WASHINGTON PFML EMPLOYER NOTICES NOW AVAILABLE – AND OTHER DEVELOPMENTS

Posted On January 04, 2020  

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

January 04, 2020

 

PLEASE NOTE we had a few holiday technical difficulties here at Matrix-Radar, and this post was distributed in a timely fashion to Matrix clients through our account managers; but actual posting on the site was delayed. We believe we have resolved the issue and apologize for the delay!

 

Hold on to your egg nog.  Pretty soon we will turn our attention to other topics, including Massachusetts, Connecticut, Oregon, and whatever new states join the PFML bandwagon in 2020.  For now, Washington is sucking up all the oxygen in the room as we sprint for the January 1, 2020, start of benefits.  Stay tuned for other topics another day!

Time is short, so let’s get right to the point.  The Washington Employment Security Department (ESD) has FINALLY released its approved – and required – employer notices to employees.  There are two, and we wrote about them in our WA PFML update post here. At that point the notices were not available, but now, just in time for the start of benefits on January 1, 2020, here they are:

Poster.  Employers must post in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice to employees of the pertinent provisions of the WA PFML statute.  RCW 50A.20.020.  The PFML rules explain this can be a common area such as a break room.  WAC 192-540-020.  Electronic posting for remote workers is not addressed.  In the absence of ESD guidance, employers should use some reasonable means to ensure that all employees have easy access to the poster.  You can download the poster here.

Although Matrix does not usually weigh in on workplace posting requirements, we will assist our voluntary plan clients by redesigning the poster to inform their employees how to apply for benefits through Matrix.  We will also make any other changes that are needed due to differences in information relating to the state plan and a voluntary plan.

Notice to an employee taking leave.    One of the (many) odd provisions of the PFML statute requires  employers to give individual notice to employees of their rights, but only after the employer is aware that an employee is taking time off for more than 7 consecutive days of work for a covered leave reason.   In that case, the employer must let the employee know he or she may qualify for Paid Family and Medical Leave by sending the notice created by the state to the employee within five business days.  This seems nonsensical; no individual notice is required for employees who take leave for fewer than 7+ consecutive days and those who are using leave intermittently, and yet they are entitled to paid leave.  Remember, an employee has to be off work only 8 consecutive HOURS in a work week to satisfy the waiting period and be eligible for pay benefits and leave.    

At Matrix we feel a better practice is to give that individual employee notice as soon as the employer knows the employee is taking leave for a PFML-covered reason.  Why wait and count for more than 7 consecutive days of work?  We will include the mandatory state notice in our packets for clients who are using the state plan to provide benefits, and will modify the notice appropriately for the employees of our voluntary plan clients to comply with the law.

Certification of Serious Health Condition form. The ESD also recently released its certification form to support an employee’s leave due to the employee’s own or a family member’s serious health condition.  Oh, my.  Where to start.  The form is woefully inadequate to equip the ESD to manage anything other than the simplest continuous leave claim.  Unlike the federal FMLA Certification of Health Care Provider, the ESD form has no questions about medical facts, what parts of the employee’s job he cannot perform due to incapacity, when or how often the employee will need time off for medical appointments, and – most alarming of all – no place for the employer to provide the estimated frequency and duration of time off for intermittent leave.  There are other flaws as well but these are key.  

Apparently the ESD will simply approve intermittent time submitted by the employee without any means to judge whether the specific time off is medically necessary and fits within the anticipated frequency and duration of intermittent leave for the employee’s or family member’s serious health condition.  Administering intermittent leave under the FMLA even with this type of information is challenging.  Can you say “excessive use”?  That’s the polite term.

There is a bit of good news here.  The ESD will also accept the FMLA certification form, and that is what Matrix will be using for its voluntary plan clients.  An employee applying for benefits under the state plan can also use the FMLA form obtained for that purpose and forego use of the state form – and possibly a second fee by the provider.  

ESD website.  Finally, we want to point out that the ESD has made many changes to its website very recently.  Everything is reorganized, there is a new look and feel, and a lot of new or updated material has been added.  You can start on the ESD paid leave home page https://paidleave.wa.gov/.  We recommend reviewing both the employer- and employee-specific pages, as you will learn not only what you must do as an employer, but what your employees are being informed by the state.

