Family and Medical Leave Compliance Update – January 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
  • Updated Statutory Disability
    and Paid Family Leave Guide
  • In the news

Federal Paid Leave

December 20, 2019: The President signed into law a paid parental leave program for federal employees, which is folded into the annual defense policy bill. The new law provides up to 12 weeks of paid parental leave in connection with the birth, adoption, or foster care placement of a child for employees covered by Family and Medical Leave Act (FMLA) provisions applicable to federal civilian employees. This applies to leave taken in connection with a birth or placement occurring on or after October 1, 2020. The U.S. Office of Personnel Management (OPM) will issue necessary regulations and guidance to implement this legislation.

Family And Medical Leave Act (FMLA)

January 7, 2020: The United States Department of Labor (DOL) issued Opinion Letter FMLA 2020-1-A that addressed whether a combined general health district must count the employees of the Ohio county in which the health district is located for the purpose of determining FMLA eligibility for its employees. Public agencies are covered employers under the FMLA and may include the government of a state or a political subdivision of a state, such as counties, cities, and towns, as well as the agencies of a state or a political subdivision of a state. Whether two agencies of the same state or local government constitute the same public agency can be determined only on a case-by-case basis. The factors to consider are:

  • Whether the two agencies have separate payroll systems
  • Whether they have different retirement systems
  • Whether they have separate budgets and funding authorities
  • Whether each has the authority to sue and be sued in its own name
  • Whether they have separate hiring and other employment practices
  • Whether one employer controls the appointment of officers of the other agency
  • How state law treats the relationship between the two agencies
  • Whether they are treated separately for statistical purposes by the U.S. Census Bureau

Based on the specific facts presented, the DOL concluded that the health district and the county are not a single public agency employer for the purpose of determining FMLA eligibility.

Washington

January 2020: The Employment Security Department (ESD) has launched the state’s Paid Family and Medical Leave benefits program:

Required employer communications. The ESD has published a standard PFML benefits poster and a notice of rights to employees who will take PFML leave. The employer must provide the notice of rights whenever an employee of an employer is absent from work to provide family leave, or takes medical leave for more than seven consecutive days. https://esd.wa.gov/

New available resources. The ESD has published a benefit guide that provides information on how to apply for benefits and submit weekly claims. The ESD has also provided videos with step-by-step walk-throughs of the PFML online application, as well as detailed application instructions. The benefit guide is available on the PFML website; the videos are available on ESD’s YouTube channel.

State plan claims. The ESD started taking claim applications on January 2, 2020. An employee will have to create an account and apply for benefits under the state plan online services portal. Employees may also apply using a paper application form requested from the ESD; the paper form will be sent through regular mail. The employee will also have to submit weekly benefit claims online or over the phone. The ESD aims to process applications within two weeks, with a disclaimer that it may take between 15-30 days to process an application depending on volume.

Massachusetts

January 31, 2020: Employers without an approved exemption will need to complete their quarterly report and submit contributions on their covered individuals for the previous calendar quarter (October – December 2019) through MassTaxConnect.

District of Columbia

December 16, 2019: The DC Paid Family Leave (PFL) Employee Notice is now available. Employers are required to post the PFL Employee Notice in their worksites along with other labor law posters by February 1, 2020. In addition, this notice must be provided in electronic or physical form to:

  • All employees at least once between February 1, 2020 and February 1, 2021 and at least once a year every following year;
  • All new employees hired after February 1, 2020 at the time of hire; and
  • Individual employees when the employer receives direct notice after February 1, 2020 of the employee’s need for leave for an event that could qualify for PFL benefits.

The employee PFL notice is available on the DC DOES website.

California

December 18, 2019: The California Employment Development Department released the General Release Letter for 2020. The official agency communication confirmed the updated State Disability Insurance (SDI) rate changes and legislative updates, which may impact voluntary plans. The highlights of the letter are as follows:

  • The SDI contribution rate will be 1.0 percent of an employee’s annual gross taxable wages up to $122,909 SDI maximum taxable wage amount set by the California Unemployment Insurance Code (CUIC).
     
  • The Voluntary Plan Disability Insurance assessment rate will be 0.0014 percent.
     
  • As of July 1, 2020, Paid Family Leave benefit duration will increase from six to eight weeks when workers take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement.
     
