Lincoln Absence Advisor

Compliance catch-up: August 2020

August 13, 2020 Lincoln Financial Group Season 1 Episode 21
Lincoln Absence Advisor
Compliance catch-up: August 2020
Show Notes Transcript

With everything going on it can be difficult to keep track of the latest compliance news as it relates to family and medical leave laws and regulations. Luckily, we’ve got you covered. In this episode, we hear from two Lincoln Financial Group employees Kristin Hostetter, Senior Product Managers for State Disability and Paid Family Leave and Trish Zuniga Compliance Consultant as they walk us through the latest compliance updates of 2020. During this conversation we discuss:

  • The new PFL program launch in DC
  • Changes to the NJ TDI program
  • The new paid sick leave program in Colorado 
  • News from the EEOC

Also, we invite you to check out the published version of the compliance update that is referenced during the episode. It can be downloaded here

AM-LACCU-AUD001   8/23  Z01   LCN-5843729-072823
© 2023 Lincoln National Corporation. All rights reserved.

Chris Takesian:

Hello again, listeners Chris Takesian here, marketing manager for leaving disability at Lincoln Financial Group. Given our current environment, it can be difficult to keep track of the latest compliance news as it relates to family and medical leave laws and regulations. Luckily, we've got you covered. Each month, Lincoln Financial Group publishes compliance updates to help keep you informed. We thought it may be a good idea to bring these monthly updates to a podcast episode dedicated to what took place over the past month and beyond. Over the past quarter, we've seen a PFL program launch in DC, a new paid sick leave for employees in Colorado. TDI changes for New Jersey in some in the news topics from the EEOC. Joining me today to talk about the latest compliance updates are two of my colleagues from Lincoln Financial Group, Trish Zuniga compliance consultant, and Kristin Hostetter, senior product manager for state disability and paid family leave. So good afternoon to you both. It's so great to be able to connect to this podcast episode.

Trish Zuniga:

Thanks. Great to be here.

Kristin Hostetter:

Yeah, Good morning.

Chris Takesian:

So kicking things off Q2 was a very busy time in the world of family and medical leave and starting with DC where they had a new PFL program launch. Can you talk a little bit about this program launch?

Trish Zuniga:

Sure. And before I do that, I think I'll comment a little bit on what you just said. Um, Kristin, we've been doing this for a few years now and I feel like Q2 has always a crazy time. Um, there's always new programs coming up or laws set their effective date on July 1st. And so that's when we always need to be scrambling to get these programs up and running. So going back to DC, we're now over a month after the office of paid family, leave, launched the paid family leave benefits program. And what that does is provide up to eight weeks to bond with a new child, six weeks to care for a family member with a serious health condition and two weeks to care for an employee's own serious health condition with an aggregate of eight weeks of PFL benefits that an employee can receive in a year. And in order to receive benefits from the PFL program, the bar is set pretty low. You must have worked for an employer in DC and that's it, no employer size requirement. And that's because during lawmaking DC conducted this study that indicated that not all workers qualified for job protected leave under DC FMLA, or FMLA itself. And that is because of the employer size and the hours worked and the workers tenure in the previous year. So even though DC FMLA had a lower qualifying standards than the FMLA, approximately 30% of the districts, private industry workers, or about 147,000 people are still not protected under the DC FMLA. And that's why they went ahead and passed this law that was very generous and gave employees in DC, this paid family leave benefit.

Chris Takesian:

Yeah, absolutely. So how would someone go about accessing these benefits?

Trish Zuniga:

So the OPL started taking claim applications on July 1st through their benefits portal, and that's where they want to drive most applications is through the online applications. But they did make provisions for claimants who are unable to file online and that's to contact the OPFL and download these paper forms. And that's how employees can submit their applications to the OPFL. Now, according to the regulations, um, employees should receive a notification of approval or denial within 10 business days after filing and then after approval, the first benefit payment should be made within 10 business days as well. So it's on a biweekly payments schedule.

Kristin Hostetter:

And Trish employees will always go to the district rather than to a carrier like Lincoln since this particular program is, is only run by the district of Columbia and not, there's not a private option, right?

Trish Zuniga:

Yep. That's correct. So everything is just through the district.

Chris Takesian:

And I know you mentioned earlier, the existing DC FMLA program, will there be any impact as a result of this new program? Will they collide with each other or?

Trish Zuniga:

So the interesting thing about a DC's PFL program is that it's not going to sunset the family and medical leave act, which is the unpaid leave program. So the DC PFL provides for the concurrency of DC PFL with DC FMLA, and federal FMLA. When we say concurrency, it means that these leaves have to run at the same time. You can't stack it or take one right after the other. And you might think so what's the difference between DC FMLA and DC PFL then? And I think the major point that employees and employers have to remember is that the job protection component is there for DC FMLA, but not for PFL. So receiving paid family leave benefits does not mean that your job is automatically protected while you are out on leave. And it's the federal FMLA or the DC FMLA, which provides employees with those job protection provisions and protect employees from employment actions while they're taking leave from work for a qualifying reason.

