NEXT ON THE HIT PARADE: DELAWARE FAMILY AND MEDICAL LEAVE INSURANCE

Posted On May 11, 2022  

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

May 11, 2022

 

The buzz around Maryland’s Paid Family and Medical Leave (PFML) hasn’t even died down and here’s Delaware with their Family and Medical Leave Insurance program (FMLI). Unlike Maryland, Delaware Senate Bill 1 became law without the dramatic flair of a veto and veto override. That being said, this bill is anything but ordinary.

A few items worth noting up front. This law borrows heavily from the federal Family and Medical Leave Act (FMLA). For example, it uses the FMLA’s months of service and hours worked requirements (but not the 50 employees/75 miles rule) for employee eligibility; the FMLA’s definitions of a serious health condition, family member, and military exigency; and defines the “application year” for measuring leave usage as the “12-month period as defined in the FMLA”.

In a welcome change, DE FMLI’s benefit rate is a flat 80% of the employee’s wages, not one of those mind-bending multi-layered formulas used by many other states. 

However, the juiciest tidbit worth mentioning is that Delaware’s employers (not the Delaware Department of Labor) are responsible for collecting and retaining claims information, adjudicating claims, and reporting approvals to the Department of Labor. At this time, that’s the extent of what we know about this unique administrative model. Happy times for Delaware employers!

Now that we got that out of the way, here is a brief summary:

  • Contributions start January 1, 2025
  • Benefits start January 1, 2026
  • Covered employers: All employers with 1 or more employees in the state
    • Employers with 1-9 employees can opt in to Parental Leave
    • Employers with 10-24 employees in the state must provide employees Parental Leave only
    • Employers with 10-24 employees in the state can opt in to Family Caregiver and Medical Leave
    • Employers with 25 or more employees must provide Parental, Family Caregiver, and Medical Leave
  • Employee eligibility: 
    • 12 months of service and
    • 1250 hours worked in the previous 12-month period
  • Leave reasons:
    • Bonding with a new child (Parental Leave)
    • Employee’s own serious health condition (Medical Leave)
    • Care of family member with a serious health condition (Family Leave)
    • Military exigencies (also Family Leave)
  • Amount of leave & benefits
    • 12 weeks for Parental Leave in an application year (the “12-month period as defined in the FMLA”)
    • 6 weeks combined for Family Caregiver Leave (including Military Exigency) and Medical leave in a 24-month period
    • Not more than 12 weeks total in an application year
  • Covered family members (all as defined in the FMLA):
    • Parent
    • Child
    • Spouse
  • Private plans will be allowed – insured or self-funded; such plans must:
    • Be offered to all employees
    • Equal or exceed the benefits and protections afforded by the PFMLI program
    • Be approved by the DE Department of Labor

You can review our more detailed summary of the Delaware PFML program and all state medical and family leave benefits at our statutory plans microsite on our Statutory Disability and Paid Family Leave Laws – Delaware is being added as you read this!

 

Matrix Can Help!

Our team is constantly tracking legislative updates to stay current on the latest and greatest when it comes to Leave, accommodations, and statutory benefit programs. Be it self-funded or fully insured, Matrix Absence Management and Reliance Standard offer a full line of absence management solutions, including private plans for statutory benefits. If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at ping@matrixcos.com.

JOIN US FOR A TIMELY DMEC WEBINAR ON WORKPLACE ACCOMMODATIONS

Posted On May 02, 2022  

May 02, 2022

 

You know, while many of you were outside on the playground during recess, we here at Matrix Radar were inside double-checking our work. We never got to sit with the Cool Kids, but look at us now: After all these, people are still asking us for the answers!

Which is why we want to invite you to join us for The Ins and Outs of Workplace Accommodations, a DMEC sponsored webinar Thursday, May 19, at 12 noon Eastern (9 AM Pacific). We’ll discuss the results of the 2022 DMEC Workplace Accommodations Pulse Survey, along with information we’ve gathered from more than 5 years of surveying employer ADA Accommodation data – all designed to help you understand the landscape and prepare your own organizations for the next wave.

You can register to attend this useful webinar on the DMEC website here.

But wait: Being teachers’ pets has its advantages. Ordinarily, non-DMEC member companies have to PAY to get access to this kind of info. But you, our faithful readers, can sneak in for FREE. Just enter this Coupon Code when you register, and any fee should zero out: 22MATRIX1

See? Aren’t you sorry you picked us last all those times? We turned out pretty cool.

See you on May 19!

