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

Posted On April 12, 2021  

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

April 12, 2021

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

SO WILL THESE BILLS PASS?

 


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

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

MATRIX CAN HELP!

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

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

Posted On March 29, 2021  

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

March 29, 2021

 

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

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

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

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

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

 

Thursday, April 1, 2021

2:00 pm Eastern/11:00 am Pacific

Click here to register!

 

I look forward to seeing you – virtually – there!

 

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

Posted On March 25, 2021  

by Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

& Gail Cohen, Esq. - Senior Director, Employment Law And Compliance

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, JD - Law Clerk, 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.