Chris Takesian:

So somebody might be asking, you know, how do coordination of benefits work with this new program? I'm sure that that's a question that's going to be coming up.

Trish Zuniga:

Oh yeah, absolutely. That's what we get asked about all the time. So Kristin mentioned that there are no private plans allowed for a DC PFL administration, and this is run only through the district only through their department of services. And what that means is that employers with their own paid leave benefits, including short term disability plans are required to participate in the program, but employers can't restrict their employees right to access benefits under the PFL program. But because these employer provided benefits are, you know, like, like it says in the name itself are provided by the employers. The employers have the right to modify their plans, including requiring that employees take their leave concurrently with DC PFL.

Chris Takesian:

And for more information or resources, where can we point our listeners to about this program?

Trish Zuniga:

So we encourage employers to check the DC PFL website for their resources. They've got a great employer toolkit and a 55 page employee handbook that explains a lot of the nitty gritty details of the DC PFL program. The website is DCpaidfamilyleave.dc.gov. And I just want to point out that we have a quick reference guide in the latest absence advisory issue.

Chris Takesian:

That's great. Definitely be checking that out when we publish this episode, we'll be sure to provide a link to that issue. Switching gears to New Jersey and their TDI program in June, they made some updates. Um, can we talk a little bit about, more about those updates?

Kristin Hostetter:

Yeah, I'll take that one. So I think there's a lot that's happened in New Jersey over the last year and there have been a lot of changes to the TDI benefits. So the changes that were effective in June were a result of the law that was updated last year. And it really, um, allows employees to collect partial disability benefits if they return to work on a reduced schedule. So for somebody that's been out for at least seven consecutive days, receiving TDI benefits, if they are able to return to work and their employer consents to them returning, they can get partial benefits, which has not been in place in the past. So that was, that was the change that went into effect in June for New Jersey TDI.

Trish Zuniga:

Kristin, I found it interesting that you said that this wasn't in place for New Jersey before, but it seems like they look to Rhode Island, which did have this in place since 2007. And one of the purposes of the bill is to provide cost savings to the TDI fund. And it seems like New Jersey looked to the Rhode Island model, which did just that. So they're hoping that the same success could be replicated in New Jersey as well.

Kristin Hostetter:

Well, that's really interesting.

Chris Takesian:

Yeah, that is interesting. Somebody might be thinking, can you explain how these benefits may coincide with the ADA and the ADAAA?

Kristin Hostetter:

Yes. And that's such a good question. I know we talk a lot about coordination of benefits and a lot of times that's, um, unpaid and paid leave programs. And in this case it really ties into the ADA, especially given that under the New Jersey TDI law, an employer has to consent to that partial return to work. And one of the things that would just encourage employers to keep in mind is that they, you know, if they have 15 or more employees, they're also subject to ADA, which requires them actually to consider a request for accommodation, which a lot of times that that accommodation could be a partial return. So again, the key is, is really for employers to be mindful of all of the programs that come into play. So, you know, again, while the TDI allows the employer to consent, they do have a requirement under another program where law, that means they have to at least acknowledge that request and look at it to see if they can accommodate that person returning under ADA. So it's, you know, as with everything it's, it's really important to just keep in mind all of the different laws and programs that may come into play for any individual case or claim.

Chris Takesian:

Absolutely. And in July there was actually some, some more changes as well in New Jersey. Can you touch on those?

Kristin Hostetter:

Yes. And this is, um, this is something we had been working on for some time, again, as part of some of the updates that New Jersey made last year. One of those was a significant increase to the percentage of benefits available. So as of July 1st, the benefit increased from 66 and two thirds percent to 85%. So what that means is that any claim that's incurred seven one or later, um, an employee is, is eligible to be paid at that higher rate. And that means that the weekly maximum benefit increases from$667 to$881. So a nice bump in benefits for employees that, that are out on TDI claims in New Jersey.

Chris Takesian:

Increasing benefits is always good. So glad to see that moving over to the other side of the country in July, we saw Colorado introduce the healthy family and workplaces act into law. Can you talk about what this bill did for folks in Colorado?

Kristin Hostetter:

So I'm in Colorado and our governor signed, uh, governor polar assigned to this law into act last month in July, there are really two main components to the healthy families and workplaces act. And the first is that it mandates employers to provide paid sick leave related to COVID-19. So just, you know, a way to address the need that people may have, um, due to the coronavirus, the reasons are the same as those found in the emergency paid sick leave act of the Family's First Coronavirus Response Act, which I think most of you probably know is the FCRA. Um, that part of the act expires at the end of this year. And then the second component to the law that governor pull assigned mandates employers, um, to provide employees with paid sick leave. And it's accrued at one hour of paid sick leave for every 30 hours worked and that's up to a maximum of 48 hours. And that goes into effect next year.

