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
  • Bonding (birth, adoption, foster care)
  • Organ or bone marrow donation
  • Military exigencies
  • Matters related to being a victim of family
    violence

 

§§18(a)(2)(A)-(F)

 

§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. - Director, Employment Law And Compliance

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, 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.