COVID-19 AND WORKERS’ COMPENSATION

Posted On May 27, 2020  

by Mark Antonson - AVP, Workers Compensation Administration

& Jose Reynoso - Director, WC Administration

May 27, 2020

 

Did you know that Matrix Absence Management administers workers’ compensation claims? We do and, in fact, workers’ comp was Matrix’s original line of business back in the day! Yet for all the COVID-19 coverage we have provided, this is a topic we haven’t covered yet.

I’m not a workers’ compensation expert so I turned to my Matrix colleagues, AVP Mark Antonson and Director Jose Reynoso, for assistance. Thanks, guys!

If Matrix isn’t your workers’ comp claims administrator, I think this article will still be helpful – be sure your administrator is following the best practices outlined below.


The Impacts of COVID and WC Administration

Several states have enacted or by Executive Order adopted presumptions of compensability for Workers’ Compensation benefits for certain classifications of workers, typically healthcare workers and first responders. Some of these states have also expanded or are considering widening access to workers compensation coverage for COVID-19 beyond health care workers and first responders to include all workers labeled as essential. The National Council on Compensation Insurance provides regularly updated legislative and presumption activity by state as a useful reference.

Although administering claims in jurisdictions with presumptive rules places the burden on the employer to prove the virus was not contracted at work, it is still important to remember these are rebuttable presumptions and employers/claims administrators should still be diligent in investigating each claim thoroughly to overcome the presumption.

At Matrix, in conjunction with our defense counsel and Special Investigations Unit vendor, we have tailored our investigative practices involving COVID exposure claims to include gathering the appropriate information and unique circumstances of an employees exposure to ensure we have a full understanding of the exposure event in an expedited manner.

Continuity of Care

A lot of attention has been focused on the virus and whether it is workrelated, what the cost impacts will be to the industry, what are the long term effects if any, etc. In addition, there is still a number of open claims for individuals without COVID who are impacted by the pandemic, such as those who require treatment for other work-related conditions or whose care has been interrupted or delayed as a result of the pandemic.

The importance of continuity of care is essential for employees to remain on the path to recovery and return to work. At the start of the shutdown, Matrix began coordinating with employee’s treatment providers to explore alternatives to in-person care via tele-medicine and tele-rehab. Staying active in providing alternatives for ongoing care has allowed us to maintain closing ratios at pre-COVID levels through April. We have seen delays in treatment for those requiring surgical procedures that were re-scheduled as they were deemed non-essential procedures.

Slowdown in Claims Resolution

Where we have seen a slowdown in moving claims to resolution are in jurisdictions whose Workers’ Compensation Hearing Divisions are only hearing certain types of cases or have rescheduled all hearings to later in the year. Although hearings in some states are delayed, it does provide us with the opportunity to reach settlement agreements amenable to both parties.

Return to Work

As the shutdown lightens, return to work in a number of industries – notably airlines, retail, restaurant, and hotel/hospitality – for both regular and modified/alternate work will be challenging. Using vocational counselors for outside job placement may be equally challenging given the number of employers who are not operating at capacity. Matrix continues to partner with our clients to find innovative return to work solutions based on our clients’ and their employees’ unique situations.

Impact on Disability Claims

Many short term and long term disability plans have an exclusion for claims covered by workers’ comp. Matrix’s disability claims examiners are well aware of this exclusion and which of our clients’ plans have such a provision, and will administer the disability claims accordingly.

Matrix can help!

If you are interested in learning more about Matrix’s workers’ compensation claims management services, please contact your Matrix or Reliance Standard Life Insurance account manager, or ping us at ping.matrixcos.com .

STILL WRANGLING COVID-19 NEWS – ERISA, ADA, FFCRA, AND NY

Posted On May 15, 2020  

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

May 15, 2020

 

Cowboy Radar

 

Every time I think I can write about something other than COVID-19, along comes another new law, regulation, or interpretation that I want to share with you. The roundup seems to be getting smaller, but the rodeo ain’t over yet, pardner. Saddle up, ’cause here are the latest:

ERISA Extensions of Disability Filing Deadlines

There are new deadlines in town. The Employee Benefits Security Administration (Department of Labor) and the Internal Revenue Service (Department of the Treasury) have issued a rule providing beneficiaries of certain ERISA plans with extra time to meet filing deadlines. Extensions are in place with respect to disability plans for claimants to file an initial claim for benefits and to appeal an adverse benefit determination.

ERISA rules do not provide a specific minimum timeframe that must be allowed for an individual to file an initial claim for disability benefits. See 29 C.F.R. § 2560.503-1. Rather, the timeframe is set by the plan. Now, a plan’s deadline for initiating a claim must be extended by the “Outbreak Period” explained below.

