OCTOBER: NATIONAL DOMESTIC VIOLENCE AWARENESS MONTH

Posted On October 20, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

October 20, 2021

 

In 1989, the U.S. Congress passed a law designating October as National Domestic Violence Awareness Month. Despite increased awareness of this issue, the following statistics from the National Coalition Against Domestic Violence are troubling:

  • More than 10 million adults experience domestic violence annually.
  • If each of these adults experienced only once incidence of violence, an adult in the US would experience violence every three seconds.
  • 1 in 4 women and 1 in 10 men experience sexual violence, physical violence and/or stalking by an intimate partner during their lifetime.

Leave Laws Protecting Domestic Violence Victims

U.S. jurisdictions continue to add laws mandating job-protected leave of absence and providing employment protections when an employee or a family or household member is a victim of domestic or sexual violence such as Missouri, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon and Washington. We’ve previously written about these domestic violence leave laws, herehere and here. In addition, and more recently, U.S. jurisdictions are also providing employees with paid time off through their family and medical leave legislation. 

Although these laws vary, the types of activities protected by these laws typically include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, and/or relocating to a permanent or temporary residence.  

In addition, do not forget that in some situations, leave under the Family and Medical Leave Act (FMLA) may also be available to employees and their family members to address certain health-related issues resulting from domestic violence. As noted by the Department of Labor in a FAQ, “An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.”  See FMLA Frequently Asked Questions | U.S. Department of Labor (dol.gov)

How to stay on top of this Information

This is a lot of information and difficult for employers to keep up with – especially multi-jurisdictional employers.  To assist you, Matrix has created a table summarizing key portions of the domestic violence leave laws. This table provides a one-stop-shop for you to track the growing number of jurisdictions offering this type of leave and provides an overview of their requirements.  Matrix administers all of these laws for our leave of absence clients.

In addition to the specific “personal protection” leave (paid or unpaid) laws identified in this table, a number of states and municipalities have also enacted paid sick time laws containing “safe time” provisions to protect workers.  A good resource for state and municipal paid sick time laws can be found at A Better Balance.  The chart includes the following specific line item for each paid sick law:  “Can sick time be used for specific ‘safe time’ purposes (related to domestic violence, sexual assault, or stalking)?”

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee’s (or victim’s) privacy and safety. For example, we administer these domestic and sexual violence laws under the name “Personal Protected Leave.” For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com

STAY IN THE KNOW WITH OUR QUARTERLY COMPLIANCE WEBINARS!

Posted On October 08, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

October 08, 2021

 

Compliance updates show no sign of slowing down, but you can keep up with our new webinar series, The Docket:

The third quarter review of All Things Absence!  Although topics may change quarter to quarter, Matrix Absence Management Vice President Marti Cardi, Esq. together with her team Lana Rupprecht, Esq, and Armando Rodriguez will cover:

  • Pending and recently passed state and federal legislation
  • State and federal Paid Family and Medical Leave updates
  • New Equal Employment Opportunity Commission guidance, lawsuits/settlements and more concerning ADA
  • New Department of Labor guidance, lawsuits/settlements and more regarding FMLA
  • Court opinions on ADA, FMLA and other laws
  • COVID-19 updates
  • And more!

Click here to sign up for The Docket Q3 webinar on October 12, 2021 at 2:00 PM ET.

TRUE FMLA STORIES FROM RECENT COURT OPINIONS – THE FAQS

Posted On October 04, 2021  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

October 04, 2021

 

On September 14 (has it been that long ago?), the Matrix compliance team presented True FMLA Stories from Recent Court Decisions as a DMEC webinar (Disability Management Employer Coalition).  And if you don’t know DMEC, you should – check them out at dmec.org.  And here’s good news: the On Demand recording can be found here and is available to you for free even if you are not a DMEC member (yet).

We had so much fun at this webinar responding to your very good questions. Unfortunately, we ran out of time so we decided to answer a few more in this blog and future blogs.  Today we will address some of your questions on the topics of certifications and recertifications.

Question:  May an employer request a medical certification each time an employee is absent for a condition already approved for intermittent leave?

Answer:  No.  Once an employer already has a complete and sufficient certification it may not ask for more information, such as requiring a doctor’s note, for each FMLA-related absence.

The FMLA regulations allow an employer to require a request for leave due to the employee’s or a family member’s serious health condition be supported by a certification issued by the health care provider of the employee or the employee's family member.  29 C.F.R. § 825.305(a).  No information may be required beyond that specified in the regulations.  §825.306(b).

For intermittent leave, that information must include an estimate of the frequency and duration of the employee’s absences.  §825.306(a)(7).  Intermittent leave for medical treatment must include an estimate of the dates and duration of such treatments and any periods of recovery.  §825.306(a)(6).

Once the employee has provided a complete and sufficient certification on which the health care provider has stated the anticipated frequency and duration, the employer cannot ask for additional medical documentation for leave usage that falls within that estimated usage range or close to it.  If the employee’s usage is excessive as measured against the estimate, an employer may request recertification as permitted by the regulations.  More on that below!

Since it seems all things relate to COVID these days, here is a link to specific guidance from the Department of Labor relating to a similar question and COVID-19: 9.  May my employer require me to submit a doctor’s note to use FMLA leave if I am sick and unable to work because of COVID-19?  COVID-19 and the Family and Medical Leave Act Questions and Answers.

The court in the case, Oak Harbor Freight Lines v. Antti, 998 F. Supp.2d 968 (D. Ore. 2014), addressed a similar issue. There, the employer, Oak Harbor Freight Lines, became increasingly frustrated as its employees frequently took Fridays and Mondays for intermittent FMLA.  (Sound familiar?)  In response, Oak Harbor required employees to provide doctor’s notes supporting each absence and how such absences related to their FMLA-qualifying conditions. 

Two of these employees refused to provide doctor’s notes even though according to Oak Harbor, 88.99% of one employee’s FMLA time off and 94% of the other employee’s FMLA time off were adjacent to a weekend or holiday. Oak Harbor requested that the court declare that its practice of requiring these notes complied with the FMLA, but the court disagreed. It held requiring the doctor’s note was illegal given the FMLA’s specific and detailed regulations relating to medical certifications and recertifications.

The Court, quoting another case, stated: “[h[ad Congress, or the Department of Labor desired to permit employers to demand such intermittent verification, the statute or regulations would provide as much. Instead, the regulations provide that an employer can verify the absence-condition connection by means of recertification.”

So the lesson here is stick to the regulation regarding certification and recertification. If you already have a complete and sufficient certification, see if you can utilize the recertification process, which we discuss more in response to our next question below. 

Q:  How many times should an employer give an employee a grace absence approval before asking for recertification?         

This question is spot on in recognizing the recertification process as a useful and powerful tool—especially if the employee is exceeding the frequency and duration of the approved leave or has established “suspicious” patterns of usage.

Generally, for most leaves, recertification is permitted no more often than every 30 days or the expected duration of the leave, whichever is longer.  Shorter intervals for recertification are permitted if, for example, there is a significant change in the circumstances than what is set forth in the certification or if the employer has reason to doubt the stated reason for the absence. 

The FMLA regulations provide that a health care provider’s assessment of frequency and duration for an intermittent leave is an estimate only. That means just one or two “grace absences” – those allowed in excess of the number or duration of absences estimated by the provider – will not likely establish a significant change in circumstances or any reason to doubt.

But if an absence pattern that exceeds the scope of the current certification continues, that may constitute a significant change in circumstances enabling an employer to utilize the recertification process. Similarly, if the call outs are frequently near a weekend or holiday—like the employees in the Oak Harbor case, such a pattern likely casts doubt on the stated reason for the absences, also enabling use of the recertification process.  In fact, in Opinion Letter FMLA2004-2-A the DOL has opined that Friday/ Monday absence patterns can constitute “information that casts doubt upon the employee’s stated reason for the absence.”  See also 825.308(c)(2)-(3).

Pings for Employers

So where does this leave employers who struggle with combating repeated questionable FMLA absences?

  • Manage the medical certification process carefully at the outset by seeking clarification and verification and obtaining second and third opinions as needed. This is your chance if you have any reason to doubt the certification’s validity up front.
  • Once you receive a complete and sufficient certification, carefully track and document any and all absences that exceed the scope of the initial certification.
  • Utilize the recertification process if you observe a pattern of leave exceeding the frequency and/or duration of the initial certification.
  • Finally, if you have concerns about the employee’s absences and leave pattern, provide the health care provider with this information during the recertification process to inquire whether the absences are consistent with the employee’s serious health condition.  See Fact Sheet #28G for more information

Additional Questions?

We know there were additional questions and have not forgotten. We’ll take on more outstanding questions in a future blog post or two.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

WASHINGTON D.C. UPS ITS GAME – EXPANSIONS TO UNIVERSAL PAID LEAVE AND EMPLOYEE PROTECTIONS

Posted On September 27, 2021  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

September 27, 2021

 

Sitting in the shadow of the controversy over whether the Feds will pass a paid family and medical leave program, the District of Columbia has not shied away from its own PFML program.  Two significant new laws (well really, a collection of laws) have expanded D.C.’s Universal Paid Leave (UPL) program and, in effect, provide more pay for many employees using the medical portion of the paid leave. 

