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, JD - Law Clerk, Compliance And Legal Department

April 29, 2020

 

Cowboy Radar

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

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

More ADA Guidance from the EEOC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coronavirus Goes to Court

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

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

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

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

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

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

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

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

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

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

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

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

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

COVID in the City

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

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

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

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

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

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

Colorado Joins the Rodeo

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

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

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

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

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

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

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

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

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

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

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

Additional information is available on the Colorado HELP website.

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

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

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

See you there!

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)