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

Posted On March 24, 2021  

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

March 24, 2021

 

mo·rassˊ

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

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

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

I promise, fascinating reading for PFML geeks!

 

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

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

IF ONLY THE FEDS WOULD ACT!

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

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

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

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

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

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

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

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

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

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

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

MATRIX AND RELIANCE STANDARD CAN HELP!

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

CONNECTICUT JOINS THE PAID FAMILY AND MEDICAL LEAVE CLUB!

Posted On November 23, 2020  

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

June 28, 2019

 

 

On June 25 Governor Lamont made Connecticut the 9th U.S. jurisdiction to adopt a paid family and/or medical leave program.  As a reminder, here are the jurisdictions with paid leave programs and their status:

  • California –in force
  • Connecticut–JUST PASSED! Employee contributions start January 1, 2021;
    leave and benefits start January 1, 2022
  • District of Columbia – employer contributions start July 1, 2019; leave and benefits
    start July 1, 2020
  • Hawaii – disability benefits (medical leave) only; in force (and studying the addition of a
    paid family leave component)
  • Massachusetts – employer/employee contributions start October 1, 2019; leave and benefits
    start January 1, 2021
  • New Jersey – in force; substantially amended in February 2019 to enrich benefits and broaden
    coverage.
  • New York – in force
  • Rhode Island – in force
  • Washington – employer/employee contributions started January 1, 2019; benefits start January 1, 2020

 

Connecticut Paid Family and Medical Leave – the Details

The following summary is based on our early review of the Connecticut PFML statute.  There are many more details in the law; we will continue to analyze the nitty gritty and watch for developments in the program.

ISSUE PROVISION CT S 1
Administration The statue creates an “authority” comprised of 15
appointed board members to oversee creation of
the PFML program
§2
Covered Employee Has earned $2325 during the employee’s highest
earning quarter within the base period (first 4 of 5
most recent quarters) AND:

 

  • Is presently employed OR
  • Was employed within previous 12 weeks OR
  • Is self-employed or a sole proprietor and has
    enrolled in the program

 

§1(4)
Covered Employers All private employers, regardless of size

 

Does not cover:

  • The federal government
  • The state, municipalities, or local or regional
    boards of education, except to the extent
    their employees are “covered public
    employees”
  • Nonpublic elementary or secondary schools

 

§1(8)
Total Leave Entitlement
  • 12 weeks per 12-month period
  • Additional 2 weeks for pregnancy-related
    serious health condition

 

§18(a)(1)

 

§18(i)

Leave Reasons
  • Employee’s own serious health condition
  • Family member serious health condition
  • Care for an ill/injured servicemember
  • Bonding (birth, adoption, foster care)
  • Organ or bone marrow donation
  • Military exigencies
  • Matters related to employee being a victim of family violence (limited to 12 days of leave out of the 12 weeks)

 

 

 

 

 

§3(c)(1)

Covered Family Relationships
  • Spouse
  • Sibling (related by blood, marriage,
    adoption, or foster care placement)
  • Son or daughter (no age limit) (biological,
    adopted, foster child, stepchild, legal ward, or
    a child of a person standing in loco parentis)
  • Grandparent (related by blood, marriage,
    adoption, or foster care placement)
  • Grandchild (related by blood, marriage,
    adoption, or foster care placement)
  • Parent (biological, foster, adoptive, step, in-
    law, legal guardian of the employee or the
    employee’s spouse; in loco parentis)
  • An individual related to the employee by
    blood or affinity whose close association the employee
    shows to be the equivalent of
    those family relationships

 

§§17(6), (7), (8), (10), (14), (15), (16)
Leave Year Calculation Methods
  • Calendar year
  • Any fixed 12-month period
  • Measured forward
  • Rolling back

 

§18(i)
Leave Increments Continuous, reduced schedule, intermittent §3(e)

 

§18(c)

Employee Documentation Certification from Health Care Provider for
employee’s or family member’s serious health
condition or for care of servicemember
§19 (a)-(b)
Claims Procedures
  • 2nd& 3rd opinion process allowed if employer
    has reason to doubt the validity of the
    employee’s medical certification
  • Recertification allowed on a reasonable basis
    but generally not more often than 30 days
§19(c)-(e)
Employer Notice to Employees General notice of employee’s CT PFML rights upon
hire, and then annually
§13
Employee Notice to Employer 30 days if need for leave is foreseeable

 

As soon as practicable if not foreseeable

§18(f)
Employee contributions Start 01-01-2021

 

Maximum ½ % of employee’s wages up to
maximum compensation subject to SS contribution

No employer contribution

Weekly Benefits Start 01-01-2022

 

95% of employee’s base weekly earnings up to:

  • 40 x current state minimum wage plus
  • 60% of employee’s base weekly earnings
    above 40 times current state minimum wage
  • Maximum of 60 x current state minimum
    wage

Subject to reduction if needed to ensure solvency
of the PFML program

Predicted to be ~$840/week when benefits start;
up to ~$900 in 2023 due t scheduled increases in
state minimum wage

§3(e)(2)

 

Private Plan Option

Section 11 of the Connecticut PFML law allows employers to adopt an insured or self-funded private plan.  The requirements are very similar to those in Massachusetts.  To be approved, a private plan must:

(A) Confer all of the same rights, protections and benefits provided to employees under the PFML statute, including:

(i) At least the same number of weeks of benefits;

(ii) At least the same level of wage replacement for each of those weeks; and

(iii) Leave and benefits for the same reasons as specified in the statute;

(B) Impose no additional conditions or restriction on the use of family or medical leave beyond those explicitly authorized by the statute or by regulations to be issued

(C) Cost employees no more than the premium charged to employees under the state program;

(D) Provide coverage for all employees throughout their period of employment;

(E) Provide for the inclusion of future employees;

(F) Not result in a substantial selection of risks adverse to the Family and Medical Leave Insurance Trust or otherwise significantly endanger the solvency of the fund;

(G) Have been approved by a majority vote of the employer’s employees; and

(H) Meet any additional requirements established by the authority.

 

What’s Interesting?

Health Care Provider Obligations

In a new but welcome twist, the statute imposes some obligations on health care providers:

  • The health care provider has a duty to provide a complete and timely medical certification
    upon patient’s request
  • The health care provider cannot charge a fee for completing the certification
  • If CT PFML compensation is paid as a result of willful misrepresentation by a health care provider,
    the provider may be liable for a penalty of 300% of the benefits paid as a result. Perhaps this will
    deter providers who simply approve whatever leave frequency and duration the patient says is
    needed without exercising medical judgment.

Like a family member . . .” 

You will have noted (with your hand to your forehead) that leave is available to care for “an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships.” The law tasks the Connecticut Labor Commissioner to adopt regulations that, among other things, provide guidelines regarding factors to be considered when determining whether an individual’s close association with an employee is the equivalent of a family member relationship otherwise covered by the statute.

