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

Posted On March 25, 2021  

by Armando Rodriguez, JD - Compliance Attorney, Compliance And Legal Department

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

March 25, 2021

 

Well, it’s déjà vu all over again!  On March 19, California Governor Gavin Newsom signed SB95, providing for a new bank of COVID-19 Supplemental Paid Sick Leave (SPSL) and giving employers a whopping 10 days to understand its terms and be ready to offer it to employees.  The “effective date” is March 29 but it applies retroactively to January 1, 2021. 

 

 

But don’t fret! Here is a handy chart that tells you what you need to know:

Covered Employers

More than 25 employees total (not just CA employees)

Eligible Employees

  • Any employee of a Covered Employer
  • No hours worked or length of service requirement

Purpose(s) for which Leave May be Taken

A California employee can take CA SPSL for any of the following reasons related to COVID-19:

  • When subject to a quarantine or isolation period as defined by federal, state or local guidelines.
  • Advised by a healthcare provider to self-quarantine due to concerns
  • To attend an appointment to receive a vaccine
  • While experiencing symptoms related to a vaccine that prevent him or her from being able to work or telework
  • While experiencing symptoms and seeking a medical diagnosis
  • While caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a healthcare provider due to concerns
  • While caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons

Leave Entitlement

  • An employer cannot require employees to use other paid or unpaid leave (such as PTO, vacation, other paid sick leave) prior to or in lieu of using SPSL
  • Full-time employees who worked or were scheduled to work 40 hours in the two weeks prior to the leave are eligible for 80 hours.
  • Part-time employees who work a normal weekly schedule are entitled to the number of hours the employee is normally scheduled to work over a two week period.
  • If a part-time employee does not work a regular schedule, then the employee is entitled to 14 times the average hours the employee worked in a day over the last 6 months.
  • Special rules apply for part-time employees who have worked for the employer for a period of 14 days to 6 months, or for fewer than 14 days

Benefit Amounts

  • Employer pay obligations under CA SPSL are capped at $511 per day and $5110 in total
  • Exempt employees are paid at their normal rate of compensation, subject to the above caps
  • Special rules apply for calculating the rate of pay for nonexempt employees, subject to the above caps

Does CA SPSL run concurrently with CFRA and FMLA?

Yes, if the reason for leave is also covered by CFRA or FMLA (for example, the employee or a family member has a serious health condition)

Employee Required Notice of Need for Leave

Requires only oral or written request and such leave is immediately available. No advance notice of the need for leave is set forth in the statute

Certification

An employer may not ask for any verification or documentation unless there is a reasonable basis to question the employee’s stated reason for leave

Employer Obligation to Make Retroactive Payments

  • CA SPSL is retroactive to January 1, 2021
  • An employee who took leave for a covered reason from January 1, 2021, through March 28, 2021, can make a request for CA SPSL on or after March 29, 2021, and the employer is obligated to make that payment on or before the next scheduled payroll period
  • The employer may be able to apply other types of paid leave provided during that period as a credit

Pay Stub Obligations

Wage statements must separately show CA SPSL balances and deductions (separate from other PTO or CA Paid Sick Leave balances)

Employer Notice

  • Employers are required to provide notice of employee rights to CA SPSL by posting the model notice in their workplace
  • For those who do not frequent a workplace this obligation can be satisfied electronically
  • Click here to access therequired poster

Nondiscrimination and retaliation

Employees who request or take leave under CA SPSL are protected from discrimination and retaliation and can file complaints about such conduct with the CA Labor Commissioner

Special Rules

  • Special rules apply to providers of in-home supportive services or certain personal care services
  • There is a different calculation for paid leave entitlement for firefighters who work more than 80 hours in the 2 weeks prior to taking SPSL
  • Other special rules apply; please consult the law for coverage of your workers

 

Please note, this is a summary of the law’s provisions.  If you are a CA employer, please consult the law itself for details. 

If you’d like some additional resources you can access the law, SB95, here.  The California Department of Industrial Relations (DIR) has a very helpful FAQ document here. And here is a Side by Side Comparison of Paid Leave Options.

Matrix Can Help!

Matrix Absence Management offers a number of creative solutions, particularly to assist employers in dealing with COVID-related absences. For more information about our solutions, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.

PAID FAMILY AND MEDICAL LEAVE – A MULTI-STATE MORASS, PART I: “IF ONLY THE FEDS WOULD ACT!”

