(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.

UPDATES: SUPER BOWL LV AND NEW YORK COVID-RELATED PAID SICK LEAVE

Posted On February 09, 2021  

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

February 09, 2021

 

Here’s a riddle for you:What do Super Bowl LV and COVID have in common?  I’m not sure – though if you’re a Chiefs fan I suppose both can seem like an unthinkable, undeserved cosmic spanking.

Ah yes, the Super Bowl in COVID times: long gone are the raucous parties with lots of queso, Buffalo wings, yelling, and the adult beverages of your choice. They were replaced in 2021 with quiet gatherings of “safe” family or friend pods, maybe a beer or two, but it wasn’t quite the same, was it?  Maybe next year.

Meanwhile, here at Matrix we continue to keep an eye on all things COVID with regard to leave of absence.  So here we go  . . .

New York Paid Sick Leave.  The state of New York was an early and strong adopter of mandatory paid sick leave for employees for COVID-related quarantines.  (Drives me nuts that they labeled it “sick” leave when it is only for mandatory quarantines!)  Most New York employers must provide paid time off when the employee or the employee’s child is subject to a COVID-19-related mandatory or precautionary order of quarantine or isolation issued by the state or an appropriate governmental agency.  The amount of paid sick leave required – 0, 5, or 14 calendar days – is determined by the employer’s size and net annual income.  We reported on the New York law in detail here if you want a refresher.

The Commissioner for New York’s Department of Labor recently issued a new Guidance on Use of COVID-19 Sick Leave. The Guidance specifically addresses the use of such leave when an employee still tests positive for COVID-19 after an initial period of mandatory quarantine or isolation.  The Guidance supplements prior guidance, all of which remains in effect.  You can check out the state’s COVID-19 website New Paid Leave for COVID-19 | Paid Family Leave (ny.gov) for more info.  Here are the key points of the new Guidance:

Consequences of a positive test after mandatory quarantine or isolation.  According to the Guidance, an employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff.  But if the employee does get a test – either after returning to work or at the end of a period quarantine prior to returning to work – and that test is positive, then the employee cannot continue working or return to work yet.  In this case the employee is deemed to be subject to a required mandatory order of isolation (apparently, a de facto continuation of the order that took the employee off work in the first place) and is entitled to paid sick leave under the New York law even if he or she received paid leave during the first period of quarantine/isolation.

To be entitled to such paid sick leave during the 2nd (or a 3rd) period of quarantine the employee must provide documentation from a medical provider or testing facility verifying that the employee tested positive (unless the employer gave the test).  An employee may qualify for paid sick leave for a maximum of 3 periods of quarantine or isolation – the initial period due to the original order followed by up to 2 more periods supported by a verified positive test. 

Employer mandate to stay off work.  If an employee who is not subject to a qualifying order of quarantine or isolation is directed by the employer to stay off work due to actual or potential exposure to COVID-19, the employer must pay the employee his/her full pay until either the employer allows the employee to return to work or the employee becomes subject to such an order. 

Although the Guidance does not specify, it would appear that this paid time period does not count toward the employer’s obligation to provide quarantine pay under the New York law. This makes a certain amount of sense since that obligation only kicks in once the employee is subject to an official order.

If the employee does become subject to a qualifying order after being excluded from the workplace by the employer, the employee is then entitled to paid sick leave pursuant to the New York law.  

Matrix observations.  There are still unanswered questions.  The Guidance was issue on January 20, 2021, is not an actual amendment of the law, and does not specify an effective date.  As a result, it is unclear whether it is applicable to leave situations since the law went into effect on March 18, 2020, but prior to the Guidance.  Entitling employees to up to 3 periods of quarantine pay is certainly a new interpretation. 

In addition, the Guidance does not specify whether the multiple periods of pay during quarantine must be successive with no break in between.  This may not be required, as the Guidance states:

An employee who returns to work following a period of mandatory quarantine or isolation . . .  who subsequently receives a positive diagnostic test result for COVID- 19 . . .  shall be deemed to be subject to a mandatory order of isolation.

However, the tenor of the Guidance does seem to imply that the multiple periods of paid quarantine must be related to a single exposure because the paid leave entitlement for the 2nd and 3rd periods rests on a positive test that acts as an extension, so to speak, of the actual order.   

Matrix can help!  Just keep watching this space.  Just like Tom Brady, COVID is still a “thing” and we will keep you up to date on major leave of absence and accommodation developments as they happen.  For now, please wear your mask and get that vaccination when you can!

CALIFORNIA EMPLOYERS, LOOK OUT!! POSSIBLE DUTY TO ACCOMMODATE EMPLOYEES WHO ARE “ASSOCIATED WITH” AN INDIVIDUAL WITH A DISABILITY

Posted On January 29, 2021  

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

January 29, 2021

 

Associational discrimination?  What’s that, you ask?  It may soon be critical for California employers to understand this concept.

Little-known and even less understood provisions of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), protect employees who have family members (or other close individuals) with disabilities.  The association provision of both laws prohibits employment discrimination against a person because of his or her known relationship or association with a person with a known disability.  This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the employee has a relationship or association.  For example, an employer cannot terminate an employee because her husband or best friend or roommate or . . .  has been diagnosed with cancer and the employer is concerned the employee will miss time from work to care for that person. However, the ADA does not require employers to provide accommodations to employees based on their association with a disabled person.

Enter California.  Our readers may recall that in November 2016 a California court interpreted FEHA to include a requirement that employers engage in interactive discussions and consider reasonable accommodations for employees who do not themselves have a disability, but are seeking accommodation(s) so they can assist a disabled person with whom they are “associated”.  In Castro Ramirez v. Dependable Highway Express, Inc., the California Court of Appeals initially ruled that an employee with a severely disabled son who required home dialysis on a scheduled basis was entitled to an accommodation under FEHA to meet his son’s dialysis needs.  The ruling was based on the language of FEHA which defines a disability to include an employee who is associated with a person who has, or is perceived to have, a disability.  Examples include, as in this case, time off from work to provide required medical care or transportation to appointments.  However, the court opinion did not actually become law. The plaintiff abandoned this claim on appeal and instead, focused on what was a slam dunk associational discrimination claim (he definitely was fired because of his need for time off to assist with his son’s daily dialysis at home).

Four years later, the concepts underpinning the Castro decision are back.  The California Department of Fair Housing and Employment (DFEH) has indicated in a recent request for public comment that it is likely to introduce regulations to expand employers’ responsibilities to their California employees to require employers to provide accommodations to employees based on their association with an individual with a disability. To read the DFEH’s request for public comment, click here.

The deadline to provide public comment is February 1, 2021, and Matrix has done so. In particular, in our comments, we have urged the DFEH to narrowly define the individuals for whom the employer’s duty to engage in interactive discussions and provide reasonable accommodation(s) to those who meet the definition of “family member” under the California Family Rights Act (“CFRA”).  That is quite an extensive list that includes an employee’s spouse, domestic partner, parent, child, and, as of January 1, 2021, grandparents, grandchildren, and siblings.  Still, this would be more limited than the undefined associations covered by the ADA and would provide employers concrete guidance. 

Matrix has also focused its comments on the practicalities of what the DFEH is proposing; namely, what does an interactive process under these circumstances look like? Who is required to participate? Can the employer obtain certification of the “association” or family relationship?

And what about medical information? Under the ADA, if an employee’s need for accommodation is not known or obvious, an employer is entitled to information supporting he or she has a qualifying “disability,” how that disability impacts performance of essential job functions and what the employee needs by way of accommodation(s) to assist her in doing so.  In its comments, Matrix has proposed similar suggestions for medical support employers could request for associational accommodation requests, or that the DFEH create a safe harbor form, as it has for California Pregnancy Disability Leave and CFRA.

Moreover, the ADA allows an employer to seek additional medical, including an independent medical exam with a provider of its choosing under certain circumstances; similarly, CFRA provides for an employer to obtain a 2nd and/or 3rd opinion.   Matrix has asked the DFEH to consider allowing employers to do that as well for these “associational” accommodation requests if the medical information received about the disabled individual’s condition and care needs is of questionable validity.

We have no doubt that there are many in the employment community who are providing comments or input on these proposed changes to FEHA which, when they become law, will be onerous to employers of California personnel.  Fear not, dear readers! Matrix Radar is following these developments closely and when the regulations pass, we will be at the ready to assist our ADA clients in complying with those new obligations.

MORE COVID PAID LEAVE? BIDEN’S AMERICAN RESCUE PLAN

Posted On January 19, 2021  

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

January 19, 2021

 

On January 14, 2021, President-Elect Biden announced his American Rescue Plan.  The Plan includes more employer-provided COVID-related paid leave.  If enacted, his plan would:

  • Reinstate the FFCRA paid leave provisions and extend the requirements to all employers (expanding coverage from private employers with fewer than 500 employees and eliminating the financial hardship exemption for employers with fewer than 50 employees).
  • Eliminate the exemptions for healthcare workers and first responders.
  • Provide “over 14 weeks” of paid sick leave and family and medical leave for school or care center closures, caring for others with COVID-19, quarantining after exposure, and getting vaccinated. The make-up of that “over 14 weeks” of leave is not explained. The inclusion of “care center” closures makes me wonder if that is referring only to daycare for children, or could expand to include closure of care centers for adult family members in need of daily assistance.
  • Extend all paid leave to federal workers. Under FFCRA in 2020, federal employees were eligible for paid sick leave but not expanded paid FMLA for school closures.
  • Provide a maximum paid leave benefit of $1,400 per week. Mr. Biden’s Plan Fact Sheet (link below) indicates this will provide full wage replacement for workers earning up to $73,000 per year.
  • Provide a 100% tax credit to employers with fewer than 500 employees, but not to larger employers.
  • Reimburse state and local governments for the cost of the leave.
  • Remain in effect from passage until September 30, 2021.

Here is Mr. Biden’s American Rescue Plan Fact Sheet.  The paid leave provisions are on pages 7-8:  Biden Transition COVID Relief Package Fact Sheet - DocumentCloud

There are lots of missing details.  As of this writing, the U.S. House of Representatives has not yet proposed a 2021 bill with these or similar features, but it’s early days yet!  Matrix will be watching for further developments.  To us, the bigger question with longer-term impact is, will the U.S. Congress pass a federal paid family and medical leave bill for broader purposes such as the leave reasons protected by the unpaid Family and Medical Leave Act?

