EMPLOYEE RIGHTS UNDER FFCRA EXPANDED AFTER NEW YORK FEDERAL COURT RULING

Posted On August 06, 2020  

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

August 06, 2020

 

As if figuring out all the coronavirus-related laws wasn’t difficult enough, we now have a court ruling that turns some of the FFCRA rules we thought we understood on their heads. On August 3 a federal court in New York struck down parts of the Department of Labor’s Families First Coronavirus Response Act (FFCRA) regulations, holding that the DOL had exceeded its authority by limiting employee rights under the act in four key aspects:

  • 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

The ruling came in a lawsuit filed by the State of New York against the U.S. Department of Labor, case no. 20-cv-3020.

But, before we dive in, I need to raise an alert about two very important and unresolved issues:

  • First, does the New York court’s ruling have nationwide impact or is it only applicable in the Southern District of New York where this court sits? The ruling is by a federal court and it does invalidate some federal regulations. But whether it is binding on the DOL and employers nationwide is, surprisingly, not clear.
  • Second, wherever it applies, is the ruling retroactive to the effective date of FFCRA (April 1, 2020) or will it apply to benefits claims only from the date of the ruling, forward?

So with those big question marks hanging overhead, let’s look at the court’s ruling in which the judge invalidated four aspects of the DOL’s regulations interpreting FFCRA:

  1. Allowing employers to deny FFCRA benefits to employees on furlough. I’ll say it up front: this is the most nonsensical part of the court’s ruling, in my humble opinion. FFCRA provides paid sick leave and expanded FMLA leave to employees who are “unable to work (or telework) due to a need for leave” because of one of the various covered reasons. The DOL’s regulations exclude employees from these benefits if their employers do not have work for them – the “work-availability” requirement, as it is referred to in the ruling.  This makes sense to me – if the employer has no work available, the employee has no work to take leave from.

    However, the court held that the statutory terms “because” or “due to” do not foreclose an interpretation entitling employees to FFCRA benefits “if the inability to work has multiple sufficient causes – some qualifying and some not.” Moreover, the court observed that the DOL’s explanation of its justification for the work-availability requirement (no work = no work to take leave from) is insufficient to support its position; imposing that requirement “is an enormously consequential determination that may considerably narrow the statute’s potential scope.” So, following the court’s ruling, if an employee is unable to work due to one of the 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.

    OK, my head is starting to hurt, but we’ve just started.

  2. As a refresher, FFCRA provides job protected and paid leaves of absence to the workers for employers with fewer than 500 employees –

    • Up to 80 hours of paid sick leave for 6 COVID-related qualifying reasons (employee’s own quarantine due to a governmental order or provider’s recommendation, caring for a family member in quarantine, COVID symptoms plus seeking a diagnosis, school/day care closures, and other similar situations as identified later) and
    • Up to 12 weeks of job protected leave due to the closer of a worker’s child’s school or place of care (2 weeks unpaid but possibly covered by the paid sick leave, and 10 weeks at partial pay).

    You can read our prior blog post covering the details of FFCRA here, our post about the DOL supporting regulations here, and lots of other FFCRA and COVID-19 posts by putting those terms in the blog search box.

  3. Providing a very broad definition of “health care provider” to allow employers to exempt workers from coverage. The FMLA, which supplies the relevant statutory definition for both provisions of the FFCRA at issue, defines a “health care provider” as: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”  The regular FMLA regulations expand the definition pursuant to (B) to include many additional professionals such as podiatrists, dentists, clinical psychologists, optometrists, nurse practitioners, and physician’s assistants. 

    However, the DOL supplied an even more expansive definition of “health care provider” for the FFCRA under the authority of section (B). According to the court, the DOL’s definition goes much too far as it focuses on the employer’s business rather than the employee’s role and allows 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. This could include individuals such as “an English professor, librarian, or cafeteria manager at a university with a medical school” or, as was posed to me during a recent COVID webinar, a hospital’s grounds crew. Health care providers?  Methinks not (and neither did the court). 