IT’S A NEW YEAR, AND WE HAVE NEW PFML LAWS! DEVELOPMENTS IN 2022 (SO FAR!)

Posted On April 18, 2022  

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

April 18, 2022

 

We’re off to a grand start for paid family and medical leave developments in 2022.  In this post we’ll share:

  • Our up-to-date map showing 2022 state PFML legislative activity
  • The new Virginia law authorizing private paid family leave insurance independent of a state program
  • The just-passed Maryland PFML law
  • Amendments to the existing Washington PFML statute
  • A word on those intriguing PFML plans in New Hampshire and Vermont

 

The Map! 

At Matrix we keep this map up to date in real time as state PFML legislative activities develop.  You can always get the latest copy from your account manager or by emailing us at ping@matrixcos.com.

As you can see, although the feds failed to pass a paid leave law, state legislatures have been very busy in the PFML world in 2022.  At least 23 states have introduced PFML legislation of some kind – and counting.  So far Maryland is the only state to pass a PFML program (see summary below) but the year is young yet!  If you need more detail about the state programs that are paying benefits or are in the implementation phase, check out our “statplans” document here:  Statutory Disability and Paid Family Leave Laws https://www.reliancestandard.com/statplans/.  Every blue and green state on the map is summarized (well, Maryland may take a couple more days but coming soon!).

 

 

 

Virginia’s New Idea

Is this the beginning of a trend?  Virginia has passed  Senate Bill 15 that enables insured paid family leave products independent of any PFL statute.  In summary:

  • The law is effective July 1, 2022.
  • It establishes paid family leave insurance as a class of insurance available in Virginia.
  • The benefit can be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate policy.
  • The policy may offer paid leave benefits to cover an employee’s loss of income due to:
    • the birth of a child or adoption of a child by the employee;
    • placement of a child with the employee for foster care;
    • care of a family member who has a serious health condition; or
    • circumstances arising out of the fact that the employee's family member who is a service member is on active duty or has been notified of an impending call or order to active duty (commonly referred to as “qualifying exigencies”).
  • There are no requirements regarding:
    • the duration of benefits that must be offered;
    • the percentage of wage loss to be covered;
    • which family members must be included in the family care benefit; or
    • other details we are used to seeing in state mandated PFML or PFL programs.

This insurance product is entirely voluntary – no carrier is required to offer such a policy, and no employer is required to buy it or make it available to employees.

At this point there is no Virginia paid family leave or paid family and medical leave program, although current Senate Bill 1 proposes such legislation.  That bill appears to have been tabled until 2023 and legislators would have to do some fancy footwork to coordinate this new voluntary insurance product with a traditional (if there is such a thing) state-mandated paid family and medical leave program.

Maryland’s New PFML Law

Speaking of “traditional” paid leave laws, Maryland has passed a PFML law of the type we are more used to seeing: that is, a state-run program mandatory for most or all employers, usually with private plan options.  Maryland Senate Bill 275 was passed by the state legislature but vetoed by Governor Hogan with a letter criticizing the bill as “an irresponsibly crafted, rushed piece of legislation that unfairly penalizes” small business owners.  The legislature enacted the bill with a veto override on April 9, 2022.  The law has some gaps and unusual provisions, and industry chatter has it that an additional bill will be introduced in 2023 to fix some of the perceived problems.

Here is a brief summary:

  • Contributions start October 1, 2023
  • Benefits start January 1, 2025
  • Covered employers: all with 1 or more employee, but employers with fewer than 15 employees do not have to pay the employer share of contributions
  • Employee eligibility:  680 hours worked in prior 12 months – but the law does not specify whether the 680 hours must be worked for the employer from whom leave is sought, or hours from which contributions were withheld, or even hours worked within the state of Maryland. Definitely in need of clarification here!
  • 12 weeks of leave & benefits
    • An additional 12 weeks is available if the employee qualifies for leave and benefits for both the employee’s own serious health condition AND for bonding with a new child in the same leave year. Huh?
  • Leave reasons:
    • Bonding with new child
    • Employee’s own serious health condition
    • Care of family member with a serious health condition
    • Care of a servicemember who the employee’s next-of-kin(not defined)
    • Military exigencies
  • Covered family members (all broadly defined to include biological, adopted, foster, step, and other categories):
    • Child – the broad definition also includes a child placed for “kinship care” (not defined)
    • Parent and parent-in-law
    • Spouse
    • Grandparent
    • Grandchild
    • Sibling
  • Private plans will be allowed – insured or self-funded; such plans must:
    • Be offered to all employees
    • Equal or exceed the benefits and protections afforded by the PFMLI program
    • Be approved by the MD Department of Labor

Full details on the Maryland PFML law will be available soon on our statplans microsite:  https://www.reliancestandard.com/statplans/.

