paid leave – Workforce

August 19, 2020

41,214 reasons not to fire employees who request FFCRA leave

A San Jose, California, manufacturer has reached an agreement with the Department of Labor’s Wage & Hour Division to pay 17 employees $41,214 for wrongly denying their requests for paid coronavirus sick leave under the Families First Coronavirus Response Act. Specifically (and much worse than that description sounds), the employer terminated each of the 17 employees after they requested paid leave under the FFCRA.

According to the DOL, “The employer’s action resulted in a violation of the FFCRA.”

No kidding!

In announcing this settlement, the DOL reminds employers that they should call the agency for assistance with FFCRA compliance, that it has online educational tools to help avoid violations, that its website contains information to help employers understand the FFCRA, and that it published an FFCRA poster to explain the Act’s requirements.

All of these statements are true. But should an employer really need a website or a poster to tell it not to retaliate against employees who ask for paid leave under a federal statute? 🤦‍♂️

Small employers, if you’re not paying attention to the FFCRA, you should be. The Department of Labor certainly is.

June 9, 2020June 7, 2022

Absence management is increasingly vital for managers to understand

shift scheduling, technology, custom fields

Absence management — the program and policies in place that control absences due to injury and illnesses — is a vital part of workforce management. Employees miss work for a variety of reasons, and managers must make sure they are on top of employee absences and keeping the business running.

That being said, there are certain aspects of absence management that tend to elude managers. Simon Camaj, absence and disability practice leader at Mercer, said that understanding intermittent disability claims is an area in which many managers lack understanding.

Also read: Leave management should be as simple as submit, approve and hit the beach

This is problematic for both managers and employees. Employees may have a valid claim and a condition that allows them to take time off intermittently to tend to their condition. But a manager is running a business, and they must understand that their employee can legitimately take that time off and still be able to manage their business in that employee’s absence.

Intermittent versus continuous claims

A continuous claim happens in a situation where an employee needs short-term disability leave for a finite amount of time. They may, for example, not be at work for six weeks straight, giving the employer the opportunity to plan around their absence and prepare for their return. This is relatively straightforward, Camaj said.

What often complicates disability leave for employers, though, is when an employee is physically present at work but eligible for intermittent leave. As the UC Santa Cruz human resources team explains, an intermittent leave may allow an employee to take time off in separate periods of time due to a single illness or injury, rather than one continuous period of time. Leave may include periods from an hour at a time, a day at a time or multiple days in a row, the HR guidance added.

Communication between employees and managers is the biggest challenge here, Camaj said. Leave policies may not be clear on the role of the manager and employee regarding intermittent leave.

Also read: Employers grapple with laws about work schedules

The relationship between management and company leadership
Company decision makers should be clear on what the organization’s time off and employee leave strategy is and how it fits into what the organization is trying to accomplish.

“If you’re going to offer something to employees, they will naturally consider using it,” Camaj said. “And you have to balance that with certain business goals and priorities.”

It must be made clear in the policy and communicated to both employees and managers what their role is in this absence management procedure, he said. Who does an employee call when they need to take their intermittent leave? What are they personally responsible for? Meanwhile, managers must know what rights employees have to take intermittent time off and what their strategy is to modify the schedule in case that happens.

Whichever absence management administrator or vendor a company uses has a role here and a responsibility to communicate important information to employees and managers, Camaj said. How does the administrator communicate with the employee who has the legal right to take a certain type of leave? How do they engage with the managers in charge of these employees?

A paradigm shift

There’s been a paradigm shift recently where there’s more awareness from employers of the importance of leave management and of employees being able to balance their work and personal lives and health, Camaj said. Evidence of this change includes the expansion of paid parental leave and caregiver leave laws across cities and states.

”This is employers looking at employees and saying, ‘They’re at different stages of their lives and we have to meet people where they’re at.’” he said. “The paradigm shift is employers are seeing leave of absences as employee health events, and if you do a better job at managing leave as a health event, you have stronger productivity, and it helps everybody. It’s not just a leave program you have to have, It’s a strategy.”

Also read: Time off policies promote convenience while enhancing engagement

This trend will continue, he said, as employee leave grows increasingly more complex with new local or state laws concerning paid time off and paid leave. The issues employers have managing employee absences are not going away. Still, Camaj said he’s seeing more employers step up to the plate.

