Lincoln Absence Advisor

Update: City ordinances and New Jersey

April 23, 2020 Lincoln Financial Group Season 1 Episode 8
Lincoln Absence Advisor
Update: City ordinances and New Jersey
Chapters
Lincoln Absence Advisor
Update: City ordinances and New Jersey
Apr 23, 2020 Season 1 Episode 8
Lincoln Financial Group

The Families First Corona Response Act expanded paid sick leave and FMLA leave nationally – but only to employees of companies with under 500 lives. In this episode of Lincoln’s Absence Advisor podcast, Lincoln’s Sarah Montgomery, Assistant Vice President and Senior Counsel for Group Protection and Kim Rudeen, Assistant Vice President of our leave management products, talk about some municipal ordinances being enacted across the country, and how these new rules are seeking to fill the gaps left by federal and state legislation.  Additionally, we discuss the newest updates in New Jersey and what you need to know.

For more information visit: https://www.lfg.com/public/covid-19guidance

LCN-3053576-042220

© 2020 Lincoln National Corporation. All rights reserved.

Show Notes Transcript

The Families First Corona Response Act expanded paid sick leave and FMLA leave nationally – but only to employees of companies with under 500 lives. In this episode of Lincoln’s Absence Advisor podcast, Lincoln’s Sarah Montgomery, Assistant Vice President and Senior Counsel for Group Protection and Kim Rudeen, Assistant Vice President of our leave management products, talk about some municipal ordinances being enacted across the country, and how these new rules are seeking to fill the gaps left by federal and state legislation.  Additionally, we discuss the newest updates in New Jersey and what you need to know.

For more information visit: https://www.lfg.com/public/covid-19guidance

LCN-3053576-042220

© 2020 Lincoln National Corporation. All rights reserved.

Karen Batson:

Hi everyone, this is Karen Batson Marketing Manager for Leave and Disability at Lincoln Financial Group. We continue to monitor various laws and regulations that help with Coronavirus and COVID-19. To discuss these changes, every week or so I set up a quick call with Sarah Montgomery, Assistant Vice President and Senior Counsel for group protection and Kim Rudeen, Assistant Vice President of our leave management products. Today we will cover city ordinance changes as it pertains to paid sick leave as well as the most recent changes in New Jersey. Welcome ladies. Thank you so much for joining us again. For I think your second or third podcasts for each of you. So welcome. Now there's still changes coming. We still continue to have conversation on what's going on. So I'm going to jump right in with my first question of why are certain cities looking at their paid sick leave?

Sarah Montgomery:

I think the trend that we're seeing this week and kind of week five of Corona as I call it, since we've all been working from home and it's week five of just seeing things change so significantly since Corona started. The trend for week five is definitely filling gaps in existing legislation that's been passed on a state and federal level. So I think the theme for this week would be the cities are responding to gaps left under the Federal Family's First Corona Relief Act, the FFCRA, the gaps that were left, um, in that law, which mandated, paid sick leave and potentially expanded FMLA leave. Only to employees who work for employers with under 500 lives. So the legislation we're seeing coming out of in the ordinance is coming out of the cities, are designed to address that by mandating paid sick leave to be available to employees who work for employers with over 500 lives. Um, and we've been seeing this take place in certain cities in California, notably San Francisco. Their bill has not gone into effect yet, it's awaiting the mayor's signature, but the ordinance has passed. Los Angeles and San Jose.

Kim Rudeen:

Yeah. And I think for those of us who have been around the absence, you know, block for a little while, this feels very much like when the federal FMLA, you know, kind of first became a thing. And willing to be outsourced. We started seeing a lot of States, you know, passing kind of laws to top up, and kind of round out where they felt like the federal FMLA wasn't enough. So I think we're seeing a similar trend here. It was like the FFCRA set the floor really with that, you know, here's what it's going to apply to employers with under 500 in those public employers and now the cities in the States, you know, maybe coming in to kind of layer on and round that out. I think it's very similar to what we've seen with unpaid leave laws for years.