    So, for the time being, it seems we are left with just “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery” who may be exempted by an employer from entitlement to FFCRA benefits. Whether the additional categories of health care providers under the regular FMLA regulations also applies to the FFCRA exemption is very much in doubt.  Even so, that would leave out a lot of critical roles such as nurses and EMTs, just to name a couple.

  4. Requiring employees to obtain employer consent to take intermittent FFCRA leave.  The court recognized 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. But 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, there is no justification for allowing this type of intermittent leave only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave).

    As an aside, this resolves – at least in New York – the as-yet unanswered question of whether taking leave only on at-home days when a child’s school is reopening under a hybrid remote/classroom learning arrangement constitutes intermittent leave requiring employer consent. Employers, this one is pretty easy – just allow intermittent time here if the employee asks.

  5. Requiring employers to provide documentation prior to taking FFCRA leave.  The FFCRA does not address what, if any, documentation can be required of an employee to support a leave request. Rather, it just requires the employee to give such advance notice as “as is practicable” for foreseeable expanded FMLA leave and, with respect to paid sick leave, notice after the first missed workday in accordance with the employer’s usual notice procedures.

On the other hand, the FFCRA regulations have pretty detailed guidance on the documentation an employer can require to support an employee’s request for leave, and the regs state that such documentation must be submitted to the employer “prior to taking” FFCRA leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable.

This leaves employers (at least those in the Southern District of New York!) in limbo. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave. Indeed, 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? You get the idea.

What will happen next? Good question! To be honest, no one is sure when or how we will get clarity on the two big questions I posed above and lots of others.  Just do an internet search and you’ll find scads of law firm blog posts and newsletters with no concrete answers.  Possible next steps?  The DOL may appeal the court’s ruling and request a stay during the appeal.  It may choose to revise the FFCRA regulations to conform to the ruling (temporarily or for the duration of FFCRA). Additional lawsuits may be filed in other federal courts around the country. And on and on. . . . I would hope the DOL will realize the very difficult positon in which this opinion places covered employers, and issue some sort of guidance very soon.

Employers also need to be aware of the possible impact of this decision on similar state and municipal COVID-related laws.  There are some that incorporate the FFCRA to some extent and the impact of the New York ruling on these state and municipal laws is not clear.

What is Matrix doing? Another good question! We’ll be watching all of our sources for further information, obviously, and hoping for a definitive development.  In the meantime we will work with our clients covered by FFCRA to address the issues raised by the court ruling and administer FFCRA in accordance with collaborative consultation.  If you have questions, please contact your Reliance Standard or Matrix account manager.

HAPPY 30TH BIRTHDAY ADA! OH HOW YOU'VE CHANGED OVER THE YEARS!

Posted On July 24, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

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

July 24, 2020

 

The Americans with Disabilities Act was signed into law by President George H. W. Bush on July 26, 1990.  Here we’ll take a look back on how the ADA has evolved from its passage in 1990 to the present day.

The pace of developments in the ADA and leave of absence world continues at such speed that sometimes our blog posts trip over each other in their haste to get published! To ensure you have seen our most recent information, please scroll down to catch the latest posts – including ones on the new FMLA forms and the Massachusetts PFML regulations! Hot stuff!

 

Radar Guy BirthdayIn the 1990s and early 2000s, court interpretation, particularly at the US Supreme Court, led to a narrowing of an employer’s obligations to provide reasonable accommodation(s).  Specifically, in 1999, the U.S. Supreme Court decided the case of Sutton v. United Airlines, and held that the plaintiffs, who were severely myopic and could not meet the airline’s standard for vision requirements, were not disabled because their condition could be remedied through mitigating measures like prescription eyeglasses or contact lenses.  In 2002, the Court further narrowed the pool of individuals who had qualifying “disabilities” in the matter of Toyota Manufacturing of Kentucky v. Williams.  In Williams, the court determined that the term “disability” should be strictly interpreted and required a showing that the impairment severely restricted the individual from doing activities that are of central importance to most people’s daily lives.  I can tell you firsthand that once the Williams case was decided, employers and their attorneys were focused on whether the employee was “disabled enough” before engaging in any interactive discussion(s) to identify reasonable accommodation(s) to help that individual perform their essential job functions.

