Lincoln Absence Advisor

Compliance catch-up | Q3 2020

November 05, 2020 Lincoln Financial Group Season 1 Episode 28
Lincoln Absence Advisor
Compliance catch-up | Q3 2020
Show Notes Transcript

With the summer coming to a close, it’s time to catch up on all the latest compliance news as it relates to family and medical leave laws and regulations. In today’s episode, we’re joined by two of my Lincoln Financial Group colleagues. Trish Zuniga Compliance Consultant, and Annie Jantz, Senior Product Manager for State Disability and Paid Family Leave. During this episode we discuss:

  • The on-going federal response to COVID-19
  • PFML program updates from MA, CA, and CO
  • Insights into Company Paid Leave

Check out the FAQ: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”

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Chris Takesian:

Hello, again, listeners Chris Takesian here, marketing manager for leaving disability and Lincoln Financial Group with the summer coming to a close it's time to catch up on all the latest compliance news as it relates to family and medical leave laws and regulations. In today's episode, we're joined by two of my colleagues from Lincoln financial group, Trish Zuniga compliance consultant and A nnie Jantz senior product manager for state disability and paid family leave today. We'll be discussing compliance updates that h appened in Q3 of 2020. So good afternoon, Trish and Annie. It's great to be able to connect to this podcast episode. Thanks for having us. Yes, thank you. So kicking things off, as we think about Q3 a lot comes to mind, but I'd like to start with some of the federal releases and their response to COVID-19. Let's start with some of the updates the DOL made to the families first coronavirus response act or FFCRA. Can we discuss this update?

Trish Zuniga:

So in Q3, the question that was top of mind for parents who were also employees, was that with schools opening back up, or maybe they didn't, what they wanted to know is, were there any protections that provided them the leeway to take leave for their kids homeschooling needs? And so in August the DOL updated their FAQ document to provide guidance on eligibility for taking paid leave under the FFCRA related to the reopening of schools and whether, uh, depending on the formats and schedules of schools, you know, it's, it's not one size fits all. We've seen all kinds of combinations of how schools wanted to reopen the DOL, just they didn't make any updates to the law, but they did clarify t hat that under the law, these were the situations where the employees could take paid, leave under FFCRA.

Annie Jantz:

Yeah, I think that was a, a really great move in my opinion, because I think it's been confusing for people. Um, you know, there's so many different flavors, like Trish mentioned of what the schools are doing depending on where you live. Um, and then even in the same community, there might be different school districts doing different things. And so, um, I think it really clarified for parents. You know, if you have children who can't go to school, you know, you have coverage. If your school has the option for in-person, then maybe that leaves not available, but they might close down for a period of time and then the leave is available. So it really clarified that issue, which I think was, was really smart.

Chris Takesian:

Yeah. And you, you kind of hit the nail on the head as well. When families have kids of different ages, you know, they might go to different schools at that point. And then, you know, what, what do I do when my kids can't come to school, their school closed, but one kid's going to school. U m, so definitely a much needed clarification, u m, as You noted. Absolutely. Y eah. There were also updates from the EEOC as they relate to C OVID-19 c ould we discuss how, u m, them updating some of their Q and A document for technical assistance, u m, came through? Sure.

Trish Zuniga:

So to level set the E O C enforces all of these workplace anti-discrimination laws like the Americans with disabilities act. And they've stated before that these workplace anti-discrimination laws still continue to apply during the time of the COVID-19 pandemic, but how do these workplace protections and rules have any effect on employers strategies to navigate the pandemic? So it's been a very helpful resource to have these technical assistance FAQ's which answer common questions for employers, like what to do after a pandemic has been declared. So anything related to disability related inquiries and medical exams and confidentiality of medical information, reasonable accommodation, that technical assistance document has been very helpful for employers to address and, and translate these workplace rules into what they can and can't do. So at the start of the pandemic, there were questions around initial employer responses, like what are allowable increase in medical exams? So I think Annie can also speak to this. Like we see a lot of employer questions on what am I allowed to do, uh, around my employees, uh, requests for leave or requests for reasonable accommodation. And so now as situations shift and employers are dealing with a new work arrangements, like whether they're continuing telecommuting or they're recalling their employees back to their workplace, the document adds in either new questions or updated answers, like, does this mean that we have to continue extending telework as a reasonable accommodation? Is it something that automatically has to be granted? And so the answers to these questions and more are in the EEOC document. Again, it's been very helpful. I encourage all employers and employees to read it.