Washington Amends Its PFML Statute to Add a New Leave Reason . . .  and Other Stuff

Washington Senate Bill 5649 was signed into law by Governor Inslee on March 30, 2022.  The bill has many provisions amending the WA paid family and medical leave program effective June 9, 2022.  Among the most pertinent provisions, the amendments:

  • Add a new family leave reason for leave taken by an employee from work during the 7 calendar days following the death of a family member for whom the employee would have qualified for medical leave for the birth of their child (i.e., pregnancy-related serious health condition) or for family leave for bonding with a new child.
    • Essentially, this is a type of bereavement leave for death of a new child
    • The statutory language connects the ability to take leave with whether the employee could/would have taken either PFML medical leave or bonding, opening the question whether the leave is available for a stillbirth or miscarriage. The ESD is tasked to provide regulations, so hopefully this rather obtuse language will be given some clarity.
  • Mandate that leave taken during the “postnatal period” (the 6 weeks following birth) must be medical leave unless the employee chooses to take family leave. This appears to be a vehicle to provide birth mothers with as much leave as possible, as the medical leave and bonding leave draw from different buckets capped at 12 weeks (plus 2 weeks for a serious health condition related to pregnancy that results in in capacity), but the total amount of leave available is 16 (or 18) weeks.
  • Prohibit requiring a medical certification for leave during postnatal period.
  • Specify that the exemption from PFML compliance for any party covered by a collective bargaining agreement in existence on October 19, 2017, expires on December 31, 2023.

A Word on New Hampshire and Vermont

These states have veered off in a new direction, with programs that require the state to contract with an insurance carrier to provide paid leave to all state employees and voluntary paid leave for employers and individuals who opt in.  New Hampshire’s law goes into effect on January 1, 2023, and promises to be a challenge, as the state only recently issued a Request for Proposals for carriers to bid on the business.  That leaves only 8 ½ months to award the bid and for the winning carrier to design and implement a complex program.  Good luck with that!  You can read more about the New Hampshire program here and on our statplans microsite here.

Vermont is proposing a similar program but is doing so through state contracting processes and without a supporting statute.  Although Vermont is likewise hoping to start paying benefits on January 1, 2023, it is being more reasonable as it is open to a phased in approach for the other two tiers of voluntary participants – employers who elect to provide coverage to their employees, and non-covered employees and self-employed individuals who elect to opt in.  Even meeting that single January 1 goal is optimistic, however, as so far the state has not even issues an RFP.  Watch this space for more information as Vermont plans develop.

Matrix Can Help!

As you can see from all the above information, we stay up to date and keep you informed on all the state PFML developments.  More than that, Matrix offers management of self-funded private plans for disability, family, and combined family/medical leaves and benefits, and our sister company Reliance Standard offers insured products as well.  If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at ping@matrixcos.com.

TOP 5 ISSUES TO CONSIDER WHEN PREPARING A PARENTAL LEAVE POLICY

Posted On April 07, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

April 07, 2022

 

Are you thinking about implementing a parental leave policy? Good for you! Well planned parental leave policies are excellent recruiting and retention tools, AND more importantly, offer great benefits for your employees.

Planning ahead is essential—even more so due to multiple state paid family and medical leave laws (click here for our summary) and the changing workforce resulting from the pandemic.

What should you think about when preparing a parental leave policy? Here are our top 5 suggestions:

#1: Consider the Basics

Decide what the policy will provide. This sounds obvious but this is an important first step.

  • Will the time off be paid, unpaid or hybrid? Will any paid time equal 100% of wages or a lower percentage? Must the leave be taken all at once or is intermittent/reduced schedule leave allowed? Subject to federal and state laws discussed in #2 and #3 below, these decisions are largely up to the employer and may depend, for example, on financial resources, company culture, and current policies and benefits already in place.
  • What about PTO or vacation benefits? Do you want employees to exhaust accrued PTO or vacation before any paid parental leave kicks in or treat each benefit separately?
  • Employee eligibility? Should employees qualify for such leave beginning day one of employment or will they be subject to certain eligibility requirements similar, for example, to the federal Family and Medical Leave Act (FMLA) (12 months of service, 1250 hours worked in the past 12 months) or corresponding state laws?
  • Are there benefits to offer other than leave? Consider offering other benefits that support new parents such as a new parent room for expressing breast milk, additional paid time off for caregivers, flexible work arrangements for returning parents, flexible return to work assistance, and if possible, onsite child care (or resources helping find child care which can be a stressful and daunting task).
  • What about the leave approval and return to work process? Make sure you have the resources to properly track and administer the leave.

