OREGON AND COLORADO PFML: SHIFTING SANDS

Posted On September 12, 2022  

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

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

& Rebecca Ford - Director, Strategy Product and Marketing

September 12, 2022

 

Employers are eager – shall we even say anxious? – for concrete information about the imminent paid family and medical leave programs in Oregon and Colorado, but with contribution effective dates and private plan deadlines only a few months away, are there enough details to satisfy them? Maybe not.

At Matrix and Reliance Standard, we have been diligently attending meetings with Oregon and Colorado officials responsible for developing, administering, and enforcing the programs, attending their webinars, and monitoring their websites. And despite the disclaimer above, we do have some information to share and help employers prepare.

But first everyone’s favorite: A legal disclaimer! What we will share is on shifting sands. Paid Leave Oregon (the name of that state’s administering agency) and the Colorado FAMLI Division (ditto) are woefully behind on developing regulations, which put the meat on the bones of the PFML statutes. Without completed and finalized regulations, we have the skeleton but few details. (OK, getting kind of ghoulish here, but Halloween isn’t too far off!) Now in fairness, Oregon is farther along than Colorado and they should be, as they bought themselves an extra year over the original effective dates to implement their program. But even Oregon gives shifting answers to questions in successive public Q&A sessions. So what we present below is based on the most current info available to us at time of writing.

GOOD NEWS! Matrix and Reliance Standard will present an Oregon/Colorado PFML update webinar on October 11, 2022. Watch this space for a link to register in the near future or contact your Matrix or Reliance Standard account manager for details.

In the meantime, you can play catch-up by watching our July 12 OR/CO PFML webinar – JUST REMEMBER, a lot has changed since then. See the legal disclaimer above!

COLORADO FAMILY AND MEDICAL LEAVE INSURANCE ACT – “FAMLI”

Colorado FAMLI website: Family and Medical Leave Insurance (colorado.gov)

Administration: Division of Family and Medical Leave Insurance

Check here for more details: Statutory Disability and Paid Family Leave Laws

Basic Colorado Refresher

Contributions/Premiums:

  • January 1, 2023: ALL employers must start withholding from employee paychecks (if the employer is not going to fund the full program cost itself) and submit the contributions to the state. See below for
  • Employee/employer contributions due to the FAMLI Division within 30 days after end of each quarter (e.g., first contribution payments due by April 30, 2023)
  • Total contribution is 0.9% of each employee’s wages up to a cap that follows the federal Social Security tax ($147,000 in 2022; adjusted annually)
  • Employees pay one-half of the total (0.45%);
  • Employers with 10 or more employees pay one-half of the total (0.45%); employers with 9 or fewer employees are exempt from employer contributions

Benefits:

  • Available for leaves taken on or after January 1, 2024
  • Up to 90% of employee’s wages, according to a formula and subject to SSA limit
  • 2024 maximum of $1,100 per week; adjusted annually

Leave reasons:

  • Employee’s own serious health condition
  • Care of a family member with a serious health condition
  • Bonding with a new child
  • Qualifying military exigency
  • Safe leave

Duration:

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

Regulations: [Final and draft rules are available here]

  • Rules relating to Premiums, Local Governments, and Benefits and Employer Participation are final. (NOTE: the Benefits/Employer Participation rules were finalized on August 26 and have some, shall we say “challenging”, provisions which we hope will undergo further revisions despite their final status.
  • Draft rules for private plans have been pre-released to a small group of industry colleagues for early comment (including yours truly). We’re not saying anything about details here, as it’s just too preliminary. Official draft rules for public comment are expected sometime in September.
  • Draft rules relating to coordination of benefits and amendments to prior rules are on the agenda; expected dates of publication of drafts unknown.

Employer Deadlines and Private Plans

Employer registration: The Division anticipates a 4th quarter 2022 soft launch of My FAMLI+ Employer where employers will be able to register, file applications for private plans, and pay quarterly employer/employee contributions to the Division.

Private Plans: Employers can opt to have a private plan rather than participating in the state FAMLI plan

  • Private plans must confer the same rights, protections and benefits provided by the state plan
  • Private plans must be approved by the Division; fully- insured plans must also be approved by the Division of Insurance
  • There will be an administrative fee for each private plan application; amount TBD
  • Separate business entities must each apply
  • Options:
    • Insured private plans: issued by an insurer approved by the state
    • Self-funded private plans: secured by a bond in an amount TBD
  • Refunds for any premiums paid in 2023 will be issued to employers with an approved private plan with an effective date on or before January 1, 2024
  • October 31, 2023: anticipated private plan filing deadline to get approval by December 31, 2023, and be eligible for a full refund of 2023 contributions paid

What Matrix and Reliance Standard are Doing

As we have done in other PFML states, we are:

  • Developing an insured private plan policy and a self-funded private plan template. These will be available following the release by the Division of the final private plan rules.
  • Developing an employer guide to private plans.

OREGON PAID FAMILY AND MEDICAL LEAVE – “PAID LEAVE OREGON”

Paid Leave Oregon websites: Paid Leave Oregon | Equivalent Plans

Administration: Paid Leave Oregon

Check here for more details: Statutory Disability and Paid Family Leave Laws

Basic Refresher

Contributions/Premiums:

  • January 1, 2023: All employers must start withholding from employee paychecks (if employer is not going to fund the full program cost itself); employee funds must be held in a separate account until paid to the Division or applied to the costs and benefits paid by an equivalent plan
  • The employer must submit employee/employer contributions to Paid Leave Oregon within 30 days after end of each quarter (e.g., first contribution payments due by April 30, 2023)
  • Total contribution is 1.0% of each employee’s wages up to a cap $132,900 (adjusted annually beginning in 2025)
  • Employees pay 60% of the total
  • Employers with 25 or more employees pay 40% of the total; employers with 24 or fewer employees are exempt from employer contributions

Benefits:

  • Available for leaves taken on or after September 3, 2023.
  • Up to 100% of employee’s wages, according to a formula and subject to annual limit
  • Maximum benefit of 120% of state average weekly wage

Leave Reasons:

  • Medical leave for employee’s own serious illness or injury
  • Family leave to care for a family member with a serious illness or injury or to bond with a new child
  • Safe leave for employees experiencing issues related to domestic violence, harassment, sexual assault, or stalking

Duration:

  • 12 paid weeks for all leave reasons in a benefit year
  • Additional 2 paid weeks for limitations related to an employee’s own pregnancy, childbirth, or a related medical condition, including but not limited to lactation
  • 4 additional weeks UNPAID for any reason covered by Oregon Family Leave Act (employee’s serious health condition, family member serious health condition, ill child, bonding, bereavement) that may be taken after the employee has exhausted the 12 weeks of paid leave.

Regulations: [Final and draft rules are available here]

  • Rule batches 1-4 are final, relating to Contributions, Small Employer, Self-Employed and Outreach, Equivalent Plans, and Benefits
  • Additional Batch 4 and 5 rules relating to Benefits, Contributions, and Appeals are still pending

Employer Deadlines and Equivalent Plans

Plan requirements: Employers can opt to have an equivalent plan (Oregon’s term for a private or voluntary plan) rather than participating in the state’s Paid Leave Oregon program.

  • Equivalent plans must provide benefits that are equal to or greater than the benefits the state plan offers and impose no additional conditions or restrictions on employees to use paid leave
  • Equivalent plans must be approved by Oregon Paid Leave
  • $250 fee for each equivalent plan application
  • Separate business entities must each apply
  • Options:
    • Insured equivalent plans: issued by an insurer approved by the state
    • Self-funded equivalent plans: must show proof of solvency by providing either:
      • Proof of sufficient assets or
      • A bond or an irrevocable letter of credit

Equivalent plans initial process:

  • Beginning September 6, 2022, employers opting for equivalent plans may follow one of two processes to be exempt from paying and remitting contribution payments beginning January 1, 2023:
    • Submit a complete equivalent plan application (including insurance policy template or self-funded plan) between September 6-November 30, 2022, to receive approval by December 31, 2022, OR
    • Follow the declaration of intent process:
      • File a declaration of intent to have an equivalent plan by November 30, 2022
      • File the complete equivalent plan application by May 31, 2023
  • Employers can file applications online through State of Oregon: Modernization - Frances Online; download and print applications (to submit by mail) from the Paid Leave website; or request applications by phone: 833-854-0166
  • Reapproval: Must reapply for equivalent plan approval annually, for three years. After three years, the equivalent plan will remain in place until withdrawn or terminated.

For more information: Equivalent Plans – Paid Leave Oregon

What Matrix and Reliance Standard are Doing:

As we have done in other PFML states, we are:

  • Developing an insured equivalent plan policy and a self-funded equivalent plan template. We anticipate having these available in September of 2022, once Paid Leave Oregon publishes its comprehensive Equivalent Plan Guide.
  • Developing an employer guide to private plans.

Matrix and Reliance Standard 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. Matrix and our sister company Reliance Standard offer self-funded and/or fully insured options for paid disability, medical, and family leave benefits in every state that allows private plans. If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at ping@matrixcos.com.

 

EMPLOYERS: UPDATE YOUR UNDERSTANDING OF THE INTERACTIVE PROCESS

Posted On August 16, 2022  

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

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

August 16, 2022

 

When an employee provides notice to his employer of a disability and expresses a desire for a reasonable accommodation, the employee and the employer must engage in good-faith communications—what we have termed the interactive process.

Once an employee triggers the interactive process, both the employee and the employer have an obligation to proceed in a reasonably interactive manner to determine the employee’s limitations and consider whether the accommodations he requests—or perhaps others that might surface during the interactive process—would enable the employee to return to work.

When a federal appellate court begins its opinion like this, it is probably not good news for the employer.

And in this instance, it was not. Kelly Dansie, a former on-call train conductor undergoing treatment for AIDS and testicular cancer, sued Union Pacific (UP) under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) after UP terminated his employment.

The trial court granted summary judgment for UP on the ADA claim (and also entered a judgment in favor of UP on a jury verdict on the FMLA claim). On appeal, the 10th Circuit found that there was sufficient evidence for a jury to find that UP violated the ADA. Click here to read the opinion!

The Facts

UP scheduled its conductors using an on-call system. Employees were expected to be available to work full time. UP’s policy provided for 2 written notices of attendance violations; thereafter, additional violations led to dismissal from employment.

Dansie temporarily lost his eligibility for FMLA due to time off during an earlier termination/unpaid suspension which was administratively overturned. As a result, he used company-designated personal days to cover work missed due to his illness and/or medical appointments.

After UP charged Dansie with violating its attendance policy, Dansie requested an ADA accommodation for excused absences until he qualified for the FMLA again.

Dansie and his physician, while completing the ADA forms, asked for but did not receive clarification on UP’s definition of “full-time employment”. Dansie requested about 5 days off each month, but his physician stated this was subject to change due to the nature of the illness.

UP denied Dansie’s ADA request because of the amount and unpredictability of the time off needed. When his absences continued, UP ultimately terminated Dansie for violating its attendance policy.

On the ADA claim, the lower court found for UP as a matter of law stating that Dansie’s accommodation was not reasonable, and UP had no duty to engage in the interactive process. Dansie appealed.

The Opinion

Interactive Process

The court first held that a reasonable jury could find UP failed to engage in the interactive process when determining whether a reasonable accommodation existed for Dansie. In doing so, it relied upon the following facts:

  • UP did not clarify its definition of “full time” employment despite Dansie’s requests to do so; in fact, email correspondence showed Dansie asking for guidance from UP and struggling to locate a corresponding written policy.
  • When Dansie told his supervisor he thought his accommodation was approved by UP, the supervisor just shrugged and walked away.
  • When Dansie tried to discuss medical issues with his supervisor via email, his supervisor responded that he only wanted to know what days Dansie was unable to work and not the details of his medical treatments.

The court recognized that neither the employer nor the employee can cut off the interactive process prematurely.

Reasonable Accommodation

On the issue as to whether a reasonable accommodation existed, the court found that a jury could conclude that Dansie’s request to take off 5 days a month until he qualified for FMLA was reasonable, and that permitting Dansie to use his accrued paid leave to cover these absences was also reasonable. Further, the court stated that UP should have considered reassignment to an available vacant position.

Pings for employers!

  • Don’t end the interactive process early. Make sure to explore other accommodations that may work under the circumstances. The interactive process is the best way to explore accommodation possibilities and come to a safe resolution – either a reasonable and effective accommodation or a conclusion that there is no option to help the employee perform the essential functions of the current position. Although this case is from the 10th Circuit (covering Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma), it provides an important lesson for employers in all states.
    And as the court points out, if an employer fails to engage in the interactive process, it will be difficult to resolve the case early and avoid a jury trial – a place you don’t want to be!
  • Communicate with your employees throughout the interactive process! That means answer their questions promptly and thoroughly, even if you think it is something the employee should know or something you believe you already answered!
  • Train your supervisors. It is true that many employers do not want their supervisors to discuss detailed medical information with their employees. But, in this case, the supervisor went too far by walking away from Dansie when he stated his accommodation was approved. A better response would be to inquire further, get more facts from Dansie and contact Human Resources. Reading between the lines of the court opinion, it appears the supervisor was possibly afraid to discuss the ADA or any medical issues with Dansie, especially in an email.
    The court also did not like how the supervisor told Dansie that he did not need to know about Dansie’s medical issues—just the days Dansie would not be working. Again, the supervisor was likely thinking he should not discuss detailed medical issues, especially in writing. A better response would be to involve Human Resources to discuss Dansie’s situation. Supervisors should use common sense and act in a compassionate manner when an employee brings up his or her medical needs and accommodation requests – but get help from the HR experts!
  • Consider Alternative Vacant Positions Before Termination. We cannot stress this enough. This case further supports the importance of considering the “accommodation of last resort” – assignment to an alternative vacant position.
  • Document, document, document! Keep a complete record of all communications, in writing or verbal, with the employee or his/her representatives about the accommodation discussions and efforts.

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.

NO CERTIFICATION? THEN, NO FMLA LEAVE FOR YOU!

Posted On May 24, 2022  

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

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

May 24, 2022

 

Employers often receive medical documentation from an employee to support an FMLA request, but no certification. What should an employer do in that situation?

Consider the following scenario.

Jake and Zyloc *

Jake (a fictional character) worked for Zyloc (a fictional company) as a financial analyst.

On May 11, Jake was in a car accident and as a result, he developed severe back and neck pain. For purposes of this scenario, let’s agree this would be considered a serious health condition as defined by the FMLA.

