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.


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"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.

WORKERS' COMP AND FMLA – A CLASH OF TITANS OR FRIENDS HOLDING HANDS?

Posted On April 20, 2021  

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

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

April 20, 2021

 

Pop Quiz: Your employee is injured on the job. Is he covered by

  1. workers’ compensation
  2. the Family and Medical Leave Act (FMLA), or
  3. the Americans with Disabilities Act (ADA)

For those of you waiting for “D. Could be all of the above”, well done!

***

A recent decision by the 11th Circuit Court of Appeals tells of an employer who failed the quiz by applying only workers’ comp following an employee’s workplace injury. Reversing a lower court decision in favor of the employer, the appellate court observed that the FMLA does not set up a “clash of Titans” between itself and workers’ compensation. An employer’s obligations under the FMLA are not excused simply because the employer provides workers’ compensation benefits. Back to the lower court for a jury trial – a place you rarely want to be.

What happened?

On September 15, 2016, Noorjahan Ramji, an 11-year employee of Hospital Housekeeping Systems, LLC, (HHS) tripped on the leg of a table and fell, injuring her right knee. Ramji was off work for 11 days and had various doctor’s appointments. Although HHS immediately initiated a workers’ compensation claim for Ramji, they did not inform her about her rights under the FMLA to take up to 12 weeks of job-protected FMLA leave. Instead, HHS required Ramji to use her sick leave until she returned to work in a light duty position.

Per HHS’s internal policy, Pamela Merriweather, HHS’s FMLA administrator, accompanied Ramji to all medical appointments. Ramji was treated with a cortisone shot, referred to 6-8 weeks of physical therapy, and released to return to work on light duty. On a follow-up appointment a month later Ramji exhibited a full range of motion and stated that the initial cortisone shot had resolved her knee pain. Her physician found that Ramji had reached maximum medical improvement with a zero percent disability rating, and released her to return to full duty work.

Ramji attempted to return to work that same day, only to be informed that her return was contingent upon successful completion of an essential-functions test comprised of various physical tasks. Ramji had trouble with several of the tasks such as deep knee squats (it hurts my knees just thinking about it!), and asked Merriweather if she could use accrued sick and vacation leave to give herself additional recovery time.  On the following Monday, October 24, Merriweather told Ramji she was being terminated for failing to complete 5 tasks on the essential-functions test. Ramji again asked to use unused sick and vacation leave, but Merriweather denied the request and fired Ramji.

Hospital Housekeeping’s Defense

HHS asserted three basic defenses:

First, it claimed it was not on notice that Ramji needed or was entitled to FMLA leave.  The appellate court addressed this defense with a thorough review of all the information HHS had about Ramji’s condition. (Umm…the company HR administrator was present during each medical appointment!)  Even though at one point the physician released Ramji to return to work with no restrictions, this was without full understanding of Ramji’s job duties or knowledge of the impending essential-functions test she would have to undergo. Ramji’s several days of missed work and medical treatment, her inability to pass the essential duties test – witnessed by Merriweather – and her requests for time off to heal from her injury were more than plenty to alert HHS that the FMLA was in play.

Second, HHS asserted it was excused from compliance with the FMLA because it provided Ramji with workers’ compensation benefits. The court rejected this argument, citing the FMLA regulations that specify a workers’ compensation absence and FMLA leave may run concurrently. (See 29 C.F.R. § 825.702(d)(2) “An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently . . .”).

Third, HHS argued unsuccessfully that Ramji’s acceptance of a light-duty position relieved it of its FMLA obligations. However, the FMLA regulations explicitly provide that “[i]f FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation.” 29 C.F.R. § 825.702(d)(1) (emphasis added).

Moreover, an employer may offer – but an employee is not required to accept – a light-duty position in lieu of taking leave. In such case the employee may no longer qualify for workers’ compensation pay benefits, but the employee is entitled to continue on unpaid FMLA leave until either the employee is able to return to the same or an equivalent position or until she has exhausted the 12-week FMLA leave entitlement. § 852.702(d)(2).

Based on these regulations, the court held that Ramji was entitled to decline the light-duty job offer but she never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave. HHS made that choice for her by offering only a light-duty assignment.

One additional point not addressed by the court: HHS didn’t offer Ramji extended light duty after she failed the essential-functions test; they fired her!

What about the ADA?

Ramji did not assert an ADA claim. At the time of her termination she had only had her knee injury for about 5 weeks. Although there is no specific duration a condition must exist to constitute an ADA-protected impairment, 5 weeks with an expectation of near-term recovery might not be enough.

In fact, though, it took Ramji several months to heal fully. Had HHS given her FMLA leave or the option of continued light duty rather than firing her, the duration of her medical condition and its limitations might have crossed over into ADA territory. Dodged a bullet on that one, HHS!

PINGS FOR EMPLOYERS

So how do you navigate these multiple minefields?

  • First, remember that an employee is entitled to the protection of each and every law that might apply to her situation. The FMLA, state workers’ compensation, and the ADA are 3 distinct legal rights that often overlap and intersect, as evidenced by this case. None of them cancels another out.
  • Analyze the employee’s situation and the various laws to determine which ones apply. The employee will be entitled to the best benefits available under each of the applicable laws. So, for example, workers’ compensation to provide pay benefits and medical expenses, the FMLA to provide job protection during any related absences, and the ADA to provide extended leave if needed or workplace accommodations upon return to work.
  • Train, train, train! Make sure your supervisors know enough about these laws to spot when one or more might apply and know the proper channels for directing the employee and seeking further assistance. (As this case shows, even your benefits folks might need refresher training!)
  • When in doubt, notify the employee of the proper reporting processes and encourage the employee to file a claim. Reporting or filing a claim doesn’t necessarily mean the employee will get the benefits and protections of a given law, but you will have given the employee proper notice of rights and a fair opportunity to exercise those rights.
  • For FMLA, remember also to provide the employee with the notice of rights and responsibilities and the eligibility notice within 5 days of your knowledge of the claim. Here is the Department of Labor’s handy dandy Form WH-381 just for this purpose! (Or, you can always engage Matrix to do that for you! That’s kind of our jam.)

Matrix can help!

