DOL Issues Updated FFCRA Regulations In Light Of Recent Federal Court Decision

On September 11, 2020, the U.S. Department of Labor (“DOL”) released a temporary rule updating certain FFCRA regulations.  The temporary rule is scheduled to be published on September 16, 2020, and will be effective immediately through the expiration of the FFCRA’s paid leave provisions on December 31, 2020.

COVID-19 law

The temporary rule updates FFCRA regulations issued in April 2020 in response to a recent federal District Court decision which found four portions of the initial regulations invalid:  provisions related to whether the FFCRA applies if employers do not have work available for employees; the timing for which employees must request the need for leave; the definition of health care provider; and the availability of intermittent leave.

While many anticipated that the DOL would appeal the decision, the DOL elected to reaffirm and clarify its position on some of these issues, while choosing to revise or update others. Thus, while the court’s order was limited to companies operating in New York (or potentially only those in the Southern District of New York), the DOL’s revisions to the regulations apply to all employers subject to the FFCRA (inside and outside New York).

The District Court’s order and the updated regulations are discussed in more detail below.

New York Federal District Court Decision

Soon after the FFCRA regulations were implemented, the State of New York sued the DOL in the United Stated District Court for the Southern District of New York claiming the DOL exceeded its authority when it implemented several provisions of the FFCRA regulations. The District Court agreed in part and, in August, the court issued an order invalidating several portions of the FFCRA regulations.

  • Work Availability Requirement – The original regulations limited the availability of emergency paid sick leave and expanded FMLA leave to certain situations where theemployer’s business is open or the employer has work for the employee, but employee is unable to work due to a COVID-19 qualifying reason.  The court vacated this requirement, making the FFCRA available even if the employer does not have work for the employee, such as situations where the employee is furloughed or the business is closed.
  • Documentation – The FFCRA statute requires employees to notify an employer of the need for leave “after the first workday” during which an employee requires paid sick time; however, the initial FFCRA regulations required documentation to be provided to the employer before any sick time is taken. The court determined this was beyond the scope of the statute and vacated this requirement. The content of the documentation and the need for documentation was not eliminated, just the timing of when it must be provided.
  • Definition of Health Care Provider – The initial FFCRA regulations used an expansive definition of health care provider, which included individuals who work in support of health care operations, such as cleaning staff, food service professionals and cooks, maintenance workers, IT staff, or other administrative support staff who support health care operations.   The district court vacated the definition of health care provider, finding it overbroad.
  • Intermittent Leave – The initial regulations allowed employees to take intermittent leave in certain situations with employer approval/agreement.  The court found this inconsistent with the statute and rejected this aspect of the regulation as an impermissible limitation on the availability of intermittent leave.

Updated Regulations

In the updated regulations, DOL reaffirms its regulations related to the work availability and intermittent leave requirements, but provided further clarification or explanation of its regulations.  The DOL revised regulations related to the definition of “health care provider” and notice requirements.  The rationale and changes are discussed more fully below:

Work Availability

Specifically, for purposes of the work availability requirement, the DOL affirms that neither emergency paid sick leave nor expanded FMLA under the FFCRA may be taken unless the employer has work available for the employee (the “work availability” requirement).  The FFCRA statute provides that leave under the FFCRA is available if an employee is unable to work (or telework) “because of” or “due to” a qualifying reason under the FFCRA.  The DOL cites to U.S. Supreme Court authority that interprets “because of” or “due to” language to create a “but for” test or analysis. Thus, FFCRA leave must be the “but for” cause of the employee’s inability to work.  Furthermore, the DOL reasons that the plain meaning of the word “leave” in this context, and based on longstanding DOL interpretation, means that someone has to be absent from work at a time the employee would otherwise be working. Thus, the DOL stands by its original regulation and provides that an employee cannot take FFCRA leave if there was no work available from the employer for the employee to perform.

Finally, the DOL explains that this requirement was intended to apply for all qualifying reasons under the FFCRA, not just those that were initially listed in the original regulations.