Jake requested FMLA on May 15. Zyloc sent all required FMLA notices and in doing so, required that Jake return a certification completed by his medical provider by June 7.

Over the period between May 15 through June 7, Jake did not submit a completed certification, or any certification at all. Instead, Jake sent Zyloc multiple copies of his voluminous medical records—dozens of pages. This included a “work status report” stating he could not work until July 30.

Zyloc repeatedly reminded Jake that it needed the completed certification, not just the medical records. But in response, Jake would simply resend the hundreds of pages of the same prior medical records and the same work status report.

Zyloc extended the June 7 deadline for Jake to return the certification to June 15 and again, informed Jake in writing and in oral communications that the medical records were not a substitute for the certification and that a completed certification must be provided by the deadline. Although Jake stated he would send the certification, he never did.

On July 20, Zyloc denied Jake’s FMLA and terminated Jake’s employment due to his unexcused absences.

Jake brings a lawsuit for FMLA interference. Does Zyloc have a good defense?

What the FMLA Regulations Say

First, let’s look at the FMLA regulations. If an employer requires a certification, the employee must provide the completed certification within 15 calendar days after the employer’s request. More than 15 days is permissible if: 1) the employer allows it; or 2) it is “not practicable under the particular circumstances” to return the certification within that time despite the employee’s “diligent, good faith efforts.” 29 C.F.R. § 825.305(b)

Employers must also notify the employee of the consequences for not returning the FMLA certification, which may include denial or delay of FMLA.

But the regulations provide that it is the employee's responsibility to provide the certification. If the employee never returns a certification, the leave is not FMLA-protected leave. 29 C.F.R. § 825.313(b).

Application to the Jake and Zyloc Scenario

Based upon the scenario described above, Zyloc is in a good position.

First, Zyloc provided the proper notices to Jake and initially gave him more than 15 days to return the certification. When it got the medical records, Zyloc informed Jake that the medical records were insufficient; it needed a certification.

Then, Zyloc then gave Jake an extension of time to submit the certification. When that deadline passed, Zyloc even waited a few days after the extended deadline passed before denying the leave.

But what about Jake’s submission of the multiple pages of medical records? Will a court find Zyloc’s objection to Jake’s presentation of the medical records instead of the completed certification to be “form over substance” and side with Jake? Probably not. In a similar situation, a court dismissed the case, stating with respect to the medical records: “Plaintiff’s position that he could simply foist a stack of documents onto the Defendant and expect Defendant to pick through the medical records and piece together the information needed to fulfil FMLA’s certification requirements is insufficient for this purpose and fails to meet the requirements of the FMLA regulations.”

Although employers cannot insist on a particular certification form and must accept a complete and sufficient medical certification regardless of the format, Jake, in this case, never provided a certification in any form with the required information.

Even though Zyloc initially provided Jake over 15 days to return the certification, Zyloc extended the deadline for the certification twice and repeatedly informed Jake (hopefully in writing as well as via phone) that the medical records were not a substitute for the certification. Also, Jake said he would send the certification but did not.

Pings for Employers

  • Communicate frequently and clearly: If necessary, inform employees repeatedly that they must provide a completed certification or leave will be denied. Doing so gives the employer a solid defense if the employee fails to meet his/her statutory obligations.
  • If an employee returns a certification late, ask the employee to explain why it was late and consider whether extenuating circumstances justify the delay.
  • Although not required, consider giving an employee at least one extension or a grace period after the 15 days expire. Courts and juries tend to have less sympathy for employees who failed to meet the extended deadline.
  • What if your employee submits more succinct medical records than the hundreds of pages Jake provided? You might consider accepting those records in lieu of a medical certification. An employer always has the ability to waive the certification requirement. But before you do that:
    • Carefully analyze whether the records contain all the information you are entitled to under the FMLA. Even extensive medical records might not address, for example, the frequency and duration of intermittent absences, the duration for a continuous leave, or the essential functions of the position the employee cannot perform (helpful with return to work efforts and ADA compliance!). Once a leave is approved, you are stuck with the information in the medical records standing in the place of a certification, and management of the leave might be difficult if challenges arise.
    • Recognize that you are setting a precedent and other employees might claim discrimination if not allowed to simply dump medical records on you.
    • Remember that the medical records might contain medical information not related to the reason for the FMLA leave request. Possession of such information is dangerous and you are better off returning the records without reviewing them or having them anywhere in the employee’s file.

Always consult with your employment law attorney before terminating an employee in these situations. The particular facts are important to determining the correct action.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services which will help insulate employers receiving the type of “medical records dump” described above. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

*The Jake and Zyloc Scenario above, is based, in part, upon Kuramoto v. Heart and Vascular Center of Arizona, PC, 2021 WL 2012668 (D. Ariz. 2021).

NEW HAMPSHIRE PASSES A PAID FAMILY AND MEDICAL LEAVE LAW -- AND IT'S A DIFFERENT ANIMAL!

Posted On July 06, 2021  

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

July 06, 2021

 

New Hampshire has joined the PFML club but with a new kind of membership – a model we haven’t seen before in other states with statutory paid family and medical leave programs. Does the “Granite State Paid Family Leave Plan” represent the start of a new style of PFML programs, or is it just what you’d expect from a state whose official motto is “Live free or die?”

Too early to tell, but the New Hampshire bill has already broadened our thinking about insured paid family leave programs.

In summary, the law requires paid family leave for state employees and provides for voluntary opt-in by non-state employers and individual non-state employees. What’s different is that the state will contract with an insurance carrier to provide and administer the paid leave benefit. The anticipation is that with a large pool of state employees to insure, the carrier will be able to offer voluntary participation by non-state employers and employees that is realistic and affordable.

New Hampshire House Bill 2 can be found here.  It’s long so search within the bill for “Granite State Paid Family Leave Plan” and you’ll find it near the end. The statute has lots of ambiguities and inconsistencies, and many details are left to the Commissioner of the New Hampshire Department of Administrative Services to determine. With that caveat, here’s what we think we know about the Plan from the statute and informal interpretations at this point. But stay tuned, there’s much more to come over the next few months!

Covered Employers and Employees

State employers/employees. The state will solicit bids from qualified insurance carriers to provide the paid leave benefit to state employees. [21-I:99.I.] It is not clear whether more than one carrier could be awarded a portion of the business. Best guess at this time is that it will all go to one carrier, but others may be able to provide the opt-in coverage to non-state employers and employees.

Non-state employers/employees. The selected carrier(s) must offer participation in the paid leave Plan to private employers, other non-state public employers, and employees whose employer does not opt in to the Plan. [21-I:100.] To participate, private employers must have more than 50 employees in New Hampshire. [21-I:100.II.] Covered employers can elect to provide FMLI coverage at no cost to employees OR on a full or partial employee contribution basis. [21-I:101.]

Individual employees can opt in to the Plan if:

  • they work for a private employer with more than 50 employees that (1) does not opt in as an employer and (2) does not offer a company paid leave program with benefits at least equivalent to the state coverage. [21-I:100.III]; or
  • they work for a private employer with fewer than 50 employees that does not offer a company paid leave program with benefits at least equivalent to the state coverage.

Benefits

Family leave is available for reasons very similar to the FMLA: bonding with a new child, caring for a family member with a serious health condition, qualifying exigencies due to a family member’s foreign military deployment, and caring for an ill or injured servicemember. [21-I:99.II and 282-B:2.VI.]

Covered relationships for family leave include child, parent, grandparent (all broadly defined), and spouse or domestic partner.

Medical leave for an employee’s own serious health condition is not available to state employees. [21-I:99.II.] Private and non-state public employees covered through the purchasing pool can take medical leave for non-work-related medical conditions if their employer does not provide short-term disability insurance. [282-B:2.VI(e).]

Benefits are limited to 6 weeks of paid leave “with no minimum duration required.” [21-I:99.III(b).] The meaning of the quoted phrase is not clear: Does it refer to the ability to use, for example, only 1 or 2 weeks of leave, or does it mean that leave can be taken intermittently for up to a total of 6 weeks?

Wage replacement is 60% of an employee’s average weekly wage (AWW), capped at the Social Security taxable wage maximum.

Funding

Plan costs for state employees is funded by the state. Funding for all other participants will be through a purchasing pool paid into by employers and employees that opt into the Plan. Premiums for individuals in the pool cannot exceed $5 per subscriber per week.

Employers that have more than 50 employees and do no opt into the Plan must withhold payroll deductions for premiums from their employees who opt in individually. [282-B:3.II.] Employers with fewer than 50 employees do not have to take payroll deductions. [282-B:10.] Employees of such employers who choose to obtain coverage will contract directly with the carrier(s) awarded the business through the purchasing pool. [21-I:100.III.]

Tax Credit

The statute provides an employer tax credit of 50 percent of the premium paid by a sponsoring employer for FMLI coverage offered to employees pursuant to the statute. [77-E:3-e.] It is not clear whether an employer that voluntarily provides paid family leave benefits outside of the Plan can also receive the tax credit.

Employee Eligibility

The law does not specify eligibility requirements for state employees but does provide that the Commissioner shall establish a “tenure requirement” expressed in months of work. Once established, eligibility is portable if an employee changes jobs. [21-I:99.IV.(b).]

For non-state employees participating through the purchasing pool, the statute provides for “a 7-month waiting period, a one-week elimination period, and a 60-day annual open enrollment period.” [21-I:100.III.] Common interpretation is that the 7-month waiting period is how long an employee must wait before becoming eligible for coverage through the pool. However, there is no explanation of whether that means 7 months of employment in New Hampshire, 7 months of employment with the current employer, 7 months of paying premiums into the pool, or some other factor.

Job Protection

Employees of an organization (with 50 or more employees) that sponsors a Granite State Plan are entitled to restoration to the same or an equivalent position following leave; and to continued health insurance during leave, with employees continuing to pay their share of costs. [275:37-d]

Effective Dates

The Commissioner must issue a request for proposals for FMLI coverage as described in the statute no later than March 31, 2022. The FMLI coverage must be in place for state government employees and available for purchase by other public and private employers with more than 50 employees and individuals by January 1, 2023. [21-I:108] This creates an extremely tight timeframe between issuance of the RFP, award of the contract, and implementation of the program from zero to payment-ready.

What We Don’t Know

The statute is pretty bare-bones compared to what we are used to seeing in other states, with little detail and few requirements at this point. The Commissioner is empowered to determine many details, including the base period for determining the AWW; tenure requirement (in months worked) for eligibility; what (if any) elimination period applies; minimum participation requirements; parameters for open enrollment; procedures for contributory/partial contributory/non-contributory Plans; and procedures for payroll deductions for employers with 50+ employees.

Matrix Can Help!

Stay tuned! As always, we will be watching the progress of this new law, reporting developments on this blog, and assessing how the Granite State Plan fits into PFML services already offered by Matrix and Reliance Standard. If you have any questions, contact us at ping@matrixcos.com or through your Matrix or Reliance Standard sales or account manager.

"CAN YOU HELP ME DESIGN A PFML PLAN THAT SATISFIES ALL STATE REQUIREMENTS?" PART III IN OUR PAID FAMILY LEAVE TRILOGY

Posted On May 10, 2021  

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

May 10, 2021

 

This is the third of a 3-part series on paid family and medical leave (PFML). Here are the prior posts:

  • This is the third of a 3-part series on paid family and medical leave (PFML). Here are the prior posts:
  • The FAMILY Act – Federal Paid Family and Medical Leave Coming Your Way? (Part II)

For those of you who stick with us through this post, we have a reward at the end – and you don't even have to send in your box tops to get it!

 

“Hey guys, can you help me design a PFML plan that will satisfy ALL the state requirements?”

We get this question a lot. The answer is, uh, no. Nor would you really want that! While there are some common features that make up a baseline PFML offering, every state that has a paid disability and/or paid family leave law – and I mean every state – puts its own special stamp on the scope of the benefits provided. Cover all of those universally and you may not have any workers left on the job site!

Ok, that’s maybe a bit of an exaggeration, but not as much as you might think. Let’s consider:

For an employer to comply with every state law in which it has employees, a universal plan will have to meet the provisions most favorable to the employee in any such state. That means the best benefits required by any state plan and the lowest cost or burden. Let’s take that apart to see what it means, element by element.

  1. You can never cover them all with one plan. This is because some state programs are administered only by a state agency, i.e. private plans are not allowed. So, for example, in Rhode Island and District of Columbia employers have no choice but to adhere to the state benefits scheme. One option, though, would be to layer on more benefits to bring your RI and DC employees up to par with all your other U.S. employees.
  2. Concurrency with FMLA and Stacking. “Stacking” means the ability of an employee to take leaves for the same reason – bonding, for example – sequentially rather than concurrently, thus stretching out the amount of time on leave. As you may recall, FMLA is never an employee’s choice – if leave is taken for a covered reason and an eligible employee has FMLA entitlement available, the employer must designate the leave as FMLA. Ideally, if an employee takes leave that is covered by FMLA and also covered by a state paid leave law we want both laws to apply at the same time. And in some states this works. In Massachusetts, for example, the employee’s leave is automatically covered by and applied to Mass PFML entitlements under the state plan (or a private plan) even if the employee doesn’t request such coverage. In New York, the employer can elect to have concurrent FMLA / NY PFL coverage by giving appropriate notice to the employee. But cruise on up to the Pacific Northwest: In Washington, it is the employee’s choice whether to take WA PFML at the same time as FMLA. So, an employee could choose to take 12 weeks of unpaid FMLA for bonding (but maybe get some pay through use of PTO) and then take another 12 weeks of WA PFML paid leave for bonding. Another, more reasonable, example of this rule would be if the employee needs time off now for surgery and takes FMLA, but saves the WA PFML entitlement to bond with an expected new child, or for an upcoming need to care for a family member with a serious health condition.

    Think of the implication in building a universal paid leave plan: To provide the better benefit – a Washington employee’s ability to defer usage of the state paid and job-protected leave to a later time – the universal plan would need to allow every employee to defer usage of the state leave benefit in all cases. Think of the stacking going on when employees grow savvy to this idea!