Matrix offers integrated leave of absence, ADA, and workers’ compensation claims management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

THE FAMILY ACT -- FEDERAL PAID FAMILY AND MEDICAL LEAVE COMING YOUR WAY? (PAID FAMILY AND MEDICAL LEAVE – PART II)

Posted On April 12, 2021  

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

April 12, 2021

 

In the legislative system, conflicting leave laws are considered especially heinous . . . [DHUNK DHUNK]

OK, so paid family and medical leave is not as riveting as stories ripped from the headlines. Or is it? I mean, these are actual headlines, aren’t they? Or am I just a Superfan?

This is the second of a 3-part series on paid family and medical leave (PFML). Part I addressed whether a federal paid leave law would solve the confusion and conflict created by multiple state paid family and medical leave laws.

Watch this space for Part III: Can you help me design a single PFML plan that will satisfy all state requirements?

 

We last left our heroes, those beleaguered leave and benefits administrators in your Human Resources Department, hoping that the feds would act to solve the multi-state PFML morass. In that episode, we explained why a federal paid leave law would not be the panacea we would like. Now let’s look at what is currently proposed at the federal level, and consider what paid leave and absence management would be like with that law thrown into the mix.

You will no doubt remember (who wouldn’t?) that New York Senator Kristen Gillibrand and Connecticut Representative Rosa DeLauro have introduced companion federal paid family and medical leave bills every legislative session since 2014. This year is no exception: SB 248 and HB 804, respectively.

The bills are referred to as the Family and Medical Insurance Leave Act, or the FAMILY Act, but don’t let the name fool you. There is no job protected leave associated with the FAMILY Act and, for reasons discussed below, the use of FAMILY Act benefits will not always coincide with coverage under the federal Family and Medical Leave Act (FMLA) we’ve come to know and love.

Here are the key features (but don’t expect the minute details yet – the legislation is particularly obtuse in many respects):

  • Entitlement. The total amount of paid leave is 60 “caregiving” days in a 365-day benefit period, following an unpaid waiting period of 5 caregiving days. §4(a); §2(10); §2(5). A caregiving day means any date the employee is engaged in an activity that qualifies him or her for paid leave (see next bullet point). §2(1). This is similar to the FMLA’s 12 workweeks but will not correspond in many cases because:
    • The 5-day waiting period means FMLA will start for an eligible employee before the countdown for 60 caregiving days.
    • The 365-day benefit period is calculated on a measured-forward basis tied to a certain date in relation to the paid leave (and that date is one of the obtuse parts of the law). §4(c)(1) and (2). The benefit period will never coincide with an FMLA leave year, which as we know can be measured in one of four ways: calendar year, fixed 12-month period, measured forward from first date of leave, or rolling back from first date of leave.
    • Because the paid benefit entitlement is measured in caregiving days, it appears the benefits are available only in full-day increments, not in increments of an hour or less as with the FMLA. As a result, an employee could take intermittent FMLA leave and not touch any or most of his FAMILY Act entitlement.
    • Now think about continuous leave for anyone with a work schedule other than 5 days per week. For example, if an employee works 3 12-hour shifts per week and takes continuous leave for 12 calendar weeks, the employee will exhaust her FMLA entitlement but have only used 36 caregiving days, leaving 24 more caregiving days available.
  • Benefit reasons. Pay benefits are available for “qualified caregiving,” which includes most of the same reasons as leave under the FMLA: the employee’s own serious health condition (SHC); caring for a family member with a SHC; birth and bonding with a new child; placement of a child for adoption or foster care and bonding; and qualifying military exigencies. Leave specifically to care for an ill or injured servicemember is excluded from benefits, but depending on the employee’s relationship to the servicemember, such leave will often qualify as care of a family member with a SHC. §2(6).
  • Covered family relationships. Care for a family member with a SHC includes the FMLA relationships of parent, child, or spouse, but also includes a domestic partner and the child of a domestic partner. §2(6) and §4(j). Leave taken during receipt of benefits for these two relationships will not count toward an employee’s FMLA leave usage.
  • Employee eligibility. Eligible employees include anyone who is insured for disability insurance benefits under the Social Security Act at the time of the application for benefits; and has earned income from employment during the 12 months prior to the month in which an application for benefits is filed. §4(a)(1)-(2). That’s clear as mud, isn’t it? Does that mean earned income in each of the prior 12 months, or at any time during the prior 12 months? I haven’t studied the SSA eligibility requirements yet, but they are . . . unlikely? . . . to coincide with eligibility for FMLA leave (12 months of service, 1250 hours worked in the past 12 months, and engaged at a worksite with 50 employees within 75 miles).
  • Benefit amounts. Monthly benefits are determined according to a formula that I, quite frankly, have not figured out yet. Here, you have a crack at it: “Benefits are the greater of . . . the lesser of 1⁄18 of the wages [in the highest of the last 3 years] . . . or the minimum benefit amount . . . multiplied by the quotient (not greater than 1) obtained by dividing the number of caregiving days of the individual in such month by 20.” Or something like that. §4(b).

    I can tell you this much: during the first calendar year of the program the maximum benefit is $4,000 per month and the minimum benefit is $580 per month; amounts are adjusted annually based on the national average wage index. The benefit amount per day of Qualified Caregiving is the employee’s monthly benefit divided by 20 (apparently, regardless of how many work days there actually are in the month).  §4(b). 

  • Funding. The benefits available under the FAMILY Act are funded by contributions from the employee and employer each of 0.2% of the employee’s wages, limited by the Social Security cap. §6(a) and (b).

So now, let’s revisit the prior topic, “If only the feds would act!” Whaddaya think? Is this bill the answer to the multi-state PFML morass?

Remember, this discussion doesn’t even begin to address the conflicts between the FAMILY Act and existing state PFML laws, such as differing leave reasons, family relationships, durations, employee eligibility, and so on.

 

SO WILL THESE BILLS PASS?

 


Well, let me see. They, or something very much like them, have been introduced for 5 U.S. legislative sessions now. This year, we have President Biden who has spoken in favor of paid leave in a variety of contexts. But we have a 50-50 split in the Senate and big, important bills coming and gone. Would enough Dems hold the line to pass something like this? In COVID Year II? Then again, the legislative session is 2 years long, so these bills are likely to linger into 2022 if they don’t pass in 2021. The political climate might be more amenable then. Maybe.

