Rookie Year: Massachusetts Paid Family and Medical Leave

As seen in the New England Benefits Council (NEEBC) blog.

We are one year into eligible Massachusetts employees being able to apply for paid leave benefits under the Massachusetts Paid Family and Medical Leave (PFML) program.  Although stats for the MA PFML Rookie Year have not been released yet, the first six months were telling:Paid Family and Medical Leave

  • Over 53,000 applications, with 23% being denied
  • 58% of applications were related to medical leave and the remaining for bonding, given that care for a family member with a serious illness was not yet a covered reason
  • Only 18 applications for military exigency leave and 6 applications to care for a service member
  • Employees aged 30-39 submitted the most applications (35%) and more than twice as many women applied for leave, compared to men
  • Average weekly benefits were $705.98 for family leave and $699.00 for medical leave
  • Turnaround times, once the Department of Family and Medical Leave (DFML) received all data including employer responses, took a median of 12 days to make a claim determination
  • Average duration of leave was 53 days (57 days for medical leave and 51.5 days for family leave)
  • Total benefits paid was equal to about $168 million (about $92 million for medical and $76 million for family leave)

While we await data for season of 2021, let’s dissect the highs and lows and see if MA PFML has a shot at Rookie of the Year!

Let’s start with the highs:

  • The plan appears to be running at a sustainable level with sufficient funding, indicated by a reduction in contribution rates, which is good for residents of the Commonwealth.
  • Employers were able to successfully create private plans without significant hurdles in the process, allowing MA firms to continue their history of rich benefit designs without negatively impacting corporate plans.
  • Massachusetts has been a strong example of early and broad education of the program. Individuals in the state were told about benefits that may be available to them in plenty of time before the program went live, giving them the opportunity to ask questions and better understand what their experience might be in the case they need leave. The state hosted various webinars to different audiences, providing real time information and continuous updates on the status of the program’s launch. The website houses a multitude of helpful information and is continually updated. For questions not answered in these channels, individuals may also call the DFML for benefit questions or the Department of Revenue (DOR) for questions concerning private plans or contributions, and the state is typically always able to answer even in-depth questions.

While the state has had multiple home runs implementing a PFML program, just like evaluating Rookies of the Year like Jonathan India and Kyle Lewis, we need to think of the swing-and-a-miss situations as well.  The most significant strike for the MA PFML was their system:

  • The system for PFML administration continues to lag with the most significant unexpected deficiency likely related to their inability to handle intermittent leaves which are the most challenging and frustrating for employers.
  • Employer access was an obstacle, leaving employers without the ability to “monitor” claims or have insight into the status at a time when COVID claims and time away from work were skyrocketing.
  • Another systematic issue was linking contribution with plans. Since contributions are due at the close of the quarter, claims could be reported prior to contributions being paid. Unfortunately, those triggered denials as employers struggled to notify the state, register and swap from private plans to the state plan. Employees were given conflicting information as employers tried to resolve this gap in “coverage.”

Just like anyone’s first year in the pros, our first year with MA PFML threw us curveballs we did not expect, and as a result, we have learned some important lessons. The ever-evolving landscape of PFML laws has put pressure on employers with employees across the country, as they try to meet employee needs while balancing corporate responsibilities and equity. As we all become more seasoned players in this complex game of leave, Spring has outlined some best practices for employers handling PFML :

  • State plans should act as guidance for internal company policies. Mimicking a state plan could be restrictive as new programs emerge and existing programs evolve.
  • Have a clear understanding of the definition of eligible employees under each statutory and/or federal law. Someone considered an employee in Massachusetts may not be considered an employee in Connecticut (e.g., 1099 contractors).
  • All leave policies should be run concurrently, to the extent possible. The Federal Family and Medical Leave Act (FMLA) will generally run concurrently with MA PFML and other PFML laws when an employee meets the eligibility conditions of both plans.
  • Private plans offer the most flexibility with plan provisions and aligning leave with other corporate leaves, however state plans seem to be simpler administratively. Carefully weighing these pros and cons is key to developing an adaptive leave program.

