Watch your language: Getting paid leave policy language right

When your company is building a paid leave policy, using the right policy language is crucial. In this Lincoln Absence Advisor podcast, we explore this topic with product manager Annie Jantz and absence consultant MacKenzie Carver. We take a detailed look at policy language – what to look for, where to find helpful input, and why it matters. This thoughtful conversation covers topics such as exclusions and inclusions, eligibility, creating clear definitions, coordination with state and federal policies, and resources that are available to help you build a policy that fulfills its intended purpose. Annie and MacKenzie will also discuss what they see as the #1 language miss that occurs when building or reviewing a paid leave policy.

Also, be sure to check out our latest webinar, Shaping the right paid leave offering, which offers more details about the importance and impact of paid leave and how to best put your company’s policy together.

© 2021 Lincoln National Corporation. All rights reserved.  LCN-3852647-100521

Transcript

Karen Batson: 0:01

Hi everyone, this is Karen Batson marketing manager at Lincoln Financial Group. In today's Lincoln absence advisor episode, we jump off of our latest webinar on paid leave policies. And in the webinar we cover a lot of different aspects in regards to building that paid leave policy. But one area we spend a little bit of time on is the language that you use in that policy. And so in today's episode, we wanted to dive a little bit deeper. We'll go into various aspects that we covered in the webinar, but wanted to talk about a little bit more, and answer some questions that we received. I hope you enjoy today's listen. Hi, everyone. Thanks for joining the podcast today.

Mackenzie Carver: 0:43

Hello!

Annie Jantz: 0:44

Hi. Glad to be here.

Karen Batson: 0:46

So we just completed our third webinar of 2021. And we talked a lot about paid leave policies and we talked about different aspects of it, how to build it, things to look for. But one area we talked about that I thought was really interesting was policy language. And we got a few questions around that and I felt like we could dive a little bit deeper. And that's why I'm hoping we can have this podcast convo today. For our listeners we'll probably repeat a few things, dive a little deeper in a few things. And then at the end, we'll answer some of the questions that we received during the webinar. But let's start with the basics. Would you guys mind introducing yourselves and how you're connected to paid leave policy language?

Annie Jantz: 1:28

Sure. So I'm Annie Jantz and I am the product manager, I work with our FMLA administration also our company paid leave policies as well as accommodation services. So I'm just tied into this because basically the products that I'm you know, watching over overseeing, managing and a lot of questions come up on paid leave policies, you know, we see a lot of activity on with employers that are looking to add more programs or have questions about what they should add. So that's really where I come into this.

Mackenzie Carver: 2:02

Perfect. Thanks, Annie. Hi, everyone. My name is Mackenzie Carver, I am been a part of the absence consultant role with Lincoln. So I've worked with many different customers on their paid leave policy administration, setting up new programs with Lincoln, and also discussing Lincoln's process with all of our new customers. So definitely excited to answer some questions today.

Karen Batson: 2:27

And you're probably most closely tied to policy language and specific questions received. So Mackenzie is gonna give us some great insights.

Annie Jantz: 2:34

That's right.

Karen Batson: 2:34

Now, generally, what do we mean when we say we need to have the right policy language in these policies?

Mackenzie Carver: 2:43

It's good question. When we talk about having the right language, I think the main thing that I'm very concerned about for our customers, is making sure that they've really thought through all of the specific provisions that need to be considered and spelled out in their policy to make sure that there aren't, you know, major holes in the policy, where, you know, there's, it's not clear for their employees to understand exactly what they're eligible for. And also making sure that simply from an administration perspective, everything's clear and easy for them to administer. Annie, I don't know if there's anything you want to add to that.

Annie Jantz: 3:19

So I completely agree with you. I think that's probably the most important thing, right? Is that documentation and that it's really clear, because if it's not, then you can have just a lot of confusion and misinterpretation or different interpretations from the employer and the employee. And that can even lead to in consistencies in that administration, which, again, can create problems for the employer and employee. So yeah, I completely agree with you. And if it isn't specifically called out as excluding certain items, then it might automatically include those items. So, if you don't specifically state that the benefits cannot stack or they have to run concurrent, then an individual could potentially get 26 weeks out of work when you only met for them that get 12. So, it's really important to sort of consider all of the different implications there.

Karen Batson: 4:13

And this might be a little bit in the weeds, but I'm relating it back to my my work, right dealing with copy a lot and the language you use, and sometimes I'll think I'm conveying the right thing. But other team members will come in say, Well, no, did you mean this? Do we run into that where people think they're saying what they have in their head in the policy, but you really have to have more dialogue conversations, they're all nodding their heads, right?