Intermittent Leave

The FFCRA is silent about the availability of intermittent leave, but as the DOL notes in the preamble to the updated regulations, the DOL was given broad authority to develop rules under the law.  Thus, consistent with FMLA regulations, the DOL interpreted the availability of intermittent expanded FMLA leave for employees working onsite similar to how it applies for purposes of FMLA, which may also require employer approval.  For emergency paid sick leave, however, there is opportunity for spreading COVID-19 in the workplace.  Thus, it would be contrary to the purpose of the FFCRA to allow someone to take emergency paid sick leave intermittently (unless caring for a child whose regular day care provider is unavailable due to COVID-19). Therefore, for employees working on-site, the DOL reaffirms its decision to only allow intermittent leave for expanded FMLA leave purposes.  The DOL confirmed, however, as originally provided, that intermittent leave may be available for any FFCRA qualified reason if an employee is teleworking, as there is no risk the employee would spread COVID-19 at a worksite.  In any intermittent leave context, however, permission from the employer is still required.

Health Care Provider Definition

In an effort to ensure the public health system could maintain its necessary function during COVID-19 pandemic, the FFCRA allowed employers to exclude employees who are “health care providers” or “emergency responders” from eligibility for expanded FMLA leave and emergency paid sick leave.

The DOL took an expansive approach in defining “health care provider” in its initial FFCRA regulations to ensure health care operations would not be hampered, such as ensuring maintenance to health care facilities, trash collection, food services for hospital workers, and other similar services.  The District Court found this approach to be overly broad and, therefore, per the District Court’s order, the DOL opted to revise its definition of health care provider.  In the updated regulations, health care providers include employees who are health care providers under existing FMLA regulations and “any other employee who is capable of providing health care services such as diagnostic services, preventive services, treatment services, and other services that are integrated with and necessary to the provision of patient care and, if not provided would adversely impact patient care.”

This could include a variety of health care practitioners other than doctors, including nurses, nurse assistants, medical technicians, and laboratory technicians.  The preamble and rule provide numerous examples of what would constitute diagnostic, preventive or treatment services, and services integrated with these that are necessary for patient care, such as bathing, dressing, or feeding patients, among several others.  Food service professionals, IT professionals, building maintenance workers, HR professionals, or other individuals who do not provide health care services even though their work impacts health care services are no longer included in the definition of health care providers.

Employees falling within the new definition of health care provider can work in a variety of settings including, but not limited to, hospitals, clinics, doctor’s offices, medical schools, local health departments, nursing or retirement facilities, nursing homes, home health providers, laboratories, or pharmacies.

Notice of the Need for Leave

In the updated regulations, the DOL clarifies that notice of the need for emergency paid sick leave must be provided as soon as practicable (instead of before emergency sick leave is taken), which is consistent with the position the plaintiffs took when they challenged the original regulations.

Additionally, the DOL revised the regulations regarding notice of expanded FMLA leave.  For a foreseeable need to expanded FMLA leave, the employee must provide notice as soon as is practicable, which may mean the employee may have to provide advance notice of the need for leave if the facts and circumstances support prior notice.  Prior notice is not required for unforeseeable need for expanded FMLA leave.  Finally, the employer may require an employee to substantiate the need for leave as soon as practicable, which may be at the same time notice is provided.

The DOL also updated its FFCRA FAQ’s consistent with the updated regulations.

Conclusion

As mentioned previously, the DOL’s updated regulations impact all employers subject to the FFCRA, not just those with employees in New York. Thus, all impacted employers should familiarize themselves with the updated regulations and administer them accordingly moving forward.

To the extent an employer has employees impacted by the revised regulations, such as individuals previously included in the DOL’s broad definition of health care provider or employees who were denied emergency paid sick leave for failing to provide advance notice, they should consult directly with counsel to discuss how to address those specific situations.

About the Author.  This alert was prepared by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act.  Contact Danielle Capilla (danielle.capilla@aleragroup.com) with questions.

The information provided in this alert is not, is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the agency, our lawyers or our clients.  This is not legal advice.  No client-lawyer relationship between you and our lawyers is or may be created by your use of this information.  Rather, the content is intended as a general overview of the subject matter covered.  This agency and Marathas Barrow Weatherhead Lent LLP are not obligated to provide updates on the information presented herein.  Those reading this alert are encouraged to seek direct counsel on legal questions.

© 2020 Marathas Barrow Weatherhead Lent LLP.  All Rights Reserved.

