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Supporting Employees and Staying Compliant Amid a Tsunami of Leave Laws
Episode 1413th October 2022 • Absence Management Perspectives • DMEC
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Absence management professionals are faced with an increasingly challenging landscape of paid family and medical leave laws and paid sick and safe laws. Get tips and tools for ways you can support employees and stay compliant.


Welcome to Absence Management Perspectives. A DMEC Podcast. The Disability Management Employer Coalition, or DMEC as were known by most people, provides focused education, knowledge, and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 160 professionals from organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you will visit to get a full picture of what we have to offer, from webinars and publications to conferences, certifications and much more. Let's get started and meet the people behind the processes.

Heather Grimshaw: Hello, and welcome to Absence Management Perspectives. A DMEC Podcast. I'm Heather Grimshaw, communications manager for DMEC, and we're going to talk about the increasingly difficult terrain of family and medical leave with Lori Welty, senior product compliance attorney with FINEOS. Lori and her colleagues have shared insights during two recent DMEC webinars on the topic that outline points of confusion between paid family and medical leave and paid sick leave. She's agreed to chat with us today about ongoing questions and some resources that can help integrated absence management professionals. We will be sharing a few of the slides from the FINEOS webinar in the notes section of the podcast for listeners, so please check those out. Lori, we're so glad that you're here today and I'm hoping that you will set the stage for our listeners and give a brief overview of when the family and medical leave process got so complicated. You had a great poll in the webinar this month about when people started in the industry kind of to gauge that experience. And one of the questions was for the quote-unquote sleeper years, can you start there and talk about how quickly the landscape has changed?

e look back into the prior to:

Heather Grimshaw: Absolutely. And it sounds like people should not start to relax. There's no break here.

Lori Welty: No, just the opposite. I think it is time to staff up because things are only getting more complicated.

Heather Grimshaw: Yeah, it definitely seems that way in terms of and just hearing you talk about what has happened and really relatively quickly, I'd love to hear you share some of the high-level, common questions and areas of confusion when it comes to paid family and medical leave and how to coordinate and differentiate between paid sick leave and recognizing that I'm sure they are vast and varied. I'm thinking we should narrow it to maybe the top two or three.

Lori Welty: Definitely. It's really interesting when I do these webinars for DMEC because I get some insight into the questions that are coming through and of course in my own role I get those questions as well. But I really enjoy hearing from the DMVC membership to see what is challenging people. One of the things that we talked about in the webinar has to do with the ways in which paid family leave, paid family medical leave and paid sick leave are similar, how they're different. And then putting that aside, once we understand how they're similar and different, how do they coordinate? Let's say both of them do apply. How do they coordinate together? So that's kind of the two big buckets is which one applies and then if they both apply, how do we handle that? And I'd say on the first question of which one applies, the biggest question there tends to be the leave reason. So obviously there's different rules in terms of whether the employees eligible, have they worked long enough, things like that. But when you look at the leave reason, typically paid sick and safe leaves tend to just cover more leave reasons and they're more loose in how they define the leave reasons. Whereas paid family medical leave has a higher standard for when you can take leave. So one example of that is like a regular routine illness with paid sick and safe leave, there's really not much scrutiny. Not as much scrutiny, I'll say, in terms of when you can take leave because most of the time you can take leave for really any reason that pertains to your health, even if it's preventive care. So there's not a high threshold there you might need in many states, you might need to produce some certification if you're out for a certain amount of time. But the rules are just less stringent under paid sick and safe leave, whereas paid family and medical leave is a higher standard, more akin to the FMLA, in fact, generally identical to the FMLA that it does have to be a serious health condition. So because of that, you can have situations where paid sick and safely will apply for a minor health condition and paid family medical leave won't apply. Typically, though, it won't go the other direction. If you do have a serious health condition, then both of them will apply because you can always exceed the definition of illness underpaid sick and safe leave to use your paid family medical leave time for both. But then the other question, Heather, is how do they coordinate? So if you know that both of them are going to apply, let's say it is a serious health condition, so both will apply, or maybe it's caring for a family member with a serious health condition, a reason like that that might apply to both. There's a question there of can this employee use both benefits? Can they use paid sick and safe leave during a waiting period and why might they want to do that? Well, typically paid second safe leave is your full pay. And for higher wage employees, that can be a pretty different calculation than what they might receive under paid family and medical leave. The paid sick and safe leave is shorter, so it's usually only one to two weeks of time available. But, you know, the income in those one to two weeks can be pretty valuable to an employee. So they might want to max out those benefits for the first two weeks of their leave and then use paid family medical leave. Or they might want to use it to top off their paid family medical leave, or maybe they want to use it during a waiting period. And there are different states that have different rules. As far as that goes, if we look at Massachusetts, Massachusetts does have a waiting period and an employee could use any type of time off benefits, PTO type benefits during that waiting period. But during their leave itself, once they qualify for paid family and medical leave, they cannot, they can't top up with anything else. So they have to just use their paid family medical leave benefits. Well, the other interesting thing is in Massachusetts, if you're taking a leave for a reason that Massachusetts covers, so if you're taking leave for your own serious health condition, you have to use yours, you can't choose to kind of put off those benefits. You have to claim them or you're going to be deducted for that time anyway, so you might as well claim them. Whereas in a state like Washington, let's say you have several weeks of pay available to you either through sick and safe leave or maybe through a PTO, you can choose and say, I don't want to use my Washington PFML benefits. I'm going to wait and use, say, four weeks of PTO benefits or other benefits I might have available to me and then I'm going to use my PFML benefits. Or maybe they just for some reason have done the calculation and have decided, I don't want to be paid for the first four weeks. I want to save that for something else. And they're allowed to do that. So there's some choices. In some states you have choices and in other states you don't.