Existing Connecticut family and medical leave law

Current Connecticut law provides job-protected but unpaid leave of absence (up to 16 weeks in a 24-month period) for all of the reasons listed above, with leave as a victim of family violence carved out separately.  The vast majority of the existing law is repealed and reenacted or amended by the new PFML law effective January 1, 2022 – the date the paid benefits will start.  The expanded definitions of family members for whom an employee can take paid family leave will provide broader coverage for that leave reason.  Existing law allows leave to care for a parent, child (under 18 or disabled), and spouse.  As you can see above, several relationships have been added, including sibling, grandchild, grandparent, and “like a family member.”

The text of the final bill as passed can be found HERE

 

MATRIX CAN HELP! It’s early days yet for Connecticut PFML.  As usual, we will be watching for developments and reporting on this blog as new information is available.  IN the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Massachusetts and Washington laws and the 2019 New Jersey amendments.

 

AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

 

 

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

Posted On April 29, 2020  

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

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

April 29, 2020

 

Cowboy Radar

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

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

More ADA Guidance from the EEOC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coronavirus Goes to Court

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

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

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

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

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

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

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

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

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

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

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

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

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

COVID in the City

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

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

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

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

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

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

Colorado Joins the Rodeo

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

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

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

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

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

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

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

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

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

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

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

Additional information is available on the Colorado HELP website.

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

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

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

See you there!

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.

THE DOL ON A ROLL – MORE FFRCA Q&AS ISSUED

Posted On March 31, 2020  

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

March 31, 2020

 

In the fast-paced COVID-19 world, the U.S. Department of Labor (DOL) has issued more Questions and Answers about the Families First Corona Virus Reponses Act (FFCRA).  And not only are we now up to 59 questions (a good indicator of how tough it is to understand the FFCRA), but in the latest issue the DOL went back and revised some of the answers given just the day before!!  You can find the current full set of Q&As, the gift that keeps on giving, here.

This discussion includes material revisions to DOL answers previously provided in earlier versions of the Q&A, and coverage of Questions 15 through 59.  For even more information, see my post about the act itself as passed, and this post with analysis of the first 14 questions. (How cute that seems now – it seems like just yesterday!)   

Even though this is a lengthy post, persist! And I encourage employers to read the actual Q&As for more details on topics of interest to them. 

As used here, EPSL refers to the Emergency Paid Sick Leave Act and its benefits.  EFMLA refers to the Emergency Family and Medical Leave Expansion Act and its benefits.

Documentation (Questions 15-16):  Employers, don’t be lax on the documentation requirements if you want to get those tax credits.  An employer must obtain appropriate documentation for an employee’s paid leave (whether sick leave or EFMLA) if the employer intends to claim a tax credit under the FFCRA for such payments.  Unfortunately, the DOL provides little guidance regarding what is sufficient documentation, punting instead to the IRS.  (“You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.”)   As of this writing the IRS has yet to  publish any such materials.

There is a little more help with respect to documentation for paid leave under EFMLA, which covers only leaves necessitated by the employee’s child’s school closure or unavailability of child care due to COVID-19.  Employers may require documentation for this leave reason “to the extent permitted under the certification rules for conventional FMLA leave requests,” whatever that means! But the DOL does provide examples, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper; or an email from an employee or official of the school, place of care, or child care provider. 

An employer is not required to provide EPSL or paid EFMLA leave if materials sufficient to support the applicable tax credit have not been provided by the employee.

Telework (Questions 17-19).  If an employer offers and an employee is able to work from home, then the employee is not entitled to EPSL or EFMLA leave and benefits. The answer to Question 19 states, “Of course, to the extent you are able to telework while caring for your child, EPSL and expanded family and medical leave is not available. Thus, it appears that if an employee declines telework arrangements although he is able to work from home (at least during normal work hours) he is not entitled to the FFCRA pay benefits. This might arise, for example, when the employee is staying home due to a school closure but the employee’s child is old enough to care for himself at home during the day; or when the employee is quarantined but has not developed COVID-19.

Intermittent leave (Questions 20-22).  A telework employee can take intermittent leave under both EPSL and EFMLA in any increment as long as the employer and employee agree (a new concept that we wish applied to regular FMLA intermittent leave!).  

For work at the employee’s usual worksite, the availability of intermittent leave is more limited. EPSL must be taken in full-day increments, and cannot be used intermittently at all if, for example, the employee (or a family member) is under quarantine or is experiencing COVID-19 symptoms and seeking medical diagnosis. Intermittent leave is available, if the employer and employee agree, for both EPSL and EFMLA when the need for leave is due to a child’s school or day care closure.

Once started, the employee must continue using EPSL until the reason no longer exists or the employee exhausts the EPSL allotment. However, if the employee no longer has a qualifying reason for taking EPSL before she exhausts her allotment, she may take any remaining EPSL at a later time, until December 31, 2020, if another qualifying reason occurs.

Closed worksites, furlough, reduced hours, and FFCRA benefits (Questions 23-28).  It appears that the closure of a worksite – for whatever reason – trumps (ahem!) the right to EPSL or enhanced FMLA. That is, even if an employee is experiencing a situation that would entitle her to paid leave and/or FMLA protections, those are not available once the business closes because the employee is no longer missing work due to the covered reason. In other words, there is no work to take leave from. The same applies if an employee is furloughed. The employer must pay for any qualifying leave taken while the business was open or before the furlough, but not more than that. Similarly, if an employer orders reduced hours, the employee cannot claim FFCRA benefits for the missed work hours because the employee is not prevented from working due to a FFCRA-qualifying reason.

Coordination with other paid leave policies, laws, and CBAs (Questions 31-34, 46).  If an employer offers paid leave benefits (such as vacation, PTO, sick leave, etc.) the employee gets to choose which benefit to use – one from the employer’s existing policies or a benefit under the FFCRA. They cannot be used concurrently unless the employer agrees to allow the employee to supplement or top off FFCRA benefits with company paid leave benefits, up to the employee’s normal earnings. Whether to use such benefits, if offered by the employer, is up to the employee.  

EPSL is in addition to other leave mandated by any federal, state, or local law. The employer must comply with both separately. The same goes for leave provided by a collective bargaining agreement.

An employer may elect to pay employees more than the amount required under the FFCRA, whether by allowing the employee to supplement FFCRA payments with existing paid leave or by simply paying more than the FFCRA requires. However, the employer will not receive tax credit for any excess amounts paid.

“Son or daughter” (Question 40).  Both EPSL and EFMLA provide job-protected, paid leave when an employee needs to care for a “son or daughter” due to the closure of the child’s school or the unavailability of child care due to COVID-19. The DOL has clarified that both laws include not only a child under age 18, but also one 18 years or older who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. This resolves an inconsistency between the two laws. For additional information on requirements relating to an adult son or daughter, see the DOL’s FMLA Fact Sheet #28K.

Job protection (Question 43).  Both EPSL and EFMLA entitle the employee after leave to be restored to the same or equivalent position. However, as with regular FMLA, an employee is not protected from employment actions that would have affected the worker’s employment regardless of leave. The DOL uses the example of a layoff that would have occurred whether or not the employee took leave. In reality, this also applies if an employee is terminated for cause that has nothing to do with the employee’s covered leave or request for leave. The “key employee” provision of the FMLA is also still applicable.