#2: Do not forget about (or get confused by) the FMLA and state equivalents!

  • Quick Refresher: The FMLA provides eligible employees of covered employers with 12 weeks of job-protected leave for certain reasons identified in the law. The serious health condition of the birth mother and bonding with a new child are relevant to parental leave policies. For bonding leave, time must be taken within the first year of the child’s birth or placement for foster care or adoption and may only be used intermittently with employer approval.
  • Run Concurrently with FMLA: You should decide whether you want the leave to run concurrent with FMLA or whether you want to permit the employee to delay the company-provided parental leave. Remember, you may NOT delay application of the FMLA if the reason for the leave is FMLA-qualifying. For example, employers may not allow an employee to first use benefits under the parental leave policy and then have FMLA kick in. The Department of Labor (DOL) addressed this specific question, here.
  • Sound familiar? We have written about this issue many times. Check out this blog for example:

    DOL to Employers: If it’s FMLA, it’s FMLA. If it’s not, it’s not. | Matrix-Radar
  • State Unpaid Family and Medical Leave Laws: Similarly, you should check state family and medical leave laws, and if permitted (or required) run that leave concurrently with any paid parental leave policy. The DOL identifies resources summarizing state family and medical leave laws, which can be found here—not to be confused with state paid family and medical leave laws discussed next!

#3: Check state paid family and medical leave laws

  • Refresher: If you regularly follow our blog, you already know all about the state paid family and medical leave (PFML) laws, current and upcoming. If not, and you are feeling a rising sense of panic, you can find our map identifying and summarizing these laws here! Also, check out our blog on a related issue, here, discussing the challenges associated with preparing a one-size-fits all PFML policy.
  • Where are your employees? When planning a parental leave policy, check to see if you have any employees working in any of the states subject to PFML laws. Multi-state employers, in particular, should take steps to ensure the laws and requirements in each of those states coincides with the parental leave policy.
  • PFML Requirements and Coordination with Other Laws: Many of these laws have different rules on eligibility, pay (most do not provide 100% salary replacement), duration, etc. and are offset by any state paid benefits the employee receives or eligible to receive. It is essential that you understand these laws and coordinate them with your parental leave policy and other leave laws so they, to the extent possible, run concurrently. Failure to do so may cause an unintended result such as leave stacking of paid parental leave, FMLA leave and then PFML leave!
  • Changing Workforce: Don’t forget remote employees moving between states. This is becoming more and more common due to the pandemic. Given the minimal eligibility requirements for PFML in some states, it is possible for an employee to be subject to PFML in one state but not another or even more confusing, more than one PFML state!

#4: Treating Parents Equally

  • “Moms” versus “Dads”? Who will be benefiting from this policy? Both parents must receive equal time for bonding leave and other benefits surrounding the new child. Similarly, consider removing gender-specific roles and identities in your parental leave policy. For example, instead of using terms such as “mom” and “dad,” use gender neutral terms such as “partner,” “birth parent,” etc.
    • You are likely aware of the highly publicized litigation involving parental leave policies such as the $1.1 million 2018 settlement against Estate Lauder, which we reported here, and the pending parental lawsuit against Jones Day, which can be found here! Keep the lessons learned from these cases in mind!
  • Bonding and New Child Benefits: It is extremely important that you provide new parents equal benefits and time off for bonding leave and other benefits related to the arrival of the new child such as modified work schedules and other flexible return to work benefits.
  • Caregiver Status: Also, do not make any assumptions based upon a parent’s status as a caregiver. See the recent EEOC guidance on this topic which can be found here and here.
  • Pregnancy-Related Medical Conditions: According to EEOC Guidance, a birth parent may receive additional leave relating to a disability or pregnancy-related medical condition. Remember though--this is not the same, as bonding leave!

#5: Review and Revise (or Scrap) Overlapping Policies

  • Review Current Policies: Make sure you carefully review all existing company policies (such as attendance policies, compensation polices, PTO/vacation policies, etc.) and any short-term disability plan to ensure coordination of benefits. You may need to revise or remove these policies once your parental leave policy is effective.

Before finalizing your parental leave policy, you should carefully consider at least these 5 issues and discuss with your employment law counsel, human resources, payroll, and tax advisor.

