Family and Medical Leave Compliance Update – May 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/Accomodation
  • In the news

Washington

April 27, 2020:  Washington published a notice for future rulemaking to enact legislative changes brought about by House Bill No. 2614. However, please note that the state has not yet published the actual draft regulations or a timeline for rulemaking effectivity. The full text of the draft regulations can be found on the WA PFML rulemaking website.

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 .

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, except where specified. This bill is 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 paid time off. Such payments must be in addition to any paid family or medical leave benefits the employee is receiving.

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 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.

February 5, 2020:  Washington published new draft regulations on definitions, employer notifications, deceased claimants and employer maintenance of health benefits. The PFML rules are expected to be finalized and effective by June 11, 2020. The full text of the draft regulations can be found on the WA PFML rulemaking website.

Massachusetts

May 8, 2020: The DFML published updated draft regulations for the PFML program. Among other changes, the updated regulations add definitions, and clarify rules on opt-in requirements, private plans, benefit applications, employer-provided benefits and intermittent leave. However, please note that the state has not yet published a timeline for rulemaking effectivity. The full text of the draft regulations can be found on the DFML rulemaking website.

April 21, 2020: The Department of Revenue (DOR) has issued a Technical Information Release (TIR) describing the tax implications of a remote employee due to the COVID-19 pandemic. Among others, the TIR explains the applicability of PFML where an employee is working remotely in a different state. For the duration of the Massachusetts COVID-19 state of emergency, an individual who previously performed services outside of Massachusetts and was not subject to PFML will not become subject to PFML solely because the individual is temporarily working from home in Massachusetts due to the emergency as declared by such other state. Likewise, an individual who previously performed services in Massachusetts but is temporarily working from home outside of Massachusetts solely due to the Massachusetts COVID-19 state of emergency continues to be subject to the PFML rules. For the full text of the TIR, please visit the DOR website.

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 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 that 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 six months. This provides six 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.

Tennessee

February 20, 2020: Governor Bill Lee has announced that he will be pursuing legislation to implement a paid family leave program for state employees, in lieu of the Executive Order originally announced in January 2020. The Executive Order would have provided up to 12 workweeks of paid leave for Tennessee state executive branch personnel. If the proposed legislation passes, its effective date will be retroactive back to March 1, 2020, the original effective date specified by the Executive Order.

Accomodation

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 four 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.

May 4, 2020: The EEOC announced that Wayne Farms has agreed to pay a $175,000 settlement in an employment discrimination lawsuit alleging that an attendance policy at a facility violated the rights of workers with disabilities. The attendance policy covered a certain number of absences. Employees with disabilities who met the absence maximum were terminated even after providing medical documentation and excuses.  In addition to monetary relief, the company must update the attendance policy to provide accommodations for disabilities under the ADA, provide a copy of the updates policy to every employee in English and Spanish, post the policy in every break room at the facility, and train human resources and department managers on ADA compliance.

April 30, 2020: The EEOC announced that Rogers Memorial Hospital has agreed to a settlement in an employment discrimination lawsuit alleging that an employee was terminated because of their disability without being provided a reasonable accommodation.  Due to their serious health condition, the employee took leave under the Family and Medical Leave Act (FMLA), then was provided an additional two weeks of leave by the employer as an accommodation.  After the extra two weeks of leave ended the company did not engage in an interactive accommodation process and instead terminated the employee.  As part of the settlement, the company will update policies to include ADA training and compliance for important decision makers, to support a more inclusive work force.

April 30, 2020: The EEOC announced that Spencer Gifts, LLC. has agreed to pay a $90,000 settlement in an employment discrimination lawsuit alleging that an employee was refused a reasonable accommodation and subsequently terminated.  The employee had an underlying serious health condition that resulted in a need for knee surgery. Instead of allowing an accommodation for her to return to work, the company terminated the employee after their short-term disability benefits ended.  In addition to monetary relief, the company must provide annual ADA training to human resources employees to prevent disability discrimination, adopt a specific ADA policy, post anti-discrimination notices in North Carolina locations, and track and report accommodation requests to the EEOC.

April 23, 2020: The EEOC announced that American Security Insurance Company, a subsidiary of Assurant, Inc., has agreed to pay a $49,000 settlement in an employment discrimination lawsuit alleging that an employee was terminated due to their accommodation.  The employee was granted an accommodation to work from home due to their disability, however their supervisor disciplined them, unfairly judged their performance, and subsequently terminated them.  In addition to monetary relief, the company must provide to their employees the anti-discrimination policy, conduct training to key management and supervisors, demonstrate how they will handle future discrimination complaints at that location, and report compliance updates on these actions to the EEOC.

April 7, 2020: The EEOC announced that the former owner of a chain of Oklahoma convenience stores (Brown-Thompson General Partnership) has agreed to pay a $160,000 settlement in a disability discrimination lawsuit. The company fired employees with medical conditions who needed reasonable accommodations, including modified duty or an exception to the company's practice of terminating employees who missed more than three days of work and didn't qualify for other company leave. This violated the anti-discrimination provisions of the ADA, which prohibits employers from taking adverse employment actions against individuals because of qualifying medical conditions and refusing to provide reasonable accommodations to employees, which can include modified duty or work schedules. 

March 16, 2020: The EEOC announced that Washington Hospital Center Corporation, doing business as MedStar Washington Hospital Center, and MedStar Health, Inc. has agreed to pay a $150,000 settlement in a disability and retaliation lawsuit. MedStar had initially allowed the employee to work in a temporary modified duty assignment, but later on the company sent her home, and did not reassign her to any existing available job openings that she was qualified to perform with her restrictions. Subsequently, MedStar decided the employee could not be reassigned to any position, supposedly because she might need surgery in the future, and she was never permitted to return to work again. MedStar violated the ADA and failed to provide reasonable accommodations to enable an individual with a disability to perform her job or to consider reassignment as a reasonable accommodation. In addition to monetary relief, MedStar must maintain a policy prohibiting disability discrimination and retaliation. MedStar must train all employees about ADA requirements, and update the EEOC on accommodation requests or complaints regarding disability discrimination.
 

In the spotlight: COVID-19

Lincoln Financial is here to help you remain confident and prepared during this evolving situation. We're continuously monitoring the latest news, 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.

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 Lincoln Life Assurance Company of Boston. Dover, NH. 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.