In addition, there is an exemption to the job restoration requirement for employers with fewer than 25 employees if the position was eliminated for reasons related to COVID-19 and the employer makes reasonable efforts to restore the employee to an equivalent position for the next 12 months. 

Interaction of EPSL and FMLA (Questions 44-47).  The EPSL and FMLA of any type are separate entitlements. If the employee’s reason for taking EPSL coincides with the EFMLA reason, the two run concurrently and the employee is entitled to the benefits of both.  Example:

  • An employee’s child’s school closes due to COVID-19. The employee can take EPSL to
    receive paid time off for the first 80 hours/2 weeks.  If the employee has been working for
    the employer for at least 30 days, the employee is also entitled to EFMLA protections
    during the first 10 days of leave and the EFMLA pay benefits that commence after 10 days.

On the other hand, EPSL used for other covered reasons, such as the employee’s or family member’s quarantine, does not count as FMLA and does not reduce the employee’s FMLA entitlement.  One possible exception is where the employee or a family member is showing symptoms of COVID-19 and is seeking a medical diagnosis. In that case, EPSL would be available and the employee’s or family member’s condition might ultimately satisfy the definition of serious health condition under the FMLA and qualify for coverage by both – but not the 2/3 pay provisions of EFMLA.

The EFMLA provisions do not increase the amount of FMLA leave an employee is entitled to.  The total entitlement for all leave reasons combined remains at 12 weeks in a 12-month period.  And, remember that FMLA for school closures ends on December 31, 2020. 

Part time” and “full time” under FFCRA (Questions 48-49).  Under the EPSL, full-time employees are entitled to up to 80 hours of paid leave and part-time employees are entitled to pay for the number of hours they typically work in a 2-week period. EPSL does not define full time and part time. The DOL now tells us that a full-time employee is normally scheduled to work 40 or more hours per week, and a part-time employee is normally scheduled to work fewer than 40 hours per week. 

In contrast, the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees; but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

Applicability of FFCRA to public employers/employees (Questions 52-54).  OK, I don’t have much to say here.  My head is spinning from reading 54 questions and answers so far. The answers to whether EPSL and EFMLA apply to public sector workers are different. EPSL?  “Generally, yes.”  EFMLA?  “It depends.”  So I recommend anyone affected by this issue read Questions 52 and 53, which offer a lot of detail. 

Who is a “health care provider”?  (Questions 55-56).  We have two answers to this question. First, a “health care provider” (HCP), as the term is used to determine who can tell an employee to self-quarantine due to COVID-19, means a licensed doctor of medicine, nurse practitioner, or other HCP permitted to issue an FMLA certification.

Second, both EPSL and EFMLA allow an employer to exempt HCPs from coverage. For this purpose, the term includes anyone employed at any doctor’s office, hospital . . . clinic . . . medical school . . . nursing facility . . . pharmacy . . . including any permanent or temporary facility . . .   You get the idea – the list is very extensive and I have left out many examples, so read Question 56 if this is important to you. 

Who is an “emergency responder”?  (Question 57).  Both EPSL and EFMLA allow an employer to exempt emergency responders from coverage. For this purpose, the term includes “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.”  Examples include national guard, law enforcement officers, various types of emergency personnel, and 911 operators. The DOL provides many more examples in Question 57. 

Small business exemption (Questions 58-59).  An employer with fewer than 50 employees is exempt from providing EPSL and EFMLA when doing so would jeopardize the viability of the small business as a going concern, but ONLY as to school/child care closures or unavailability due to COVID-19.  There is no exemption for the other 5 reasons for EPSL (see our prior blog post here for the list). 

The exemption is available only if:

  • The business has fewer than 50 employees;
  • Leave is requested because of the employee’s son or daughter’s school/child care closure
    or unavailability due to COVID-19; and
  • An authorized officer of the business has determined that at least one of the following
    three conditions exists:
    • The provision of leave would result in the small business’s expenses and financial
      obligations exceeding available business revenues and cause the small business to
      cease operating at a minimal capacity; or 
    • The absence of the employee or employees requesting leave would entail a substantial
      risk to the financial health or operational capabilities of the small business because of
      their specialized skills, knowledge of the business, or responsibilities; or  
    • There are not sufficient workers who are able, willing, and qualified, and who will be
      available at the time and place needed, to perform the labor or services provided by
      the employee or employees requesting leave and these labor or services are needed
      for the small business to operate at a minimal capacity.

WHEW! Is anyone else ready for a cold beverage? We’re done – at least for now – but please remember to check back frequently for updates, as things are changing in this COVID-19 world by the hour.

Matrix Can Help!

At Matrix we don’t just track all this state and federal legislation on a daily (hourly?) basis – we prepare to jump into action!  We are constantly updating our leave administration practices and staff training to apply each new COVID-19-related provision as fast as they come out of the oven, still warm and chewy. So reach out to your account manager with specific questions and check back with us early and often.

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!

AND NOW . . . WASHINGTON D.C. PFML

Posted On January 24, 2020  

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

January 24, 2020

 

The next paid family and medical leave program to go live with payment of benefits – in the District of Columbia – is on the horizon.  D.C.’s Universal Paid Leave (UPL) program was passed in 2017, and employers with employees in the District started paying contributions to the program on July 1, 2019. The District will start paying benefits on July 1, 2020.

First Up – Employer notice obligations.

Under DC UPL, employers have several notice obligations:

  • By February 1, 2020, employers must post a physical notice of the UPL program in a conspicuous
    place in each workplace. In addition, employers must send the notice to remote workers so they
    can post it in their individual workplaces.  (Right, like that will happen.)  The notice form is available here.
  • In addition, this notice must be provided in electronic or physical form to:
    • All employees at least once between February 1, 2020 and February 1, 2021 and at least
      once a year every following year;
    • All new employees hired after February 1, 2020, within 30 days after the date of hire; and
    • Individual employees when the employer receives direct notice after February 1, 2020,
      of the employee’s need for leave for an event that could qualify for PFL benefits.
Matrix can help its clients with DC employees to satisfy this individual notice requirement.  We will update the informational packet sent to DC employees to include the required notice when any leave is requested. 