D.C.’s UPL program, which we previously wrote about here, was recently amended as part of D.C.’S budget for fiscal year 2022. The changes include:

  • Prohibiting short term or temporary disability insurance carriers from offsetting the UPL paid medical leave benefits against amounts owed under an STD policy effective October 1, 2021 (but see below: also in effect May 26, 2021, through March 11, 2022 under previous emergency and temporary bills); and
  • Increased duration of employee paid leave entitlements effective October 1, 2021.

The legislative history is confusing, so we chopped out that part of our original draft of the post.  What you need to know are the effective dates we share below. We’ll refer collectively to the succession of bills that got us to where we are now as “the Amendments.”

First up:  No UPL offsets for insured STD policies. 

The Amendments incorporate the previous offset prohibitions contained in prior emergency legislation.  These are in effect collectively from May 26, 2021, through March 11, 2022.

  • Under the prior laws and the Amendments, insurers are prohibited from offsetting or reducing temporary or short-term disability (STD) benefits under an insurance policy based upon actual or estimated UPL paid leave benefits received by an employee.
  • This prohibition does not apply to “self-insured employers” – defined as employers who use their own resources to pay its employees’ family, medical, STD, or related leave benefits rather than providing such benefits through an insurance company and employers who contract with a third-party insurer to administer their self-funded leave benefits program.
  • It also does not apply to insurance carriers administering employer-funded STD plans for employers.

    At the time of the initial emergency and temporary legislation, UPL provided only 2 weeks of paid leave benefits for an employee’s own medical condition.  Insurers will feel more of an impact due to the increased amount of paid leave contemplated by the Act discussed below.

    Next:  The UPL (Paid Leave) Changes.

    The Amendments expand UPL’s paid leave provisions, beginning October 1, 2021:

    Pre-natal Leave Added.

  • Employees may take up to 2 weeks of paid pre-natal leave relating to routine and specialty appointments, exams and treatments associated with a pregnancy provided by a health care provider. This includes pre-natal check-ups, ultrasounds, treatment for pregnancy complications, bedrest prescribed by a health care provided and pre-natal physical therapy. Pre-natal care was not previously called out separately as a UPL leave reason.
  • The two weeks of paid pre-natal leave is in addition to the total amount of paid parental leave permitted in a given year which, as of October 1, 2021, will be a total of 10 weeks of paid leave (2 weeks pre-natal + 8 weeks of parental).

    Additional Leave for an Employee’s Own Serious Health ConditionAs of October 1, 2021, employees may receive up to 6 weeks of paid leave associated with their own serious health condition.  Previously, the UPL permitted just 2 weeks.

    Progressive Annual Expansions of Leave.

  • The Amendments contemplate annual increases – up to 12 weeks – in the amount of paid parental leave, employee serious health condition leave, or family serious health condition leave.
  • Employees may still not exceed 8 weeks of paid leave benefits in a 52-workweek (or whatever the maximum amount of parental leave is at the time a claim is made) EXCEPT when combining pre-natal and parental leave as discussed above.

    No Elimination Period (At Least for Now)The 7-day elimination period is temporarily removed for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency.

    30-Day Claim Period.  Employees may submit a claim for paid leave up to 30 days after they qualify for leave.  An employer may waive this 30 day period if the employee is unable to apply for his or her paid leave benefits due to “exigent circumstances.”

    Temporary Revised Calculation of Average Weekly WageThe calculation of the average weekly wage for the employee contribution amount also will temporarily change (for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency) so that the lookback period is the highest four out of ten quarters—rather than the highest four of the last five quarters.

    Finally:  Changes Impacting D.C.’s FMLA

  • The Amendments also expand coverage under the District’s unpaid but job-protected Family and Medical Leave Act to employees who were employed by the same employer for at least 12 consecutive or non-consecutive months.
  • Leaves will still run concurrently if the leave qualifies under both D.C. UPL and D.C. FMLA.  However, as we previously reported, there may be situations where some employees may be entitled to UPL leave but not D.C. FMLA leave and thus be without job protection. 
  • As always, the federal FMLA will run concurrently with either law if it applies.

Universal Paid Leave Amendment Act Resources

Universal Paid Leave Amendment Act of 2016

Universal Paid Leave Emergency Amendment Act of 2021 (B24-0373)

Universal Paid Leave Amendment Act of 2021 (B24-0285)

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com

TRUE FMLA STORIES FROM RECENT COURT OPINIONS

Posted On September 07, 2021  

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

September 07, 2021

 

Tuesday, September 14 | 12:00 pm ET

When dealing with leaves of absence, the Family and Medical Leave Act (FMLA) statute sets the framework, while the regulations provide more detail, and the Department of Labor’s (DOL) opinion letters give us the government’s side of the story. But there’s more to FMLA compliance than that. The rubber really meets the road with the resulting court opinions. Join Marti Cardi, Vice President – Product Compliance. Lana Rupprechet, Director – Product Compliance, and Armando Rodriguez, Compliance Attorney, for this session as we explore how employers fare in FMLA lawsuits, the lessons learned, and the absolute latest in FMLA case law.

 

This session qualifies for the following CEUs:

  • 1 ADMS
  • 1 CDMS
  • 1 CLMS
  • 1 PHR
  • 1 SHRM

Enter "21MATRIX1" at checkout and that should reduce the charge to $0.00!

MISSOURI OFFERS JOB-PROTECTED LEAVE TO VICTIMS OF DOMESTIC AND SEXUAL VIOLENCE

Posted On August 23, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

August 23, 2021

 

Effective August 24, 2021, Missouri becomes the latest state to mandate job-protected leave of absence when an employee or a family or household member is a victim of domestic or sexual violence. With this law, Missouri joins California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon and Washington as jurisdictions providing employment protection to victims of domestic and/or sexual violence, stalking, and the like.  

We’ve previously written about some of these laws here and here.

Key provisions of the Missouri law are as follows:

Covered employers under the law include the state or any agency of the state, political subdivision of the state, and private employers of at least 20 employees.

Covered employees.   Missouri employees are eligible as of date of hire.

Leave reasons and covered relationships. An employee is eligible to take leave under the law if the employee is a victim of domestic or sexual violence, or to care for a family or household member who is a victim of domestic or sexual violence. The law defines “family or household member” as:

  • Spouse
  • Parent
  • Son or daughter
  • Other person related by blood or by present or prior marriage
  • Other person who shares a relationship through a son or daughter, and
  • Persons jointly residing in the same household

Leave Duration. Employers with 20-49 employees must provide an employee 1 workweek of leave and employers with 50 or more employees must provide 2 workweeks of leave during any 12-month period. The employee can take the leave continuously, intermittently, or on a reduced schedule.

Leave is available for the following purposes for the employee or to assist the employee’s family or household member:

  • Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee's family or household member
  • Obtaining services from a victim services organization for the employee or the employee's family or household member
  • Obtaining psychological or other counseling for the employee or the employee's family or household member
  • Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee's family or household member from future domestic or sexual violence or to ensure economic security, or
  • Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee's family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence

Employee notice and documentation. An employee must provide at least 48 hours’ notice of the need for leave, unless providing advance notice is not possible. An employer may require documentation that an employee, or employee’s family or household member, is a victim of domestic or sexual violence. An employee may satisfy the documentation requirement by providing a sworn statement and:

  • Documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the employee or the employee's family or household member has sought assistance in addressing domestic violence or sexual violence and the effects of such violence;
  • A police or court record; or
  • Other corroborating evidence.

Employer’s Duty to Provide Safety Accommodations. The law imposes a duty on an employer to make reasonable safety accommodations in a timely manner resulting from circumstances relating to being a victim of domestic or sexual violence. The law defines reasonable safety accommodation as:

An adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, implementation of a safety procedure, or assistance in documenting domestic violence that occurs at the workplace or in work-related settings, in response to actual or threatened domestic violence.

Additionally, any exigent circumstances or danger facing the employee or his or her family or household member must be considered when determining whether the accommodation is reasonable. However,  the employer is under no such duty if it can demonstrate that the accommodation would impose significant difficulty or expense, when considered in light of the nature and cost of the accommodation.

Use of Other Paid Leave.  The law specifies that the leave is unpaid but is silent as to whether an employee can or must use accrued paid time off during a leave.   The safest interpretation will be to allow employee to use other accrued paid leave such as PTO or, in some cases, paid sick leave, at their option but not to mandate such use.

Confidentiality.  As with other similar laws, employers have a duty to maintain the confidentiality of information received about an employee’s status as a victim of domestic violence.

MATRIX CAN HELP!   At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. We take various steps to maintain an employee’s (or victim’s) privacy and safety. For example, we administer these domestic and sexual violence laws under the name “Personal Protected Leave”. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

A MID-SUMMER NIGHT'S REMINDER - NEW AND EXPANDED LEAVE LAWS FOR 2021-2022

Posted On August 10, 2021  

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

August 10, 2021

 

Isn’t it weird how summer speeds up right after July 4th? We’re more than halfway through the dog days, and a lot has happened in the state and federal legislatures regarding paid and traditional leave laws. Who can keep track of it all? Who wants to?

Spoiler alert: We can, and – like the government – we’re here to help! (Really, we are!)

Let’s make it easy as possible. If your business interests lie on one of the baker's dozen jurisdictions below, you have some studying to do with regard to new and amended leave laws. Remember, these include both the regular ol’ vanilla employee leaves as well as paid family and medical leave (PFML) laws. Plus, there are a couple of oddball offerings that don’t really fit but we have to put them somewhere – like the Virginia law expanding STD benefits for birth mothers.  

