Compliance update – September 2019

Every month, Lincoln puts together the latest compliance news related to family and medical leave laws and regulations – helping you keep track of the important deadlines, compliance considerations and links to additional information.
 

  • Family and medical leave
  • Other Leave
  • Accommodations

Federal Family and Medical Leave Act (FMLA)

August 5, 2019

The DOL published a notice announcing a 60-day public comment period on proposed revisions to the optional-use FMLA forms. The DOL is looking to improve customer service, increase compliance, and reduce the burden of accomplishing forms. Comments may be submitted by October 4, 2019. 

More information on the proposed FMLA form revisions can be found on the DOL website. Employers may recall that in early 2018, the DOL submitted its FMLA forms without any proposed changes for approval, and the current approved DOL FMLA model forms and notices expire on August 31, 2021. At present, all of Lincoln’s FMLA forms and notices are up to date and do not require any changes. Lincoln is working to identify the impacts to our products and services and will continue to share updates, as necessary.

August 8, 2019

The United State Department of Labor (DOL) issued Opinion Letter FMLA 2019-2-A that affirmed that an employee may take leave under the FMLA to attend a Committee on Special Education (CSE) meeting to discuss the Individualized Education Program (IEP) of the employee’s son or daughter. The need to attend CSE/IEP meetings addressing the educational and special medical needs of the employee’s children—who have serious health conditions as certified by a health care provider—is a qualifying reason under “care for a family member with a serious health condition.” As such, the employer’s agreement is not necessary because the leave is medically necessary to provide the appropriate physical or psychological care. An employee may use FMLA leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition.

District of Columbia

August 8, 2019

The District of Columbia published its draft regulations on paid leave benefits, addressing eligibility for benefits, calculation of benefit amounts, filing for benefits, erroneous payments, and the repayment of benefits. The city has already finalized its regulations on employer contributions and tax collection procedures. More information on the DC PFL rulemaking process can be found on the DC Department of Employment Services (DOES) website.

The Office of Paid Family Leave has released guidance on determining employee exceptions from PFL coverage. An employee may be excepted from PFL coverage if both of these requirements are met: 

  1. The employee’s work time that was spent in a particular quarter outside of the District of Columbia is not temporary, transitory, incidental or isolated, and
  2. The employee spent more than 50% of his or her work time in that quarter for the employer in another single jurisdiction other than the District of Columbia.

If an employee meets the foregoing criteria, their employer may submit documentation requesting exception from PFL coverage. An employer is still required to pay the full PFL tax for all employees (including any employees covered by a pending exception request). If the request is granted, the employer’s account will be credited with the amount of PFL tax paid. The guidance and required documentation are available on their website.

Hawaii

July 2, 2019

Hawaii delayed its deadline for a proposal for paid family leave legislation to be submitted to the legislature. It is now due on November 13, 2019, after being originally due on September 1, 2019. In 2018, Hawaii passed a law which would require the legislative reference bureau to conduct a sunrise analysis of the impacts of and best framework for the establishment of paid family leave. The analysis will evaluate program design, cost breakdowns and projected impacts to employers by size, and options for compliance and enforcement of a paid family leave program.

New York

September 3, 2019

New York released their 2020 PFML plan updates. Please see below.

2020 New York Paid Family Leave (PFL) Plan Updates
Maximum weekly benefit $840.70 (up from $746.41)
Maximum benefit percentage 60% (up from 55%)
Maximum employee contribution rate .270% (up from .153%)
Maximum deduction $196.72 (up from $107.97)
State weekly wage base (SAWW) $1,401.17 (up from $1,357.11)
Maximum benefit period 10 weeks (no change from 2019)

South Carolina

July 24, 2019

The South Carolina Supreme Court ruled that the state will no longer recognize common-law marriages. The ruling applies prospectively, not to those already considered married under the law. Hence, all marriages under South Carolina law that are entered into on or after July 25, 2019, will require a license. Under the FMLA, employees may take leave to care for a “spouse” who has a serious health condition, including a common-law spouse as long as the common law marriage was validly entered into in a state that permits the formation of common law marriages. The South Carolina ruling means that employees will not be eligible for spousal leave or related benefits under the FMLA to care for a common law spouse when such marriage is alleged to have been entered into in South Carolina on or after July 25, 2019.

 

Upcoming

Updated Statutory Disability and Paid Family Leave Guide

The benefit and contribution rates of state-mandated disability and paid family programs are established annually, and are typically released in Q4, applicable the following year. Once all the program rates are released by states’ regulatory authorities, Lincoln will update our Statutory Disability and Paid Family Leave Reference Guide. We encourage you to talk to your Lincoln representative later this year to learn more.

