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, JD - Law Clerk, 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. - Director, Employment Law And Compliance

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, JD - Law Clerk, 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.

DOL FACES OFF WITH THE NEW YORK FEDERAL COURT – AND WE HAVE MORE FFCRA GUIDANCE

Posted On September 14, 2020  

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

September 14, 2020

 

Those fun folks at the U.S. Department of Labor just LOVE releasing important information on a Friday!  I think it displays a cruel sense of humor – they get to relax and enjoy the waning days of summer over the weekend, while the rest of us in the absence management industry get to parse though the new 53-page proposed temporary regulations released by the DOL on September 11. 

 

And on top of that, comments for proposed revisions to the FMLA regulations are due Tuesday September 15. Sure we could have gotten those done earlier if we had known . . . but there have been a few other things going. Can you say “paid family and medical leave”? The ADA and COVID? State COVID laws? California with about a billion pending leave of absence bills approaching governor’s signature deadline? We either have or will report on each of these . . . just watch this space! While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at ping@matrixcos.com, and our colleagues will make it so!

 

So what happened?  Well, you will remember (I’m sure) the New York federal court’s ruling last month that struck several provisions of the DOL’s temporary regulations regarding the Families First Coronavirus Response Act: 

  • The availability of FFCRA benefits only if the employer has current work for the employee
  • The regulations’ broad definition of “health care provider” for the purposes of FFCRA coverage exemption
  • Requiring employer consent to intermittent leave
  • Requiring documentation prior to taking FFCRA leave

You can read about it in detail on our blog here. The DOL has now come out with revised regulations that will be effective September 16, 2020, barring any further action.

Here’s the gist of the issues and the DOL’s response.  Most of this comes from the DOL’s preamble – explanatory material that precedes the actual revised regulations.  Let me tell you, it is fascinating reading:

  1. Are FFCRA benefits available to employees only if the employer has current work for the employee?

    The court:  The New York court ruled that the DOL overreached when it took the position that FFCRA benefits were available only if the employer has current work for the employee.  The court stated that the DOL had not given sufficient justification for this interpretation and held that if an employee is unable to work due to one of the FFCRA qualifying reasons, that employee is entitled to FFCRA benefits even if the employee is also unable to work because there is no work to be had. 

    The DOL’s response, short answer:  New York court, go fly a kite.  We stand our ground and continue to guide that an employee is not entitled to FFCRA leave if the employer has no current work for the employee.  

    The details:  In the new proposed temporary FFCRA regulations (yes, all those adjectives apply!) the DOL has struck back, defending and maintaining its original position but with greater detail.  As explained by the DOL, the FFCRA’s provisions that an employer must provide FFCRA leave to an employee if the employee is unable to work “because” of or “due to” a qualifying reason for leave under FFCRA establishes a “but-for” causation requirement – the employee would not be able to work but for one of the 6 reasons for leave provided in the statute.  The DOL argues that its continued application of the work-availability requirement is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when he or she would otherwise have been working. 

    The DOL actually provides even more justification for the work-availability rule in the preamble to the new regulations, so read away with your cocktail in hand if you like that kind of stuff (I do!).

    And on a side note, the New York court had criticized the DOL for applying the “work-availability” rule only to 3 of the 6 FFCRA leave reasons.  The DOL agrees that there is no reason for differentiation and now takes the position that indeed, the rule applies to all 6 leave reasons.

    Matrix guidance:  This one’s easy.  No need to provide FFCRA leave and benefits to an employee not currently working whether due to a COVID furlough, a pre-planned vacation or sabbatical, or other reasons not caused by one of the 6 leave reasons specified in the FFCRA.  But, remember the anti-retaliation provisions of FFCRA:  Employers may not make work “unavailable” in an effort to avoid FFCRA obligations.  Altering an employee’s schedule in an adverse manner because that employee requests or takes FFCRA leave may be impermissible retaliation.

  2. Was the temporary regulations’ initial definition of “health care provider” too broad for the purposes of FFCRA coverage exemption?

    The court:  FFCRA allows employers of health care providers to exempt such employees from FFCRA entitlements.  The DOL supplied an expansive definition of “health care provider” for this purpose. The court struck the DOL’s definition because it focused on the employer’s business rather than the employee’s role and allowed employers to exempt anyone “employed at” a doctor’s office, hospital, medical school, or a number of other facilities “where medical services are provided,” as well as such facilities’ contractors.

    The DOL’s response, short answer:  The DOL acceded to this part of the ruling and has revised its definition of “health care provider” for purposes of the exemption to focus on the skills, role, duties, or capabilities of the employee rather than the identity of the employer.

    The details: In 29 C.F.R. § 826.30(c)(1) the DOL has adopted a revised definition of “health care provider” for purposes of the employer’s optional exclusion of employees who are health care providers from FFCRA leave.  As explained in the new regulations’ preamble, the revised regulations now define a “health care provider” to include physicians and others who make medical diagnoses.  The revised regulations also identify “additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers.  . . . [An employee is a health care provider if he or she is ‘capable of providing health care services.’  The definition then further limits the universe of relevant ‘health care services’ that the employee must be capable of providing to qualify as a ‘health care provider’—i.e., the duties or role of the employee.  Specifically, a health care provider must be ‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.’”