CA MD PA
CT MO RI
DC NH VA
KY OR WA
ME

What you won’t find in this blog is COVID-specific leave laws. Maybe another day?

So click below for your favorite state and see what’s new or on the horizon.

 

Matrix can help! We are always on the watch for new laws that affect the services we provide, and we’ll keep you up to date. Whether it is through this blog, our quarterly compliance update webinars The Docket, or in compliance consultations with our client employers and other business partners, you can count on Matrix for the latest developments in leave of absence, paid leave benefits, and ADA accommodations. Contact your Matrix or Reliance Standard account manager or one of our regional practice leaders for more information, or send us a message at ping@matrixcos.com.

STAY IN THE KNOW WITH OUR NEW QUARTERLY COMPLIANCE WEBINARS!

Posted On July 19, 2021  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

July 19, 2021

 

Compliance updates show no sign of slowing down, but you can keep up with our new webinar series, The Docket:
A Quarterly Review of All Things Absence!
Although topics may change quarter to quarter, Matrix Absence Management Vice President Marti Cardi, Esq. will cover:

  • Pending and recently passed state and federal legislation
  • State and federal Paid Family and Medical Leave updates
  • New Equal Employment Opportunity Commission guidance, lawsuits/settlements and more concerning ADA
  • New Department of Labor guidance, lawsuits/settlements and more regarding FMLA
  • Court opinions on ADA, FMLA and other laws
  • COVID-19 updates
  • And more!

 

Sign up for The Docket Q2 webinar on July 20, 2021 at 2:00 PM ET.

 

To add this webinar to your personal calendar, please use the button below.

 

NEW HAMPSHIRE PASSES A PAID FAMILY AND MEDICAL LEAVE LAW -- AND IT'S A DIFFERENT ANIMAL!

Posted On July 06, 2021  

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

July 06, 2021

 

New Hampshire has joined the PFML club but with a new kind of membership – a model we haven’t seen before in other states with statutory paid family and medical leave programs. Does the “Granite State Paid Family Leave Plan” represent the start of a new style of PFML programs, or is it just what you’d expect from a state whose official motto is “Live free or die?”

Too early to tell, but the New Hampshire bill has already broadened our thinking about insured paid family leave programs.

In summary, the law requires paid family leave for state employees and provides for voluntary opt-in by non-state employers and individual non-state employees. What’s different is that the state will contract with an insurance carrier to provide and administer the paid leave benefit. The anticipation is that with a large pool of state employees to insure, the carrier will be able to offer voluntary participation by non-state employers and employees that is realistic and affordable.

New Hampshire House Bill 2 can be found here.  It’s long so search within the bill for “Granite State Paid Family Leave Plan” and you’ll find it near the end. The statute has lots of ambiguities and inconsistencies, and many details are left to the Commissioner of the New Hampshire Department of Administrative Services to determine. With that caveat, here’s what we think we know about the Plan from the statute and informal interpretations at this point. But stay tuned, there’s much more to come over the next few months!

Covered Employers and Employees

State employers/employees. The state will solicit bids from qualified insurance carriers to provide the paid leave benefit to state employees. [21-I:99.I.] It is not clear whether more than one carrier could be awarded a portion of the business. Best guess at this time is that it will all go to one carrier, but others may be able to provide the opt-in coverage to non-state employers and employees.

Non-state employers/employees. The selected carrier(s) must offer participation in the paid leave Plan to private employers, other non-state public employers, and employees whose employer does not opt in to the Plan. [21-I:100.] To participate, private employers must have more than 50 employees in New Hampshire. [21-I:100.II.] Covered employers can elect to provide FMLI coverage at no cost to employees OR on a full or partial employee contribution basis. [21-I:101.]

Individual employees can opt in to the Plan if:

  • they work for a private employer with more than 50 employees that (1) does not opt in as an employer and (2) does not offer a company paid leave program with benefits at least equivalent to the state coverage. [21-I:100.III]; or
  • they work for a private employer with fewer than 50 employees that does not offer a company paid leave program with benefits at least equivalent to the state coverage.

Benefits

Family leave is available for reasons very similar to the FMLA: bonding with a new child, caring for a family member with a serious health condition, qualifying exigencies due to a family member’s foreign military deployment, and caring for an ill or injured servicemember. [21-I:99.II and 282-B:2.VI.]

Covered relationships for family leave include child, parent, grandparent (all broadly defined), and spouse or domestic partner.

Medical leave for an employee’s own serious health condition is not available to state employees. [21-I:99.II.] Private and non-state public employees covered through the purchasing pool can take medical leave for non-work-related medical conditions if their employer does not provide short-term disability insurance. [282-B:2.VI(e).]

Benefits are limited to 6 weeks of paid leave “with no minimum duration required.” [21-I:99.III(b).] The meaning of the quoted phrase is not clear: Does it refer to the ability to use, for example, only 1 or 2 weeks of leave, or does it mean that leave can be taken intermittently for up to a total of 6 weeks?

Wage replacement is 60% of an employee’s average weekly wage (AWW), capped at the Social Security taxable wage maximum.

Funding

Plan costs for state employees is funded by the state. Funding for all other participants will be through a purchasing pool paid into by employers and employees that opt into the Plan. Premiums for individuals in the pool cannot exceed $5 per subscriber per week.

Employers that have more than 50 employees and do no opt into the Plan must withhold payroll deductions for premiums from their employees who opt in individually. [282-B:3.II.] Employers with fewer than 50 employees do not have to take payroll deductions. [282-B:10.] Employees of such employers who choose to obtain coverage will contract directly with the carrier(s) awarded the business through the purchasing pool. [21-I:100.III.]

Tax Credit

The statute provides an employer tax credit of 50 percent of the premium paid by a sponsoring employer for FMLI coverage offered to employees pursuant to the statute. [77-E:3-e.] It is not clear whether an employer that voluntarily provides paid family leave benefits outside of the Plan can also receive the tax credit.

Employee Eligibility

The law does not specify eligibility requirements for state employees but does provide that the Commissioner shall establish a “tenure requirement” expressed in months of work. Once established, eligibility is portable if an employee changes jobs. [21-I:99.IV.(b).]

For non-state employees participating through the purchasing pool, the statute provides for “a 7-month waiting period, a one-week elimination period, and a 60-day annual open enrollment period.” [21-I:100.III.] Common interpretation is that the 7-month waiting period is how long an employee must wait before becoming eligible for coverage through the pool. However, there is no explanation of whether that means 7 months of employment in New Hampshire, 7 months of employment with the current employer, 7 months of paying premiums into the pool, or some other factor.

Job Protection

Employees of an organization (with 50 or more employees) that sponsors a Granite State Plan are entitled to restoration to the same or an equivalent position following leave; and to continued health insurance during leave, with employees continuing to pay their share of costs. [275:37-d]

Effective Dates

The Commissioner must issue a request for proposals for FMLI coverage as described in the statute no later than March 31, 2022. The FMLI coverage must be in place for state government employees and available for purchase by other public and private employers with more than 50 employees and individuals by January 1, 2023. [21-I:108] This creates an extremely tight timeframe between issuance of the RFP, award of the contract, and implementation of the program from zero to payment-ready.

What We Don’t Know

The statute is pretty bare-bones compared to what we are used to seeing in other states, with little detail and few requirements at this point. The Commissioner is empowered to determine many details, including the base period for determining the AWW; tenure requirement (in months worked) for eligibility; what (if any) elimination period applies; minimum participation requirements; parameters for open enrollment; procedures for contributory/partial contributory/non-contributory Plans; and procedures for payroll deductions for employers with 50+ employees.

Matrix Can Help!

Stay tuned! As always, we will be watching the progress of this new law, reporting developments on this blog, and assessing how the Granite State Plan fits into PFML services already offered by Matrix and Reliance Standard. If you have any questions, contact us at ping@matrixcos.com or through your Matrix or Reliance Standard sales or account manager.

A "BACKWATER POSITION" AFTER FMLA LEAVE? SORRY, ALL THINGS ARE NOT EQUAL (OR EQUIVALENT)

Posted On June 02, 2021  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

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

June 02, 2021

 

The Family and Medical Leave Act requires employers to reinstate an employee to the same, or an equivalent, position following an approved leave. Often this means employers are left to wrestle with the question of what constitutes an “equivalent position” under the FMLA. A recent case from federal district court in Wisconsin, Simon v. Cooperative Educational Service Agency, 2021 WL 2024921 (May 21, 2021) provides some helpful guidance.

Sarah Simon held the position of “alternative program lead teacher” for Cooperative Education (“CESA”) at REACH Academy, a school for elementary students with emotional and/or behavioral disabilities. Her duties included far more than teaching curriculum to the students in her classroom. They also involved management of paraprofessionals working under her supervision, and developing and implementing integrated education plans (“IEPs”) for her students.

Ms. Simon suffered a concussion from a physical altercation with one of her students. She left work to go to the Emergency Room and informed HR about her need for time off as a result. She was placed on worker’s compensation leave and cleared to return to full time duty after about a month. While she was on leave, her employer concluded restoring and returning her to her prior job constituted an “unreasonable risk.” She was instead placed in a position as a special education teacher at a different school, but at her same salary and benefits – until being informed that her contract would not be renewed. Simon sued, alleging CESA had failed to reinstate her to an equivalent position.