Matrix Can Help!

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

DMEC COMPLIANCE CONFERENCE

Posted On March 17, 2022  

March 17, 2022

 

Good Things Come to Those Who Wait!

And this year’s DMEC Compliance Conference, starting this coming Monday March 21st, is no different! 

Our very own Marti Cardi, Vice President Product Compliance and Lana Rupprecht, Director, Product Compliance will be front and center on the last two days of the program (23rd and 24th).

Wednesday, March 23, 3:15pm
Marti and Lana will be hosting a Roundtable discussion “All Things Accommodation”.

Thursday, March 24, 8:30am
Marti and Lana are at it again with “The Provider Says No Overtime: ADA & FMLA Compliance in the Face of Scheduling Challenges”. Increasingly employees are notifying their employers of medical restrictions that preclude working overtime or limit work during normal shift hours.  In this session, Marti and Lana will identify FMLA and ADA issues employers face when overtime or scheduling becomes an issue such as calculating FMLA entitlement or determining whether overtime is an essential function under the ADA.  As an added bonus, they’re going to be taking you on a little tour of Los Angeles.  Prizes will be awarded (hint: study up on your Los Angeles hot spots!).

Thursday, March 24, 10:45am
Marti will be back as a panelist for an “Ask the Experts” session.  Here you can ask your most challenging questions and you get unfiltered answers. This interactive discussion allows you to have your specific “real-world” questions answered by specialists. Come prepared with your toughest questions and best of all, no billable hours are charged.

Finally, be sure and stop by our booth (214) during the week and chat with a Reliance Standard / Matrix representative.  It’s been too long, they would love to say hi!

VALENTINE’S DAY WORKPLACE HAPPENINGS

Posted On February 14, 2022  

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

February 14, 2022

 

Valentine’s Day isn’t usually a big event for leaves of absence, but join us as we take a look at 3 scenarios where the employers had their hands full. 

 

Flower Power

Miranda has numerous allergies for which she takes FMLA time periodically, especially in the Spring when plants are in bloom.  She previously submitted an FMLA certification stating she will need intermittent time off due to flare-ups of her allergies.  Miranda tells her supervisor (with plenty of notice and following her employer’s absence reporting procedures!) she won’t be at work on Valentine’s Day because she knows many co-workers will receive flowers from their loved ones and her allergies will flare up.  True to her word, Miranda misses work on February 14th.  A few days later one of Miranda’s coworkers tells their supervisor that she saw Miranda skiing at Vail on Valentine’s Day.  Should Miranda’s absence on February 14 be counted as FMLA time?

Answer:  Yes.  Miranda’s FMLA certification supports her need for intermittent time off due to flare-ups of her allergies.  And, the FMLA allows employees to take FMLA time to avoid having a flare-up of a serious health condition for which intermittent leave has been approved.  29 U.S.C. §825.102 [definition of “continuing treatment” (6)].

But what about Miranda’s ski day? Doesn’t that indicate FMLA misuse?  Not necessarily.  Skiing in the mountains in February is unlikely to expose Miranda to a high pollen count so her ski day is not inconsistent with the stated reason for her absence.  Happy schussing, Miranda! 

If HR is still concerned, best to talk tactfully with Miranda about the circumstances and also consider her past FMLA usage before just denying the leave.  What happened on the last Valentine's Day, for instance, or other days when coworkers received flowers at the workplace?

 

Cupid’s Challenge

Cupid is always busy the first two weeks of February, shooting lots of couples with love-laden arrows.  Last year, he was so much in demand he tore his rotator cuff and had to have surgery in April.  Months later Cupid’s shoulder is still giving him problems, but his off-season duties are not so strenuous, mostly completing reports on the prior season and scouting out candidates for next year.  Now here comes Valentine’s Day again, and Cupid is expected to work extra hours for a couple of weeks, shooting lots of arrows to keep up with business.  Cupid presents his employer (who might that be? Let’s call him “The Big Guy”) with a doctor’s note saying he can’t work overtime due to the strain on his injured shoulder.  No more than 8 hours per day, 5 days per week. What laws does The Big Guy need to consider?  And no, we’re not going to address child labor laws. 

Answer:  At least two laws are in play here (and maybe more depending on the state of Cupid’s employment):  the Family and Medical Leave Act and the Americans with Disabilities Act. 