For adverse benefit determinations, the regular ERISA rules provide that a disability benefits plan must allow at least 180 days to appeal. 29 C.F.R. § 2560.503-1(h). This period too is now extended by the Outbreak Period.

The President declared a national emergency on March 13, 2020. For purposes of the new ERISA rules, this National Emergency is deemed to have started on March 1, 2020. The “Outbreak Period” is the time from March 1, 2020, until 60 days after the announced end of the National Emergency or such other date announced by EBSA and the IRS in a future notice. Counting to identify the deadline for an initial claim or an appeal of an adverse benefits determination must “disregard” the Outbreak Period. In other words, the time for filing is tolled for the duration of the Outbreak Period.

Here are some examples. For purposes of these examples we need an announced end date of the National Emergency and we will use April 30, 2020. The Outbreak Period ends 60 days later, on June 29.  

Example 1: Marie becomes disabled on March 15 and her employer’s disability plan allows her 30 days to file an initial claim for benefits, or until April 14 under the terms of the plan. However, since her disability occurred during the Outbreak Period, her 30 days to file a claim does not start until June 30. Marie has 30 days from that date, or until July 30, to file her claim.

Example 2: Donnie receives notification of an adverse benefit determination from his employer’s disability plan on January 28, 2020. The notification tells Donnie he has 180 days within which to file an appeal. However, the Outbreak Period is disregarded in calculating this 180 days. Donnie’s last day to file an appeal is 148 days after June 29 (180 minus the 32 days from January 28 to March 1), which is November 24, 2020.

This new rule applies retroactively. Because no time from March 1, 2020, through the end of the Outbreak Period counts toward a filing or appeal deadline, plan administrators will need to review any claim or appeal denials that occurred on or after March 1, and reverse any denial that is solely based on the claimant’s failure to meet the claim filing or appeal deadline.

What is Matrix doing? We are on top of this and ready to comply with the new deadlines. Specifically,

  • Matrix is implementing the new deadlines immediately for clients
    with self-funded ERISA disability plans
  • We are updating our denial letters to reflect the new information about
    the deadline to file an appeal
  • We will conduct an audit of ERISA claim denials and appeals upheld
    since March 1 for adverse determinations based on late filing and take
    steps necessary to correct those determinations.

If you have any questions, please contact your Matrix or Reliance Standard account manager.

NOTE: The new ERISA rules also affect claims for life and health benefits, health plan enrollment, and post-employment continuation of health coverage (COBRA). The Final Rule and supporting materials are available here: Final Rule, FAQs, and EBSA explanation of extensions.

 

ADA Guidance – The EEOC Continues Its COVID-19 Updates

Every few days the EEOC adds some new questions to its Technical Assistance Questions and Answers regarding COVID-19 and the ADA. The latest set provide guidance regarding employees with medical conditions that the Centers for Disease Control have identified as “high risk” – meaning that an individual with one of these conditions is at higher than average risk of developing severe illness from COVID-19. The conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, compromised immune systems, severe obesity (body mass index [BMI] of 40 or higher), diabetes, chronic kidney disease, and liver disease. The EEOC addresses ADA issues and high-risk individuals in its new Questions G.3, G.4, and G.5. [Persons age 65 and older and those living in a nursing home or long-term care facility are also classified as high risk by the CDC but these are not ADA-protected disabilities.]

Individuals with high-risk medical conditions may request an accommodation to reduce the risk of exposure to COVID-19. As with all ADA requests, the employee does not need to mention the ADA or the word accommodation specifically, but merely has to make the employer aware that she needs a change in her work situation due to a medical condition. The employer may then ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship,that can be provided. Question G.3.

An employee with a high-risk disability who has never needed an accommodation may now need one as a result of the pandemic:

  • Due to a changed work environment, location, equipment, schedule, etc., and/or
  • To reduce the chance of exposure, if the employee is classified as high risk

Example: An employee with controlled diabetes normally functions at work without any accommodation, or with an accommodation not tied to COVID-19 (e.g., breaks for insulin monitoring and injections). Then, because the employee has a high risk disease, the employee requests an accommodation to reduce the risk of exposure, such as a separated work station or work from home.

So do what you always do: engage in the interactive process with the employee to see if you can meet her needs. The EEOC suggests the following accommodations to help minimize the risk of exposure (Question G.5.):

  • Additional or enhanced protective gowns, masks, gloves, or other gear
    beyond what the employer may generally provide to employees returning
    to its workplace
  • Additional or enhanced protective measures, such as erecting barriers or
    creating greater spacing between work areas
  • Elimination or substitution of the employee’s “marginal” job functions
  • Temporary modification of work schedules (if that decreases contact with
    coworkers and/or the public when on duty or commuting) or
  • Moving the location of where one performs work (for example, moving a
    person to the end of a production line rather than in the middle of it if
    that pro
    vides more social distancing).