Legal Alert: Offering Telehealth to Employees Not Eligible for Group Health Plans

Many employers that sponsor group health plans have portions of their employee population that are not eligible for the group health plan, typically because they are part-time employees. Employers sometimes wish to give these part-time employees something to assist them with their health care needs or expenditures, and it can be tempting to offer that population telemedicine benefits instead of the group health plan.

There are significant compliance concerns with this design however, as a telemedicine program can be robust enough to qualify as a group health plan subject to ERISA, COBRA, HIPAA, and other regulations. When telemedicine is coupled with a major medical program, this only raises minor concerns or compliance needs. When offered as a stand-alone service however, this raises more serious issues. This is because on its own, a telemedicine program cannot meet the ACA’s market reforms, such as offering preventive care like immunizations; or certain health screenings. A group health plan that fails to meet market reforms can be subject to penalties of up to $100 a day per employee.

Offering these employees telemedicine in the short term during the COVID-19 pandemic is likely less risky than a blanket offer of telemedicine coverage for an entire calendar or plan year, but it is currently unclear how regulators will respond to this approach. If an employer wishes to offer telemedicine to employees who are not eligible for the group health plan, they should consult with counsel to ensure they understand the potential risks. Alternatively, employers in this situation could offer part-time employees Individual Coverage HRAs (ICHRAs) to offset the cost of coverage the employee purchases individually. Alera Group will continue to monitor for any signals from Washington DC that telemedicine may be used in unique ways during the COVID-19 pandemic.

COVID-19 Info Hub

COVID 19 Employer resourcesSo much information, so little time. Our goal is to cut through the clutter and get you the most pertinent information in a timely manner. Below you will find articles and resources that can help answer your questions, including but not limited to those that relate to:

  • Leave management, including the newly expanded FMLA program
  • Health plan coverage pertaining to COVID-19 testing and treatment
  • Furloughs, termination and benefits news
  • Health & safety tips
  • Compliance
  • P&C coverage
  • Insurance market impacts

Whitepapers

COVID-19 and Your Industry: What You Need to Know
Perspectives on COVID-19 and P&C Coverages
COVID-19 and Employee Termination and Benefits Consideration

Legal Alerts

Carrier Premium Credits and ERISA Fiduciary Obligations
Agencies Extend Deadline to Pay COBRA Premiums and Certain Other ERISA and Internal Revenue Codes Due to COVID-19
COVID-19 and Cafeteria Plan Considerations
COVID-19 and DCAPs, FSAs, and Transit Benefit Concerns
Notice Requirements When Making Health Plan Design Changes
Tax Credits Under FFCRA: Qualified Leave Wages & Health Plan Expenses
Dependent Care Assistance Programs & COVID-19
Congress Passes the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
The CARES Act – Retirement Plan Provisions
What Employers are Subject to the Families First Coronavirus Response Act
FFCRA Employee Notice
How Does FMLA and EFMLA Apply to Leaves?
Collecting Premiums During Employee’s Leave of Absence
Families First Coronavirus Response Act Passes
COVID-19 Update Employee Terminations, Furloughs, and Lay-offs: COBRA, Reinstatement, and Closed Businesses
Offering Telehealth to Employees Not Eligible for Group Health Plans

Insights & Other Resources

Wellbeing Program Development Checklist
Road Map: Reopening A Worksite
COVID-19 Questions: One Stop FAQ
CARES Act Part 3
Seasonal Employees and COVID-19
Coronavirus and HSA Eligibility
Qualified Life Events: What Are They?
Washington State Expands Rights for High-Risk Workers
COVID-19 and Cafeteria Plan Considerations
COVID-19 Section 139 Disaster Payments
COVID-19 Employer Pulse Survey
COVID-19 and Filing Relief
Q&A: OSHA, COVID-19
Q&A: Medical Screenings and Sick Employees
More Ways to Use Your FSA, HSA & HRA
Tax Credits Under FFCRA: Qualified leave wages & health plan expenses
Who Is Eligible for EPSLA and EFMLEA?
FFCRA Temporary Guidance FAQ
Guidance on Preparing Workplaces for COVID-19
What Triggers a COVID-10 Leave?
Decision Tree for Emergency Paid Sick Leave (EPSLA)
FAQs for Employers
COVID-19 and Civil Authority Coverage 
Q&A: Telemedicine & Benefits
Q&A: Employment Issues Catchall
How COVID-19 Will Impact These 8 P&C Policies
Families First Coronavirus Response Act FAQs
COVID Scenarios and Benefit Implications
What Does Your Health Plan Cover? How Different Carriers Are Addressing COVID-19
State Insurance Regulatory COVID-19 Updates
State Department of Insurance Responses to COVID-19
Business Interruption Claim: What to Expect

