STAY IN THE KNOW WITH OUR NEW QUARTERLY COMPLIANCE WEBINARS!

Posted On July 19, 2021  

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

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

July 19, 2021

 

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

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

 

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

 

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

 

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

Posted On July 06, 2021  

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

July 06, 2021

 

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

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

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

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

Covered Employers and Employees

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

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

Individual employees can opt in to the Plan if:

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

Benefits

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

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

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

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

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

Funding

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

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

Tax Credit

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

Employee Eligibility

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

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

Job Protection

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

Effective Dates

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

What We Don’t Know

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

Matrix Can Help!

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

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

Posted On June 02, 2021  

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

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

June 02, 2021

 

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

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

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

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

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

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

Pings for Employers:

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

Matrix Can Help!

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


 [MC1]

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

Posted On May 10, 2021  

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

May 10, 2021

 

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

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

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

 

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

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

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

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

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

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

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

     

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

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

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

Matrix can help!

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

 

PAID FAMILY & MEDICAL LEAVE UPDATES: A FREE WEBINAR

Posted On May 03, 2021  

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

May 03, 2021

 

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

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

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