Karen Batson:

You mentioned three cities in California that we've been looking at that have passed certain ordinances. Is there anything about those programs that we'd want to talk about today?

Sarah Montgomery:

So I think each ordinance is a little bit different and there are subtleties or unique items to each program. So again, I'm going to throw in a caveat here that um, with the sick leave ordinances, sick leave programs, aren't laws that we ordinarily administer for clients. And so I would encourage anybody, listeners of this podcast, to check with their own employment counsel on what the implications are of these ordinances on their employees. But you know, kind of generally thematically these ordinances were enacted to mirror the FFCRA. So, you know, generally we're seeing employees, full time employees will be eligible for 80 hours of paid sick leave part time employees would be eligible for basically, you know, the average number of hours they worked over a two week period to try to get the decent amount of paid time available to them that matches their regular work schedules.

Sarah Montgomery:

We're also seeing, you know, the leave reasons for this type of leave be COVID related, whether it's a quarantine order or a shelter in place order. Um, a couple of different things we've seen in the cities, are leave reasons are extended to employees who are members of what are called vulnerable populations. Those are traditionally employees who are 60 years or older and who may have certain health conditions that put them at a higher risk for COVID, like heart disease, lung disease, diabetes, kidney disease or other conditions that would weaken their immune system. And um, you know, in case of San Francisco that vulnerable population was extended to pregnant women. We're also seeing leave reasons included, you know, advice of a healthcare provider to self quarantine or to seek and medical diagnosis. And these sick leaves also enable employees to take time to care for a family member who may be subject to a quarantine order or has been experiencing symptoms.

Sarah Montgomery:

The leave reasons are also extended to employees who need to care for their children because their school or daycare provider has closed. So again, very close to what we're seeing on the federal level and just really trying to extend, uh, fill the gap and extend coverage to employees who may not have access to a paid sick program. And just finally that this, these bills are all directly related to and cover employees who cannot work or telework. So these are really just trying to fill in when an employee cannot work to these covert related reasons.

Karen Batson:

So fundamentally across the cities, at the crux of all of it very similar programs, are there, does anything stand out in one city that might be a little bit different than the other?

Sarah Montgomery:

Um, there are a few things and this is again, why, you know, we encourage everybody who's listening to really go back and work with their employment council and check the ordinances themselves.

Sarah Montgomery:

Cause there are just some things that are different. You know, Los Angeles has different exceptions than San Francisco. For example. Some, uh, some of the cities allow exceptions for employees who are emergency health personnel or healthcare workers. They may not be allowed to the same entitlement as other employees. Um, for instance, in Los Angeles, a parcel delivery employees are considered, uh, essential employees that may not be allowed to take, leave these programs, which is something we didn't see in the ordinances in San Jose or San Francisco. So again, it's um, you know, nuances and details are important and will impact employee population. So again, we uncover, encourage everybody to definitely look at these and we will provide links to the ordinances as an acted on or covert 19 hubs. So definitely check there.

Karen Batson:

So for listeners, we'll include a link in our description for this episode so you can get to that guidance hub and see these summaries that Sarah mentioned. So Kim let me toss a question to you, cause you and I have talked recently about the importance of employers, just finding ways that their employees get paid right now with just kind of the changing environment, how should an employer maybe view these city level changes to help with that element?

Kim Rudeen:

Yeah, I think like Sarah mentioned it's really important for employers to work with their legal counsel to understand what programs apply to which of their employees. Because as I was listening to Sarah go through like the different lists of employees and reasons and possibilities that someone could or couldn't take leave. It sounds like you're going to have pockets of locations or even employees within locations that may or may not be entitled to leave. So from an employer's perspective, then it's like kind of bringing all that together to understand, okay, Hey, where is this employee located? I mean, so many of us are working at home right now. It's, um, it's a little bit challenging to remember, you know, sometimes where people really are attached to in terms of that work location and then what other programs are in play that might provide leave, you know, um, in this case we're talking about those over 500 employers.