The case went to trial on that question. You know the employer is going to lose when early in the opinion the court observes that the employer “not only refused to return her to her previous position, but instead parked her in a backwater position with materially fewer responsibilities … Simon deserved better and the law demanded better.” Yikes.

The FMLA provides that, upon return from leave, an employee is entitled to be restored to the position she held prior to leave, or to an equivalent position which is “virtually identical to the employee’s former position,” with equivalent employment benefits, pay, and other terms and conditions of employment. The test for equivalency is strict: the new position must involve “the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a).

This employer thought that as long as Ms. Simon was earning the same salary, that was enough to be equivalent; but the regulations bear out that jobs are about more than just pay. In Ms. Simon’s case, the move to the special education role eliminated management responsibilities she had for the paraprofessionals with whom she worked, along with many significant duties in which she clearly took great pride and for which she was vested with authority and discretion. In Simon the court held that a new position with less prestige and visibility, or a loss of management responsibilities – even at the same pay – is not an equivalent position.

Pings for Employers:

  • “Unreasonable risk?” It is truly cringe-worthy to hear an employer make the assumption that an employee who was injured at work constituted an “unreasonable risk.” The court opinion never explains what CESA perceived this risk to be, or why reinstatement to a different position lessened that supposed risk. This consideration is irrelevant in the FMLA world, however, because the FMLA does not allow an employer to deny job restoration because of a fear of risk.
  • Same position is your best bet. When an employee is returning from leave, your best bet is to restore her to the same job she held prior to taking FMLA. If that is not available for legitimate business reasons or otherwise, look for one that is truly equivalent and comparable, not only in terms of pay and benefits but the other practical, meaningful aspects of work that employers should never forget. When an employee is “reinstated” following FMLA leave to a position that is less prestigious or has less responsibility, you are at risk for a lawsuit.
  • An ADA lesson on the side. It appears that Ms. Simon recovered quickly enough that her condition did not rise to the level of an ADA-protected disability. However, let’s consider some ADA rules that otherwise would have applied: Under the ADA, the employer’s obligation is to restore an employee to the SAME position following leave as an accommodation. An employer’s failure to reinstate the employee to the same position is justified only if it would pose an undue hardship on the business – a tough standard to meet. We touched on that topic in a prior blog post.
  • And a BONUS ADA lesson! Finally, the ADA does not permit an employer to refuse to reinstate an employee after accommodation leave due to a fear of “increased risk” unless the employee poses a direct threat to herself or others. The EEOC addressed this issue in the workers’ compensation context in its Enforcement Guidance on WC and the ADA at Question 14. Suffice it to say that, if you are going to consider an employee a risk after she is injured in your workplace, you had better have some objective support, medical or otherwise, to back up that position!

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services.[MC1] For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.


 [MC1]

"CAN YOU HELP ME DESIGN A PFML PLAN THAT SATISFIES ALL STATE REQUIREMENTS?" PART III IN OUR PAID FAMILY LEAVE TRILOGY

Posted On May 10, 2021  

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

May 10, 2021

 

This is the third of a 3-part series on paid family and medical leave (PFML). Here are the prior posts:

  • This is the third of a 3-part series on paid family and medical leave (PFML). Here are the prior posts:
  • The FAMILY Act – Federal Paid Family and Medical Leave Coming Your Way? (Part II)

For those of you who stick with us through this post, we have a reward at the end – and you don't even have to send in your box tops to get it!

 

“Hey guys, can you help me design a PFML plan that will satisfy ALL the state requirements?”

We get this question a lot. The answer is, uh, no. Nor would you really want that! While there are some common features that make up a baseline PFML offering, every state that has a paid disability and/or paid family leave law – and I mean every state – puts its own special stamp on the scope of the benefits provided. Cover all of those universally and you may not have any workers left on the job site!

Ok, that’s maybe a bit of an exaggeration, but not as much as you might think. Let’s consider:

For an employer to comply with every state law in which it has employees, a universal plan will have to meet the provisions most favorable to the employee in any such state. That means the best benefits required by any state plan and the lowest cost or burden. Let’s take that apart to see what it means, element by element.

  1. You can never cover them all with one plan. This is because some state programs are administered only by a state agency, i.e. private plans are not allowed. So, for example, in Rhode Island and District of Columbia employers have no choice but to adhere to the state benefits scheme. One option, though, would be to layer on more benefits to bring your RI and DC employees up to par with all your other U.S. employees.
  2. Concurrency with FMLA and Stacking. “Stacking” means the ability of an employee to take leaves for the same reason – bonding, for example – sequentially rather than concurrently, thus stretching out the amount of time on leave. As you may recall, FMLA is never an employee’s choice – if leave is taken for a covered reason and an eligible employee has FMLA entitlement available, the employer must designate the leave as FMLA. Ideally, if an employee takes leave that is covered by FMLA and also covered by a state paid leave law we want both laws to apply at the same time. And in some states this works. In Massachusetts, for example, the employee’s leave is automatically covered by and applied to Mass PFML entitlements under the state plan (or a private plan) even if the employee doesn’t request such coverage. In New York, the employer can elect to have concurrent FMLA / NY PFL coverage by giving appropriate notice to the employee. But cruise on up to the Pacific Northwest: In Washington, it is the employee’s choice whether to take WA PFML at the same time as FMLA. So, an employee could choose to take 12 weeks of unpaid FMLA for bonding (but maybe get some pay through use of PTO) and then take another 12 weeks of WA PFML paid leave for bonding. Another, more reasonable, example of this rule would be if the employee needs time off now for surgery and takes FMLA, but saves the WA PFML entitlement to bond with an expected new child, or for an upcoming need to care for a family member with a serious health condition.

    Think of the implication in building a universal paid leave plan: To provide the better benefit – a Washington employee’s ability to defer usage of the state paid and job-protected leave to a later time – the universal plan would need to allow every employee to defer usage of the state leave benefit in all cases. Think of the stacking going on when employees grow savvy to this idea!

  3. All leave reasons, all family members, for the longest durations. Here’s the next consideration: A universally compliant plan would need to provide paid, job-protected leave for every leave reason offered by any state and, for leave to care for a family member, all family relationships covered by any state, and for the longest durations available. Here’s what it would look like:
    • Leave reasons: Employee’s health condition, care of family member, bonding, military exigencies, care of injured servicemember, safe leave, organ/bone marrow donation, bereavement . . . and any other leave reason added by amendment or through a new state PFML law.
    • Family members: Parent, spouse, domestic partner, child (any age), sibling, grandparent, grandchild, and all the permutations of these relationships such as step, foster, and in-law. Then there’s legal guardian or ward, in loco parentis, and the recent expansion to what we call “like a family member” – meaning anyone the employee considers to be like a family member, regardless of whether there is a blood or legal relationship. Sound squishy? Here’s an example: my grade school best friend’s mother who looked after me every day after school while my mom was at work and I was at her house, doing homework and playing with my friend. That might be stretching it, but not much under some of the laws.
    • Durations: Up to 52 weeks for your employee’s own serious health condition, and up to 12 weeks for family leave or other reasons.

     

  4. Costs & benefits. Here’s where the rubber meets the road. If you choose to withhold contributions from employee paychecks to pay for these leave benefits, under a universal plan you could withhold no more than the lowest rate allowed in any state. That’s 0.2% of the employee’s wages (Colorado, contributions effective in 2023). But you have to provide the highest benefit, which is California’s $1357/week in 2021 for both disability and family leave. California allows withholding 1.2% of employee’s wages to cover that – 6 times more than Colorado allows. So I’m just not sure the math works out, unless as an employer you are financially very fit and intending to carry a big portion of the cost of the program.

Other stuff. There are many other features you would have to factor in to have a universally compliant PFML plan, such as intermittent time in one hour or smaller increments (even for bonding); very limited information you can require of the employee to support the leave; and more. And give this some thought: More states are almost certainly on their way to passing PFML laws. Who knows what special twist the next one will have? Get ready to sharpen your pencils to figure out the additional cost of more family relationships (although they probably can’t get any broader than “everyone,” longer leaves, lower employee contributions, higher benefits . . . What about your employees in states that don’t yet have a statutory paid medical or family leave benefit? Or employees in jurisdictions where a private plan is not allowed? Do you really want to offer these broad, unilateral benefits to all employees?

Here’s your reward! Congratulations! You’ve made it through this analysis of One Plan to Rule Them All. I promised a reward and here it is: Statutory Disability and Paid Family Leave Laws. This link will take you to a document that summarizes in detail all of the state-mandated paid benefit and leave programs, complete with employee eligibility, leave reasons, contribution rates, and much more. This site is maintained in real time by Matrix and Reliance Standard so it is always up to date. We hope you will find it useful and keep it on your Favorites list. Just remember, it will be updated frequently as developments warrant, so always best to go to the site rather than print it out (who does that anymore, anyway?).

Matrix can help!

I am guessing by now you can see that even if a universal plan could be designed, it would not be a sustainable paid leave program. So how do you ensure compliance with all of the conflicting and overlapping leave laws? One easy solution is to engage Matrix and Reliance Standard to handle it all for you – from state voluntary paid leave and benefits plans to unpaid but job protected leaves such as the FMLA and state equivalents. Throw in your company leave policies and we’ve got you covered! For more information reach us at ping@matrixcos.com or contact your Matrix or Reliance Standard representative.