Trish Zuniga:

And that's sticks around. Right, Right. And like the first part.

Chris Takesian:

And if somebody wants more information about this law, where, where can they find that information?

Kristin Hostetter:

I would direct people back to, um, our Q2, our second quarter Absence Advisor and the compliance section in there. We communicate about it in there. And, um, I'm sure that we'll, we'll have more information coming out later too.

Chris Takesian:

Fantastic. And again, I will make sure that we link that within the podcast description for folks who may be unfamiliar with our compliance updates and this specifically Q2 and Review. So is there anything else that we should mention about this law when talking about this?

Kristin Hostetter:

Yeah, I think, um, just a couple of things. So the Colorado department of labor and employment, um, we'll be making posters and notices available about the paid sick leave policy. And then we are expecting the state to issue regulations. So again, there, there's probably more information forthcoming. So, you know, when, and if that becomes available, we will certainly keep you informed through all of our different means. I'm likely the absence advisor compliance update and perhaps again on this podcast.

Chris Takesian:

Absolutely. Yeah. I think we're going to make this say a monthly installment, so be sure to be on the listen for, for those and reading. Switching over to one of our popular areas within our, our updates, we call it a section called in the news. So over the past few months, we've, we've seen some stories, um, involving the equal employment opportunity commission or the EEOC. Can we talk about some of the cases that we've been reporting on why these are so important to keep in mind when discussing compliance updates?

Trish Zuniga:

Sure. What we want to emphasize is that employment claims and lawsuits are very costly and time consuming for companies. So you see in those news updates that provide collations of the ADA and sometimes a violations of the FMLA as well, which are handled not by the EOC, but by through the department of labor, we see huge amounts awarded to employees. So they can range up to an employee's back wages in the low four figure amounts. But we've also seen for FMLA, I've seen a 1.3 million damages award for violations of the ADA. I've seen 75,000, 200,000, or it could reach up to a$2.5 million settlement just to settle a systemic disability discrimination lawsuit. And we include these compliance updates because we want to show that there are trends to these, uh, EEOC settlement. And one of the trends that they've identified in these violations of ADA is the prevalence of, uh, employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. So we see stories about employers who allow their employees to go on, leave for FMLA for 12 weeks, and then immediately after the required 12 weeks under the FMLA, even though these are employees with disabilities that need additional unpaid leave, that may be a reasonable accommodation that could be granted under the ADA. These employees are just fired and that's because of their inflexible leave policies. And so what we want to show is that EEOC regulations require employers to undergo the reasonable accommodation process, and that could potentially include leave. And that's unpaid leave that may exceed a company's normal leave policy. If it's a reasonable accommodation that doesn't result in an undue hardship to an employer, then that's something that they need to be thinking about. Otherwise they might be the subject of our next compliance update.

Chris Takesian:

So it's just important that companies are making sure they're keeping up with all the regulations, as well as, you know, consistently checking the ADA and ADAAA to make sure they're in compliance.

Trish Zuniga:

Absolutely.

Chris Takesian:

So this is obviously been a information packed episode, but is there anything upcoming on the horizon, um, in regards to compliance updates that our listeners should be on the lookout for within the next couple of months? Maybe?

Kristin Hostetter:

Yeah, I'll jump in. I think, um, we talked about Connecticut on one of our recent podcasts and there is more information coming from the state related to private plans and how to apply for private plans. Um, so I think we'll probably have more to share on that front in the coming weeks.

Trish Zuniga:

So the state of Oregon also passed the paid family and medical leave law, and they're going to get started on rulemaking and stakeholder meetings as early as this year on a phased approach, similar to what Washington has done in the past. So this is something that we're also keeping our eye on and looking to see how that would impact Lincoln's leave products.

Chris Takesian:

Great. And, and I know an upcoming episode that our listeners I'm sure will be interested to hear is in regards to the, the recent compliance update in Massachusetts, we're going to take a deeper dive into that in a subsequent episode. So be on the lookout for that as well. So with that, I just want to thank you both so much for joining me. I know you're all very busy with the compliance and regulation updates that are consistently happening on a week, for week basis. So I really appreciate you both taking the time.

Kristin Hostetter:

Yeah. Thanks so much, Chris.

Trish Zuniga:

Yea, thanks for having us,

Chris Takesian:

To everyone listening. Thank you for joining us. We will continue to cover topics that help employers and their employees to this new environment. So be sure to subscribe to Lincoln Absence Advisor on Apple, Spotify, or wherever you get your podcasts.

Disclosures:

The information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource professional. Lincoln Financial Group is the marketing name for Lincoln national corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.