The replay we are watching the most, however, is that COVID-19 significantly increased the complexity of such a program. The need for leave has been exacerbated. Difficulty hiring employees has affected employers who must keep up productivity while more employees are away from their jobs, and the state had to administer a new leave program under less-than-ideal conditions. In addition, the tremendous growth of remote work has made it difficult for employers to determine where an employee may be eligible for leave.

Overall, workforces are evolving and regulations at the local, state and federal level need to be continually monitored. As we see benefits become available under new programs, such as CT PFML, and other states pass bills to develop PFML programs, such as New Hampshire and Maine, employers will need to assess their strategies and evolve accordingly.

Teri’s Top 10 – December 2021

The holiday season is upon us which means we are all in a frazzled state trying to make our list and check it twice!  My mind – like yours – is not just full of work-related topics but also so many personal tasks.  Here are the top things taking up space in my brain (not all work related):

10:  Many of us have been running on some level of adrenaline over the last 22 months!  I have been listening to Unlocking Us (podcast by Brene Brown) and something she said really spoke to me: “After six to seven months of running on adrenaline, your surge capacity is maxed out and you need to find a new energy source.”  I’ve realized I don’t have a new energy source and I need to find it and that’s going to be a priority for me in 2022.

9. The status of federal paid leave within the Build Back Better plan is still unclear. I recently worked on a webinar that talked about how paid leave is an equity consideration.  That can be found here: http://resources.industrydive.com/why-americas-paid-leave-problem-is-a-diversity-equity

8. For those from the Constitution State…buckle your seat belt. Connecticut Paid Family Leave is ready to accept claims. Do not delay looking at your policies.  Make sure your internal programs are designed to run concurrently with paid statutory leaves whenever possible.  If you want access to Alera’s recent webinar, let me know!

7. The Kaiser Family Foundation (KFF) has released its 23rd annual Employer Health Benefits Survey (EHBS) and it indicates that average annual premiums for employer sponsored health insurance in 2021 were at $7,739 for singles and $22,221 for families. On average workers contribute 17% for single coverage and 28% for family coverage.  The full report is here:  https://www.kff.org/report-section/ehbs-2021-section-1-cost-of-health-insurance/

6. Data from KFF validated that employers across the board took many steps to help their members deal with mental and behavioral health benefits. Sixteen (16%) percent of employers developed new resources for employees, 31% expanded telehealth services and an estimated 4% waived or reduced cost sharing in this area.

5. There was a lot of discussion in 2021 about flexible time off (FTO) programs. If you are ending the year paying out or carrying over significant PTO liability…think about what you can do differently in 2022 to reduce that liability through policy changes and by encouraging use of time off.  Many employees are burnt out and need time away to recharge and be the best version of themselves for their co-workers and their families.

4. Employers are facing yet another round of COVID-related decision making. From vaccination mandates, benefits premiums, remote work and more, we are bringing you our survey results here on how businesses are tackling these issues.

3. Pharmacy costs continue to climb with a lot of attention on high-cost gene therapies that may have up to a $2.125M annual price tag per year. For self-insured employers, you need to be very thoughtful about how you handle these costs. More funding solutions are entering the market, but you need to think holistically.  For fully insured employers, make sure your renewals consider spreading these large claims (typically through pooling point) so it’s a more accurate reflection of your ongoing experience.

2. The No Surprises Act certainly feels like it will be full of surprises. Although carriers and TPAs seem “ready” to comply but nobody is exactly sure how it will work just yet or what cost impact we can expect.  So…that’s stressing me out!

1. The last item, which might encompass my entire list in January, is workforce planning.  We need to dig deeper into this great resignation and figure out how we retain top talent, plan for succession of employees, and encourage retirement when appropriate.  More to come on that…

Teri’s Top 10 – November 2021

First edition (hopefully not the last)

Like many of you I spent most of 2020 building a cocoon around myself and my family.  Although I have fared very well compared to others, it has been a battle the last few months to dig myself out of the cocoon I started building in March 2020.  It felt like my regular routine – which never seemed like much of a burden before – was TOO MUCH.  During the down time I thought of countess things I should be doing…yet did very few of them.

So, starting this month, I’m going to attempt to do at least one of the things I talked about…craft a top ten list for my HR colleagues.  I want this to be digestible, as I know we all have a lot of emails and other materials to read, so I will include 5 meaty topics and 5 quick hits.