Hey, I guess this is as exciting as a Law and Order episode! I’m headed to Hulu for a brain break!

MATRIX CAN HELP!

We are committed to watching and understanding all things PFML – state and federal. Stay tuned for our periodic blog posts as developments warrant, and watch of our next installment of the Multi-state Morass.  

(RE)OPENING THE WORKPLACE – COVID-19 AND THE ADA

Posted On March 29, 2021  

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

March 29, 2021

 

What is it they used to say BC (Before COVID-19)? In the Spring, a young heart turns to love? Or baseball? Something like that. But today we are faced with a new reality and, as the days get longer and vaccines enter arms by the thousands, many of us are a whole different kind of excited:

It’s back to work(place) time! Isn’t it?

Ah, if it were only that easy! Truth is, like most flavors of employee absence, bringing ‘em all back has some considerations and flat-out hurdles. Questions abound:

  • When is the right time to bring employees back, and how?
  • If I’ve had a skeleton crew of “essential workers,” I should be good to go, right?
  • Can I mandate vaccination as a prerequisite to employees returning to the workplace?
  • Is COVID considered a disability?

And so much more. Join me and my longtime colleague Cheryl Jez, Disability Practice Leader at Reliance Standard Life Insurance Company, for a free webinar on the legal hurdles, worksite safety challenges and a handful of other ways COVID could ruin ANOTHER year if you’re not careful.

 

Thursday, April 1, 2021

2:00 pm Eastern/11:00 am Pacific

Click here to register!

 

I look forward to seeing you – virtually – there!

 

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

Posted On March 25, 2021  

by Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

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

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, Esq - Product Compliance Counsel, 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.

UPDATES: SUPER BOWL LV AND NEW YORK COVID-RELATED PAID SICK LEAVE

Posted On February 09, 2021  

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

February 09, 2021

 

Here’s a riddle for you:What do Super Bowl LV and COVID have in common?  I’m not sure – though if you’re a Chiefs fan I suppose both can seem like an unthinkable, undeserved cosmic spanking.

Ah yes, the Super Bowl in COVID times: long gone are the raucous parties with lots of queso, Buffalo wings, yelling, and the adult beverages of your choice. They were replaced in 2021 with quiet gatherings of “safe” family or friend pods, maybe a beer or two, but it wasn’t quite the same, was it?  Maybe next year.

Meanwhile, here at Matrix we continue to keep an eye on all things COVID with regard to leave of absence.  So here we go  . . .

New York Paid Sick Leave.  The state of New York was an early and strong adopter of mandatory paid sick leave for employees for COVID-related quarantines.  (Drives me nuts that they labeled it “sick” leave when it is only for mandatory quarantines!)  Most New York employers must provide paid time off when the employee or the employee’s child is subject to a COVID-19-related mandatory or precautionary order of quarantine or isolation issued by the state or an appropriate governmental agency.  The amount of paid sick leave required – 0, 5, or 14 calendar days – is determined by the employer’s size and net annual income.  We reported on the New York law in detail here if you want a refresher.

The Commissioner for New York’s Department of Labor recently issued a new Guidance on Use of COVID-19 Sick Leave. The Guidance specifically addresses the use of such leave when an employee still tests positive for COVID-19 after an initial period of mandatory quarantine or isolation.  The Guidance supplements prior guidance, all of which remains in effect.  You can check out the state’s COVID-19 website New Paid Leave for COVID-19 | Paid Family Leave (ny.gov) for more info.  Here are the key points of the new Guidance:

Consequences of a positive test after mandatory quarantine or isolation.  According to the Guidance, an employee who returns to work following a period of mandatory quarantine or isolation does not need to be tested before returning to work, except for nursing home staff.  But if the employee does get a test – either after returning to work or at the end of a period quarantine prior to returning to work – and that test is positive, then the employee cannot continue working or return to work yet.  In this case the employee is deemed to be subject to a required mandatory order of isolation (apparently, a de facto continuation of the order that took the employee off work in the first place) and is entitled to paid sick leave under the New York law even if he or she received paid leave during the first period of quarantine/isolation.

To be entitled to such paid sick leave during the 2nd (or a 3rd) period of quarantine the employee must provide documentation from a medical provider or testing facility verifying that the employee tested positive (unless the employer gave the test).  An employee may qualify for paid sick leave for a maximum of 3 periods of quarantine or isolation – the initial period due to the original order followed by up to 2 more periods supported by a verified positive test. 

Employer mandate to stay off work.  If an employee who is not subject to a qualifying order of quarantine or isolation is directed by the employer to stay off work due to actual or potential exposure to COVID-19, the employer must pay the employee his/her full pay until either the employer allows the employee to return to work or the employee becomes subject to such an order. 

Although the Guidance does not specify, it would appear that this paid time period does not count toward the employer’s obligation to provide quarantine pay under the New York law. This makes a certain amount of sense since that obligation only kicks in once the employee is subject to an official order.

If the employee does become subject to a qualifying order after being excluded from the workplace by the employer, the employee is then entitled to paid sick leave pursuant to the New York law.  

Matrix observations.  There are still unanswered questions.  The Guidance was issue on January 20, 2021, is not an actual amendment of the law, and does not specify an effective date.  As a result, it is unclear whether it is applicable to leave situations since the law went into effect on March 18, 2020, but prior to the Guidance.  Entitling employees to up to 3 periods of quarantine pay is certainly a new interpretation. 

In addition, the Guidance does not specify whether the multiple periods of pay during quarantine must be successive with no break in between.  This may not be required, as the Guidance states:

An employee who returns to work following a period of mandatory quarantine or isolation . . .  who subsequently receives a positive diagnostic test result for COVID- 19 . . .  shall be deemed to be subject to a mandatory order of isolation.

However, the tenor of the Guidance does seem to imply that the multiple periods of paid quarantine must be related to a single exposure because the paid leave entitlement for the 2nd and 3rd periods rests on a positive test that acts as an extension, so to speak, of the actual order.   

Matrix can help!  Just keep watching this space.  Just like Tom Brady, COVID is still a “thing” and we will keep you up to date on major leave of absence and accommodation developments as they happen.  For now, please wear your mask and get that vaccination when you can!