Kim Rudeen:

So there might be state disability programs or, uh, disability benefits that you, you know, find as an employer, different programs like that that you need to consider in that, you know, kind of picture of what the benefits are. And then the employers that I've been talking to have really been interested as soon as the, um, the FFCRA came out in the first place in, you know, how can we make sure that we are providing leave for employees and that we understand what is available to them. So sometimes that might be, um, you know, different programs depending on the reason or it's an employer sponsored programs. So I think it's important for an employer just to work with that legal counsel, figure out what it is and then really look at your population and then figure out, you know, with what's mandated. Does that meet with your goal of what you want to provide to your employees in terms of leave?

Kim Rudeen:

And then you'll need to create your own leave policies as an employer to maybe fill in those gaps that are created by those policies. Because a lot of times I'm hearing from employers, it's easy to apply something consistently. So if they can maybe go, you know, sometimes I'm hearing, well we'd rather go a little bit richer maybe than what the requirements are or a broader population to be able to have consistent coverage. So it's going to vary from employers who employer, you know, kind of what that strategy might look like or what the goals are for each one. And of course you definitely need to work with your legal counsel on what you're required to do and then what you might want to do and how to accomplish that. But really a lot of the questions I've been getting are around operationalizing these programs.

Karen Batson:

Well, it's interesting because I would think even making sure you work with your legal counsel, they're going to have a viewpoint of everything that is available across everything changing for that employer, right? Which we are looking at everything. But that's really where you're going to have to be able to strategize and have that conversation.

Kim Rudeen:

For sure. Sarah is my phone a friend right now.

Sarah Montgomery:

Well it's a great point. You know, do you have this that Kim raises because you know these municipal ordinances are only certain populations of employees are going to be eligible for this specific leave, whether they're working in that city or you know, they meet a definition that they spend enough time working in that city to bring them under the purview of the ordinance. So it's important because then you have to look at that. Employers will have to look at the issue of parody. Then how do we want to provide leave across all populations. So they're all tough questions and ones that we're having to confront on a compressed timeline in response to COVID.

Karen Batson:

Do both of you or either of you think we will see changes coming in other cities or at least conversations about changes taking place?

Kim Rudeen:

I think we will, you know, for sure. It feels like that some of the different cities are trying to address that question of, you know, how do we make sure that there is leave available for everybody. This has already been a very hot topic, you know, when we're thinking about just paid family and medical leave generally speaking. So I think that, you know, Sarah's point cities do have some different challenges in terms of getting programs passed, but it doesn't mean that they're not talking about it.

Karen Batson:

Since I have you both here, I think we should definitely talk about the newest that's come out of New Jersey. So what is changing in their programs that they announced this week?

Sarah Montgomery:

So on April 14th, um, New Jersey legislature enacted in the governor's signed additional legislation that makes changes to um, new Jersey's unpaid family leave act, New Jersey FLA in its, the base program provides covered employees with up to 12 weeks of unpaid leave in a 24 month period to either bond with the child or to care for a family member with a serious health condition. The bill that was passed, um, on the 14th, extends the definition of family leave to include leave taken during a state of emergency declared by the governor or as needed under a public health emergency, such as we're seeing now. The one thing that's interesting about this bill is that it did take out all of the COVID-19 specific language and just makes it more general to expand the definition of family leave around States of emergency. So these are permanent changes that were made to new Jersey's family leave act to um, anticipate future pandemic emergencies.

Sarah Montgomery:

And again, it allows, uh, unpaid leave to be taken to care for a child who may be home because their school or place of care has been closed. It allows somebody to take leave if they have to care for a family member who is under a quarantine order or you know, kind of order from a public health authority to stay home because of, you know, presence in the community could put others at jeopardy. And it also extends leave reason to employees can take leave if they're under recommendation from a health care provider, not just a public health authority to self quarantine again, to really get to the people if they were out and about in the community that could put others at risk. So again, trying to put leave in place to help people stay home when they need to in a pandemic situation.