  • For the purposes of determining employment of a motion picture production worker, when the service is not localized in the state but some of the service is performed in the state and the worker’s residence is in the state, the entire service qualifies as employment.
     
  • For the purposes of determining a worker’s status, a person providing labor or services for payment will be presumed to be an employee, not an independent contractor. It is the employer’s burden to demonstrate that a worker is an independent contractor and all the prongs of a three-part test set out in a California Supreme Court decision are satisfied. Certain professions are exempt.
     
  • As of January 1, 2025, the department will be required to distribute forms in all non-English languages spoken by a substantial number of non-English speaking applicants.
     
  • Voluntary plan updates:
    • All employers and third-party administrators will be required to use a standard Plan Text Template as of January 1, 2021.
    • All annual reports will need to include a bank statement from December of the prior year to January.
    • If the difference in the percentage of the increase or decrease of the security indicated on the Security Review Worksheet is 0.05 percent or higher, the EDD will require an increased security amount.
    • Employers will have to designate a person with good knowledge of the voluntary plan to navigate the claims database for the department auditor. This person will review benefit payment records, claim notes, medical certifications, timeliness, and accuracy of claim processing.

San Francisco, California

January 1, 2020: San Francisco announced that the 2020 Paid Parental Leave Ordinance (PPLO) Cap is $2,167 per week. The San Francisco PPLO requires employers to pay “supplemental compensation” for the full period that a covered employee receives California Paid Family Leave to bond with a child. Employers are required to provide supplemental compensation in an amount such that the California Paid Family Leave wage replacement plus the supplemental compensation equals 100% of the employee’s gross weekly wage, subject to a cap.

New Mexico

December 31, 2019: The Governor of New Mexico signed an executive order for the establishment of paid parental leave for state employees. This will apply to full-time classified employees who have completed a one-year probationary period and exempt employees who have been employed for twelve consecutive months in state departments and agencies over which the governor has authority. Eligible employees are entitled to twelve weeks of paid parental leave for bonding with their newborn and/or newly adopted children. The New Mexico paid parental leave program for state employees is effective January 1, 2020.

Lincoln has updated its Statutory Disability and Paid Family Leave Reference Guide. For existing customers, the Guide can be accessed here. We encourage you to talk to your Lincoln representative to learn more.

December 13, 2019: American Woodmark Corporation (American Woodmark) announced that they have agreed to pay a $25,000 settlement in an employment discrimination lawsuit alleging that their denial of a request for unpaid leave in order to visit a doctor for treatment of an employee’s disabilities violated federal law. American Woodmark assessed attendance infraction points and fired the employee for exceeding the permissible number of attendance points, despite the medical documentation from the employee. The EEOC has stated that use of intermittent medical leave for treatment of a medical condition deemed to be a disability under the ADA is widely recognized as a reasonable accommodation. In addition to the monetary relief, American Woodmark agreed to create and implement an ADA policy, provide employment discrimination training to its employees, and to post anti-discrimination notices. In addition, the decree subjects American Woodmark to reporting and monitoring requirements.

December 19, 2019: Massey Services, Inc. (Massey) announced that they have agreed to pay a $63,000 settlement in an employment discrimination lawsuit alleging that their denial of a request for leave as accommodation violated federal law. The EEOC’s lawsuit alleged that Massey denied a former employee’s request for leave after she became hospitalized due to her disability and instead discharged her from her position. In addition to the monetary relief, Massey will modify its policies and make exceptions to any leave provisions by providing unpaid medical leave as a form of reasonable accommodation. The company will provide training on the ADA, with an emphasis on its obligations to provide reasonable accommodations and not to retaliate against employees who request those accommodations. In addition, the decree subjects Massey to reporting and monitoring requirements.

Employers should evaluate all leave requests for an employee's own condition as a potential ADA- qualifying event. Hard-line policies that prevent or restrict time off should be avoided. Each event must be evaluated independently and a determination made regarding whether the time off is a reasonable accommodation under the ADA.

Celebrate the ADA 30 (1990-2020) Americans with Disabilities Act - July 26, 2020

Logo Credit: ADA National Network (adata.org)

ADA 30th anniversary: 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 equal access for people who have disabilities to businesses, employment, transportation, state and local government programs and services, and telecommunications.

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.