KICKSTART FOR 2021 – AN UPDATE TO GET THE NEW YEAR GOING

Posted On January 04, 2021  

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

January 04, 2021

 

Although there are still challenges ahead – there are always challenges – I think I speak for us all when I say I am happy to rip off that last page of the 2020 calendar and start with a brand new, fresh and hopeful 2021 model. Let’s look at a quick rundown of the latest developments in the world of absence management and accommodations:

  • Status of FFCRA – tax credits only
  • Electronic communications under the FMLA – telemedicine anyone?
  • Massachusetts PFML update, including the new Emergency Regulation 3.0
  • Connecticut PFML update – are you doing what you are supposed to?
  • California expansion of CFRA – more employers and family members covered and basis for taking CFRA.

Sure, it’s a lot to cover but we’ve tried to boil it down to the essentials and provide links to other information sources. And hey, if you can’t be ambitious on the first full business day of the new year, when can you be?

FFCRA tax credit extension – and nothing else. As we reported here, Congress passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021 (CAA 2021), on December 21, 2020. Although President Trump threatened a veto for various reasons, he finally signed the bill on December 27. The bill contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act. Those mandated paid leaves expired on December 31, 2020, regardless of whether an employee had used all of his/her entitlement. On the other hand, the tax credits provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages voluntarily paid by employers through March 31, 2021.

On December 31, the U.S. Department of Labor released new guidance on the expiration of FFCRA paid sick leave and paid leave under the Family and Medical Leave Act (FMLA) for school closures. The DOL’s interpretation of the CAA 2021 is consistent with the above summary but also makes clear that the DOL will retain enforcement authority over employers’ leave responsibilities while the FFCRA’s paid leave requirements were in effect, even after these leave entitlements have expired. See the DOL’s FFCRA Questions and Answers, new questions 104 and 105.

FMLA in a COVID world – DOL addresses telemedicine and electronic posting. Recognizing the realities of social distancing and remote workplaces, on December 29, 2020, the U.S. Department of Labor released 2 new Field Advisory Bulletins (FABs).

  • Electronic posting. FAB 2020-7 addresses when the DOL will consider “posting” of the employee notices required by several federal laws by email or an internet or intranet website to satisfy the employer’s posting obligations. The FMLA regulations already permit electronic posting of the general FMLA notice as long as the electronic posting otherwise meets the regulatory posting requirements. See 29 U.S.C. § 2619(a); 29 C.F.R. § 825.300(a)(1). FAB 2020-7 further explains that the DOL will consider electronic posting to satisfy the FMLA posting requirements where there is no physical establishment at which employees are employed or interviewing or hiring takes place, and the electronic posting is accessible to employees and applicants at all times. The FAB does not address electronic posting in situations where an employer may have employees both working remotely and others working at a company facility or applicants applying remotely. Common sense would dictate that the employer should use both methods of posting so that each employee and applicant, regardless of work or hiring location, has access to the required poster.
  • Telemedicine health care visits. FAB 2020-8 addresses when the DOL will consider telemedicine an “in-person” visit for the purposes of establishing a serious health condition qualifying for protection under the Family and Medical Leave Act (FMLA).

A serious health condition exists when the employee is receiving “continuing treatment by a health care provider.” The term “treatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” See 29 CFR § 825.113(c). The regulations also provide that treatment by a health care provider means an “in-person” visit to a health care provider. See 29 CFR § 825.115(a)(3).

According to the DOL, to be considered an “in-person” visit, the telemedicine visit must include:

  • an examination, evaluation, or treatment by a health care provider
  • be permitted and accepted by state licensing authorities; and
  • generally, should be performed by video conference.

Communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.

This FAB is consistent with FAQ #12 of the DOL’s frequently asked questions about the FMLA and pandemic conditions issued on July 20, 2020, which states, in part, “Until December 31, 2020, the [DOL] will consider telemedicine visits to be in-person visits . . . , for purposes of establishing a serious health condition under the FMLA.”

The requirement that the telemedicine visit be performed by video conference could be problematic for employees who don’t have internet access or have limited internet programs, equipment, or skills. (Thinking of my own old desktop that works fine but doesn’t have a camera!) At Matrix Absence Management we have been accepting FMLA (and STD) certifications that result from a telemedicine visit since early in the pandemic and will work with our clients’ employees to ensure the best opportunity possible to provide a sufficient certification during the pandemic.

Massachusetts Paid Family and Medical Leave – It’s here! Starting January 1, your Massachusetts employees are now able to take paid family and medical leave. You can learn more by searching for “Massachusetts” in the search box for this blog, above, or visit the website for the Massachusetts Department of Family and Medical Leave. Matrix offers management of MA PFML private plans and our sister company Reliance Standard Life Insurance Co. offers an insured private plan. But if you are going it alone with the state plan, the DFML has some helpful materials, including information on the employee application process and timeline with a DFML Application Timeline chart and an explanation of the employer's role in the state claim administrative process.

What do you need to be aware of now? Employers have ongoing workplace posting and new hire notice requirements so don’t slack on your obligations. And remember, the MA PFML leave is job protected (meaning reinstatement to the same or equivalent position following leave) and there is a presumption of retaliation for any negative employment action taken during or within 6 months after an employee’s MA PFML leave or other related activities. Are your HR and management personnel trained and ready?

Oh, and the MA PFML emergency regulation. The MA DFML has passed Emergency Regulation 3.0 authorizing “acute care hospitals” to allow delayed bonding leave in 2021.

But don’t stop reading – employers in other industries may apply to the DFML to extend the period in which an employee may schedule family bonding leave in the same manner as allowed for acute care hospitals. The Director, in his discretion, may grant or deny any such request after considering likely effects on public health and safety and the public interest.

An acute care hospital is defined as a hospital licensed under M.G.L. c. 111, § 51 and the teaching hospital of the University of Massachusetts Medical School. The Emergency Regulation applies to all acute care hospitals regardless of whether they are providing MA PFML benefits through the state plan administered by the DFML or through a private plan.

In essence, employers that are acute care hospitals may allow an employee who received a new child in 2020 (by birth, adoption, or foster placement) and who wants to take bonding leave in 2021 to complete that leave any time in 2021, not necessarily within 12 months of the birth/placement as is normally the rule. The employee cannot be required to delay bonding leave and the employer doesn’t have to agree to the delay.

Here’s an example:

  • Baby adopted on 4/1/2020
  • Normally, the parent will need to take MA PFML for bonding between 1/1/2021 and 4/1/2021 (after the effective date of MA PFML and within 1 year of the birth or placement of the new child)
  • Under the emergency regulation, an employee of an acute care hospital can delay that leave to later in 2021 – for example to start in September 2021 and be completed by 12/31/2021

The reason for the Emergency Regulation is to try to soften the early-2021 crunch for bonding at a time when medical staff are in high need due to COVID. I’ll be surprised if this is effective. The employer cannot require the employee to delay bonding leave until later in 2021, so I would guess many hospital employees who received a child in 2020 will welcome the chance to take paid bonding leave in January to get a respite from COVID work or exposure. In any event, the regulation specifically says that employers who are acute care hospitals may initiate discussions with employees eligible for the extension to determine if they intend to request the allowable extension. Just be sure not to coerce!

The Emergency Regulation was final on December 21, 2020, and expires after 3 months due to the requirements of the emergency regulation process under MA law. We might see another emergency regulation at that time, or the passage of a nonemergency regulation in the meantime.

Connecticut paid family and medical leave requirements make their debut. The latest PFML program launched in Connecticut on January 1. The first phase is the mandatory (in most cases) withholding of employee contributions in the amount of 0.5% of wages and payment of the employee contributions to the CT Paid Leave Authority quarterly. Employers with private plans approved by the CT Paid Leave Authority by March 31, 2021, do not have to pay the employee contributions to the Authority. In addition, they can elect not to withhold contributions from employee paychecks and to fund the private plan themselves. Private plans approved at a later date will have these same benefits as of the start of the quarter at least 30 days after Authority approval of the plan.

The Authority has cut employers a little slack on the timing of early employee contributions – perhaps recognizing that they did not get the program off the ground as early as would have been helpful. Normally employers cannot withhold from employee paychecks retroactively – meaning that if an employer missed withholding from an employee paycheck in one pay period, it cannot make that up but withholding more than the 0.5% in a later pay period. The Authority has stated that, if an employer does not withhold enough from an employee’s wages, the Department of Labor allows for a very limited “catch-up” period of no longer than the first two quarters of 2021. In order to “catch up”, the employer may not take more than one percent of an employee’s pay per paycheck.

In a prior post available here, we summarized the 3 important steps employers need to be doing now: (1) register your business (supposedly by December 31, 2020, but better late than never!); (2) decide whether you want to adopt a private plan to meet your CT PFML obligations; and (3) get ready for withholding employee contributions starting January 1.

We now have even more helpful CT PFML material. You will find an informative employer guide here, covering the requirements of the law and many other “need to know” facts. And if you want to consider a private plan, contact your Matrix or Reliance Standard account manager or practice leader – we have extensive materials to aid you in preparing for the employee approval vote.

You can also visit the CT Paid Leave website for more information.

California Expands CFRA. We’ve written about this before, but it bears a reminder. On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands coverage under the California Family Rights Act. The following changes took effect January 1, 2021:

  • Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
  • Eliminates the exception from coverage if an employer employs fewer than 50 employees within 75 miles of the worksite where the employee is employed
  • Repeals the New Parent Leave Act (currently the NPLA provides bonding leave for employees of employers with 20-49 employees)
  • Expands covered relationships from child, parent, spouse, and domestic partner to include grandparent, grandchild, and sibling
  • Removes the age limit to care for a child; leave will be available to care for a child under age 18 or an adult dependent child
  • Allows parents who are employed by the same employer to each have the full 12 weeks of bonding leave without sharing the CFRA entitlement
  • Adds as a covered leave reason qualifying military exigencies related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces
  • Eliminates the “key employee” exception allowing an employer to deny coverage if the employee is a salaried employee who is among the highest paid 10% of the employer's employees

Matrix is now administering the expanded CFRA for claims filed on or after January 1, 2021.

Matrix can help! The wide array of new leave laws, including significantly the various state paid family and medical leave laws, is a challenge for employers. Matrix tracks state and federal legislative developments and reports on them on this blog. But that’s not all we do! We have other resources for you as well. For an overview of state paid leave laws, including employee eligibility, employer and employee contributions, and employee benefits, check out our chart of all state-mandated paid leave programs here.