Annie Jantz:

Yeah, I agree. And I actually go to the site frequently and look at it if there's something that, um, just for my own understanding or, you know, we still have questions that come up from employers and internally from employees just asking about, you know, they may be getting something or hearing something from an employer. And what I think is really interesting, you know, they even call out on there. The information is likely to change. There's just so much that we don't know, and there's so much that's happening all the time right now. You know, you really have to watch all of these updates from public health authorities and having this resource where they're actually updating questions that they're getting and putting it to real live examples or, you know, things that are coming in, I think is really helpful on how to reopen, how to deal with employees requesting accommodations. And the biggest thing is that everything still applies. You know, I think everyone needs to remember these things didn't end because we have different working arrangements in a lot of cases.

Chris Takesian:

Yeah. Good to know. And like the last time we recorded one of these compliance updates episodes, I'll be sure to link to the download so somebody could download the PDF document or find the link to this exact FAQ. If they're looking for answers as well, switching over to the Southern district of New York. U m, we also had some updates there as it relates to the FFCRA. Can we discuss what's happening over in New York?

Trish Zuniga:

This was in two words, it was a wild ride first, you know, just to give the background, just to set the table, you have the FFCRA rules, you have a lawsuit that challenged these FFCRA rules. And the outcome of that lawsuit was to overturn some of these provisions. And the response of the DOL is to promulgate revisions and clarifications to the FFCRA rules, implementing the FFCRA and these revisions make it so that there's no confusion where it applies. Does it apply just to New York or those specific counties that are covered by that geographic jurisdiction, these final rule revisions become binding and applicable nationwide. Annie, do you want to talk about some of these?

Annie Jantz:

Yeah. I mean, it, it wasn't a lot, right. There was a lot going on. And I think a couple of things that came out of this and Trish, um, correct me, if there's anything different, but I think two of the items that were really important and actually resulted in some tweaking or changes to the FFCRA, one was the definition of he althcare p roviders. So under the FFCRA, you know, if there's a he althcare p rovider as the employer, that employee doesn't necessarily have access to take that same leave, right? Th ey, th e e mployer might say, no, as a he althcare p rovider, you don't have access to take this leave. We need you here, you know, working. But the definition was really broad. So it looked like it could include pretty much everybody who worked in the facility and it wasn't very clear. And so part of what happened with what came out of New York was saying, no, we need to revert back to, I think it was the actual definition under FMLA and it clarified that it really was someone who's actually treating patients or that frontline, provider, not somebody else who doesn't have a role in providing any care or treatment for a patient. I don't know, Trish, if you would describe that any differently.

Trish Zuniga:

I think you hit the nail on the head it's who provides actual healthcare services, right? So somebody who works at the cafeteria of the hospital, that's somebody who can miss a couple of days work. They wouldn't be covered under this definition.

Annie Jantz:

And I think that was really needed. I think that caused a lot of confusion when it first came out. Um, the other one that I think was important is in New York, they had the, you know, they were really arguing on one point that was, the employee had wo rk t o actually perform at the employer's office. And they were actually saying, even if you didn't have work to perform that you could still be, have access to this leave, which would seem to imply that the person wasn't actually even physically working at the time and then could take leave, which goes against really the whole point of having access to leave from work. And so they did clarify the FFCRA came back clarified, and they just st rengthened t hat to say, no, the person actually has to have physical work available for them to do in order to have access to this leave, which I think was an important distinction as well, that was made. So those were the two, I think that wer e at least in my opinion, two of the most important ones that came out of that.

Chris Takesian:

Yes, certainly. And I think it speaks to, you know, we're, we're all learning more about this and, and rules and regulations are going to be changing as we go through this process. And as we continue to deal with COVID-19. So I'm sure that that's not the last revision we may hear, but, um, certainly something that we keep top of mind as, as we continue to navigate our way to this new environment, um, that we find ourselves in. Switching gears to paid family and medical leave. We had a mix of updates in Q3 and starting in Massachusetts. Uh, they provided more guidance on their exemption renewals for fully insured and self-insured private plans, um, amongst other updates. So what's going on in Massachusetts.