  3. All leave reasons, all family members, for the longest durations. Here’s the next consideration: A universally compliant plan would need to provide paid, job-protected leave for every leave reason offered by any state and, for leave to care for a family member, all family relationships covered by any state, and for the longest durations available. Here’s what it would look like:
    • Leave reasons: Employee’s health condition, care of family member, bonding, military exigencies, care of injured servicemember, safe leave, organ/bone marrow donation, bereavement . . . and any other leave reason added by amendment or through a new state PFML law.
    • Family members: Parent, spouse, domestic partner, child (any age), sibling, grandparent, grandchild, and all the permutations of these relationships such as step, foster, and in-law. Then there’s legal guardian or ward, in loco parentis, and the recent expansion to what we call “like a family member” – meaning anyone the employee considers to be like a family member, regardless of whether there is a blood or legal relationship. Sound squishy? Here’s an example: my grade school best friend’s mother who looked after me every day after school while my mom was at work and I was at her house, doing homework and playing with my friend. That might be stretching it, but not much under some of the laws.
    • Durations: Up to 52 weeks for your employee’s own serious health condition, and up to 12 weeks for family leave or other reasons.

     

  4. Costs & benefits. Here’s where the rubber meets the road. If you choose to withhold contributions from employee paychecks to pay for these leave benefits, under a universal plan you could withhold no more than the lowest rate allowed in any state. That’s 0.2% of the employee’s wages (Colorado, contributions effective in 2023). But you have to provide the highest benefit, which is California’s $1357/week in 2021 for both disability and family leave. California allows withholding 1.2% of employee’s wages to cover that – 6 times more than Colorado allows. So I’m just not sure the math works out, unless as an employer you are financially very fit and intending to carry a big portion of the cost of the program.

Other stuff. There are many other features you would have to factor in to have a universally compliant PFML plan, such as intermittent time in one hour or smaller increments (even for bonding); very limited information you can require of the employee to support the leave; and more. And give this some thought: More states are almost certainly on their way to passing PFML laws. Who knows what special twist the next one will have? Get ready to sharpen your pencils to figure out the additional cost of more family relationships (although they probably can’t get any broader than “everyone,” longer leaves, lower employee contributions, higher benefits . . . What about your employees in states that don’t yet have a statutory paid medical or family leave benefit? Or employees in jurisdictions where a private plan is not allowed? Do you really want to offer these broad, unilateral benefits to all employees?

Here’s your reward! Congratulations! You’ve made it through this analysis of One Plan to Rule Them All. I promised a reward and here it is: Statutory Disability and Paid Family Leave Laws. This link will take you to a document that summarizes in detail all of the state-mandated paid benefit and leave programs, complete with employee eligibility, leave reasons, contribution rates, and much more. This site is maintained in real time by Matrix and Reliance Standard so it is always up to date. We hope you will find it useful and keep it on your Favorites list. Just remember, it will be updated frequently as developments warrant, so always best to go to the site rather than print it out (who does that anymore, anyway?).

Matrix can help!

I am guessing by now you can see that even if a universal plan could be designed, it would not be a sustainable paid leave program. So how do you ensure compliance with all of the conflicting and overlapping leave laws? One easy solution is to engage Matrix and Reliance Standard to handle it all for you – from state voluntary paid leave and benefits plans to unpaid but job protected leaves such as the FMLA and state equivalents. Throw in your company leave policies and we’ve got you covered! For more information reach us at ping@matrixcos.com or contact your Matrix or Reliance Standard representative.

 

READY FOR REGULAR OL’ FMLA?

Posted On May 12, 2020  

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

May 12, 2020

 

So enough with the coronavirus already, right? Let’s get back to basics and one of the most challenging FMLA issues: employee abuse and misuse.

On Thursday, May 21 at 12:00 Eastern/9:00 Pacific I will join Angie Brown, ClaimVantage Absence Practice Leader, in presenting a Disability Management Employer Coalition webinar.Martidmec

As an employer, suspected abuse of the Family and Medical Leave Act (FMLA) can present many challenges. Leave abuse can increase an employer’s costs and deplete resources, while also greatly decreasing employee productivity and morale. However, there are ways to effectively navigate the leave abuse landscape, especially considering the court’s support of the honest belief defense.

In this session, we will discuss scenarios where the honest belief defense has been effective in defending FMLA decisions. We will contrast these examples with highlights of areas where employers failed to make their case, and examine the differences. Attendees will leave with an understanding of what elements are critical to substantiate an honest belief defense.

You can register here or just go to http://dmec.org/ and click on the Conferences & Events tab. We invite you to use this discount code for free registration: 20CLAIMVANTAGE1

And of course, keep watching this blog for COVID-19 updates – we have more waiting in the chutes!

WHAT ABOUT ME? THE PLIGHT OF THE 500+ EMPLOYER GROUP

Posted On April 14, 2020  

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

April 14, 2020

 

FFCRA

At Matrix and Reliance Standard we receive questions about COVID-19-related issues daily – no, hourly. Since the passage of the Families First Coronavirus Response Act (FFCRA), many of these questions have revolved around a big  issue for big(ger) employers: What about companies that have 500 or more employees? These larger employers are not covered by the Emergency Paid Sick Leave Act (EPSL) or Emergency Family and Medical Leave Expansion Act (EFML) provisions of FFCRA. So what does apply and what can/should a large employer do?

Let’s take on that topic now. 

On April 9 Matrix and our sister company Reliance Standard Life Insurance presented a webinar on current
federal and state COVID-19-related legislation. I was joined by my RSL colleagues Karen Joseph and Tim Suchecki. We reviewed:

    • The Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave
      Expansion Act (EFML), both part of the
      FFCRA
    • State paid leave responses to COVID-19
      (including New York, of course)
    • Benefits and leave scenarios in various states
      that have state-mandated paid family and/or
      paid disability programs

You can obtain a copy of our presentation deck  here, and listen to a recording of the  session here.

My company has more than 500 employees. Does the “regular” FMLA apply to COVID-19?

Yes! The regular FMLA may come into play if an employee or employee’s family member is experiencing COVID-19 symptoms. BUT, the individual’s medical condition still must meet one of the FMLA definitions “serious health condition.A COVID-19 diagnosis, in and of itself, does not do this. Some individuals who have COVID-19 are asymptomatic or have very mild symptoms that will not rise to the level of a serious health condition.

Two specific definitions of serious health condition may be applicable here (29 C.F.R. §§ 113-115):

  • Inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility plus
    any subsequent
    period of incapacity or treatment); or
  • Incapacity of more than 3 consecutive, full calendar days, that also involves 2 or more in-person
    treatments by a health care provider or 1 in-person treatment followed by a regimen of
    continuing care
    .

The FFCRA made no changes whatsoever to the rules and procedures for regular FMLA claims. Despite the difficulty in getting an in-person medical appointment, an employer may still require in-person treatment by a health care provider and a written certification. Employers do have the ability to waive this requirement and accept a certification following a telemedicine appointment or waive the certification requirement altogether. Employers should consult with their legal counsel on whether, in that case, the employer should take the same approach to certification requirements for all serious health conditions, not just COVID-19 claims. Maybe this makes sense, as employees will have an even tougher time get an appointment and medical certification for non-coronavirus health conditions.

All other regular FMLA rules also continue to apply, including employee eligibility, total 12-week entitlement, required employer and employee notices, and so on.

My Company has more than 500 employees. Should we provide EPSL and EFML benefits to our employees?

Employers need to approach this decision with eyes wide open. If an employer with 500 or more employees elects to provide the EPSL and/or EFML benefits to its employees, there are two key things to understand:

  1. EFMLA is available when an employee’s child’s school or daycare has closed, or a day care
    provider is unavailable, due to COVID-19.
    This leave counts toward an employee’s 12-week
    FMLA
    entitlement per 12-month period. For employers with 500+ employees, any time
    taken by an employee that fits the parameters of EFMLA is not FMLA leave and cannot be
    counted toward the employee’s 12
    weeks of FMLA. Doing so could be considered
    interference with the employee’s FMLA rights by charging the employee’s FMLA bank
    with leave that is not covered by the FMLA or EFML.
  2. Paid leave provided to non-covered employees for EPSL or EFML reasons will not qualify for
    the 100% tax credit available for wage and related payments made pursuant to the acts.

With those two factors in mind, employers with 500 or more employees can certainly offer the same type of benefits to its employees as a new company policy or benefit. And, any employer can allow (but often cannot require!) employees to use existing company-paid sick leave, PTO, and other paid leave benefits for COVID-19-related reasons not normally covered, such as quarantines or school closures.

My Company has more than 500 employees. Do we need to post notice of the EPSL and EFML?

No. You are not a covered employer so no need to put up the DOL-approved poster (available here in several languages for those who DO need to post or share electronically!). In fact, posting the notice if your company is not covered might just add confusion to an already confusing situation for employees.

My business is made up of multiple companies, some over and some under 500 employees. Should we provide EPSL and EFML benefits to ALL employees?

The previous question provides the answer here: be aware of the two key factors in making your decision. But there is an additional consideration: If you provide EFML benefits to the employees of the 500+ companies you are in effect giving those employees greater benefits than the employees of smaller companies. That’s because, for the employees of the larger companies, the paid time off cannot count toward the employee’s FMLA 12-week entitlement, but such usage for an employee of a smaller company does count toward FMLA. So the employees of the larger companies may be able to take more leave in a 12-month period, paid or unpaid, than employees of the smaller companies. Be ready for employee dissatisfaction with perceived inequities in benefits among the companies!

My company has ABOUT 500 employees, depending on the day. Should we provide EPSL and EFML benefits to our employees regardless of each day’s headcount?

Whether an employer has fewer than 500 employees is determined as of the first day of leave of EACH employee requesting leave. That means, for example, that an employer with 510 employees today does not have to grant leaves that will start today; but a week later, if the employee headcount drops to 495, the employer does have to grant leaves requested to start that day. (This may include leave for the employees denied today.)

In light of this moving target it may be tempting to simply grant the paid leave for all employees regardless of a specific day’s employee count. But any EPSL or EFML benefits provided while the company has 500 or more employees on the leave start date won’t count toward the employer’s paid leave obligations to an employee for the leaves that ARE covered, won’t qualify for the tax credits, and can’t be counted toward the employee’s FMLA entitlement. Feeling like a broken record here, but there are so many permutations on that 500 rule!

My business is made up of several related entities. Should we provide EPSL and EFML benefits to our employees?

Generally, each legal entity, such as a corporation, is a separate employer for purposes of counting employees for EFMLA (and FMLA) coverage. However, in some cases related entities may constitute a single employer and therefore all employees of the related entities are counted to determine the under/over 500 count.

Here is guidance from the FMLA regulations, which are incorporated into the EFML regulations:

A corporation is a single employer rather than its separate establishments or divisions. Where one corporation has an ownership interest in another corporation, it is a separate employer unless it meets the “integrated employertest. Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility. A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

(29 C.F.R. §§ 825.104 and § 826.40)

This assessment is important because, if your company is part of an integrated employer with a total of 500 or more employees, any benefits provided cannot be counted toward an employee’s FMLA usage and won’t qualify for tax credits, as discussed above. On the other hand, if your under-500 corporate entity is affiliated with other companies but does not satisfy the integrated employer test you may be covered by FFCRA without realizing it.

SAFE BET: If you have questions about whether your company is part of an integrated employer, consult your legal counsel. The determination depends on a legal analysis your company’s specific facts and circumstances.

My company usually has more than 500 employees, but we have had to furlough hundreds and now have fewer than 500 active employees. Are we covered by FFCRA?

Yes. Those remaining active employees are entitled to EPSL or EFML paid benefits and job-protected leave. Employees on furlough or laid off are not counted toward the company’s number of employees. Likewise, they are not entitled to FFCRA benefits. However, furloughed or laid off employees may be entitled to unemployment benefits, which vary from state to state.

My company has more than 500 employees. Are there any other COVID-19-related laws we need to comply with?

Yes. Specifically, New York passed a law, effective March 18, 2020, which provides paid leave to employees of all employers when the employee or a minor dependent child is subject to an order of quarantine or isolation. The type and amount of paid benefits available to employees depends on employer size. Employers with 100 or more employees must provide 14 calendar days of paid leave due to an employee or minor child quarantine (that is, pay for the number of days the employee would normally work in a 14-day period). For details on the New York law, check out our New York FAQs and our webinar presentation  and recording.

In states with paid family leave and/or paid disability benefits, many changes have been made to afford benefits to employees for COVID19-related leaves. These too are covered in our recent COVID-19 webinar.

Matrix can help!  

Look, there are obviously a number of factors in play surrounding the recent COVID-19 laws, particularly as they relate to providing benefits voluntarily to companies with more than 500 employees. It’s a sad, but unavoidable truth that well-meaning employers must nonetheless be cognizant of the unintended consequences that could result without careful examination of ALL the laws that apply to them. We are here to offer information and illumination – that’s our jam! But remember, consulting with legal counsel and a tax expert is always advisable if employers with over 500 employees choose to provide benefits more generous than those required under the law.

COVID CATCH-UP: NEWS FROM THE DOL, CDC, AND EEOC

Posted On April 13, 2020  

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

April 13, 2020

 

The best thing about the just-concluded long weekend is that it gave me a chance to catch up on the latest Coronavirus guidance issued by various entities. Top of the world, Ma! Here are 3 for today’s reading pleasure:

COVID-19 QUESTIONS AND ANSWERS: ROUND 4 FROM THE DOL
The U.S. Department of Labor has issued the fourth set of questions and answers relating to the Families First Coronavirus Response Act’s Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFML). This edition has 20 new questions, starting with #60. There are no surprises but some of the answers do provide helpful interpretive information. As you read, remember this guiding principle:

In order to receive EPSL and/or EFML benefits, (1) the employer must have work available for the employee; and (2) the employee must be unable to perform the work (or telework) due to the COVID-19 reason. So, for example, if an employee must stay home to care for a small child due to a school closure but the employer has closed its place of business and has no work the employee could otherwise perform, the employee is not entitled to pay benefits.

Quarantine orders (Question 60). For purposes of EPSL, a quarantine or isolation order includes a shelter-in-place or stay-at-home order issued by any federal, state, or local government authority as well as a specific order directed at an individual employee or family member.

Self-quarantine (Questions 61-62, 65). An employee may receive benefits during a self-quarantine only when acting pursuant to the advice of a health care provider. The employee’s own opinion that he should stay away from others will not support a claim for FFCRA pay benefits. The same applies for leave to care for an individual in self-quarantine.

Care for others who are quarantined (Questions 63-65). An employee may be able take EPSL to care for another individual who is under a governmental order of quarantine or isolation or who is quarantined pursuant to the advice of a health care provider, but must meet the following criteria: (1) the individual is unable to care for herself (2) the individual depends on the employee for care; and (3) providing the care prevents the employee from working or teleworking.