Summary of Universal Paid Leave provisions:

As a reminder, here’s what’s coming your way as an employer with D.C. employees:

Covered Employee
During some or all of the 52 weeks immediately preceding leave:

  • Spends more than 50% of work time in DC or
  • Spends a substantial amount of work time in DC and not more than 50% of work time
    in another jurisdiction
Covered Employer All employers with one or more covered employees except:

  • The United States
  • The District of Columbia, and
  • Any employer that the District of Columbia is not authorized to tax under federal law or treaty
Leave Reasons
  • Employee’s own serious health condition (defined very similar to FMLA)
  • Family member’s serious health condition
  • Bonding with new child (birth, adoption, foster placement)
Covered Family Members
  • Son or daughter (any age)
  • Parent (including step, in-law, and others)
  • Spouse / domestic partner
  • Sibling
  • Grandparent
Duration in a 52-week period
  • Employee’s serious health condition:  2 weeks
  • Parental/bonding leave:  8 weeks
  • Family member serious health condition:  6 weeks
  • TOTAL may not exceed 8 weeks of paid leave benefits in 52-workweek period
Leave Use Increments
  • Continuously or
  • Intermittently in increments of no less than one day
Benefit Amount

 

 

  • Employees who make 150% or less than the District’s minimum wage multiplied by 40
    will receive 90% of their average weekly wage.
  • Employees who make greater than 150% of the District’s minimum wage
    multiplied by 40 will receive:

    • 90% of 150% of the of the District’s minimum wage
      multiplied by 40; PLUS
    • 50% of the amount by which the eligible individual’s
      average weekly wage exceeds 150% of the District’s minimum wage multiplied by 40
Maximum Benefit
  • $1,000/week thru 9/30/2021
  • Adjusts annually as of October 1 each year thereafter
Waiting Period
  • One week for first qualifying event per 52-week period
  • No waiting period for subsequent qualifying events in same 52-week period
    regardless of type or number
Funding Mechanism Employers pay a tax of 0.62% of their payroll to the District to fund the program
Administration
  • Office of Paid Family Leave (a division of the DC Department of Employment Services)
  • No voluntary plans or private insurance permitted
Existing Employer Paid Leave Benefits
  • An employer can adopt or retain paid-leave policies that supplement or
    otherwise provide greater benefits than are required by UPL
  • But doing so does not exempt employer from paying UPL contributions or
    preclude employee from receiving UPL benefits
Job Protection

 

  • ONLY IF employee works for an employer with 20 or more employees and is
    eligible for concurrent leave under the existing DC FMLA (see below)
  • Employees of smaller employers can take paid leave but do not have job protections

 

EMPLOYERS BEWARE:  The broader D.C. FMLA law is still in effect

Unlike the state of Washington, which repealed its unpaid Family Leave Act to coincide with the effective date of Washington PFML, the D.C. UPL does not affect the District’s existing unpaid Family and Medical Leave Act.  That Act applies to employers with 20 or more employees and provides job-protected leave for the same reasons as UPL but in much greater amounts:  Up to 16 weeks each in a 24-month period for employee medical leave and family leave reasons.  Leaves will run concurrently if the leave qualifies under the two laws.  However, because the thresholds for covered employers and employee eligibility are lower under UPL, some employees may be entitled to UPL leave but not DC FMLA leave and thus be without job protection.  As always, the federal FMLA will run concurrently with either law if it applies.

For more information, check out these resources: 

Universal Paid Leave Amendment Act of 2016

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

Poster

 

 

HELLO AGAIN, WASHINGTON PAID FAMILY AND MEDICAL LEAVE

Posted On December 03, 2019  

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

December 03, 2019

 

Here it comes!  Washington Paid Family and Medical Leave benefits are on the horizon, starting January 1.  While we’ve been a bit quiet about WA PFML on this blog lately, we’ve been busy in the background.  So has the state Employment Security Department (ESD) which is charged with administering the state plan and monitoring employers’ voluntary plans.  Sadly, there is much yet to be done by the ESD and time is running short; but we at Matrix are in good shape!

Here’s an update of things from Matrix’s point of view.

Notices to employees #1

The PFML statute requires employers to provide two notices to employees about the program.  The first is a general workplace posting setting forth excerpts from, or summaries of, the pertinent provisions of the statute and information pertaining to the filing of a complaint. (RCW 50A.20.020.)  This is to be in a form prepared or approved by the ESD.  Unfortunately, the notice is not yet available.  Here is what the ESD Paid Leve Website says:

A mandatory poster to notify employees of the program will be available before Jan. 1, 2020. If you would like something to share with your employees prior to that, download our optional paystub insert to distribute or post.

Notices to employees #2

The second notice requirement applies only after an employee experiences 7 consecutive days of absence for PFML reasons.  (RCW 50A.20.010.)  This notice must be provided “within five business days after the employee’s seventh consecutive day of absence due to family or medical leave, or within five business days after the employer has received notice that the employee’s absence is due to family or medical leave, whichever is later.”  This notice form, also to be provided by the ESD, is likewise not yet available; they expect to have it ready before January 1.

The notice requirement will rarely apply to an intermittent leave due to the nature of such leave (a day or two off, here and there).  However, the ESD has confirmed that a notice earlier than after 7 days, as soon as the employer knows the employee is absent for a covered reason, will satisfy this requirement.  Our advice, then, is to provide the notice at the outset of a covered leave rather than waiting and counting for 7 consecutive days of absence.

The good news?  Matrix has you covered!  Once it is available from the state we will include the notice in our packets for all clients with a Washington workforce.

Weekly claim filing

The PFML statute is patterned after the state’s unemployment scheme.  It requires weekly claim filing by the employee which, in the unemployment context makes sense as an employee may obtain employment any day of the week.  But for paid family and medical leave benefits – especially continuous leave – this seems unwieldy.  Say an employee is having surgery and his provider certifies that he will need at least 6 weeks off for the surgery and recovery.  Or an employee requests bonding leave for 12 weeks.  Does it make sense to require a weekly claim and have the state address and adjudicate the claim every week, or just once at the outset?  Oh well, the statute says weekly and that is what will be required of your employees under the state plan.

Under voluntary plans administered by Matrix, however, we will waive the weekly filing requirement (an employer can provide better benefits AND processes under a voluntary plan), thus saving your employees time and hassle, and providing greater certainty to both you and your employee regarding leave approval and benefits.

Minimum claim duration – 8 consecutive hours

According to the WA PFML statute, an employee must miss at least 8 consecutive hours of work to establish a claim.  This applies both during the 7-day waiting period and for subsequent weeks in which leave is taken (since the employee has to file a claim weekly).   So, for example, an employee could meet the 8-consecutive-hours requirement by missing a single 8-hour (or more) shift, by missing 3 scheduled hours Wednesday afternoon and the next 5 scheduled hours Thursday morning, or by missing 2 consecutive scheduled 4-hour shifts.

Once the employee has been absent for a covered reason for 8 consecutive hours, all other hours missed during the week (from the preceding Sunday through Saturday) then become part of that week’s claim for job-protected leave and benefits.   Here’s another example:  An employee misses 3 hours on Monday, a full 8-hour shift on Wednesday, then 2 hours on Friday.  The Monday and Friday hours are both eligible for leave and pay (as well as the 8 hours) because they fall within a week during which the 8-consecutive-hours requirement was met.

Unfortunately, this scheme may have the consequence of encouraging employees to take more time off than they need to meet that 8-consecutive-hours requirement.  If an employee takes time off for a legitimate PFML-covered reason but doesn’t really need 8 consecutive hours, he might be tempted to take more time to get the job protection for what he really needed.  Otherwise the employee who needs, say, only 4 hours per week for physical therapy or due to a bad back flare-up will be without job protection and pay, and/or have to use his PTO to cover the absence.