And if you need help managing those state PFML programs, we’re your source! Matrix offers PFML management services in all states that allow private plans, and Reliance Standard offers insured plans where applicable. If your company is interested in a private plan to meet your Massachusetts, Connecticut, Washington, or other state paid leave obligations, coordinate with your other leave administration and paid leave policies, and avoid the turmoil of state administration, contact your Matrix or Reliance Standard account manager or practice leader now!

NO EXTENSION OF FFCRA PAID SICK LEAVE/SCHOOL CLOSURE LEAVE; TAX CREDIT EXTENDED FOR 3 MONTHS

Posted On December 23, 2020  

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

December 23, 2020

 

FFCRA 300x300As of this writing, Congress has passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021, but President Trump responded with a hissy fit and the threat of a veto.  However, the paltry tax credit extension discussed in this post has not been brought up for criticism and so is likely to remain as is despite any other revisions the bill may undergo.  If anything changes, though, you can bet we’ll write about it here.

The bill has surprised many of us as it contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act.  Those mandated paid leaves expire on December 31, 2020, regardless of whether an employee has used all of his/her entitlement. If you need a refresher on the paid leave provisions of FFCRA you can check out our prior blog post here.

Tax credit extended.  On the other hand, the tax credit provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages paid through March 31, 2021.  What does this mean, you ask?  Great question.  The language of the CAA is poorly constructed.  But here is what appears to be the best interpretation:

  • There is no requirement for employers to provide further emergency paid sick leave or expanded FMLA leave for school closures after December 31, 2020.
  • An employer may choose to do so voluntarily, but further school closure leave will not count against an employee’s basic FMLA 12-week entitlement.
  • If such leave is paid in accordance with the FFCRA requirements applicable up to December 31, 2020, the employer can still claim a tax credit for wages paid through March 31, 2021.
  • However, the employer cannot claim a total tax credit in 2020 and 2021 combined for more wages per individual than the amount of paid leave required by FFCRA in 2020 – that is, 80 hours or part time equivalent of paid sick leave and 10 out of the 12 weeks of expanded FMLA, at the rates of pay specified in FFCRA.

What do employers need to do now?

  • Decide right away whether you are going to allow more FFCRA-like paid leave on a voluntary basis. If you do, apply that decision consistently across the board – either all employees with a qualifying reason can still take FFCRA-like paid leave through March 31 or none can. This includes both continuation of existing leaves and new leaves for a qualifying reason in the first 3 months of 2021.Of course, you can always allow such leave for as long and in such amounts as you choose through a company policy leave program.

    Be aware that if you do not continue FFCRA-like leaves into 2021, some employees may already be on continuous or intermittent leaves that would otherwise extend into 2021 and these will end on December 31, 2020. 

  • If you decide you are going to allow more FFCRA-like leave and care about the tax credit, be sure to get the documentation the IRS will require to support the credits. We previously summarized the IRS guidance for claiming the tax credit here.
  • Regardless of your decision on continued FFCRA-like leaves in 2021, remember that there are still many state and municipal laws, governors’ proclamations, and the like that provide at least temporary COVID-related leaves and job protections. And don’t forget the Americans with Disabilities Act as it may apply in this COVID world.

If Matrix is managing your FFCRA expanded FMLA leave for school closures, get in touch with your account manager right away to let us know your decision regarding continuation of these leaves into 2021.  We cannot charge any such leave against an employee’s FMLA entitlement after December 31, 2020, so all such pending leaves will be closed as of that date.  But we do have options for you, including switching the time requested to a personal leave of absence or instituting a company policy leave for school closures.  Congress has left us with very little time to deal with this situation, but we will do our best to stay up to date with our clients’ directions.

Matrix can help.  At Matrix we have developed a variety of pandemic-related leaves for employers that don’t have existing policies to cover all the COVID-related situations, such as leave due to quarantine or school closures.  If you are interested in learning more about these options, contact your Matrix or Reliance Standard account manager, or send a message to ping@matrixcos.com.

COLORADO PAID FAMILY AND MEDICAL LEAVE

Posted On December 14, 2020  

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

December 14, 2020

 

For several years the Colorado legislature tried without success to pass paid family and medical leave legislation.  In 2020 the voters took matters into their own hands and voted in favor of a ballot initiative (Proposition 118) to create a PFML program.  PFML geeks may recall that in Massachusetts in 2018 PFML supporters took the same route but in what came to be called The Grand Bargain, the legislature passed a PFML bill to keep voter initiatives off the ballot.  This did not occur in Colorado, perhaps because of its short legislative session that ends in mid-May or perhaps because of an inability to get consensus even in the face of a ballot measure.  In any event, Colorado PFML is now law and will be a reality soon. 

Some interesting features.  At Matrix we administer private plans for many state paid family and medical leave programs, and we are working on implementation of others so we’ve seen all kinds of PFML programs.  Here are some things we find interesting or encouraging about the Colorado program:

  • There is no waiting period – benefits are payable from the employee’s first day of covered leave.
  • There is only one 12-week bucket of leave entitlement for all leave reasons, rather than different buckets for things like the employee’s own serious health condition vs. family leave for bonding or caring for a family member (check out Massachusetts).
  • The law follows a new trend by providing an additional 4 weeks of leave available to an employee experiencing complications from pregnancy or childbirth.
  • The definition of “family member” also follows a recent trend of including someone who is not related by blood or marriage but is “like a family member” to the employee.
  • The statute is blessedly specific on concurrency of an employee’s use of federal FMLA, disability benefits, and paid time off.This prevents stacking of FMLA leave and leave during use of disability benefits (that is, sequential rather than concurrent use).On the other hand, the law preserves the employee’s right to save employer-provided accrued time off for other purposes or choose to use it to top up PFML benefits to the employee’s average weekly wage.

Here are the details we know now, based on the new statute.

Topic

Description

Colorado Revised Statutes

Administration

  • State plan:Colorado Department of Labor
    • New Division of Family and Medical Leave Insuranceto be created, led by a Director
  • Private plans permitted
    • Must meet or exceed benefits provided under statute and not impose greater employee obligations
    • Insured by an insurer approved by the state
    • Self-funded – requires a bond

§8-13.3-408

§8-13.3-421

Contributions / Premiums

  • Start:January 1, 2023
  • Amount:
    • 2023-2024:0.9% of employee’s wages
    • 2025 and after:rate may be adjusted according to a described formula but not to exceed 1.2% of employee’s wages
    • Wages subject to contribution capped at federal SSA limit
    • Employer can require employees to contribute up to ½ of total premium
    • Employers with fewer than 10 employees do not have to contribute the employer’s share of premiums to the state; must still contribute the employees’ share

§8-13.3-416(1)

§8-13.3-407

Benefits

  • Start:January 1, 2024
  • Amount:
    • 90% of the employee’s average weekly wage (AWW) that is equal to or less than 50% of the state AWW
    • PLUS
    • 50% of the employee’s AWW that is greater than 50% of the state AWW
  • Maximum weekly benefit:90% of state AWW
  • Exception:for benefits beginning before 1/1/2025, the maximum benefit will be $1,100 per week

§8-13.3-416(1)

§8-13.3-406

Employee Eligibility

“Covered Individual” means any person who:

  • Earned at least $2500 in wages subject to premiums during the base period OR
  • Elects coverage for a minimum of 3 years (e.g., self-employed, sole proprietor, independent contractor, employees of local governments that have opted out of coverage, etc.)

NOTE: We use the term “employee” throughout this article

§8-13.3-403(3) §8-13.3-414

“Base Period”

  • Base period: first 4 of the last 5 completed calendar quarters immediately preceding the first day of the individual's benefit year
  • Alternative base period:last 4 completed calendar quarters immediately preceding the benefit year

NOTE: Benefit year is not defined; probably should refer to Application Year – see below

§8-70-103(1.5) and (2)

Covered Employers

  • Private employers:
    • With 1 or more employees during 20 weeks in the current or prior calendar year; or
    • Who paid wages of $1,500 or more during any quarter in the prior calendar year
  • The state and political subdivisions
  • The federal government is excluded

§8-13.3-403(8)

Local Government Opt-out

  • Local governments may opt out of CO PFML coverage
  • “Local government” means any county, city and county, city, or town, school district, special district, authority, or other political subdivision of the state

§8-13.3-422

§29-1-204.5(3)(b)

Total Leave Entitlement

  • 12 weeks in an Application Year
  • Additional 4 weeks for a serious health condition related to pregnancy complications or childbirth complications

§8-13.3-405(1)

Waiting Period

None

 

Leave Reasons

  • Employee’s serious health condition
  • Caring for a family member with a serious health condition
  • Bonding with a new child during the first year after birth, adoption, or placement
  • Qualifying military exigency
  • Safe leave (leaves related to the employee or a family member being a victim of domestic violence, stalking or sexual assault or abuse)

§8-13.3-404

§8-13.3-403(16)

§8-13.3-404(18)

Covered Relationships

  • Child of any age*
  • Parent*
  • Spouse
  • Domestic partner
  • Grandparent*
  • Grandchild*
  • Sibling*
  • Like a family member:Any individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship

*NOTE: These relationships include biological, foster, adoptive, step, and in loco parentis relationships and the same relationships to the employee’s spouse or domestic partner, if applicable

§8-13.3-403(11)

 

Leave Year Calculation Methods

Application Year: 12-month period beginning on the first day of the calendar week in which an employee files an application for PFML benefits

§8-13.3-403(1)

Leave Increments

  • 1hour OR
  • Smaller increments if consistent with employer’s increments for other employee leave
  • Benefits not payable until employee accumulates at least 8 hours of PFML usage

§8-13.3-405(3)

Employee Documentation

CO PFML Division will develop claims procedures and forms, including

  • Certification from a health care provider for proof of a serious health condition and
  • Documentation of need for safe leave

§8-13.3-416(2)

Employee Notice to Employer

  • 30 days if leave is foreseeable
  • Such notice as is practicable if leave is not foreseeable or if 30 days is not possible

§8-13.3-405(5)

Employee Notices to Employees

  • CO PFML Division will develop notice materials with details of the CO PFML program for employer use
  • Employers will be required to provide written notice to employees:
    • By posting in the workplace
    • Upon hire
    • Upon learning an employee is experiencing an event that would be covered by CO PFML

§8-13.3-411

Coordination with Other Leaves and Benefits

  • FMLA:CO PFML runs concurrently with federal FMLA, if applicable
  • STD:Employer may require employee to use STD or similar benefits concurrently with CO PFML
  • Accrued paid time off (PTO) (vacation, sick leave, etc.):
    • Employer cannot require employee to use PTO prior to or while receiving CO PFML benefits
    • Employer and employee may agree that an employee can use PTO while receiving CO PFML benefits, up to employee’s AWW

§8-13.3-410

Job & Benefits Protection

  • If employee has been employed with current employer for at least 180 days prior to commencement of PFML leave, restoration after leave to same or equivalent position and terms and conditions of employment
  • Continuation of health care benefits during leave

§8-13.3-409

Employer Reimbursement

Employer can receive reimbursement from state program or private plan insurance carrier for advance payments made by employer equal to or greater than CO PFML benefits

§8-13.3-415

 

Matrix can help!  State by state, the number of paid family and medical leave laws keeps growing.  You don’t have to go it alone!  At Matrix we administer private paid family and/or medical leave and benefits plans in many states, including California, New Jersey, New York, Washington, and the upcoming Massachusetts, Connecticut, and Oregon.  If you would like to learn more about paid family and medical leaves and the benefits of having a private or voluntary plan, contact your Reliance Standard or Matrix account manager with questions or send a message to ping@matrixcos.com, and keep watching this space for more information.