Under the FMLA, Cupid can take time off to avoid mandatory overtime.  If he is FMLA eligible and has leave available, he can use FMLA to keep his hours in check.  The Big Guy just needs to be sure the mandatory overtime is also counted in calculating Cupid’s FMLA entitlement.  But what if recovery from surgery was a slow process and Cupid used up all his FMLA by July?  If Cupid’s employer (The Big Guy)  uses the rolling back leave year, he has no more FMLA entitlement until the next April, a year after the first day he took leave.

Enter the ADA.  In fact, the ADA has been running in the background all along, but FMLA leave trumped any ADA analysis as long as Cupid wanted a leave of absence.  Unlike the FMLA, there is no set limit on the amount of time off an employee can take under the ADA as long as it is reasonable and supported by a doctor’s opinion.  Now that Cupid’s FMLA entitlement is exhausted, the ADA steps up into place.  The fact that Cupid already used 12 weeks of leave for this shoulder condition is of little consequence to the ADA analysis (although it can be considered in determining what is a “reasonable” amount of total leave).    But The Big Guy has two defenses in an ADA situation that are not available under the FMLA: essential functions and undue hardship. 

First, The Big Guy has a pretty decent argument that overtime in the weeks leading up to Valentine’s Day is an essential function.  After all, it is important that Cupid make his appointed rounds and shoot his arrows into the unsuspecting targets.  No one else can do it!  And that leads to the other defense: undue hardship.  Without Cupid working overtime, many of the waiting couples will be missed; the day known for lovers will suffer.  Your classic example of operational difficulties!  The Big Guy can’t let that happen, and so – barring any other reasonable accommodation and what would that be? – Cupid’s request not to work overtime can be denied.  (Of course, that may be short-sighted by The Big Guy but maybe he knows something we don’t – like a successor to Cupid waiting in the clouds!)

NOTE:  Cupid’s situation just barely scratches the surface of issue relating to overtime and the FMLA and ADA. Join Marti and Lana at the DMEC Compliance Conference in Los Angeles March 21-24 when they will present an LA-themed session on overtime, the FMLA, and the ADA.  Featuring: “ Can You Name That LA Icon?”  Prizes (and FMLA/ADA knowledge) abound!  You can check it out and register here.

 

Pasta Problems

Tyler is approved for intermittent FMLA.   His certification says his gluten intolerance causes incapacitating flare-ups of bloating, headaches, and cramps when he eats gluten.   He is at work on Valentine’s Day but calls out the next two days because he is experiencing severe gluten symptoms.   Co-workers report seeing Tyler out with his finance on Valentine’s Night at a romantic Italian restaurant, sharing a plate of pasta à la Lady and the Tramp.  What should the employer do?

Answer: Tyler’s supervisor is advocating asking Tyler what he ordered in the restaurant, but what good will that really do?  You may just have to give this one to Tyler.  Many restaurants now offer gluten-free pasta and other options.  Maybe his flare-up is caused by some inadvertent gluten ingestion.  But so what if he did eat some gluten-laden pasta?  Can you deny FMLA because the employee voluntarily brought on the flare-up?  The answer is “no,” there is nothing in the FMLA that prevents legitimate leave usage even if the employee caused the serious health condition or a flare-up.  Nor can you require a doctor’s note for every intermittent absence.  29 U.S.C. § 825.308(b).  However, recertification might be appropriate if the employer believes that Tyler’s intentional pasta plate casts doubt upon his reason for the absence or the continuing validity of the certification.  29 U.S.C. § 825.308(c)(3).  But in that case, do talk with Tyler first to hear his side of the story. 

Finally, some food for thought . . . maybe Tyler should have given advance notice of his near-certain absence if he planned to eat pasta days in advance when he made the restaurant reservation and knew what the consequences of his date night would be!

 

Matrix Can Help!

At Matrix, we’re always assessing the application of leave and accommodation laws to the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations.  Contact your Matrix or Reliance Standard account manager, or one of our regional practice leaders for more information or send us a message at ping@matrixcos.com.

 

VACCINATION UPDATE: OSHA ETS WITHDRAWN BUT OSHSA IS STILL SEEKING A PERMANENT STANDARD

Posted On January 27, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

January 27, 2022

 

You knew it was coming...another update on vaccination mandates.

As we previously informed you here, on January 13, 2022, the U.S. Supreme Court issued an Order staying the enforcement of the OSHA Emergency Temporary Standard (ETS). The OSHA ETS was the federal vaccination or testing requirement for private employers with 100 or more employees.

Although the stay was technically temporary, the U.S. Supreme Court found in its January 13 opinion, that the parties challenging the OSHA ETS would likely succeed – meaning OSHA's attempt to enforce the ETS, as written, would likely lose. The opinion can be found here.

