By: Kevin Brady, Esq.
The national shift to social distancing has effectively changed the way almost all of us go to work. For some, rather than physically report to an office, we simply wake up (hopefully followed by some coffee), and get the day going. The daily “Good Morning” from a coworker is sent over skype, the “Boomers” are now masterful “Zoomers”, and many talented folks juggle the full-time job of parenting while somehow managing their full-time work responsibilities each day. For some (very brave) others, such as nurses and grocery store employees, the way they report to work may not have necessarily changed, but the workplace they go to has taken on an entirely new light.
While it has been a significant shift, those who are able to work remotely are certainly lucky to have the opportunity to do so. Shelter-in-place orders, albeit an absolutely necessary measure to flatten the curve of COVID-19, have had a significant impact on how people work and has unfortunately resulted in a lack of “work” for many.
In an effort to protect employees during these difficult economic times, The Families First Coronavirus Response Act (FFCRA) was signed into law. The new law provides new paid leave entitlements intended to protect employees who are directly impacted by COVID-19. The Emergency Paid Sick Leave Act for example, requires employers to provide up to 80 hours of paid leave when employees go on leave due to certain qualifying circumstances, such as experiencing symptoms of COVID-19 or being advised by a healthcare provider to self-quarantine, among others. One particular circumstance, which has caused a rash of confusion between employers and employees alike, relates to shelter-in-place orders. Under the EPSLA, employees who are unable to work as a result of a federal, state, or local quarantine order are entitled to emergency paid sick leave.
As Congress expedited the drafting, and passing, of the FFCRA, some of its provisions were quite confusing and required further clarification to comprehend the intent behind the language. Luckily, the U.S. Department of Labor (DOL) has issued guidance to help clarify some of the confusion surrounding the EPSLA in particular. The guidance provides that individuals unable to work as a result of a shelter-in-place order are only entitled to leave if they are 1) actually unable to work or telework (meaning they cannot leave their homes to travel to the workplace and cannot telework because of the nature of the position or the required access to technology) and 2) that the employer actually has work for that individual to do (the business operations have continued and the employer has work to be done by the employee). While this application of the law may seem obvious, it is actually quite nuanced and difficult to determine whether an employee is actually eligible for paid leave, and possible even more difficult to determine what their rate of pay should be during said leave. For more information on these nuanced questions, see the DOL’s FAQ page.
As the COVID-19 situation continues to develop, we anticipate that further guidance on how these entitlements are meant to apply will be issued; the DOL has already updated the FAQ portion of their website several times since the FFCRA’s enactment. Given that the situation is fluid and that it is unclear what, if any, steps will be taken next to protect the economy and the workforce, we are interested to see how leave entitlements under the FFCRA will be applied in practice.
By: Philip Qualo, J.D.
The commencement of the required contributions for the Massachusetts Paid Family and Medical Leave (“PFML”) program was scheduled for July 1, 2019, but on June 11, 2019, Massachusetts Governor, Charlie Baker, along with members of the Commonwealth’s House and Senate, issued a joint statement agreeing to postpone the start of required contributions for the PFML program by three months. While the legislature will need to pass an emergency bill before the delay is official, this announcement is welcome news for employers scrambling to comply with what was supposed to be a July 1 contribution start date. Adversely, this announcement also brings unwelcome news to employers and their employees because in order to maintain the amount of pre-funding and not reduce total contributions paid to the PFML trust fund, the total contribution rate will be increased from .63% to .75%of wages and will be deducted on October 1, 2019, the new start date for required contributions.
By way of background, the PFML law, enacted in 2018, provides a right to up to 26 weeks of combined family and medical leave in each benefit year, and pay during such leave, to eligible employees, former employees, and self-employed individuals in Massachusetts. The earliest that such leave and pay benefits will be available is January 1, 2021. Leave under the PFML is job protected and will require continuation of health benefits for the duration of such leaves. Pay during this leave is administered by the state and funded through employer and employee contributions that employers must remit to the state on a quarterly basis. Employers with more than 25 covered employees were required to contribute 60% of the medical leave portion on behalf of their employees. Covered employees’ contribution rate was initially established at 0.63% (0.52% for medical leave and .11% for family leave) of the covered individual’s gross wages or other payments to all covered individuals.
The Department of Family and Medical Leave (“DFML”) has yet to provide updated guidance on whether there will be a change in the medical and family leave allocation of the increased .75% contribution rate or any change in the required employer contribution. However, the DFML has confirmed that June 30th deadline for covered employers to comply with workplace poster and employee notification requirements has been extended to September 30, 2019. In the meantime, we recommend employers with employees based in Massachusetts continue to monitor the DFML website for updated guidance. To learn more about self-funded health plans click here.