CALIFORNIA EMPLOYERS, LOOK OUT!! POSSIBLE DUTY TO ACCOMMODATE EMPLOYEES WHO ARE “ASSOCIATED WITH” AN INDIVIDUAL WITH A DISABILITY

Posted On January 29, 2021  

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

January 29, 2021

 

Associational discrimination?  What’s that, you ask?  It may soon be critical for California employers to understand this concept.

Little-known and even less understood provisions of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), protect employees who have family members (or other close individuals) with disabilities.  The association provision of both laws prohibits employment discrimination against a person because of his or her known relationship or association with a person with a known disability.  This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the employee has a relationship or association.  For example, an employer cannot terminate an employee because her husband or best friend or roommate or . . .  has been diagnosed with cancer and the employer is concerned the employee will miss time from work to care for that person. However, the ADA does not require employers to provide accommodations to employees based on their association with a disabled person.

Enter California.  Our readers may recall that in November 2016 a California court interpreted FEHA to include a requirement that employers engage in interactive discussions and consider reasonable accommodations for employees who do not themselves have a disability, but are seeking accommodation(s) so they can assist a disabled person with whom they are “associated”.  In Castro Ramirez v. Dependable Highway Express, Inc., the California Court of Appeals initially ruled that an employee with a severely disabled son who required home dialysis on a scheduled basis was entitled to an accommodation under FEHA to meet his son’s dialysis needs.  The ruling was based on the language of FEHA which defines a disability to include an employee who is associated with a person who has, or is perceived to have, a disability.  Examples include, as in this case, time off from work to provide required medical care or transportation to appointments.  However, the court opinion did not actually become law. The plaintiff abandoned this claim on appeal and instead, focused on what was a slam dunk associational discrimination claim (he definitely was fired because of his need for time off to assist with his son’s daily dialysis at home).

Four years later, the concepts underpinning the Castro decision are back.  The California Department of Fair Housing and Employment (DFEH) has indicated in a recent request for public comment that it is likely to introduce regulations to expand employers’ responsibilities to their California employees to require employers to provide accommodations to employees based on their association with an individual with a disability. To read the DFEH’s request for public comment, click here.

The deadline to provide public comment is February 1, 2021, and Matrix has done so. In particular, in our comments, we have urged the DFEH to narrowly define the individuals for whom the employer’s duty to engage in interactive discussions and provide reasonable accommodation(s) to those who meet the definition of “family member” under the California Family Rights Act (“CFRA”).  That is quite an extensive list that includes an employee’s spouse, domestic partner, parent, child, and, as of January 1, 2021, grandparents, grandchildren, and siblings.  Still, this would be more limited than the undefined associations covered by the ADA and would provide employers concrete guidance. 

Matrix has also focused its comments on the practicalities of what the DFEH is proposing; namely, what does an interactive process under these circumstances look like? Who is required to participate? Can the employer obtain certification of the “association” or family relationship?

And what about medical information? Under the ADA, if an employee’s need for accommodation is not known or obvious, an employer is entitled to information supporting he or she has a qualifying “disability,” how that disability impacts performance of essential job functions and what the employee needs by way of accommodation(s) to assist her in doing so.  In its comments, Matrix has proposed similar suggestions for medical support employers could request for associational accommodation requests, or that the DFEH create a safe harbor form, as it has for California Pregnancy Disability Leave and CFRA.

Moreover, the ADA allows an employer to seek additional medical, including an independent medical exam with a provider of its choosing under certain circumstances; similarly, CFRA provides for an employer to obtain a 2nd and/or 3rd opinion.   Matrix has asked the DFEH to consider allowing employers to do that as well for these “associational” accommodation requests if the medical information received about the disabled individual’s condition and care needs is of questionable validity.

We have no doubt that there are many in the employment community who are providing comments or input on these proposed changes to FEHA which, when they become law, will be onerous to employers of California personnel.  Fear not, dear readers! Matrix Radar is following these developments closely and when the regulations pass, we will be at the ready to assist our ADA clients in complying with those new obligations.

MORE COVID PAID LEAVE? BIDEN’S AMERICAN RESCUE PLAN

Posted On January 19, 2021  

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

January 19, 2021

 

On January 14, 2021, President-Elect Biden announced his American Rescue Plan.  The Plan includes more employer-provided COVID-related paid leave.  If enacted, his plan would:

  • Reinstate the FFCRA paid leave provisions and extend the requirements to all employers (expanding coverage from private employers with fewer than 500 employees and eliminating the financial hardship exemption for employers with fewer than 50 employees).
  • Eliminate the exemptions for healthcare workers and first responders.
  • Provide “over 14 weeks” of paid sick leave and family and medical leave for school or care center closures, caring for others with COVID-19, quarantining after exposure, and getting vaccinated. The make-up of that “over 14 weeks” of leave is not explained. The inclusion of “care center” closures makes me wonder if that is referring only to daycare for children, or could expand to include closure of care centers for adult family members in need of daily assistance.
  • Extend all paid leave to federal workers. Under FFCRA in 2020, federal employees were eligible for paid sick leave but not expanded paid FMLA for school closures.
  • Provide a maximum paid leave benefit of $1,400 per week. Mr. Biden’s Plan Fact Sheet (link below) indicates this will provide full wage replacement for workers earning up to $73,000 per year.
  • Provide a 100% tax credit to employers with fewer than 500 employees, but not to larger employers.
  • Reimburse state and local governments for the cost of the leave.
  • Remain in effect from passage until September 30, 2021.

Here is Mr. Biden’s American Rescue Plan Fact Sheet.  The paid leave provisions are on pages 7-8:  Biden Transition COVID Relief Package Fact Sheet - DocumentCloud

There are lots of missing details.  As of this writing, the U.S. House of Representatives has not yet proposed a 2021 bill with these or similar features, but it’s early days yet!  Matrix will be watching for further developments.  To us, the bigger question with longer-term impact is, will the U.S. Congress pass a federal paid family and medical leave bill for broader purposes such as the leave reasons protected by the unpaid Family and Medical Leave Act?