Heather Grimshaw: Wow. Yeah. Just to add another layer of complexity. And I would think this would probably be a completely different podcast. But from the vantage point of how you educate your employees on what they can and can't use. So they're prepared for that in advance because obviously ensuring that absence management professionals have all the information they need is a challenge with all these differing. These kind of unique issues by state.

Lori Welty: Well, that's absolutely, I mean, it's enough for employers to try to figure out what they're supposed to comply with, let alone employees. I think employers. Many of them do a good job of providing information to their employees about that. Either voluntarily in their handbooks. But also most of these laws do have notice requirements and some of them have pre-printed materials that they're required to either post or even send out at date of higher or maybe within a certain amount of time. Certain amount of regularity with their paycheck. So there are some requirements that employers do notify employees of these programs. And a lot of times if you go to those websites and the information that they provide to their employees will have links there, there will be additional resources on the websites which I think are, they are pretty employee friendly if you read through those materials. And some of them even have extensive guides so that you can read through a guide and they'll have a guide design from the employee standpoint, design from the employer standpoint. So each can read through those and see what their benefits might be, and they might even have calculators to anticipate what they'll be paid.

Heather Grimshaw: Actually, during the webinar, you mentioned that there are some great tips and resources on state FAQ web pages. And so you've just given an example of a resource that would be really helpful. Can you talk a little bit more about what absence management professionals will find on these pages?

Lori Welty: Yes, and Heather, that brings up a point I want to make that I know many people listening to this might think themselves, I already know this, but I'm just going to say it again because I think there can be a lot of confusion about this. When a new law is passed, it's passed through the legislature. I feel like I'm doing a little public service presentation on how bills get made. But we all know this. I know we all know this. We all took civics in high school, but just in case we forgot any of it, when a bill gets passed through the legislature, it becomes a law, and that's a statute. And usually those statutes are they have a framework, but they don't go into a lot of the nitty gritty details of how certain things will work. They do set out the mandates. This is what the state has said must occur. But then a lot of times what will happen is that within the statute, the legislature will authorize or appoint an agency that's going to administer the statute, and that's where regulations come in. So once you have the statute, then there will be a process of developing regulations and that process can go on for months or even years. And a lot of times that's why we see statutes being it's one of the reasons why we see statutes being passed. And then there's a long lag time between when they go into effect. One reason for that, of course, is that states have to begin collecting contributions. But another reason is because no one really knows how this plan is going to operate. And so the regulations will break down the aspects of the statute into more practical terms and provide more examples and more of a detail and color about how the law will actually be administered. But then beyond that, so those are sort of the two official pieces of collateral that the states will produce. But then beyond that, many, many times if you look at the Washington or Massachusetts, Oregon, as examples, Connecticut, it's great too. They will have extensive other materials on there like FAQs, as I mentioned, guides. I know Washington has a great employer's guide and an employee's guide, and I really like those. This is all I do. This is my whole job is working on absence management laws, regulations, everything to do with this. And I still find it very confusing at times when you look at specific scenarios to understand what was intended, what does the state want you to do? And this is in that scenario. And a lot of times when the legislature passed these laws, they didn't contemplate a lot of different scenarios. And so as the program evolves and I think as the state agencies continue to be confronted with difficult scenarios and they will provide some information on their web pages to say, okay, if this happens, here's what we expect. If that happens, here's what we expect. So I really like looking at both the regulations and the FAQs and the guides to get more color on the practical application of the statute. One area here that I brought up on the webinar is how you handle the situation where you have multi state topics. So where you have employees and employers working in different states and maybe the employee is remote and the employee moves and the employee reports to somebody else and that person moves. These are things I think in many cases the statute did provide some information there if you really go digging through it and if you are a real pro at reading statutory language. But many people are going to need a little bit more information to understand really how to apply that. And so I really like looking at a lot of the FAQs, do cover that topic in particular and you can find some information. And my favorite thing and anybody who I have ever worked with knows I love scenarios, I love examples. I love to actually come up with real life examples of how things work and kind of extrapolate start from a simple scenario, get more complicated. And I love it when I see FAQs that provide those kinds of examples. And I know I think they're really helpful in the industry when agencies provide those.