 

PAID FAMILY & MEDICAL LEAVE UPDATES: A FREE WEBINAR

Posted On May 03, 2021  

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

May 03, 2021

 

If you’re a regular reader you know here at Matrix-Radar we spend a lot of time talking about Paid Family and Medical Leave. It’s not ‘cause we love it so much – honest! It’s because, week to week, there’s always something to talk about!

If you’re ready for a valuable State of the State (and sometimes federal) PFML, you’ll want to join me and my colleague Kevin Cranston, Director of Product and Strategy for Reliance Standard Life Insurance Company, this Thursday for an important update on the PFML landscape as it exists today – and where it might be going.

Moderated by Tim Suchecki, the webinar is free, and you can register here: https://bit.ly/3gpQLIk. I hope to see you Thursday, May 6 at 2 PM Eastern.

WORKERS' COMP AND FMLA – A CLASH OF TITANS OR FRIENDS HOLDING HANDS?

Posted On April 20, 2021  

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

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

April 20, 2021

 

Pop Quiz: Your employee is injured on the job. Is he covered by

  1. workers’ compensation
  2. the Family and Medical Leave Act (FMLA), or
  3. the Americans with Disabilities Act (ADA)

For those of you waiting for “D. Could be all of the above”, well done!

***

A recent decision by the 11th Circuit Court of Appeals tells of an employer who failed the quiz by applying only workers’ comp following an employee’s workplace injury. Reversing a lower court decision in favor of the employer, the appellate court observed that the FMLA does not set up a “clash of Titans” between itself and workers’ compensation. An employer’s obligations under the FMLA are not excused simply because the employer provides workers’ compensation benefits. Back to the lower court for a jury trial – a place you rarely want to be.

What happened?

On September 15, 2016, Noorjahan Ramji, an 11-year employee of Hospital Housekeeping Systems, LLC, (HHS) tripped on the leg of a table and fell, injuring her right knee. Ramji was off work for 11 days and had various doctor’s appointments. Although HHS immediately initiated a workers’ compensation claim for Ramji, they did not inform her about her rights under the FMLA to take up to 12 weeks of job-protected FMLA leave. Instead, HHS required Ramji to use her sick leave until she returned to work in a light duty position.

Per HHS’s internal policy, Pamela Merriweather, HHS’s FMLA administrator, accompanied Ramji to all medical appointments. Ramji was treated with a cortisone shot, referred to 6-8 weeks of physical therapy, and released to return to work on light duty. On a follow-up appointment a month later Ramji exhibited a full range of motion and stated that the initial cortisone shot had resolved her knee pain. Her physician found that Ramji had reached maximum medical improvement with a zero percent disability rating, and released her to return to full duty work.

Ramji attempted to return to work that same day, only to be informed that her return was contingent upon successful completion of an essential-functions test comprised of various physical tasks. Ramji had trouble with several of the tasks such as deep knee squats (it hurts my knees just thinking about it!), and asked Merriweather if she could use accrued sick and vacation leave to give herself additional recovery time.  On the following Monday, October 24, Merriweather told Ramji she was being terminated for failing to complete 5 tasks on the essential-functions test. Ramji again asked to use unused sick and vacation leave, but Merriweather denied the request and fired Ramji.

Hospital Housekeeping’s Defense

HHS asserted three basic defenses:

First, it claimed it was not on notice that Ramji needed or was entitled to FMLA leave.  The appellate court addressed this defense with a thorough review of all the information HHS had about Ramji’s condition. (Umm…the company HR administrator was present during each medical appointment!)  Even though at one point the physician released Ramji to return to work with no restrictions, this was without full understanding of Ramji’s job duties or knowledge of the impending essential-functions test she would have to undergo. Ramji’s several days of missed work and medical treatment, her inability to pass the essential duties test – witnessed by Merriweather – and her requests for time off to heal from her injury were more than plenty to alert HHS that the FMLA was in play.

Second, HHS asserted it was excused from compliance with the FMLA because it provided Ramji with workers’ compensation benefits. The court rejected this argument, citing the FMLA regulations that specify a workers’ compensation absence and FMLA leave may run concurrently. (See 29 C.F.R. § 825.702(d)(2) “An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently . . .”).

Third, HHS argued unsuccessfully that Ramji’s acceptance of a light-duty position relieved it of its FMLA obligations. However, the FMLA regulations explicitly provide that “[i]f FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation.” 29 C.F.R. § 825.702(d)(1) (emphasis added).

Moreover, an employer may offer – but an employee is not required to accept – a light-duty position in lieu of taking leave. In such case the employee may no longer qualify for workers’ compensation pay benefits, but the employee is entitled to continue on unpaid FMLA leave until either the employee is able to return to the same or an equivalent position or until she has exhausted the 12-week FMLA leave entitlement. § 852.702(d)(2).

Based on these regulations, the court held that Ramji was entitled to decline the light-duty job offer but she never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave. HHS made that choice for her by offering only a light-duty assignment.

One additional point not addressed by the court: HHS didn’t offer Ramji extended light duty after she failed the essential-functions test; they fired her!

What about the ADA?

Ramji did not assert an ADA claim. At the time of her termination she had only had her knee injury for about 5 weeks. Although there is no specific duration a condition must exist to constitute an ADA-protected impairment, 5 weeks with an expectation of near-term recovery might not be enough.

In fact, though, it took Ramji several months to heal fully. Had HHS given her FMLA leave or the option of continued light duty rather than firing her, the duration of her medical condition and its limitations might have crossed over into ADA territory. Dodged a bullet on that one, HHS!

PINGS FOR EMPLOYERS

So how do you navigate these multiple minefields?

  • First, remember that an employee is entitled to the protection of each and every law that might apply to her situation. The FMLA, state workers’ compensation, and the ADA are 3 distinct legal rights that often overlap and intersect, as evidenced by this case. None of them cancels another out.
  • Analyze the employee’s situation and the various laws to determine which ones apply. The employee will be entitled to the best benefits available under each of the applicable laws. So, for example, workers’ compensation to provide pay benefits and medical expenses, the FMLA to provide job protection during any related absences, and the ADA to provide extended leave if needed or workplace accommodations upon return to work.
  • Train, train, train! Make sure your supervisors know enough about these laws to spot when one or more might apply and know the proper channels for directing the employee and seeking further assistance. (As this case shows, even your benefits folks might need refresher training!)
  • When in doubt, notify the employee of the proper reporting processes and encourage the employee to file a claim. Reporting or filing a claim doesn’t necessarily mean the employee will get the benefits and protections of a given law, but you will have given the employee proper notice of rights and a fair opportunity to exercise those rights.
  • For FMLA, remember also to provide the employee with the notice of rights and responsibilities and the eligibility notice within 5 days of your knowledge of the claim. Here is the Department of Labor’s handy dandy Form WH-381 just for this purpose! (Or, you can always engage Matrix to do that for you! That’s kind of our jam.)

Matrix can help!

Matrix offers integrated leave of absence, ADA, and workers’ compensation claims management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

THE FAMILY ACT -- FEDERAL PAID FAMILY AND MEDICAL LEAVE COMING YOUR WAY? (PAID FAMILY AND MEDICAL LEAVE – PART II)

Posted On April 12, 2021  

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

April 12, 2021

 

In the legislative system, conflicting leave laws are considered especially heinous . . . [DHUNK DHUNK]

OK, so paid family and medical leave is not as riveting as stories ripped from the headlines. Or is it? I mean, these are actual headlines, aren’t they? Or am I just a Superfan?

This is the second of a 3-part series on paid family and medical leave (PFML). Part I addressed whether a federal paid leave law would solve the confusion and conflict created by multiple state paid family and medical leave laws.

Watch this space for Part III: Can you help me design a single PFML plan that will satisfy all state requirements?

 

We last left our heroes, those beleaguered leave and benefits administrators in your Human Resources Department, hoping that the feds would act to solve the multi-state PFML morass. In that episode, we explained why a federal paid leave law would not be the panacea we would like. Now let’s look at what is currently proposed at the federal level, and consider what paid leave and absence management would be like with that law thrown into the mix.

You will no doubt remember (who wouldn’t?) that New York Senator Kristen Gillibrand and Connecticut Representative Rosa DeLauro have introduced companion federal paid family and medical leave bills every legislative session since 2014. This year is no exception: SB 248 and HB 804, respectively.

The bills are referred to as the Family and Medical Insurance Leave Act, or the FAMILY Act, but don’t let the name fool you. There is no job protected leave associated with the FAMILY Act and, for reasons discussed below, the use of FAMILY Act benefits will not always coincide with coverage under the federal Family and Medical Leave Act (FMLA) we’ve come to know and love.