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 adapting the required employer notices for voluntary plan participants.  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.

WASHINGTON PFML – THE NEW MANDATORY NOTICE TO EMPLOYEES: WHAT YOU NEED TO KNOW ABOUT UBI NUMBERS, SUPPLEMENTAL BENEFITS, AND STD BENEFITS

Posted On January 04, 2020  

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

January 04, 2020

 

PLEASE NOTE we had a few holiday technical difficulties here at Matrix-Radar, and this post was distributed in a timely fashion to Matrix clients through our account managers; but actual posting on the site was delayed. We believe we have resolved the issue and apologize for the delay!

 

On about December 20, 2019, the Washington Employment Security Department (ESD) released its form for the mandatory notice to employees using PFML for more than 7 consecutive days.  We wrote about the new notice form (and the new mandatory poster, also just released) here.  

Employers have many questions about the notice to employees and some of its content.  Here’s what we presently know:

Why is this info coming out just now?  There is frustration all around at the timing of this information.  We at Matrix, Washington employers, and other external stakeholders did not know what the state’s mandatory notice form would include until it was released a few days ago.  So, no advance notice for employers to be ready to distribute its UBI number(s) and alert employees to the designation of any specific benefits as “supplemental.”  A better-than-previous explanation of supplemental benefits was added recently to the ESD Paid Leave website.  See below.  

What employers need to do.  Employers have two action items relating to this new notice form, both of which are necessary for the employee to file a claim for leave and benefits under the state plan with the ESD:

  • Provide employees with the employer’s UBI number
  • Determine and tell employees whether any additional company-offered pay benefits
    available during PFML leave are “supplemental benefits.”

Read on for more details. As we explain below, Matrix will include the ESD notice form in our packets as a courtesy, but employers are still ultimately responsible for getting the appropriate information to their employees.  

The UBI number.  The new form has a place to provide employees with their employer’s Unique Business Identifier number (UBI – similar to a federal FEIN).  Why?  Employees of employers using the state plan to provide benefits must file their PFML claims with the ESD on line.  It appears that ESD can locate an employee in their system with the employer’s UBI number, and not by use of the employee’s social security number or other individual identifier.  As a result, the employee will need his employer’s UBI number before he can complete a claim.  

For Matrix clients using the state plan, employees should still call Matrix early in the leave process so that we can assess the employee’s absence and apply any leaves or benefits that may be applicable in addition to WA PFML.  As a courtesy, we will include the ESD’s stock notice form in the employee’s initial packet sent after the intake call but the employer’s UBI number will be blank.  The employee will have to obtain the number from the employer’s HR, intranet, or other means.  Be sure to make all of your Washington UBI number(s) readily available (and designated by entity, if your company has more than one entity with employees in Washington). 

“Supplemental benefits.”  Another surprise on the mandatory notice form is the question, This employer offers supplemental benefits: Y _____ N _____.”   The concept of supplemental benefits has raised a lot of questions and the new form is bringing them to the forefront.  We touched on the issue of benefits and possible stacking in our prior blog post here. 

In a nutshell, here are the three key points – these apply to both Washington paid medical leave and paid family leave:  

  • Forms of remuneration paid to employees during PFML leave that are not
    designated as “Supplemental” will reduce the Washington PFML benefit and
    will be considered “wages” for employer reporting to the ESD.
  • Forms of remuneration that are designated as “Supplemental” will top off
    the Washington PFML but are not considered “wages” for employer reporting
    to the ESD.
  • Employers will need to alert payroll to the differing treatment of additional
    payments to employees treated as supplemental benefits.  

Here are the details.  According to the PFML statute, employers can designate certain company benefits as “supplemental benefits” to enrich the amount an employee receives during PFML usage.  Supplemental benefits may include salary continuation, vacation leave, sick leave, or other paid time off.  WAC 192-500-180.  They do NOT include STD benefits – see explanation below.

The designation of these top-up or enriched payments as “supplemental benefits” makes a big difference to the employee and the employer.  If the employer simply pays the company benefit (for example, allows the employee to use accrued PTO), that payment actually reduces the employee’s PFML benefit, as the ESD will offset that payment against the PFML benefits available.  In the end, the employee still only receives the maximum statutory amount but now the employer is paying part of that total.  