#10:  We ended October thinking we would know soon if 12 weeks of federal paid leave will finally become law. My prediction was that although momentum was gained within the Build Back Better infrastructure package and things were advanced in the House, the simmer in the Senate will be like my pasta sauce on a busy Sunday…well-intentioned but burnt on the bottom. Some legislators are hoping the private sector will pick up the tab through some type of mandate, others are hoping that a smaller duration benefit (i.e. 4 weeks) would be more palatable.  At this point it’s hard to know if my pasta sauce will be on the menu this week or burnt to a crisp.

#9:  If you have been living under a rock you probably still heard the FDA advisory panel has OKed COVID-19 vaccines for children ages 5-11.  The Kaiser Family Foundation research indicates that 1 in 3 parents say their child will get the vaccine right away once eligible. Employers should be prepared for potential time off requests for not only the vaccine but also if any additional care is required.  Here are some additional insights from KFF.

#8:  If you aren’t aware of GISThealthcare, it’s one of my favorites. They recently shared an infographic about the burden of mental health on emergency room departments.  It’s very insightful and reminds me how important behavioral solutions are for employers. Here is the content that grabbed me.

#7:  Diversity, equity and inclusion is and should be a priority for all employers. That cannot exist without health equity. When folks ask me where to start, I suggest beginning by giving it a definition, setting tangible short-term goals and at a minimum start gathering data. The basic tenants of health equity from a 2017 Robert Wood Johnson Foundation still resonate and are the core tenants of the work we do:

  • Identity important health disparities
  • Change and implement policies to remove those unfair practices
  • Evaluate and monitor your efforts with short- and long-term measures
  • Reflect and plan next steps

#6:  We continue to support employers as they review their absence policies to ensure they are compliant and in line with peer for the best attraction and retention. We recently produced a white paper related to parental and family leave.  You can find it here.

#5:  MA PFML has increased in benefits in 2022 and decreased contributions. MA employers should notify their workforce of the changes (employee acknowledgments are not required with this update; but you should continue to track acknowledgement for new hires).

#4:  CT PFL goes live January 2022. The State of Connecticut announced in July that Aflac has been selected as claims administrator for the paid leave program. Spring/Alera will have another webinar to help support any final implementation questions, stay tuned for details.

#3:  My colleague and friend Gretchen Day was quoted in the NYTimes about financial stress.  In short, she advocates employers to think more holistically about employee issues.  Give it a read.

#2:  Was delighted to collaborate with Aimee Gindin at Torchlight for a piece around Biden’s paid FMLA program.  We talk about juggling the 3Cs – Cost, Compliance and Culture.  Check it out here.

#1:  As HR professionals, I know you put your blood, sweat and tears into open enrollment.  It pains us that so many employees wait until the last minute or may not pay attention or understand the plans even though we have taken great care to make information accessible. My reminder to my HR friends and colleagues is for many employees, choice related to benefits is a burden. What we view as a comprehensive suite of thoughtful offerings is a chore on their to do list. They know how important it is but sometimes that makes it even harder to commit. Try to be patient with them!

 

Until next month!

Teri

Spring Team Member Named DMEC Emerging Leader

We are delighted to announce that Lai-Sahn Hackett, Spring’s Director of Market Research, was recently recognized by the Disability Management Employer Coalition (DMEC) as one of two recipients of their Emerging Leader Award for 2021. Lai-Sahn has been a self-starter since she started with Spring as a Consulting Analyst.

Lai-Sahn continuously takes on more to proactively become an expert in her field, making real contributions to not only our company and clients, but to the industry at large. Committed to professional development, Lai-Sahn helped create educational content for DMEC’s micro credentialing courses. She also plays a pivotal role in Spring’s industry-leading benchmarking and survey capabilities. She is adept at turning data into meaningful insights, cutting through the clutter so that organizations understand the areas of their programs that need action. Last year, Lai-Sahn was instrumental in launching a COVID-19 related benefits survey, gauging different reactionary measures taken by employers. She also took the findings of our annual healthcare benchmarking survey and created an innovative, digital benchmarking dashboard so that we can filter through client data in a range of ways for different comparisons.

Lai-Sahn is certainly deserving of the DMEC Emerging Leader Award and we couldn’t be more proud and lucky to have her on our team!