For clients with a Matrix-administered voluntary plan, we are recommending that the employer waive the requirement to miss 8 consecutive hours to establish a claim, either in its entirety or at least after the employee has satisfied the waiting period.  This will allow coordination of leave usage between WA PFML and the federal FMLA, if both apply.

Possible stacking (or consecutive use) of multiple leave benefits

Consider this from the WA PFML statute:

RCW 50A.15.060 (2) An employer may offer supplemental benefit payments to an employee on family or medical leave in addition to any paid family or medical leave benefits the employee is receiving. Supplemental benefit payments include, but are not limited to, vacation, sick, or other paid time off. The choice to receive supplemental benefit payments lies with the employee. Nothing in this section shall be construed as requiring an employee to receive or an employer to provide supplemental benefit payments.

And this from the WA PFML rules:

 WAC 192-610-075   WAC 192-610-075 Employers may not require employees to take paid vacation leave, paid sick leave, or other forms of paid time off provided by the employer before, in place of, or concurrently with paid family or medical leave benefits.

What does this mean?  It means that if you offer paid time off benefits of any kind – general PTO, vacation, sick leave (voluntary or statutory), short term disability, etc. – the employee gets to choose whether to use those benefits before, during, or after Washington PFML.  Further, there is nothing in the WA PFML statute that allows an employer to designate time off for a covered reason if the employee doesn’t want to do so; and the ESD interprets the statute as prohibiting the employer from doing so.  The result is that it may be possible for an employee eligible for both FMLA and WA PFML to take up to 30 weeks of leave, 18 of it paid under PFML.  Here is an example:

  • Jane is eligible for both WA PFML and FMLA.  She wants to take time off to care for her mother who has
    a serious health condition – a leave reason covered by both FMLA and WA PFML.  If Jane can elect to
    take time off but not apply for WA PFML benefits initially, she may be able to take up to 12 weeks of
    job-protected FMLA leave (because the employee does NOT get to choose whether to use FMLA) and
    then take 12 more weeks of paid and job-protected leave under WA PFML (assuming she is still eligible
    for WA PFML).

Disability benefits also cannot be forced on the employee concurrently with PFML (or vice versa), so it is important to design your STD plan carefully to make benefits available only in circumscribed situations.

Pings for Employers

It’s hard to keep up with what’s going on in Washington, and it’s a bit nerve-wracking to be so close to live claims and not have all the answers.  Many of the administrative rules supporting the WA PFML program are not yet finalized and aren’t expected to be until about December 20.  How’s that for calling it close?  Here are some suggestions that will help you stay as informed as possible.

  • If you are a Matrix Washington voluntary plan client, attend our internal webinar explaining everything
    Matrix has done, is doing, will do to keep you compliant.
    The second session is Wednesday December 4 – contact your Matrix or RSL account manager if
    you need details.
      (The session will be recorded but it’s best to attend live so you can ask questions.)
  • Visit the ESD website here. Review the Employer and Employee pages to get as much information as possible.
  • Sign up for the ESD newsletters in the SUBSCRIBE box at the bottom of that home page.
  • For live answers to questions call the ESD Customer Care Team at 833-717-2273
  • Review the WA PFML statute.
  • Review the WA PFML rules enacted to date and check on progress on final rules on the ESD Rulemaking page.
  • Sign up for informative webinars for employees and employers, rulemaking hearings, and more at the
    Events link at the bottom of the home page.
  • Keep watching this blog!

MATRIX CAN HELP!

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, prepared extensive training for our claims staff, and are now holding educational webinars for our clients with voluntary plans administered by Matrix.  If the thought of the state administering your employees’ claims has you concerned, contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering.

MASSACHUSETTS PFML UPDATE – NOW WHAT’S GOING ON?

Posted On August 27, 2019  

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

August 27, 2019

 

There are lots of moving parts in Massachusetts these days, as we get closer to implementation of the commonwealth’s paid family and medical leave (PFML) law. Over time we have published several articles on Massachusetts PFML:  You can take a look back at our overall summary and periodic developments by entering “Massachusetts” in the search box of this page. In the meantime, here’s what’s happening now:

Private Plans – A Quick Reminder

An employer can opt for its employees to be covered by the public PFML plan administered by the Mass DFML – in which case the employer does not need to apply, just submits the required quarterly reporting and employer/employee contributions to the commonwealth.

If an employer prefers to cover its employees through a private plan administered by the employer, or by a TPA or insurance carrier like Matrix and Reliance Standard, the employer must apply to the commonwealth and get its private plan approved. Performance of the private plan is ensured either by posting a bond (self-insured plan) or obtaining private PFML insurance. An employer can elect a private plan for paid family leave, paid medical leave, or both. If it elects a private plan for only one benefit, the other is covered by the DFML’s public plan.

Private Plans and Insurance Policies

On August 22, the Massachusetts Department of Family and Medical Leave (DFML) and the Massachusetts Department of Insurance (DOI) held a joint “listening session” regarding private PFML plans. The goal of the two departments and attendees is to develop a private plan template that is compliant with the Massachusetts PFML and DOI requirements. I was in attendance for Matrix Absence Management, along with several of my colleagues from Matrix’s sister company, Reliance Standard Life Insurance Company. Here are some important takeaways from that meeting:

Prior to the listening session the DFML and DOI distributed a private plan/insurance policy template to attendees. This template had been submitted for consideration by an unnamed insurance carrier. Apparently there is some incorrect buzz in the industry that this is a Massachusetts-sanctioned template. DON’T BE FOOLED! This is not an approved template but was shared solely to start and focus the discussion. In fact, there are many mistakes and omissions in the starter template that make it noncompliant with the PFML law and would require rejection of the plan if submitted for approval as-is.

The DOI and DFML recognize the urgent need to get more guidance to carriers and employers regarding private plans and insurance coverage. It is a huge task. (One department representative stated she wished it were April instead of August.) The departments expressed intent to have a new version of the template, incorporating changes suggested at the listening session, available relatively soon, perhaps by the end of this week. The DOI stated that it would be about 3-4 weeks before a plan template could be approved.

The departments expect to hold another listening session after the release of a revised plan template. We will be certain to attend that meeting.

More Private Plan Information

Remember, there is no deadline to file for approval of a private plan – employers can file at any time and the plan will be effective on the first day of the quarter following approval. However, there is financial incentive to get a private plan approval by December 20. In that case the employer is not required to pay the employee and employee contributions to the commonwealth for the 4th quarter, October-December 2019. Rather, the employer can hold contributions collected from employees to fund its own private plan (benefits or insurance premiums).

Of course, the employer is not required to withhold contributions from employees at all, if it chooses to fund the plan entirely itself.

The DFML clarified at the listening session that an employer can file for approval of a private plan without the actual bond or insurance policy yet in place. Approval of the plan by the DFML will be provisional, subject to further filing of the bond or the policy.

However, the DFML recommends patience and suggests employers wait for more guidance from the departments – especially those employers intending to purchase insurance to pay for the PFML benefits. The DFML advises that it may be better to wait until they provide more information so a more complete package can be submitted.