The ADA Amendments Act of 2008 (ADAAA) was passed and became effective January 1, 2009 as a direct response to Sutton and Williams.  As stated in the Appendix to the ADA regulations, updated following the ADAAA:

“After the Court's decisions in Sutton that impairments must be considered in their mitigated state and in Toyota that there must be a demanding standard for qualifying as disabled, lower courts more often found that an individual's impairment did not constitute a disability. As a result, in too many cases, courts would never reach the question whether discrimination had occurred.”

 

Consequently, the ADA was amended to, among other things, eliminate the notion that the question of whether someone was disabled is determined by considering mitigating measures.  Instead, the person’s condition is now to be evaluated without the effect of such measures.  Similarly, the ADA was amended to clarify that the definition of disability is to be construed in favor of broad coverage, rejecting the Williams doctrine that a strict standard should be applied to whether an impairment “substantially limits” one or more major life activities.  In general, the expressed intention of the amendment was to require employers to focus more on what they could do to assist disabled employees (now a much larger pool of individuals), rather than whether the employee demonstrated he or she was sufficiently disabled to warrant the employer’s assistance.

At Matrix we have been partnering with clients to help them achieve compliance with the ADA since 2014.  Although the requirement that an employee must be “disabled” was not thrown out completely by the ADAAA, the focus is now on how an employer can help an employee with a physical or mental impairment perform his or her job.  In the last six years, we have seen how well-intentioned, diligent employers can ask the right questions to identify accommodations that succeed for both the employee and the employer.  We have helped clients grant reasonable leaves of absence that allow the employee the time he or she needs to recover or seek treatment to enable a return to work and the gamut of accommodations that enable an employee to remain in the workplace.  Over even this six-year time frame, the nature of requests has changed with the times.

Want to learn more about how our ADA solutions can assist you and keep you compliant?  Click here, and let’s all wish the Americans with Disabilities Act a Happy 30th Birthday!

MASSACHUSETTS FINALIZES PFML REGULATIONS

Posted On July 23, 2020  

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

July 23, 2020

 

The Massachusetts Department of Family and Medical Leave (DFML) has released its much-anticipated revised, final regulations for its Paid Family and Medical Leave program.  Employees will start receiving paid leave benefits on January 1, 2021. 

Huh?  Much-anticipated regulations?  Well, that speaks volumes about my world – welcome to it!  The regulations are actually critical to understanding the MA PFML law and how Matrix as a Third Party Administrator (TPA) and Reliance Standard as a PFML insurer will administer private plans in Massachusetts.  But don’t get too excited, not all questions are answered.  The final regulations can be downloaded here.

If you need to catch up, you can review our various prior blog posts on Massachusetts PFML by searching for “Massachusetts” in the search box. There have been many updates over the past couple of years. A key post is this summary of the law itself from June 2018. The funding contribution rate and start date for contributions changed (now 0.75% and October 1, 2019) but the basics are the same as to leave reasons, durations, etc.

 

So what’s up?  Here is a rundown of some of the key sections of the regulations, including both prior and new provisions.  Remember, the statute and the regulations talk in terms of “covered individuals” and “covered entities” but for convenience, we are using “employee” and “employer” in this post.

Private plans.  §2.07.  As with the original regulations, the new version has a lot of details about the private plan exemption from participation in the state program.  Not a lot changed. 

