Compliance News and Updates: April 2022

It’s essential to keep up with the latest news, and that’s why we’re providing another option besides reading about them – now you can listen to the latest compliance news instead. During this episode of Lincoln Absence Advisor, we discuss April’s top stories – not just what is happening but also why, and how it may affect employers’ leave and absence decisions. This month’s stories focus on Washington state’s amendments to the family and medical leave program, EEOC guidance on discrimination against persons providing pandemic caregiving responsibilities, and Maryland’s announcement about paid family and medical leave. 

Resources mentioned:

April Compliance Report | Compliance Report Archive on the Lincoln Absence Advisor hub | Washington’s page on rule making | The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws

© 2022 Lincoln National Corporation. All rights reserved.  LCN-4698888-042122

Transcript

Karen Batson: 0:00

Hi, everyone. This is Karen Batson Marketing Manager at Lincoln Financial Group. And we are back with another episode on our compliance report. I am joined by my producer Bryan Olivier, who's going to keep me on track.

Bryan Olivier: 0:16

Hey, Karen. Yeah, I was fun last month. Let's do it again.

Karen Batson: 0:19

I know, can you believe we're actually already doing this? Again, I feel like we just recorded March.

Bryan Olivier: 0:23

It feels like we just did it. I know.

Karen Batson: 0:25

Well, a lot of news has actually come in since our last recording. So this is we have a lot of topics to cover a lot of interesting tidbits. But before we jump into that, a reminder to our listeners of what the compliance report is. So every month we compile all the news that is happening in the leave landscape. These can be updates to programs, clarification, new resources that are available to you. And we put it all in one place. And we also started to do these podcast episodes, if you don't feel like reading through everything, but just want a quick soundbite of all the top stories. That's what we're going to do today. I think, given today's stories that we're going to go into, I also want to point out that a lot of this news is ongoing. A lot of what we'll cover today, more information will probably be coming over the course of the next honestly few years. So they're not may not be answers to everything. But we want to give you what we know. That's the goal. So...

Bryan Olivier: 1:24

So given that we've got a lot to do, and should we jump in?

Karen Batson: 1:28

We should we should.

Bryan Olivier: 1:30

All right.

Karen Batson: 1:30

Keep me on track, Bryan.

Bryan Olivier: 1:31

I will try my best there's a lot today. Okay, so first off, there's some pretty significant updates from Washington. So do you want to start there? What are some of the things you want to share about that?

Karen Batson: 1:43

Yeah, before we dive into kind of all of the amendments that are in this month's compliance report, I want to point out that Washington has ongoing rulemaking. They actually have a page on their website that walks through past rulemaking, as well as what is currently in progress, which includes what we're about to talk about. And I'll post a link to this page in our show notes description so you can see it and follow it along if you're ever looking for more information. So here's what's happening. The implementation of second substitute Senate Bill 5649, will be moving to rulemaking. This bill was signed by Governor Inslee on March 30, and will be effective on June 9 2022. There are quite a few moments. So we'll go through each one first. Employees may take family leave during the seven calendar days following the death of the family member for whom the employee would have qualified to take medical leave for the birth of their child, or would have qualified for family leave bonding.

Bryan Olivier: 2:44

That's a mouthful...a little bit confusing. Can you clarify that a little bit?

Karen Batson: 2:51

So I'm glad you made this comment? And unfortunately, I can't provide you anymore. We are hoping that there'll be more clarity from the state once the rulemaking kicks off. And we don't really have a date for that rulemaking. But as soon as we do have clarity will provide more insights in the next that compliance report that's closest to that date. But I think this one out of all of them is probably the most most confusing as I've gotten a few comments on that but more to come, unfortunately. Yes, yeah. Okay. It was hard to say, actually. Alright. Number two, leave taken by certain employees in the postnatal period, or the first six weeks after giving birth must be medical leave unless the employee chooses to use family leave. A certification of a serious health condition form is not required for paid leave benefits used in the postnatal period by an employee eligible for benefits based on a period of incapacity due to pregnancy or for prenatal care. Also a bit of a mouthful, but hopefully more clarity will come also on this one. Number three this one will be a little easier. The collective bargaining agreement or CBA exception in the PFML program expires on December 31, 2023. Previously, employees who were covered by a CBA in existence as of October 19, 2017, which had not been reopened, renegotiated or expired were not required to participate in the Washington PFML program. The expiration of the CBA exception means that employers will have to withhold premiums from the previously CBA covered employees, pay the employer share of the premium for these employees, and include these employees in their quarterly reports. Number four, the Employment Security Department or ESD, who administers the state paid family and medical leave program must publish on its website current list of all employers that have approved voluntary plans.

Bryan Olivier: 4:53

So is that a is that a unique thing to Washington or do other states do this? And I guess why publish this list, what's the what's the reason for that?