Mackenzie Carver: 4:35

I definitely agree. And the thing that I run into is, is you're trying to specify, let's say, who's eligible for the benefit, like you're specifying and you're using a term like birth mother, and you don't realize that there could be some mothers who are not the one giving birth to the child, they could have a surrogate and so when you specify something like birth mother, you are excluding individuals who did not give birth to the child lets say, and so that's something that, you know, you might not be intending to exclude those individuals. But with the wording that you use, you're not being as inclusive as possible. I think that's something we really went through with our webinar was some of the other language recommendations to think about around those specific items like who you're including and what language you're using for those individuals.

Annie Jantz: 5:21

I think that you know, it's a good idea to have somebody look at the policy to so it's no different than really Karen, just like you said, like, you know, your writing copy, the same with policy language, even for an insurance company or whoever is just you have to have somebody else read it and tell you what they take away from that. And so I think that's helpful, you know, for an employer who's putting together their policy, whoever they're working with, maybe it's their own internal legal counsel, but maybe you know, you're adding a couple of individuals to say, take a look at this and tell me, what do you think I'm saying, and then that will help you kind of figure out if it really is coming across the way you want it to?

Mackenzie Carver: 5:59

Yeah, it's always a good idea to include the individuals who are administering your current plans as well. So if you have someone on your internal team, who's tracking the leaves, they would be able to potentially point out some items to you about how different leaves might interact. Or you could go to a carrier, and they can also discuss with you, what exactly is this really going to look like from a process perspective? Once you're trying to implement that?

Karen Batson: 6:25

Has anyone ever had, like maybe a couple employees on their working team that reviews the policy to help from an employee? They're the ones that are going to read it and translate it for themselves? Would they ever be part of a working team to help set up the right paid leave language in that policy?

Annie Jantz: 6:42

I love that idea. Yeah, I think it's a great idea. I'm sure somebody has done it. I don't know, you know, that, I think would be a good survey question. But I think it's a great idea.

Karen Batson: 6:51

Now has this grown in importance over the years, I think we've had a lot of different conversations about group benefits definitely about leave with just the changing landscape. And Mackenzie, this might be, you know, a good question for you. Have you seen more focus on that language in a policy.

Mackenzie Carver: 7:09

When I originally started in the consulting role, around 2018, I was really focused in the majority on unpaid leave tracking, like company medical leaves for individuals who didn't have FMLA. But over the last year, I've definitely seen an influx of paid leave programs, especially with the number of state leaves that are rolling out, I think a lot of my customers have been really wanting to supplement state leave programs and try to make sure that all of their employees are receiving a similar benefit to those in specific states. But I would definitely say it's, it's become a bigger thing. And I've seen more and more of my customers implementing it, I would say almost every implementation I've worked on this year has had a paid leave program.

Annie Jantz: 7:56

Yeah, I mean, that's not surprising. I think, definitely, like you mentioned with the state leave programs, I think this has become a bigger issue more awareness. And really, employees are just asking for more, I mean, that's kind of what it comes down to, right. Like they're looking for a way to work, but also take care of their family take care of themselves and have that job protection, so they don't feel like they can't take time away. And so really, they're they're kind of demanding that from their employer, and employers are, then they're set up to answer that and find a way to provide a benefit. In the States, I think that you know, some of what that's done as we have more and more states that are rolling out and it's just, it's kind of, like a big snowball on a hill rolling down, right? Like it's, we had just a couple for several years. And now all of a sudden, there's so many every year there's a new one. And what it's doing, especially for larger employers is you have some employees that have access to a paid leave, and others that don't, that are still in a state that maybe doesn't have one out there yet. So you know, it does kind of force that response a little bit to make sure you have something for your people.

Karen Batson: 8:59

Annie do you find when we're reviewing the new state programs that are coming out and like you know, for instance, the definition of family has been a real focus and in regards to their own language that they're putting in the policy is there a stronger focus on what they're saying because there's so much focus now in all of these definitions happening?

Annie Jantz: 9:19

I think there there is to some extent, you know, it just depends I think on where you are and how much exposure they have to some of these but it is definitely raising the awareness that and just in general I think a lot of things that today you know, people are more aware of, you know, making sure you're including everyone and that you're not using language that even if you don't mean to is excluding, you know, a certain party from receiving a benefit, but it definitely opens that up. And so as like the definition of family and especially looking at like Connecticut, right, where it's the most expansive and you don't really have to have a family member defined necessarily, you know, employers, then are looking at how do we want to handle that? Do we want to allow leave for somebody that you consider family, but there's not that title of a relationship that you can assign to it? So yeah, I definitely think it's bringing more awareness. And I think it's, I think that will gain momentum too.