 

 

Congress Passes the American Rescue Plan Act

Congress has passed, and President Biden has signed, the American Rescue Plan Act, 2021 (ARPA), the third COVID-19 stimulus bill.  This new $1.9 trillion stimulus package includes several health and welfare benefits-related provisions relevant to employers and plan sponsors, as summarized below. COVID-19 law

FFCRA Paid Leave Extended and Enhanced

While COVID-19 vaccines are starting to become more readily available, the pandemic continues. In recognition, Congress extended through September 30, 2021, the refundable payroll tax credits for emergency paid sick leave (EPSL) and extended family and medical leave (E-FMLA), which were enacted pursuant to the Families First Coronavirus Response Act.  As with the extension through March 31, 2021 under the second stimulus package (the Consolidated Appropriations Act, 2021), only the tax credits are extended, which means compliance with the EPSL or E-FMLA requirements is voluntary for employers after December 31, 2020.

The ARPA expands FFCRA leave in several ways for employers who choose to offer it from April 1, 2021 through September 30, 2021:

  • The 10-day limit for EPSL resets as of April 1, 2021. Employees were previously limited to 80 hours from April 1, 2020 through March 31, 2021.
    • Paid leave continues to be limited to $511 per day ($5,110 total) for an employee’s own illness or quarantine (paid at the employee’s regular rate), and $200 per day ($2,000 total) for leave to care for others (paid at two-thirds of the employee’s regular rate).
  • A new “trigger” is added under both the EPSL and E-FMLA provisions.  Employees qualify for leave if they are:
    • seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19, and the employee has been exposed to COVID–19 or the employee’s employer has requested such test or diagnosis;
    • obtaining immunization related to COVID–19; or
    • recovering from any injury, disability, illness, or condition related to such immunization.
    • MBWL Note:  The ability of an employer to receive a tax credit for providing paid time off for an employee to receive the vaccine is a clear indication of the federal government’s desire to facilitate employees receiving a vaccine.
  • Leave under the E-FMLA provision is increased from $10,000 to $12,000, with $12,000 being the maximum an employer may claim for an employee in 2021.
  • Leave under the E-FMLA provision is expanded to be available for any EPSL-qualifying reason, which is when an employee is unable to work or telework because the employee:
    • is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    • has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • has COVID-19 symptoms and is seeking medical diagnosis;
    • is caring for an individual who is subject to a quarantine or isolation order;
    • is caring for a child if the school or day care center has been closed, or the child-care provider is unavailable, due to COVID-19 precautions; or
    • is experiencing any other substantially similar condition specified by the regulatory agencies.
  • E-FMLA leave taken on or after April 1, 2021 is not subject to the 10-day elimination period that applied previously under FFCRA.
    • An employee’s eligibility for E-FMLA may depend on when they used E-FMLA previously and how the employer establishes its 12-month FMLA period (e.g., calendar year, fixed period, measure-forward, or “rolling” 12 months).
  • For leave taken on or after April 1, 2021, the employers may take a credit against Medicare payroll tax only (1.45%); however, the credit continues to be refundable.
    • ESPL and E-FMLA credits are available for qualified health plan expenses and for the employer’s share of Medicare and Social Security taxes.
  • ARPA clarifies that refundable credits may be received by state and local governments that are tax exempt under Code 501(a).
  • ARPA adds a new nondiscrimination requirement that eliminates the credit for any employer that discriminates in favor of highly compensated employees, full-time employees, or employees based on tenure.

Dependent Care Assistance Program Limit Increase

In February, the IRS released Notice 2021-15, which provides guidance related to the relief for health FSAs and dependent care assistance programs (DCAPs) contained in the second stimulus bill. Unfortunately, the Notice failed to clarify with any certainty whether an employee may be taxed on any DCAP reimbursements in excess of $5,000 for the calendar year.  That issue is now settled by the ARPA, which increases the DCAP exclusion from $5,000 to $10,500 (from $2,500 to $5,250 in the case of a separate return filed by a married individual) for 2021. This relief is only available for calendar year 2021; however, it also implies that an employee could elect to increase their DCAP election to the newly available $10,500 limit for 2021 (based on the relief in Notice 2021-15).  A DCAP must be amended by the end of the 2021 plan year to take advantage of the increased exclusion limit.

