrator is following the best practices outlined below.


The Impacts of COVID and WC Administration

Several states have enacted or by Executive Order adopted presumptions of compensability for Workers’ Compensation benefits for certain classifications of workers, typically healthcare workers and first responders. Some of these states have also expanded or are considering widening access to workers compensation coverage for COVID-19 beyond health care workers and first responders to include all workers labeled as essential. The National Council on Compensation Insurance provides regularly updated legislative and presumption activity by state as a useful reference.

Although administering claims in jurisdictions with presumptive rules places the burden on the employer to prove the virus was not contracted at work, it is still important to remember these are rebuttable presumptions and employers/claims administrators should still be diligent in investigating each claim thoroughly to overcome the presumption.

At Matrix, in conjunction with our defense counsel and Special Investigations Unit vendor, we have tailored our investigative practices involving COVID exposure claims to include gathering the appropriate information and unique circumstances of an employees exposure to ensure we have a full understanding of the exposure event in an expedited manner.

Continuity of Care

A lot of attention has been focused on the virus and whether it is workrelated, what the cost impacts will be to the industry, what are the long term effects if any, etc. In addition, there is still a number of open claims for individuals without COVID who are impacted by the pandemic, such as those who require treatment for other work-related conditions or whose care has been interrupted or delayed as a result of the pandemic.

The importance of continuity of care is essential for employees to remain on the path to recovery and return to work. At the start of the shutdown, Matrix began coordinating with employee’s treatment providers to explore alternatives to in-person care via tele-medicine and tele-rehab. Staying active in providing alternatives for ongoing care has allowed us to maintain closing ratios at pre-COVID levels through April. We have seen delays in treatment for those requiring surgical procedures that were re-scheduled as they were deemed non-essential procedures.

Slowdown in Claims Resolution

Where we have seen a slowdown in moving claims to resolution are in jurisdictions whose Workers’ Compensation Hearing Divisions are only hearing certain types of cases or have rescheduled all hearings to later in the year. Although hearings in some states are delayed, it does provide us with the opportunity to reach settlement agreements amenable to both parties.

Return to Work

As the shutdown lightens, return to work in a number of industries – notably airlines, retail, restaurant, and hotel/hospitality – for both regular and modified/alternate work will be challenging. Using vocational counselors for outside job placement may be equally challenging given the number of employers who are not operating at capacity. Matrix continues to partner with our clients to find innovative return to work solutions based on our clients’ and their employees’ unique situations.

Impact on Disability Claims

Many short term and long term disability plans have an exclusion for claims covered by workers’ comp. Matrix’s disability claims examiners are well aware of this exclusion and which of our clients’ plans have such a provision, and will administer the disability claims accordingly.

Matrix can help!

If you are interested in learning more about Matrix’s workers’ compensation claims management services, please contact your Matrix or Reliance Standard Life Insurance account manager, or ping us at ping.matrixcos.com .

TENDING TO THE MASS-ES – AND OTHERS!

Posted On May 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 26, 2020

 

It’s been a long, cold Spring, what with COVID-19, quarantines and a plethora of related legislation to unpack. If there’s anything to help remind us that time – and regular, good old leave legislation – marches on, it’s the steady approach of Massachusetts PFML, with benefits starting in January, 2021. Webnair Invite

Join my colleague Gail Cohen and me for our next market webinar: Paid Family and Medical Leave – To Massachusetts, and Beyond! We’ve weathered the storms of New York and Washington State. Massachusetts is still a shifting landscape as the state continues to release new regulations and information just a few months out.

Our last few webinars attracted more than a thousand friends and colleagues each – we hope you’ll be one of the faithful for this important splash of non-COVID-related reality!

This Thursday, May 28, 2 PM Eastern. Click here to register for this event and submit questions in advance!