One interesting addition is a requirement for a private plan to offer an internal appeals process before the employee can appeal a denial to the DFML.  The only real detail in the regulations is that the process must allow the employee at least 10 calendar days from the receipt of the notice of denial to submit that internal appeal. 

Both Matrix and Reliance Standard offer private plans for our clients who prefer to have their employees’ absences administered through a TPA (self-funded plan) or carrier (insured plan) rather than let the state do it.  We are ready to provide assistance to our employer clients throughout the private plan application process, implementation, and administration.  Contact your account manager for details. 

Serious health condition.  The definition of serious health condition has two significant changes: 

  • Telehealth permitted.§2.02(2).For continuing absence plus treatment, the requirement for treatment by a health care provider means an in-person visit or a “telehealth” visit.A significant development, probably spurred on by the current pandemic.

 

  • Substance abuse treatment.§2.08(10).The new regulations state that substance abuse may be a serious health condition and allow coverage for substance abuse treatment but not for absences resulting from the employee’s use of the substance.

Employee application.  §2.08(4).  The regulations have robust provisions regarding the documentation an employee must submit to support a leave request. The employee’s application must include, among other things:

  • Whether the request is for medical or family leave
  • The start date and expected duration of the leave
  • Whether the leave will be intermittent or continuous
  • Evidence that the required notice of leave was given to the employer (30 days in advance or as soon as practicable – §2.08(2))
  • Any denied, granted, or pending request for leave for a qualifying reasons from the employer during the last 12 months
  • An attestation of family relationship for family leave benefits
  • A certification appropriate to the nature of the leave (e.g., from a health care provider for medical or family care leave).The required contents of each certification are fully described in §2.08(5) of the regulations

Delay in application.  §2.08(4)(h) and (5)(a).  Echoing a provision in the statute, the regulations provide that if an employee fails to submit or complete an application within 90 days of the start of the leave, the employee may receive reduced benefits.  This is problematic because it could leave an employer in limbo for over 90 days (add in processing time!) as to whether an employee’s absence is approved by the DFML and therefore job protected.  And there is no guidance on how much of a reduction the employee may receive, or if benefits could be denied entirely due to the late filing.  And of course, there is a good cause exception to the 90-day limit.

Information provided to employers.  §2.08(2)(f).  In a marked and welcome change from another state that recently implemented paid family and medical leave (guess who?) the regulations require the DFML to provide employers with significant information within 5 business days after an employee applies for benefits under the state plan:

  • The type of leave (medical or family)
  • Expected duration
  • Whether request is for continuous or intermittent leave
  • A copy of the employee’s certification (Woo hoo!This will be really helpful to employers.)
  • “Any other information relevant to the application”

Employer response.  §2.08(6).  Once notified of an employee’s application for benefits, the employer must respond to the DFML within 10 business days (up from 5 in an earlier draft) with information including:

  • The employee’s wages, position, and hours worked
  • Prior requests for or approval of leave for a qualifying reason and the amount of paid leave taken for a qualifying reasons during the employee’s benefit year
  • The employee’s paid leave policies
  • Whether the employee has applied for concurrent FMLA or other leave and whether the employer has approved the application
  • Whether the employee will be receiving any other wage replacement benefits
  • Any other information or records relevant to the claim – including any evidence that the claim may be fraudulent (prior denied vacation, anyone?)

Time frame for processing claims.  §2.08(7).  The DFML (and presumably private plans also) has 14 calendar days from the filing of an application to approve, deny, or ask for more information from the employee or employer.  After approval, the DFML has 14 calendar days to make the initial payment of benefits (unless the leave hasn’t started yet).

Employer/designee ability to filed claim for employee.  §2.08(9).  In what we perceive as good news, the regulations allow an employee or its designee (read: TPA or insurance carrier) to file a PFML claim with the DFML on behalf of an employee.  The employer or designee must be approved by the DFML to do so.  There is very little detail on this yet and we will be working with the DFML to understand and develop the process and requirements.  In our view, this may allow Matrix to be the one-stop-shop for Massachusetts employees filing claims even if we are not administering a private plan for the employer.  More to come, as we look into this excellent possibility for greater services for our Massachusetts clients.