”We have a greater focus where employers are looking at their leave policies; managers and employees are trying to understand what they have; and vendors are finally at a point where they’re trying to simplify and support leave administration in general with technology,” he said. “As an industry we’re making progress, but this is only going to continue becoming a bigger focus.”

May 25, 2020July 11, 2023

How to reduce compliance risk

Compliance is complicated and time-consuming, and employers don’t have the time to become experts in every rule or regulation that impacts their business. For any organization, addressing how to reduce compliance risk requires the right external and internal resources.

Failure to adhere to compliance requirements exposes an organization to lawsuits, costly fines and other penalties as well as negative publicity and harm to business reputation, noted XpertHR in its report “Top HR Compliance Challenges for 2020.” The organization surveyed 700 HR professionals, 28.3 percent of whom said recruiting and hiring was their top concern. Meanwhile, 16.2 percent said so about benefits and 10.1 percent about pay and scheduling issues.

Of those challenged by pay and scheduling issues, 13.3 percent said they are extremely challenged by the misclassification of exempt and non exempt employees, compared to only 6.6 percent in 2018. And 9.8 percent feel extremely challenged by state and local minimum wage increases, down from 12.9 percent in 2017.

In 2020, 21 states and many localities — including 20 in California alone — will be impacted by minimum wage increase, the report noted.

Also read: Labor compliance software sorts through complex legal issues

XpertHR Legal Editor Beth Zoller said that it’s also important for employers to be proactive about trending issues like harassment training, hairstyle discrimination, pregnancy accommodations and prohibiting pre-employment drug testing.

No matter what the compliance issue, there are many ways to efficiently address how to reduce compliance risk, ultimately benefiting both employees and employer.

Also read: Regulating recruiting amid constant technological innovations

Workforce planning

In the XpertHR survey, 8.3 percent of respondents said workforce planning was their top compliance concern. Zoller defined “workforce planning” as “the continual process an employer uses to align the organization’s business needs and priorities with those of its workforce to make sure it can comply with legislative, regulatory, service and production requirements and organizational objectives.”

Among today’s global workforce, she said, employers must understand both the internal and external factors that impact workplace processes like recruiting, retention, training and performance management.

These internal and external factors include the rise of flexible working arrangements and remote workers, the use of independent contractors to replace traditional workers, and the use of technology to increase communication and productivity, Zoller said. All these are areas in which employers must be careful to be compliant with the various regulations, such as those regulating remote work, classifying employees correctly.

Also read: Tax compliance a key consideration for remote work policies

Benefits compliance

Benefits compliance was the second biggest compliance concern for employers, according to the XpertHR survey. Dorian Smith, national practice leader for Mercer’s Law & Policy Group, specializes in health and welfare benefits.

There are different trusted advisors HR or workforce management professionals can reach out to for different buckets of compliance, he said. For health benefits, representatives from the insurance carrier or third-party administrator can provide guidance. Attorneys specializing in ERISA can help answer retirement-related questions. Complying with a variety of regulations means partnering with a combination of different advisors that cover an employers’ bases.

Employee leave laws

Even before the COVID-19 pandemic introduced new employee leave requirements through legislation like the Families First Coronavirus Response Act, the paid leave landscape in the United States was a “hornet’s nest,” Smith said. COVID-19 rules simply added another layer to an already complicated paid leave environment, where employers often must pay attention to different state and local laws that could affect their business.

Whichever HR or workforce management professional deals with paid leave at an organization should maintain a relationship with the carrier that administers the leave program, and a major carrier should have an understanding of the paid leave environment, Smith said. Still, while they can provide support to navigate the organization through compliance, they generally don’t provide strategic support, he added.

He gave an example of an organization that is looking to shut down a location. They may have the right to do so compliance-wise, but strategically they should think about the make-up of the workforce in that location. Are they predominantly older or part of another protected class? That is a strategic way to look at this situation, since an organization does not want to be exposed to a discrimination lawsuit.

Many areas of compliance are “part compliance, part strategy,” he said. “You can’t do strategy without thinking about compliance.”

Smith also suggested that organizations should engage with their internal or external legal counsel before they make decisions regarding paid leave strategies. Smaller organizations will likely need more external help because they may not have internal resources. But it doesn’t stop there.

“This issue isn’t isolated to smaller firms. Even larger employers with ample internal resources will need outside help,” Smith said.