On March 14, 2019, the U.S. Department of Labor (“DOL”) released an Opinion Letter advising that an employer may not delay designating a leave of absence, paid or unpaid, as a leave under the Family and Medical Leave Act ("FMLA”) (if the leave qualifies as an FMLA leave). In addition, this Opinion Letter details that an employer may not permit employees to extend FMLA leave beyond the 12-weeks (or 26 weeks for military caregiver leave) granted under the FMLA.
Under the FMLA, employees of covered employers are entitled to up to 12 weeks of unpaid leave with job protection benefits in the event of certain family and medical situations. The FMLA also permits eligible employees to take up to 26 weeks of leave to care for a covered service member with a serious illness or injury. It is the employer’s responsibility under the FMLA to designate leave as qualifying leave for FMLA purposes.
Prior to the release of the Opinion, many employers permitted employees to delay FMLA designation in specific situations. For example, in order to allow for a full 12-week FMLA leave for a new mother and her newborn to bond, employers would usually allow expectant mothers who needed to commence leave prior to the delivery date the ability to use accrued Personal Time Off (“PTO”) or sick pay until the delivery date. For example, the FMLA designation would begin onthe date of birth instead of the date the mother went on leave prior to delivery. Many employers were under the impression FMLA designation was a matter of mutual agreement between an employer and employee as opposed to a matter of law.
The Opinion Letter specifically provides that employers are prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. The Opinion Letter also notes that neither the employee nor employer can decline FMLA protection for FMLA qualifying leave once the employee has communicated a need to take leave for an FMLA-qualifying reason. Thus, once the employer determines that the leave request is for a FMLA-qualifying leave, the leave is FMLA-protected and is counted towards the employee’s 12-week (or 26-week) FMLA leave entitlement. The Opinion Letter advises that once the employer determines the leave is FMLA-qualifying leave, the employer must provide notice of the determination to the employee within five business days. The employer does not have the option to delay this determination once the employer has the information to make such a determination.
The Opinion letter further noted that an employer is prohibited from designating more than 12 weeks of leave (26 weeks in the case of military caregiver leave) as FMLA leave. The DOL notes that an employer can still honor any family and medical leave program it offers outside of the FMLA requirements, even if the offered leave program provides greater leave benefits than that offered under the FMLA. However, any employer-provided leave is separate from the FMLA leave and cannot expand an employee’s FMLA-designated leave beyond 12 (or 26) weeks. If the employer wishes to be generous and extend leave for an employee after FMLA leave exhausts, it should specify in its plan document and employee handbook that any employer-provided leave will not run concurrently with FMLA and therefore once FMLA exhausts, an employer-provided leave can be offered thereafter. An employer should be careful when it comes to continuation of coverage during an employer-provided leave, and if coverage is offered during such a leave, it should be outlined in the plan document.
Employers subject to the FMLA should review their practices, policies, and employee communications regarding FMLA-leave designation and to ensure they are consistent with the guidance provided by the DOL in the Opinion Letter. Specifically, employers should be providing notice of determination within five days of making a FMLA-leave designation, and should not designate more than 12 (or 26) weeks as FMLA-qualifying leave, even if the employee requests to have more than 12 (or 26) weeks designated as FMLA leave or to have an FMLA-qualifying leave treated as non-FMLA leave. Compliance with FMLA and the Opinion Letter is especially important employers who sponsor self-funded health plans as incorrectly designating or extending FMLA for employees could run afoul of the plan document’s continuation of coverage provisions and create issues with stop-loss reimbursement.
By: Erin Hussey, Esq.
The Complications Surrounding Intermittent FMLA Leave
The Family Medical Leave Act (“FMLA”) is a federal law requiring certain employers (employers who employ 50 or more employees, for at least 20 workweeks in the current or preceding calendar year, in a 75 mile radius), to provide eligible employees an unpaid, job-protected leave of absence that continues the employee’s health benefits. It is offered for family and medical reasons and an eligible employee may take up to 12 workweeks of leave in a 12 month period. This timeline appears straightforward, but complications arise when employees take this leave in separate blocks of time, even an hour at a time (when it is medically necessary and for the same serious health condition). This is called intermittent FMLA leave.
Employers should ensure they are administering intermittent FMLA leave properly given the complications it can present:
1. Recordkeeping: Complications can occur with tracking intermittent FMLA leave because an employee’s schedule could vary from week to week and the employer may have to measure FMLA in hourly increments or less. When these intermittent FMLA leaves occur, an employer must be diligent in tracking the leave to avoid liability of non-compliance with FMLA. For example, in Tillman v. Ohio Bell Tel. Co., 545 F. App'x 340 (6th Cir. 2013), an employee was out on intermittent FMLA leave and the employee did not provide information when asked by the employer for recertification of that leave. The employer subsequently terminated the employee. Since the employer kept thorough records of this, the court upheld the employee’s termination and the employer won the lawsuit.