Trish Zuniga:

Massachusetts I'd say is in the final stretch, uh, in Q3 and Q4 before the program goes, live 1/1/21. So at this point, the things that are going out are reminders of certain employer requirements that they should already have done, if not, we'll be doing in Q3 and Q4. And one of t he reminders that they sent out recently was e xemption r enewals for fully insured and self-insured private plans. And what Massachusetts did was basically to give everybody a h eads u p that, Hey, your exemptions have to be refiled. If you've already filed for an exemption for fully insured, the s ix o ptions are extended until December 31st, but you have to renew them starting November 30th. And for self-insured plans, the renewal exemption deadline was not extended. U h, they should have submitted it by September 30th, along with a copy of the documentary r equirements. What is important for employers to remember is that if they don't renew the exemption and that an exemption isn't in place on 1/1/21, what the DFMO is going to do is t o pursue the collection of retroactive contributions. If it's, self-insured, it's going to be using the surety bonds a nd submitted as well as any allowable collections actions. So it's just a very important thing for employers to remember. Otherwise they might swine a nasty little surprise for them come 1/1/21, and we don't want that. So it might be a little bit redundant, but we also provide these reminders through personal outreach or through our compliance updates as well.

Annie Jantz:

Which I think is important just considering how each state is so different on these laws that are coming out. So yeah, there's just, there's a lot there.

Chris Takesian:

Yeah, certainly. And at their own pace as well. I mean, I think that January is right around the corner. So a solid reminder, um, for our, uh, those companies in Massachusetts to be on the lookout and make sure they're prepared, uh, now, you know, flying over to the other coast, uh, California also saw some updates to their PFL, uh, benefits when governor Gavin Newsome signed additional legislation. Um, can you tell us more about, uh, what was signed in and what this means for people of California?

Trish Zuniga:

It was signed into law, was an amendment to CFRA or the California family rights act. And this was the unpaid leave law. And what this was for was to ensure that more Californians could use the paid family leave benefits because these are two separate programs. So just a little bit of background. U m, 2004 was when California implemented the nation's first PFL program, but there's no job protection provisions that are in trying directly in the PFL program. So they they've had to rely on separate laws. And this was primarily CFRA to ensure that they can take PFL benefits. And unfortunately these laws do not align. And Annie is very familiar with that. Like the what's the difference between t he unpaid leave law and the paid leave mandate. Right. So it's, it's very confusing to say the least one law wi ll h ave 20 or more employees. Uh t hat's the employer size requirement and the other law will say, you only need one employee and you're a covered employee. So what we see is that the laws do not align. So the employee may be eligible for wage replacement, but they don't have job protection. So are you, are you going take that time and your paid leave, but you won't have a job to come back to that's that's a really tough decision to make. And workers, advocacy groups have seen that. Not a lot of Californians were willing to make that sacrifice. So back to the amendment now, CFRA is extended to employees who work for an employer with five or more employees, and now more employees are provided job protection rights under the CFRA. This hopefully mitigates the employees worries that they won't be able to access their paid, leave benefits due to the size of their employer. And so this is going to be coming up soon and it's effective 1/1/2021.

Annie Jantz:

Yeah. And I guess I would say a couple of things that came out of CFRA as well. That again, I, I personally think that they're significant. I mean, other than moving that lives threshold down, I think that's pretty big so that more employees have access to this, but they also, you know, expanded the covered family members. So it's really almost anyone child, parent grandparent grandchild, sibling spouse, domestic partner. So they really broadened that quite a bit. And then they also removed the shared bonding entitlements. So parents worked for the same company. They no longer have to share that entitlement for bonding. They each have separate entitlements. And then there's also a qualifying leave reason due to the exigency related to, you know, covered active duty or called to active duty of an employee spouse or domestic partner. So I think those are a couple, that's not obviously everything that goes into, you know, this updated law, but I do think it's a significant, and again, in California, it can be confusing. They have a lot of different laws. And so they, a lot of them will work together like this with the paid leave. So it just provides that job protection.