On the other hand, if the employer “designates” that PTO or other company benefit as supplemental, then the employee’s PFML benefits remain intact; the employer payment to the employee truly tops off the PFML benefit.  In that case, however, the employer cannot include the amount of the supplemental payments in its quarterly reporting of wages per employee or to calculate employee premiums. 

What is still not clear is when and how an employer “designates” benefits as supplemental.  There is no explanation in the statute or the rules.  Apparently, it is just a matter of applying that label and notifying the employee so that she knows not to report to ESD such supplemental benefits as “wages” when she files a claim.  Employers may want to consider amending their employment policies to make the designation.  

You can read the ESD’s guidance on supplemental benefits and its explanation of “wages” on pages 16 and 9, respectively, of the Employer toolkit (Dec. 19, 2019 version).

STD benefits are allowed during PFML leave.  On a side note, the ESD has also clarified that an employee can receive STD benefits without those serving as an offset to PFML benefits and, apparently, without having them designated as supplemental benefits.  Here is an excerpt from the ESD Employer Toolkit (page 16, Dec. 19, 2019 version):

Can my employee receive short term disability and Paid Family and Medical Leave at the same time? 

A worker can receive short-term disability at the same time as Paid Family and Medical Leave. A worker can’t receive wages or paid time off at the same time as Paid Family and Medical Leave, and all other compensation is allowed if you offer it to your employees. Paid time off could be used as a supplemental benefit, see that section for details. 

Quick note for Matrix clients with voluntary plans:  Our clients for whom Matrix is administering a voluntary plan do not need to convey the UBI number to employees.  You will still need to make the determination of whether company benefits provided during use of PFML are “supplementary” as that will affect your quarterly reporting to ESD.  Matrix will make any company sponsored STD or Paid Family/Parental benefit payments to your employees as a top-off to the WA PFML payments unless you tell us that they are receiving benefits that are NOT designated as supplemental. 

QUESTIONS?  Contact your Matrix or Reliance Standard account manager if you have questions.

WASHINGTON PFML DEVELOPMENTS KEEP US HOPPING

Posted On April 08, 2019  

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

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

April 08, 2019

 

April 8, 2019

Despite my recent advice to Washington employers to “sit back and relax,” I now have to say: Don’t get too comfortable with all things Washington PFML.  Although employers have been required to withhold premium contributions from employee paychecks (or waive such withholding) since January 1, lots of pieces are still in motion.  We recently blogged about the delay in premium payments and reporting to the state here.  Now:

  • The governor has signed into law some amendments to the PFML statute relating to employee benefits, the
    waiting period, voluntary plans, and more.
  • The Washington Employment Security Department (ESD) has finalized its Phase Three Rules, which relate
    in part to claims handling procedures.

Amendments to Washington PFML

The full bill as passed can be reviewed here. These are some of the more significant changes:

Waiting period

Employees must satisfy a 7-day waiting period before they can start receiving benefits. Prior to the PFML amendments, it was unclear how that waiting period would work. The law now states more clearly that the waiting period consists of “the first 7 consecutive calendar days” (rather than the previous version, “first 7 calendar days of leave”).  The amendments further clarify that the waiting period starts when an eligible employee takes leave for the minimum claim duration of 8 hours.  So, once an employee’s leave for a qualifying reason begins, he can start receiving benefits 7 calendar days later (if the leave continues beyond that) rather than having to take 7 days of leave before getting benefits.

And a reminder:  No waiting period is required for leave for the birth or placement of a child.

Topping off PFML benefits

The original PFML law had a strange provision that prohibited employers from allowing employees to use other pay benefits during a PFML leave. This has been corrected to align more closely with PFML laws in other states. Now, once benefits start in 2020, 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.  Employers are not required to offer supplemental pay benefits.  If offered, the choice whether to use them lies with the employee – the employer cannot force the employee to use such benefits.

Voluntary plans

The PFML amendments affect voluntary plans as follows:

    • Payment of benefits from only one plan. An employee may only receive payment of benefits for
      family leave, medical leave, or both from one approved plan at a time. If an employee is simultaneously
      covered by more than one approved plan, the employee will receive benefits only under the plan for
      which the employee has worked the most hours during the employee’s qualifying period.  From the
      context of this amendment, it appears that this applies whether the simultaneously applicable plans
      are 2 voluntary plans or a voluntary plan and the state plan.