Here are the key features (but don’t expect the minute details yet – the legislation is particularly obtuse in many respects):

  • Entitlement. The total amount of paid leave is 60 “caregiving” days in a 365-day benefit period, following an unpaid waiting period of 5 caregiving days. §4(a); §2(10); §2(5). A caregiving day means any date the employee is engaged in an activity that qualifies him or her for paid leave (see next bullet point). §2(1). This is similar to the FMLA’s 12 workweeks but will not correspond in many cases because:
    • The 5-day waiting period means FMLA will start for an eligible employee before the countdown for 60 caregiving days.
    • The 365-day benefit period is calculated on a measured-forward basis tied to a certain date in relation to the paid leave (and that date is one of the obtuse parts of the law). §4(c)(1) and (2). The benefit period will never coincide with an FMLA leave year, which as we know can be measured in one of four ways: calendar year, fixed 12-month period, measured forward from first date of leave, or rolling back from first date of leave.
    • Because the paid benefit entitlement is measured in caregiving days, it appears the benefits are available only in full-day increments, not in increments of an hour or less as with the FMLA. As a result, an employee could take intermittent FMLA leave and not touch any or most of his FAMILY Act entitlement.
    • Now think about continuous leave for anyone with a work schedule other than 5 days per week. For example, if an employee works 3 12-hour shifts per week and takes continuous leave for 12 calendar weeks, the employee will exhaust her FMLA entitlement but have only used 36 caregiving days, leaving 24 more caregiving days available.
  • Benefit reasons. Pay benefits are available for “qualified caregiving,” which includes most of the same reasons as leave under the FMLA: the employee’s own serious health condition (SHC); caring for a family member with a SHC; birth and bonding with a new child; placement of a child for adoption or foster care and bonding; and qualifying military exigencies. Leave specifically to care for an ill or injured servicemember is excluded from benefits, but depending on the employee’s relationship to the servicemember, such leave will often qualify as care of a family member with a SHC. §2(6).
  • Covered family relationships. Care for a family member with a SHC includes the FMLA relationships of parent, child, or spouse, but also includes a domestic partner and the child of a domestic partner. §2(6) and §4(j). Leave taken during receipt of benefits for these two relationships will not count toward an employee’s FMLA leave usage.
  • Employee eligibility. Eligible employees include anyone who is insured for disability insurance benefits under the Social Security Act at the time of the application for benefits; and has earned income from employment during the 12 months prior to the month in which an application for benefits is filed. §4(a)(1)-(2). That’s clear as mud, isn’t it? Does that mean earned income in each of the prior 12 months, or at any time during the prior 12 months? I haven’t studied the SSA eligibility requirements yet, but they are . . . unlikely? . . . to coincide with eligibility for FMLA leave (12 months of service, 1250 hours worked in the past 12 months, and engaged at a worksite with 50 employees within 75 miles).
  • Benefit amounts. Monthly benefits are determined according to a formula that I, quite frankly, have not figured out yet. Here, you have a crack at it: “Benefits are the greater of . . . the lesser of 1⁄18 of the wages [in the highest of the last 3 years] . . . or the minimum benefit amount . . . multiplied by the quotient (not greater than 1) obtained by dividing the number of caregiving days of the individual in such month by 20.” Or something like that. §4(b).

    I can tell you this much: during the first calendar year of the program the maximum benefit is $4,000 per month and the minimum benefit is $580 per month; amounts are adjusted annually based on the national average wage index. The benefit amount per day of Qualified Caregiving is the employee’s monthly benefit divided by 20 (apparently, regardless of how many work days there actually are in the month).  §4(b). 

  • Funding. The benefits available under the FAMILY Act are funded by contributions from the employee and employer each of 0.2% of the employee’s wages, limited by the Social Security cap. §6(a) and (b).

So now, let’s revisit the prior topic, “If only the feds would act!” Whaddaya think? Is this bill the answer to the multi-state PFML morass?

Remember, this discussion doesn’t even begin to address the conflicts between the FAMILY Act and existing state PFML laws, such as differing leave reasons, family relationships, durations, employee eligibility, and so on.

 

SO WILL THESE BILLS PASS?

 


Well, let me see. They, or something very much like them, have been introduced for 5 U.S. legislative sessions now. This year, we have President Biden who has spoken in favor of paid leave in a variety of contexts. But we have a 50-50 split in the Senate and big, important bills coming and gone. Would enough Dems hold the line to pass something like this? In COVID Year II? Then again, the legislative session is 2 years long, so these bills are likely to linger into 2022 if they don’t pass in 2021. The political climate might be more amenable then. Maybe.

Hey, I guess this is as exciting as a Law and Order episode! I’m headed to Hulu for a brain break!

MATRIX CAN HELP!

We are committed to watching and understanding all things PFML – state and federal. Stay tuned for our periodic blog posts as developments warrant, and watch of our next installment of the Multi-state Morass.  

(RE)OPENING THE WORKPLACE – COVID-19 AND THE ADA

Posted On March 29, 2021  

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

March 29, 2021

 

What is it they used to say BC (Before COVID-19)? In the Spring, a young heart turns to love? Or baseball? Something like that. But today we are faced with a new reality and, as the days get longer and vaccines enter arms by the thousands, many of us are a whole different kind of excited:

It’s back to work(place) time! Isn’t it?

Ah, if it were only that easy! Truth is, like most flavors of employee absence, bringing ‘em all back has some considerations and flat-out hurdles. Questions abound:

  • When is the right time to bring employees back, and how?
  • If I’ve had a skeleton crew of “essential workers,” I should be good to go, right?
  • Can I mandate vaccination as a prerequisite to employees returning to the workplace?
  • Is COVID considered a disability?

And so much more. Join me and my longtime colleague Cheryl Jez, Disability Practice Leader at Reliance Standard Life Insurance Company, for a free webinar on the legal hurdles, worksite safety challenges and a handful of other ways COVID could ruin ANOTHER year if you’re not careful.

 

Thursday, April 1, 2021

2:00 pm Eastern/11:00 am Pacific

Click here to register!

 

I look forward to seeing you – virtually – there!

 

CALIFORNIA'S NEW AND IMPROVED COVID-19 SUPPLEMENTAL PAID SICK LEAVE -- EFFECTIVE REAL SOON!

Posted On March 25, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

March 25, 2021

 

Well, it’s déjà vu all over again!  On March 19, California Governor Gavin Newsom signed SB95, providing for a new bank of COVID-19 Supplemental Paid Sick Leave (SPSL) and giving employers a whopping 10 days to understand its terms and be ready to offer it to employees.  The “effective date” is March 29 but it applies retroactively to January 1, 2021. 

 

 

But don’t fret! Here is a handy chart that tells you what you need to know:

Covered Employers

More than 25 employees total (not just CA employees)

Eligible Employees

  • Any employee of a Covered Employer
  • No hours worked or length of service requirement

Purpose(s) for which Leave May be Taken

A California employee can take CA SPSL for any of the following reasons related to COVID-19:

  • When subject to a quarantine or isolation period as defined by federal, state or local guidelines.
  • Advised by a healthcare provider to self-quarantine due to concerns
  • To attend an appointment to receive a vaccine
  • While experiencing symptoms related to a vaccine that prevent him or her from being able to work or telework
  • While experiencing symptoms and seeking a medical diagnosis
  • While caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a healthcare provider due to concerns
  • While caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons

Leave Entitlement

  • An employer cannot require employees to use other paid or unpaid leave (such as PTO, vacation, other paid sick leave) prior to or in lieu of using SPSL
  • Full-time employees who worked or were scheduled to work 40 hours in the two weeks prior to the leave are eligible for 80 hours.
  • Part-time employees who work a normal weekly schedule are entitled to the number of hours the employee is normally scheduled to work over a two week period.
  • If a part-time employee does not work a regular schedule, then the employee is entitled to 14 times the average hours the employee worked in a day over the last 6 months.
  • Special rules apply for part-time employees who have worked for the employer for a period of 14 days to 6 months, or for fewer than 14 days

Benefit Amounts

  • Employer pay obligations under CA SPSL are capped at $511 per day and $5110 in total
  • Exempt employees are paid at their normal rate of compensation, subject to the above caps
  • Special rules apply for calculating the rate of pay for nonexempt employees, subject to the above caps

Does CA SPSL run concurrently with CFRA and FMLA?

Yes, if the reason for leave is also covered by CFRA or FMLA (for example, the employee or a family member has a serious health condition)

Employee Required Notice of Need for Leave

Requires only oral or written request and such leave is immediately available. No advance notice of the need for leave is set forth in the statute

Certification

An employer may not ask for any verification or documentation unless there is a reasonable basis to question the employee’s stated reason for leave

Employer Obligation to Make Retroactive Payments

  • CA SPSL is retroactive to January 1, 2021
  • An employee who took leave for a covered reason from January 1, 2021, through March 28, 2021, can make a request for CA SPSL on or after March 29, 2021, and the employer is obligated to make that payment on or before the next scheduled payroll period
  • The employer may be able to apply other types of paid leave provided during that period as a credit

Pay Stub Obligations

Wage statements must separately show CA SPSL balances and deductions (separate from other PTO or CA Paid Sick Leave balances)

Employer Notice

  • Employers are required to provide notice of employee rights to CA SPSL by posting the model notice in their workplace
  • For those who do not frequent a workplace this obligation can be satisfied electronically
  • Click here to access therequired poster

Nondiscrimination and retaliation

Employees who request or take leave under CA SPSL are protected from discrimination and retaliation and can file complaints about such conduct with the CA Labor Commissioner

Special Rules

  • Special rules apply to providers of in-home supportive services or certain personal care services
  • There is a different calculation for paid leave entitlement for firefighters who work more than 80 hours in the 2 weeks prior to taking SPSL
  • Other special rules apply; please consult the law for coverage of your workers

 

Please note, this is a summary of the law’s provisions.  If you are a CA employer, please consult the law itself for details. 