Temporary Premium Tax Credit Enhancements

The Affordable Care Act’s premium tax credit program is significantly enhanced for 2021 and 2022. The existing income limit of 400% of the federal poverty level, after which individuals will no longer qualify for a premium tax credit, is lifted for 2021 and 2022. In addition, the applicable percentage of household income that individuals must pay for Marketplace coverage has been reduced at all income levels.  Special rules also apply to those individuals receiving unemployment compensation during 2021.

MBWL Note: The increased eligibility for premium tax credits makes it ever more important for applicable large employers (ALEs) to offer affordable, minimum value coverage to their full-time employees to avoid potential penalty exposure.

Temporary PTC Percentages Under ARPA
In the case of household income (expressed as a % of poverty line) within the following income tier: The initial premium percentage is— The final premium percentage is—
Up to 150.0% 0% 0%
150% to 200% 0% 2%
200% to 250% 2% 4%
250% to 300% 4% 6%
300% to 400% 6% 8.5%
400% and up 8.5% 8.5%

 

2021 PTC Percentages (Pre-ARPA)
In the case of household income (expressed as a % of poverty line) within the following income tier: The initial premium percentage is— The final premium percentage is—
Up to 133.0% 2.07% 2.07%
133% to 150% 3.10% 4.14%
150% to 200% 4.14% 6.52%
200% to 250% 6.52% 8.33%
250% to 300% 8.33% 9.83%
300% to 400% 9.83% 9.83%
400% and up Ineligible for PTC

COBRA Subsidy

The ARPA provides significant assistance to employees and their families who are eligible for COBRA (or state mini-COBRA) due to an involuntary termination of employment or reduction in hours.  The law provides a 100% subsidy for COBRA premiums from April 1, 2021 through September 30, 2021. The subsidy applies to group health plans other than health FSAs.

Employers who are subject to COBRA under ERISA (private employers) or the PHS Act (state and local governmental employers) are responsible for complying with the COBRA subsidy provisions.  Insurance companies are responsible for complying with the COBRA subsidy provisions for insured group health plans that are not subject to federal COBRA (e.g., when state “mini-COBRA” requirements apply to small plans that are not subject to federal COBRA, or to large group plans after federal COBRA is exhausted).  Additional highlights include:

  • The subsidy applies to an “assistance eligible individual” (AEI) who is any COBRA qualified beneficiary who is eligible for, and elects, COBRA during the period of April 1, 2021 through September 30, 2021, due to an involuntary termination of employment or reduction in hours.  (The reduction in hours is not required to be involuntary.)
  • AEIs must be offered at least a 60-day window within which to elect COBRA coverage.
    • The 60-day period begins April 1, 2021 and ends 60 days after the date the notice is provided to the individual.
    • AEIs include individuals in their COBRA election period, and individuals who would be AEIs but whose COBRA coverage lapsed due to non-payment prior to April 1, 2021.
    • MBWL Note: Many AEIs will still be within their COBRA election period as a result of the Department of Labor’s disaster relief (Notice 2021-01).
  • COBRA coverage elected during the subsidy period will be effective April 1, 2021; employees are not required to elect retroactive to the date of their qualifying event or any other date prior to April 1, 2021, nor are they required to pay outstanding premiums for prior periods of coverage in order to secure subsidized coverage.
  • Employers will be entitled to an advanceable, refundable tax credit against Medicare payroll taxes (1.45%) to pay for coverage during the subsidy period. The DOL will provide forms and instructions for employers to apply for the credit.
    • Additional guidance is expected for multiemployer (union) plans and professional employer organizations (PEOs).
  • The subsidy is available until the first to occur of:
    • the qualified beneficiary becoming eligible for other group health plan coverage (other than coverage consisting only of excepted benefits, such as dental or vision, coverage under a health FSA, or coverage under a qualified small employer health reimbursement arrangement (QSEHRA));
    • the qualified beneficiary becoming eligible for Medicare;
    • the end of the qualified beneficiary’s maximum COBRA duration; or
    • September 30, 2021.
  • Qualified beneficiaries who fail to notify the plan that they are no longer assistance-eligible can be liable for a $250 penalty, which may be waived if the failure was due to reasonable cause and not willful neglect. An intentional failure can result in a penalty of $250 or 110% of the amount of premium assistance received, if greater.
  • Employers may allow currently enrolled AEIs to select new plans.  An individual has 90 days from the date they are notified of the enrollment option to elect a different plan.  This option is available only if:
    • the premium for such different coverage does not exceed the premium for coverage in which such individual was enrolled at the time such qualifying event occurred;
    • the different coverage in which the individual elects to enroll is coverage that is also offered to similarly situated active employees; and
    • the different coverage is not coverage consisting only of excepted benefits, such as dental or vision, coverage under a health FSA, or coverage under a QSEHRA.
  • Required Notices to Individuals
    • General Notice / Notice of Subsidy Availability. Individuals who become eligible to elect COBRA during the subsidy period (April 1, 2021 – September 30, 2021) must be provided a notice that describes the availability of the premium assistance. The notice requirement may be satisfied by amending existing notices or by including a separate attachment. The notice must include:
      • the forms necessary for establishing eligibility for premium assistance;
      • the name, address, and telephone number to contact the plan administrator and any other person maintaining relevant information in connection with such premium assistance;
      • a description of the extended election period;
      • a description of the obligation of the qualified beneficiary to notify the plan when they are no longer eligible for a subsidy and the associated penalty for failure to do so;
      • a description, displayed in a prominent manner, of the right to a subsidized premium and any conditions thereon; and
      • a description of the option to enroll in different coverage if the employer so permits.
    • Notice of Extended Election Period. AEIs must be offered at least a 60-day window within which to elect COBRA coverage.
      • The 60-day period begins April 1, 2021 and ends 60 days after the date the notice is provided to the individual.
      • This includes:
        • individuals terminated on or after April 1, 2021;
        • individuals in their COBRA election period on April 1, 2021 (including any COVID-19-related extensions); and
        • individuals who would be AEIs but whose COBRA coverage lapsed due to non-payment prior to April 1, 2021.
    • Notice of Subsidy Expiration. Informs AEIs that the subsidy period is ending.
    • The notice must disclose that:
      • premium assistance for the individual will expire soon and the date of such expiration;
      • the individual may be eligible for coverage without any premium assistance through COBRA or coverage under a group health plan.
    • The subsidy expiration notice is not required if the subsidy is ending due to the individual becoming eligible for another group health plan or Medicare.
    • This notice must be provided not more than 45 days but no less than 15 days before the premium assistance ends.
    • Model Notices. The DOL must issue model notices of subsidy availability and extended election period within 30 days of enactment, and a model notice of subsidy expiration within 45 days of the law’s enactment.

What Does This Mean For Employers?

Employers and plan sponsors should consider whether they will adopt the extended FFCRA leave provisions and/or use them to incentivize employees to receive a COVID-19 vaccine. They should also ensure their COBRA vendors are prepared to assist in identifying and notifying assistance eligible individuals within 60 days of April 1, 2021.  The DOL also plans to provide outreach consisting of public education and enrollment assistance relating to premium assistance. Their outreach will target employers, group health plan administrators, public assistance programs, States, insurers, and other entities as the DOL deems appropriate. The outreach will include an initial focus on those individuals eligible for an extended election period. We also expect the DOL and other agencies to issue guidance on various issues related to the subsidy in the coming weeks.

About the Author.  This alert was prepared for Alera Group by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on ERISA-governed and non-ERISA-governed retirement and welfare plans, executive compensation and employment law.  Contact Stacy Barrow or Nicole Quinn-Gato at sbarrow@marbarlaw.com or nquinngato@marbarlaw.com.

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.

© 2021 Marathas Barrow Weatherhead Lent LLP.  All Rights Reserved.

9 Areas of Focus for HR Right Now – Part 7

Thanks for joining us on this nice little reflective exercise. There has been so much news to keep up with this year, that we thought it would be helpful to put pen to paper on our key COVID takeaways. We hope our numbers 1 through 6 provided some food for thought, and also some helpful advice. We are back this week with number 7, and it’s a big one.

