Family and Medical Leave Compliance Update – April 2020

Every month, Lincoln puts together the latest compliance news related to family and medical leave laws and regulations – helping you keep track of the important deadlines, compliance considerations and links to additional information.
 

  • Family and medical leave
  • Sick leave
  • Other leave
  • In the news

Washington

March 25, 2020:  Washington Governor Jay Inslee signed House Bill No. 2614 into law, which sets into motion a number of changes amending the state’s paid family and medical leave program. These changes apply to both private plans and the state plan, and are effective June 11, 2020, except where specified.

Amendments to definitions (effective March 25, 2020):

  • A child's spouse is added to the definition of "child," allowing a mother-in-law or father-in-law to be eligible for benefits when caring for their son-in-law or daughter-in-law.
  • "Typical workweek hours" refers to the average number of hours worked per week by an employee "within" the qualifying period, instead of "since the beginning" of the period.
  • "Casual labor" is defined as work performed infrequently and irregularly and is not included in the definition of employment for the purposes of the PFML program. Premiums are not collected for workers performing these services and the hours do not count towards PFML eligibility.
  • "Paid time off" is defined to include vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer's established policy."
  • "Supplemental benefit payments" is defined to mean payments made by an employer to an employee such as salary continuation or as paid time off. Such payments must be in addition to any paid family or medical leave benefits the employee is receiving.

Amendments to coverage:

Benefit waiting period: Eligible employees may satisfy the seven-day waiting period requirement while simultaneously receiving paid time off for any part of the waiting period. Military exigency leave is exempted from the one-week waiting requirement for the payment of benefits.

Successive periods of leave: The language dealing with successive periods of leave is eliminated.

Supplemental benefits: Supplemental benefit payments are not considered remuneration, and they will not be used to prorate or reduce an employee's weekly benefit.

Unemployment and industrial insurance: An employee must apply for benefits under the unemployment and industrial insurance programs, and those programs determine their eligibility. An employee is disqualified from PFML benefits when they are receiving, has received, or will receive compensation from the other programs.

Voluntary plans: Employers who operate a voluntary program for just family leave or medical leave must transmit all premiums collected for the other program to the Employment Security Department (ESD). If an employer terminates or withdraws from a voluntary plan, all premiums for that plan remaining in its possession must be remitted to the ESD.

Please note that the state has yet to issue regulations and/or guidance to carry out these changes, and these matters may be subject to regulatory interpretation and program implementation timelines.

April 2020:  The ESD has announced on the WA PFML Employer page that they will be offering more leniency to employers who can’t file their quarterly reports on time. Quarterly reporting for both unemployment insurance and Paid Family and Medical Leave starts April 1, 2020 and ends April 30, 2020. Employers who will be unable to file their reports on time will need to request a penalty waiver in writing. For more information on a tax penalty waiver, please see the ESD Tax Penalty Waiver page .

Massachusetts

April 3, 2020:  The Department of Paid Family and Medical Leave (DFML) and the Division of Insurance (DOI) have developed filing guidance for a standard policy template that will be used by insurance carriers to develop acceptable PFML private insurance policies for the market. Once the filings have been reviewed by the DOI, these PFML policies can be offered to employers to satisfy their obligations under the PFML law. Employers that filed a carrier-issued Declaration of Insurance with the DFML in order to obtain an exemption are no longer required to submit the policy form to the DFML prior to the date of the renewal of the exemption. The DFML will request policy form numbers from employers at the time of exemption renewal. Self-insured employers seeking an exemption may use the standards listed in the PFML policy template to ensure that their self-administered PFML private plans comply with the PFML statute and regulations.

New Jersey

January 21, 2020:  Effective May 20, 2020, the governor of New Jersey signed off on an amendment to New Jersey's Temporary Disability Insurance Law (TDI) program to cover a disability arising from organ and bone marrow donations. This amendment provides payment and job restoration and removes the seven-day waiting period for disabilities resulting from organ and bone marrow donation. An employee must also meet the standard eligibility requirements under TDI in order to be covered under the benefit.

New York

April 3, 2020: The governor of New York has enacted a paid sick leave program through the FY 2021 Enacted Budget. Businesses with five to 99 employees will provide their employees at least five days of job-protected paid sick leave per year and businesses with 100 employees or more will provide at least seven days of paid sick leave per year. Smaller businesses, with four or fewer employees, will guarantee five days of job-protected unpaid sick leave to their employees every year. Employees are expected to be able to take paid sick leave beginning January 1, 2021. For more information, please see the governor's announcement on the FY 2021 budget . Please note that the state has yet to issue regulations and/or guidance to carry out these changes, and these matters may be subject to regulatory interpretation and program implementation timelines. Additionally, this newly passed law is separate from legislation implemented by the state on March 18, 2020 to provide quarantine-related paid sick leave due to COVID-19. Visit our COVID-19 Guidance page for more information regarding that legislation.

Texas

March 30, 2020: A U.S. District Court judge decided in a recent case, ESI/Employee Solutions LP et al. v. City of Dallas et al, that Texas employers are no longer required to provide paid sick leave. This includes Dallas' Paid Sick Leave Ordinance that was supposed to be effective April 1, 2020, which has been enjoined as a result. The judge's decision is based on Texas' constitution and statutes, which grant the state legislature power to implement public policies of that nature, not local governments.