If you’d like some additional resources you can access the law, SB95, here.  The California Department of Industrial Relations (DIR) has a very helpful FAQ document here. And here is a Side by Side Comparison of Paid Leave Options.

Matrix Can Help!

Matrix Absence Management offers a number of creative solutions, particularly to assist employers in dealing with COVID-related absences. For more information about our solutions, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.

PAID FAMILY AND MEDICAL LEAVE – A MULTI-STATE MORASS, PART I: “IF ONLY THE FEDS WOULD ACT!”

Posted On March 24, 2021  

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

March 24, 2021

 

mo·rassˊ

  1. an area of muddy or boggy ground
  2. a confused situation that has become so complicated it seems impossible to escape from or resolve

This is the first of a 3-part series on paid family and medical leave (PFML). In the next few days watch for these additional posts:

  • Details on the proposed federal paid family and medical leave act (the “FAMILY Act”)
  • “Can you help me design a single PFML plan that will satisfy all state requirements?”

I promise, fascinating reading for PFML geeks!

 

I’ve been practicing employment law longer than I care to admit, and have been in the absence and disability management industry for 11 years now. In my seasoned opinion, the paid family and medical leave trend is the biggest, most impactful development in the industry ever. Yes, the 1993 Family and Medical Leave Act was big. And yes, many states, both before and after enactment of the FMLA, have adopted their own similar (or dissimilar) job-protected leave laws. And yes, a few states have had paid disability and family leave benefits laws for a while now.

But now throw in a growing number of state laws that couple the pay component with job protection; laws that rarely match up with the FMLA; laws that are not the same state to state; and . . . well, you’re living through it as an employer, right? It seems impossible to manage sometimes, doesn’t it?

IF ONLY THE FEDS WOULD ACT!

A federal paid leave law would solve everything, right? Override all those complicated and conflicting state PFML laws with one simple federal program. Or is that just pie-in-the-sky?

Don’t kid yourself. Two bills proposing a federal paid family and medical leave act are currently pending in the U.S. Senate and House (SB 248 and HB 804). The proposed law is referred to as the Family and Medical Insurance Leave Act, or the FAMILY Act. I’ll summarize the details like leave reasons, durations, and funding in another blog post soon, but let’s not get bogged down in that stuff just yet.

I hate to burst your bubble but a federal law is likely to add complexity to the morass, not simplify it. Here’s why:

  • If passed, the FAMILY Act would not replace state PFML laws. The bills specifically state (§4(g)(1)):

    This section does not preempt or supersede any provision of State or local law that authorizes a State or local municipality to provide paid family and medical leave benefits similar to the benefits provided under this section.

    So the law would simply add YET ANOTHER layer of PFML benefits with which employers would have to comply.

  • We don’t know yet how the FAMILY Act would interact with existing state paid disability, family leave, or combined PFML laws. Turning again to the bills themselves (§4(b)(5)):

    A benefit received under this section shall be coordinated, in a manner determined by regulations issued by the Commissioner, with the periodic benefits received from temporary disability insurance or family leave insurance programs under any law or plan of a State . . .

    Talk about punting the hard stuff! Whether the federal benefits are primary and the state benefits secondary, or vice versa, or some other structure remains to be determined. Either way, employers are likely to have to comply with whichever law, state or federal, provides the more beneficial benefits provisions to employees. Coordination of employee and employer contributions to 2 programs, state and federal, with some overlapping (and some distinct) benefits coverage could be a nightmare.

  • It is unlikely the states with existing paid benefits laws will dismantle their programs. The disability programs of many states have been in place for decades; likewise, many of the paid family leave programs have also been paying benefits for years, such as California’s PFL program, operating since 2004. Significant state agencies have been created to manage these programs. They aren’t just going to go away! States are unlikely to end an existing program, put lots of state employees out of work, and cede the state’s chosen priorities on employee benefits to the feds.
  • While a federal PFML law may staunch the flow of new state laws somewhat, it is possible that many states will layer on additional paid leave provisions to fill the gaps left by the rather limited (by today’s’ PFML standards) provisions of the FAMILY Act. Most state laws now in effect or pending implementation provide broader leave reasons and cover significantly more family relationships like siblings, grandparents, grandchildren, and that trendy “like a family member” relationship.
  • The FAMILY Act doesn’t provide job protection and doesn’t jive with the FMLA completely, so employers will have to coordinate time off for job-protected leave under the FMLA; AND paid leave benefits under the FAMILY Act. I’ll talk more about that soon. Plus, there’s no provision for employers to have their own private or voluntary plans, so there’s no way to provide that smooth, improved employee/employer experience that comes with a managed private plan.

The lesson is an old, proven one: Be careful what you ask for! And join us for the next FAMILY Act installment, coming soon to your preferred screen.

MATRIX AND RELIANCE STANDARD CAN HELP!

You may have noticed, we are on top of all things PFML. Between Matrix and our sister company Reliance Standard Life Insurance, we offer PFML solutions in every state that allows private/voluntary plans. Whether you want to insure the plan or go self-funded, we can help. Example: For Connecticut’s upcoming paid family and medical leave program, we have an employer guide, materials to assist with the employee approval vote, and much more. For more information contact your Matrix or RSL account manager or practice leader, or reach us at ping@matrixcos.com.

FURLOUGHS AND FMLA INELIGIBILITY: AN UNEXPECTED CONSEQUENCE

Posted On March 15, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

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

March 15, 2021

 

We’ve been getting a lot of questions lately concerning the impact of furloughs on employee FMLA eligibility. After all, COVID-19 related lockdowns started as early as a year ago – not an anniversary anyone likes to celebrate. And unfortunately, after lengthy furloughs, many long-time employees are no longer eligible for FMLA.

But let’s take a moment. First:

A quick refresher on FMLA Eligibility

The federal Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with 12 weeks of job protected leave for the employee’s own serious health condition, to care for a family member’s serious health condition, for bonding with a new child, and for certain reasons related to a family member’s military service or injury. To be eligible for FMLA, the employee must, among other requirements, have worked for the employer a minimum of 1250 hours during the 12 continuous months prior to the date the leave is to start. (Special rules apply to flight crews and employees out on USERRA-protected military leave.)

Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act for determining compensable hours of work. To simplify, hours worked are just that – hours actually spent working. (OK, so there can be additional paid hours like on-call time, “donning and doffing” required clothing or equipment, etc., but why complicate things?)  

Another FMLA eligibility requirement is that the employee must have worked for the employer for 12 months at the time of commencement of a leave. We’ll take on how furloughs might impact that requirement later in this post, so check below.

Furloughs

As we know, many employers have had to “furlough” employees during the COVID pandemic. What does that mean? There is no precise legal definition, but a furlough is generally understood to be time the employer forces the employee to take as time off. With a furlough, there is an expectation that the employee will return to work at some point in the future: the employee is kept on the employer’s “roster,” and sometimes even gets continued benefits (depending on the employer’s policies). Contrast this with a layoff, which is an end of the employment relationship with no expectation of return to work. 

Time spent on furlough does not count as hours of service; it is not time worked. So, it is entirely possible that long-time employees who have been FMLA eligible in the past may not meet the hours worked requirement this year due to a lengthy furlough. (Generally, an employee who works a typical 40-hour week will lose FMLA eligibility if furloughed for about 21 weeks in the 12 months prior to the requested leave.)

Ok, so what now?

Just because the employee is no longer eligible for a new FMLA leave doesn’t necessarily mean that the leave is unprotected. There are many things to remember here:

First, an employee only has to establish FMLA eligilbity for a given leave reason once in a leave year, when the leave for that reason first commences. Eligibility then lasts for the 12 months following the start of the leave.  

Take the example of Roberto: He works 40 hours per week and met eligibility to care for his mother with a serious health condition for leave starting on May 1, 2020. He was then furloughed on June 1, 2020, and returned to work on January 1, 2021. Even though he was off work for 7 months, Roberto will retain FMLA eligibility to care for his mother through April 30, 2021. He might not be eligible for FMLA leave for another reason, but he can use any remaining FMLA entitlement (up to 12 weeks) to care for his mother if needed.

Second, you must also consider applicable state job-protected leave laws. After returning from a furlough, an employee might have (or regain) leave entitlement from sources other than the FMLA. For example, Oregon’s Family Leave Act (OFLA) only requires that the employee has worked an average of 25 hours per week in the prior 180 days. So, an employee may regain OFLA eligibility before regaining FMLA eligibility after furlough. Or consider Connecticut’s and Washington D.C.’s Family and Medical Leave acts, which only require 1000 hours in the 12 months prior to the leave. And to complicate matters more, many of the new paid family and medical leave laws have much lower eligibility rules and still carry job protection (e.g., Massachusetts, Washington, and others). State and local paid sick leave laws may provide additional rights for at least short absences.

Third, if the employee is requesting leave for his or her own serious health condition, consider whether the employee is entitled to a leave of absence or other accommodation under the Americans with Disabilities Act (ADA). The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. An employee’s serious health condition could also be a qualifying disability under the ADA and you may have an obligation to provide the employee with leave as an accommodation. Go through the interactive process! That being said, the ADA only applies to the employee’s own health condition and would not provide leave for other FMLA reasons such as caring for a family member or bonding.