Karen Batson: 10:15

For those listening. What Annie is referencing is Connecticut's definition of an affinity relationship, which they've put under their definition of family member. This is essentially a relationship that's like family, but maybe not like blood related. The best example I've heard to kind of bring this relationship to life is if you're in foster care and have a foster sibling, often the foster parent is covered, but not always the foster sibling and, and this kind of relationship covers those types of situations.

Mackenzie Carver: 10:44

Yeah, and I would say, from my experience, I've seen more of my customers choose to use the FMLA plan provisions on you know, the definitions of relationships in the majority, because they want to make sure that the individual can't take both the paid family leave time, and then still have 12 weeks of time available under FMLA. So if they want those benefits to run concurrent, then if they have the relationship be the same under the paid leave program, then they can really help to limit the total amount of time that someone could potentially take out. But I also have plenty of customers that include other relationships, like grandparents or even domestic partner leaves. That's something that has definitely been around for a while is considering domestic partners if they're not included under FMLA, but including them under other plans.

Karen Batson: 11:34

Now, where do companies struggle the most when it comes to policy language? And do we have some examples?

Mackenzie Carver: 11:41

I think the biggest thing that I've seen for most of my groups is just not knowing where to start, I would say one of the biggest resources I recommend is the DMEC website actually has webinars similar to ours, but they they have a lot of options there for policy language. So that's a really great resource to start with. And then I'd also recommend, go to your broker, your broker has a variety of different plan provisions, considerations, things that they've seen across their book of business. So they would certainly be able to help assist with those items. And then, if you are planning on outsourcing, I definitely recommend you know, discussing it with someone like Lincoln so that we're able to help you determine what the process needs to look like. And also, you know what our best practices are, we're able to help provide that information to you for consideration and looking at outsourcing to us.

Annie Jantz: 12:33

The other thing that I'd point out too, is I think it's really important, especially with the way things are changing so quickly, and the leave landscape is that employers, you know, review your policy on a regular basis and make sure that not only are you still coordinating the right way with any lead policies that are in place, or however you want your policy to run, but that you're also evaluating, you know, are there certain laws that you are subject to that you need to make sure are in your policy, right, that you're adhering to those that you're compliant? And then also that if there's anything that's come out from the EEOC or the Equal Employment Opportunity Council, is there anything that is relevant that applies to you. And so again, something I wanted to point out from the EEOC, and it's kind of going back to the whole documenting your policy, making sure that everything is clear is one of the the guidance or the recommendation that they put out there for employers is that it's important to explain the circumstances under which the leave is available, and the eligibility requirements for leave and the procedures for requesting leave, and all of the responsibilities of the business and the employee before and after leaves. So it's like making sure that you're lining up with what guidance is out there to help you then form that policy. And I think sometimes it's easy to forget, like an employer paid policy may not have the same type of compliance and regulations that you're gonna see from a state leave or FMLA regulation, but there are things out there they really need to be careful of.

Karen Batson: 14:01

And sometimes it's hard. There's just it's Yes, there's a lot of information out there.

Annie Jantz: 14:05

There is and I think it's getting harder. Yeah, honestly,

Karen Batson: 14:08

that's why we have podcast just like these. Now, when you talk about all aspects, you need to consider in your policy, does it feel more daunting than it is talking about a lot of information everywhere? Can getting the language right in a paid leave policy be simpler than it appears?

Annie Jantz: 14:27

So I think it's what we just said, right? It's getting harder. I think it's complicated. I think you know, I definitely think there's a way to do it. I think it's probably requires a lot of work and figuring out where your employees are, first of all, and then setting the intention for the program. So what is it that you really want the program to do is that you're trying to fill the income replacement gap between maybe another program like STD or the paid family leave? is a job protection is it length of leave, you know, all of those things come into play. So what is it that you're trying to do? And then you try to coordinate it and every program is doing that every program is trying to coordinate FMLA, STD paid family leave. They all have coordination, language information. So it's looking at those programs and then figuring it out. But I don't think it's an easy job. I think it probably involves looking at, you know, the legal counsel internally to really help set that for your, your employees as well and make sure that you're covered from a business perspective. And then just understanding what programs are available to your people.