    Matrix guidance:  This really seems reasonable.  The DOL’s original definition would have allowed employers to exempt persons that had nothing to do with the actual application of health care services.  Going forward, employer of any type of health care provider should use discretion in applying the FFCRA exemption only to those who fit the new DOL definition.  Although technically the new regulation is only applicable as of September 16, overbroad application of the exemption after the New York court’s ruling is risky, so we recommend following the new DOL rule immediately.  And remember, you can always be more generous and provide FFCRA benefits to employees you might technically be able to exempt.

  3. Is employer consent to intermittent leave required?

    The court:  Although there may be a legitimate need to limit an employee’s access to the workplace if the employee poses an infection risk, such as when the employee is quarantined; exhibits symptoms and is seeking a diagnosis; or is caring for a quarantined family member, there is no such risk for leave necessitated by an employee’s child’s school closure or unavailability of day care or if the employee is working remotely. As a result, the court held there is no justification for allowing this type of intermittent leave, or intermittent leave from at-home work, only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave, although it is only available for leave due to the employee’s or family member’s serious health condition when medically necessary).

    The DOL’s response, short answer:  The DOL is again standing its ground on this one.  Employer consent is required for intermittent leave for FFCRA reasons that don’t pose a risk of spreading infection if the employee returns to work and for intermittent telework.  But with creative logic, employer consent is NOT required when occasional leave is needed due to a school’s hybrid return to school schedule, with some days of remote learning and alternate days of in-person attendance.

    The details:  Under the regular FMLA, intermittent leave is available without employer consent only when medically necessary for leave due to the employee’s or family member’s serious health condition and for leave due to qualifying military exigencies (which by their nature are likely to occur sporadically).  Long-standing FMLA regulations balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.  See 29 C.F.R. § 825.120(b), 121(b). 

    The DOL explains that the reasons for allowing intermittent leave without employer consent in the above two situations (medical necessity and military exigency) are not applicable to taking leave intermittently under the FFCRA for the only non-medical reason:  school or day care closure.   Long-standing FMLA regulations balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.  See 29 C.F.R. § 825.120(b), 121(b).  The same should apply to intermittent leave under FFCRA for school closures. 

    Further, since employer permission is a precondition under the FFCRA for telework, the DOL maintains it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.

    What about school closures?  In good news for employers, however, the DOL takes the position that employer approval is not required for employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.  In such cases the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week.  This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.

    Matrix guidance:  Although based on further defined reasoning, this supports the interpretation of the issue we offered in a previous blog post that employer consent is not needed when the school itself is only open intermittently.  However, hybrid school schedules will almost certainly be regular and predictable, and announced well in advance.  Under the FFCRA, employers can require employees to provide as much advance notice as is practicable of leave needed for school closures.

  4. Can an employer require documentation prior to an employee taking FFCRA leave?

The court:  The original FFCRA regulations stated that documentation to support an FFCRA leave must be submitted to the employer “prior to taking” the leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave.

The DOL’s response, short answer:  The temporary regulations have been revised to comply with the court’s ruling. 

The details:  29 C.F.R. § 826.90(a) now provides that an employee must provide notice of leave for FFCRA paid sick leave as soon as is practicable after the first day of absence, and as soon as practicable for leave under the expanded FMLA for school closures.  At a minimum this will include the employee’s name; the date(s) for which leave is requested; the qualifying reason for the leave; and an oral or written statement that the employee is unable to work because of the qualified reason for leave.  The employer may also require the employee to furnish the additional information set forth in 29 C.F.R. § 826.100(b)-(f) at the same time (generally, more details needed to support the tax credit).

Matrix guidance:  Obviously, employers will want to follow the new regulations regarding employee notice.  However, this portion of the new regulations still leaves some unanswered questions which we posed here when the New York court first issued its decision.  In order to get the federal tax credit for benefits paid under the FFCRA, the employer MUST get detailed documentation from the employee.  So: If the employee takes leave and never provides the required documentation, can the employer go back and deny the leave retroactively? If so, how would the employer recoup wages paid?  (Beware of state and federal laws regarding withholding from employee paychecks!) Or, how would the employer qualify for the tax credit?

In conclusion . . . Hello . . . Are you still with me? 

In addition to the new temporary regs, the DOL issued 3 new FFCRA Q&As addressing the effect and scope of the New York court’s ruling and answering one of the questions about the scope of the court’s ruling – was it applicable only to the parties to the case, only in the Southern District of New York, or throughout the whole country?  In Questions 101 and 102, the DOL explains that the effect of the court’s ruling is nationwide and the new regulations are applicable nationwide.  So there.  The revised regs are, of course, open to another lawsuit challenging them but we find that unlikely.  The DOL’s explanations in the preamble thoroughly address the four provisions stricken by the New York federal court and either adopt the court’s findings in new regs or exhaustively and better explain its reasons for keeping two of the challenged provisions.  Also, remember that the FFCRA is set to expire on December 31, 2020, leaving little time in which to mount a court challenge and get a ruling.  Unless FFCRA is extended  . . .