Consider updating your policy

The FMLA eligibility inquiries we are currently getting are often from frustrated employers who want to enable their employees to take FMLA leave despite the lack of eligibility. But, any leave taken without eligibility cannot be counted toward the employee’s use of FMLA entitlement. To do so might deprive the employee of later FMLA leave and land the employer in hot water for interference with FMLA rights.

Alternatively, consider an update to your company’s leave policy to provide a leave for FMLA ineligible employees under specified circumstances that you choose. Anything offered in addition to the FMLA can be as stringent or generous as you see fit. However, in order to avoid possible discrimination claims, the policy must be applied uniformly, not on a case-by-case basis. Additionally, even if a company leave is offered, if the leave is for an employee’s own condition, there may still be ADA implications that will need to be addressed.

What about the 12-month requirement?

Above we noted an additional FMLA eligibility requirement: that the employee must have worked for the employer for 12 months at the time of commencement of a leave. It’s pretty well understood by now that the 12 months are a total and do not have to be consecutive. Any time worked for an employer, separated from other periods of employment by less than 7 years, all count toward the 12 months.

But for a relatively new employee, does furlough time count toward the 12 months? The answer is maybe. FMLA regulations provide:

If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. 29 C.F.R. § 825.110(b)(3).

So if you generously continued benefits such as health insurance for your employees during furlough, the period of furlough counts toward establishing 12 months of service for FMLA eligibility. This means that an employee hired shortly before a furlough (and receiving benefits during the furlough) could actually satisfy this aspect of FMLA eligibility while not working.

Example: Carrie started work for your company on March 1, 2020. She is furloughed from June 1, 2020 to the present. Carrie established her 12 months of employment on February 28, 2021, even though she was still not working and had actually “worked” for you for 3 months. Carrie does not need to satisfy this eligibility requirement again; it will last throughout her employment with you. When she returns to work, she will be FMLA eligible as soon as she has worked 1250 hours in the prior 12 months.

Matrix Can Help!

Matrix offers numerous absence and disability management services. Be it leave as an accommodation, state and federal leave laws, disability plans, or managing company policies, our team of absence management and ADA specialists are ready to help you and your employees. For more information about our solutions, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.

THE AMERICAN RESCUE PLAN: PAID SICK/FAMILY LEAVE IN 2021

Posted On March 12, 2021  

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

March 12, 2021

 

OK, here’s fun stuff to talk about on a Friday. There’s no more football and I knew you would want this information to work with over the weekend, so…no need to thank me, I’m here to serve!

The federal COVID relief bill, the American Rescue Plan Act, passed Congress (narrowly) and was signed by President Biden on March 12.  My gig is limited to addressing the provisions relating to paid leaves of absence.  

Spoiler alert:  there are NO paid leave requirements in the Rescue Plan.

Remember the Families First Coronavirus Response Act (FFCRA)?  If not, you can take a refresher course here.  But key things to remember are as follows: 

  • The leave of absence provisions only applied to private employers with fewer than 500 employees, and to public employers.
  • It expired on December 31, 2020.
  • It provided paid sick leave for up to 80 hours for COVID-related reasons, including quarantines, seeking a diagnosis, and school/day care closures.
  • It provided expanded and paid FMLA coverage for up to 12 weeks for COVID-related school/day care closures.
  • It included a tax credit for the paid leave provided by employers, up to certain limits.

In late 2020 Congress took the bold action of extending the tax credit for FFCRA paid leave voluntarily provided by an employer through March 31, 2021, but offered no other paid benefits.  You can read about that here.  Note that the credit through March 31 is only available for the total amount of FFCRA paid leave required by FFCRA in 2020 if an employee still has any unused 2020 entitlement.

Now another ground-breaking development!  The American Rescue Plan Act has again extended the tax credit!  Still no paid leave requirements, just a tax credit for employers who voluntarily provide FFCRA-like leave from April 1 through September 20, 2021. Details:

  • The Rescue Plan resets the amount of paid sick leave the employer can offer and get the tax credits, to 10 days between April 1 and September 30.
  • The tax credit is limited in amount to $511 per day for paid sick leave for the employee’s own leave (seeking diagnosis or in quarantine) and the 3 new reasons addressed below ($5,110 maximum); and to $200 per day for the other paid sick leave reasons.
  • There is no new entitlement for expanded FMLA for school closures – the employee is still limited to a total of 12 weeks for both 2020 and 2021 combined.
  • The tax credit for expanded FMLA for school closures paid by the employer between April 1 and September 30 is $200 per day, with a total maximum of $12,000.
  • Three new reasons have been added for qualifying paid sick leave and paid FMLA– again, for voluntary benefits only, no requirement here.These new reasons are
    1. if the employee is seeking or awaiting the results of a test for or diagnosis of COVID-19 due to exposure or at the request of the employer;
    2. to allow an employee to obtain a COVID-19 vaccination; and
    3. for time lost if the employee is recovering from any “injury, disability, illness, or condition” related to the vaccination.
  • A new nondiscrimination provision provides that the tax credit is not available if the employer discriminates in the availability of paid leave in favor of highly compensated employees, full-time employees, or long-tenured employees.

Well, that’s a wrap.  On an historical note, the FFCRA became effective April 1, 2020.  Remember how we all thought: We’ll definitely still be wearing masks and talking about this a year from now!

Nope, I don’t remember that either. Have a great weekend.

5 LAYERS VS 5 DAYS - FMLA PROCEDURES UNDER THE MICROSCOPE IN THE GOLDEN STATE

Posted On March 03, 2021  

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

March 02, 2021

 

The U.S. Department of Labor reports that an operator of 2 California airports must make major changes to its FMLA processes after trampling on employee rights for I don’t know how long.  And I mean trampling! 

I will be the first to admit that the Family and Medical Leave Act has many challenging and gray areas.  (I call it job security.)  The fluctuating workweek rule, anyone? How about applying in loco parentis?  But here are a couple of rules that are crystal clear:  (1) the employer must send notice to an employee of his or her FMLA eligibility (or lack thereof) within 5 business days after the employee requests time off that might be FMLA-covered; and (2) the employer must send a designation notice – that is, approve or deny the requested leave – to the employee within 5 business days after receiving sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason (e.g., after receiving a completed medical certification from the employee’s health care provider). 

5 layers of administrative process.  It seems that Los Angeles World Airports – owner and operator of Los Angeles International and Van Nuys airports – didn’t get the memo.  Apparently LA World Airports had a process whereby employee FMLA requests went through 5 (that’s five!) levels of administrative review before reaching human resources.  That process typically took a month, with some requests pending for months.  Although not addressed, that probably means that LA World Airports didn’t send the FMLA-required notice of rights and responsibilities to employees within 5 days of a leave request either, since that notice is supposed to go out with the eligibility notice.

So-called second opinions?  According to the DOL, the employer also “improperly relied on second opinions from an in-house physician” and as a consequence, denied employee leave requests.  This is like fingernails on a chalkboard to me.  First, the FMLA regulations provide a second opinion can be required if the employer has reason to doubt the validity of the employee’s certification.  This means the employer must have a good reason to question the validity of the certification. Examples may include receiving a certification from a provider in the wrong medical specialty for the employee’s condition, or advocating for an excessively long or frequent leave for the employee’s condition.  The employee is provisionally entitled to the requested leave (and maintenance of group health benefits) pending receipt of the second (or third) medical opinion. 

Next, although the second opinion is to be furnished by a health care provider of the employer’s choice (and at the employer’s cost), the selected provider cannot be employed by the employer on a regular basis or one with whom the employer regularly contracts or whose services the employer otherwise regularly uses.   The single exception is if the employer is located in an area where access to health care is extremely limited.  Methinks that is unlikely the case in the vicinity of LAX and the Van Nuys airport.

Finally, if the opinions of the employee’s health care provider and the second opinion provider differ, the employer must afford the employee the opportunity for an opinion from a third provider selected jointly.  Although the regulations don’t elaborate, it seems the employer’s other option is to follow the opinion of the employee’s provider.  I think it’s a safe bet that neither of these things occurred in LA World’s FMLA process.

The consequences.  As a result of the DOL’s investigation, LA World:

  • Redesigned its system to include a new web-based tool that provides workers updates and approvals within 24 hours, instead of months;
  • No longer routinely requires second opinions from health care providers;
  • Created a reference guide for leave specialists;
  • Scheduled joint training sessions with the Wage and Hour Division; and
  • Removed all adverse actions against employees caused by prior leave policies that violated the FMLA.

You can view the DOL’s news release here.

Matrix can help!  Maybe you already know this, but Matrix provides leave of absence administration services for the employees of our client employers (surprised?).  That includes both federal laws like the FMLA, but also state leave of absence laws and company leave policies.  With Matrix’s automated systems and trained, experienced claims examiners, we routinely send out those eligibility, rights and responsibilities, and designation notices in fewer than the required 5 days.  And for those difficult situations where there’s something suspect about the employee’s medical certification, we have a robust process for properly identifying whether there is reason to question the validity of the certification and, if so, to properly obtain a second and/or third medical certification to manage the employee’s leave.

 

For assistance or if you have questions, contact your Matrix or Reliance Standard account manager or practice leader, or send a message to us at ping@matrixcos.com.