Posted On March 24, 2021  

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

March 24, 2021

 

mo·rassˊ

  1. an area of muddy or boggy ground
  2. a confused situation that has become so complicated it seems impossible to escape from or resolve

This is the first of a 3-part series on paid family and medical leave (PFML). In the next few days watch for these additional posts:

  • Details on the proposed federal paid family and medical leave act (the “FAMILY Act”)
  • “Can you help me design a single PFML plan that will satisfy all state requirements?”

I promise, fascinating reading for PFML geeks!

 

I’ve been practicing employment law longer than I care to admit, and have been in the absence and disability management industry for 11 years now. In my seasoned opinion, the paid family and medical leave trend is the biggest, most impactful development in the industry ever. Yes, the 1993 Family and Medical Leave Act was big. And yes, many states, both before and after enactment of the FMLA, have adopted their own similar (or dissimilar) job-protected leave laws. And yes, a few states have had paid disability and family leave benefits laws for a while now.

But now throw in a growing number of state laws that couple the pay component with job protection; laws that rarely match up with the FMLA; laws that are not the same state to state; and . . . well, you’re living through it as an employer, right? It seems impossible to manage sometimes, doesn’t it?

IF ONLY THE FEDS WOULD ACT!

A federal paid leave law would solve everything, right? Override all those complicated and conflicting state PFML laws with one simple federal program. Or is that just pie-in-the-sky?

Don’t kid yourself. Two bills proposing a federal paid family and medical leave act are currently pending in the U.S. Senate and House (SB 248 and HB 804). The proposed law is referred to as the Family and Medical Insurance Leave Act, or the FAMILY Act. I’ll summarize the details like leave reasons, durations, and funding in another blog post soon, but let’s not get bogged down in that stuff just yet.

I hate to burst your bubble but a federal law is likely to add complexity to the morass, not simplify it. Here’s why:

  • If passed, the FAMILY Act would not replace state PFML laws. The bills specifically state (§4(g)(1)):

    This section does not preempt or supersede any provision of State or local law that authorizes a State or local municipality to provide paid family and medical leave benefits similar to the benefits provided under this section.

    So the law would simply add YET ANOTHER layer of PFML benefits with which employers would have to comply.

  • We don’t know yet how the FAMILY Act would interact with existing state paid disability, family leave, or combined PFML laws. Turning again to the bills themselves (§4(b)(5)):

    A benefit received under this section shall be coordinated, in a manner determined by regulations issued by the Commissioner, with the periodic benefits received from temporary disability insurance or family leave insurance programs under any law or plan of a State . . .

    Talk about punting the hard stuff! Whether the federal benefits are primary and the state benefits secondary, or vice versa, or some other structure remains to be determined. Either way, employers are likely to have to comply with whichever law, state or federal, provides the more beneficial benefits provisions to employees. Coordination of employee and employer contributions to 2 programs, state and federal, with some overlapping (and some distinct) benefits coverage could be a nightmare.

  • It is unlikely the states with existing paid benefits laws will dismantle their programs. The disability programs of many states have been in place for decades; likewise, many of the paid family leave programs have also been paying benefits for years, such as California’s PFL program, operating since 2004. Significant state agencies have been created to manage these programs. They aren’t just going to go away! States are unlikely to end an existing program, put lots of state employees out of work, and cede the state’s chosen priorities on employee benefits to the feds.
  • While a federal PFML law may staunch the flow of new state laws somewhat, it is possible that many states will layer on additional paid leave provisions to fill the gaps left by the rather limited (by today’s’ PFML standards) provisions of the FAMILY Act. Most state laws now in effect or pending implementation provide broader leave reasons and cover significantly more family relationships like siblings, grandparents, grandchildren, and that trendy “like a family member” relationship.
  • The FAMILY Act doesn’t provide job protection and doesn’t jive with the FMLA completely, so employers will have to coordinate time off for job-protected leave under the FMLA; AND paid leave benefits under the FAMILY Act. I’ll talk more about that soon. Plus, there’s no provision for employers to have their own private or voluntary plans, so there’s no way to provide that smooth, improved employee/employer experience that comes with a managed private plan.

The lesson is an old, proven one: Be careful what you ask for! And join us for the next FAMILY Act installment, coming soon to your preferred screen.

MATRIX AND RELIANCE STANDARD CAN HELP!

You may have noticed, we are on top of all things PFML. Between Matrix and our sister company Reliance Standard Life Insurance, we offer PFML solutions in every state that allows private/voluntary plans. Whether you want to insure the plan or go self-funded, we can help. Example: For Connecticut’s upcoming paid family and medical leave program, we have an employer guide, materials to assist with the employee approval vote, and much more. For more information contact your Matrix or RSL account manager or practice leader, or reach us at ping@matrixcos.com.