The Job Accommodation Network (www.askjan.org) also may be able to assist in identifying possible accommodations. The EEOC encourages employers and employees to be creative and flexible. And employers, don’t worry about creating a “permanent” accommodation – the EEOC supports trial or temporary accommodations.

Finally, what about the employee who you know has a high-risk medical condition but doesn’t ask for an accommodation to reduce risk of exposure? Do you force the employee to stay home or accept other accommodations for his own good? Be careful there, cowboy. First, without a request for such an accommodation, you have no obligation to provide it. Second, that path requires an in-depth analysis to show that by working without appropriate accommodations, the employee poses a direct threat – a “significant risk of substantial harm” – to his own health. If you really want to follow this trail, read the EEOC’s Question G.4. for more guidance.

What is Matrix doing? Thanks to our already robust processes for managing ADA accommodations, Matrix has not had to make changes to provide our ADA clients with compliant accommodation services. However, our ADA Specialists have all been trained in the changing accommodation needs and analysis due to COVID-19. We’re here for you!

 

FFCRA – The DOL Adds More Questions & Answers

The latest set of Questions and Answers from the Department of Labor (#89-#93) includes a potpourri of topics. Here are the ones we find of greatest interest:

Employees from temporary agencies. Question #90 addresses how FFCRA paid leave rights apply to temporary workers when an employer (the “second employer”) has under 500 employees but the temporary agency has more than 500. In many temporary worker situations the second employer is a joint employer of the temp worker. In that case, in general, the second employer (under 500 employees) must provide the temporary worker with FFCRA rights and the temporary agency (more than 500 employees) must not interfere with the employee’s use of those rights to take leave of absence. But the determination of whether the second employer is a joint employer of the temp employee requires legal analysis of all the facts of the relationship. [Can you say, “Call my lawyer?”] And here’s an unanswered question: what do you pay the employee? The amount you pay through a temp agency probably includes the agency’s fee, so can you pay only what the employee actually pockets? And how do you handle tax and other withholding?

Wait, while you’ve got that lawyer on the line . . .

School closures – now and in the summer. Employers appear to be struggling with when an employee is entitled to the FFCRA emergency paid sick leave (EPSL) and/or expanded FMLA (EFML) due to a school or day care closure. Question #91 asks, What if my employee has been working at home for weeks with children present and now wants to take EPSL or EFML? Can I deny that? The DOL says, “not necessarily.” You need to ask questions about why the employee needs that leave now. Perhaps conditions at home have changed, or the employee is finding that he isn’t effective working with the kids at home 24/7. Or, the employee’s spouse has already used EPSL and EFML from her employer and now it is your employee’s turn. You can require that the employee to provide the information and documentation that is permitted under FFCRA and the IRS tax rules. You may also ask the employee to note any changed circumstances in his statement as part of explaining why the employee is unable to work, but the DOL warns, “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” (I’m not really sure what that means but thought I would share the warning with you!)

And finally, the DOL answered my pending question about EFML and summertime! After a school closure due to COVID-19 and distance learning, your employee’s child’s school closes for summer vacation. Can your employee now take EPSL or EFMLA? Sorry, no. If the school closes for summer vacation or any other reasons not related to COVID-19, the benefits of FFCRA are not available. But, if the anticipated summer day care provider, summer camp,, etc., is closed or won’t open due to COVID-19, the employee may be able to use EPSL and/or EFML. Just have the employee follow the usual notice and documentation rules. (Question #93)

Also covered: FFCRA and casual domestic workers (Question #89) and permissible documentation for an employee taking leave to obtain testing (Question #92).

 

NY PFL – A new WCB Position on PFL for Child Quarantine

The new New York law providing paid quarantine/sick leave and related benefits has been a real challenge – a poorly written law rushed through with lots of unclear provisions and little high-level understanding of how it would work in reality. Recently the NY Workers Compensation Board, which administers the law, came out with a new interpretation of one of the benefits: a total flip-flop from its prior position. We previously summarized the law here and have kept that post up to date, including this change. But because the new interpretation affects employees of companies with 100 or more employees, we want to draw attention to it.

Under the law (as we thought it was written) employees of small companies (those with fewer than 100 employees) seeking paid sick leave (if any) provided by the law, could take NY Paid Family Leave for a new leave reason, to care for a child under an order of quarantine or isolation; but employees of large companies (those with 100 or more employees) did not have this entitlement. The WCB now says that was wrong, and employees of those larger companies can also take PFL for a child’s covered quarantine. If you thought riding that bucking bronco for the full 8 seconds was challenging, try your hand at trying to stay on top of the NY paid sick leave law! Yee haw! 