What is NOT clear (and we’ll be asking questions of the ESD) is whether the employee receives benefits limited to the amount attributed to that one plan only, or receives benefits equivalent to his entitlement under all applicable plans, but only paid by the plan of the employer for whom the employee has worked the most hours in the qualifying period.  If that is the case (we hope not), how would the paying plan know how much is owed to the employee under other applicable plans?

    • Waiver of voluntary plan eligibility. To be eligible for benefits under a voluntary plan, an employee
      must have worked both 820 hours within the state during the qualifying period, and 340 hours for
      the employee with the voluntary plan (the 340 hours can count toward/be a subset of the 820 hours).
      An employee who commences work with a new employer with a voluntary plan is eligible for benefits
      immediately if she was eligible under a voluntary plan with her previous employer.  Otherwise, that
      340-hours-of-work for the new employer requirement applies before she can receive benefits.
      Pursuant to the new amendments, however, an employer with an approved voluntary plan may waive
      the 820 and/or 340 hours worked requirements, in whole or in part, to allow an employee to be
      immediately eligible for coverage under the employer’s voluntary plan
      .

Phase Three Final Rules.

A bit of background:  States pass the laws that require employers to provide paid family and medical.    The laws establish the basic structure of employee and employer rights and obligations.  Then the state agency that will be responsible for implementation, administration, and enforcement of the law passes rules or regulations (same thing, basically) that fill in the details needed to administer the law and advise employers and employees how to comply.

The Washington Employment Security Department (ESD) designed a process to draft, revise, and finalize its PFML rules in six phases.  The final version of the Phase Three rules have been released.  These are important because they address the claims handling procedures, including:

  • Defining a claim year
  • Employee notice requirements (timing and content)
  • Process and timing for application of benefits
  • Requirements for documentation of the leave request (certification contents, timing, etc.)

The Phase Three rules are available here.

What Matrix is doing:

  • Employers can still file for approval of a voluntary plan at any time. Matrix has a template for
    voluntary plans and a complete process for submitting plans for approval on behalf of clients.
  • Now that the Phase Three rules are finalized, Matrix is developing claims handling procedures,
    employee 
    communications, training for our employees, and other necessary processes. We will
    be ready for claims 
    management for our clients with voluntary plans when benefits are available,
    starting January 1, 2020.
  • Matrix continues to pose questions to the Washington ESD for provisions of the law and rules that are
    still not clear.

MATRIX WILL BE READY ON JANUARY 1, 2020.  WILL YOU?

If you want to learn more contact us at ping@matrix.com or through your Account Manager.

 

SIT BACK AND RELAX! WASHINGTON PFML REPORTING AND PAYMENTS TO THE STATE DELAYED BY 3 MONTHS.

Posted On March 14, 2019  

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

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

March 14, 2019

 

We know employers have been on the edge of their seats wondering when and how they can begin their required Washington paid family and medical leave reporting for Q1 slated for April 1-30.

Well, calm yourself. 

The state just announced that first quarter employer reporting is being delayed until July 1-31, 2019.  Likewise, Q1 payments to the state for employer and employee premium contributions for those employers using the state PFML plan have been delayed.  At that time, employers will make 2 separate reports, and payments if applicable, for 2019 Q1 and Q2.

More information can be found on the state’s website, particularly the rollout FAQs and the email notice to employers.  One point of note: The delay in the reporting and payment deadlines for Q1 does NOT affect the start of PFML benefits on January 1, 2020.

We at Matrix have been watching the WA PFML website and announcements regularly for information about procedures for employers to fulfill their requirements for reporting and premium payments for Q1.  I’m guessing the state needs more time to get the technology in order.  Not a big surprise, considering they can’t even accept electronic payments yet for voluntary plan application fees.

The employees of the Washington Employment Security Department (ESD) who answer our calls and emails have been very kind to deal with and offer as much assistance as the statute allows.  But I hope other states in the process of implementing or considering paid family and medical leave are watching.  The PFML law passed by the state legislature did not allow ESD enough time to develop the program procedures, regulations, and technologies.  The ESD staff is left with tough questions and, sometimes, no good answers.  Hang in there ESD folks, and thanks for what you do!