 

  1. Leave & Accommodations

Leave laws are always front and center for us at Spring, but this year we had different considerations. While this topic interplays with many of the other themes on this list, I thought it important to reiterate some key legislative items we’ve been dealt this year.leave management covid

 

Currently there are very few legal parameters for supporting working parents during the pandemic, and no protections for employees worried about exposing people in their household. Any accommodations allowed here are largely based on the discretion of the employer. For working parents, consider flexible hours and different shifts. Further, companies should think about whether teleworking could work more permanently, you are likely to face some employee hesitancy to return to the office. This will be especially important depending on your office location and the case rates in that area.

 

As we think about traditional ADA accommodations processes and try to carry them out in a COVID world, we pose the following questions:

  • If an employee self-identifies themselves as high-risk, should an employer be asking for proof?
  • If an employee states they cannot wear a mask due to a disability, but cannot provide documentation, what does the employer do?
  • If an employee is asking for leave but is not eligible under ADA or FMLA, what other options are available?

I recently presented at DMEC where we suggested implementing short-term accommodations trials, especially when there is difficulty obtaining documentation, which there has been due to closing of medical offices to non-emergency patients and reluctance to visit medical offices out of fear. So if an employee asks for accommodation without documentation, try something that you find reasonable for 3 or 6 months without asking for medical information, and then revisit the trial at that point. Further, exhaust all return to work options (whether in-person or remote) first, and use leaves as a last resort.

With the expiration of the FFCRA, Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) is no longer required, but the tax credit has been extended. Click here for more details on that. All of these complexities are making the case for federal leave law, in which we could avoid this patchwork of different leaves, but speakers remarked that while the desire is there, there are too many challenges to get it going during this economic climate.

Several states have implemented their own leave policies related to COVID: California, New York, New Jersey, Colorado, Washington D.C., with pending legislation in Massachusetts. Employers in these states will need to weave these into their programs.

Further, while there is no leave currently for those afraid to return to the workplace, employers should be cautious as it is possible for debilitating anxiety to occur in these cases, which could trigger a leave.

 

At the end of the day, while employers often worry about misuse of programs, research shows that less than 5% of individuals taking leave are abusing it. Further, as engrained in our culture, people are generally shamed of needing time of work to take care of themselves or others. To this end, we need to take a caring lens when it comes to leave and accommodations. Lastly, communicate your policies often, be proactive, make it easy for employees to find available resources, check in on  your colleagues, and be sure to have formal Stay and Work and Return to Work programs in place and updated.

 

Don’t miss our series wrap-up, numbers 8 and 9, coming to your inbox next week!

The Paid Leave Momentum

According to SHRM, paid leave may have been 2020’s biggest workplace news.  A number of U.S. companies (between 27% and 52% depending on the study) expanded their paid leave benefits, with paid parental leave growing at a faster pace than paid family care leave1. The states and jurisdictions of California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, and Washington DC have passed paid family and medical leave (PFML) laws to date and at least another ten states are considering them. In addition, numerous localities have passed paid sick and safe leave laws. These can vary across cities and counties, even within a given state.Paid leave in US

On a federal level, laws exist such as the Family and Medical Leave Act (FMLA), enacted in 1993, which affords unpaid job-protection, and programs such as the Fischer Tax Credit, the Federal Employee Paid Leave Act (FEPLA), and the Families First Coronavirus Response Act (FFCRA). Federal programs offer limited coverage as wage replacement and job protection may or may not be included in each law. A federal paid leave program is now seemingly supported by both democratic and republican parties, with the biggest difficulty being how to pay for it.

In addition, and to complement paid leave policies, more companies are offering and triggering EAP and wellness programs than they have in the past. About a fourth of companies say they provide a caregiver benefit, separate from EAP, that might include flexible work hours, personal time, counseling services, free programs for finding and managing care, employer subsidized online resources, child, or eldercare.2 You can read more about the landscape for caregiver benefits here.

This momentum has been a positive move towards bringing our country closer to the other 40 nations that mandate some degree of paid leave3, and to help employees balance time for work, family, and medical needs, but creating such programs is not without its challenges.  With no two state PFML jurisdictions sharing the same standards, the varying employer, state, and federal programs result in a “patchwork” of definitions and standards for companies to contend with.  They can also limit employer flexibility to address the unique needs of their workforce, expose employers to financial liability, and create inefficient administration processes4 that result in an increased HR/Benefits workload5.