Mercer, for its part, began a toolkit during the COVID-19 pandemic that is updated every week to reflect what state and local paid leave laws have been amended or created. This is meant to help organizations stay current on changing laws.

On XpertHR’s survey, 5.7 percent of respondents said that “leaves of absence” was their No. 1 compliance concern. Of these people, 28.9 percent said they are extremely challenged by keeping up with rapidly changing leave laws, up from 11.2 percent in 2017 and 19.5 percent in 2018. And 16.1 percent said they feel challenged in determining which leave laws apply to their organization, up from 8.3 percent in 2017.

Depending on size and location, an employer may be required to comply with a variety of different leave laws, Zoller said. These leave laws include paid sick leave, paid family leave, bereavement leave, domestic violence leave, jury duty leave and military leave.

She suggested that employers invest in online compliance tools to help them stay up to date with changing laws and requirements on the federal, state and local level.

Best resources

Considering how to reduce compliance risks may be daunting. But regardless of the type of compliance issues an organization has, there are resources available. These resources include:

Internal or external legal counsel.
Online compliance tools.
Your insurance carrier.
Consulting firms that specialize in your compliance area of interest.

Don’t get bogged down by weighty compliance responsibilities. Creating smart partnerships can help an organization stay compliant.

March 16, 2020June 29, 2023

Answering the 6 most common questions about the Families First Coronavirus Response Act

COVID-19, coronavirus, public health crisis

In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.

1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?

2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?

3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?

4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?

5. What about self-employed people? What relief is there for us?

6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?

Let me try to answer each as best as I can, understanding that there are no clear answers to any of this, and these issues are difficult and quickly developing and changing.

1. Small Businesses

There is no doubt that paid family and sick leave will impose a huge burden on the smallest of employers, especially since the only financial relief in the bill, the 100% tax credit for sick leave wages paid, is not a dollar-for-dollar match and only offers deferred relief.There is one provision in the bill, however, that may offer some help in the most extreme of circumstances.

The Secretary of Labor shall have the authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of section 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern.

This means that if the Secretary of Labor takes this up, he could issue regulations that would permit the smallest of businesses (under 50 employees) to claim an exemption if paid leave “would jeopardize the viability of the business as a going concern.”

Also note that under the same provisions, the Secretary of Labor could also pass regulations “to exclude certain health care providers and emergency responders,” meaning that these vital employees might not receive any paid FMLA or paid sick leave.

Stay tuned to see if this happens once this bill passes.

Finally, late last night, the Treasury Secretary announced that employers will be able to use cash deposited with the IRS to pay sick-leave wages, and for businesses without sufficient taxes from which to draw, the Treasury would make advances available.

2. Employees of Large Employers.

One of the most curious of the decisions this bill makes is to exempt employers with 500 or more employees. Here’s the editorial board of The New York Times, taking this decision to task.

Paying sick workers to stay at home is both good policy and good politics. Why not pass a bill that required all employers to provide paid sick leave and then force Republicans to explain their objections to the public?

The bill does require some employers to provide full-time workers with up to 10 days of paid leave. But the requirement does not apply to the nation’s largest employers — companies with 500 or more workers, who together employ roughly 54 percent of all workers.

All I can say is stay tuned. This coverage choice could be altered by the Senate when they take up this bill early this week, or it could be fixed by an entirely different piece of legislation. Or it can remain as-is, making the policy decision that large employers should offer these benefits without a government mandate. As the op-ed points out, according to federal statistics approximately 86 percent of employees at big companies already receive get some kind of paid sick leave. What I’d like to hear from Congress is why this 500-employee line was drawn? Was it a policy choice, the result of big-business lobbying, or with the knowledge that other legislation is on the way to close this loophole?

3. Paid FMLA vs. Paid Sick Leave.

There is a lot of uncertainly as to how the FFCRA’s paid-leave provisions interact with each other, but here’s my best read. The paid sick leave provision provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for COVID-19-related absences. The paid FMLA provision provides paid leave at two-thirds of an employee’s regular rate of pay for the number of hours the employee otherwise would have worked for the duration of a COVID-19-related FMLA leave, but the first 14 days of such leave can be unpaid. I’d expect most to substitute and run concurrently the paid sick leave during the initial unpaid portion of FMLA. Thus, the first 10 days of a COVID-19 leave will be paid at 100 percent of the employee’s regular rate as paid sick leave, and the remaining 10 weeks will be paid a two-thirds of an employee’s regular rate as paid FMLA. When an employer drafts or revises FMLA and paid sick leave policies, it should account for this overlap. Finally, please don’t forget about paid sick leave laws in your state or locality, which also might have something to add on this issue.