Approval notice to employer.  §2.09.   The regulations recite the factors the DFML can consider in approving or denying a claim, which basically mirrors the information required in the employee application (see above).  Once a claim is approved – and this is really big – notice goes to both the employee and the employer that includes:

  • The reason for the approved leave
  • The duration of approved leave
  • For intermittent leave, the frequency and duration of leave and benefits
  • Expiration of leave benefits
  • Weekly benefit amount – enabling Matrix or RSL to take the appropriate offset against a concurrent STD policy, if applicable.

Fitness for duty after leave.  §2.11.  The regulations allow employers to obtain a general or specific fitness-for-duty note from the employee’s provider.  The process and employer rights are very similar to those under the FMLA, so employers who require FFD notes will be familiar with the process and limitations.  See 29 C.F.R. § 825.312.

Multiple employers.  §2.12(4).  In a completely new provision, the regulations now specify that an employee with multiple employers is not required to take PFML from each employer during a single period of leave.  Thus, an employee could take leave from his day job to care for his ailing mother but still work his night or weekend job.   Or, an employee with a shoulder injury could choose to take leave from her physically demanding job but not from her second job as a bookkeeper.

PFML interaction with other leave benefits.  MA PFML will run concurrently with several other leave types, both paid and unpaid:

  • Other state and federal leaves.§2.01(3).MA PFL runs concurrently with leave taken under other applicable state and federal leave laws including the Massachusetts Parental Leave Act and the federal Family and Medical Leave Act, when the leave is for a qualifying reason under eitherof those acts.It appears that Massachusetts Paid Sick Time will also run concurrently with PFML to the extent leave reasons converge, as the PST regulations specifically provide it “will run concurrently with time off provided by . . . other leave laws that may allow employees to make concurrent use of leave for the same purposes.”940 CMR §33.01(3).
  • Other employer paid leave policies.§2.12(8).Employees who use accrued paid leave or leave through an extended illness leave bank program provided by the employer will not receive PFML paid leave benefits but the time used will run concurrently with available leave under PFML.Employers must give employee notice of this concurrency.

“Extended illness leave bank” is defined as a voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under the PFML program.  §2.02.

Employer reimbursement.  §2.12(9).  Employers using the state plan can be reimbursed by the DFML Trust Fund for any benefits they pay for a PFML-covered leave from a temporary disable policy, a paid family or medical leave policy, or an extended illness leave bank.  To be reimbursable, the payments must be from a program separate from and in addition to a typical accrued paid time off policy.

Intermittent/reduced schedule leave.  §2.13.  Intermittent leave or reduced schedule leave is permitted as follows:

  • Bonding – with employee and employer agreement only
  • Care for a family member or injured service member – as medically necessary
  • Military exigencies – as needed for the reason for the leave
  • Employee’s own serious health condition – as medically necessary for the condition and for treatments.The employer and employee have an obligation to attempt to schedule such leave for times that meet the employee’s needs without unduly disrupting the employer’s operations.

Leave must be allowed in increments consistent with the employer’s policy for accounting for other types of leave, but the DFML will only pay in increments of 15 minutes or greater, and will not pay until the employee has accumulated 8 hours of leave time unless more than 30 days has passed since the initial taking of such leave.  §2.02.

Job protection.  §2.02, §2.16.  The MA PFML law and regulations provide several aspects of job protection for employees:

  • Reinstatement.An employee who has taken PFML leave (including leave under other policies that runs concurrently with PFML) is entitled to reinstatement to the employee’s same position prior to leave or to an equivalent position with the same status, pay, employment benefits, length-of-service credit, and seniority as the employee’s prior position.An employer can still terminate an employee who has taken leave pursuant to a legitimate layoff/reduction in force or for cause – but get advice of counsel first in both circumstances!
  • Retaliation.An employer cannot threaten or retaliate against an employee by discharging, firing, suspending, expelling disciplining, threatening, or otherwise discriminating against an employee for (1) exercising any right the employee is entitled to under the PFML law or (2) filing a complaint or participating in any way in a proceeding under or related to the PFML law.