An “individual” for whom an employee may provide care is limited to a member of the employee’s immediate family (not defined), someone who regularly resides in the employee’s home, or someone with whom the employee has a relationship that creates an expectation of care. There must be a personal relationship between the employee and the individual.

Age of child; care of child (Questions 66, 71-72, 40). Both EPSL and EFML are available to care for a child in quarantine or whose school or place of care has closed if the child is under age 18 or is 18 or older and in capable of self-care because of a disability.

An employee may take EFML only to care for his own son or daughter due to a school or day care closer or other unavailability of daycare. “Son or daughter” is defined for this purpose the same as under the regular FMLA: Biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stands in loco parentis.

On the other hand, an employee may take EPSL to care for an “individual,” which is defined much more broadly than “son or daughter” (see above, Question 64) and therefore might include a child who is not the employee’s own son or daughter.

School or “place of care” closure, unavailability of “child care provider” (Questions 67-70). A “place of care” is a physical location in which care is provided for a child. It does not have to be dedicated solely to this purpose. Traditional day care facilities and preschools are included, as well as before and after school care programs, homes, and summer camps. This leads us to wonder, what will happen when summer hits if school closures are still in effect? Will parents be able to take leave when a different place of care that they would then have relied on is still closed? Remember, 12 weeks of leave staring April 1, for example, will extend to June 23.

A “child care provider” is defined to include both (1) paid individuals such as au pairs, nannies, and babysitters, and (2) individuals who regularly provide care at no cost, such as family members, friends, or neighbors.

An employee can take leave to care for a child due to a school closure, etc., only when the employee is actually needed to care for the child and is unable to work as a result. Leave is not available if another provider such as a co-parent is available.

A school is considered closed even if it is offering online instruction or other at-home schooling resources. Closure of the physical location is what counts.

Workers’ compensation and temporary disability benefits (Question 76). An employee currently receiving workers’ comp and disability benefits through a state- or employer-provided plan is not eligible to receive paid leave under EPSL or EFML. Such benefits are paid because the employee is unable to work due to an injury or illness. The DOL has not addressed how the EPSL and EFML benefits interact with paid family leave, if the employee’s reason for leave is covered by each.

FFCRA benefits and current leaves of absence (Question 77). An employee on a current leave of absence is not entitled to EPSL or EFML benefits because they are not working and in need of leave. However, an employee on a voluntary leave of absence (for example, bonding with a new child or on sabbatical or vacation) can chose to end the leave and take FFCRA benefits for a qualifying reason that then prevents the employee from working. On the other hand, if an employee is on a mandatory leave of absence (e.g., a disciplinary suspension), it is that mandatory leave that is preventing the employee from working, not a FFCRA-qualifying reason, so no benefits are available.

DOL enforcement (Questions 78-79). The DOL has stated it will not bring an enforcement action against an employer for violations of EPSL or EFML occurring within 30 days of enactment (from March 18 through April 17). This does not mean employers don’t need to comply until April 18. Rather, the DOL will expect employers to use good faith efforts to comply, correct any violations that occur during that period, and commit to ongoing compliance. Otherwise, the DOL will retroactively enforce violations back to April 1, 2020.

Other topics covered in Round 4 include counting employees of a staffing company (Question 74) and calculating pay for seasonal employees (Question 75).

CDC GUIDANCE FOR EXPOSED CRITICAL WORKERS
Recognizing the need to keep employees in certain key industries working, the Centers for Disease Control has issued an Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. (#mouthful!) The Guidance applies to these employees:

  • Federal, state, & local law enforcement
  • 911 call center employees
  • Fusion Center employees
  • Hazardous material responders from government and the private sector
  • Janitorial staff and other custodial staff
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing,
    informational technology, transportation, energy and government facilities

Workers who have had a potential exposure are permitted to keep working provided they are asymptomatic and take additional workplace precautions:

  • Pre-Screen for temperature and symptoms before entering a facility or starting work
  • Regular Monitoring under the supervision of the employer’s occupational health program.
  • Wear a Mask
  • Practice social distancing
  • Disinfect and clean work spaces routinely, such as offices, bathrooms, common areas, and
    shared electronic equipment

More information is available in the Interim Guidance.

EEOC UPDATED ADA COVID-19 GUIDANCE
Ages ago (well, it was early March – how time flies!) we blogged about the Equal Employment Opportunity Commission’s guidance on COVID-19 and the Americans with Disabilities Act. The information in that post is still accurate and provides the answers to many workplace questions relating to the ADA and COVID-19.

On April 9 the EEOC came out with an updated guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The update covers several topics such as medical inquiries, confidentiality, hiring and onboarding, and furloughs. Of greatest to us in the absence and accommodations business are the new questions and answers about COVID-19 and accommodations.

The update starts with a recommendation to consult with the Job Accommodation Network (JAN) for assistance with accommodations, a suggestion with which we at Matrix heartily agree. JAN’s materials specific to COVID-19 are here In the meantime, here is the new guidance. (I borrowed liberally from the EEOC document itself rather than reinvent the wheel.)

D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)

Yes. Some of these “accommodations” may have already been implemented for all employees but consider:

  • Changes to the work environment such as designating one-way aisles; using
    Plexiglas, tables, or other barriers to ensure minimum distances between customers
    and coworkers
  • Temporary job restructuring of marginal job duties
  • Temporary transfers to a different position
  • Modifying a work schedule or shift assignment.

D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Yes. Employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty than other employees handling the disruption to daily life that has accompanied the COVID-19 pandemic. Employers may ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

As an additional resource, check out the transcript of the webinar held on March 27 regarding the laws EEOC enforces and COVID-19.

Matrix can Help!  

Sure, we are your one-stop shop for COVID-19 leave information, but we are so much more! At some point, hopefully soon, we will all be focusing less on coping and more on growing; and you will see we continue to shine! Subscribe (now! do it!),  and keep us in mind as you ready your Company programs for tomorrow and the many days after. We can, and will, help.

WHOOPEE! MORE FFCRA GUIDANCE! DOL ISSUES TEMPORARY REGULATIONS

Posted On April 03, 2020  

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

April 03, 2020

 

Perhaps I shouldn’t be flippant, but seems like every other day brings more guidance from the U.S. Department of Labor on the new paid leave benefits available to many employees under the iStockFamilies First Coronavirus Response Act.  Oh, wait, it doesn’t just seem like every other day…!

But, the latest DOL offering – the FFCRA Temporary Regulations – is very important. In a mere 124 pages (in all fairness, double spaced) the DOL sets out its official interpretation of what is, by general consensus, a very confusing law. I have read the regulations and found some degree of clarity from them. Now it’s time to offer my learnings to you, my faithful readers.  Taking metaphorical pen in hand, I begin our journey:

 

 

 

 

 

 

Oh, sorry, I was daydreaming that I worked for a company with hundreds of employment lawyers, with whom I could share the load.

But wait – I don’t, but Jeff Nowak does!  So, my friends, rather than reinventing the wheel on a Friday evening in April, I am going to point you to Jeff’s blog FMLA Insights for his thoughtful analysis and summary of the FFCRA regulations.  Thank you, Jeff and colleagues!

But don’t think I have nothing to do now!  At Matrix, we are training our folks, creating new intake procedures and new forms, answering client questions (we get tons, and they get more granular every day!).  We are Mission-Ready to administer the expanded FMLA and all the new COVID-19-related state laws and regulations that are also coming at us fast and furious.  And the rest of Matrix’s compliance team is working to hold down the fort and handle all of our other compliance responsibilities. Even in these challenging times, we are committed to providing our clients with top notch leave, disability, and accommodations services in all regards.

And as a final note, in case you need a little light reading for the weekend, here are some links to a DOL COVID-19 webinar you might find useful – both for yourself and your employees:

DOL Webinar: The Families First Coronavirus Response Act (FFCRA)

DOL Webinar Slides (PDF)

AND THE BEAT GOES ON . . . IRS INFO ON THE COVID-19 TAX CREDIT; DOL ISSUES TEMPORARY REGULATIONS

Posted On April 02, 2020  

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

April 02, 2020

 

And the beat goes on, the beat goes on
Drums keep pounding a rhythm to the brain
La de da de de, la de da de da*

Sonny & Cher

Bet that song will be in your brain all day now – you’re welcome! 


We are getting pounded daily with new guidance on the Families First Coronavirus Response Act (FFCRA).  Here’s the drumbeat from the last couple of days – FFCRA tax credits guidance and Department of Labor temporary regulations (124 pages!) explaining the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA).  (For our prior COVID-19 posts you can just scroll down in this blog.  But remember, things keep changing so always look here for the latest!)

DOL Temporary FFCRA Regulations

I have to admit, I have not yet read all 124 pages of the temporary regulations and won’t try to summarize them yet.  That will be part of my fun weekend.  It will be an easy way to keep appropriate social distance!  But the regs have arrived and you can enjoy them yourself here.

COVID-19-Related Tax Credits

First, a refresher. The FFCRA is applicable to employers with fewer than 500 employees. The act requires covered employers to provide paid leave through two separate provisions: (i) the EPSL, which entitles workers to up to 80 hours of paid sick time when they are unable to work for certain reasons related to COVID-19, and (ii) the EFMLA, which entitles workers to certain paid family and medical leave when their child’s school is closed or daycare is unavailable due to COVID-19.

Covered employers can claim tax credits for wages paid as required by EPSL and EFMLA. These tax credits also include any qualified health plan expenses and the employer’s share of Medicare tax on the FFCRA wages paid.  Details on how to claim the tax credit are available in the IRS guidance.  Be sure to share it with your tax advisor (I’ll bet they already have it)!

Documentation is Really Important!  Kind employers may be inclined to take an employee’s word for the reason they need paid leave under EPSL and/or EFMLA, but doing so may be kissing the 100% tax credit goodbye. You can’t get the tax credit without some pretty detailed documentation.  The following information is found in Questions 44 and 45 of the IRS guidance:

For all paid leave reasons, the employee must make a WRITTEN request for paid leave that includes:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support
    for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

And:

In the case of a leave request based on a quarantine order or self-quarantine advice for the employee or a family member, the written statement from the employee should include:

  1. The name of the governmental entity ordering quarantine or the name of the health care professional
    advising self-quarantine; and,
  2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s
    name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the written statement from the employee should include:

  1. The name and age of the child (or children) to be cared for;
  2. The name of the school that has closed or place of care that is unavailable; and
  3. A representation that no other person will be providing care for the child during the period for which
    the employee is receiving family medical leave; and
  4. With respect to the employee’s inability to work or telework because of a need to provide care for a
    child older than fourteen during daylight hours, a statement that special circumstances exist requiring
    the employee to provide care.

In other words, an employee cannot get paid EPSL or EFMLA during a school closure or unavailability of day care due to COVID-19 if someone else is providing care to the child(ren) during the time for which the employee is claiming paid leave. Does this mean that if one parent is home due to a business closure, the other parent cannot take paid leave to care for the child?  It would seem so, and that seems fair. There is no guidance as to what would constitute special circumstances that make an employee unable to telework even though his children are over 14. Special needs come to mind. Or, “My child is a pyromaniac and must be watched at all times!” (Another song reference – any Def Leppard fans out there?)

And the beat goes on!  In addition to the above documentation, the employer must create and maintain records that include the following information:

  • Documentation to show how the employer determined the amount of EPSL an EFMLA wages paid to
    employees that are eligible for the credit, including records of work, telework and qualified sick leave
    and qualified family leave.
  • Documentation to show how the employer determined the amount of health plan expenses being claimed.
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the
    employer submitted to the IRS.
  • Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted
    to the IRS (or, for employers that use third party payers to meet their employment tax obligations,
    records of information provided to the third party payer regarding the employer’s entitlement to the
    credit claimed on Form 941).

Matrix Can Help!

Where else can you get COVID-19 leave news, insightful interpretations and the occasional music throwback? Sure, everyone says “We’re all in this together,” but admit it – it’s more fun together with us. Stay informed, stay loose and reach out to your Matrix or Reliance Standard account manager for help making your program make sense. 

 

*The Beat Goes On written by Sonny Bono. © Warner Chappell Music, Inc.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT – DETAILS, DOL AND MORE, OH MY!

Posted On March 26, 2020  

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

March 26, 2020

 

With record speed for a governmental agency, the U.S. Department of Labor (DOL) has issued a respectable amount of information to help employers understand the brand spankin’ new Families First Coronavirus Response Act (FFCRA) enacted on March 18.  Among other things, the Act:

  • Expands the Family and Medical Leave Act to provide job-protected
    leave when an employee is unable to work (or telework) due to a
    need to care for the employee’s child under age 18 if the child’s
    school or place of care has been closed or the child care provider
    is unavailable due to COVID-19.
  • Provides paid sick leave for 6 qualifying reasons related to COVID-19.

We provided more details on the FFCRA in our blog post hereIn addition, in collaboration with our sister company Reliance Standard, we have prepared an extensive set of Frequently Asked Questions. Thanks to my colleagues Kim Dunn and Nuri Noaz at RSL for their great work on the FAQs.

Here’s a quick look at new materials provided by the DOL as of yesterday, together with some surprise answers to questions.

FFCRA Questions and Answers

The DOL issued a Q&A guidance late on March 24, 2020.  Here’s a summary of what it covers:

Effective April 1.  The FFCRA provides that it will be effective “not later than 15 days after the date of enactment.”  Most of the world counted on the calendar and assumed this would mean April 2, 2020.  April Fool’s!  The DOL has identified April 1, 2020, as the effective date.  Go figure!

Size of Employer.  The FMLA expansion and paid sick leave provisions apply only to private employers with fewer than 500 employees.  In the Q&A the DOL has explained how to count employees to determine coverage:

  • The point of measurement is at the time an employee’s requested leave is to be taken.
    For employers hovering near that 500 threshold, this means that coverage (and whether
    to provide the leave) could change day by day as the employer’s headcount fluctuates
    over and under 500.
  • The count of employees includes full-time and part-time employees, employees on leave,
    temporary employees jointly employed two employers (regardless of whose payroll the
    employee is on), and day laborers supplied by a temp agency. Independent contractors
    do not count (but remember it is very hard to establish a true independent contractor
    arrangement).
  • Typically a corporation will be considered a single employer. However, the rules regarding
    joint employers and integrated employers apply.  You can find these rules explained in
    the FMLA regulations here.