Next out of the chute!
At some point, COVID related questions and issues will subside – though probably not soon enough. Meanwhile the world turns and the sun rises and sets, and there are other laws, regulations and accommodations to be considered – in most cases, ones that will outlast the killing power of the coronavirus bug. Fortunately, we can multitask (which is good, because you have to, too!) and will be picking up our Legislative Update series with some good, ol’ fashioned, wholesome state Paid Family and Medical Leave updates on Thursday, May 28. So watch your email, and this space, for your invitation and registration link.
If you’d like a copy of our presentation or recorded webinar from last week’s update, you can click the links provided.

WRANGLING ALL THAT COVID-19 NEWS – THE LAST (NOPE…) WE MEAN NEXT ROUND-UP

Posted On April 29, 2020  

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

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

April 29, 2020

 

Cowboy Radar

COVID news just keeps coming. In our last Roundup we covered the DOL’s latest FFCRA Q&As, USERRA and COVID-19, and orders from the governors of California and Washington. Today we saddle up with:

  • More ADA guidance from the EEOC
  • OSHA – employer obligations to provide a safe workplace
  • COVID goes to court
  • COVID in the city
  • Colorado joins the rodeo

More ADA Guidance from the EEOC

As we previously reported here and here, the EEOC offers employers assistance regarding the COVID-19 pandemic and compliance with the Americans with Disabilities Act in its document What You Should Know About COVID-19 and the ADA. The agency has lately added more questions and answers to the guidance. In short, all the usual ADA rules and requirements continue to apply but they may take on a new hue in a request related to COVID-19.

Here are some of the key takeaways, but be sure to consult the full document – this is a summary and the EEOC has much more info for you!

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

Yes. Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. However, employers should ensure that the tests are accurate and reliable and should still require – to the greatest extent possible – that employees admitted to the workplace observe infection control practices to prevent transmission of the virus. (And see the OSHA segment below.)

D.6. [See also D.5] During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?  (4/17/20)

Yes, even during COVID days, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee, now and in any ADA case, may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).  

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Employers may choose to forgo or shorten the “interactive process” and grant the request. In addition, employers may wish to set an end date for an accommodation expected to be temporary or approve it on a trial basis. This may be pertinent while awaiting medical documentation in order to allow an accommodation that provides protection due to an employee’s heightened risk due to the pandemic. If circumstances change the employer should consider an extension of a temporary accommodation or whether a different accommodation is needed.

D.10. and D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” or “significant expense during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Examples include increased difficulty due to the pandemic in obtaining special equipment, providing temporary assignments, or removing marginal functions.

As to “significant expense,” the employer can consider sudden loss of some or all of an its income stream because of this pandemic and when current restrictions on an employer’s operations may be lifted. An employer cannot simply reject any accommodation that costs money but must weigh the cost of an accommodation against its current budget and current constraints created by this pandemic. Even under current circumstances, there may be many no-cost or very low-cost accommodations.

If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems. 

D.12. Does the ADA apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. All employees continue to be covered under the ADA and employers must consider accommodation requests during the pandemic, engage in the interactive process, and provide an effective reasonable accommodation if it doesn’t pose an undue hardship.

Coronavirus Goes to Court

The first known COVID-19 lawsuit has hit the courts! (Can a Movie-of-the-Week be far behind?) Plaintiff Amy Reggio lives in Dallas County, TX. According to the complaint, Dallas County Judge Clay Jenkins, who is in charge of Dallas County’s coronavirus response, issued orders requiring all individuals anywhere in Dallas County to “shelter in place.” Reggio worked as general counsel for a real estate development and investment firm which, she alleges, is not an “essential business” under the Dallas County stay-at-home order. Reggio informed her boss Mark Tekin of the order and of her inability to leave home and go to work as a result. Reggio told Tekin she could perform all of her job duties from home, but claims Tekin said “working from home did not work for him and it would not be allowed or considered.” Reggio explained to Tekin that if she violated the Dallas County order she could be subject to criminal prosecution, including imprisonment. Tekin terminated Reggio on March 27 when she continued to refuse to violate the Dallas County order and go to work.

Reggio’s claim is based on a legal theory known as “public policy wrongful discharge.” An employee may assert this claim when (1) her employer required her to commit an illegal act that carries criminal penalties; (2) the employee refused to engage in the illegality; (3) the employee was discharged by employer; and (4) the sole reason for the employee’s discharge was her refusal to commit the unlawful act. Reggio’s allegations check all four of these boxes, so game on! She is asking for $1 million in damages, include lost wages and benefits, other compensatory damages, and punitive damages. It’s very early yet in this litigation but my bets are on Reggio and a quick settlement – although probably not a million bucks.

The case is Reggio v. Tekin & Assoc., LLC (Dallas County Court, Texas No. CC-20-01986 B).