Karen Batson: 15:31

I will note for our listeners, McKenzie, actually in the webinar went through 10 steps to build that paid leave policy to it's a great reference. Now, I'll provide a link to the webinar recording and the presentation in our in our podcast episode description. So you can check that out. But we went in detail on each step that any kind of touched upon a few of those steps.

Mackenzie Carver: 15:56

I'd say the only other thing there is just that, it's really daunting to set up the program. But if you are outsourcing, it does make a lot easier from an administration perspective. And all those details is that, you know, from that point of view, from an implementation perspective, because I've done a lot of paid leave implementations, it really is a lot more simple than a lot of my customers think that it will be Lincoln's able to help make sure that your your communications to employees are set up, we will help them through the entire process. And we're able to interpret your policy, you know, to review the details and determine if so what's eligible for the benefits. So from that point of view, if you are outsourcing, it makes it a little bit less scary. You're not on your own anymore.

Annie Jantz: 16:41

That's a good point.

Karen Batson: 16:42

Talking about that. My next question is, will a carrier like Lincoln, do a policy review and provide insight as to what to look for and help out as that policy is being developed, including like the language to be used in that policy?

Mackenzie Carver: 16:56

From a consulting perspective, I'm often sort of looped in to those reviews of policies just to interpret them basically, to determine, you know, what, what are the specifics of the duration that's been outlined how the benefits coordinate, so we have a good understanding of what that process should look like, and who's going to be eligible, just to make sure that we can administer the plan. Lincoln does have best practices as far as what we are able to do from our systems perspective, from a staffing perspective in order to be able to administer programs. So when we, you know, take a look at your policy, we're able to provide some of those recommendations from our best practices. And then additionally, if I see something like, you know, specific language that maybe does not jive with our compliance, we can certainly, you know, point that out. If I have concerns about, you know, the specific language that's been used a specific area, I might bring it up to you so that you're able to review with your internal counsel and just have that information and really have that background as far as why we would make that recommendation.

Karen Batson: 18:05

All right. Now on to the fun part, some questions that we received, how would the primary and secondary caregiver be defined differently in the policy language? And do they get different benefit levels based on that definition?

Mackenzie Carver: 18:19

Good question. So I'd like to start off by saying that we do not usually recommend that our customers provide different benefit durations for parents, that they should have the same benefit duration for all parents, regardless of birth status, adoption, foster care, placement, anything like that. But I do have some customers that do have primary versus secondary caregiver designations. The main thing is, you know, the wording necessarily, can can state what what you need it to, I can state you know, the primary caregivers, the main individual providing care for the child and the secondary caregiver is a supplementary individual providing secondary care. The biggest thing is making sure that you're not automatically assigning individuals as the primary or the secondary based off of something like mother, father, birth parent, non birth parent, anything like that any individual should be able to designate themselves as a primary caregiver or a secondary caregiver as appropriate. There was a lawsuit around this. So I definitely would recommend to all of my customers to have the same benefit duration for all parents, it makes it the most easy from an administration perspective. If you are going to have that designation of primary versus secondary caregiver, you have to allow individuals to elect the choice and there shouldn't be any kind of proof required for that.

Annie Jantz: 19:51

Yeah, I completely agree. And, again, this is a place where I just want to point out that the EEOC has also issued guidance on this Company provided parental leave, and that it must be provided to all eligible employees on an equal basis. And so specifically, you know, they indicate that leave related to a pregnancy or childbirth or related medical condition can be limited to the woman that is affected by those conditions. But parental leave must be provided to similary similarly situated men and women on the same terms. So again, it's really important when making those decisions to pay attention to guidance that's out there, you know, or a law or you know, something that may apply. And so you want to make sure that you're you're doing things the right way.

Karen Batson: 20:39

Now, we had a when we were preparing for this episode, I thought we had an interesting conversation because I asked the question, does the policy have to have a primary or secondary caregiver? I mean, can it just be caregiver? So does that ever happen where primary and secondary aren't definitions in the paid leave policy?

Mackenzie Carver: 20:56

As long as all individuals have the same amount of time, and then you're specifying the reasons that someone can take time for like bonding, adoption, foster care placement, you can use caregiver or parent, whatever term that you'd like to use, as long as you don't have, you know, separate entitlements, let's say?

Karen Batson: 21:14

All right. Next question. Is there somewhere to get a sample policy? Where does one start? So we kind of covered this a little bit, but we got this question actually a few times throughout the webinar. So obviously, it's something people are looking for.