Kim Rudeen:

Yeah. And Sarah, you know, it was really interesting to me, like you said, was they did kind of strip back that COVID specific language and really kind of bring that up to more of just like a public health emergency. Do you think that we're going to see some more of that activity across the country to think about these in more of a long-term basis?

Sarah Montgomery:

I wouldn't be surprised. The States that, um, have these public family leave, acts PFML, FMLA programs, all watch each other closely on what they do when they enhance benefits or change definition. So I would definitely expect to see changes to, you know, California, New York. I wouldn't be surprised at all to see kind of permanent standing pandemic health emergency language added to their programs coming out of this.

Kim Rudeen:

That makes sense.

Karen Batson:

I mean I, I have to ask, you know, what should the employer be aware of with this change? I feel like in some ways you probably just figured out how to operationalize the changes from end of March. Are there things to consider with this change in that regard or the things that they should be concerned about or viewing?

Kim Rudeen:

I think it's really about understanding what was the actual change because you know, we've been staying very close to everything that's going on and it's, there's so much change coming right now. It's, it's a lot to deal with. So from an employer, sometimes you just need to cut through that noise, and rely on your legal counsel to tell you, you know, okay, this one really only changed a leave reason. You know, there's a newly reason everything else is the same. So it's really trying to understand what is different, you know, than it was before. Is this a new program or is this a change to an existing program? And then really what is the scope of that change and that will help an employer really focus on, okay, so what really has to be done here? And then if you are an employer who has an outsourced, you know, absence management program or anything like that, then you should look to your carrier or your TPA to to help you by saying, you know, okay what are you going to support?

Kim Rudeen:

Maybe some, maybe all, maybe none. Right. You know, depending on what the program is, but that there are definitely things that need to be considered in terms of the responsibility is on the employer to make sure that there is compliance with this program. But in certain cases, you know, if you've got these things, outsource your carrier or TPA may already be on top of it and are going to take care of some if not all of it. So it's important just to understand what actually is the extent of the change and then how much of it impacts your process as an employer versus maybe you know, what is going to be taken care of outside of your four walls.

Karen Batson:

So I'm gonna challenge you both and ask you my final question of what do you feel was the most important thing we said in today's conversation.

Sarah Montgomery:

So for me, the most important takeaways from today's conversation are to be aware of local ordinances as well as federal and state legislative activity around leave since newly reasons, um, you know, municipalities are looking to fill gaps left that they see, uh, in state and federal legislation. So this is an area that, um, you should also be aware of and keeping track of.

Kim Rudeen:

Yeah, and for me, I would say that it's probably, you know, for employers, make sure you have a solid process, which is the foundation for not just this type of a leave program change, but it would be there for anything. Right? So you should look to understand where the information's going to be coming to you from. You know, is that coming from your outside counsel, you know, somewhere else. Are you monitoring for changes in house? Whatever those things are. And then that you've really laid out a process or you know, who needs to be contacted, what things need to be, you know, evaluated or possibly changed. And then really rolling out those changes in a way that are going to be clear to managers and other employees that are impacted by either having to, you know, train other employees or you know, respond to those changes, those kinds of things. So for me, it's really about taking control with that, that standard, you know, kind of repeatable process that you're going to put in place because that's going to help you maintain better control over what you're going to do and to respond in a very organized and timely fashion.

Karen Batson:

Thank you both so much for joining me on Absence Advisor. I know you'll both be back shortly.

Sarah Montgomery:

Thanks Karen.Thanks everybody.

Kim Rudeen:

Thanks, Karen.

Karen Batson:

To everyone listening, thank you for joining us. We will continue to cover topics that help employers and their employees navigate through this new environment. So be sure to subscribe to Lincoln Absence Advisor on Apple, Spotify, or wherever you get your podcasts.

Disclosure:

Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates, the Lincoln National Life Insurance Company, Fort Wayne, Indiana, Lincoln Life and Annuity Company of New York, Syracuse, New York, and Lincoln Life Insurance Company of Boston, Dover. New Hampshire affiliates are separately responsible for their own financial and contractual obligations.