TIME TO GET A GRIP ON CONNECTICUT PAID FAMILY AND MEDICAL LEAVE!

Posted On November 30, 2020  

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

November 30, 2020

 

Massachusetts PFML isn’t the only law bringing new consequences with the new year. Some parts of Connecticut PFML are also going into effect on January 1, 2021, and if you have even one Connecticut employee, you have things to do. We’ll provide you with a starter list here, but please register to join our CT PFML webinar on Thursday, December 3 at 2:00 Eastern.

If you don’t have Connecticut employees, it still pays to tune in to learn what various states are doing – it may be on your company’s horizon soon!

Connecticut Family and Medical Leave is coming faster than you think. Join us Thursday December 3rd @ 2pm EST for an overview of what we know and what comes next. Register here!

For Connecticut employers, here’s what you need to do now:

  1. Register your business with the Connecticut Paid Family and Medical Leave Insurance Authority (the Authority) The Authority is charged with developing and administering the CT PFML program. All employers with one or more Connecticut employee must register by December 31, 2020, to ensure receipt of important information from the Authority as issued.

    Determine who in your organization will be responsible for completing the registration process and setting up your employer account on the Authority’s website. That individual will need to supply the following information during registration:
    • Federal Employer Identification Number (FEIN)
    • Number of Connecticut employees
    • Total annual payroll for Connecticut employees
    • Payroll frequency
    • Intention to apply for an exemption (private plan)
    • How your business will remit payments on behalf of employees
    Note: Prior to registering with the Authority, be sure your business has established a state identity at https://stg.login.ct.gov/ctidentity/registration.
  2. Consider whether you want a private plan. Although you can file for approval of a CT PFML private plan at any time, there is a financial incentive to act soon. Employers with plans provisionally approved by March 31, 2021, will not have to pay the employee PFML contribution of 0.5% to the Authority for Q1 2021 but can either waive that cost for employees or use the employee contributions to fund the private plan. The process for approval of a private plan requires an affirmative vote by the majority of your Connecticut employees and other steps that will take time, so it’s best to get started right away. NOTE: The provisional private plan approval date to avoid paying employee contributions to the Authority for Q1 2021 was originally March 1, 2021, but has been changed in Authority communications to March 31, 2021.
  3. Get ready to withhold employee payroll deductions. Some employers elect to cover the costs of a state PFML program themselves. However, in Connecticut, if the employer is using the state plan the employer cannot cover the employees' contributions and must withhold the 0.5% contribution from employee paychecks. Employers with private plans may elect to cover the employee costs but you may not know if you have a provisionally approved private plan until after January 1, 2021. So, consider planning to withhold from employee paychecks starting January 1 and either refund the employee contributions if your plan is approved, or use those contributions to date toward plan costs and cease withholdings going forward. If you know your company is going to have the employees pay their statutory share, get ready to start withholding employee payroll contributions as of January 1, 2021.

MATRIX CAN HELP!

We are experts on all state PFML programs. If you need help in any state contact your Matrix or Reliance Standard account manager. And if you can’t make it to the CT PFML webinar on December 3, watch this space for timely updates and contact your Matrix or Reliance Standard account manager or ping us at ping@matrixcos.com to receive the webinar recording when ready.

CONNECTICUT JOINS THE PAID FAMILY AND MEDICAL LEAVE CLUB!

Posted On November 23, 2020  

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

June 28, 2019

 

 

On June 25 Governor Lamont made Connecticut the 9th U.S. jurisdiction to adopt a paid family and/or medical leave program.  As a reminder, here are the jurisdictions with paid leave programs and their status:

  • California –in force
  • Connecticut–JUST PASSED! Employee contributions start January 1, 2021;
    leave and benefits start January 1, 2022
  • District of Columbia – employer contributions start July 1, 2019; leave and benefits
    start July 1, 2020
  • Hawaii – disability benefits (medical leave) only; in force (and studying the addition of a
    paid family leave component)
  • Massachusetts – employer/employee contributions start October 1, 2019; leave and benefits
    start January 1, 2021
  • New Jersey – in force; substantially amended in February 2019 to enrich benefits and broaden
    coverage.
  • New York – in force
  • Rhode Island – in force
  • Washington – employer/employee contributions started January 1, 2019; benefits start January 1, 2020

 

Connecticut Paid Family and Medical Leave – the Details

The following summary is based on our early review of the Connecticut PFML statute.  There are many more details in the law; we will continue to analyze the nitty gritty and watch for developments in the program.

ISSUE PROVISION CT S 1
Administration The statue creates an “authority” comprised of 15
appointed board members to oversee creation of
the PFML program
§2
Covered Employee Has earned $2325 during the employee’s highest
earning quarter within the base period (first 4 of 5
most recent quarters) AND:

 

  • Is presently employed OR
  • Was employed within previous 12 weeks OR
  • Is self-employed or a sole proprietor and has
    enrolled in the program

 

§1(4)
Covered Employers All private employers, regardless of size

 

Does not cover:

  • The federal government
  • The state, municipalities, or local or regional
    boards of education, except to the extent
    their employees are “covered public
    employees”
  • Nonpublic elementary or secondary schools

 

§1(8)
Total Leave Entitlement
  • 12 weeks per 12-month period
  • Additional 2 weeks for pregnancy-related
    serious health condition

 

§18(a)(1)

 

§18(i)

Leave Reasons
  • Employee’s own serious health condition
  • Family member serious health condition
  • Care for an ill/injured servicemember
  • Bonding (birth, adoption, foster care)
  • Organ or bone marrow donation
  • Military exigencies
  • Matters related to employee being a victim of family violence (limited to 12 days of leave out of the 12 weeks)

 

 

 

 

 

§3(c)(1)

Covered Family Relationships
  • Spouse
  • Sibling (related by blood, marriage,
    adoption, or foster care placement)
  • Son or daughter (no age limit) (biological,
    adopted, foster child, stepchild, legal ward, or
    a child of a person standing in loco parentis)
  • Grandparent (related by blood, marriage,
    adoption, or foster care placement)
  • Grandchild (related by blood, marriage,
    adoption, or foster care placement)
  • Parent (biological, foster, adoptive, step, in-
    law, legal guardian of the employee or the
    employee’s spouse; in loco parentis)
  • An individual related to the employee by
    blood or affinity whose close association the employee
    shows to be the equivalent of
    those family relationships

 

§§17(6), (7), (8), (10), (14), (15), (16)
Leave Year Calculation Methods
  • Calendar year
  • Any fixed 12-month period
  • Measured forward
  • Rolling back

 

§18(i)
Leave Increments Continuous, reduced schedule, intermittent §3(e)

 

§18(c)

Employee Documentation Certification from Health Care Provider for
employee’s or family member’s serious health
condition or for care of servicemember
§19 (a)-(b)
Claims Procedures
  • 2nd& 3rd opinion process allowed if employer
    has reason to doubt the validity of the
    employee’s medical certification
  • Recertification allowed on a reasonable basis
    but generally not more often than 30 days
§19(c)-(e)
Employer Notice to Employees General notice of employee’s CT PFML rights upon
hire, and then annually
§13
Employee Notice to Employer 30 days if need for leave is foreseeable

 

As soon as practicable if not foreseeable

§18(f)
Employee contributions Start 01-01-2021

 

Maximum ½ % of employee’s wages up to
maximum compensation subject to SS contribution

No employer contribution

Weekly Benefits Start 01-01-2022

 

95% of employee’s base weekly earnings up to:

  • 40 x current state minimum wage plus
  • 60% of employee’s base weekly earnings
    above 40 times current state minimum wage
  • Maximum of 60 x current state minimum
    wage

Subject to reduction if needed to ensure solvency
of the PFML program

Predicted to be ~$840/week when benefits start;
up to ~$900 in 2023 due t scheduled increases in
state minimum wage

§3(e)(2)

 

Private Plan Option

Section 11 of the Connecticut PFML law allows employers to adopt an insured or self-funded private plan.  The requirements are very similar to those in Massachusetts.  To be approved, a private plan must:

(A) Confer all of the same rights, protections and benefits provided to employees under the PFML statute, including:

(i) At least the same number of weeks of benefits;

(ii) At least the same level of wage replacement for each of those weeks; and

(iii) Leave and benefits for the same reasons as specified in the statute;

(B) Impose no additional conditions or restriction on the use of family or medical leave beyond those explicitly authorized by the statute or by regulations to be issued

(C) Cost employees no more than the premium charged to employees under the state program;

(D) Provide coverage for all employees throughout their period of employment;

(E) Provide for the inclusion of future employees;

(F) Not result in a substantial selection of risks adverse to the Family and Medical Leave Insurance Trust or otherwise significantly endanger the solvency of the fund;

(G) Have been approved by a majority vote of the employer’s employees; and

(H) Meet any additional requirements established by the authority.

 

What’s Interesting?