4. Non-profits.

I actually have some good news to share here. The tax credit offered by the FFCRA is against social security taxes, which, unless I misunderstand (and I’m not a tax lawyer), non-profits still pay on their employees. So, the tax credit provision will still off non-profit employers some future relief.

5. The self-employed.

This is, perhaps, the biggest issue. While the number varies wildly, there are anywhere between 50 million and 75 million gig workers. That’s a whole lot of self-employed people that this bill does not touch. What are they supposed to do? How are they supposed to earn if the economy shuts down? I wish I had the answer, but I have no idea. It’s a huge gap and huge problem, and absent specific government relief, these people are really going to be struggling, probably for a long time. That said, the tax-relief provisions also seem to apply to the self-employed. So that’s something.

6. Closures.

If a company is forced to shut its doors because of COVID-19, the Worker Adjustment and Retraining Notification (WARN) Act might apply if your business is large enough. It applies to employers with 100 or more employees. It mandates 60 days’ advance written notice (or if no notice is given or can be given, 60 days’ pay in lieu of such notice) before a “plant closing” or “mass layoff.” Please note, though, that a mass layoff does not occur, and therefore WARN does not apply, if the layoff is expected to be for less than six months. Because most expect this crisis to subside in less than six months, WARN likely will not apply to coronavirus-related layoffs. It will still apply to a plant closure if your business is large enough to meet the 100-employee threshold.

Also, keep in mind that some states have their own mini-WARN laws (California, Illinois, Maryland, New Jersey, New York, Tennessee, and Wisconsin, for example) that provide greater coverage. Ohio does not.

Finally, state unemployment compensation is available to employees who suffer coronavirus-related job losses. Ohio, for example, Governor DeWine is issuing an executive order so that unemployment insurance immediately covers workers who are displaced, even temporarily, by coronavirus, which will include a waiver any waiting periods to qualify and of the requirement that an individual seek work to collect benefits.

These issues are quickly evolving. I’m doing my best to stay on top of them and get everyone information as quickly as I can. Stay tuned. It’s going to a difficult time for everyone between now and when this crisis ends.

If your business needs FMLA or sick leave policies drafted, reviewed, or revised for anticipated FFCRA compliance, please let me know.

Also read: COVID-19 the role of businesses in a public health crisis?

May 27, 2019June 29, 2023

Paid Leave for Caregivers Being Used to Attract Millennials

As the demand for family friendly benefits grows, employers are responding by offering paid leave to new parents.

While that’s good news for families, a rapidly growing segment of the workforce is often overlooked — employees who are caring for an aging parent, an ailing spouse or other loved one.

About 40 million people in the U.S. are caring for an adult family member and 60 percent of them are employed, according to a 2015 report by AARP. And an increasing number are stepping into that role at a younger age. About a quarter of all caregivers are millennials ages 18-34, according to AARP’s research.

That is why a small but growing number of employers are expanding their family leave policies and offering paid leave to employees caring for a loved one, whether it’s a child, a parent, a spouse, or an in-law or grandparent.

“Caregiving comes in all different forms,” said Jen Fisher, managing director of wellbeing at consulting firm Deloitte. “It’s not just about bringing a child into the world. The dynamics of caregiving and the definition of family have changed.”

In 2016, Deloitte began offering 16 weeks of paid leave to full-time employees caring for a family member. Leave can be taken all at once or at a minimum, in three-day increments, according to Fisher. Previously, only new parents were eligible for paid leave.

“Caregiving for someone who is sick ebbs and flows,” she said. “If you’re caring for an elderly parent at home, one week there’s a lot going and on other days you’re not needed 100 percent. You can build your caregiving needs around that. It’s a really flexible program.”

Under the 1993 Family Medical Leave Act, private employers with more than 50 employees must provide 12 weeks of unpaid leave, but some employers are going beyond what’s required in order to attract younger workers.

“Caregivers are getting younger,” said Kathleen Kelly, executive director of the Family Caregiver Alliance, a nonprofit research and policy organization that supports caregivers. “There are many more millennials and Gen Xers caring for a parent or grandparent. It’s a byproduct of baby boomers having kids later. Caregiving has changed generationally. Employers need to wake up to this.”