Public sector employers of any size appear to be covered but the Q&A states that additional FAQs on public employers will be forthcoming.

Paid Sick Leave – Hours and Rate of Pay.  This benefit is available for all employees of employers with fewer than 500 employees, but the amount of leave depends on whether the employee is full time or part time (80 hours for full time and the equivalent of 2 weeks’ work for part time).  Neither of these terms is yet defined.  The Q&A addresses how to calculate the employee’s rate of pay and the employee’s hours of work (including for an employee with a variable schedule).

A welcome clarification is that the Act provides a one-time-only allotment of paid sick leave, not 80 hours/2 weeks per covered event.  And, 80 hours means 80 hours.  An employee who typically works 50 hours per week can take 50 hours of paid sick leave in one week but then will have only 30 hours in the next week.  Still not clear is whether the paid sick leave can be used intermittently and/or at separate times for different covered events, up to the total maximum.

Applicability of Both Benefits.  If an employee needs leave due to a school closure or daycare, they may be eligible for both the enhanced FMLA leave and pay (after 30 days of employment) and the paid sick leave (immediately upon employment).  Because the first 10 days of FMLA for this reason is unpaid the employee can use the paid sick leave entitlement for that period, after which time the pay benefits of the enhanced FMLA would kick in.

Not Retroactive.  The Act does not apply retroactively.   The employer must give employees all of the leave and pay benefits required by the Act from April 1 on.  Anything provided by the employer before that date does not satisfy its obligations (and also won’t qualify for the tax benefits).

Required Employer Notices

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. For remote workers, an employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.  The DOL issued the approved notice form on March 25.  Here it is, along with a related FAQ:  Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

More to Come!

The DOL is authorized by the Act to issue certain regulations relating to both the expanded FMLA provisions and the paid sick leave, but no due date or deadline is provided.  Regulations will cover at least the possible exemptions for health care providers and emergency responders, the small business exemption for crew with fewer than 50 employees if compliance would jeopardize the viability of the business as a going concern, and other regulations as necessary to carry out the paid sick leave provisions and ensure consistency between those and the expanded FMLA provisions.

For all things DOL and COVID-19-related, checkout the DOL’s ever-expanding pandemic website here.

Matrix Can Help!  

Is it me, or does this seem to be drifting into something resembling the “new normal?” While it still feels a bit like the first time on a scary roller coaster, we are taking it in, figuring it out and helping each other – the way you’d hope. Keep checking back, and if you have specific questions we have armed our account managers with up to the moment answers that are refreshed daily. Just ask, and we at Matrix and Reliance Standard will do our best to keep you and your employees stay safe and informed.

 

FAMILIES FIRST CORONAVIRUS RESPONSE ACT – IT’S FINAL AND HERE’S WHAT IT REQUIRES

Posted On March 20, 2020  

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

March 20, 2020

 

The President has signed the Families First Coronavirus Response Act  (FFCRA), originally introduced in the House as H.R. 6201.  The final version is significantly scaled back from the original. There are still 2 significant sections related to employee absences: expansion of FMLA coverage for school and day care closures, and paid sick leave for a multitude of reasons. Here is a recap of the provisions as passed that will go into effect on April 2, 2020.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Effective dates.  Effective on April 2, 2020; sunsets on December 31, 2020 (unless extended, of course).

Employee eligibility.  Applies to employees who have worked for 30 calendar days for the employer from whom they request leave. The DOL is authorized to draft regulations excluding certain health care providers and emergency responders from eligibility.

Covered employers.  Applies to employers with fewer than 500 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.”

  • So, if an employer has 500+ employees and then drops below 500, coverage is not immediate but
    would take a total of 20 weeks at the under-500 level. Those weeks do not need to be consecutive,
    but total within the current calendar year.
  • Likewise, if an employer has under 500 employees now and is covered, then increases to 500 or more
    employees, it will take 20 weeks total at that level in 2020 before the employer moves out from under
    coverage.

There are no limitations regarding number of employees at a work site. 

The Act has a provision authorizing the U.S. Department of Labor to issue regulations to exempt small business (fewer than 50 employees) from the requirements of the FFCRA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  It remains to be seen whether the DOL will be able to implement such regulations before the April 2 effective date.

Covered leave reason and duration.  The law adds FMLA job-protected time off ONLY to care for a son or daughter under 18 whose school or place of care has been closed or the child care provider for the son or daughter is unavailable due to a public health emergency specifically relating to COVID-19. However, leave is not available unless the employee is “unable to work (or telework) due to a need for leave.”  This additional leave type is included within the existing FMLA 12-week total. The Act is silent regarding intermittent leave usage; most likely, intermittent usage is permissible. 

“Son or daughter” is not specifically defined in the FFCRA so presumably the usual FMLA definition applies (a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis) except, as noted above, coverage is limited to closures for a son or daughter under 18.

“School” is defined as an elementary or secondary school. “Child care provider” means a provider who receives compensation for providing child care services on a regular basis.

Paid FMLA time.  The first 10 days of FMLA leave are unpaid, although the employee can elect to use accrued vacation leave, personal leave, or medical or sick leave.  (And, see the provisions relating to paid sick leave below.)  After that, the FMLA time is paid at 2/3 the employee’s usual rate of pay for each day of leave, but with caps of $200 per day and $10,000 total per employee.  FFCRA contains a provision for calculating pay for an employee with a variable schedule. 

Notice requirements.  Employees must give employers such advance notice of the need for leave as is practicable. There is no specific notice requirement from employers to employees; assume that all the usual FMLA notices (posting, rights and responsibilities, eligibility, etc.) will be fully applicable.

Job protections.  Generally, employees will be entitled to the usual FMLA job protections (reinstatement to same or equivalent position) after COVID-19-related leave. Employers with fewer than 25 employees may be excused from job restoration requirements if the situation meets certain conditions, including that the job has been eliminated due to factors related to COVID-19 and the employer makes efforts to restore the employee to an equivalent position for a period of 12 months following the end of the employee’s leave.

Multi-Employer Bargaining Agreements.  Employers who are part of a multi-employer collective bargaining agreement may satisfy their obligations under the FFCRA by paying amounts employees are entitled to into the multi-employer fund, as long as employees are able to access the fund for appropriate FFCRA payments.

EMERGENCY PAID SICK LEAVE ACT

Effective dates.  Effective on April 2, 2020; sunsets on December 31, 2020 (unless extended).

Eligible employees.  There are no eligibility requirements. Employees can take this paid sick time immediately upon its effective date.

Covered employers.  Again, applies to employers with fewer than 500 employees.  See the discussion above on how this is calculated.

Covered leave reasons. An employee may use paid sick leave to the extent that the employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related
    to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns
    related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in paragraph (1)
    or has been advised as described in paragraph (2). Note there appears to be no limit on who
    this “individual” may be, and no requirement that it be a family member.
  5. The employee is caring for a son or daughter of such employee if the school or place of care
    of the son or daughter has been closed, or the child care provider of such son or daughter
    is unavailable, due to COVID-19 precautions. “Son or daughter” is not specifically limited to
    those under age 18 but is expected to be interpreted consistently with the FMLA Expansion Act.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary
    of Health and Human Services in consultation with the Secretary of the Treasury and the
    Secretary of Labor.

NOTE:  An employer of an employee who is a health care provider or emergency responder may elect to exclude such employee from the application of this leave requirement.

Amount of time off and pay. The amount of paid time off available is 80 hours for full-time employees; and the average number of hours typically worked over a 2-week period for part-time employees. Leave for reasons (1), (2) and (3) is paid at the greater of the employee’s full pay or federal, state, or local minimum wage, but now capped at $511 per day or $5,110 total. Leave for reasons (4), (5), and (6) is at 2/3 pay, now capped at $200 per day or $2,000 total.

Interaction with employer’s other paid leave policies.  The employee may use paid sick leave provided under FFCRA first, then other employer-provided paid leave as needed. The employer cannot require sequence of usage otherwise.

Notices.  After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time. Employers must post a notice of employee rights in conspicuous places on the employer’s premises. The DOL must provide a model notice for this purpose within 7 days after enactment, or by March 25. 

Employer Tax Credits for Paid Leave.  I don’t pretend to be a tax expert so please consult your own attorney or accountant on this. Generally, though, it appears the FFCRA includes provisions for 100% tax credits for amounts employers pay under the new law, including both the FMLA paid leave and the paid sick leave requirements. The tax credits go against Social Security taxes owed by the employer. If this does not yield 100% credit for amounts paid, the excess is refundable to the employer.

IS IT FRIDAY YET?

Remember when the days were long, the nights were warm and the government leave programs didn’t come two at a time? That was cool. But here we are, and there are more piling up behind this. Rest assured we will continue working overtime to keep you informed. And our account managers are working overtime, too, so that we can help employers stay safe while they figure out how to keep their employees safe. Have a question? Reach out. Have the weekend off? Take it. Relax, and be thankful; and I will talk to you soon – very soon!

 

CORONAVIRUS UPDATES DU JOUR: SENATE PASSES AND PRESIDENT SIGNS FMLA EXPANSION AND PAID SICK LEAVE; STATE PAID LEAVE LAWS – WHEN & HOW DO THEY APPLY?

Posted On March 19, 2020  

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

March 19, 2020

 

The Families First Coronavirus Response Act

In the past two days we have reported on the progress of House of Representatives Bill 6201 proposing expansions of the Family and Medical Leave Act and new paid sick leave requirements here and the House amendments here (or if you widely bookmarked Matrix-Radar, just scroll down!).  On March 18 that bill passed the U.S. Senate and was signed into law by President Trump.  The final version was unchanged from H.R. 6201, so our summary in those two blog posts is still accurate – read them both, and we will follow up soon with more details. In the meantime, remember it goes into effect April 2, 2020; and still impacts only employers with fewer than 500 employees.

Moving on:

State Paid Family and Medical/Disability Laws

Now let’s take a look at how existing or recently-modified state leave laws (paid and unpaid) relate to COVID-19 situations.  NOTE!  This is a very fluid and fast changing situation.  This information is accurate as of press time. We will update this post as needed for new developments.

This overview relates primarily to state paid family and medical or disability benefits and leave laws.  Many states also have paid sick and safe leave laws, and a good number of those cover employee absences due to the closure of schools and day care facilities. In addition, some situations where an employee is ordered by the employer to stay home, or experiences reduced hours or a business closure, may be covered by state unemployment insurance. These are mentioned below only if the state COVID-19 information website specifically addresses the issue. 

A Better Balance is a great resource for state and municipal/county paid sick leave laws.  Check out their website for a comprehensive chart.

California.  The Golden State has taken several steps to provide or clarify state benefits coverage to situations relating to COVID-19:

  • Disability and employee quarantine: An employee may qualify for disability insurance due to their own
    illness and/or quarantine. “Disability” is defined by California statute to include inability to work due to
    a nonwork illness or injury and also “because of a written order from a state or local health officer to an
    individual infected with, or suspected of being infected with, a communicable disease.”
    CA Unemp Ins Code § 2626 (2017).

The Employment Development Department is waiving the one-week elimination period for DI claims for individuals who are unemployed and disabled as a result of COVID-19.  See Governor’s Executive Order. So far this does not appear to apply to voluntary plans. EDD still requires a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to the employee.

  • Paid Family Leave: Employees missing work to care for an ill or quarantined family member with COVID-19
    may qualify for paid family leave (presently up to 6 weeks, increasing to 8 weeks on July 1, 2020).
    “Family member” is defined as a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling,
    spouse, or registered domestic partner. EDD still requires a medical certification for the family member
    from a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis
    has been obtained, a statement with the same information listed above for disabilities. This requirement
    can also be met by a written order from a state or local health officer that is specific to the family member’s
    situation.
  • School Closures: If an employee has to miss work because their child’s school is closed, they may be eligible
    for Unemployment Insurance benefits. Eligibility considerations include if the employee has no other
    care options and if they are unable to continue working normal hours remotely.
  • Work closures or reduced hours: Again, unemployment benefits may be available to employees if the
    employer closes its business or reduces work hours. In these cases the employee is not required to actively
    look for other employment but must be ready and available to work throughout the period of
    unemployment or reduced schedule.

California EDD COVID-19 website:  https://edd.ca.gov/about_edd/coronavirus-2019.htm

New Jersey:

  • Disability and employee quarantine: The state’s Temporary Disability Insurance will cover an individual who
    has tested positive for COVID-19 or has symptoms and is unable to work.  The employee must first exhaust
    their leave available under New Jersey’s Earned Sick Leave law, which provides up to 40 hours of paid sick time.
    The employee must still provide the usual medical support from a health care provider, including diagnosis
    and duration the employee is expected to be off work. New Jersey TDI does not cover employee quarantine
    situations.
  • Paid Family Leave: New Jersey Family Leave Insurance (FLI) will apply to employee time off needed to care
    for a family member with a serious health condition. There are no provisions relating to caring for a family
    member due to a COVID-19-related quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under New Jersey FLI.
    New Jersey’s Earned Sick Leave law provides paid sick time (up to 40 hours) that employees can use when their
    children’s school or child care facility is closed due to an epidemic or public health emergency.
  • Work closures or reduced hours: Unemployment benefits may be available to employees if the employer
    closes its business or reduces work hours.

New Jersey COVID-19 website:  https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml

New York

NOTE:  On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. Here are the specifics: 

  • Employers are required to provide sick leave for absences due to a COVID-19-related quarantine ordered
    by the state or an authorized state or local department or board of health, according to the employer’s
    size and net income:

    • Employers with 10 or fewer employees: unpaid leave for the duration of the quarantine.
    • Employers with 10 or fewer employees and net income greater than $1 million: 5 days of paid leave,
      plus unpaid leave for the duration of the quarantine.
    • Employers with 11-99 employees: 5 days of paid leave, plus unpaid leave for the duration of the
      quarantine.
    • Employers with 100 or more employees: 14 days of paid leave (no reference to unpaid leave for
      the duration of a quarantine).
  • The employee can apply for New York disability and paid family leave (PFL) benefits after using the mandated
    paid leave. The waiting period is waived for employees of employers with 10 or fewer employees and $1 million
    or less in net income.
  • This paid sick leave must be provided without loss of an employee’s other accrued sick leave.
  • The definition of “disability” for purposes of disability benefits is expanded to include the inability of the
    employee to perform the duties of his/her position or other offered position due to an order of quarantine
    relating to COVID-19, after exhaustion of the paid sick leave (PSL) offered by the employer (presumably
    including company-offered PSL and the newly mandated PSL).
  • Paid family leave is expanded to include leave taken by an employee subject to an order of quarantine relating
    to COVID-19 applicable to the employee or to the employee’s minor dependent child.
  • Benefits available under the disability law and paid family leave run concurrently, with the PFL benefits
    being primary.
  • The amount of benefits available for COVID-19-related disability is a maximum of $2,043.92 per week, and
    for COVID-19-related PFL is a maximum of $840.70 per week. After application of PFL benefits, the amount
    of disability benefits is capped so that the employee does not receive in total more than the employee’s
    average weekly wage.
  • If the federal government provides sick leave and/or employee benefits for employees related to COVID-19,
    then the federal benefits apply first and the state benefits described above serve as a top-off up to the
    limits provide by the New York bill.
  • The employee must be restored to his/her position held prior to the quarantine (so, same position, not
    an equivalent position
    ).