Health Care Provider Obligations

In a new but welcome twist, the statute imposes some obligations on health care providers:

  • The health care provider has a duty to provide a complete and timely medical certification
    upon patient’s request
  • The health care provider cannot charge a fee for completing the certification
  • If CT PFML compensation is paid as a result of willful misrepresentation by a health care provider,
    the provider may be liable for a penalty of 300% of the benefits paid as a result. Perhaps this will
    deter providers who simply approve whatever leave frequency and duration the patient says is
    needed without exercising medical judgment.

Like a family member . . .” 

You will have noted (with your hand to your forehead) that leave is available to care for “an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships.” The law tasks the Connecticut Labor Commissioner to adopt regulations that, among other things, provide guidelines regarding factors to be considered when determining whether an individual’s close association with an employee is the equivalent of a family member relationship otherwise covered by the statute.

Existing Connecticut family and medical leave law

Current Connecticut law provides job-protected but unpaid leave of absence (up to 16 weeks in a 24-month period) for all of the reasons listed above, with leave as a victim of family violence carved out separately.  The vast majority of the existing law is repealed and reenacted or amended by the new PFML law effective January 1, 2022 – the date the paid benefits will start.  The expanded definitions of family members for whom an employee can take paid family leave will provide broader coverage for that leave reason.  Existing law allows leave to care for a parent, child (under 18 or disabled), and spouse.  As you can see above, several relationships have been added, including sibling, grandchild, grandparent, and “like a family member.”

The text of the final bill as passed can be found HERE

 

MATRIX CAN HELP! It’s early days yet for Connecticut PFML.  As usual, we will be watching for developments and reporting on this blog as new information is available.  IN the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Massachusetts and Washington laws and the 2019 New Jersey amendments.

 

AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

 

 

“TIE-BREAKER” MEDICAL EXAM FOR EMPLOYEE IN A SAFETY SENSITIVE POSITION DOES NOT VIOLATE THE ADA

Posted On November 09, 2020  

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

November 09, 2020

 

A new case provides some great information for employers with employees in “safety sensitive” positions and their ability to require a medical exam. That case is Beal v. Muncie Sanitary District, available here.

The Facts


Ronald Beal worked in a Maintenance role for the Muncie Sanitary District.  His job required him to drive a District-provided vehicle over public roads to monitor equipment and operate heavy machinery.  One day, while on duty, Beal backed a District vehicle into a flower planter at a local shop. The accident did not cause any injuries or property damage, but consistent with District policy, Beal was required by his supervisor to submit to a drug test.  The test revealed the presence of a number of concerning substances, including opiates and oxycodone.  The testing lab, in providing the results to the District, warned of “possible safety issues and a quite serious liability issue in the event of an accident.” Upon receipt of the results, the District removed all “safety-sensitive” job duties from Beal’s role and reprimanded him for not complying with its policy requiring him to supply the District with a written form identifying any potentially dangerous prescriptions he was taking.

Beal’s doctor confirmed the medications he prescribed and was of the opinion that those prescriptions did not interfere with his ability to perform safety sensitive work.  The District asked its Medical Review Officer (“MRO”) for her opinion, which was, not surprisingly that unless Beal’s doctor changed his dosage and ensured these medications were not taken within eight hours of his scheduled shift, she could not clear him to return to work.   Beal’s doctor rejected the MRO’s suggestions about changing Mr. Beal’s dosage.  The District did not give up.  They then asked Beal’s doctor to clarify which duties he could perform under his current dosage, and astonishingly the doctor said he could safely perform all of them.  As a result, the District had an impasse and proposed to Beal that he agree to see a third party health care provider and sign a release so that individual could review his medical records.  When he refused to do so, he was suspended without pay and given an ultimatum: participate in the exam and sign the medical release, or lose your job.  Beal declined to agree and was fired for insubordination.  He sued the District, claiming that its requirement that he participate in a medical exam with a third party provider violated the ADA.

How the District Won

The ADA has specific limits on when an employer can require an employee to submit to a medical exam; namely, the exam must be job-related and consistent with business necessity.  One way for employers to meet these criteria is by showing that the employer has a reasonable belief, based on objective evidence, that the employee’s medical condition would impair his ability to perform the essential functions of his job.  The court agreed that without the safety sensitive duties the District temporarily removed from Beal’s job, his position was “diluted beyond recognition.” There was ample support that the drugs Beal’s physician prescribed could impair his ability to perform his job functions, so, when he was asked to submit to the medical exam, the District was found to have complied with the ADA’s requirements for medical exams. 

Though the District didn’t submit this argument, the court further pointed out that an employer can ask an employee to submit to a medical exam when there is objective evidence that his or her condition poses a threat to health and safety.  In this instance, the evidence showed that Beal’s use of prescription opiates and other medications posed a threat to himself, co-workers, and the general public.  The court found that, under the circumstances, the District was not only warranted in requiring the third party exam, but was actually obligated to require Beal to submit to it.

Pings for Employers:

The District did a lot of things right, including:

  • Having a detailed job description from which the court could easily conclude that Beal’s position involved safety sensitive duties;
  • Having a policy that required the employee to come forward if he takes any medications that could impair or otherwise impact job performance.This is something a private employer, however, should think very carefully about before requiring, as it will be the rare position indeed that would warrant such scrutiny.
  • Having a policy that required drug testing in the event of a work-related accident and methods to objectively administer that testing with a third party provider.
  • Using an internal resource – in this instance a Medical Review Officer – who was familiar with the job duties and the medications at issue.The MRO helped a lot. She helped devise ways to work with Beal’s doctor to see if there were ways to accommodate his use of the prescribed medications and still perform his job.
  • The third party medical exam really was a last resort. This employer worked hard to be thoughtful and find ways to work with Beal and his provider. The court gave the District lots of credit for that and ultimately concluded that Beal’s recalcitrance demonstrated a failure to engage in the interactive process.
MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like obtaining appropriate medical information to assess an employee’s ADA situation.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, contact your Matrix or Reliance Standard account manager, or send an email to ping@matrixcos.com.

COVID 19 AND ADA LEAVES OF ABSENCE

Posted On November 02, 2020  

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

November 02, 2020

 

In the best of times employers struggle with employee requests for leave of absence as an ADA accommodation.  The incursion of COVID-19 has amplified the challenges.  But, the ADA is still the ADA and leave of absence continues to be an accommodation employers must consider if requested by an employee with a disability – in fact, now more so than ever. 

We have previously written about ADA and leaves of absence, particularly with respect to the duration of such leaves, here and here. Now let’s look at special issues when COVID is involved.  Sadly, there is nothing humorous about this topic so don’t expect the levity I often try to inject into our blog posts.

Not Much Court Guidance - Yet

Although many lawsuits relating to COVID issues have been filed, very few involving ADA claims have progressed to the point of a written judicial opinion and, as of this writing, none address a request for leave of absence as a reasonable accommodation.  A small number of courts have recognized that during the COVID-19 pandemic, whether a plaintiff has a disability should be judged by the totality of the circumstances, including the heightened risks of an impairment caused by the pandemic.  See Peeples v. Clinical Support Options, Inc. (D.Mass. 09/16/2020); Silver v. City of Alexandria (W.D. La. 07/06/2020); and Valentine v. Collier (S.D.Tex. 07/02/2020).

What the EEOC Says You Should Know

At this time, the best resource available for understanding COVID and the ADA is the EEOC’s Technical Assistance Questions and Answers, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“EEOC, What You Should Know”).  Here is some guidance regarding leaves of absence from that document.    

Confidentiality.  If an employee is on a COVID-related leave of absence, you cannot disclose the reason for the leave, just the fact that the individual is on leave.  EEOC, What You Should Know at B.7.  (Of course, this applies to the reason for any ADA accommodation or medical absence from work.)

Assessing the Length of a COVID Leave of Absence Accommodation.  COVID itself may or may not be a disability, depending on the length and severity of the employee’s illness.  The ADA regulations provide that you must consider the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity to determine whether the employee’s condition substantially limits a major life activity.  29 C.F.R. § 1630.2(j)(4).  So, engage in the usual ADA inquiries and get medical documentation to determine whether the employee’s COVID-19 is a disability and, if so, what accommodations are appropriate.

A difficulty presented by COVID is that, at the outset of an infection or even as it progresses, the employee’s provider may not be able to predict how long the employee will be incapacitated by the disease.  Some cases are mild or even asymptomatic, which would clearly not be a disability and any absences should be dealt with through the employer’s regular attendance, paid sick leave, other time off policies, and state and federal laws such as the FMLA, if applicable.

Some individuals, on the other hand, remain ill and incapacitated by COVID for extended periods, referred to as the “long haulers.”  At some point continued leave may no longer be a reasonable accommodation or may impose an undue hardship.  Not surprisingly, this determination needs to be made on a case-by-case basis.  The employer does have in its favor the principle that an indefinite leave of absence with no reasonably certain end date or range is not a reasonable accommodation.  Be cautious (and generous, if possible) before taking action that might make it a COVID-19 test case for failure to accommodate.

Leave as a Temporary Accommodation.  Given the pandemic and all the new considerations that come into play, you may find yourself in a position of having to provide a leave of absence on an emergency or short notice basis.  The EEOC makes clear that employers can do this without the accommodation becoming “permanent.”  You can set employee expectations up front that this is a temporary or trial accommodation and set an end date, subject to further consideration at that time.  This gives the immediate employee the relief he or she needs and allows time to collect additional medical information if needed and to consider other stay-at-work accommodations. 

Moreover, you need not fear that an accommodation granted during COVID may become required on an ongoing basis.  The EEOC recognizes that the pandemic may require some employees to request an accommodation because of a pre-existing disability that puts her at greater risk during this pandemic or because the employee has a disability exacerbated by the pandemic.  This doesn’t mean that you have to continue the accommodation once the COVID-related need no longer exists.  EEOC, What You Should Know at D.7.

High Risk Family Members.   Many employees have someone in their household how has a high risk of COVID complications because of an underlying medical condition.  This is not grounds for leave of absence as an accommodation.  Be aware, however, of the association provision of the ADA, which prohibits discrimination against an employee based on his/her association with an individual with a disability – and “association” extends well beyond just family members to include roommates, friends, teammates, etc.  In the COVID leave context, this means that if an employer allows an employee without a disability to take a leave of absence to avoid exposure to COVID (for example, due to the employee’s simple fear of contracting COVID but without a high-risk factor) you will need to consider allowing the employee associated with someone with a high-risk condition leave of absence on the same terms.  EEOC, What You Should Know at D.13.