Chris Takesian:

Yeah. I didn't realize that about the shared benefit. That seems like a really, that seems like a really nice benefit for, for new parents, um, in California, for sure. Yeah. Definitely. I agree. Giving them separate entitlement. Yeah, absolutely. Um, and lastly for Colorado, they also had a, an update where, um, and asked voters to consider the expansion of their paid family medical leave. Uh, and if passed, what would this mean for their leave landscape?

Trish Zuniga:

Just to let everybody know, uh, we're recording this podcast the day before the election to, I personally can't say, uh, whether PFML is, or isn't going to pass it and Colorado, especially since, um, if approved by the voters, this takes effect upon the proclamation of the governor no later than 30 days until the official canvas of the vote is completed. So, you know, we, we might have some time before we find out if this is going to move forward or not, but if it does, what this means is that assessment and collection of contributions will begin on 1/1/ 23 with payment of benefits commencing by 1/1/24. And we don't have the specifics of the law yet, and how ru lemaking i s going to proceed and how it's going to be operationalized. But just based on previous experience with States st anding u p their PFML programs, we're likely going to see that employers will be required to send out notices probably the year before contributions are going to be taken. So that would be in 2022, we're going to see employers have to start collecting those contributions from their employees and then remitting it to the state. And then we also will have employers deciding whether or not they go into the state plan or the voluntary plan, because this PFML program also allows employers to opt out of the state run program by having a private plan for their employees. And finally, I think employers will want to know how much this is going to cost them. And this is going to be a benefit that is born by both the employer and the employee, the premium amount hasn't been set yet, but we're probably looking at 0.9% of wages per employee, uh, probably in the first two years.

Chris Takesian:

Yeah. So just another thing to, uh, look out for, uh, as you said, we're recording the day before the elections, so I'm sure we'll have an update on, um, its status and our, in our next podcast or in our next compliance update, there might be some more news. So something new that we did this past month and something that I found really interesting was we created an insight section on a company paid leave and the EEOC where we kind of delved more into some of the thought leadership side of company paid leave. Um, can we speak to, you know, what we publish in that section?

Trish Zuniga:

Sure. And these company paid leaves are really a voluntary benefits that are provided by employers. That's something that they can determine on their own as long as they are in compliance with applicable laws and EEOC guidance. So as more States are enacting these new leaf programs, what employers want to do is to create company paid, leave that kind of wraps around these mandates. So they could provide employees with up to a hundred percent of their wage replacement and kind of just restore them to, uh, what they were earning prior to when they went out for leave. So it's important to remember that not everything goes when you're constructing your company paid leave program and they still have to comply with the laws that apply to these, uh, leave policies like anti-discrimination laws.

Annie Jantz:

Yeah. I would add to that, like the company paid leave, it's definitely something we've seen an increase, you know, from employers wanting to provide that support to their employees and filling a gap. If there is one, like Trish said, providing additional benefits above what maybe they're already receiving, coordinating with other programs. I t's, I think it is really important that the employer understand, I guess, from the start of that, like, what is the goal? Why do you want to provide this benefit? What's the intent. And then really having that outlined and address that and make sure that you're providing those equal benefits, that you don't have something that really you're tipping the scales one direction, you know, yo u're r eally cautious of that and then outlining your programs and making sure that there is training and that the employees understand what it is. And then also the managers and, you know, whoever is working with frontline employees or on your benefits department really understands how those programs run, u m, a nd how the entitlement runs and how it works with all of the other programs that the employee may have access to.

Chris Takesian:

Yeah, absolutely. And I hope that's something that I hope we do more of those insights and future, um, additions. I thought that was a really nice way to just kind of break out of, uh, I guess like I'm only reporting the news, but kind of give our spin on it as well. So yeah. It's good reminders. Yeah, absolutely. Um, well with that, you know, we, we wrapped up, uh, Q3 in, in less than 30 minutes who would have thought. So, um, I just want to thank you both again for, for taking the time to join me today. As always, it was a pleasure and I'm sure we'll have you on for future compliance update episodes.

Annie Jantz:

Yeah. Thank you for having us.

Trish Zuniga:

Thanks. Talk to you again soon.

Chris Takesian:

To everyone listening. Thank you for joining us. We will continue to cover topics that help employers and their employees through 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.