New California voluntary plan template

The California Employment Development Department (EDD) will be requiring all employers and third-party administrators to transition to using a new Voluntary Plan text template as of January 1, 2020. Lincoln is awaiting additional information from the EDD with the specific instruction and a final template draft document. A cross-functional Lincoln team will work to assist our customers with the transition.

Illinois

August 2, 2019

The Governor signed into law the Living Donor Protection Act, which amends the Illinois Organ Donor Leave Act. These laws apply to state agencies only. The new law prohibits agencies from retaliating against an employee for requesting or obtaining a leave of absence for organ or bone marrow donation. State employees may use up to 30 days of organ donation leave in any 12-month period to serve as a bone marrow or organ donor. The law also prohibits insurance carriers from discriminating against and refusing to provide coverage based solely on the insured client’s status as an organ donor. The law will be effective on January 1, 2020.

Puerto Rico

August 1, 2019

The outgoing Governor signed into a law requiring employers to provide unpaid leave to employees for up to 15 days in a year when employees or covered family members need to address situations related to domestic or gender-based violence, child abuse, sexual harassment in employment, sexual assault, lewd acts, or felony stalking. Covered family members include children, spouses, partners, parents, and minors, persons of advanced age, or with disabilities over which the employee has custody or guardianship. Generally, employees must provide two business days’ notice of the need to take leave, absent any circumstances that prevent the giving of notice. The employee is entitled to job restoration upon their return. The law is effective immediately upon its enactment on August 1, 2019.

Bernalillo County, New Mexico

August 20, 2019

The Bernalillo County Employee Wellness Act provides employees with earned paid leave which may be used for any reason. This applies to all private sector employers with two or more employees in the county’s unincorporated areas and will not apply to employers in Albuquerque. Under the enacted ordinance, which is effective July 1, 2020:

  • In the first year (July 1, 2020 - June 30, 2021), employees will accrue one hour of paid leave for every 32 hours worked, up to 24 hours of paid leave in the first year of the program.
  • In the second year (July 1, 2021 – June 30, 2022) the cap will increase to 40 hours.
  • In the third year and beyond (starting July 1, 2022) the cap will increase to 56 hours.

When the use of paid time off is foreseeable, employees are required to provide notice to their employer as soon as is practical. When possible, use of leave must be scheduled to prevent undue disruption to the operations of the employer. Employers with paid time off policies that meet or exceed the ordinance’s accrual and use requirements are not required to provide additional time off under the ordinance. 

Although it is presented as a universal paid leave law, this ordinance actually functions like a paid sick leave law given its accrual rate, carryover rules, and payment of benefits.

Following the enactment of this county ordinance, Albuquerque is now studying the feasibility of adopting a leave program with similar rules for purposes of consistency in both county and city.

New York

The Governor highlighted a provision in the state budget requiring employers to provide paid leave for up to three hours for employees to cast their vote during elections. The employee must give the employer notice of leave not less than two working days before the day of the election. The employee shall be allowed time off for voting only at the beginning or end of his or her working shift, as the employer may designate, unless otherwise mutually agreed. Employers must post a notice setting forth the right to paid voting leave starting ten working days before every election until the close of the polls on election day. The law is effective immediately.

New York

August 20, 2019

The Governor signed into law several pieces of legislation expanding protections for victims of domestic violence, including an anti-discrimination bill protecting victims of domestic violence in employment. Employers are prohibited from refusing to hire or discharging from employment an individual because of their status as a victim of domestic violence, or discriminating against them in compensation or in terms, conditions or privileges of employment. 

The law also requires employers to provide a reasonable accommodation allowing employees to be absent from work for a reasonable amount of time to address situations related to domestic violence. The employer is exempt from the reasonable accommodation requirement only if they can demonstrate that the employee’s absence would constitute an undue hardship to their business. The law is effective 90 days after its enactment, or on November 18, 2019.

Please note: This alert is provided for informational purposes only and should not be considered legal advice. This information is being provided to Lincoln Financial Group clients so they may conduct any necessary internal evaluation of their policies and procedures. This alert is designed to provide informative and current information as of the date of the alert. Please contact your legal advisor with any questions regarding the laws discussed in this communication. Lincoln continually monitors activity related to family and medical leave laws and as laws pass, we will determine any impacts to our suite of products. Lincoln does not currently administer or track paid sick leave. The information contained herein includes information on major cities and counties and is not all inclusive of all city and county laws.

Insurance products are issued by The Lincoln National Life Insurance Company, Fort Wayne, IN, Lincoln Life & Annuity Company of New York, Syracuse, NY, and Liberty Life Assurance Company of Boston, Boston, MA. The Lincoln National Life Insurance Company does not solicit business in New York, nor is it licensed to do so. Product availability and/or features may vary by state. Limitations and exclusions apply.