Lessons for employers. These tough times call for new ways of doing things. Employers need to be flexible and approach difficult situations with an open mind. Remember, special measures imposed as a result of COVID-19 are temporary, so allowing something that is not usually done can also be temporary. This was not a situation where the employee, on her own, decided not to go to work because she was uncomfortable or concerned about being exposed to the virus. In that case the employer might be able to require the employee come to work, but it needs to take appropriate measures in the workplace to ensure a safe environment – and for that issue, read on!

OSHA, COVID-19, and the Employer’s Obligation to Provide a Safe Workplace

As we look forward to a return to the usual workplace and routines, understanding an employer’s OSHA obligations with respect to COVID-19 is especially important. Employers are required to provide a safe workplace and appropriate safety equipment for workers. Employers outside of a manufacturing, processing, or other heavy industry may not regularly think about OSHA requirements. The occasional office paper cut just doesn’t stir much concern.

But now we are in COVID-land. The federal Occupational Safety and Health Administration administers laws that regulate worker safety, which will take on new significance as employees go back to the office. Two provisions of the Occupational Safety and Health Act are particularly applicable to COVID-19 in the workplace:

The General Duty Clause, Section 5(a)(1) requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

So, new measures like spacing of desks, ample supplies of hand sanitizers and wipes, and limitations on use of common spaces and facilities may become necessary to fulfill an employer’s OSHA obligations. OSHA recently issued a booklet, Guidance on Preparing Workplaces for COVID-19. Recommendations include the now-familiar handwashing and covering coughs and sneezes, but also an important reminder that employees should not use each other’s workspace, telephone, and other work tools and equipment. You can find more information at the OSHA COVID-19 website, and there are loads of on line resources with ideas.  

In addition, states may have their own workplace safety laws and regulations. There are twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.

In these days of increasing work from home, there is one bit of good news: OSHA will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. For more information see OSHA’s Directive on Home-Based Worksites.

As we move toward returning employees to the workplace, employers should develop a plan for what that will look like. Just be safe and be smart.

COVID in the City

OK, that doesn’t have the same ring as that TV show title – and it’s not nearly as much fun. Still, several cities are making news with their very own COVID-19 leave of absence laws. California seems to be the hotbed of such activity (Who saw that coming?). These COVID-19 ordinances vary by city (of course) but most have some common features:

  • Employer coverage picks up where FFCRA left off – most apply to employers with 500 or more employees.
  • Leave reasons mimic FFCRA, although some add new leave reasons as well, such as closure of a family
    member’s senior care facility or if the employee is age 65 or older or has an underlying high-risk
    health condition
  • Amount of paid sick leave also mimics FFCRA, with 80 hours of paid leave for full-time employees and
    the equivalent of two weeks’ pay for part-time employees, often capped at $511 per day or $5,110
    total per employee.
  • Health care workers are often exempted, at least as to leave for any reason other than their own
    COVID-19 diagnosis or quarantine.

San Francisco’s Public Health Emergency Leave Ordinance is in effect from April 17 through June 16, expiring on June 17, 2020 or when the Public Health Emergency is terminated, whichever is first.  Guidance from the Office of Labor Standards Enforcement is available here.

Los Angeles’s ordinance for Supplemental Paid Sick Leave has been superseded by an Emergency Order signed by Mayor Garcetti, cutting back on the scope of the ordinance. The Emergency Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

San Jose’s Urgency Ordinance providing temporary paid sick leave for COVID-19-related reasons is in effect from April 7 through December 31, 2020. Guidance and additional resources from the San Jose Office of Equality are available here.

Remember that many municipalities (and states) have existing paid sick leave laws that are likely to cover a variety of COVID-related needs for time off. My go-to resource is A Better Balance for a chart of paid sick leave laws across the country.

Colorado Joins the Rodeo

Colorado originally passed its Health Emergency Leave with Pay (Nominee for Best Acronym in a COVID-related program: HELP) rules on March 11 but has since significantly increased the scope of industries covered and the duration of paid leave. The rules are effective for 30 days after adoption (presently through May 27) or the duration of the State of Disaster Emergency declare by the Colorado governor, but with a maximum of 120 days after April 27. Including amendments adopted through April 27, here’s what the rules now provide:

All employees of a covered industry and working in a covered position are eligible for HELP. (Heehee, that totally works in a sentence! Good job, Colorado!)

Covered employers include those engaged in, or employing workers in, numerous industries, with no employer size limitations (coverage was effective as of March 11 unless a different date is indicated). Examples: leisure and hospitality, retail, real estate, office work, elective health services, personal care services, food and beverage manufacturing and services, education, and various elder or community care services. For details see the Colorado HELP website.

Paid leave is available for up to two weeks, with a maximum of 80 hours. Pay is at 2/3 of the employee’s usual rate, with no dollar caps. Paid sick leave ends following certain periods of being symptom free.