Karen Batson: 5:02

So the reason is transparency actually. So this was made as a recommendation from employee representatives on the Washington PFML Advisory Committee. And as for other states, The New York PFL program does something similar where employees can use the search tool on the Workers Compensation Board website to find their employers PFL insurance carrier, it's still unclear how the ESD is going to actually publish this list how they're going to maintain it, like how often it will be updated. So there'll be more more information to come as again as rulemaking takes place. Fifth part to bring up here beginning July 1, 2022, and until 12 months after the end of the state of emergency declared by the governor due to COVID-19. The ESD must ask the employee applicant whether their family or medical leave is related to COVID-19 pandemic. This information is needed for monitoring potential impacts on the solvency and stability of the Family and Medical Leave insurance account. Update six, an office of actuarial services is established within the ESD. This office is required to provide annual reports on the status of the Family and Medical Leave insurance account and the lowest future premium rates necessary to maintain solvency. In addition, the law authorizes the ESD to immediately contract with a third party actuary to review and provide a report on the status of the Family and Medical Leave insurance account and recommendations for the long term stability and solvency. This report is due to the legislature by October 1, 2022. I feel like I want a section where we're going to be giving a lot of dates. So update seven beginning October 1, 2023. The ESD is required to provide quarterly reports to the Advisory Committee on premium collections benefit payments, the Family and Medical Leave insurance account balance and other program expenditures. Also update eight. The new law also establishes a legislative Task Force on paid family and medical leave insurance premiums. They are tasked with reviewing reports and making recommendations for legislative modifications to ensure the lowest future premium rates necessary to maintain solvency of the Family and Medical Leave insurance account. The final report of the task force is due on December 30, 2022.

Bryan Olivier: 7:23

So, yeah, so you mentioned you mentioned a lot of date updates. But also it seems like there's a lot in here about solvency and premium rates and stability of the account. Are they concerned?

Karen Batson: 7:33

So it's interesting, if you follow the news around the Washington PFML Program, you would have come across headlines in the beginning of the year about a possible deficit because the program was much more popular than expected. And it feels like they're trying to establish the right checks and balances to monitor that type of concern. And so they can stay ahead of it in the future. All right update nine. The law also mandates the Joint Legislative Audit and Review Committee to conduct a performance audit analyzing the implementation of the Washington PFML program. The final report of the Joint Legislative Audit and Review Committee is due on October 1, 2024, with an interim progress report due on October 1, 2023. And the last thing I have for this update on Washington is if specific funding for the purposes of this law, everything we've talked about is not provided by June 30, 2022. And the Omnibus Appropriations Act, this law will be null and void.

Bryan Olivier: 8:33

So yeah, so that was a lot from Washington. Karen.

Karen Batson: 8:36

Yeah, just a little bit.

Bryan Olivier: 8:37

So the EEOC also just announced some guidance on discrimination against persons with pandemic caregiving responsibilities. So what does that look like?

Karen Batson: 8:46

So they actually put kind of like a guidance overview together. And I think it's important to note that this update used established policies to create this technical assistance document. It considers violations under Title Seven of the Civil Rights Act of 1964 titles one and five of the Americans with Disability Act of 1990, sections 501 and 505 of the Rehabilitation Act of 1973 and other EEOC enforcement laws.

Bryan Olivier: 9:15

This is really just applying existing laws or guidance to specific COVID-19 pandemic related caregiving issues?

Karen Batson: 9:22

I think they have a lot of best practices, and were able to kind of put it all in one place to make it an easier resource for probably employers and employees. As we go through kind of some of the info that's in these in this document. Some of it will seem like you've heard it before.

Bryan Olivier: 9:38

Okay, good. So let's jump into that what's in there?

Karen Batson: 9:41

Let's jump in. So the US Equal Employment Opportunity Commission or EEOC issued a technical assistant document on the COVID 19 pandemic and caregiver discrimination under federal employment discrimination laws to provide additional guidance on what constitutes discrimination against us applicants and employees with pandemic caregiving responsibilities 18 Q and A's on Caregiver discrimination based on a characteristic protected by federal employment discrimination laws, or the intersection of two or more characteristics are discussed in this document. The EEOC pointed out that discrimination based on caregiving may arise often connected to gender based stereotypes about caregiving responsibilities or roles. Examples include refusing to hire or promote a female employee based on assumptions that she would be primarily focused on caring for her child and or other family members, or refusing to provide leave or permission to work a flexible schedule for male employees if their employer grants such requests when made by similar situated women. In addition, discrimination may also arise based on pandemic related caregiving responsibilities for an individual with a disability. For example, refusing to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic based on the employers assumption that the employee would not be fully available to colleagues and clients are committed to the job because of the employee's caregiving obligations for a child with a disability. Lastly, while employers are not required to excuse poor performance, if it's a result from employees caregiving responsibilities during the pandemic, the EEOC urges employers to consider how adjustments can be made to work related tasks or events to enable employees to balance work and personal obligations without impairing performance or productivity.