On January 25, 2022, OSHA posted the following announcement:

The U.S. Department of Labor's Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

Further, OSHA submitted a formal withdrawal of the ETS which can be found here, officially stating that the ETS will serve as a proposed rule under the Administrative Procedure Act subject to the regular notice-and-comment rulemaking process previously underway. To the extent you want detailed information on this process, the federal government has a great resource explaining the administrative rule making process here.

What does all of this mean?

  • Effective January 26, 2022, OSHA is withdrawing the ETS as a temporary standard. That means the pending lawsuits challenging the ETS will stop.
  • The ETS will remain as a proposed rule subject to the regular formal rulemaking process. As we previously informed you here, the notice and comment period for the ETS as a final rule ended on January 19th. After the process is complete, a formal regulation may be published on or before May 5.
  • It is unknown exactly what the final rule will look like but given OSHA's strong position, it is reasonable to assume that certain work-safety-related elements of the OSHA ETS will remain in place. Stay tuned, and we will continue to keep you posted as this develops.
  • As we have told you in the past, employers who were subject to the OSHA ETS may still implement their own vaccination policy. Given OSHA's intention to move forward with a final rule, implementing some sort of vaccination and testing policy may keep employers ahead of the game, subject to state laws of course. See our blog about state laws here.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

NOW THAT THE OSHA ETS IS BLOCKED, BEWARE OF STATE LEGISLATION...

Posted On January 18, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

January 18, 2022

 

As we reported on Friday, here, the U.S. Supreme Court blocked OSHA's enforcement of the Emergency Temporary Standard (ETS), which previously required many private employers with 100 or more employees to implement a vax or test policy. Employers may still opt to implement such a policy.

As promised, here is chart summarizing state rules which expand on the exemptions employers must make to vaccination policies.

NOTE: We also covered this during our Quarterly Compliance Update in the Docket last week! Stay tuned for a link to a recording and our materials.

ALABAMA

Effective: 11/5/2021

Exceptions

  • Medical Reasons identified by statute including prior COVID-19 diagnosis, severe allergic reaction, prior COVID-19 treatment, bleeding disorder, severely immunocompromised, or unable to take vaccine due to current health conditions or medications
  • Religious Beliefs

State Forms Required

  • If standard State Form is complete and submitted, employee exempt
  • Must be liberally construed in favor of employee

Legal Authority / Guidance

Additional Requirements

  • Includes administrative appeal procedure for employees if exemption request denied

ARKANSAS

Effective: 1/13/2022

Exceptions

  • Testing once a week
  • COVID-19 immunity provided twice a year

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • If unvaccinated employee is terminated and not offered testing, eligible for unemployment benefits

FLORIDA

Effective: 11/18/2021

Exceptions

  • Medical Reasons includes pregnancy or expectation of pregnancy
  • Religious reasons inquiries into the veracity of the employee’s religious beliefs prohibited
  • COVID-19 immunity from prior infection
  • Periodic testing
  • Employer-provided personal protective equipment (PPE)

State Forms Required

  • Must use actual or substantially similar forms created by the Florida Department of Health
  • If form submitted is complete, employer must permit exemption

Legal Authority / Guidance

Additional Requirements

  • Violations may be reported to the FL Attorney General who has authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more

IOWA

Effective: 10/29/2021

Exceptions

  • Employee requests waiver and provides one of the following statements:
    • Vaccine would be injurious to employee’s (or individual residing with employee) health and well-being
    • Vaccine would conflict with religion

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • Employees discharged for refusing vaccine may be able to receive unemployment benefits

KANSAS

Effective: 11/23/2021

Exceptions

  • Employee submits written waiver stating vaccine would:
    • Endanger life or health of employee or an individual who resides with employee
    • Violate religious beliefs and employer may not inquire into sincerity of request

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • Terminated employee may file claim with secretary of labor
  • If secretary finds violation, KS Attorney General shall impose a civil penalty
    • Up to $10,000 per violation for employers with fewer than 100 employees or
    • Up to $50,000 per violation for employer with 100 or more employees
  • Employees terminated in violation of this law eligible for unemployment

NORTH DAKOTA

Effective: 11/15/2021

Exceptions

  • Certification that vaccine would endanger life or health of employee
  • Certification that vaccine is contrary to employee’s religious, philosophical, or moral beliefs
  • Prior immunity to COVID-19 permitted proof of COVID-19 antibodies is valid 6 months from date of test
  • Periodic testing