FURLOUGHS AND FMLA INELIGIBILITY: AN UNEXPECTED CONSEQUENCE

Posted On March 15, 2021  

by Armando Rodriguez, JD - Compliance Attorney, Compliance And Legal Department

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

March 15, 2021

 

We’ve been getting a lot of questions lately concerning the impact of furloughs on employee FMLA eligibility. After all, COVID-19 related lockdowns started as early as a year ago – not an anniversary anyone likes to celebrate. And unfortunately, after lengthy furloughs, many long-time employees are no longer eligible for FMLA.

But let’s take a moment. First:

A quick refresher on FMLA Eligibility

The federal Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with 12 weeks of job protected leave for the employee’s own serious health condition, to care for a family member’s serious health condition, for bonding with a new child, and for certain reasons related to a family member’s military service or injury. To be eligible for FMLA, the employee must, among other requirements, have worked for the employer a minimum of 1250 hours during the 12 continuous months prior to the date the leave is to start. (Special rules apply to flight crews and employees out on USERRA-protected military leave.)

Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act for determining compensable hours of work. To simplify, hours worked are just that – hours actually spent working. (OK, so there can be additional paid hours like on-call time, “donning and doffing” required clothing or equipment, etc., but why complicate things?)  

Another FMLA eligibility requirement is that the employee must have worked for the employer for 12 months at the time of commencement of a leave. We’ll take on how furloughs might impact that requirement later in this post, so check below.

Furloughs

As we know, many employers have had to “furlough” employees during the COVID pandemic. What does that mean? There is no precise legal definition, but a furlough is generally understood to be time the employer forces the employee to take as time off. With a furlough, there is an expectation that the employee will return to work at some point in the future: the employee is kept on the employer’s “roster,” and sometimes even gets continued benefits (depending on the employer’s policies). Contrast this with a layoff, which is an end of the employment relationship with no expectation of return to work. 

Time spent on furlough does not count as hours of service; it is not time worked. So, it is entirely possible that long-time employees who have been FMLA eligible in the past may not meet the hours worked requirement this year due to a lengthy furlough. (Generally, an employee who works a typical 40-hour week will lose FMLA eligibility if furloughed for about 21 weeks in the 12 months prior to the requested leave.)

Ok, so what now?

Just because the employee is no longer eligible for a new FMLA leave doesn’t necessarily mean that the leave is unprotected. There are many things to remember here:

First, an employee only has to establish FMLA eligilbity for a given leave reason once in a leave year, when the leave for that reason first commences. Eligibility then lasts for the 12 months following the start of the leave.  

Take the example of Roberto: He works 40 hours per week and met eligibility to care for his mother with a serious health condition for leave starting on May 1, 2020. He was then furloughed on June 1, 2020, and returned to work on January 1, 2021. Even though he was off work for 7 months, Roberto will retain FMLA eligibility to care for his mother through April 30, 2021. He might not be eligible for FMLA leave for another reason, but he can use any remaining FMLA entitlement (up to 12 weeks) to care for his mother if needed.

Second, you must also consider applicable state job-protected leave laws. After returning from a furlough, an employee might have (or regain) leave entitlement from sources other than the FMLA. For example, Oregon’s Family Leave Act (OFLA) only requires that the employee has worked an average of 25 hours per week in the prior 180 days. So, an employee may regain OFLA eligibility before regaining FMLA eligibility after furlough. Or consider Connecticut’s and Washington D.C.’s Family and Medical Leave acts, which only require 1000 hours in the 12 months prior to the leave. And to complicate matters more, many of the new paid family and medical leave laws have much lower eligibility rules and still carry job protection (e.g., Massachusetts, Washington, and others). State and local paid sick leave laws may provide additional rights for at least short absences.

Third, if the employee is requesting leave for his or her own serious health condition, consider whether the employee is entitled to a leave of absence or other accommodation under the Americans with Disabilities Act (ADA). The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. An employee’s serious health condition could also be a qualifying disability under the ADA and you may have an obligation to provide the employee with leave as an accommodation. Go through the interactive process! That being said, the ADA only applies to the employee’s own health condition and would not provide leave for other FMLA reasons such as caring for a family member or bonding.

Consider updating your policy

The FMLA eligibility inquiries we are currently getting are often from frustrated employers who want to enable their employees to take FMLA leave despite the lack of eligibility. But, any leave taken without eligibility cannot be counted toward the employee’s use of FMLA entitlement. To do so might deprive the employee of later FMLA leave and land the employer in hot water for interference with FMLA rights.