Rhode Island:

  • Disability and employee quarantine: Employee COVID-19-related illnesses may be covered by Rhode Island
    Temporary Disability Insurance (TDI).  The Rhode Island Department of Labor and Training (DLT) will waive
    the 7-day minimum claim duration so employees can get coverage from their first day of COVID-19 illness.

By its terms TDI does not to apply to an employee under quarantine but not actually diagnosed with COVID-19 or exhibiting symptoms. However, the Rhode Island COVID-19 Workplace Fact Sheet provides this statement:  “For individuals under quarantine, DLT will waive the required medical certification, and instead will allow them to temporary qualify via self-attestation that they were under quarantine due to COVID-19.”  This appears intended only to waive the medical certification requirement if someone is quarantined, not to create new TDI coverage.

  • Paid Family Leave: Rhode Island Temporary Caregivers Insurance (TCI) provides 4 weeks of time off to care
    for a seriously ill family member (child, parent, spouse, domestic partner, parent-in-law, or grandparent).
    There is no TCI coverage because a family member is in quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under Rhode Island TCI.
  • Work closures or reduced hours: If a workplace closes or an employee is directed by the employer to remain
    home, the employee may be eligible for unemployment insurance.

Rhode Island COVID-19 Workplace Fact Sheet:  www.dlt.ri.gov/pdfs/COVID-19 Workplace Fact Sheet.pdf

Washington:

  • Disability and employee quarantine: Washington’s new Paid Family and Medical Leave law covers an employee’s
    absence from work due to a serious health condition.  Employees must still provide medical certification of the
    employee’s condition, but this can be obtained via email and the Employment Security Department will accept
    an electronic signature.  An employee’s time off from work due for purposes of quarantine is not covered by
    Washington PFML, but the employee may be eligible for unemployment insurance.
  • Paid Family Leave: Paid family leave is available to care for a family member with COVID-19 if a medical provider
    certifies that it qualifies as a serious health condition.
  • School closures: Employee absences due to school or day care closures are not covered under Washington PFML.
    Unemployment insurance may be available.
  • Work closures or reduced hours: If an employee is laid off work temporarily or if receives reduced hours due to
    a business slowdown or a lack of demand as a result of COVID-19, the employee may be able to receive
    unemployment benefits. If placed on “standby” status the employee does not have to look for another job while
    collecting unemployment benefits as long as certain conditions are met (including performing available telework).

Washington COVID-19 websites abound:

https://esd.wa.gov/newsroom/covid-19

https://paidleave.wa.gov/coronavirus/

easy-to-read comparison guide

https://esd.wa.gov/newsroom/covid-19#forms

 

Are we having fun yet?

Look, let’s get real for a moment. None of us have ever lived through something precisely like this moment in time. Scary? Sure. Complicated? You bet. Changing every sec- oh wait, there it goes again. Changing every second? Yup. Here’s the good news, because we all need some. We will get through this, together. From the Matrix-Radar team, you can be assured we will not take our eyes off the ball and continue to try and help make sense of every new rule and nuance (new-ance?). If you are a Matrix or Reliance Standard client with questions about your leave of absence and disability programs, your account manager will absolutely help – he or she is getting up to speed as we all are. Like you, we are social distancing, work-from-home-ing, loving our families and taking care of business like a boss. Stick with us and stay positive, we will come out stronger, together. 

CORONAVIRUS FMLA UPDATE – (1) HOUSE AMENDS H.R. 6201; (2) APPLYING FMLA TO COVID-19 TO THE REST OF THE EMPLOYER WORLD

Posted On March 17, 2020  

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

March 17, 2020

 

Yesterday the U.S. House of Representatives passed some amendments to its Families First Coronavirus Response Act, H.R. 6201, originally passed just days ago on March 14.  You can read my original blog post summarizing the leave-related aspects of the bill here.  The amended bill is expected to go to the Senate, where it may be subject to more changes – or even rejection.  We will be watching for a final version (if there is one) and report on that as soon as possible.

In the meantime, here I provide a quick overview of what has changed under the House amendments.  I am not going to dive into much detail for the reasons above.  Then, keep reading for some pointers on applicability of FMLA in a coronavirus world to all covered employers.

PART 1 – FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Emergency Family And Medical Leave Expansion Act

Covered employers and eligible employees.  Nothing has changed here – as drafted, it still applies only to employers with fewer than 500 employees, and employees are eligible for FMLA protection under the bill if they have worked for the current employer for 30 days or more.

Covered leave reasons.  These have been scaled back substantially to include only time off to care for a child under 18 whose school or daycare has been closed due to a public health emergency (now defined as relating to COVID-19 specifically).  And, that leave reason does not apply unless the employee is “unable to work (or telework) due to a need for leave.”

Covered family relationships.   The expansion of covered family relationships has been eliminated.  Back to parent, son or daughter, spouse, as usual.

Paid FMLA time.  The first 10 days of FMLA leave (compared to original 14 days) is unpaid, although the employee can elect to use available paid time off.  After that, the FMLA time is paid at 2/3 the employee’s usual rate of pay but now with caps of $200 per day and $10,000 total.

EMERGENCY PAID SICK LEAVE ACT

Covered employers and eligible employees.  No changes; still applies only to employers with 500 or fewer employees, and no eligibility requirements for employees.

Covered leave reasons. An employee may use paid sick leave to the extent that the employee is unable to work (or telework) due to a need for leave because:

    • The employee is subject to a Federal, State, or local quarantine or isolation order related
      to COVID-19.
    • The employee has been advised by a health care provider to self-quarantine due to concerns
      related to COVID-19.
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    • The employee is caring for an individual who is subject to an order as described in
      subparagraph (1) or has been advised as described in paragraph (2).
    • The employee is caring for a son or daughter of such employee if the school or place of care
      of the son or daughter has been closed, or the child care provider of such son or daughter
      is unavailable, due to COVID-19 precautions.
    • The employee is experiencing any other substantially similar condition specified by the Secretary
      of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary
      of Labor.

NOTE:  An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this leave requirement.

Amount of time off and pay. The amount of paid time off available remains at 80 hours for full-time employees and the number of hours typically worked over a 2-week period for part-time employees.  Leave for reasons (1), (2) and (3) is paid at the greater of the employee’s full pay or federal, state, or local minimum wage, but now capped at $511 per day or $5,110 total.  Leave for reasons (4), (5), and (6) is at 2/3 pay, now capped at $200 per day or $2,000 total.

Interaction with employer’s other paid leave policies is unclear. The amendments remove some of the prior language relating to this topic but the overall impact is not clear.

PART 2:  Current State – Applicability of FMLA to COVID-19

Remember, the Families First Coronavirus Response Act only attempts limited expansion of the FMLA.  The rest of the FMLA remains fully in effect.  There are many COVID-19-related leave issues not covered by H.R. 6201, especially due to the likely limitation of coverage to employers with fewer than 500 employees.

We have seen various articles encouraging employers to relax the FMLA rules to cover situations outside of the FMLA box. Think twice before you do that!  Remember, the FMLA is a law and neither the employer nor the employee can waive the applicability or nonapplicability of the law to a given situation. Employers need to consider other solutions for employees, such as flexible leave policies, but don’t call a leave FMLA if it is not.

The U.S. Department of Labor recently released a Question & Answer document (Q&A) relating to FMLA and COVID-19.  Three key things to take away:

  • “Serious health condition” definition still applies. The mere diagnosis of COVID-19 does not, in and
    of itself, invoke FMLA coverage.  The employee’s or family member’s condition must still meet the
    definition of “serious health condition” under the FMLA.  Nothing about the COVID-19 pandemic
    changes this.
As a reminder, a “serious health condition” means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.   29 C.F.R. §825.113.  Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care.  29 C.F.R. § 825.114.  As is relevant here, continuing treatment includes a period of incapacity that exceeds 3 consecutive days and also involves treatment(s) by a health care provider.  29 C.F.R. § 825.115.
  • Absences due to a quarantine are not covered by the FMLA. The DOL’s Q&A clearly states,
    Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected
    under the FMLA.” 
  • Absences due to school closures or child care complications related to COVID-19 are not covered
    by the FMLA
    . The DOL Q&A states, “[E]mployers are not required by federal law to provide leave to
    employees caring for dependents who have been dismissed from school or child care.” 

Given the potential for significant illness under some pandemic influenza scenarios, employers are encouraged by the DOL to review their non-FMLA leave policies to consider providing increased flexibility to employees and their families.  The DOL cautions, however, that federal law mandates any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

The DOL’s FMLA/COVID-19 Q&A contains a great deal more information, so well worth a read. The DOL has also published a Question & Answer document relating to the Fair Labor Standards Act and wage & hour issues that you can read here.

 

CORONAVIRUS: THE FMLA AMENDMENTS AND PAID LEAVE

Posted On March 16, 2020  

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

March 16, 2020

 

Like many employers nationwide, Matrix Absence Management looks and sounds a lot like COVID Central these days. Which is to say, we are watching closely each development as it unfolds, and then – because we’re cool that way – trying to help you make sense of it in the context of employee absence and running your business. The hottest news relates to amendments to the FMLA and proposed paid sick leave flying through Congress.

Early on March 14 the U.S. House of Representatives passed, by a vote of 363-40, a bill relating to coronavirus issues. The text of the Families First Coronavirus Response Act, H.R. 6201, is here. A congressional summary of H.R. 6201 is here.

As it relates to leave of absence, key components of the bill include:

  1. a major amendment to the Family and Medical Leave Act that provides paid and job-protected leave
    for certain coronavirus-related events; and
  2. a provision for paid sick leave, again relating to coronavirus events.

President Trump has tweeted his support for the bill and the Senate is expected to pass it, although perhaps not without changes.  Here are the current details.  Watch this blog for updates, as this is a fast-developing issue!

NOTE:  H.R. 2601 uses the term “coronavirus” and not specifically COVID-19.  “Coronavirus” is defined as “SARS– CoV–2 or another coronavirus with pandemic potential.”

FMLA Amendments – Paid Leave, New Leave Reasons, and More

Effective dates.  Effective not later than 15 days after passage; sunsets on December 31, 2020 (unless extended, of course).

Employee eligibility.  Applies to employees who have worked for 30 calendar days for the employer from whom they request leave. This is quite a cutback from the FMLA’s usual eligibility requirements of 12 months and 1250 hours worked. The DOL is authorized to draft regulations excluding certain health care provider and emergency responders from eligibility.

Covered employers.  Applies to employers with fewer than 500 employees. (What?!) Written this way, the bill burdens small employers and leaves roughly a jillion employees of large employers without the bill’s protections. An earlier version of the bill would have applied to employers with “1 or more employees.” Go figure.

The bill does have a provision authorizing the DOL to issue regulations to exempt small business with fewer than 50 employees from the requirements of the amendments “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  It’s impossible to say when such regulations will be issued, and what happens to small employers and their employees in the meantime.

New leave reasons.  For covered employers, the bill expands FMLA leave reasons to cover employee absences:

  • To comply with a recommendation or order by a public health official that the employee should stay off work
    due to the employee’s exposure to, or symptoms of, coronavirus (note the word “recommendation” leaves a
    lot of wiggle room)
  • To care for a family member when a public health official or medical provider determines that the family member
    should stay out of the community due to exposure to or symptoms of coronavirus
  • To care for a child under age 18 if the child’s school or day care provider has been closed or is unavailable due
    to coronavirus

Expanded definition of “family member.”  For purposes of the amendment, “family member” includes the usual parent, spouse, and child and:

  • Adds a pregnant woman, a senior citizen, an individual with a disability, or someone with access or functional
    needs who is also

    • The employee’s son or daughter, next of kin, grandparent, or grandchild.
  • Expands the definition of “parent” to include a biological, foster, or adoptive parent, stepparent, parent-in-law,
    parent of the employee’s domestic partner or the in loco parentis

Interestingly, the employee’s domestic partner is not an added relationship.

Duration of leave.  The full 12 weeks of FMLA entitlement is available for these reasons.

Paid leave.

  • The first 14 days of leave is unpaid under the FMLA-related amendment. The employee can elect to
    use other paid leave
    available from the employer. But, read below regarding the paid sick leave
    provisions of H.R. 6201.
  • After 14 days, further FMLA leave under H.R. 6201 is paid by the employer at two-thirds of the
    employee’s usual rate of pay.

Job protections.  Generally, employees will be entitled to the usual FMLA job protections (reinstatement to same or equivalent position) after coronavirus-related leave.  Employers with fewer than 25 employees may be excused from job restoration requirements if the situation meets certain conditions, including that the job has been eliminated due to factors related to the coronavirus and the employer makes efforts to restore the employee to an equivalent position for a period of 12 months following the end of the employee’s leave.

Emergency Paid Sick Leave Act

Another key part of H.R. 6201 creates paid sick leave for absences related to coronavirus.

Effective dates. Effective not later than 15 days after passage; sunsets on December 31, 2020.

Eligible employees.  There are no eligibility requirements.  Employees can take this paid sick time immediately upon its effective date.

Covered employers.  Again, applies to employers with fewer than 500 employees.