HELP provides leave for only one reason, to an employee:

  • with flu-like or respiratory illness symptoms and
  • who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or
    authorized government official to quarantine or isolate due to a risk of having COVID-19.
A employer who already provides as much paid sick leave as required by the rules is excused from compliance. An employer who provides less paid sick leave than required by the rules must provide additional paid sick leave up to the amount required by HELP.

However, if an employee has exhausted all paid sick leave allotted by the employer, then the employer must provide additional paid sick leave up to the amount required by HELP.

The employer can require documentation to support the leave but with certain limitations:

  • Documentation can be required only after the employee’s return from leave, not as a precondition
    of taking or remaining on leave. An employee may not be terminated for failure to provide
    documentation during the illness.
  • If documentation is not available from a health care provider or the provider of the employee’s
    COVID-19 test, the employer must accept a written statement from the employee providing the
    pertinent information.

In an odd provision that is likely to give small employers heartburn, the rules provide, “To the extent feasible, employees and employers should comply with the procedures of the federal Family [and] Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules . . . ” This leaves a whole lot of open range as to exactly what that means and to what extent it is mandatory.

Employees must provide advance notice of the need for leave as soon as possible, unless they are too ill to communicate, and notice within 24 hours of getting a COVID-19 test or receiving instructions to quarantine or isolate.

Additional information is available on the Colorado HELP website.

Just When You Thought It was Safe: COVID Webinar II: The Revenge

Hopefully you joined my Reliance Standard colleague Karen Joseph a couple weeks ago for our webinar on COVID related federal and state leave legislation and how to apply it. If you didn’t, or even if you did and you want to prepare for the follow-up, you can access the slides as well as the recording. And while it’s no Season 3 of Ozark, I would say it’s required if you want to join us for the sequel:

On Thursday, May 7 at 2 PM Eastern, Karen and I will get back in that saddle and peel back some of these new developments at the national (OSHA), state and even local levels – plus we’ll incorporate some of your awesome questions from the first round. Plan to attend! Click here to register. Once you see the screen pop up with your name, go ahead and close the box: We will email you a confirmation before the event. (If you don’t get your email confirmation, note the date and time, because the link to join is the same as the registration link.)

See you there!

WRANGLING ALL THE COVID-19 NEWS – THE LATEST ROUNDUP

Posted On April 28, 2020  

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

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

April 28, 2020

 

Cowboy Radar

As we all work to acclimate to the new normal that is the current COVID-19 world, state, local, and federal governments and agencies have been working tirelessly to respond to this unprecedented situation. Although we hope things will settle down soon, we have seen more developments in just the last few days.

Well don’t fret none, pardner: We’ve lassoed the most important news for you, which we will provide in two parts. Here is our roundup for today:

  • More DOL Questions and Answers on the FFCRA
  • USERRA and COVID-19-related military service
  • California’s Executive Order providing paid sick leave to food
    sector workers
  • Washington’s Proclamation requiring accommodations for
    employee in COVID-19 high-risk categories

Saddle up and hold on – here we go!

More DOL FFCRA Questions & Answers. Every few days the DOL adds to its Questions & Answers addressing numerous issues employers face in trying to comply with the Families First Coronavirus Response Act. The latest release includes new Questions 80-88. Most of these (Questions 80-85) address how an employer is to calculate an employee’s hours worked and rate of pay, both crucial to determine the appropriate benefits payable to the employee. Various pay scenarios are addressed (e.g., salaried, hourly, variable hours). One answer with good news (85) explains that an employee’s rate of pay, which must be calculated based on pay over the prior six months, must only be calculated at the time of the employee’s first FFCRA leave usage, even if the employee uses the benefit intermittently over multiple weeks or months.

Our personal favorite question is 87, which addresses whether stay-at-home and shelter-in-place orders qualify as quarantine or isolation orders to entitle an employee to take leave under the FFCRA for reasons relating to one of those orders. (See also Question 60.) The answer is YES. To illustrate, the DOL provides the example of an employee who was on a cruise ship on which there was an outbreak of COVID-19 and then must be quarantined for 14 days after getting FINALLY disembarking, even though the employer has work for the employee.