Alternatively, consider an update to your company’s leave policy to provide a leave for FMLA ineligible employees under specified circumstances that you choose. Anything offered in addition to the FMLA can be as stringent or generous as you see fit. However, in order to avoid possible discrimination claims, the policy must be applied uniformly, not on a case-by-case basis. Additionally, even if a company leave is offered, if the leave is for an employee’s own condition, there may still be ADA implications that will need to be addressed.

What about the 12-month requirement?

Above we noted an additional FMLA eligibility requirement: that the employee must have worked for the employer for 12 months at the time of commencement of a leave. It’s pretty well understood by now that the 12 months are a total and do not have to be consecutive. Any time worked for an employer, separated from other periods of employment by less than 7 years, all count toward the 12 months.

But for a relatively new employee, does furlough time count toward the 12 months? The answer is maybe. FMLA regulations provide:

If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. 29 C.F.R. § 825.110(b)(3).

So if you generously continued benefits such as health insurance for your employees during furlough, the period of furlough counts toward establishing 12 months of service for FMLA eligibility. This means that an employee hired shortly before a furlough (and receiving benefits during the furlough) could actually satisfy this aspect of FMLA eligibility while not working.

Example: Carrie started work for your company on March 1, 2020. She is furloughed from June 1, 2020 to the present. Carrie established her 12 months of employment on February 28, 2021, even though she was still not working and had actually “worked” for you for 3 months. Carrie does not need to satisfy this eligibility requirement again; it will last throughout her employment with you. When she returns to work, she will be FMLA eligible as soon as she has worked 1250 hours in the prior 12 months.

Matrix Can Help!

Matrix offers numerous absence and disability management services. Be it leave as an accommodation, state and federal leave laws, disability plans, or managing company policies, our team of absence management and ADA specialists are ready to help you and your employees. For more information about our solutions, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.

THE AMERICAN RESCUE PLAN: PAID SICK/FAMILY LEAVE IN 2021

Posted On March 12, 2021  

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

March 12, 2021

 

OK, here’s fun stuff to talk about on a Friday. There’s no more football and I knew you would want this information to work with over the weekend, so…no need to thank me, I’m here to serve!

The federal COVID relief bill, the American Rescue Plan Act, passed Congress (narrowly) and was signed by President Biden on March 12.  My gig is limited to addressing the provisions relating to paid leaves of absence.  

Spoiler alert:  there are NO paid leave requirements in the Rescue Plan.

Remember the Families First Coronavirus Response Act (FFCRA)?  If not, you can take a refresher course here.  But key things to remember are as follows: 

  • The leave of absence provisions only applied to private employers with fewer than 500 employees, and to public employers.
  • It expired on December 31, 2020.
  • It provided paid sick leave for up to 80 hours for COVID-related reasons, including quarantines, seeking a diagnosis, and school/day care closures.
  • It provided expanded and paid FMLA coverage for up to 12 weeks for COVID-related school/day care closures.
  • It included a tax credit for the paid leave provided by employers, up to certain limits.

In late 2020 Congress took the bold action of extending the tax credit for FFCRA paid leave voluntarily provided by an employer through March 31, 2021, but offered no other paid benefits.  You can read about that here.  Note that the credit through March 31 is only available for the total amount of FFCRA paid leave required by FFCRA in 2020 if an employee still has any unused 2020 entitlement.

Now another ground-breaking development!  The American Rescue Plan Act has again extended the tax credit!  Still no paid leave requirements, just a tax credit for employers who voluntarily provide FFCRA-like leave from April 1 through September 20, 2021. Details:

  • The Rescue Plan resets the amount of paid sick leave the employer can offer and get the tax credits, to 10 days between April 1 and September 30.
  • The tax credit is limited in amount to $511 per day for paid sick leave for the employee’s own leave (seeking diagnosis or in quarantine) and the 3 new reasons addressed below ($5,110 maximum); and to $200 per day for the other paid sick leave reasons.
  • There is no new entitlement for expanded FMLA for school closures – the employee is still limited to a total of 12 weeks for both 2020 and 2021 combined.
  • The tax credit for expanded FMLA for school closures paid by the employer between April 1 and September 30 is $200 per day, with a total maximum of $12,000.
  • Three new reasons have been added for qualifying paid sick leave and paid FMLA– again, for voluntary benefits only, no requirement here.These new reasons are
    1. if the employee is seeking or awaiting the results of a test for or diagnosis of COVID-19 due to exposure or at the request of the employer;
    2. to allow an employee to obtain a COVID-19 vaccination; and
    3. for time lost if the employee is recovering from any “injury, disability, illness, or condition” related to the vaccination.
  • A new nondiscrimination provision provides that the tax credit is not available if the employer discriminates in the availability of paid leave in favor of highly compensated employees, full-time employees, or long-tenured employees.