KICKSTART FOR 2021 – AN UPDATE TO GET THE NEW YEAR GOING

Posted On January 04, 2021  

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

January 04, 2021

 

Although there are still challenges ahead – there are always challenges – I think I speak for us all when I say I am happy to rip off that last page of the 2020 calendar and start with a brand new, fresh and hopeful 2021 model. Let’s look at a quick rundown of the latest developments in the world of absence management and accommodations:

  • Status of FFCRA – tax credits only
  • Electronic communications under the FMLA – telemedicine anyone?
  • Massachusetts PFML update, including the new Emergency Regulation 3.0
  • Connecticut PFML update – are you doing what you are supposed to?
  • California expansion of CFRA – more employers and family members covered and basis for taking CFRA.

Sure, it’s a lot to cover but we’ve tried to boil it down to the essentials and provide links to other information sources. And hey, if you can’t be ambitious on the first full business day of the new year, when can you be?

FFCRA tax credit extension – and nothing else. As we reported here, Congress passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021 (CAA 2021), on December 21, 2020. Although President Trump threatened a veto for various reasons, he finally signed the bill on December 27. The bill contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act. Those mandated paid leaves expired on December 31, 2020, regardless of whether an employee had used all of his/her entitlement. On the other hand, the tax credits provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages voluntarily paid by employers through March 31, 2021.

On December 31, the U.S. Department of Labor released new guidance on the expiration of FFCRA paid sick leave and paid leave under the Family and Medical Leave Act (FMLA) for school closures. The DOL’s interpretation of the CAA 2021 is consistent with the above summary but also makes clear that the DOL will retain enforcement authority over employers’ leave responsibilities while the FFCRA’s paid leave requirements were in effect, even after these leave entitlements have expired. See the DOL’s FFCRA Questions and Answers, new questions 104 and 105.

FMLA in a COVID world – DOL addresses telemedicine and electronic posting. Recognizing the realities of social distancing and remote workplaces, on December 29, 2020, the U.S. Department of Labor released 2 new Field Advisory Bulletins (FABs).

  • Electronic posting. FAB 2020-7 addresses when the DOL will consider “posting” of the employee notices required by several federal laws by email or an internet or intranet website to satisfy the employer’s posting obligations. The FMLA regulations already permit electronic posting of the general FMLA notice as long as the electronic posting otherwise meets the regulatory posting requirements. See 29 U.S.C. § 2619(a); 29 C.F.R. § 825.300(a)(1). FAB 2020-7 further explains that the DOL will consider electronic posting to satisfy the FMLA posting requirements where there is no physical establishment at which employees are employed or interviewing or hiring takes place, and the electronic posting is accessible to employees and applicants at all times. The FAB does not address electronic posting in situations where an employer may have employees both working remotely and others working at a company facility or applicants applying remotely. Common sense would dictate that the employer should use both methods of posting so that each employee and applicant, regardless of work or hiring location, has access to the required poster.
  • Telemedicine health care visits. FAB 2020-8 addresses when the DOL will consider telemedicine an “in-person” visit for the purposes of establishing a serious health condition qualifying for protection under the Family and Medical Leave Act (FMLA).

A serious health condition exists when the employee is receiving “continuing treatment by a health care provider.” The term “treatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” See 29 CFR § 825.113(c). The regulations also provide that treatment by a health care provider means an “in-person” visit to a health care provider. See 29 CFR § 825.115(a)(3).

According to the DOL, to be considered an “in-person” visit, the telemedicine visit must include:

  • an examination, evaluation, or treatment by a health care provider
  • be permitted and accepted by state licensing authorities; and
  • generally, should be performed by video conference.

Communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.

This FAB is consistent with FAQ #12 of the DOL’s frequently asked questions about the FMLA and pandemic conditions issued on July 20, 2020, which states, in part, “Until December 31, 2020, the [DOL] will consider telemedicine visits to be in-person visits . . . , for purposes of establishing a serious health condition under the FMLA.”

The requirement that the telemedicine visit be performed by video conference could be problematic for employees who don’t have internet access or have limited internet programs, equipment, or skills. (Thinking of my own old desktop that works fine but doesn’t have a camera!) At Matrix Absence Management we have been accepting FMLA (and STD) certifications that result from a telemedicine visit since early in the pandemic and will work with our clients’ employees to ensure the best opportunity possible to provide a sufficient certification during the pandemic.

Massachusetts Paid Family and Medical Leave – It’s here! Starting January 1, your Massachusetts employees are now able to take paid family and medical leave. You can learn more by searching for “Massachusetts” in the search box for this blog, above, or visit the website for the Massachusetts Department of Family and Medical Leave. Matrix offers management of MA PFML private plans and our sister company Reliance Standard Life Insurance Co. offers an insured private plan. But if you are going it alone with the state plan, the DFML has some helpful materials, including information on the employee application process and timeline with a DFML Application Timeline chart and an explanation of the employer's role in the state claim administrative process.

What do you need to be aware of now? Employers have ongoing workplace posting and new hire notice requirements so don’t slack on your obligations. And remember, the MA PFML leave is job protected (meaning reinstatement to the same or equivalent position following leave) and there is a presumption of retaliation for any negative employment action taken during or within 6 months after an employee’s MA PFML leave or other related activities. Are your HR and management personnel trained and ready?

Oh, and the MA PFML emergency regulation. The MA DFML has passed Emergency Regulation 3.0 authorizing “acute care hospitals” to allow delayed bonding leave in 2021.

But don’t stop reading – employers in other industries may apply to the DFML to extend the period in which an employee may schedule family bonding leave in the same manner as allowed for acute care hospitals. The Director, in his discretion, may grant or deny any such request after considering likely effects on public health and safety and the public interest.

An acute care hospital is defined as a hospital licensed under M.G.L. c. 111, § 51 and the teaching hospital of the University of Massachusetts Medical School. The Emergency Regulation applies to all acute care hospitals regardless of whether they are providing MA PFML benefits through the state plan administered by the DFML or through a private plan.

In essence, employers that are acute care hospitals may allow an employee who received a new child in 2020 (by birth, adoption, or foster placement) and who wants to take bonding leave in 2021 to complete that leave any time in 2021, not necessarily within 12 months of the birth/placement as is normally the rule. The employee cannot be required to delay bonding leave and the employer doesn’t have to agree to the delay.