Bryan Olivier: 11:29

Okay, so we talked a little bit about they maybe pulling some of this information in from different places. But what's the reason for for doing this now?

Karen Batson: 11:37

So there's a good quote and let me let me find where I wrote it down, should have had this ready.

Bryan Olivier: 11:42

And some of the information looks new for sure. Like the some of the q&a stuff is probably brand new.

Karen Batson: 11:47

Honestly, I was I was reading some of it and it really is a great tool. So I do suggest people to check it out. We do have a link in the show description to take you right to that q&a document. As to the why here's a kind of good quote from EEOC chair Charlotte E. Burroughs. As the pandemic evolves and the country moves to a new normal, we cannot assume caregiving obligations have ended the work that caregivers do, whether as employees or as unpaid workers in the family is in all of our interests, by ensuring that caregivers know their rights and employers understand their responsibilities, the EEOC will help ensure that America's recovery from the pandemic is an equitable one. I liked that quote. I'm glad we could share that.

Bryan Olivier: 12:33

Yeah, that was helpful.

Karen Batson: 12:34

What's next?

Bryan Olivier: 12:35

Last but not least, I guess, by no means least, actually.

Karen Batson: 12:39

Right. So hot off the presses.

Bryan Olivier: 12:41

Yeah, right. hot off the presses. Guess there's a big update from the state of Maryland. So I don't want to steal your thunder. But what can you tell us about that?

Karen Batson: 12:49

So on April 9, 2022, Senate Bill number 275, also known as the Time of Care Act of 2022, became law, when the Maryland legislature overrode the governor's veto. The bill established the Family and Medical Leave insurance program within the Maryland Department of Labor. So Maryland passed a paid family medical leave program.

Bryan Olivier: 13:12

Wow. So that makes how many states now?

Karen Batson: 13:15

So Maryland will now be the 10th state to have a paid family leave program?

Bryan Olivier: 13:19

All right.

Karen Batson: 13:20

Should we go over what we know.

Bryan Olivier: 13:21

I think we should

Karen Batson: 13:22

Now I'll caveat the same thing I said in the intro. There'll be more info on this to come for sure. All right. So first up, assessment and collection of contributions will begin on October 1, 2023, and benefits will become payable January 1, 2025. As for what those contributions will be that we don't know yet, what we do know is that the state will be conducting an actuarial study determine the total contribution rate as well as the percentages to be allocated to employees and employers. The Secretary of Labor will announce the rate and percentages on or before June 1, 2023. The rate will be adjusted every 24 months with new rates announced on or before June 1 for the period beginning the following January 1, contributions will be capped at the Social Security Wage Base. Most employers and governmental entities that employ at least one individual in the state must provide paid family and medical leave to covered employees. Employers can opt out of the state run program by having an approved private plan. But as we see in most of these programs, the private plan must be equivalent or greater than the benefits leave durations and protections in the state plan. Covered individuals include covered employees and self employed individuals who have opted into the program covered employees are employees who have worked at least 680 hours over the 12 month period immediately preceding the date on which leave is to begin. Covered individuals can take family leave to take care of a family member with serious health condition to bond with a child within the first year after birth or in cases of adoption. foster, or kinship care within first 12 months after placement and our adoption, they can also take family leave to attend to a qualifying military exigency, or to care for a family member who is a covered service member. Medical Leave can be taken to attend to a covered individual's own serious condition.

Bryan Olivier: 15:19

So can I just ask a question?

Karen Batson: 15:20

Yeah, of course.

Bryan Olivier: 15:21

So you mentioned, I know that we're always talking about like, family member definitions and covered individuals. And we'll get we'll get some of that, I assume. But you said kinship care, which is kind of a new term for me in all this. Yeah. So what is that? Or is that is that really new.

Karen Batson: 15:37

So in comparison to other paid family and medical leave programs, it's new. It's actually one of the things that makes Maryland a little bit unique, but they're including it. So the PFML law doesn't define this yet. Okay. But there is a definition from the Maryland Department of Human Services that may help give our listeners some guidance to at least understand what that might mean, when the law comes out. This is unique, because typically, what we've seen is that only the foster relationship is considered in an unpaid or paid leave program. And there is a difference between kinship and foster care. So Maryland defines as a temporary service that provides short term care and supportive services to children who are unable to live at home because of child abuse or neglect. Foster children live in a family foster home and group care settings. So when a child is placed with a kinship caregiver who needs leave to bond with a child after placement, that may leave a gap where the kinship caregiver is not formally considered a foster parent and the Maryland PFML law addresses that gap. But again, still gonna want some more information before

Bryan Olivier: 16:51

Yeah, not defined as related to this law yet.