Well, that’s a wrap.  On an historical note, the FFCRA became effective April 1, 2020.  Remember how we all thought: We’ll definitely still be wearing masks and talking about this a year from now!

Nope, I don’t remember that either. Have a great weekend.

5 LAYERS VS 5 DAYS - FMLA PROCEDURES UNDER THE MICROSCOPE IN THE GOLDEN STATE

Posted On March 03, 2021  

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

March 02, 2021

 

The U.S. Department of Labor reports that an operator of 2 California airports must make major changes to its FMLA processes after trampling on employee rights for I don’t know how long.  And I mean trampling! 

I will be the first to admit that the Family and Medical Leave Act has many challenging and gray areas.  (I call it job security.)  The fluctuating workweek rule, anyone? How about applying in loco parentis?  But here are a couple of rules that are crystal clear:  (1) the employer must send notice to an employee of his or her FMLA eligibility (or lack thereof) within 5 business days after the employee requests time off that might be FMLA-covered; and (2) the employer must send a designation notice – that is, approve or deny the requested leave – to the employee within 5 business days after receiving sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason (e.g., after receiving a completed medical certification from the employee’s health care provider). 

5 layers of administrative process.  It seems that Los Angeles World Airports – owner and operator of Los Angeles International and Van Nuys airports – didn’t get the memo.  Apparently LA World Airports had a process whereby employee FMLA requests went through 5 (that’s five!) levels of administrative review before reaching human resources.  That process typically took a month, with some requests pending for months.  Although not addressed, that probably means that LA World Airports didn’t send the FMLA-required notice of rights and responsibilities to employees within 5 days of a leave request either, since that notice is supposed to go out with the eligibility notice.

So-called second opinions?  According to the DOL, the employer also “improperly relied on second opinions from an in-house physician” and as a consequence, denied employee leave requests.  This is like fingernails on a chalkboard to me.  First, the FMLA regulations provide a second opinion can be required if the employer has reason to doubt the validity of the employee’s certification.  This means the employer must have a good reason to question the validity of the certification. Examples may include receiving a certification from a provider in the wrong medical specialty for the employee’s condition, or advocating for an excessively long or frequent leave for the employee’s condition.  The employee is provisionally entitled to the requested leave (and maintenance of group health benefits) pending receipt of the second (or third) medical opinion. 

Next, although the second opinion is to be furnished by a health care provider of the employer’s choice (and at the employer’s cost), the selected provider cannot be employed by the employer on a regular basis or one with whom the employer regularly contracts or whose services the employer otherwise regularly uses.   The single exception is if the employer is located in an area where access to health care is extremely limited.  Methinks that is unlikely the case in the vicinity of LAX and the Van Nuys airport.

Finally, if the opinions of the employee’s health care provider and the second opinion provider differ, the employer must afford the employee the opportunity for an opinion from a third provider selected jointly.  Although the regulations don’t elaborate, it seems the employer’s other option is to follow the opinion of the employee’s provider.  I think it’s a safe bet that neither of these things occurred in LA World’s FMLA process.

The consequences.  As a result of the DOL’s investigation, LA World:

  • Redesigned its system to include a new web-based tool that provides workers updates and approvals within 24 hours, instead of months;
  • No longer routinely requires second opinions from health care providers;
  • Created a reference guide for leave specialists;
  • Scheduled joint training sessions with the Wage and Hour Division; and
  • Removed all adverse actions against employees caused by prior leave policies that violated the FMLA.

You can view the DOL’s news release here.

Matrix can help!  Maybe you already know this, but Matrix provides leave of absence administration services for the employees of our client employers (surprised?).  That includes both federal laws like the FMLA, but also state leave of absence laws and company leave policies.  With Matrix’s automated systems and trained, experienced claims examiners, we routinely send out those eligibility, rights and responsibilities, and designation notices in fewer than the required 5 days.  And for those difficult situations where there’s something suspect about the employee’s medical certification, we have a robust process for properly identifying whether there is reason to question the validity of the certification and, if so, to properly obtain a second and/or third medical certification to manage the employee’s leave.

 

For assistance or if you have questions, contact your Matrix or Reliance Standard account manager or practice leader, or send a message to us at ping@matrixcos.com.