Employees with High-Risk Conditions.  The CDC has identified conditions which place an individual at high risk of serious complications if they get COVID-19.  Most of these conditions may also constitute an ADA-protected disability (exceptions being age, normal pregnancies, and in some cases, obesity).  An employee with one of these conditions may never have needed an accommodation at work prior to COVID-19 – for example, an employee with diabetes or high blood pressure that is well controlled with medication.  Now, the risk of severe illness may require you to allow a leave of absence for an individual with a high-risk condition to avoid exposure as an ADA accommodation.

However, as with the ADA under normal conditions, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.  Don’t act out of paternalistic concerns; the ADA does not allow you to exclude the employee—or take any other adverse action—solely because the employee has a high-risk condition. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation – and the threshold to establish a direct threat is very high.  EEOC, What You Should Know at G.3. and 4.

Older Workers and Leave of Absence.  The CDC includes age over 65 as a high-risk condition.  However, the Age Discrimination in Employment Act does not require an employer to provide an accommodation due to age.  Under the ADA you cannot exclude an individual from the workplace based on being 65 or older, even if the employer acts for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.    However, you can provide greater workplace flexibility to older workers who desire it even if that results in younger works being treated less favorably.  Remember, too, that age may bring with it medical conditions that do constitute a disability and the employee may be entitled to an accommodation, possibly including leave of absence, for that reason.  In that case, the employee, as in other cases, must make the need for an accommodation known to the employer.  EEOC, What You Should Know at H.1. and 2. 

Upon Return to Work from a COVID-Related Leave of Absence.  When a worker is ready to return to work following a COVID-related leave of absence, you can require a fitness-for-duty note from the employee’s doctor.  This can include verification that the employee is no longer contagious.  Due to the pandemic’s demands on the health care industry some employees may have difficulty seeing a provider for this purpose so you might want to be flexible in this requirement and the form of verification you will accept.  EEOC, What You Should Know at A.5.

Alternatives to Leave of Absence.  Remember that an employee is not necessarily entitled to a leave of absence if there are other accommodations that will enable him or her to perform the job without jeopardizing the employee’s health or medical treatment.  Where exposure to COVID is the concern, many of the measures you are already taking to provide a safe workplace may serve as an effective and reasonable accommodation – depending on the facts such as the employee’s job duties and the nature of the workplace.  The EEOC suggests:

If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

EEOC, What You Should Know at D.1.

For additional ideas and assistance, check out the resources available from the Job Accommodation Network, see OSHA’s Guidance on Preparing Workplaces for COVID-19, or consult your state or local health agency.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including assessment of leave of absence requests in the time of COVID.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, contact your Matrix or Reliance Standard account manager, or send an email to ping@matrixcos.com.

MERRILY WE ROLL ALONG – DIP YOUR OARS INTO THIS MULTI-STATE PFML UPDATE

Posted On October 26, 2020  

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

October 26, 2020

 

Sometimes it does seem like we are sailing o’er the deep blue sea with all this PFML stuff – so many dangers and unknowns out there!  There have been several developments in the various state paid family and medical leave programs in recent months, and more are coming with the approach of the new year.  (Please, let it be a new year and not a 2020 Groundhog Day version!)

Here we will summarize developments in various states that have PFML laws in place or are about to, presented in alphabetical order.  In this post we are covering only the actual PFML programs, and not special COVID-related paid leave laws.  Oh, and we’ll take a look at that pending federal HEROES Act as well.  Put on your belt and suspenders to get ready for that one if it passes!

PFML 2020 Overview

We keep this map up to date throughout each calendar year in order to have a graphic view of the status of paid family and medical leave laws and proposed legislation in the United States.  Early in 2020 I expected at least 2 or 3 more states to pass PFML legislation.  Then COVID hit, and almost everything leave-wise not related to the pandemic ground to a halt. It doesn’t look like any state will enact PFML programs this year except perhaps Colorado.  See our Colorado summary below for details on that.

In total, 23 states introduced PFML legislation in 2020 or carried bills over from 2019; of those, only 4 bills remain pending at this time, and none has seen any activity in recent months.

 

 

California

The increases in California Paid Family Leave and San Francisco Paid Parental Leave benefits, each going from 6 to 8 weeks, went into effect on July 1, 2020CA PFL is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption, while the San Francisco PPL benefits supplement the CA PFL bonding benefits for San Francisco employees.  See our prior blog post here

Coming up, CA PFL will be available for a new qualifying reason effective January 1, 2021.   California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

These leaves are not job protected under the CA paid family leave program. However, rights to reinstatement come from other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.  CFRA was recently amended to add military exigencies as a covered leave reason.  See our prior blog post on this and other expansions of CFRA https://www.matrix-radar.com/blogs/2020/09/28-1.

Colorado

After failing for several years to pass PFML legislation, a PFML program is now a ballot initiative that Colorado will vote on this election.  Too close to call at this point, but you know we’ll report here if the voters say yea.  The proposed program would be funded by employers and employees jointly, would provide up to 12 weeks of leave per year for the typical family and medical reasons (with an additional 4 weeks if the employee experiences pregnancy complications) , and includes the now-ubiquitous provision to allow leave to care for someone who is “like a family member.”  

Connecticut

Employee contributions for the Connecticut paid family and medical leave program will start January 1, 2021, with employers required to withhold 0.5% of employees’ wages to fund the program.  Benefits start January 1, 2022.  The CT Paid Family and Medical Leave Insurance Authority – the agency charged with developing and administering Connecticut’s PFML program – finally seems to be making some progress toward the process for approval of private plans – both insured and self-funded. 

The CT PFML law requires approval by a majority of an employer’s Connecticut employees to adopt a private plan to provide benefits.  The Authority has issued a template for the “plain language” explanation employers must provide to its employees at least 2 weeks prior to the vote.  No details yet on when or how to conduct the vote, but the results must be verifiable by the Authority.  Also no details yet regarding how to file for Authority approval of a private plan if the employees vote for approval. 

We are monitoring the Authority’s progress very closely, attending all Authority board meetings and reviewing all materials the board issues.  These materials, including the plain language template, can be viewed at the Authority’s website page for its October 8, 2020, meeting, here.  At Matrix and Reliance Standard, we are ready to assist clients in developing an insured or self-funded CT PFML private plan and can assist with the required employee vote.

District of Columbia

The District’s Universal Paid Leave program started paying benefits on July 1, 2020.  The amount of weeks of leave is a bit skimpy compared to other states:  2 weeks for employee’s medical condition, 6 weeks to care for a family member, and 8 weeks for bonding, with a total 8-week cap in a 52-week period.  Remember, though, that the DC FMLA also provides up to 16 weeks of unpaid but job-protected leave in a 24-month period for similar reasons (plus an additional 16 weeks for COVID-related reasons).  The DC paid leave program is administered by the District; no private plans are allowed.

Massachusetts

Action needed!  All Massachusetts employers need to take certain actions as we approach the start of PFML benefits on January 1, 2020: 

  • Employers using the state MA PFML plan:  Verify that your contact person is correctly identified in the state’s records.

    When an employee submits an application for benefits with the Department of Family and Medical Leave (DFML), the DFML must contact the employer to confirm the details and obtain necessary information.  The DFML is asking each employer to verify the correct contact person and contact details.  A copy of the notice being sent can be reviewed here:  https://mailchi.mp/657cf7bd8b0c/action-required-preparing-for-massachusetts-paid-family-and-medical-leave-8140810?e=dd4c39ea55

    Who should be identified?  This is the person within your organization who will be responsible for managing MA PFML leaves and benefits and responding to the DFML ‘s requests for information such as employee wages and hours worked, prior leaves taken, whether the employee will receive other pay during the period of leave, your company’s leave policies, etc. 

    To verify that the right person is identified and that contact information for that person is correct, log onto https://www.mass.gov/forms/leave-administrator-contact-informationThe DFML requests that all employers accomplish this by October 31 so that they will not miss any important notices relating to employee claims or otherwise.

    A note to employers using Matrix as a leave and/or disability administrator but providing MA PFML benefits through the state plan:  The individual to be identified for this purpose is not Matrix Absence Management or any of our employees.  If you have elected to provide benefits through the state plan, Matrix is not involved in managing claims under that plan.  Moreover, much of the information the DFML will seek is not accessible to Matrix.  Of course, Matrix will assist upon request by providing information we do have, such as prior leaves taken by the employee an administered by Matrix. 

  • Renewals of private MA PFML plans – insured or self-funded:  All employers with private MA PFML plans must renew their plans annually.  The DFML has given an extension for renewing insured plans to the period November 30-December 31 – and not sooner!  Employers with self-funded private plans must file a renewal prior to the expiration of their current plan.  Usually filing a month ahead should be adequate time for DFML to approve the renewal.

As you may recall, an employer can file a private plan with the DFML at any time, and it will go into effect on the first day of the calendar quarter following approval.  There are many advantages to private plans, especially for larger employers.  If you want to consider this option, please contact your Matrix or Reliance Standard account manager.

Pre-filing of MA PFML Bonding Claims.  In anticipation of an influx of PFML claims starting January 1, 2021, the DFML announced it would start accepting PFML claims for bonding with a new child on December 2, 2020 – although benefits will not start until January 1.  However, recent communications from the DFML indicate they may not be quite ready by December 2, but they do still expect to be able to accept bonding claims in December.  Matrix and Reliance Standard will likewise be ready to accept bonding claims for private plans sometime in December. 

New Jersey

Reminders:  The increase in New Jersey Family Leave Insurance (FLI) benefits from 6 weeks to 12 weeks became effective July 1, 2020.  See our prior blog post here.

In addition, NJ FLI was expanded effective March 25, 2020, to include as covered leave reasons the closure of a child’s school or the quarantine of a family member due to an epidemic of a communicable disease.  More details are here. Unlike many other COVID-related leave legislation passed this year, these provisions do not have a sunset date and are written broadly enough to have effect during a pandemic of a communicable disease other than COVID-19.

New York

No new disability or paid family leave developments here – although lots of COVID-specific activity earlier this year.  See our prior blog post about New York’s paid sick/quarantine leave.