State Forms Required

  • No specific forms required

Legal Authority / Guidance

TEXAS

Effective: 10/11/2021

Exceptions

  • Personal conscience
  • Religious Belief
  • Medical Reasons
  • Prior recovery from COVID-19

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

UTAH

Effective: 11/16/2021

Exceptions

  • Health reasons
  • Religious beliefs
  • Personal beliefs

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

  • Prohibits an adverse action against an employee who claims relief
  • Prohibits employer from keeping or maintaining records or copies of employee's proof of vaccination

WEST VIRGINIA

Effective: 1/20/2022

Exceptions

  • Exempt if employee presents:
    • Notarized certification by Heath Care Provider stating medical exemption is required due to individual’s physical condition, a specific precaution or COVID-19 immunity
    • Notarized certification by employee that religious beliefs prevent employee from receiving COVID-19 vaccination

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

  • Employer may not discriminate or penalize employees providing for exercising exemption rights

In addition to the states identified above, Montana prohibits private employers from discriminating against employees based on vaccination status or having an immunity passport. Montana statute, effective May 7, 2021, and guidance can be found here and here.

Also, Tennessee legislation, effective November 12, 2021, prevents employers from requiring its employees to show proof of vaccination and prevents employers from taking adverse action against employees who object to receiving a COVID-19 vaccine for any reason. The statute can be found here.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

THE OSHA ETS IS BLOCKED BUT THE CMS IFR MOVES FORWARD

Posted On January 14, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

January 14, 2022

 

During our January 11 Quarterly Compliance Update we reported that the Supreme Court of the United States (SCOTUS) heard oral arguments on January 7 on two federal vaccination mandates. Specifically, SCOTUS was asked to determine whether the OSHA Emergency Temporary Standard (ETS) and the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS) should be temporarily stayed (or stopped) pending further legal review.

On January 13, 2022, SCOTUS issued two decisions. It stayed the OSHA ETS but it lifted the injunctions on the CMS IFR so now, it may be enforced in all states. The two written opinions can be found here and are briefly discussed below.

OSHA ETS

  • The OSHA ETS, which required private employers with 100 or more employees to implement vaccination or weekly testing requirements for their employees, is temporarily stayed and cannot be enforced by OSHA at this time.
  • As we previously reported here, the ETS was issued by OSHA on November 5. Then, it was initially stayed by the 5th Circuit Court Appeals as we reported here and here.
  • After various cases challenging the ETS were consolidated before the 6th Circuit Court of Appeals, the 6th Circuit lifted the stay on December 17 and allowed the OSHA Rule to take effect as we reported here.
  • Now, SCOTUS has again stayed the OSHA ETS. The 6th Circuit Court of Appeals will be able to decide if the OSHA ETS should be enjoined permanently—and that decision is subject to review again—by SCOTUS.
  • OSHA issued a statement in response to the January 13 decision stating, in part:

“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

CMS IFR

  • And then, the IFR, the government vaccination mandate issued by CMS may now be enforced in all 50 states.
  • As a refresher, the IFR is applicable to Medicare and Medicaid certified providers and suppliers and their health care workers working in hospitals, nursing homes and other health care facilities. More background can be found here and here.
  • SCOTUS concluded that the Secretary of Health and Human Services did not exceed statutory authority and stated, “in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

What does this mean for employers?

  • Employers who were subject to the OSHA ETS may still implement their own vaccination policy or they may choose not to at this time. Employers moving forward with a vaccination policy should be aware of state laws which will be discussed in a later blog.
  • Health care facilities and suppliers subject to the CMS IFR must comply with the mandate. CMS will likely update its guidance, but the current version showing compliance deadlines of January 27 and February 28 can be found here.
  • The SCOTUS January 13 decisions do not impact employers who are federal contractors and subcontractors. The vaccination mandate in EO 14042 is still stayed. See our prior blog here for more information.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com

Q4 - THE DOCKET

Posted On January 10, 2022  

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

& Lana L. Rupprecht, Esq. - Director, Product Compliance

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

January 10, 2022

 

Happy New Year!  But before we close the books on 2021, let’s take a last look at the fourth quarter of 2021, its legislative activities and go over what it means to you.  Compliance updates in the coming year show no sign of slowing down, but keep up with our webinar series, The Docket:

The fourth quarter review of All Things Absence!  Matrix Absence Management Vice President Marti Cardi, Esq. together with her team Lana Rupprecht, Esq, and Armando Rodriguez will cover:

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

Click here to sign up for The Docket Q4 webinar on January 11, 2022 at 2:00 PM ET.