by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
January 04, 2021
Although there are still challenges ahead – there are always challenges – I think I speak for us all when I say I am happy to rip off that last page of the 2020 calendar and start with a brand new, fresh and hopeful 2021 model. Let’s look at a quick rundown of the latest developments in the world of absence management and accommodations:
- Status of FFCRA – tax credits only
- Electronic communications under the FMLA – telemedicine anyone?
- Massachusetts PFML update, including the new Emergency Regulation 3.0
- Connecticut PFML update – are you doing what you are supposed to?
- California expansion of CFRA – more employers and family members covered and basis for taking CFRA.
Sure, it’s a lot to cover but we’ve tried to boil it down to the essentials and provide links to other information sources. And hey, if you can’t be ambitious on the first full business day of the new year, when can you be?
FFCRA tax credit extension – and nothing else. As we reported here, Congress passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021 (CAA 2021), on December 21, 2020. Although President Trump threatened a veto for various reasons, he finally signed the bill on December 27. The bill contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act. Those mandated paid leaves expired on December 31, 2020, regardless of whether an employee had used all of his/her entitlement. On the other hand, the tax credits provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages voluntarily paid by employers through March 31, 2021.
On December 31, the U.S. Department of Labor released new guidance on the expiration of FFCRA paid sick leave and paid leave under the Family and Medical Leave Act (FMLA) for school closures. The DOL’s interpretation of the CAA 2021 is consistent with the above summary but also makes clear that the DOL will retain enforcement authority over employers’ leave responsibilities while the FFCRA’s paid leave requirements were in effect, even after these leave entitlements have expired. See the DOL’s FFCRA Questions and Answers, new questions 104 and 105.
FMLA in a COVID world – DOL addresses telemedicine and electronic posting. Recognizing the realities of social distancing and remote workplaces, on December 29, 2020, the U.S. Department of Labor released 2 new Field Advisory Bulletins (FABs).
- Electronic posting. FAB 2020-7 addresses when the DOL will consider “posting” of the employee notices required by several federal laws by email or an internet or intranet website to satisfy the employer’s posting obligations. The FMLA regulations already permit electronic posting of the general FMLA notice as long as the electronic posting otherwise meets the regulatory posting requirements. See 29 U.S.C. § 2619(a); 29 C.F.R. § 825.300(a)(1). FAB 2020-7 further explains that the DOL will consider electronic posting to satisfy the FMLA posting requirements where there is no physical establishment at which employees are employed or interviewing or hiring takes place, and the electronic posting is accessible to employees and applicants at all times. The FAB does not address electronic posting in situations where an employer may have employees both working remotely and others working at a company facility or applicants applying remotely. Common sense would dictate that the employer should use both methods of posting so that each employee and applicant, regardless of work or hiring location, has access to the required poster.
- Telemedicine health care visits. FAB 2020-8 addresses when the DOL will consider telemedicine an “in-person” visit for the purposes of establishing a serious health condition qualifying for protection under the Family and Medical Leave Act (FMLA).
A serious health condition exists when the employee is receiving “continuing treatment by a health care provider.” The term “treatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” See 29 CFR § 825.113(c). The regulations also provide that treatment by a health care provider means an “in-person” visit to a health care provider. See 29 CFR § 825.115(a)(3).
According to the DOL, to be considered an “in-person” visit, the telemedicine visit must include:
- an examination, evaluation, or treatment by a health care provider
- be permitted and accepted by state licensing authorities; and
- generally, should be performed by video conference.
Communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.
This FAB is consistent with FAQ #12 of the DOL’s frequently asked questions about the FMLA and pandemic conditions issued on July 20, 2020, which states, in part, “Until December 31, 2020, the [DOL] will consider telemedicine visits to be in-person visits . . . , for purposes of establishing a serious health condition under the FMLA.”
The requirement that the telemedicine visit be performed by video conference could be problematic for employees who don’t have internet access or have limited internet programs, equipment, or skills. (Thinking of my own old desktop that works fine but doesn’t have a camera!) At Matrix Absence Management we have been accepting FMLA (and STD) certifications that result from a telemedicine visit since early in the pandemic and will work with our clients’ employees to ensure the best opportunity possible to provide a sufficient certification during the pandemic.
Massachusetts Paid Family and Medical Leave – It’s here! Starting January 1, your Massachusetts employees are now able to take paid family and medical leave. You can learn more by searching for “Massachusetts” in the search box for this blog, above, or visit the website for the Massachusetts Department of Family and Medical Leave. Matrix offers management of MA PFML private plans and our sister company Reliance Standard Life Insurance Co. offers an insured private plan. But if you are going it alone with the state plan, the DFML has some helpful materials, including information on the employee application process and timeline with a DFML Application Timeline chart and an explanation of the employer's role in the state claim administrative process.
What do you need to be aware of now? Employers have ongoing workplace posting and new hire notice requirements so don’t slack on your obligations. And remember, the MA PFML leave is job protected (meaning reinstatement to the same or equivalent position following leave) and there is a presumption of retaliation for any negative employment action taken during or within 6 months after an employee’s MA PFML leave or other related activities. Are your HR and management personnel trained and ready?
Oh, and the MA PFML emergency regulation. The MA DFML has passed Emergency Regulation 3.0 authorizing “acute care hospitals” to allow delayed bonding leave in 2021.