    However, an employer can discipline an employee who has exercised leave rights for (1) failing to comply with the employer’s reasonable attendance and call in procedures; (2) failing to work with the employer to take intermittent leave at times that do not unduly disrupt the employer’s operations; (3) failing to take intermittent or reduced leave during the time the employer and employee agreed; and (4) failing to return to work following expiration of approved leave.

  • Presumption of retaliation.Any negative change in an employee’s terms or conditions of employment within 6 months after taking leave or participated in proceeding related to the PFML law is presumed to be retaliation against the employee that the employer can overcome only by showing the employer had sufficient independent justification for taking the negative action and would have taken the action even if the employee had not taken leave or participated in a proceeding.A “negative change” does not include trivial or subjectively perceived inconveniences that affect de minimas aspects of the employee’s work.This means employers need to train supervisors on employee rights under MA PFML before leaves start on January 1, 2021!

FRIDAY SURPRISE! DOL ISSUES NEW CERTIFICATION FORMS AND SEEKS COMMENTS ON THE REGULATIONS

Posted On July 17, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

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

July 17, 2020

 

Really?  Couldn’t they have waited until Monday?  We knew these were coming and I guess the folks at the U.S. Department of Labor wanted to free up THEIR weekend.  Anyway, whining aside, this morning the DOL issued two important items:  New FMLA forms and a request for public input on the FMLA regulations and processes in general.

New FMLA Forms

Last year the DOL shared some proposed new FMLA forms and solicited comments from the public.  In a previous blog post we described the initial set of proposed forms. During the request for comment period on the proposed forms, Matrix submitted suggestions and input to the DOL, some of which appears to have been incorporated into those new forms. Now the final – but OPTIONAL – new forms have been released, available for your reading pleasure here. The new forms can be used immediately and are valid through June 30, 2023. 

Here is a quick summary of changes reflected in the new DOL Certification of Healthcare Provider for the Employee’s Serious Health Condition:

  • Check boxes for the employee’s healthcare provider to use to identify which of the five categories of “serious health condition” as well as an option for the provider to check “none of the above,” to indicate the employee does not have a condition that meets this hurdle to qualify for FMLA leave.At Matrix we revamped our SHC certification forms several years ago, adopting the “check the box” style now embodied in the new DOL forms.We also include a “none of the above” option (and made that recommendation to the DOL).This choice is used periodically by providers, validating the need for that option.
  • Additional direction to the healthcare provider, including an explanation that medical facts, including diagnosis, are permissible, absent state or local law prohibition, can be submitted on the form.
  • A better, more structured way for the healthcare provider to supply his or her medical opinion and best estimate regarding the amount of time for which the employee may need to be absent from work for planned medical treatments, continuous, or intermittent leave.

The new DOL certification for a family member’s serious health condition includes a number of what appear to be very helpful improvements, including:

  • Specific instructions to the employee requesting leave and admonitions about his or her responsibility to return the certification to the employer to support the request.
  • Definitions of the family relationships for whom an employee can take leave, including that of “spouse” and in loco parentis relationships.
  • A requirement that the employee describe the type and amount of care they will be providing to the family member, as well as when they will be able to work a reduced work schedule, if applicable.These same questions are asked of the healthcare provider, presenting some risk that the provider will parrot what the employee is saying as far as the amount and type of care he or she will render.
  • Similar to the form for the employee’s own serious health condition, the provider is given check boxes that more easily describe the definitions and the opportunity to opine that none apply.