Karen Batson: 16:53

Yeah, exactly.

Bryan Olivier: 16:54

So then, why don't we get into the definition of the family members that we do know?

Karen Batson: 16:58

All right, so there's a long list here, we took it right from the law of what's covered. So one, a biological child, an adopted child, a foster child, or stepchild of the covered individual, two a child for whom the covered individual has legal or physical custody or guardianship. Three, a child for whom the covered individual stands in loco parentis regarding the child's age, four a biological parent and adoptive parent, a foster parent or a step parent of the covered individual, or of the covered individual spouse, five, the legal guardian of the covered individual or the ward of the covered individual, or the covered individual spouse, six, an individual who acted as a parent or stood in loco parentis to the covered individual, or the covered individual's spouse when the covered individual or the covered individual's spouse was a minor, seven, the spouse of a covered individual, an eight, a biological grandparent an adoptive grandparent, a foster grandparent, or a step grandparent of the covered individual. Actually, sorry, there's two more nine a biological grandchild and adoptive grandchild, a foster grandchild or step grandchild of the covered individual, or last, a biological sibling, an adopted sibling, a foster sibling, or a step sibling of the covered individual. I apologize for reading that out loud from writing to our listeners. But we literally just got this information. So I want to make sure we included it in today's episode. All right, so a few more things about Maryland, covered individuals will receive a weekly benefit that will vary depending on income, the portion of an individual's average weekly wage that is less than or equal to 65% of the state average weekly wage will be replaced at a rate of 90% plus an additional 50% of the portion of an individual's average weekly wage, that is more than 65% of the state average weekly wage. These are so confusing these equations from someone who's written it in marketing material over and over again. So we will, as usual try and put a nice graphic together. So people can understand this a little bit better. But it is in writing in the compliance report. So if you didn't understand what I said, at least, you can go and download that the minimum weekly benefit amount will be $50. benefits will be capped at$1,000 per week until December 31, 2025. Subsequently, the Secretary of Labor shall adjust the maximum weekly benefit, which will be announced on September 1, 2025. And will be effective as of January 1, 2026. Can you believe we're already talking about things happening...

Bryan Olivier: 19:44

I was just thinking about that? That's crazy.

Karen Batson: 19:47

And it'll be here so fast And a question we often get asked about these programs. How a program interacts with FMLA or other existing leave entitlements. So what we know here from Maryland, if covered individual's need for leave also qualifies for protections under federal FMLA. Their paid leave under the new law will run concurrently with their FMLA absence. In addition, they will be required to exhaust all employer provided leave before receiving their PFML benefits.

Bryan Olivier: 20:17

Okay, so this is the this is like the first little bit of stuff that we've uncovered, right? So I assume we're gonna learn a lot more as new information comes out. So how do you recommend people stay informed and connected to what's happening?

Karen Batson: 20:29

I know I say this all the time. But first and foremost, this compliance report that we put out, as soon as we know things, we put it in there, we try and translate it so it's understandable, and get it out to you. And if quite honestly, if it's really complex, it will probably end up on a podcast like this. So we can provide even more information. If you followed us when, you know, through the development and launching of Massachusetts, and Connecticut or even have just started to follow us with Oregon and Colorado, we do try and have podcast episodes that dive in. We'll cover these programs in our webinars. And we really do try and share as much news as possible through the compliance reports. So really, anything under Lincoln Absence Advisor will help you stay informed. But I'm sure also, the state will have websites out there that you can subscribe to or make sure you have bookmarked to get the real time information. So those are our top stories, there are more stories in the compliance report for our listeners, but those we felt were like the big ones, the top of the top,

Bryan Olivier: 21:29

Big, big updates from on a couple of states.

Karen Batson: 21:31

Yeah. So to reiterate, we kind of ended up having to bring it up a few times through these updates, though, that these compliance reports are sent out to our email database at the end of every month, usually the last Tuesday of the month, depending on holiday. So if you're want to get on that list, please reach out to your Lincoln benefits professional, and they can help get you subscribe so that you're getting it in real time. Also, we'll continue to do these podcasts so you can kind of listen to the top story. So definitely let us know what you think if you think these are helpful, or if there are other things that we should cover in our compliance report overview, you can definitely do that with your Lincoln benefits professional or rate us through any podcast app. We have more episodes coming out. We have two episodes a month, and we're working on May and June right now. So I'm excited to share some new topics with you all. And of course, we thank you all for joining us today. And listening to today's podcast. We always want to know what you think of this show in the series. So let us know by rating us sharing out an episode or reaching out to Lincoln benefits professional. You can also follow us on pretty much any podcast application Apple, Spotify, or whatever your preference is.

Disclosures: 22:46

The information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource professional. Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.