Here’s an example:

  • Baby adopted on 4/1/2020
  • Normally, the parent will need to take MA PFML for bonding between 1/1/2021 and 4/1/2021 (after the effective date of MA PFML and within 1 year of the birth or placement of the new child)
  • Under the emergency regulation, an employee of an acute care hospital can delay that leave to later in 2021 – for example to start in September 2021 and be completed by 12/31/2021

The reason for the Emergency Regulation is to try to soften the early-2021 crunch for bonding at a time when medical staff are in high need due to COVID. I’ll be surprised if this is effective. The employer cannot require the employee to delay bonding leave until later in 2021, so I would guess many hospital employees who received a child in 2020 will welcome the chance to take paid bonding leave in January to get a respite from COVID work or exposure. In any event, the regulation specifically says that employers who are acute care hospitals may initiate discussions with employees eligible for the extension to determine if they intend to request the allowable extension. Just be sure not to coerce!

The Emergency Regulation was final on December 21, 2020, and expires after 3 months due to the requirements of the emergency regulation process under MA law. We might see another emergency regulation at that time, or the passage of a nonemergency regulation in the meantime.

Connecticut paid family and medical leave requirements make their debut. The latest PFML program launched in Connecticut on January 1. The first phase is the mandatory (in most cases) withholding of employee contributions in the amount of 0.5% of wages and payment of the employee contributions to the CT Paid Leave Authority quarterly. Employers with private plans approved by the CT Paid Leave Authority by March 31, 2021, do not have to pay the employee contributions to the Authority. In addition, they can elect not to withhold contributions from employee paychecks and to fund the private plan themselves. Private plans approved at a later date will have these same benefits as of the start of the quarter at least 30 days after Authority approval of the plan.

The Authority has cut employers a little slack on the timing of early employee contributions – perhaps recognizing that they did not get the program off the ground as early as would have been helpful. Normally employers cannot withhold from employee paychecks retroactively – meaning that if an employer missed withholding from an employee paycheck in one pay period, it cannot make that up but withholding more than the 0.5% in a later pay period. The Authority has stated that, if an employer does not withhold enough from an employee’s wages, the Department of Labor allows for a very limited “catch-up” period of no longer than the first two quarters of 2021. In order to “catch up”, the employer may not take more than one percent of an employee’s pay per paycheck.

In a prior post available here, we summarized the 3 important steps employers need to be doing now: (1) register your business (supposedly by December 31, 2020, but better late than never!); (2) decide whether you want to adopt a private plan to meet your CT PFML obligations; and (3) get ready for withholding employee contributions starting January 1.

We now have even more helpful CT PFML material. You will find an informative employer guide here, covering the requirements of the law and many other “need to know” facts. And if you want to consider a private plan, contact your Matrix or Reliance Standard account manager or practice leader – we have extensive materials to aid you in preparing for the employee approval vote.

You can also visit the CT Paid Leave website for more information.

California Expands CFRA. We’ve written about this before, but it bears a reminder. On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands coverage under the California Family Rights Act. The following changes took effect January 1, 2021:

  • Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
  • Eliminates the exception from coverage if an employer employs fewer than 50 employees within 75 miles of the worksite where the employee is employed
  • 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
  • Eliminates the “key employee” exception allowing an employer to deny coverage if the employee is a salaried employee who is among the highest paid 10% of the employer's employees

Matrix is now administering the expanded CFRA for claims filed on or after January 1, 2021.

Matrix can help! The wide array of new leave laws, including significantly the various state paid family and medical leave laws, is a challenge for employers. Matrix tracks state and federal legislative developments and reports on them on this blog. But that’s not all we do! We have other resources for you as well. For an overview of state paid leave laws, including employee eligibility, employer and employee contributions, and employee benefits, check out our chart of all state-mandated paid leave programs here.

And if you need help managing those state PFML programs, we’re your source! Matrix offers PFML management services in all states that allow private plans, and Reliance Standard offers insured plans where applicable. If your company is interested in a private plan to meet your Massachusetts, Connecticut, Washington, or other state paid leave obligations, coordinate with your other leave administration and paid leave policies, and avoid the turmoil of state administration, contact your Matrix or Reliance Standard account manager or practice leader now!

NO EXTENSION OF FFCRA PAID SICK LEAVE/SCHOOL CLOSURE LEAVE; TAX CREDIT EXTENDED FOR 3 MONTHS

Posted On December 23, 2020  

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

December 23, 2020

 

FFCRA 300x300As of this writing, Congress has passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021, but President Trump responded with a hissy fit and the threat of a veto.  However, the paltry tax credit extension discussed in this post has not been brought up for criticism and so is likely to remain as is despite any other revisions the bill may undergo.  If anything changes, though, you can bet we’ll write about it here.

The bill has surprised many of us as it contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act.  Those mandated paid leaves expire on December 31, 2020, regardless of whether an employee has used all of his/her entitlement. If you need a refresher on the paid leave provisions of FFCRA you can check out our prior blog post here.

Tax credit extended.  On the other hand, the tax credit provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages paid through March 31, 2021.  What does this mean, you ask?  Great question.  The language of the CAA is poorly constructed.  But here is what appears to be the best interpretation:

  • There is no requirement for employers to provide further emergency paid sick leave or expanded FMLA leave for school closures after December 31, 2020.
  • An employer may choose to do so voluntarily, but further school closure leave will not count against an employee’s basic FMLA 12-week entitlement.
  • If such leave is paid in accordance with the FFCRA requirements applicable up to December 31, 2020, the employer can still claim a tax credit for wages paid through March 31, 2021.
  • However, the employer cannot claim a total tax credit in 2020 and 2021 combined for more wages per individual than the amount of paid leave required by FFCRA in 2020 – that is, 80 hours or part time equivalent of paid sick leave and 10 out of the 12 weeks of expanded FMLA, at the rates of pay specified in FFCRA.

What do employers need to do now?

  • Decide right away whether you are going to allow more FFCRA-like paid leave on a voluntary basis. If you do, apply that decision consistently across the board – either all employees with a qualifying reason can still take FFCRA-like paid leave through March 31 or none can. This includes both continuation of existing leaves and new leaves for a qualifying reason in the first 3 months of 2021.Of course, you can always allow such leave for as long and in such amounts as you choose through a company policy leave program.

    Be aware that if you do not continue FFCRA-like leaves into 2021, some employees may already be on continuous or intermittent leaves that would otherwise extend into 2021 and these will end on December 31, 2020. 