Leave reasons.  Allows the employee to take paid sick leave:

  • To self-isolate because the employee has been diagnosed with coronavirus
  • To obtain medical diagnosis or care if the employee is experiencing symptoms of coronavirus
  • To comply with a recommendation or order by a public health official that the employee should stay off
    work due to the employee’s exposure to or symptoms of coronavirus
  • To care for or assist a family member –
    • Who is self-isolating because the family member has been diagnosed with coronavirus
    • Who is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care
    • When a public health official or medical provider determines that the family member should stay out
      of the community due to exposure to or symptoms of coronavirus
  • To care for a child under age 18 if the child’s school or cay care provider has been closed or is unavailable
    due to coronavirus

Definition of “family member”.  Paid sick time to care for or assist a “family member” includes the following relationships:

  • Parent (biological, foster, or adoptive parent, stepparent, parent-in-law, parent of the employee’s domestic
    partner or in loco parentis)
  • Spouse (including domestic partner, broadly defined to include anyone in a “committed relationship”)
  • Child (no age limit) (biological, foster or adopted child, stepchild, child of domestic partner, legal ward, or child
    of a person standing in loco parentis under age 18)
  • A pregnant woman, a senior citizen, an individual with a disability, or someone with access or functional needs
    who is also

    • The employee’s sibling, next of kin, grandparent, or grandchild

Amount of paid sick leave hours:  Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees get the number of hours they typically work over a 2-week period.  Unused paid sick leave cannot be carried over to a new year. Pay for leave to care for or assist a family member and to care for a child due to a school closure is paid at 2/3 pay; all other leave is paid at the greater of the employee’s full pay or federal, state or localminimum wage. It is not clear from the bill whether an employee can use the paid sick leave in more than one segment, such as for the employee’s own coronavirus diagnosis and then to care for a family member or due to a school closure.

Other paid sick leave provided by the employer.  The paid sick leave required by H.R. 2601 is in addition to other paid sick leave already offered by the employer as of the day before the bill is enacted. The employee can use the coronavirus-related sick leave first and preserve other paid sick leave for subsequent use.

Employer Tax Credits for Paid Leave

H.R. 2601 also includes provisions for tax credits for employers subject to the FMLA paid leave and the paid sick leave requirements. The tax credits go against Social Security taxes paid by the employer. I will not attempt to interpret these provisions (I never wanted to be a tax attorney!) but various resources are available online.

What about “Regular” FMLA?

H.R. 6201 does not make any changes relative to regular FMLA as we know and love it. Shortly we will provide a blog post about how FMLA applies to coronavirus-related situations for all employers, and especially now those with 500 or more employees. Stay tuned!

Matrix Can Help!

If you have questions about your leave of absence and disability services from Matrix please contact your account manager.  We are equipping our teams with the latest information for clients about how we are managing claims, our emergency preparedness, and more.  We’ll pull through this together!

IN LOCO PARENTIS AND NON-TRADITIONAL CAREGIVING RELATIONSHIPS

Posted On February 04, 2020  

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

February 04, 2020

 

Recently, an Ohio federal district court heard a lawsuit filed by an Apple employee whose sister was terminally ill and claimed FMLA entitlement for his request to care for his nieces and nephews. The case, Brede v. Apple, involved a claim of FMLA interference and retaliation by a former Apple employee who worked in one of its stores at the Genius bar. That employee, Edward Brede, had requested one day of intermittent “FMLA” every 2 weeks to care for his seriously ill sister’s children. Apple granted his request under its Paid Family Care policy. After Brede was fired for violating company policy, he brought this lawsuit.

The district court granted Apple’s motion to dismiss the case.

In granting the motion to dismiss, the court took as true Brede’s claims of an in loco parentis relationship with his nieces and nephews. Even assuming that was the case, however, Brede can only take FMLA if the purpose of him doing so was to care for those children who needed care due to a “serious health condition;” and he did not ever indicate any of them did. Rather, the purpose of his request for time off was to care for them because his sister could not. Moreover, the court reasoned that if Brede had requested FMLA to care for his sister, who did have a “serious health condition,” he could only do so if he stood in loco parentis to her.

The FMLA defines a “parent” to include “an individual who stood in loco parentis to an employee when the employee was a son or daughter,” and similarly, a “son or daughter” is defined to include “a child of a person standing in loco parentis.” Employees who stand in loco parentis to a child can take FMLA to care for that child with a serious health condition and to care for an individual who stood in loco parentis when the employee was a child, when that “parent” has a serious health condition. The regulations go on to define persons who are in loco parentis as “those with day-to-day responsibilities to care for and financially support a child.”

The DOL has two (mostly) helpful Fact Sheets (#28B and #28C) that discuss in loco parentis. However, the DOL takes a broad view of who can take FMLA, stating in the fact sheets that it includes someone who has day to day responsibilities to care for a child OR financially supports a child.  As you can see from the regulations excerpted above, the FMLA actually requires BOTH.

There are not many court cases on record about the in loco parentis relationship. We previously blogged about Coutard v. Municipal Credit Union, in which the 2nd Circuit concluded an employee who sought time off to care for his grandfather provided sufficient notice to his employer of his need for FMLA. In reaching that conclusion, the court reasoned that it was incumbent upon the employer to dig further to determine whether his grandfather stood in loco parentis to him (which he, in fact, did, having raised the employee after his parents’ death).

Pings for employers

  • Be familiar with the two DOL Fact Sheets linked above. Despite that one glitch in expanding the scope, the Fact
    Sheets are otherwise quite helpful.  In particular, they offer these factors for consideration in assessing ILP status:

    • the age of the child;
    • the degree to which the child is dependent on the person;
    • the amount of support, if any, provided; and
    • the extent to which duties commonly associated with parenthood are exercised.
  • When an employee indicates he or she is seeking leave to care for a family member that is not a specific FMLA
    covered relationship (i.e., parent, son or daughter, or spouse), talk to the employee about his or her relationship
    to that individual.
  • If the employee is requesting time off to care for a “parent”, like the Coutard matter, ask:
    • Did the relative care for him or her as a child OR provide financial support?
    • Do they reside together, or did they do so in the past?
  • If the employee is requesting time off to care for a “child” (as in the Brede case), include:
    • Has the employee assumed daily responsibility for care for or financially support the child?
    • Does the employee intend to assume a “parenting” role and if so, is there a permanent intent to do so?

Consider state leave laws also

This discussion is focused on FMLA, but it is important to remember that many of the state FMLA-like leave and paid family and medical leave laws include care for family members beyond the traditional definition in FMLA. Common additions include grandparents, grandchildren, siblings, and – our favorite – the “like a family member” relationship.  For example, New Jersey allows leave for any individual with a close association with the employee equivalent to a family relationship.

In general, because of this expanded focus at the state leave level to recognize the non-traditional nature of evolving families, it is critical for employers to keep an open mind about these requests and ferret out the right facts to ensure they are providing employees with the leaves to which they may be entitled.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

 

A YEAR IN REVIEW, A YEAR AHEAD: A LOOK AT THE DOL AND EEOC

Posted On January 19, 2020  

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

January 19, 2020

 

Last month we provided a 2019 review and 2020 look ahead regarding leave law legislation.  You can find that post here.  Now let’s look at what the enforcement agencies accomplished in 2019 and what to expect for 2020.

Part 2:  DOL and EEOC Activities

US DEPARTMENT OF LABOR UPDATE

Opinion Letters

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the DOL of how a particular law applies in specific circumstances.  An opinion letter provides an official, reliable interpretation of the FMLA and its regulations. 

We may not always agree with the DOL’s opinion, but at least we know where the agency stands!

The DOL issued 3 new opinion letters in 2019:

  • Opinion Letter FMLA2019-1-A clarified the question of whether an employee, or employer, can delay
    the designation of a leave of absence taken for an FMLA-qualifying reason, to allow the employee to
    use or exhaust any paid leave benefits prior to doing so. The DOL concluded that the answer is no –
    once the employer is on notice that the employee is seeking leave for a potentially FMLA-qualifying
    reason, it is obligated to provide the required FMLA notices and, if supported, designate the leave as
    FMLA leave.  The opinion letter also reminds us that, while the FMLA allows employers to be more
    generous and grant an employee more leave than FMLA requires, any time the employer gives beyond
    FMLA is not FMLA but, rather, a company policy leave.  To read more about this opinion letter, check
    out our prior blog post.
  • The above opinion was amplified in Opinion Letter FMLA2019-3-A. An employer asked the DOL whether
    it could delay FMLA designation when the terms of a collective bargaining agreement required employees
    to take company paid leave before taking FMLA.  The DOL concluded that the employer cannot delay
    designation as FMLA any leave taken for an FMLA-qualifying reason, even if the terms of a collective
    bargaining agreement appear to require otherwise.
  • Finally, Opinion letter FMLA2019-2-A, addressed the question whether an employee could take FMLA
    to attend meetings to discuss a child’s Individualized Education Plan. The DOL concluded the answer was
    yes.  Attending such meetings constituted “care” for a child with a “serious health condition,” even if the
    meetings did not include a medical provider.  For more details, read our prior blog post on this topic

Coming in 2020:  New DOL FMLA certification forms?

In 2019 the DOL issued proposed new FMLA certification forms for public comment, which we discussed in a prior blog post.  We understand that these proposed certification forms resulted in a deluge of comments to the DOL and Matrix was among that chorus of commentators.  No one knows if or when the DOL will issue new forms but we will certainly be watching will tell you all about them when they do!

Coming in 2020:  DOL request for input on FMLA regulations?

Also in 2019 the DOL announced that it “will solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”  The notice did not provide a specific timeline for the Request for Information and nothing has happened since the announcement.  There is certainly much to improve in the FMLA regulations – see a discussion in Jeff Nowak’s FMLA Insights blog.  We hope the DOL in fact proceeds with this RFI.  If it does, we will weigh in on changes we feel are needed based our Matrix’s administration of thousands of FMLA claims every year.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION UPDATE

The Commission.

2019 brought the appointment of Janet Dhillon as Chair of the EEOC.  Chair Dhillon comes from a strong business background, which may be good news for employers.  Time will tell.  That leaves 2 openings on the Commission and about a year (or 5) for President Trump to appoint new commissioners.  The other 2 current Commissioners, in addition to Chair Dhillon, include Charlotte Burrows, appointed by President Obama (2nd term ends in 2023) and Victoria Lipnic, also appointed by President Obama (2nd term ends in 2020).

Also in 2019, Sharon Fast Gustafson was appointed as General Counsel for the Commission.

Focus on disability and pregnancy.

A couple of months ago we took a look at the prevalence of disability and pregnancy-related press releases issued by the EEOC in 2019 through October 20.  That post is available here.  We’ve updated the numbers through the end of 2019:

  • The EEOC issued over 300 press releases relating to lawsuits it filed or
    settled in 2019.
  • 134 (approximately 45%) of these were lawsuits alleging disability or
    pregnancy discrimination
    and failure to accommodate (109 disability-related, 20 pregnancy-related,
    and 5 involving both).
  • Settlements ranged from $16,000 to $2,650,000 in damages awarded to
    the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit
    alleging failure to
    accommodate a cart pusher at a Walmart store.
    More on that in the blog post linked above!

Statistics.

In late November 2019, the EEOC published its Agency Financial Report. In the report, the EEOC boasts of reducing its inventory of charges to the lowest number of pending charges – 43,580 – in 13 years.  The EEOC also touts its collection of $159.6 million in connection with its mediation process, and $39.1 million in connection with 177 litigation matters.  In its Fiscal Year 2018 (which ended September 2019), the EEOC filed 144 lawsuits, 17 of which alleged a systemic pattern and practice and 27 which were “non-systemic” but had multiple alleged victims of discriminatory practices.

A YEAR IN REVIEW, A YEAR AHEAD: A WHOLE LOTTA STUFF GOING ON!

Posted On December 19, 2019  

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

December 19, 2019

 

Take a deep breath and let’s review what happened in 2019, and what’s coming in 2020. First we will look at legislative activity. In another post we will check in with our favorite federal agencies, the Equal Employment Opportunity Commission and the Department of Labor. 

 

Part 1 – Legislative Activity

In 2019, state legislatures were quite busy on the leave of absence front.  Here is a summary of significant bills that were enacted and developments for those already in place:

PAID FAMILY AND MEDICAL LEAVE

California – CA PFL extended, leave reason added.  Effective July 1, 2020, CA Senate Bill 83 amended California’s existing Paid Family Leave (PFL) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.

CA Senate Bill 83 also added a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.  The pay benefit is new but the law still won’t provide job protection for such leave.  Rights to reinstatement for all PFL benefits reasons (bonding, care of a family member, and military exigencies) may be available under other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.

More changes may be on the way.  The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.

Colorado – Just a study.   Lots of legislative activities that made all of us followers of the paid family leave legislative bandwagon believe Colorado would pass such a bill ultimately resulted in a bill to fund a study to decide whether to enact such legislation in the future.

Connecticut – PFML enacted.  CT paid family leave was signed into law in June by the Governor.  Premium contributions will start on January 1, 2021, with employee benefits payable effective January 1, 2022. To learn more about the significant provisions of CT PFL, please click here  to read our Radar blog post.

New Jersey – changes to existing PFML laws.  In February New Jersey enacted significant changes and expansion of its existing Family Leave Act (FLA), Security and Financial Empowerment Act (SAFE Act), and Family Leave Insurance program (FLI).  Some of the changes were effective immediately upon passage and others are phased in over the next several months:

  • Significant expansion of the types of family relationships for which
    employees can take leave or receive benefits pursuant to the NJ FLA,
    SAFE Act, and NJ FLI, including removal of the age limit for care of
    a covered child with a serious health condition under NJ FLA and
    NJ FLI.  (Effective February 2019.)
  • Lower threshold for covered employers, from employers with 50 or
    more employees to those with 30 or more employees. (Effective July 2019.)
  • Employees who are, or whose family member is, a victim of domestic or sexual violence can now
    receive FLI benefits for leaves covered by the SAFE Act. (Effective February 2019.)
  • Increase in weeks of FLI benefits from 6 weeks to 12 weeks, or from 42 days to 56 days if taken
    intermittently.  (Effective for leaves commencing on or after July 1, 2020.)
  • Elimination of the 7-day waiting period before an employee can receive paid leave. (Effective for
    leaves commencing on or after July 1, 2019.)
  • Increase in benefits payments. (Effective for leaves commencing on or after July 1, 2020.)  These
    changes also apply to the state temporary disability benefits.
  • Increase in “wages” measurement for calendar years beginning on and after January 1, 2020.
  • A NJ employer’s private plan no longer requires approval by a majority of the employees.  (Effective
    in February 2019.)

For the details, including a handy reference chart of all the changes, check out this Radar post.