A common challenge for employers is understanding when they can require an employee to use other paid leave benefits and when the employee gets to choose. Question 86 addresses this (as well as prior Questions 31-33). This gets complex so if you are struggling with this issue please read Question 86 in full. That said, here’s a quick summary:

  • Paid sick leave under the Emergency Paid Sick Leave Act (EPSL) is in addition to any form of paid
    or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement.
    An employer may not require employer-provided paid leave to run concurrently with – that is, cover
    the same hours as – paid sick leave under the EPSLA.
  • If the employer and employee agree, an employer may supplement 2/3 pay under the Emergency
    Family and Medical Leave Expansion Act (EFMLA) with other paid leave benefits so that the employee
    may receive the employee’s normal compensation.
  • Under EFMLA, an employer may require any paid leave available to an employee under the employer’s
    policies that would also cover the EFMLA school closure leave reason (either specifically or generally)
    to run concurrently with paid leave under EFML. The employer can top off the employee’s 2/3 pay to
    full pay until the employee has exhausted available paid leave under the employer’s plan—including
    vacation and/or personal leave (typically not sick or medical leave).
  • In both cases (topping off EPSLA and EFMLA 2/3 pay), the employer may only obtain tax credits for
    wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate EPSLA or EFML limits.
  • An employee may elect—but may not be required by the employer—to take any available paid sick leave
    under the EPSLA or paid leave under the employer’s plan for the first two weeks of unpaid EFMLA, but not both.
  • If an employee has used some or all paid sick leave under the EPSLA, any remaining portion of that
    employee’s first two weeks of EFMLA may be unpaid, or the employee may choose—but the employer
    may not require the employee—to use other paid leave available for the reasons under the employer’s policies.

The last new Question (88) warns employers that if the employer fails to pay an employee in accordance with the requirements of FFCRA, the employee can recover the full amount of wages that should have been paid under the FFCRA. What am I missing here? Pay me the amount owed as I take leave, or pay me the same amount later? Here’s the thing – once the DOL decides to investigate an employer for noncompliance with ANY of the laws under its jurisdiction the DOL has authority to investigate the employer’s compliance with pretty much everything it is responsible for (including FFCRA and FMLA and the Fair Labor Standards Act). You don’t want that. So not only is paying the wages as they are due under the FFCRA the right thing to do, it is also the prudent thing to do. And I’m not a wage & hour attorney, but I’ll bet there may be other things lurking, like paying interest and the employee’s attorneys’ fees.

We’ll be watching for more DOL FFCRA questions and answers – I have it on good authority the staff is working round the clock and I just in person submitted an unanswered question to my sources at the DOL today!

 

California Executive Order Protecting Food Sector Workers

On April 16, California Governor Gavin Newsom issued an Executive Order mandating a supplemental paid sick leave related to COVID-19 to “Food Sector” workers employed by employers with 500 or more workers. The Order covers a wide spectrum of workers under the title “Food Sector Worker” ultimately including everything from agricultural workers to food manufacturing, stopping just shy of food wholesalers and distributors. Specifically, the Order provides sick leave in the following limited instances:

  • When a worker is unable to work due to federal, state, or local quarantine or isolation orders due
    to COVID-19;
  • When the worker is advised to self-quarantine or self-isolate by a health care provider due to
    COVID-19 related concerns; or
  • When the worker is sent home by the employer over concerns of possible COVID-19 transmission.


Workers who are scheduled for 40 hours a week, or who have worked 40 hours per week in the two weeks prior to taking the leave, are eligible for 80 hours of leave, while workers who do not
work 40 hours are eligible for a prorated leave based on average hours worked over the past 6 months. The rate of pay matches the emergency paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA), with caps of $511 per day and $5,110 in total per employee.

The Executive Order is in effect from April 16 for the duration of any state-wide stay-at-home orders issued by the State Public Health Officer. A Food Sector Worker who has commenced the supplemental paid sick leave prior to the termination of all stay-at-home orders may complete the necessary leave.

 

Washington State Proclamation Protecting High-Risk Workers

On April 13, Washington Governor Jay Inslee issued a COVID-19-related Proclamation regarding workers at high risk, as defined by the Centers for Disease Control and Prevention. Specifically, the Proclamation protects employees who are at a heightened risk for complications with COVID-19, as defined by the CDC, by prohibiting all employers from failing to provide accommodations to high-risk employees. In essence, this proclamation provides ADA-esque protection to those who meet the CDC definition of being high risk for COVID-19, such as age 65 or older and having serious health conditions. Employers must first try to keep high risk employees working by providing alternative work assignments, including but not limited to telework or remote work locations, when possible. If alternative work assignments are not possible, the employer must allow the employee to take leave as an accommodation, free from risk of adverse employment action, using any accrued leave, or, if exhausted, unemployment insurance at the discretion of the employee. Additionally, should the employee exhaust paid leave while on an accommodated leave, the employer must maintain employer-provided health benefits until the employee is deemed eligible to return to work.

The Proclamation is in effect from April 13 through June 12, 2020, unless extended.