  • If you decide you are going to allow more FFCRA-like leave and care about the tax credit, be sure to get the documentation the IRS will require to support the credits. We previously summarized the IRS guidance for claiming the tax credit here.
  • Regardless of your decision on continued FFCRA-like leaves in 2021, remember that there are still many state and municipal laws, governors’ proclamations, and the like that provide at least temporary COVID-related leaves and job protections. And don’t forget the Americans with Disabilities Act as it may apply in this COVID world.

If Matrix is managing your FFCRA expanded FMLA leave for school closures, get in touch with your account manager right away to let us know your decision regarding continuation of these leaves into 2021.  We cannot charge any such leave against an employee’s FMLA entitlement after December 31, 2020, so all such pending leaves will be closed as of that date.  But we do have options for you, including switching the time requested to a personal leave of absence or instituting a company policy leave for school closures.  Congress has left us with very little time to deal with this situation, but we will do our best to stay up to date with our clients’ directions.

Matrix can help.  At Matrix we have developed a variety of pandemic-related leaves for employers that don’t have existing policies to cover all the COVID-related situations, such as leave due to quarantine or school closures.  If you are interested in learning more about these options, contact your Matrix or Reliance Standard account manager, or send a message to ping@matrixcos.com.

COLORADO PAID FAMILY AND MEDICAL LEAVE

Posted On December 14, 2020  

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

December 14, 2020

 

For several years the Colorado legislature tried without success to pass paid family and medical leave legislation.  In 2020 the voters took matters into their own hands and voted in favor of a ballot initiative (Proposition 118) to create a PFML program.  PFML geeks may recall that in Massachusetts in 2018 PFML supporters took the same route but in what came to be called The Grand Bargain, the legislature passed a PFML bill to keep voter initiatives off the ballot.  This did not occur in Colorado, perhaps because of its short legislative session that ends in mid-May or perhaps because of an inability to get consensus even in the face of a ballot measure.  In any event, Colorado PFML is now law and will be a reality soon. 

Some interesting features.  At Matrix we administer private plans for many state paid family and medical leave programs, and we are working on implementation of others so we’ve seen all kinds of PFML programs.  Here are some things we find interesting or encouraging about the Colorado program:

  • There is no waiting period – benefits are payable from the employee’s first day of covered leave.
  • There is only one 12-week bucket of leave entitlement for all leave reasons, rather than different buckets for things like the employee’s own serious health condition vs. family leave for bonding or caring for a family member (check out Massachusetts).
  • The law follows a new trend by providing an additional 4 weeks of leave available to an employee experiencing complications from pregnancy or childbirth.
  • The definition of “family member” also follows a recent trend of including someone who is not related by blood or marriage but is “like a family member” to the employee.
  • The statute is blessedly specific on concurrency of an employee’s use of federal FMLA, disability benefits, and paid time off.This prevents stacking of FMLA leave and leave during use of disability benefits (that is, sequential rather than concurrent use).On the other hand, the law preserves the employee’s right to save employer-provided accrued time off for other purposes or choose to use it to top up PFML benefits to the employee’s average weekly wage.

Here are the details we know now, based on the new statute.

Topic

Description

Colorado Revised Statutes

Administration

  • State plan:Colorado Department of Labor
    • New Division of Family and Medical Leave Insuranceto be created, led by a Director
  • Private plans permitted
    • Must meet or exceed benefits provided under statute and not impose greater employee obligations
    • Insured by an insurer approved by the state
    • Self-funded – requires a bond

§8-13.3-408

§8-13.3-421

Contributions / Premiums

  • Start:January 1, 2023
  • Amount:
    • 2023-2024:0.9% of employee’s wages
    • 2025 and after:rate may be adjusted according to a described formula but not to exceed 1.2% of employee’s wages
    • Wages subject to contribution capped at federal SSA limit
    • Employer can require employees to contribute up to ½ of total premium
    • Employers with fewer than 10 employees do not have to contribute the employer’s share of premiums to the state; must still contribute the employees’ share

§8-13.3-416(1)

§8-13.3-407

Benefits

  • Start:January 1, 2024
  • Amount:
    • 90% of the employee’s average weekly wage (AWW) that is equal to or less than 50% of the state AWW
    • PLUS
    • 50% of the employee’s AWW that is greater than 50% of the state AWW
  • Maximum weekly benefit:90% of state AWW
  • Exception:for benefits beginning before 1/1/2025, the maximum benefit will be $1,100 per week

§8-13.3-416(1)

§8-13.3-406

Employee Eligibility

“Covered Individual” means any person who:

  • Earned at least $2500 in wages subject to premiums during the base period OR
  • Elects coverage for a minimum of 3 years (e.g., self-employed, sole proprietor, independent contractor, employees of local governments that have opted out of coverage, etc.)

NOTE: We use the term “employee” throughout this article

§8-13.3-403(3) §8-13.3-414

“Base Period”

  • Base period: first 4 of the last 5 completed calendar quarters immediately preceding the first day of the individual's benefit year
  • Alternative base period:last 4 completed calendar quarters immediately preceding the benefit year

NOTE: Benefit year is not defined; probably should refer to Application Year – see below

§8-70-103(1.5) and (2)

Covered Employers

  • Private employers:
    • With 1 or more employees during 20 weeks in the current or prior calendar year; or
    • Who paid wages of $1,500 or more during any quarter in the prior calendar year
  • The state and political subdivisions
  • The federal government is excluded

§8-13.3-403(8)

Local Government Opt-out

  • Local governments may opt out of CO PFML coverage
  • “Local government” means any county, city and county, city, or town, school district, special district, authority, or other political subdivision of the state

§8-13.3-422

§29-1-204.5(3)(b)

Total Leave Entitlement

  • 12 weeks in an Application Year
  • Additional 4 weeks for a serious health condition related to pregnancy complications or childbirth complications

§8-13.3-405(1)

Waiting Period

None

 

Leave Reasons

  • Employee’s serious health condition
  • Caring for a family member with a serious health condition
  • Bonding with a new child during the first year after birth, adoption, or placement
  • Qualifying military exigency
  • Safe leave (leaves related to the employee or a family member being a victim of domestic violence, stalking or sexual assault or abuse)

§8-13.3-404

§8-13.3-403(16)

§8-13.3-404(18)