2. Communication: It is important for an employer to maintain communication with the employee who is out on intermittent FMLA leave. For example, in Walpool v. Frymaster, L.L.C., No. CV 17-0558, 2017 WL 5505396 (W.D. La. Nov. 16, 2017), the employee was terminated and he brought suit claiming interference with his intermittent FMLA leave and that his discharge was in retaliation of his right to take FMLA leave. The employer claimed that the employee did not follow normal policies and procedures for giving notice of an absence. However, the employee won the case. The bottom line here is that if the employer believes the employee has provided inadequate notice, the employer should maintain communication with the employee before taking any immediate adverse action.
3. Paid v. Unpaid: In a recent Opinion Letter dated April 12, 2018, the Department of Labor’s Wage and Hour Division addressed a situation where an employee requested 15 minute breaks every hour under FMLA. This creates complications for employers because FMLA is unpaid and determining which 15 minute breaks are unpaid under FMLA, and which ones are paid, can be difficult for employers to track. This issue is discussed in the Opinion Letter.
The takeaway here is that employers should determine what their best practices will be for administering intermittent FMLA properly. Once the employer determines what their best practices are, the employer should implement them and administer their employees’ intermittent FMLA leaves accordingly.
By: Kelly Dempsey, Esq.
The last few weeks have been difficult for several states and U.S. territories. Hurricanes Harvey and Irma have caused significant flooding and damage. In addition to the loss of power, many people are homeless and corporations/employers are without a place to conduct business. Depending on the level of damage, it may take a long time for different areas of the country to rebound and rebuild. Chances are that employee benefits, specifically the health plan, are the last thing on employers’ and employees’ minds, but there are some very important considerations. So what do Hurricanes Harvey and Irma mean for employers, employer sponsored health plans, TPAs, and employees?
Self-funded health plans are required to comply with various federal laws that carry different responsibilities including, but not limited to, ERISA, COBRA, FMLA, HIPAA, and the ACA. These federal laws come with a wide array of notice requirements and time frames for processing claims and appeals and other requests for documents or information. As such, the Department of Labor and the Department of Health and Human Services (collectively referred to as “the Departments”) have issued press releases and bulletins that provide general guidance and limit exposure to penalties. These press releases were specifically issued after Hurricane Harvey; however, it’s likely that additional releases will be issued to address Hurricane Irma. Below are links to important press releases; however, the following is one of the key summary statements:
The guiding principle for plans must be to act reasonably, prudently and in the interest of the workers and their families who rely on their health plans for their physical and economic well-being. Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits in such cases and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time-frames.
Health plans and their supporting vendors will likely need to review situations on a case by case basis to determine what is reasonable for each plan and employer.
If you’ve listened to any recent Phia Group webinars, presentations or podcasts, or read our blog or published articles, you already know we’ve been focusing on leaves of absence and gaps between handbooks and plan documents. You’re probably thinking, “Yes, I know, so what’s your point?” With all the damage to homes and job sites, it is possible employees may seek leaves of absence and/or employees will ask questions about existing leaves of absence and how the leave is impacted if an employer ceases operations. While FMLA is generally not available for employees to use as time off to attend to personal matters such as cleaning up debris, flood damage, home repair, etc., FMLA may come into play if an employee or their family member suffers a serious health condition as a result of the hurricane. For those employees that were already out on FMLA, if an employer ceases operations, the time operations are stopped would not count towards FMLA leave. As always, FMLA and other leave situations should also be reviewed on a case by case basis.
In summary, the Departments have issued guidance specifically related to Hurricane Harvey; however, we anticipate additional guidance associated with Irma as well. The bottom line is that employers, health plans, and applicable vendors will need to act reasonably when administering the health plans (i.e., processing claims and appeals, issuing notices such as COBRA notices, etc.) and take into consideration the locations and entities that were impacted and allow grace periods or other relief as applicable.
Important Press Releases and Relevant Guidance:
- U.S. Department of Labor Issues Compliance Guidance For Employee Benefit Plans Impacted by Hurricane Harvey
- Secretary Acosta Joins Vice President Pence in Texas
- FAQs for Participants and Beneficiaries Following Hurricane Harvey
- Hurricane Harvey & HIPAA Bulletin: Limited Waiver of HIPAA Sanctions and Penalties During a Declared Emergency