To overcome these challenges, the time is now for employers to review their state and national employee base and consider how leave benefits can be provided in accordance with their culture, appetite for risk and desired employee experience.  Key questions to begin with include:

  • Where do the bulk of my employees work?
  • What corporate disability, paid family and medical leave and sick or safe leave policies are they subject to?
  • How are these plans being offered, administered, and paid for?
  • To what extent do they coordinate or integrate with other leave of absence, workers’ compensation and sick or PTO policies? Or with broader health and wellbeing programs?
  • To what degree can the process be centralized? Can current vendor partners be leveraged to streamline? Can tools be provided to simplify, educate, and personalize?

Taking these factors into account gives benefit professionals the opportunity to heighten the discussion with senior management, consider plan and policy design more holistically and determine administration that will minimize employee confusion, position managers for stronger engagement, and lead the organization towards better outcomes.

 

 

Sources

[1] Leave and Flexible Working Survey, SHRM Employee Benefits, 2019.  Paid Time Off Survey, WorldatWork and PTO Inc., 2019. Integrated Disability, Absence and Health Management Survey, Spring Consulting Group, 2020.

[2] Integrated Disability, Absence and Health Management Survey, Spring Consulting Group, 2020.

[3] Data compiled by the Organization for Economic Cooperation and Development (OECD), 2018.

[4] Paying the Way, Large Employers and the State Paid Leave Patchwork, The ERISA Industry Committee, 2020.

[5] Paid Leave: Exploring the Impacts to Other Benefits Programs, Spring Consulting Group and ClaimVantage, 2020

9 Areas of Focus for HR Right Now: Parts 5 and 6

Thanks for tuning back in as we share our most noteworthy reflections around how priorities have changed for folks in this industry. We hope you caught numbers 1-4 (link). After over six months of combatting COVID-19, we have figured a lot out, but questions remain. Here we are with numbers 5 and 6 on our list.Women in the workforce COVID

 

  1. Women in the Workforce

Policies like maternal leave and breastfeeding accommodations have long been debated, but this year women are facing even more pressure. For one, it’s been reported that women continue to shoulder the burden of having children while working at home. I am sure there are plenty of involved dads out there, but it does seem to be women who are largely being tasked with homeschooling, activities, meals, etc. and who are being interrupted by children during the workday. They may be struggling to keep up with the demands of work and home, and feeling like they have to choose. We hope that once we start seeing consistent success in education during the pandemic, and eventually vaccines, women will gain back their confidence. However, employers should be thinking about how to be flexible with working mothers so that they don’t have to take leave, as reengagement will be difficult.

Another hot topic related to women is the issue of pregnancy during these COVID times. Many pregnant women have extra fear of being exposed to the virus and are likely to err on the side of caution, meaning they may be reluctant to return to the workplace. Things get tricky here, as pregnancy is not a disability in the eyes of the ADA and therefore does not offer an accommodation to pregnant women. Further, because of the Pregnancy Discrimination Act, employers cannot single out pregnant employees. This conundrum has several states trying to fill this pregnancy gap in upcoming legislation. Finally, let us not forget, as employers, about single women lacking a support system at home.

 

  1. EAPs

I got a lot of value out of one DMEC session focused on Employee Assistance Programs (EAPs) and I thought I would share. EAPs are a severely under-utilized tool. This is due to lack of awareness, stigma around mental health and addiction, company culture, confidentiality concerns, and accessibility or time constraints. Many employees don’t realize the amount of free or discounted services associated with EAPs, with costs being another barrier.  However, as we saw, mental and behavioral health problems are rising at an unprecedented rate, and EAPs could be a critical mitigating factor, but only if they are leveraged.

When it comes to EAPs, you should:

  • Ensure managers are adequately trained on the program(s) offered
  • Partner with your provider to increase communications and remove obstacles
  • Link EAP access to other HR programs such as wellness initiatives
  • Monitor program effectiveness through regular surveys and performance checks
  • Check in with employees before, during and after an EAP request – did they find the resources they were looking for?

We may see EAPs transform from a “nice to have” to a “must have” in the future. If that’s the case, all of us in this industry need to understand how to better drive utilization, because it’s clearly not enough to simply provide one. Spring can help with this!

 

We’ll be back soon with our #7 and beyond.