Oregon

Under Oregon’s PFML program, employee/employer shared contributions will start on January 1, 2022, and benefits will on January 1, 2023.  Lots of time!  Oregon is doing a great job of getting organized, with various topical work groups (e.g., benefits and “equivalent” – private – plans) and biweekly town halls.  You can read our summary of the Oregon PFML law here, and be sure to watch this space for more details as the program develops.

Rhode Island

Rhode Island Senate Bill 2831 is still pending, with no activity since March 2020 (why is that not surprising?).  If passed, this bill would expand RI Temporary Caregiver Insurance benefits (basically, paid family leave) from 4 weeks to 6 weeks effective January 1, 2021 and then to 8 weeks effective January 1, 2022.  The current RI legislative session adjourns January 4, 2021, so there’s still time for some action.

Washington

Ah, Washington!  This PFML program continues to be the problem child among paid leave programs.  A few ongoing problems:

  • Scanty notice requirements for an employee taking WA PFML – the employee only has to tell the employer the anticipated timing and duration of the leave.
  • A serious lack of information available to employers from the Employment Security Department (ESD) about the specific time and reasons an employee is taking off work.
  • Very slow ESD response times to employee claims, answering telephone calls on their Customer Care line (sometimes over 3 hours of hold music!), and email inquiries (my last email was not answered for almost 3 months).

But sadly, nothing new in Washington.  We hope neighboring Oregon is not thinking the Washington program is all they brag that it is! 

United States

The federal Health and Economic Recovery Omnibus Emergency Solutions Act (the HEROES Act – ain’t that cute?), HB 6800, has passed the House and is the subject of much negotiation at this writing.  As is pertinent to this blog, the bill proposes many substantial changes to the Families First Coronavirus Response Act (FFCRA) enacted on March 18. 

Remember the FFCRA?  In short, it expands the FMLA to provide job-protected leave when an employee is unable to work (or telework) because the employee’s child’s school or place of care has been closed due to COVID-19, and provides up to 80 hours of paid sick leave for 6 qualifying reasons related to COVID-19.  FFCRA is set to expire on December 31, 2020.  If you want to read up on the details, go back to our initial blog post on FFCRA here, or enter FFCRA in the search box above for several additional FFCRA posts.

If HB 6800 or something derived from it passes, we’ll report in more detail.  In the meantime, here is a rundown of some of the key leave-related provisions:

Expanded FMLA:

  • Extends the expanded FMLA to December 31, 2021;
  • Expands the family members for whom an employee can take the covered leave, adding to the usual parent, child, or spouse to include siblings, next of kin, grandparents, grandchildren, parents-in-law, domestic partners, and others whose close association with the employee is the equivalent of a family member;
  • Expands the covered employer threshold to include employers with 1 or more employees;
  • Expands the leave reasons for expanded paid FMLA to include reasons similar to those for the FFCRA’s emergency paid sick leave:
    • Self-isolate due to employee’s COVID-19 diagnosis;
    • Comply with a recommendation or order by a public health official or health care provider to self-isolate;
    • Care for a family member who is self-isolating or seeking diagnosis or treatment for COVID-19;
    • Care for the employee’s child when an employee is unable to work (or telework) because the employee’s child’s school or place of care has been closed due to COVID-19 (currently the ONLY reason for expanded FMLA under the FFCRA); and
    • Care for a family member incapable of self-care because of a mental or physical disability or who is a senior citizen because the family member’s place of care is closed
  • Specifies that the 12 weeks of expanded FMLA (with all the new leave reasons) is in addition to the 12 weeks of unpaid leave an eligible employee is entitled to under the regular FMLA.
  • Addresses several other aspects of the FFCRA, such as maximum amount of pay available, intermittent leave, and the nature, timing, and content of certification to support leave.

Emergency Paid Sick Leave

The HEROES Act also expands the Emergency Paid Sick Leave provisions of the FFCRA:

  • Extends emergency paid sick leave to December 31, 2021.
  • Expands “covered employer” to include employers with 1 or more employees;
  • Allows the 80 hours of paid leave to be taken “in any 12-month period” rather than just once;
  • Allows intermittent leave usage without requiring employer consent;
  • Clarifying that an employee gets a new paid sick leave entitlement when starting employment with a new employer.

Holy cow!  That’s a lot of expansion, all on the backs of employers! You can review the HEROES Act here – scroll down to Division L for these leave-related provisions.

Matrix can help!

Overwhelmed? Don’t be. It’s unreasonable to expect you’re going to be expert on every state, every moment – in the middle of a pandemic, an election season and the rough seas of change. We will get through it together. We think about, research, plan and develop service support for every new leave program as it’s developed, so you have a safety net and peace of mind. Contact your Reliance Standard or Matrix account manager with questions, and keep watching this space for more information!

LEGISLATIVE UPDATE: EXPANDING LEAVES AND PANDEMIC COVERAGE

Posted On September 28, 2020  

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

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

September 28, 2020

 

September has been quite the month for expanding leave benefits, both COVID-19 related and otherwise. Oregon has issued an administrative rule permanently allowing for sick child leave to be taken for school closures, California expanded coverage under the California Family Rights Act (CFRA) as well as creating a supplemental sick leave for some of those left out of the Families First Coronavirus Response Act (FFCRA), Hawaii adds care of grandchild as a covered reason for leave under the Hawaii Family Leave Act (FLA), and the city of Brotherly Love has enacted an ordinance providing a public health emergency paid leave.

Here’s a summary of what you need to know:

School Closures and Unavailable Childcare in Oregon

Back in March of 2020, in response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries issued a temporary administrative order expanding the scope of sick child leave under the Oregon Family Leave Act (OFLA) to include care of a child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official. On September 11, 2020, the Bureau made the administrative order permanent.  Additionally, the Bureau also issued a temporary administrative order providing clarification with regard to the permanent change. In its temporary order, the Bureau clarified the following:

  • "Child Care Provider" means a place of care or person who cares for a child.
    • A person who cares for a child includes paid (nannies, au pairs, and babysitters) and unpaid (grandparents, aunts, uncles, or neighbors) individuals
    • Place of care means any physical location in which care is provided for a child including day care facilities, preschools, before and after school care programs, schools, homes, and summer camps
  • "Closure" means a closure that is ongoing, intermittent, or recurring and restricts physical access to the child's school or child care provider
 

The Bureau also clarified that an employer may request verification of the need to care for a child due to a school closure, including the name of the child being cared for, the name of the school or child care provider that is closed or unavailable, and a statement that no other family member is willing and able to care for the child during daylight hours. Note that this administrative rule mirrors the recent guidance issued by the Department of Labor with regards to school closures under the FFCRA.  Matrix is already administering OFLA sick child leave in accordance with this new rule, based on the prior temporary administrative order.

California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020 California Governor Gavin Newsom signed AB 1867 into law. While AB 1867 includes a mandate creating a small employer family leave mediation pilot program and a requirement that food sector employees wash their hands every 30 minutes, you’re probably most interested in the expansion of the Healthy Workplaces, Healthy Families Act of 2014 (California’s paid sick leave law). In its relevant part, AB 1867:

  • Expands California’s paid sick leave law to provide a COVID-19 supplemental paid sick leave for food sector workers, health care providers and emergency responders whose employer has excluded them from coverage under the federal FFCRA, and employees of private businesses who employ more than 500 employees.
  • The COVID-19 supplemental paid sick leave is intended to cover employees excluded from the FFCRA, and mirrors the FFCRA with regard to the amount of leave available (2 weeks of leave, up to a maximum of 80 hours).
  • However, unlike the FFRCA, the COVID-19 supplemental paid sick leave does not include provisions for care of others or for school closures and may only be used for the following reasons:
  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
  • The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
  • The employee is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19

These COVID-19 supplemental paid sick leave provisions are set to expire as of December 31, 2020, or upon the expiration of any federal extension of the FFCRA, whichever is later. 

Hawaii Defines Siblings and Covers Grandchildren

On September 15, 2020, Hawaii Governor David Ige signed HB 2148, expanding Hawaii’s Family Leave Act with the following changes:

  • "Sibling," which was previously undefined, is now defined to mean an individual who is a biological, adopted, or foster brother or sister; or a stepbrother or stepsister of an employee
  • The bill added “grandchild” to the list of covered relationships. FLA now provides up to four weeks of family leave during any calendar year to care for the employee's child (biological, adopted, or foster son or daughter; a stepchild; or a legal ward), spouse, reciprocal beneficiary, sibling, grandchild, or parent (defined broadly to include biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law) with a serious health condition.

Although HB 2148 was just signed, its effective date was July 1, 2020. Matrix will begin administering the Hawaii FLA in accordance with these changes immediately.

California Expands CFRA

On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands CFRA. The following changes take effect January 1, 2021:

  • Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
  • Repeals the New Parent Leave Act (currently the NPLA provides bonding leave for employees of employers with 20-49 employees)
  • Expands covered relationships from child, parent, spouse, and domestic partner to include grandparent, grandchild, and sibling
  • Removes the age limit to care for a child; leave will be available to care for a child under age 18 or an adult dependent child
  • Allows parents who are employed by the same employer to each have the full 12 weeks of bonding leave without sharing the CFRA entitlement
  • Adds as a covered leave reason qualifying military exigencies related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces

Matrix will be prepared to administer the expanded CFRA as of January 1, 2021.

Philadelphia Public Health Emergency Paid Sick Leave

On September 17, 2020, Philadelphia Mayor Jim Kenny signed an amendment to Chapter 9-4100 of the Philadelphia Code expanding the city’s existing paid sick leave law by providing a new public health emergency leave to those employees not covered by the FFCRA. Like the FFCRA, the Philadelphia ordinance provides employees with up to 80 hours of paid leave to be used at any time during a declared public health emergency for purposes that closely track FFCRA.  For a detailed discussion of the new Philadelphia ordinance, check out this article from A Better Balance.

Matrix can help!

At Matrix, we monitor state and federal legislation daily to stay on top of these changes as they happen. If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

MAKING SAUSAGE – AN UPDATE ON CONNECTICUT PAID FAMILY AND MEDICAL

Posted On September 21, 2020  

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

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

September 21, 2020

 

We have been closely following the progress – or sadly, the lack thereof – by the Connecticut Paid Family and Medical Leave Authority in the seemingly monumental task of launching the CT PFML program.  Employers of eligible employees in Connecticut will be required to begin deducting the employee contributions of not more than 0.5% effective January 1, 2021, with benefits to begin as of January 1, 2022.  We summarized other aspects of the Connecticut program in a prior blog post here.