If an employer does not have approval by December 20, however, it will be required to pay the Q4 employer and employee contributions to the DFML during January 2020.

Employee Notices

While so much is in flux, one solid looming deadline is the requirement to provide PFML notices to employees by September 30, 2019.

Forms and more information are available on the DFML website. These are suggested forms and employers can modify them as needed to reflect their current status as to private or public plan, withholding of employee contributions, etc. If you previously sent out notices that are now inaccurate as to details such as commencement of employee contributions you will need to send an amended notice, which is also available on the DFML website.

And, if you haven’t done so yet, go to that same website to download the PFML poster to hang in your workplace. This posting requirement is already in effect, so do it now! Again, the DFML form poster can be modified to fit your situation.

What are Matrix and Reliance Standard doing?

  • Reliance Standard and Matrix continue in their leadership role in the absence management world.
    Reliance Standard
     has formally announced its intent to underwrite both MA Paid Family and
    Paid
    Medical.
    Whether you are fully insured or self-funded for these programs, we can manage
    your risk and your service experience!
  • Matrix has developed its own private plan template, now updated to be consistent with the
    amendments to the PFML law passed on June 13
    and the final regulations issued by DFML
    effective July 1, 2019. This plan is ready for filing if YOU are ready to move forward, regardless
    of whether you choose to self fund PFML benefits or obtain insurance through Reliance Standard
    .

For those employers choosing to self-fund MA PFML benefits, we can help facilitate sourcing the required bond through our sister company, Tokio Marine HCC.

If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.comAnd stay tuned here for more information about Massachusetts PFML as it develops.

STOP THE PRESSES (AGAIN): MASSACHUSETTS PFML FINAL REGULATIONS AND BOND FORM HAVE ARRIVED

Posted On June 25, 2019  

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

June 25, 2019

 

Last week the Massachusetts Department of Family and Medical Leave issued the final PFML regulations AND the form for the bond required of self-funded private plans.  Here’s the rundown on both.  With the 3-month delay (see our last blog post here) and these 2 developments, I’m hoping things will be quiet in Massachusetts for a while!

Final PFML Regulations

The final regulations were issued on June 17, 2019. I’ve now read them top to bottom and compared them to the March 29, 2019 draft version.  Sad to say, there are not many revisions that help employers, and many unanswered questions remain.  Here are noteworthy changes or additions:

  • Intermittent leave. The definition of “intermittent leave” allows an employer to designate a minimum
    increment of time that can be taken as intermittent leave, up to 4 hours per segment.  458 CMR 2.02.
    It may be tempting to require employees to use time in larger chunks but, as a practical matter, this may
    prove a challenge when MA PFML and FMLA are running concurrently.  FMLA allows intermittent leave
    in increments of no longer than an hour.  29 C.F.R. § 825.205(a).  If the time increments don’t match up,
    the employee will be using the two job-protected leave entitlements at different rates, which can cause
    administrative difficulties.
  • Groups of employees. The final regulations allow an employer to deduct differing percentages from the
    wages of different groups of employees, as long as no employee is assessed more than the statutorily
    allowed amounts per employee.  458 CMR 2.05((5)(d).
  • Definition of “incapacity.” This definition has been clarified and now reads:

“. . . an inability to perform the functions of one’s position, or where the covered individual is a former employee, to perform the functions of one’s most recent position or other suitable employment as that term is defined under M.G.L. c. 151A, § 25(c), due to the serious health condition, treatment therefor, or recovery therefrom.”  458 CMR 2.02.

  • Certification follow-up. In a new provisions, 458 CMR 2.08(5)(g) states:

Where it determines that a certification lacks required information, or is not accurate or authentic, or is otherwise insufficient, the Department may contact the health care provider and require that it verify, supplement, or otherwise amend the information in the certification.

This appears to be a “lite” version of the FMLA procedures an employer can follow when it receives an
incomplete, insufficient, or otherwise questionable certification.  See 29 C.F.R. §§ 825.305(c) and 825.307.
Presumably this will also apply to employers and their TPAs when administering claims under a private plan.

  • 7-day waiting period. An employee will not receive benefits during the first 7 calendar days of leave.
    This 7-day waiting period will count against the total available period of leave in a benefit year. The final
    regulations have added this clarification:  “Where the approved claim involves leave on an intermittent
    or reduced leave schedule, the wait period shall be seven consecutive calendar days, not the aggregate
    accumulation of seven days of leave.” In other words, once an employee takes any increment of leave the
    7-day waiting period starts and is completed after the 7th calendar day, regardless of how many days of
    leave the employee has (or has not) taken during that time.
  • Definition of “child.” Under MA PFML, an employee can take paid leave to care for a child with a serious
    health condition.  The final regulations have modified the definition of child by deleting the provision that
    a child must be either under age 18 or, if age 18 or older, incapable of self-care because of a mental or
    physical disability at the time the leave is to commence.  This has the effect of expanding the family members
    for whom the employee can take PFML, and creates another category (adult child who is not disabled) that
    is not covered by the FMLA.
  • Private plan recordkeeping. A new provision specifically requires employers with an approved private plan to
    retain all reports, information, and records related to the approved plan, including those related to all claims
    for benefits made under the plan, for three years.  The employer must submit this documentation to the
    DFML upon request. 458 CMR 2.07(7) (b)

The final regulations can be found here.

 

The Bond Requirement for Private Plans

The PFML statute requires employers with a self-funded (uninsured) private plan to support their application for approval with a bond from a surety company.   We previously wrote about the bond requirement here.   The DFML has now published the required bond form and filing instructions.  One requirement I don’t recall seeing previously is that the employer must attach a copy of its most recent audited or consolidated financial statement for the previous year.  There is also reference to the “self-insured plan number.” Based on previous communications with the DFML it appears that the employer can designate any number as an identifier for its self-funded PFML plan.

 

MATRIX CAN HELP!  As noted above, there are still many uncertainties regarding how Massachusetts PFML will actually function.  Matrix will administer Massachusetts PFML for our clients who elect the private plan option.  Rest assured, we will be posing our questions to the DFML so that our clients will receive best in class administrative services. If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com

 

MASSACHUSETTS PASSES LIGHTNING BILL TO DELAY SOME PFML DATES--AND, THE FINAL REGULATIONS ARE HERE!

Posted On June 19, 2019  

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

June 19, 2019

 

In a coordinated move so fast it makes your head spin, the Massachusetts governor and legislature have passed the promised bill to delay by 3 months the start of employer and employee contributions to the paid family and medical leave program, to October 1. The bill, MA S 2255, brings about some other modifications to the PFML law as well. What hasn’t changed is the date for commencement of benefits – still January 1, 2021.

In addition, the final Massachusetts PFML regulations have been posted on the Massachusetts Department of Family and Medical Leave (DFML) website here. The regulations are key to fully understanding and administering the Massachusetts PFML law. The DFML received many comments and suggestions for final revisions, and we will be studying the changes made from the 03-29-2019 draft.