Covered Relationships

  • Child of any age*
  • Parent*
  • Spouse
  • Domestic partner
  • Grandparent*
  • Grandchild*
  • Sibling*
  • Like a family member:Any individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship

*NOTE: These relationships include biological, foster, adoptive, step, and in loco parentis relationships and the same relationships to the employee’s spouse or domestic partner, if applicable

§8-13.3-403(11)

 

Leave Year Calculation Methods

Application Year: 12-month period beginning on the first day of the calendar week in which an employee files an application for PFML benefits

§8-13.3-403(1)

Leave Increments

  • 1hour OR
  • Smaller increments if consistent with employer’s increments for other employee leave
  • Benefits not payable until employee accumulates at least 8 hours of PFML usage

§8-13.3-405(3)

Employee Documentation

CO PFML Division will develop claims procedures and forms, including

  • Certification from a health care provider for proof of a serious health condition and
  • Documentation of need for safe leave

§8-13.3-416(2)

Employee Notice to Employer

  • 30 days if leave is foreseeable
  • Such notice as is practicable if leave is not foreseeable or if 30 days is not possible

§8-13.3-405(5)

Employee Notices to Employees

  • CO PFML Division will develop notice materials with details of the CO PFML program for employer use
  • Employers will be required to provide written notice to employees:
    • By posting in the workplace
    • Upon hire
    • Upon learning an employee is experiencing an event that would be covered by CO PFML

§8-13.3-411

Coordination with Other Leaves and Benefits

  • FMLA:CO PFML runs concurrently with federal FMLA, if applicable
  • STD:Employer may require employee to use STD or similar benefits concurrently with CO PFML
  • Accrued paid time off (PTO) (vacation, sick leave, etc.):
    • Employer cannot require employee to use PTO prior to or while receiving CO PFML benefits
    • Employer and employee may agree that an employee can use PTO while receiving CO PFML benefits, up to employee’s AWW

§8-13.3-410

Job & Benefits Protection

  • If employee has been employed with current employer for at least 180 days prior to commencement of PFML leave, restoration after leave to same or equivalent position and terms and conditions of employment
  • Continuation of health care benefits during leave

§8-13.3-409

Employer Reimbursement

Employer can receive reimbursement from state program or private plan insurance carrier for advance payments made by employer equal to or greater than CO PFML benefits

§8-13.3-415

 

Matrix can help!  State by state, the number of paid family and medical leave laws keeps growing.  You don’t have to go it alone!  At Matrix we administer private paid family and/or medical leave and benefits plans in many states, including California, New Jersey, New York, Washington, and the upcoming Massachusetts, Connecticut, and Oregon.  If you would like to learn more about paid family and medical leaves and the benefits of having a private or voluntary plan, contact your Reliance Standard or Matrix account manager with questions or send a message to ping@matrixcos.com, and keep watching this space for more information.

TIME TO GET A GRIP ON CONNECTICUT PAID FAMILY AND MEDICAL LEAVE!

Posted On November 30, 2020  

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

November 30, 2020

 

Massachusetts PFML isn’t the only law bringing new consequences with the new year. Some parts of Connecticut PFML are also going into effect on January 1, 2021, and if you have even one Connecticut employee, you have things to do. We’ll provide you with a starter list here, but please register to join our CT PFML webinar on Thursday, December 3 at 2:00 Eastern.

If you don’t have Connecticut employees, it still pays to tune in to learn what various states are doing – it may be on your company’s horizon soon!

Connecticut Family and Medical Leave is coming faster than you think. Join us Thursday December 3rd @ 2pm EST for an overview of what we know and what comes next. Register here!

For Connecticut employers, here’s what you need to do now:

  1. Register your business with the Connecticut Paid Family and Medical Leave Insurance Authority (the Authority) The Authority is charged with developing and administering the CT PFML program. All employers with one or more Connecticut employee must register by December 31, 2020, to ensure receipt of important information from the Authority as issued.

    Determine who in your organization will be responsible for completing the registration process and setting up your employer account on the Authority’s website. That individual will need to supply the following information during registration:
    • Federal Employer Identification Number (FEIN)
    • Number of Connecticut employees
    • Total annual payroll for Connecticut employees
    • Payroll frequency
    • Intention to apply for an exemption (private plan)
    • How your business will remit payments on behalf of employees
    Note: Prior to registering with the Authority, be sure your business has established a state identity at https://stg.login.ct.gov/ctidentity/registration.
  2. Consider whether you want a private plan. Although you can file for approval of a CT PFML private plan at any time, there is a financial incentive to act soon. Employers with plans provisionally approved by March 31, 2021, will not have to pay the employee PFML contribution of 0.5% to the Authority for Q1 2021 but can either waive that cost for employees or use the employee contributions to fund the private plan. The process for approval of a private plan requires an affirmative vote by the majority of your Connecticut employees and other steps that will take time, so it’s best to get started right away. NOTE: The provisional private plan approval date to avoid paying employee contributions to the Authority for Q1 2021 was originally March 1, 2021, but has been changed in Authority communications to March 31, 2021.
  3. Get ready to withhold employee payroll deductions. Some employers elect to cover the costs of a state PFML program themselves. However, in Connecticut, if the employer is using the state plan the employer cannot cover the employees' contributions and must withhold the 0.5% contribution from employee paychecks. Employers with private plans may elect to cover the employee costs but you may not know if you have a provisionally approved private plan until after January 1, 2021. So, consider planning to withhold from employee paychecks starting January 1 and either refund the employee contributions if your plan is approved, or use those contributions to date toward plan costs and cease withholdings going forward. If you know your company is going to have the employees pay their statutory share, get ready to start withholding employee payroll contributions as of January 1, 2021.

MATRIX CAN HELP!

We are experts on all state PFML programs. If you need help in any state contact your Matrix or Reliance Standard account manager. And if you can’t make it to the CT PFML webinar on December 3, watch this space for timely updates and contact your Matrix or Reliance Standard account manager or ping us at ping@matrixcos.com to receive the webinar recording when ready.

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
  • Care for an ill/injured servicemember
  • Bonding (birth, adoption, foster care)
  • Organ or bone marrow donation
  • Military exigencies
  • Matters related to employee being a victim of family violence (limited to 12 days of leave out of the 12 weeks)

 

 

 

 

 

§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. - Assistant General Counsel, Employment and Litigation

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.