 

DOL Guidance Regarding Reemployment of Service Members under USERRA

The Department of Labor released a COVID-19-specific fact sheet with regard to the Uniformed Services Employment and Reemployment Rights Act. This fact sheet does not create new rights or obligations under USERRA; rather it addresses specific scenarios to ensure uniform application of USERRA in the context of the pandemic. The fact sheet provides the following important information:

  • National Guard members or Reservists called to duty under federal authority are covered
    under USERRA.
  • National Guard members called to duty under state authority are not covered under USERRA.
    That being said, the service member may be entitled to protection under similar state statutes.
    In addition, authority over National Guard members called to duty may shift from state authority
    to federal authority depending on circumstances.
  • Service members can be furloughed or laid off upon return from uniformed service if it is reasonably
    certain that the service member would have been furloughed or laid off even if he or she had not
    been absent for uniformed service.
  • An employer cannot delay reemploying a service member due to concerns that the service member
    had been deployed to a COVID-19 high risk area. When reemploying an infected or potentially exposed
    service member, an employer must make reasonable efforts in order to qualify the returning employee
    for his or her proper reemployment position. This can include temporarily providing paid leave, remote
    work, or another position during a period of quarantine before placing the individual in his or her
    proper reemployment position.

For more information on the details of National Guard service, see National Guard Assists Response to the COVID-19 Pandemic published by the National Conference of State Legislatures.

Next Up

Rest up, y’all – here is what we have in store for you after the break:

  • More ADA guidance from the EEOC – yes, they really have new stuff to say
  • OSHA – employer obligations to provide a safe workplace
  • COVID-19 lawsuits – here they come!
  • Cityscape – what are municipalities doing?

And watch for your personal invite to our next webinar, where we will dig into all this good stuff!

Welcome

With this blog post we welcome a new contributor, Armando Rodriguez.  Armando has been with Matrix Absence Management since 2017 and previously served as a Claims Examiner Supervisor.  We are delighted to welcome Armando to the Compliance & Legal team as he finishes law school and moves toward a legal career.  Armando’s experience in Operations as an examiner and supervisor makes him uniquely qualified to provide realistic compliance guidance to Matrix, our clients and all of you!

NEW JERSEY DEVELOPMENTS: ENHANCED LEAVE OF ABSENCE AND JOB PROTECTION UNDER NJ FLA TO CARE FOR FAMILY MEMBERS

Posted On April 17, 2020  

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

April 17, 2020

 

At Matrix and Reliance Standard, we have been tirelessly keeping up with the explosion of legislation that has been introduced and enacted to address COVID-19 related leaves of absence, disability plans, paid sick leave, and accommodations. We previously told you about New Jersey legislative activity related to COVID 19 just 2 weeks ago. Here is a link to that blog post.

On April 14, Governor Phil Murphy signed NJ SB 2374, further amending the New Jersey Family Leave Act (“FLA”) to expand leave rights for employees who need to care for family members due to known or suspected exposure to COVID-19. These amendments were made effective retroactively to March 25, 2020.

Here is a summary of the important changes:

Expansion of the Definition of Family Leave: The amendment broadens the bases for which an eligible employee can take FLA to include leave from employment. Employees can now use the FLA’s job-protected 12 weeks in a 24-month period for leave needed due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease, when made necessary by a state of emergency declared by the Governor or public health authority. New leave reasons include:

  1. In-home care or treatment of a child due to school or daycare closing by order of a public health official;
  2. Quarantine from a public health authority of a family member in need of care due to known or
    suspected exposure to a communicable disease; or
  3. A recommendation by a healthcare provider or public health authority that a family member in need
    of care voluntarily self-quarantine due to suspected exposure to a communicable disease.

Certification. For leave due to school or day care closing, the employer may only request documentation of the date and reason for closing. Similarly, for reason #2, the only documentation required is the date of issuance of the determination and probable duration. For reason #3, voluntary self-quarantine, the employee certification is limited to the date of the recommendation, its probable duration and any “medical or other facts known to the healthcare provider or authority.”

Intermittent leave. Family leave for the new reasons can be taken intermittently if the employee: 1) provides notice as soon as practicable; 2) makes a reasonable effort to schedule that time to limit the disruption to the employer’s operations; and 3) if possible, gives the employer an advance regular schedule of the day(s) of the week on which intermittent leave will be taken.

This seems odd in that the law allows an employee to work intermittently even if the reason for leave is quarantine of a family member due to known or suspected exposure to the communicable disease – which means the employee himself may also have been exposed. There is no limitation such as intermittent leaves being available only for an employee who is able to work remotely.

Expansion of NJ Family Temporary Disability Benefits. In addition to expanding FLA, the amendment expanded NJ Family Leave Insurance (FLI). The definition of “disability” now allows benefits for an employee to care for a family member who requires in-home care or treatment because he or she is subject to a quarantine order issued by a public health authority or healthcare provider.

 

Matrix can Help!

At Matrix we don’t just track all this state and federal legislation – we jump into action!  We are constantly updating our leave administration practices and staff training to apply each new COVID-19-related provision. So, reach out to your account manager with specific questions and make sure to continue to read our blog for the latest updates and developments. Stay safe!