Matrix can help!  At Matrix we offer administration of Washington voluntary plans for paid family and medical leave.  These include providing a plan template, filing the plan with the state, fielding ESD questions, and seeing the plan through to approval.  Then Matrix will administer the PFML leave and benefits for your Washington employees, along with other Washington statutory leaves, the FMLA, and your company policies.  For assistance and more information, contact us at ping@matrix.com or through your Account Manager.

WASHINGTON STATE PAID FAMILY AND MEDICAL LEAVE MOVES FORWARD STEP BY STEP

Posted On November 13, 2018  

November 13, 2018

 

Employer Action Items and Resources

Washington paid family and medical leave is coming (PFML). Although leaves and benefits aren’t available until January 1, 2020, employers have decisions to make before employer and employee premium contributions start in January 2019.

You can read our prior blog posts for a summary of this up-coming law and significant developments at this link or enter “Washington” in the blog’s search box.

Employer Action Items. Time is ticking, and as a Washington employer you have things to do! At Matrix we are working with our clients and business partners to help them get ready for Washington PFML. Below is a list of key action items that all Washington employers, even those with a single employee, must address soon (and there will be more in 2019!):

  • Decide whether to use the state program or a voluntary plan. Unless and until you have an approved voluntary
    plan,
    you and your employees will be covered by the state program.
  • If you decide upon a voluntary plan:
    • Develop the plan and file for approval with state – allow 30 days for approval.
    • Make employer choices that are available with a voluntary plan, such as whether to use the accelerated
      payment option and whether to offer greater benefits (duration, amount, leave reasons, covered
      relationships) than required by state.
  • Determine whether you will deduct from employee wages or pay the employee premiums yourself (for state plan)
    or bear all costs by the company (for voluntary plan). If you choose to deduct employee premiums from paychecks:

    • Communicate with your payroll service about employee deductions.
    • Communicate to employees about deductions starting 1/1/2019 (we recommend including a brief overview
      of benefits coming 1/1/2020).
    • For a voluntary plan, set up a separate bank account to hold premiums deducted from employee wages.
    • For the state program, be ready to pay employee and employer premiums to the state quarterly, starting
      April 2019.
  • Post notices in your workplaces by the date required (to be announced by the state; we expect a state-issued
    form notice for employers’ use).
  • By 1/1/2020, review and revise existing STD policies/plans and other company leave policies to coordinate with
    the required Washington PFML benefits and ensure no duplication of benefits.

Matrix Resources. Matrix has developed a variety of resources to assist employers in preparing for Washington PFML, making the necessary choices, and developing a compliant voluntary plan:

  • Webinar on Washington PFML generally (recording available)
  • Webinar on voluntary plans specifically (recording available)
  • Washington PFML Comparison – State Program vs. Voluntary Plan
  • Washington PFML – State Program or Voluntary Plan? Employer Considerations
  • Sample voluntary plan

We can help you make the decision – state or voluntary – and file and administer your voluntary plan if that is your election. If you would like to receive any of these resources or discuss your options, the process, and more, contact your Matrix account manager or practice leader, or send your questions to us at ping@matrixcos.com. We are constantly updating and adding to our materials, so stay in touch!

Washington Resources. The Washington Employment Security Department (EDS) administers the PFML program. Its website has many resources for employers and employees. One of the latest additions is the Employer’s Toolkit, which provides an overview of the PFML program, employer responsibilities, premium calculations, and sample communications to employees about PFML, including a handbook insert, an email or blog notice to employees, and a paystub insert. Another helpful resource is the Voluntary Plan Guide which provides an overview of voluntary plan requirements.

The state is drafting and implementing rules that provide details on the PFML program, benefits, voluntary plans, the claims process, and more. The rules are divided by topic into 6 phases. All draft and final rules can be accessed on the ESD’s Rulemaking Page. Here is the status so far:

Keep watching this blog. We will provide updates as rules are drafted and finalized.

Matrix can help! Washington paid family and medical leave imposes many new employer obligations and challenges. We can help you through the morass. Call on your account manager or practice leader, or contact us at ping@matrixcos.com.