In the interest of getting this article about the statutory delays posted timely, we are not including an analysis of the final regulations yet. Watch this blog for another article shortly.

 

THE CHANGES

Here is the content of the announcement sent by the DFML to Massachusetts employers on June 14, 2019, regarding the delays of prior PFML compliance dates, with Matrix’s observations in italics:

 

Required Withholding Now Starts October 1

“The start date for required PFML contributions is now October 1, 2019. On that date, employers must begin withholding PFML contributions from employee qualifying earnings.  Employers will be responsible for remitting employee and (if applicable) employer contributions for the October 1 to December 31 quarter through MassTaxConnect by January 31, 2020.”

Matrix observations: Remember that (1) employers can elect to cover the employee share of contributions, regardless of whether they choose to use the public plan or a private plan to comply with the law; and (2) employers with a private plan approved by December 20, 2019, don’t have to remit any payments to the DFML. So to say the start date for “required PFML contributions” is now October 1 is a little misleading.

This delay in the start date for contributions may be less of a blessing for some employers than for others, if you have already programmed your payroll system to start the employee paycheck deductions on July 1. Now, any such deductions are not required by the law until October 1 (f at all) and so might be a violation of state or federal wage laws if initiated on July 1. Consult your employment counsel if this is an issue for you.

 

Contribution Rate Change

“The PFML law requires that the Department adjust the contribution rate to offset the shorter period for collections that will result from the three month delay. As a result, the total contribution rate has been adjusted from 0.63% to 0.75% of employee qualifying earnings. This adjustment will ensure that full funding will be in place for the commencement of benefit payments in January 2021.”

Matrix observations: The amendments do not specify how long this adjusted rate will remain in effect, but the law requires the Department of Family and Medical Leave (DFML) to review and adjust the rate effective each October 1, if needed.

The PFML statute requires the employee to pay 100% of the contribution attributable to family leave and the employee and employer to share the contribution attributable to medical leave on a 40% employee/60% employer split. This has not changed. The DFML advises that the 0.75% will be apportioned as follows:

  • 0.13% to family leave, of which the employee pays all; and
  • 0.62% to medical leave, of which the employee pays not more than 40%

 

You can see a graphic illustration of the new contribution rates on the DFML website.

 

Timeline Extended for Required Employee Notices

“Employers now have until September 30, 2019, to notify all covered individuals of their rights and obligations under PFML. Check the Department website at mass.gov/pfml in the coming days for updated notices to provide to your workforce.”

Matrix observations: What if you have already sent the notices that were previously required by May 31 June 30? The DFML has this guidance on its website:

“If you provided written notices to your workforce prior to the June 14 delay announcement, you will need to provide them with an addendum sheet explaining the updated program dates and contribution rates. This addendum will be provided by DFML during the week of June 17.”

If you haven’t sent the notices yet, just use the new DFML notice forms. You can find the updated notice requirements and templates (and the addendum once available) here.

As an aside, in my communications with the DFML I have confirmed that the poster and the individual notice templates available on the DFML website are examples and can be modified as needed to reflect accurately your own situation, as long as all the notice elements are covered. This will be particularly significant for employers with a private plan or those electing not to withhold contributions from employee paychecks.

 

Timeline Extended for Exemption Applications

“Employers that offer paid leave benefits that are at least as generous as those required under the PFML law may apply to the Department for an exemption from making contributions. Employers will now have until December 20, 2019, to apply for an exemption that will excuse them from the obligation to remit contributions for the full period commencing with the October 1 start date.”

Matrix observations: The exemption referred to here is obtained adopting an approved private plan – one administered by the employer or a by third party such as Matrix or an insurance company rather than the state. See the end of this post for information about private plan assistance Matrix is ready to provide.

If the private plan application is filed by December 20, 2019 (and ultimately approved by the DFML) the employer can avoid paying employee and employer contributions to the state for the period October 1- December 31, 2019. The advantage is retaining those contributions to fund an employer’s own private plan and payment of benefits. Matrix recommends filing in advance of December 20 to ensure plenty of time for approval. Guidance from the DFML about the private plan exemption can be found on the DFML exemption page.

Note that there is no “deadline” to file an application for private plan approval. The DFML will accept filings on a continuous rolling basis, but a plan won’t be in effect until the first day of the quarter following approval, so the employer will have to pay to the state any employee and employer contributions accruing prior to that date. As a result, there is a financial incentive as described above to get your plan filed by December 20, 2019.

 

PFML Regulations Will Be Final and Effective on July 1, 2019

“The final regulations will be posted on the Department website at mass.gov/pfml on Monday, June 17, 2019. The regulations will be formally published under the title 458 CMR 2.00 DEPARTMENT OF FAMILY AND MEDICAL LEAVE.”

 

Matrix observations: And, they’re here! The regulations are key to fully understanding and administering the Massachusetts PFML law. The DFML received many comments and suggestions for final revisions, and we will be studying the changes made from the 03-29-2019 draft. In the interest of getting this article posted timely, we are not including an analysis of the final regulations yet. Watch this blog for another article shortly.

 

Other Provisions of the Amendments to the PFML Law

In addition to the above changes, the newly-passed amendments address some of the concerns expressed by employers and other stakeholders. The effect is to better align the PFML law with the federal Family and Medical Leave Act:

  • Unable to perform: The definition of a serious health condition for which an employee may take medical
    leave has been expanded to require that the condition “makes the covered individual unable to perform the
    functions of the covered individual’s position.” The amendment further explains: “This provision shall be
    construed consistent with the equivalent provision of the federal Family and Medical Leave Act of 1993,
    codified at 29 U.S.C. 2612(a)(1)(D).”
  • Former employees: The amendment also explains: “A covered individual who is a former employee shall
    be considered unable to perform the functions of the covered individual’s position if the covered individual
    is unable to perform the functions of the covered individual’s most recent position or other suitable
    employment as that term is defined under [the PFML law].”
  • Medical certification: The required contents of a medical certification to support leave are expanded to
    include:

    • A statement by the health care provider that the covered individual is unable to perform the functions
      of the covered individual’s position;
    • A statement of the medical necessity, if any, for intermittent leave or leave on a reduced leave schedule; and
    • If applicable, the expected duration of the intermittent leave or reduced leave schedule.

Unfortunately, still missing is a requirement to provide an estimate of the frequency and duration of each episode of a condition’s flare-up requiring intermittent leave – an important bit of information to manage intermittent leave effectively.

Similar requirements relating to medical necessity and the duration of intermittent or reduced schedule leave have been added to the certification in support of leave to care for a family member with a serious health condition or covered servicemember.

MATRIX CAN HELP! 

In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the Massachusetts and Washington private plan options.  These include developing state-specific sample private plans for use by our clients and a guide for our account managers to assist you with the private plan decision and application process.

If your company is interested in the private plan option for Massachusetts or Washington PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more PFML information as it develops!