Mackenzie Carver: 21:26

Yeah. So as I said before, the DMEC website has a variety of different policy language options that you can look at for different types of policies like Paid Family Care leaves, paid parental leave programs, so I definitely recommend taking a look there. And then our broker partners are also always available to sort of ask those questions, see what they would recommend they can provide sample policy language they've used in the past. And then of course, Lincoln would review your policy once you've sort of determined those items and provide any best practice recommendations.

Karen Batson: 22:01

Excellent starting point. How do you address tenure in a paid leave policy is their language you have to specify when documenting?

Mackenzie Carver: 22:09

You can. So you know, you'd normally for tenured employees, things like that. As far as how long someone's been with a company, you know, having grades of durations, depending on how long someone's been with the organization, I see that typically more used in things like paid sabbatical leaves or PTO policies. But certainly so as long as you call out within the policy specifying, you know, once you've reached this duration, then this is the benefit that you'd be eligible for. And he really clearly outline, you know, the specifics on how long the individual has to work there, how they could earn that time, if you include any prior time worked in the last period, like 10 years or something like that. There's a look back period. It's tough to call all of that out within your policy, it's certainly reasonable to have different durations or different amounts of benefits for your paid time policies. But I will say for like Paid Parental Paid Family Care policies. And so that's what I see the most frequently, I don't normally see like that breakdown for tenured employees where individuals get more time, the longer they've been with the company.

Karen Batson: 23:16

Alright, last question for each of you. What do you think the number one language miss is when building or reviewing a paid leave policy?

Mackenzie Carver: 23:24

I think the biggest concern I have around the language is making sure that you specify how benefits coordinate, that's my biggest concern is does this run concurrent with any state plans? or federal leaves? Are you specifying if the plan is job protected? As part of that? I think that's probably the biggest thing I have concerns on and I do see missed in policies. Is that specific language around really, when can individuals take the benefit? And how will it run concurrent any other plans? My biggest concern as well with that is for things like Paid Parental programs, I always recommend any paid bonding runs after any disability period of time. That's something I'm always pointing out to my customers is that the bonding time, if you have that the same duration for all individuals, regardless of status, as we were talking about the duration there should fall after any disability period.

Annie Jantz: 24:24

I'm just curious, Mackenzie, if you want to get into like why is that so important to have that time after the disability?

Mackenzie Carver: 24:31

Yeah. So from that point of view, I think that the biggest reason why we want that time to fall after the disability period is because the disability period is for the individual to heal from their delivery from their own medical condition. And if someone were to have any kind of complications, post delivery, it happens and they end up being diagnosed with something like postpartum depression. If they are not healing Well, from a C section. Let's say we would want to extend that Disability period so the individual would be able to continue to heal before we would start their bonding time they is the bondings really intended to be, you know, once you would be able to return to work here some time for you to be able to really stand with your child and take care of them. And so that's why we always recommend if you specify in your policy that the benefit will always begin after any period of disability, that if the disability were to continue past the normal six or eight weeks, there won't be any issues from that point of view.

Annie Jantz: 25:27

Yep, I think that helps to explain kind of where you're coming from. So I think that's a really good point. And I don't think that I have anything different to add, you know, on misses, I think that that would sum up pretty much what I would think would be a miss, especially coordination. So really, the biggest thing that that I see or what seems to be, I guess I would say the most important is really again, setting that intention of the policy like what do you want it to do? What do you want for your employees? What are you trying to solve for and then from there, then figure out how you work your policy, the language, coordinate with the other programs, and then document it make sure it's clear.

Karen Batson: 26:03

Well, thank you ladies any parting words before we say our goodbyes?

Mackenzie Carver: 26:07

I think the only other thing I just want to reiterate from the the podcast was just be inclusive with your policy language, really consider who you're including and who you're excluding, even if you don't think that you know, it might affect your workforce in a specific way you never know and any way that you word your policy can affect the way that you're viewed by your organization by your employees. So you know, be generous with the language that you use. And we did provide some of those language items and some alternative options in our other session.

Annie Jantz: 26:37

Very good points.

Karen Batson: 26:38

Good parting words. Well thank you both for joining I always enjoy these conversations Mackenzi hopefully you'll come back Annie's been here a few times so hopefully she'll come back as well.

Annie Jantz: 26:49

Of course!

Karen Batson: 26:50

Thank you so much.

Annie Jantz: 26:52

Thank you.

Mackenzie Carver: 26:52

Thanks.

Karen Batson: 26:53

Thank you everyone for listening. And a special thank you to McKenzie Carver and Annie Jantz for joining me today. We hope you liked today's episode and will tell us by rating us sharing the episode or following link and absence advisor on Apple Spotify or wherever you get your podcasts.

Disclosures: 27:09

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.