Seattle, Washington

April 8, 2020: The Office of Labor Standards issued a temporary emergency rule for Seattle's Paid Sick and Safe Time (PSST). Effective immediately, and until June 7, 2020, an employer cannot request healthcare provider documentation for verification of PSST use. Under ordinary circumstances, for sick time use beyond three consecutive work days, an employer may require documentation signed by a health care provider that sick time is necessary. However, during this limited period, employers must provide alternatives for the employee to meet the employer's verification requirement in a manner which does not result in an unreasonable burden or expense on the employee. Alternate documentation could include: the employee's own statement, or documentation from other individuals such as service providers, social workers, case managers or legal advocates, stating that, to their knowledge, the employee's use of paid sick leave is for a covered purpose. Employees are not prevented from voluntarily using healthcare provider verification, including a doctor’s note obtained through telemedicine, if it is available to them. For more information, please see the Office of Labor Standards PSST page .

Montana

February 4, 2020: Gallatin County commissioners voted to offer paid parental leave for county employees, effective January 1, 2020. The paid parental leave is for Gallatin County employees who have been employed by the county for 6 months. This provides 6 weeks of paid leave to employees bonding with their newborn or adopted child, the child must be born or placed on or after January 1, 2020. The county's Human Resources Department will work with the employee’s supervisor to handle the administration of these leaves.

New Mexico

March 6, 2020: The governor of New Mexico signed off on the Pregnant Worker Accommodation Act, which amends the New Mexico Human Rights Act, an anti-discrimination law, to include pregnancy, childbirth, or a related condition. This new act, which is effective May 20, 2020, is applicable to employers with at least 4 employees. The amendment makes it unlawful for employers to refuse or fail to reasonably accommodate an employee or job applicant because of these new reasons. It also makes it unlawful to require employees to take a leave of absence when a reasonable accommodation can be made.  Exceptions can be made for accommodations that would cause the employer undue hardship.

Accommodations

American with Disabilities Act
Logo and Resources: ADA National Network (adata.org)

  

The Americans with Disabilities Act (ADA) will be celebrating its 30th anniversary this year. The ADA and the ADA Amendments Act of 2008 (ADAAA) give civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA and ADAAA also assure people who have disabilities equal access to businesses, employment, transportation, state and local government programs and services, and telecommunications.

Spotlight: COVID-19

Lincoln Financial is here to help you stay confident and prepared during this challenging and evolving situation. We're continuously monitoring the latest news, as well as information from the Centers for Disease Control and Prevention and other regulatory and medical experts, to offer targeted guidance and support.

We have created a dedicated COVID-19 Guidance page. We recommend bookmarking this page for important messages from our leaders, timely updates on legislative changes specific to our offerings, employer best practices, and resources to support you as we navigate this unprecedented situation together.

Closer Look: Office of Disability Employment Policy (ODEP)

The Office of Disability Employment Policy (ODEP) is the only non-regulatory federal agency that promotes policies and coordinates with employers and all levels of government to increase workplace success for people with disabilities. ODEP's mission is to develop and influence policies and practices that increase the number and quality of employment opportunities for people with disabilities.

To develop and influence disability employment-related policies and practices, ODEP sponsors the following four policy development and technical assistance resources:
 

  1. Employer Assistance and Resource Network on Disability Inclusion (EARN)
  2. Job Accommodation Network (JAN)
  3. National Center on Leadership for the Employment and Economic Advancement of People with Disabilities (LEAD Center)
  4. Partnership on Employment & Accessible Technology (PEAT)
     

February 20, 2020: The EEOC announced that Prestige Care, Inc. and Prestige Senior Living, LLC has agreed to pay a $2,000,000 settlement in an employment discrimination lawsuit alleging that the company failed to provide accommodations to employees with disabilities. The company had policies in place that required employees to perform 100% of their job duties without restriction, accommodation, or attempting to engage in a process to accommodate. In addition to monetary relief, the company agreed to hire an outside party to review and update the policies surrounding ADA accommodations that it is an interactive process. Prestige will also provide training, have specific coordinators to handle accommodation requests and complaints, and inform job applicants of their right to request an accommodation.

March 16, 2020: The EEOC announced that KTF Enterprises, Inc. and Kirker Enterprises, Inc. has agreed to pay a $175,000 settlement in an employment discrimination lawsuit alleging the companies refused to accommodate three factory employees even though the accommodations would not cause undue burden. Two of the accommodation requests were from disabled employees asking for stools to periodically sit on while working. In addition to monetary relief, the companies must train all employees about ADA requirements, and update the EEOC on accommodation requests or complaints regarding disability discrimination. 

Please note: This alert is provided for informational purposes only and should not be considered legal advice. This information is being provided to Lincoln Financial Group clients so they may conduct any necessary internal evaluation of their policies and procedures. This alert is designed to provide informative and current information as of the date of the alert. Please contact your legal advisor with any questions regarding the laws discussed in this communication. Lincoln continually monitors activity related to family and medical leave laws and as laws pass, we will determine any impacts to our suite of products. Lincoln does not currently administer or track paid sick leave. The information contained herein includes information on major cities and counties and is not all inclusive of all city and county laws.

Insurance products are issued by The Lincoln National Life Insurance Company, Fort Wayne, IN, Lincoln Life & Annuity Company of New York, Syracuse, NY, and Liberty Life Assurance Company of Boston, Boston, MA. The Lincoln National Life Insurance Company does not solicit business in New York, nor is it licensed to do so. Product availability and/or features may vary by state. Limitations and exclusions apply.