MASSACHUSETTS ANNOUNCES LIKELY 3-MONTH DELAY IN COLLECTING PFML PREMIUM CONTRIBUTIONS

Posted On June 12, 2019  

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

June 12, 2019

 

Vast amounts of uncertainty and unanswered questions surround the Massachusetts Paid Family and Medical Leave program.  The law currently provides that employers participating in the plan administered by the Massachusetts Department of Family and Medical Leave (DFML) must start withholding contributions from employee paychecks as of July 1, 2019.

On June 11, Massachusetts Governor Baker and leaders of the Massachusetts house and senate announced an agreement to postpone the start of PFML contributions for 3 months, until October 1, 2019.  The change must be accomplished via an amendment to the PFML statute but all parties are on board to get this done.   This is welcome news for employers as they will have more time to get payroll arrangements perfected, decide whether to apply for an exemption from state coverage with a private plan, and otherwise implement.

The anticipated amendment to the PFML statute may also include technical changes to clarify program design.  Clarifications are expected to include amendments relating to intermittent leave, the definition of “serious health condition,” and closer alignment of the Massachusetts PFML law with the federal Family and Medical Leave Act.  (See aimblog published by the Associated Industries of Massachusetts, which was instrumental in advocating for the delay.)

In order to maintain the level of funding for the program that would be achieved if contributions commenced July 1, the combined employer/employee contribution of 0.63% of an employee’s wages will be increased to 0.75%, or from $872 to $1038 per year for an employee earning the state average weekly wage.  It is not yet known how long this increase will stay in effect.  At present, the law requires the DFML to adjust the contribution rate annually, depending on various economic factors, starting October 1, 2021, effective the next January 1.

Massachusetts PFML Reminders

Massachusetts employees and other covered workers can start receiving paid leave benefits January 1, 2021.  The law provides for annual paid leave up to 20 weeks due to an employee’s serious health condition, 12 weeks for family leave purposes (bonding, caring for a family member with a serious health condition, and military exigencies), and 26 weeks to care for a family member with a service-related illness or injury.  There is a 26-week cap on total annual leave benefits.

Over time we have published several articles on Massachusetts PFML.  You can take a look back at our overall summary and periodic developments by entering “Massachusetts” in the search box of this page.

Other Massachusetts PFML News

If an employer chooses to comply with the PFML through a private plan, the law requires the employer to either post a bond or provide benefits through an approved insurance company.  The DFML expects to publish an approved bond rom and instructions any day now.  Watch this blog and the DFML website for that development.

Also, the DFML is constantly updating its website with new information, so a periodic check-in just to see what’s new is worthwhile.  Of course, we will report any major developments here.

MATRIX CAN HELP! 

In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the Massachusetts and Washington private plan options.  These include developing a sample private plan for use by our clients and a guide for our account managers to assist you with the private plan decision and application process.

If your company is interested in the private plan option for Massachusetts or Washington PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more PFML information as it develops!

 

GOOD NEWS FOR MASSACHUSETTS EMPLOYERS – A DELAY OF PENDING DEADLINES (AND A WORD ON TAXES)

Posted On May 02, 2019  

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

May 02, 2019

 

That’s right, yet another Massachusetts paid family and medical leave update! Today’s news will be welcomed by Massachusetts employers, especially those considering whether to adopt a private plan rather than use the state program.  Let’s be honest, though – it’s only good news because it backs off from some of the imminent deadlines that were going to be extremely difficult for employers to meet.

Here are the updates, quoted directly (in italics below) from the DFML announcements available on its website. See our comments and analysis below each DFML update.

Exemption Deadline Extended for Quarter 1
The Department’s current guidance requires that exemptions for private plans must be approved in the quarter prior to the quarter in which they will go into effect. For Quarter 1 only [July-September 2019], however, the deadline to file for a private plan exemption that will be in effect for first quarter contributions for paid family and medical leave has been moved from June 30th to September 20th, 2019. This will allow employers additional time to contemplate private plan options. Going forward, the Department will continue to accept applications on a rolling basis but applications must be approved in the quarter prior to the quarter in which they go into effect.

Please note that contributions to PFML begin on July 1, 2019 and the September 20, 2019 extension of the exemption application deadline only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward. Therefore, DFML recommends that businesses in the Commonwealth consult with their tax advisors as to the implications associated with applying for a private plan exemption that may or may not be approved.

Employer Notice to Employees
The deadline for employer notice to employees has been extended from May 31 to June 30, 2019. The notice, which may be provided electronically, must include the opportunity for an employee or self-employed individual to acknowledge receipt or decline to acknowledge receipt of the information.

Please Note: The Department of Family and Medical Leave is continuing to accept comment on draft regulations regarding paid family and medical leave and is planning to host two additional listening sessions in May which will be announced shortly.

What does this mean for employers?

Under the prior rule, if a plan was not approved by June 30, the employer would owe the employer and employee contributions to the Commonwealth for all of the quarter (July-September 2019); and this amount could not be recovered even if a private plan was later approved. Now if your private plan is approved by September 20, 2019, you will not have to pay over the July-September 2019 premium contributions to the Commonwealth but rather can keep those for funding your own private plan benefits payments.

Here is a quick rundown of upcoming dates and obligations:

  • All employers will continue to have reporting obligations for every quarter, including Q1 of the program
    (July-September 2019). The DFML has stated it will issue more reporting guidelines prior to July 1
    so that employers know what data they need to be ready to provide after the close of Q1, probably
    in October 2019.
  • All employers will need to post the required notice for workers in the workplace.  See our prior post
    here for more details
  • Individual notices. All employers will need to send individual notices to every employee and
    contractor and receive an acknowledgement or refusal to acknowledge signed by the worker, but the
    deadline has been moved to June 30, 2019.  More details are available
    here and here.
  • Applications for private plan approval can be filed at any time after April 29, 2019. However, the
    application will need to include a copy of the private plan, a copy of the required bond (see our
    blog post
    here), and if Matrix is applying for your company, a signed authorization for Matrix to
    act on your company’s behalf.

A Word on Taxation Issues

On May 1 the DFML also issued a notice that addresses the taxation question – sort of.  We have received several questions about tax treatment of premiums paid by employees and benefits.  Matrix cannot answer those questions, as we are not tax advisors.  Apparently, the Commonwealth of Massachusetts isn’t either.  Here is their notice:

Tax Information
The tax treatment of PFML contributions for both state and federal purposes is governed by federal tax law. The Commonwealth has requested guidance from the Internal Revenue Service on this question and others related to the tax implications of PFML contributions and benefits. Until IRS guidance is issued, individuals and businesses are urged to consult with their own tax advisors on these questions. Based on its own review of federal rules and following consultation with the Massachusetts Department of Revenue, the Department of Family and Medical Leave anticipates that the IRS will conclude that employee contributions should be withheld from after-tax wages. A definitive rule for proper tax treatment of contributions will be available once IRS guidance is issued.


MATRIX CAN HELP!  In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the private plan option.  These include developing a sample private plan for use by our clients, and an employer guide to the private plan decision and application process.  If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more information about Massachusetts PFML as it develops – we’ll bring it to you daily, if necessary!