Webinars

(Recording): Restarting and Rethinking Your Workforce
(Recording) COBRA & ERISA Extensions
(Recording) Talent Strategy for the Crisis and Beyond
(Recording) HR Technology & COVID-19
(Recording) Alera Cost Estimator Tool
(Recording) Worker Safety & COVID-19
(Recording) OSHA, COVID-19 & Construction
(Recording) CARES and COVID-19

 

Spring’s SVP Speaking at the National Workers’ Compensation and Disability Conference

We are excited to share that our Senior Vice President, Karen English, has been invited to speak at this year’s National Workers’ Compensation and Disability Conference & Expo, which runs from November 6th-8th in Las Vegas. Karen, winner of the 2019 Power Broker award for Workers’ Compensation, is an expert in the field and will bring great value to the audience. Workers' Comp and Disability

Her session, Getting Smart Integrating Workers’ Comp, Disability and Leave Programs, runs from 2:30-3:45 PM on Wednesday, November 6th. She will be presenting alongside Kerry Daley, Absence Program Manager at Robert Half. Together they will cover the full spectrum of integrated program benefits, such as:

  • Cost reductions
  • Increased productivity
  • Greater efficiency
  • Deeper understanding of employee health
  • More consistent claims

The duo will offer best practices for integrating, and will demonstrate different approaches, implementation challenges and results through a case study. Attendees will leave with enhanced knowledge about the dangers of a program of silos, and with a plan of attack for integrating and/or maintaining their leave program.

 

4 Areas That Kept Popping Up at the DMEC Annual Conference

Now that the dust has settled and we are even ahead to next year’s conference, we’ve had the time to reflect on key learnings from the 2019 DMEC Annual Conference. Spring, and myself, have been active participants in the organization’s events and programs for many years, and the Annual Conference is one of the industry’s largest hubs for thought leadership. This year was no exception. Between cocktail receptions and dueling piano bar outings, there was a lot of knowledge shared among the (approximately) 500 professionals who came together from August 5th-8th in the D.C. metropolitan area.

As a general practice, we at Spring like to reinforce a conference’s highlights by putting pen to paper (or fingers to keyboards) and jotting them down to share with our colleagues. While the pre-conference material was focused on behavioral health in the workplace, there were four other hot topics that we couldn’t help but notice creating a thematic backbone to the main conference. Generally, what piques people’s interest most at a conference like DMEC is a good indicator of trends in the HR and benefits market at large. So, here they are!

  1. Paid Leave

I wasn’t surprised that paid leave was on a lot of people’s minds at the conference. After all, eight states and Washington D.C. have now enacted statewide paid leave policies, and there are several more, similar legislations being proposed in other states. While this is all great progress for the American workforce, it does complicate things from an HR and leave administration and compliance perspective. Various DMEC presenters were out to share their experience to help employers across the country who are grappling with the policies.

 

There was, “A Case Study: Developing a Paid Parental Leave Program”, which walked the audience through Halliburton’s approach. We also heard from an attorney on how to design a compliant paid sick leave policy, and in “They’re Here! A Deep Dive Into Paid Family and Medical Leaves”, we were given a national, trend-based overview as well as a granular, state-by-state look at the existing paid family and medical leave programs, as well as tips for employers getting started with a program.

  1. Data

Not all of the work of benefits and disability management professionals is always at the forefront of a business, but it sure does make an impact. As such, there was a heavy focus on the data and numbers behind all of that work being done. In “Got ROI?”, led by two of our Senior Vice Presidents, Teri Weber and Karen English, data was name of the game  – what types to look for, how to collect it, how to measure success, and how to take numbers and turn them into actionable insights.