Massachusetts – Regulations and other developments.   Regulations were finalized in June 2019 and employer/employee contributions started in July, but a lot more information is yet to come.  Employers can opt out of the state plan and provide employee benefits through a private plan.  The Massachusetts Department of Family and Medical Leave issued a bond form for self-funded private plans and, together with the Department of Insurance, approved a declaration form for insured private plans.  Lots of Massachusetts PFML information is available on this blog – just put “Massachusetts” in the search bar.

Oregon – PFML enacted.  Signed by the Governor in August 2019, Oregon creates the most generous (to date) leave and benefits, with employee contributions to start January 1, 2022, and benefits as of January 1, 2023. To read more about the salient provisions of Oregon PFML, please click here.

Washington – Ready, set, go!  Matrix Radar and our WA PFML team have been furiously tracking the regulations promulgated by the State of Washington in anticipation of the January 1, 2020, launch of benefits under WA PFML.  We are ready to administer voluntary plans for clients that elected that route.  Here is the latest post, but pay close attention to Matrix Radar for all the developments! 

Washington news flash!  Here is an unsettling piece of breaking news:  the WA Employment Security Department, charged with administering the state plan benefits, just released its form for use when an employee seeks leave for his/her own or a family member’s serious health condition.  The form does not contain any questions for the provider about intermittent leave usage – no request for estimated frequency and duration.  I ask, how will the ESD monitor intermittent leave usage and gauge whether an employee is taking appropriate intermittent leave?  We all know that is hard enough under the FMLA and other laws that require this information.  The ESD will be administering intermittent leaves in a vacuum. 

 

ORGAN DONATION

California amended its existing organ and bone marrow donation law effective January 1, 2020.  Current law provides for 30 days’ paid leave of absence for organ donation and 5 days of paid leave for bone marrow donation.  Under the new law, employees are entitled to an additional 30 days of unpaid leave for organ donation. To read more, please click here.

Oregon.  Effective January 1, 2020, Oregon’s companion to FMLA, the Oregon Family Leave Act (OFLA) has been amended to allow employees to take leave for “[a]ny period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.”   In reality most situations where an employee is serving as an organ or tissue donor are already covered as a serious health condition under OFLA but this removes any doubt that such absences are covered, as well as appointments in preparation for such donation. 

New York.  Similarly, New York passed a law to include organ donation in the definition of serious health condition under the NY PFL law.  We summarized the law, passed in 2018 and effective February 3, 2019, on Matrix Radar here.  

 

LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE

New York.  Effective November 18, 2019, this new law requires employers to grant reasonable leave to victims of domestic violence.  To read our blog about this important new law and its requirements, please click here.

Puerto Rico.  In July, the Governor of Puerto Rico signed legislation effective August 1, 2019, affording employees who are, or whose family members (very broadly defined) are victims of domestic violence, sexual abuse, sexual harassment, or stalking to take up to 15 days of unpaid leave in a calendar year (on a “fractioned” or intermittent basis, too). That law also requires PR employers to provide reasonable accommodations to such individuals, which includes changes in work schedule or location and provides that requested accommodations can only be denied if “unreasonable.”

 

FLIGHT CREWS

California.  Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”).  Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews.  It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.

 

PREGNANCY ACCOMMODATIONS

Kentucky.  Effective June 27, 2019, SB 18 requires Kentucky employers to consider reasonable accommodations for their employees with “limitation(s)” (but not necessarily disabled in the fashion employers have come to expect) as a result of pregnancy and related conditions. To read more about that law, please click here.

Oregon.  Effective January 1, 2020, Oregon employers must grant reasonable accommodations to employees with known limitations as a result of pregnancy, childbirth and related conditions.  The Oregon law also requires employers to provide the notice of rights to all employees by July 1, 2020, and within 10 days of an employee providing notice of her pregnancy.  Click here  to read more.

 

MATRIX CAN HELP!  Matrix will administer all of the above new or expanded leave laws for our clients using Matrix’s FMLA/Leave of Absence services.  No client action needed!  The laws have been or will be implemented in our system as of the effective date, along with any other updates to scripts, packets, etc. that are needed due to the changes. 

Matrix manages pregnancy accommodation laws for clients with our ADA services.  The above two new laws will likewise be added to our suite of state and federal pregnancy accommodation laws managed by our ADA Specialists.

Matrix has designed a WA PFML voluntary plan for our participating clients.  We have filed and received approval for over 40 such plans.  In preparation for January 1 claims, we have made necessary system changes, added WA PFML to our letters and packets, provided extensive training for our claims staff, and held educational webinars for our clients with voluntary plans administered by Matrix.  If the thought of the state administering your employees’ claims has you concerned – especially in light of the inadequate medical certification form the state plans to use – contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering or send a message to us at ping@matrixcos.com.

 

EXCESS FMLA ABSENCES: AN EMPLOYER SUCCESS STORY

Posted On November 13, 2019  

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

November 13, 2019

 

What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s certification?  In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy.  But it was a multi-step process to get there.  Here’s the story:

Tori’s FMLA certification.  Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service.  After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups.  There is no question in the case that her condition was real.  Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups.  The provider described her symptoms as “GI illness, oral lesions, and joint pains.”  CRC approved Tori’s FMLA leave in accordance with the provider’s certification.

Then what happened?  Tori began reporting absences in excess of her FMLA certification frequency and duration.  CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period.  CRC warned Tori of the possible consequences of absences beyond the approved certification.  Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition.  In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis. 

Total:  10.5 attendance points.  Result:  termination.  Next step:  lawsuit.

What CRC did right.  CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:

  • CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policyin writing and available to employees).
  • When Tori began to exceed the parameters of her certification, CRC went back to her provider, followingthe recert process, and obtained verification that the original frequency and duration were still correct.
  • CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by herFMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which wasnot a symptom of her reactive arthritis as stated by her provider in her original certification.  Other timesshe reported she had “lost her voice” and had a fever and was aching everywhere. On these last twooccurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)(until her lawsuit, that is):

When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.

  • CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reportedan absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts havegenerally accepted that an employer may require an employee to report an FMLA-covered absence to2 sources.  (See our prior blog post on this topic here.)

What’s missing?  It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only.  See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”).   The court did not acknowledge the estimate issue in its opinion.  One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval.  Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences. 

Remember, too, that this is just one case – and a district court case at that.  As such, it is not binding on any other courts outside of the federal district of Minnesota.  However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.

Pings for employers.   As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:

  • Enforce company and FMLA reporting procedures
  • Watch the frequency and duration of the employee’s absences
  • Seek recertification when an employee’s absences exceed the certification’s frequency and duration
  • Apply consequences for unexcused/non-FMLA absences

But remember to:

  • Be consistent in applying your policies to FMLA and non-FMLA situations
  • Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only

The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.

Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention.  You can read his take on the case here.

MATRIX CAN HELP!  Are your FMLA procedures up to snuff like CRC’s?  Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations.  We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us through your Matrix or Reliance Standard account manager or at ping@matrixcos.com.

 

FMLA AND EMPLOYEE DUAL-NOTICE PROCEDURES – STAND YOUR GROUND BUT BE CLEAR ABOUT YOUR POLICIES

Posted On September 16, 2019  

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

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

& Megan Holstein - Senior Vice President, Absence and Claims Fineos

September 16, 2019

 

 

QUESTION:  Can an employer require an employee taking FMLA leave to report absences to both a supervisor and a leave administrator?

ANSWER:  It depends – but probably yes.  Read on!

 

The Issue

Employers are struggling with the trend in rising  employment time off benefits caused by the numerous new state laws requiring job-protected leave and increasing company leave benefits due to competition for workers.  In response, many employers have strengthened their absence policies. Whether the employer outsources absence management or insources with a centralized administrative or human resources (HR) department, an employee must provide notification that they need time off in order for that leave to be approved and not counted against the employee’s attendance record.

The federal Family and Medical Leave Act (FMLA) regulations address employee notification by requiring an employee to “comply with the employer’s usual and customary notice requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. §825.302(d); §29 C.F.R. 303(c). The FMLA supports employers who have a reporting notice policy by allowing an employer to delay or deny FMLA leave if an employee does not comply with the employer’s policy and no usual circumstances justify the failure to do so. Accordingly, many employers’ absence notice requirements or FMLA policies require an employee to contact both a supervisor and a centralized absence administration office, whether that is an internal HR or Benefits department or outsourced to a third party administrator (TPA); otherwise known as a dual-notice, or two-party call in policy or procedure.

Employees have contested dual-notice policies in court claiming they violate the FMLA by interfering with their right to take FMLA leave. Courts have historically supported employers dual-notice policies. However, a recent Alabama district court decision, LaShondra Moore v. GPS Hospitality Partners IV, LLC,  declined to follow other courts’ support and instead found that an employer’s dual-notice policy that required employees to contact both HR and their manager when reporting absences violated the FMLA. While this decision is an outlier, there are still lessons to learn from the case. Read on to learn more about courts’ approaches to dual-notice policies and whether the DOL might weigh in.

Bad Facts Make Bad Law. LaShondra Moore worked for a Burger King franchise that was one of nearly 200 purchased by GPS.  The new owner required the employees of the purchased locations to complete new paperwork, including reviewing and acknowledging the employee handbook.  The handbook included GPS’s FMLA policy and the requirement to report FMLA absences to store managers and to the centralized HR office.  When Moore’s mother became ill and was hospitalized, she informed her manager multiple times of her need to take time off from work to care for her mother. In spite of awareness that Moore’s absences were the result of her mother’s hospitalization, Moore’s manager issued disciplinary action and ultimately terminated her due to these absences.

Ms. Moore sued for FMLA interference in federal court. GPS based its defense on its employee handbook, which set forth an FMLA policy requiring the employee to notify their supervisor and HR of their need for FMLA leave.

The Court’s Approach to GPS’s Dual-Notice policy. Citing the FMLA notice regulations allowing an employer to require an employee to comply with its notice requirements for requesting leave, the court took great exception to the notion that GPS’s policy required employees to do more – notify both a supervisor and HR – to request FMLA than other types of leave. Essentially, the court found that employers can only maintain a dual notice reporting policy only if the policy applies to all types of leave requests, not just FMLA.

This Case is an Outlier. Several courts that have heard claims by employees who have been disciplined for not following their employer’s dual reporting policies have drawn conclusions opposite to the Moore court. Here is a sampling of those cases:

  • 3rd Circuit – E.D. Pennsylvania- IBW v. PPL Electric Utilities Corp. (December 2017) – Relying on the Acker case
    (discussed below) and concluding no FMLA violation in connection with employer policy requiring employees
    to report absences to their supervisor and “make a three to five minute phone call to a third party administrator.”
  • 5th CircuitAcker v. General Motors, LLC (April 2017) – Judgment in favor of the employer on FMLA interference
    and retaliation claims when employee failed to follow GM call-in procedures, of which he was reminded by
    GM’s TPA. In doing so, the court noted that “[f]ormal notice of absence policies serve an employer’s legitimate
    business interests in keeping apprised of its employees and ensuring that it has an adequate workforce to
    carry out its normal operations.”
  • 6th Circuit Srouder v. Dana Light Axle Mfg. (2013) – Sixth Circuit affirmed judgment in the employer’s favor
    on an interference claim and that the termination of the plaintiff’s employment was appropriate because he
    failed to comply with the employer’s call-in policies.
  • Also in the Sixth Circuit, Alexander v. Kellogg USA Inc., (January 6, 2017), the court again rejected an FMLA
    interference claim challenging the termination of employment on the basis of the plaintiff’s failure to report
    intermittent FMLA absences to both his employer and its TPA.
  • 7th Circuit – N.D. Indiana– Reese v. Zimmer Production, Inc. (September 2018) – The court concluded that the
    employee failed to comply with his employer’s policy, which required him to notify his supervisor and the
    company’s TPA to initiate a request for FMLA.
  • 9th CircuitDuran v. Stock Building Supply West, LLC (January 2017) – The court held that the employee’s
    failure to complete an internal LOA request form and provide certification to the employer’s TPA, both
    mandated by its customary notice policies, doomed his FMLA/CFRA interference and retaliation claims.

Also in the 9th Circuit, the most recent case – Rozairo v. Wells Fargo (D. Oregon, July 17, 2019) in which the court relied on the employer’s policy requiring employees to discuss their request for leave with their manager and call its TPA, finding the employee who failed to comply with that policy for initiating leave could not state claims for violations of FMLA or Oregon’s state equivalent, the Oregon Family Leave Act.

Will the U.S. Department of Labor (DOL) Weigh In?

The DOL announced that it is considering revising the FMLA regulations by announcing its plans to publish a request for information (RFI) next spring to solicit comments to improve the FMLA regulations in two ways:

  1. Better protect workers; and
  2. Reduce employers’ FMLA compliance and administrative burdens.

We think this area of the FMLA regulations governing an employer’s ability to set forth absence notice policies and procedures is ripe for further clarification.

For more information regarding the DOL’s plan to publish a RFI, check out co-author Megan Holstein’s earlier blog here and our friend Jeff Nowak’s blog here.

Pings for Employers:

  • The weight of authority supports that an employer can require employees to report FMLA absences to
    two sources.
  • But, it may not enough to simply place your absence request policy in the employment handbook.
    Employers should broadcast the policy in ways employees can access it, including:

    • highlight the policy on a company intranet and send email reminders;
    • post the policy and FMLA posters in the breakroom and any other venue in which employees may
      congregate;
    • consider holding informational meetings about all of your benefits, including FMLA and other leave
      benefits and how to request the time off; and
    • if using a TPA, engage the TPA as a source and additional reason for further outreach to employees.
      Make sure they understand who your TPA is, what purposes they serve, and how to contact the TPA.
  • Keep your dual-notice policy simple and clear. Do not require employees to be FMLA, state leave, or
    benefits experts to navigate your policy. They don’t need to know when leave is FMLA and therefore
    the TPA must be contacted or, for example, when it’s a common cold and only a manager needs notification.
    Instead, streamline the policy to notice categories such as reasons for leave (e.g., vacation, care of family
    member, employee illness, parental leave, etc.) and/or duration of leave (e.g., absences of fewer or
    more than 3 days).
  • On the other hand, do train your manager to be issue spotters and recognize when an employee’s request
    might be time off for an FMLA-qualifying reason. Managers not only need to spot when a request may be
    covered by the FMLA, but they must know the reporting policy and be able to inform the employee how to
    correctly report an absence under the policy so that the request can be evaluated by the right people, such
    as a TPA or HR.  Then teach them to hand the issue off to those right people and not try to handle it
    themselves – they should be grateful for that!

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.