While the Connecticut statute allows employers to adopt a private plan in lieu of participating in the state program, the CT PFML Authority has yet to develop the process by which employers can obtain approval of their private plan.  A “proposed employer application process” was published on July 21, 2020, and public comments were accepted through August 20, 2020.  According to Erin Choquette, the General Counsel of the Authority, only 5 (only 5!) entities provided public comments (Matrix was one of those entities) on its proposed process. From Ms. Choquette’s summary of the comments at a recent Board meeting, it is clear that Matrix’s (and other’s) sentiments on the proposed process raised additional questions the Board was not prepared to answer. (Side note:  Ms. Choquette’s summary spreadsheet and other documents mentioned at the Board meeting have just been made available here.)

Private plan approval process . . . or not.

At the Authority Board meeting on September 10, the Board took on the issue of private plans.  The Board’s lack of clarity was apparent over how to interpret the bare-bones statutory requirement that a proposed plan must be approved by a majority vote of the employer’s employees.  The Board has indicated it will hold a special meeting (not yet scheduled, according to the CT PFML website) to make that decision.  The Authority is considering at least 3 employee vote options:  (1) a vote on just an insurance declaration with the basic elements of the anticipated plan (but what about self-funded plans?); (2) a vote only after a full plan has been developed for employee review; and (3) two employee votes, one at each of these stages.  Egads!  This third option was recommended in the Board’s proposed employer application process mentioned above but drew strong objection from the insurance carriers.  

The Authority has yet to articulate when in the process the Authority would approve a private plan and when such approval would be effective – as of the date of the employee vote, the date the plan was filed with the Authority for approval, the date of actual Authority approval, or some other date we haven’t yet imagined.  This makes a difference, as employers must pay employee contributions over to the state for each quarter starting in January 2021 until a private plan is approved, with no chance to recoup these payments to fund the employer’s program after receiving plan approval. 

So while this administrative process has been like watching sausage made, we at Matrix are still watching and learning.  The end product is too important. 

What should employers be doing now?

Suffice it to say, we will continue to follow the Authority’s activities and report updates when available, but we would be remiss if we did not point out to our readers that an ounce of prevention is the best approach. So, at this juncture, we are recommending the following: 

  • Be prepared to make the appropriate payroll deductions starting January 1, 2021.The exact amount of the employee contribution has not been announced but cannot exceed 0.5% by statute – and we predict the Authority will set the contribution rate at that full 0.5% due to concerns about financial viability of the state program.
  • Employers are required to provide notice of CT PFML rights to employees at the time of hire and annually thereafter, but this is not a front-burner issue at this time.The notice requirement is not effective until July 1, 2022 (that’s not a typo here although maybe it is a typo in the statute – 18 months after contributions start and 6 months after benefits start).Nonetheless, in order to keep employees informed and forestall a flood of questions, we recommend employers plan to provide notice to employees about the premium contribution and some basic PFML information before paycheck withholding starts. That’s a fairly simple task and perhaps the Authority will design such a notice for employer use before the end of the year. Keeping our fingers crossed.
  • Be ready to register on the Authority’s website, www.ctpaidfamilyleave.org, which according to the Authority, should be available for this purpose sometime in November.

Matrix Can Help!

As we have done in other recent states that allow private PFML plans, Matrix is preparing a template for self-funded private plans based on the statute itself, in a format that we will be able update once regulations are drafted and finalized.  This way, for those employers interested in having Matrix administer a CT private plan, we will be ready as soon as the approval process is identified.  Our sister company, Reliance Standard Life Insurance, is also standing by, considering offering an insured product.  If you want more information contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

HOW LONG IS TOO LONG? THE CONTINUING SAGA OF LEAVE AS AN ADA ACCOMMODATION

Posted On September 17, 2020  

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

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

September 17, 2020

 

Back in July, we celebrated 30 years of the Americans with Disabilities Act of 1990 (ADA). Yet employers still struggle with how long a leave of absence is reasonable as an accommodation.  Two recent employee-friendly cases from the 9th Circuit Court of Appeals teach us that, in the 9th Circuit, at least, there may not be a limit.  Today, we’re going to take a look at these two cases, review what the Equal Employment Opportunity Commission (EEOC) and other courts have said on this issue, and address lessons that ALL employers, wherever located, can take away from the 9th Circuit decisions.

First, some basics

Title I of the ADA prohibits job discrimination on the basis of disability. Specifically, the law prohibits

“Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” [Emphasis added.]

So we have two elements here that employers must consider when an employee requests an accommodation:  Is it “reasonable,” and will it impose an undue hardship on the employer? 

The ADA defines reasonable accommodation as “making existing facilities used by employees readily accessible to and usable by individuals with disabilities;” providing examples such as job restructuring, part-time or modified work schedules, and acquisition or modification of equipment or devices, just to name a few. Out of the 3,351 words in Title I of the ADA, “leave” is not used once.  Yet the EEOC and the courts that have addressed the issue find that as a general principle, leave of absence can be a reasonable accommodation.  As we’ll see below, the devil is in the details – how long is reasonable?  In plain English, how long is too long?  Seems that one factor is, in what federal court district do you have employees?

As to undue hardship, this is defined by the ADA as significant difficulty or expense. Factors to consider include the nature and net cost of the accommodation, resources of the facility involved, overall financial resources of the employer, the type of operation or operations of the employer, and the impact of the accommodation upon the operation.  It is very hard to establish undue hardship (it takes a lot more than just some expense or some difficulty) and so if employers are left with undue hardship as the only possible reason to deny leave of absence, it’s a tough row to hoe. 

 

The 9th Circuit:  Extended leave is not per se “unreasonable”

Back to those recent 9th Circuit decisions that appear to widen the scope of leave as a reasonable accommodation. WAY back in 2019 B.C. (Before COVID), the 9th Circuit held in Ruiz v. ParadigmWorks Group, Inc., that an additional 5 weeks for a broken ankle beyond her initial 12 weeks of FMLA was a reasonable accommodation since the extension was for a finite period and the injury was the type of injury the employee can expect to recover from in the foreseeable future. Likewise, in Kachur v. NAV-LVH, LLC, the court held that a request for an additional 4 weeks of leave, after already taking 16 weeks of leave was, on its face, reasonable. Here, the employee had undergone knee surgery and had exhausted his FMLA entitlement. He had already taken an additional 4 weeks beyond his FMLA entitlement of 12 weeks, and had requested an additional 4 weeks when his employer denied the request and terminated employment. The court held that the employee’s frequent updates could be understood as estimates of his expected return to work. Thus, in each case, the court found the leave extension request was reasonable and the employer was left with that nasty undue hardship argument as its only defense to not giving the employee extra leave.  Not sure what it is about the 9th Circuit . . .

The 9th Circuit handles appeals of decisions of the federal district courts of Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and of course, California. Never mind, I think I figured out what it is about the 9th Circuit.

Good news from other courts and the EEOC (well,  sort of)

Courts other than the 9th Circuit have recognized durational limits on what constitutes a “reasonable” leave of absence.  For example, in 2017, the 7th Circuit Court of Appeals issued an employer-friendly decision in Severson v. Heartland Woodcraft, Inc.  Although the court acknowledged that a brief period of leave to deal with a medical condition could be a reasonable accommodation, it ruled that another 2-3 months after exhaustion of FMLA was not reasonable.   The court underlined that an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  If “employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.”

Similarly, in Hwang v. Kansas State University, the 10th Circuit held in 2014 that a 6-month leave of absence was not a reasonable accommodation. So in these circuits, at least, the employer may have an argument that a leave of absence or extension request of significant duration, even if for a finite time, may be unreasonable.  For more on these two cases, check out this past post.

On a related note, in 2016, the EEOC provided guidance on employer-provided leave and the ADA (a must-read document for employers struggling with this issue). The EEOC indicated that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.”  However, the EEOC supported the plaintiff in the Severson case and argued that additional leave requested was a reasonable accommodation. 

Pings for Employees

When looking at these decisions together, perhaps there is some cohesiveness.  At least, we can see a few common lessons that all employers should keep in mind.

  • There’s no “one size fits all”: The courts will look at the particulars of each scenario to make their determination with regard to whether an accommodation is reasonable. Consider every leave request, request for extension of leave, or series of requests individually, each time, for reasonableness and undue hardship.That’s not bad advice for employers even outside of the 9th Circuit.
  • Consider the nature of the impairment: Is this something that you can reasonably expect recovery from? This may cast a more “reasonable” light on the employee’s leave request.Contrast the broken ankle and knee surgery in Ruiz and Kachur with leave needed due to a condition with a less-certain prognosis for near-term recovery.
  • What’s past is past: When making its determination of reasonableness, it appears the 9th Circuit gave little weight to the leave already taken, focusing on the specific pending leave request in isolation instead of the total leave duration. The EEOC, on the other hand, in its guide on employer-provided leave and the ADA, indicated that leave already taken “pursuant to a workers' compensation program, the FMLA (or similar state or local leave law), an employer's leave program, or leave provided as a reasonable accommodation” may be considered when assessing undue hardship.
  • Be generous with your employees.If you find yourself in a gray area as to whether a requested leave or extension is of an unreasonable duration, try to work it out with the employee rather than deny on shaky grounds or rely on an undue hardship defense.The costs of litigation can quickly outweigh the cost of providing more leave.Also, consider alternatives to more leave – can the employee return to work with an on-the-job accommodation(s) such as temporary reassignment, modification of nonessential duties, or assistive equipment?But consult your employment law attorney in any specific case – the facts really matter!
  • Read between the lines: In both the 2019 and 2020 decisions, the additional leave requests were for a finite period of time and the 9th Circuit appeared to give weight to the employees’ frequent updates, indicating that the employers should have inferred return to work plans. The court appears to make a distinction between a series of specific extensions and an indefinite leave with no known or predicted return to work date.The court pointed out that it has never held that leave of any specific duration is in and of itself unreasonable (perhaps thinking of Severson and Hwang without citing them).

Matrix Can Help

Be it modifying work schedules, job restructuring, or leave as an accommodation, our team of ADA Specialists are ready to help you and your employees navigate through the ADA process. While the final decision whether to accommodate lies with you, our team manages claim intake, assesses the medical obtain, maintains records, and facilitates the interactive process, as well as any follow up that may be needed. For more information about our ADA product, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.