 

Further, one session focused on paid leave data, and how it ties into corporate communications, cyber security and onboarding. CoreHealth Technologies presented on data specifically for healthcare organizations, focusing on their unique challenges. Lastly, in “How to Use Absence and Disability Data to Understand Your Workforce”, discussions revolved around turning health and populatio

Employee Absence Management

n data into insights you can use for various early intervention tactics.

 

  1. Employee Experience

It’s the employee’s world and we’re just living in it. Not really, but there was a definite emphasis at DMEC on the customer, which in many cases means the employee. Our very own Teri Weber led a workshop called “Your Self-Audit Checklist”, which, at its core, is really centered around making processes more seamless and compliant-friendly so that employee and employer alike have a more pleasant work environment. Another session revolved around advocacy, and how it can be used to elevate the employee experience. In “Winning the War for Talent by Perfecting the Employee Experience”, a panel discussed the importance of the employee experience for retention and recruitment, and suggested strategies for improvement.

 

  1. ADA/FMLA

With a name like Disability Management Employer Coalition, the ADA and FMLA are always prevalent at the conference. This year, however, with the DOL’s proposal of form changes for FMLA and several high-profile court cases around both policies, we wanted to make sure to note it yet again as a pressing priority for professionals in this space. The topic(s) appeared in the following presentations:

  • “It’s Complicated: The Always-Evolving ADA/FMLA Relationship”, which covered how shifts in technology and business needs necessitates pivots to your FMLA and ADA approach.
  • “Opioids and the ADA/FMLA”, where a doctor and a representative from Lincoln Financial Group discussed the opioid epidemic, how it came about, how it impacts the workplace, what to watch out for and how to develop employer policies and strategies for prevention and management.
  • “Reducing Your ADA Burden by Implementing a Return to Work Strategy” outlined myths and benefits of return-to-work and stay-at-work programs, an employer’s ADA obligations, EEOC guidelines and tips for a successful program.
  • “FMLA/ADA Lessons Learned: Jury Verdicts, Settlements & Recent Court Cases” provided an overview of court cases like Gunter v. Bemis Company, Hawkins v. Grinnel Regional Medical Center, Jacobs v. Wal-Mart Stores, and Ramirez v. Jack in the Box. The presenters reiterated what it means to be compliant in areas such as reasonable accommodations and “essential job functions”, so that employers in the audience were better equipped to prevent having their own court case on their hands one day.

I hope you found our event recap useful. From attending great industry events like DMEC, we know that sharing knowledge is the best way to make progress, so we wanted to pay it forward. You might also be interested in this summary on another session my colleague Karen English led, called “The RFP Process: A Deep Dive”.

We are already looking forward to – and planning for – DMEC’s two annual conferences next year.

Navigating Transgender Leave

The societal understanding of what it means for an employer to be truly inclusive of all diversity groups has expanded exponentially since the turn of the 21st century. Employers are increasingly faced with multifaceted Human Resources related topics including cannabis, cybersecurity, sexual harassment, and a push, in many states, for equal opportunity for paid leave. Equal opportunity accommodations do not just vary between male and female employees but also between groups based on race, religion, and gender identity.

Gender identity itself varies extensively, but one concentration is the difference between individuals that identify as either cisgender (the same gender as their sex at birth) or non-cisgender (not the same gender as their sex at birth). The non-cisgender identity includes a wide umbrella of individuals who do not identify or present themselves with the sex they were assigned at birth, including transgender (not the same gender as their sex at birth) and non-binary (neither exclusively female or male) individuals. This particular group of individuals has historically faced major roadblocks in society and until recently, had not experienced inclusion and accommodations in the corporate world. Even with the progress that has been made, there is still a gap in today’s employee benefits environment for anyone deviating from “the norm”.

Fill out the form below for the full white paper, which covers:

  • Unique challenges faced by LGBTQ employees and their employers, including leaves of absence and insurance coverage
  • Terminology and proper usage
  • Protective regulations, including a state-by-state analysis
  • How to expand inclusivity to the LGBTQ population and tips for building a benefits program and culture that accommodates accordingly

 

Spring to Speak in 3 Sessions at DMEC Annual Conference

As a long-time sponsor and advocate for the Disability Management Employer Coalition (DMEC), Spring is excited to continue our involvement in this year’s annual conference.