More than half of millennial caregivers are the sole provider for an elderly family member, providing an average of 26 hours of care each week — the equivalent of a part-time job, according to a 2018 study by the AARP Public Policy Institute.

Yet, most do not feel supported at work. They are less likely to tell a supervisor they are caring for a family member or to discuss it with co-workers, the study showed.

In addition to providing paid leave, employers need to better understand the challenges that caregivers face, said Kelly.

“Issues around children have become more or less accepted, but not with eldercare,” she said. “If you say, ‘I have to take my mom to a doctor’s appointment,’ people think, ‘Can’t she do it alone?’ It doesn’t have the same urgency or importance.”

According to AARP Public Policy Institute, about 100 major U.S. firms have adopted or expanded paid family leave over the past three years, but only 20 percent made it available to family caregivers.

That is likely to change, according to Candice Sherman, CEO of the Northeast Business Group on Health.

More than half of millennial caregivers are the sole provider for an elderly family member, providing an average of 26 hours of care each week.

“People are living longer, there are gaps in the health care system, employees are more dispersed geographically, so they are caregiving from afar. Large employers are aware,” she said

The vast majority of employers surveyed by the Northeast Business Group on Health in 2017 agree that caregiving will become an increasingly important issue over the next five years, and nearly half cite caregiving as one of their top 10 priorities.

“You’re seeing companies expand paid leave but they are also looking for ways to support caregivers and that creates an opportunity for companies like ours,” said Michael Walsh, CEO of Cariloop, a platform that enables employees to access caregiving resources. “With our services, you’re not just giving people time off but giving them the tools they need to figure out things they don’t understand. We didn’t feel that a company’s health plan or EAP had the coverage needed for the long-term or took into account all the barriers involved with caregiving.”

Walsh, who launched the Texas-based company in 2013, said that younger workers are driving the interest in support for caregivers in the workplace.

“A major factor is a wave of millennialism, which is about feeling supported and making sure that your company empathizes with what’s important to you,” he said. “We can’t just check the boxes. We have to go further and send a message that we care about you and your family.”

November 29, 2016June 29, 2023

Parental Leave Predictions Under the Trump Administration

The United States is the only developed country not to offer paid leave to mothers and fathers of newborn children.

During the 2016 presidential campaign, the issue of paid leave was very prominent in Hillary Clinton’s platform, and President-elect Donald Trump eventually proposed a paid-leave plan as well. Based on his rhetoric on the topic, his paid leave plan originally included six weeks of leave, offered to married women giving birth. This eventually was expanded to single women giving birth as well after criticism but still excludes parties like fathers, adoptive parents, and certain same-sex couples.

Based on the limited information we have now, I spoke with Tom Spiggle, an employment attorney and founder of the Spiggle Law Firm, who made some predictions on the way in which the paid-leave landscape could shift in upcoming years. What could shape it, and what questions should we consider?

First, the Family and Medical Leave Act is the one federal program we have now, and it’s unpaid. “One possibility is it [the future paid leave rule] would be administered through or somehow joined with the FMLA,” said Spiggle, whose specialty is workplace discrimination and wrongful termination due to pregnancy or other family care issues. Once that box is open, could Congress tinker with the FMLA in a way that is less leave-friendly? It’s worth noting that no one has indicated wanting to weaken the FMLA.

Second, what happens if the paid leave law is violated? The worker’s right to go to court could be mitigated in favor of something like a slap on the wrist to the employer or an administrative fine, Spiggle speculated.

Finally, no matter what happens on a federal level, on a state level changes will probably continue to happen. New York and Washington state begin offering paid medical and family leave Jan. 1, 2018, joining the states already doing so — California, New Jersey and Rhode Island. Washington D.C.’s proposed paid leave law, which is very progressive, is up for a vote in December.

Spiggle mentioned a couple other considerations. “Trump’s policy is different from the Republican orthodoxy on the subject, which is not to have a government mandate or any kind of paid leave,” he said. Given, the Republican majority in the House and Senate, what kind of “horse-trading” could this spur?

Trump brought paid leave into his campaign, but is it high priority? He has a lot on his plate, such as sticky international situations and other employment law issues, said Spiggle. “We might not know until well into the administration what a proposal would look like,” he said.

Andie Burjek is a Workforce associate editor. Comment below or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.