But don’t stop reading – employers in other industries may apply to the DFML to extend the period in which an employee may schedule family bonding leave in the same manner as allowed for acute care hospitals. The Director, in his discretion, may grant or deny any such request after considering likely effects on public health and safety and the public interest.
An acute care hospital is defined as a hospital licensed under M.G.L. c. 111, § 51 and the teaching hospital of the University of Massachusetts Medical School. The Emergency Regulation applies to all acute care hospitals regardless of whether they are providing MA PFML benefits through the state plan administered by the DFML or through a private plan.
In essence, employers that are acute care hospitals may allow an employee who received a new child in 2020 (by birth, adoption, or foster placement) and who wants to take bonding leave in 2021 to complete that leave any time in 2021, not necessarily within 12 months of the birth/placement as is normally the rule. The employee cannot be required to delay bonding leave and the employer doesn’t have to agree to the delay.
Here’s an example:
- Baby adopted on 4/1/2020
- Normally, the parent will need to take MA PFML for bonding between 1/1/2021 and 4/1/2021 (after the effective date of MA PFML and within 1 year of the birth or placement of the new child)
- Under the emergency regulation, an employee of an acute care hospital can delay that leave to later in 2021 – for example to start in September 2021 and be completed by 12/31/2021
The reason for the Emergency Regulation is to try to soften the early-2021 crunch for bonding at a time when medical staff are in high need due to COVID. I’ll be surprised if this is effective. The employer cannot require the employee to delay bonding leave until later in 2021, so I would guess many hospital employees who received a child in 2020 will welcome the chance to take paid bonding leave in January to get a respite from COVID work or exposure. In any event, the regulation specifically says that employers who are acute care hospitals may initiate discussions with employees eligible for the extension to determine if they intend to request the allowable extension. Just be sure not to coerce!
The Emergency Regulation was final on December 21, 2020, and expires after 3 months due to the requirements of the emergency regulation process under MA law. We might see another emergency regulation at that time, or the passage of a nonemergency regulation in the meantime.
Connecticut paid family and medical leave requirements make their debut. The latest PFML program launched in Connecticut on January 1. The first phase is the mandatory (in most cases) withholding of employee contributions in the amount of 0.5% of wages and payment of the employee contributions to the CT Paid Leave Authority quarterly. Employers with private plans approved by the CT Paid Leave Authority by March 31, 2021, do not have to pay the employee contributions to the Authority. In addition, they can elect not to withhold contributions from employee paychecks and to fund the private plan themselves. Private plans approved at a later date will have these same benefits as of the start of the quarter at least 30 days after Authority approval of the plan.
The Authority has cut employers a little slack on the timing of early employee contributions – perhaps recognizing that they did not get the program off the ground as early as would have been helpful. Normally employers cannot withhold from employee paychecks retroactively – meaning that if an employer missed withholding from an employee paycheck in one pay period, it cannot make that up but withholding more than the 0.5% in a later pay period. The Authority has stated that, if an employer does not withhold enough from an employee’s wages, the Department of Labor allows for a very limited “catch-up” period of no longer than the first two quarters of 2021. In order to “catch up”, the employer may not take more than one percent of an employee’s pay per paycheck.
In a prior post available here, we summarized the 3 important steps employers need to be doing now: (1) register your business (supposedly by December 31, 2020, but better late than never!); (2) decide whether you want to adopt a private plan to meet your CT PFML obligations; and (3) get ready for withholding employee contributions starting January 1.
We now have even more helpful CT PFML material. You will find an informative employer guide here, covering the requirements of the law and many other “need to know” facts. And if you want to consider a private plan, contact your Matrix or Reliance Standard account manager or practice leader – we have extensive materials to aid you in preparing for the employee approval vote.
You can also visit the CT Paid Leave website for more information.
California Expands CFRA. We’ve written about this before, but it bears a reminder. On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands coverage under the California Family Rights Act. The following changes took effect January 1, 2021:
- Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
- Eliminates the exception from coverage if an employer employs fewer than 50 employees within 75 miles of the worksite where the employee is employed
- Repeals the New Parent Leave Act (currently the NPLA provides bonding leave for employees of employers with 20-49 employees)
- Expands covered relationships from child, parent, spouse, and domestic partner to include grandparent, grandchild, and sibling
- Removes the age limit to care for a child; leave will be available to care for a child under age 18 or an adult dependent child
- Allows parents who are employed by the same employer to each have the full 12 weeks of bonding leave without sharing the CFRA entitlement
- Adds as a covered leave reason qualifying military exigencies related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces
- Eliminates the “key employee” exception allowing an employer to deny coverage if the employee is a salaried employee who is among the highest paid 10% of the employer's employees
Matrix is now administering the expanded CFRA for claims filed on or after January 1, 2021.
Matrix can help! The wide array of new leave laws, including significantly the various state paid family and medical leave laws, is a challenge for employers. Matrix tracks state and federal legislative developments and reports on them on this blog. But that’s not all we do! We have other resources for you as well. For an overview of state paid leave laws, including employee eligibility, employer and employee contributions, and employee benefits, check out our chart of all state-mandated paid leave programs here.
And if you need help managing those state PFML programs, we’re your source! Matrix offers PFML management services in all states that allow private plans, and Reliance Standard offers insured plans where applicable. If your company is interested in a private plan to meet your Massachusetts, Connecticut, Washington, or other state paid leave obligations, coordinate with your other leave administration and paid leave policies, and avoid the turmoil of state administration, contact your Matrix or Reliance Standard account manager or practice leader now!