The event, which takes place from August 5-8 in Washington, D.C., will bring together around 500 professionals in HR, Benefits, Disability and Absence Management fields, and is sure to be a thought-provoking and fun few days. This year, Spring team members will be featured a few times on the conference agenda:DMEC Annual Conference

  • Launching Your Organization’s Self-Audit Checklist: Tuesday, August 6th, 3:35PM
    Senior Vice President Teri Weber will be running this short quick-dive session, which will guide audience members on effectively conducting an internal compliance audit.
  •  The RFP Process: A Deep Dive: Wednesday, August 7th, 2:30PM
    Teri Weber and Senior Vice President Karen English will be joined by clients on this panel that outlines the who, what, and the how of conducting an RFP. Best practices and case studies will be shared.
  • Got ROI?: Thursday, August 8th, 9:30AM
    In this general session, Karen, Teri and Disability Management professionals from Baystate Health Systems and Chevron will speak to how to determine if an absence management program is producing ROI. The audience will be left with a framework to overcome common challenges and learn from the success of large employers.

So, if you are heading to the DMEC Annual Conference, be sure to catch us at one (or all!) of these sessions, and say hello to our team at booth #312. We promise good conversation and fun giveaways!

The Latest in MA Paid Family and Medical Leave

By Karen English and Teri Weber

What You Need to Know

In June of 2018, Massachusetts passed a paid family and medical leave policy, making it the fifth state to do so after California, New Jersey, Rhode Island, New York, and Washington, and almost in tandem with D.C. Since then, Massachusetts employers, employees and industry professionals like ourselves have been closely following the regulatory progress and stipulations of this new program.

The Law: A Brief Overview

The Massachusetts Paid Family and Medical Leave law provides employees working for a Massachusetts employer with up to 26 weeks of job protected, paid family and medical leave for qualifying reasons, which include but are not limited to:

  • One’s own or a family member’s serious health condition
  • Bonding with a newborn or adopted child
  • Tending to a family member who is an injured servicemember

The law also offers job protection during and after a leave. The nuances of the policy and modifications have been slowly rolled out over the last year. More details about employee eligibility, employer requirements and readiness, and pay allocation can be found here. As with all state-wide legal overhauls, the policy is quite complex.Paid Family and Medical Leave Massachusetts

The program is meant to be funded through employer and employee contributions, with employers using MassTaxConnect to determine contributions and appropriate tax filing.

The Latest

The Paid Family and Medical Leave benefits were set to be available to employees starting January 1st, 2021 for bonding, military exigency and one’s own serious health condition, with a second wave being rolled out on July 1st, 2021 for other available and applicable benefits. To ensure sufficient funding for the program, employers were to start paying paid leave taxes starting July 1st, 2019.

As the deadline approached, however, employers in the state became concerned over unanswered questions and lack of time to prepare. Members of the Associated Industries of Massachusetts sent more than 2,500 messages to Governor Charlie Baker explaining that they lacked the time and clarity to stay on track for the July 1st deadline. Massachusetts lawmakers heard the grievances and acted accordingly. On June 11th, 2019, the state agreed to a three-month delay on paid leave tax collection, which will now begin on October 1st, 2019.

What This Means For Employers

The extension allows us all to get more familiarized with the ins and outs of the law and plan accordingly. Employers will be focused on whether an exemption applies, how the breakdown of corporate tax vs. payroll deduction will work, and what portion(s) of their workforce are eligible for the different benefits outlined. The additional time will also enable employers to effectively communicate the changes. Updated key dates to be aware of include:

  • Required Withholding Now Starts October 1, 2019
  • Contribution Rate Has Been Adjusted from 0.63% to 0.75% of Employee Qualifying Earnings
  • Remittance of Contributions for the October 1 to December 31 Quarter Will Be Due January 31, 2020
  • Timeline Has Been Extended for Required Employee Notices to September 30, 2019
  • Timeline Has Been Extended for Exemption Applications to December 20, 2019
  • PFML Final Regulations Are Scheduled To Be Posted on June 17, 2019 and Become Effective on July 1, 2019

Please get in touch if you have questions about the Massachusetts Paid Family and Medical Leave law and how to prepare for the program’s rollout. We have experts in leave management and compliance that are happy to help you navigate this new policy.