What is Matrix doing?  The Matrix customized certification forms we currently use are still fully compliant.  Our examiners receive much more complete information from providers using the Matrix forms compared to when we used the prior DOL forms, resulting in fewer incomplete or insufficient certifications, less follow-up, and faster determinations.  Nonetheless, we will review the new forms and seek input from stakeholders as to whether we should adopt the new DOL forms, continue use of our current forms, or make revisions to our current forms. 

The DOL also revamped all the other FMLA forms as well as the serious health condition certification forms.  At Matrix our letters to employees who have filed an FMLA request contain the information required by the regulations, such as eligibility notice and designation of leave approval or denial, rather than using the forms.  Although the new DOL forms do not change any of the regulatory requirements, we will review our letters in light of the new forms to see if any changes are appropriate.

We do use other DOL certification forms, such as for military exigencies and caring for a seriously ill or injured servicemember or veteran.  Although we still need to review the new forms, Matrix is likely to adopt the new certification forms for these leave types.

Request for Information regarding FMLA Regulations

The other big news – and it’s about time! – is a Request for Information from the DOL regarding the FMLA regulations.  While the DOL invites any and all comments, they are specifically soliciting input on certain areas:

  • Challenges with the definition and application of “serious health condition,” specifically with regard to chronic conditions.
  • Challenges with respect to intermittent leave usage (my, we could go on for pages on this one!)
  • Issues relating to employee notice of need for FMLA leave, including timing and content ofnotice and following employer notice procedures
  • Challenges with regard to the certification process.Perhaps the new forms will assist on this somewhat, but what about difficulties in getting timely, complete, sufficient, and clear certifications from providers?
  • Is any additional information or clarification needed as to the 7 opinion letters issued on FMLA topics by the DOL since they resumed in 2018?Opinion letters are available on the DOL FMLA home page, at the “Interpretive Guidance” link.
  • Any other specific challenges that employers experience in administering FMLA leave.We already have a laundry list of suggestions here, including recertifications, 2nd/3rd opinions, variable schedules . . .

The public comment period is open for 60 days, through September 15, 2020.  You can be sure that Matrix will chime in.  If YOU have any questions, comments, or pain points, let us know and we will include them in our submission.

In the meantime, stay close to your favorite web-enabled device.  We’re anticipating a busy week next week (including the next webinar in our Summer Compliance Series) and look forward to bringing you all of the new information as soon as it’s available. 

ADA PRACTICES & PITFALLS IN TODAY’S WORKPLACE – THE SEQUEL!

Posted On July 16, 2020  

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

July 16, 2020

 

There are precious few truths left in this world anymore.  Two that I think we can all agree on are;

 

  1. The book is ALWAYS better than the movie and;
  2. The original is ALWAYS better than the sequel.

 

Well, we’re going to challenge on these two immutable truths this coming Thursday (July 23rd), as we present ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next – Part II 

 

We are proud to announce the next event in our Summer Compliance Series featuring Matrix VP of Compliance, Marti Cardi, and Gail Cohen Senior Director, Employment Law and Compliance.

 

The webinar is the second of a two part series entitled, ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next?,  that spotlights the Americans with Disabilities Act. We received several questions during our first session, so we’ve decided to answer many of these upfront.  We’ll then round out the session with other common accommodation requests that employers are dealing with, such as:

 

  • Hearing Impairment
  • Medical Marijuana
  • Behavioral Health and Emotional Support Animals
  • Obesity

 

This is a free informational webinar, moderated by National Absence Practice Leader, Tim Suchecki and will be held on Thursday July 23rdth at 2:00 pm EST.  

 

Click here to register for this event and submit questions in advance. Feel free to forward to others in your organization who might be interested. (Note: Once you see a window with your name, you have been successfully registered and can close the window. An email will be sent before the event as confirmation and reminder.)

 

If you were unable to attend ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next? – Part 1 or would like a quick reference, Click to view a recording of the webinar.