Heather Grimshaw: I agree. I think it really provides you with that context and as youth mentioned, that practical application which makes such a big difference. So I also really appreciate it that you said that even though you are a specialist in this area that you find these resources really helpful because it's rather daunting to look at all the information and try and hold it all in your mind. And that leads me to my next question, which is really for folks who are preparing for new paid family medical leave laws. What are the first steps that you would encourage them to take?

Lori Welty: So there's a lot of different considerations that an employer is going to want to think about when they're seeing a new paid family medical leave law come online. Maybe this is an employer who's located in a state that hasn't been impacted and maybe they're in Maryland and they've seen some of the states around them have these laws going into effect, but they've been kind of we don't have to worry about this yet and all of a sudden one gets passed in their state. Or maybe they are an employer who already has a paid family and medical leave program in a state they operate in. But now one of the other states that they also operate in is having a program come online. I think probably the biggest decision they're going to have to make is whether or not they want to how they want to handle that paid family medical leave program. So many states allow for a private plan. So either the employee to get an insured plan or a self-insured plan, or there's also the option of using sending the employee to the state for their program. Now some of these are different. Not every state allows all three of those options. Like, for example, District of Columbia, they only have the state option or the district option. You can't have a private plan, whereas for example, Connecticut, you could have either one. So that's kind of the first question and that's a big question that's going to dictate a lot of where you go from there. And I think to answer that question, employers are going to look at how they handle their other benefits. Are they outsourcing some of the administration of their FMLA already? And can adding in an insured PFML product into their offerings, would that be easier for them? Maybe they can wrap that around their FMLA and kind of integrate that all. Some employers like that because they can like I said, they can integrate it with their existing benefits. They have a little bit more control over how employees are paid. They can dictate that as well. But you know, the timing of benefits, one of the things I think that can factor into this is the more recent, most of the more recent paid family medical leave programs that have been enacted, as I mentioned, they're more like FMLA. So not only are they paid, but they actually do provide job protection. So if you have an employee in a state where they've opted to go with the state plan and they're not using either an insured or a self-insured plan. The employer is still going to need to know whether or not this leave was approved by the state and for how long it was approved and when it was approved for. So that they can be sure that they are providing job protection for that employee. So somehow, some way, they're going to have to manage the leave anyway. And sometimes using an insured or self-insured product can help that employer to wrap that all up together because they know they're going to have to manage the absence in some way anyway and provide that job protection. This way they can combine that all into one. There are options, of course, to manage those absences regardless, even if they are having the state handled the pay. But that's probably the biggest thing that they're going to need to look at right off the bat is whether they're going to go public or private with that.

Heather Grimshaw: So I was struck by the comments made during the webinar about how some cities have different rules for paid sick and safe leaves. And I'm wondering if you have suggestions for how absence management professionals can track this as well as for multi-state employers that are juggling several statutory paid family medical leaves on top of that. So what are some of the best ways to track these types of laws?

Lori Welty: Thanks, Heather. So I'm hearing two things in that question. One is, how do you kind of stay abreast of new developments in states and cities that you might be interested in? And then also once you know that there is a law that's going to impact you, how do you manage that if you have employees in multiple states and cities? So on the first part of that, how do you become aware of that? For those in the industry, there are research tools like Lexus and West Law, and I know there's other tools out there as well that can be very helpful that you can subscribe to and receive updates about that. But if you're in an employer in an HR group, you're probably not monitoring laws in that way. So what I would say would be the best way to handle that is obviously watching the news. You can definitely hear about these. They're usually politicians who's excited to tell you that they got this law passed. So usually you see that in the news. But there are certain things like paid sick and safely flaws that are hard to catch on research tools. So Google alerts are really helpful. There's also a number of great blogs out there that specialize in exactly what we're talking about. And you can even just Google to find those blogs and then subscribe to them and then you will get all those updates as well. So I think those are probably the best couple of tools that employers can use to be notified when new laws are coming online and then in terms of once they know that there is a law that impacts them. If you're a single state employer and you just need to manage one program, for example, if you're in, say, gosh, I'm trying to think of even one state that is simple. Let's say you're in Delaware, which has a new law, new paid family medical leave coming online, and you need to be able to manage absence. Just in the state of Delaware, you could probably get by with really studying what that program consists of and managing that in whatever you decide, whether you want to go private or public and manage that. And that's saying it's going to be easy. You still have to take into account FMLA and Americans with Disabilities Act and other things like that. But there's not quite as many things that are going to impact you in a state like Delaware. But if you are in a state that's more complicated, like, let's say, Massachusetts, which has unpaid parental leave on top of it. Or you're in Connecticut, which has a full unpaid FMLA program and multiple different programs in states like California. And let's say you're an employer who is required to provide leave in multiple states. I think you're going to have to think a little bit more broadly about how you're going to manage that. I have a lot of friends and colleagues who work in the HR side of things, and every now and then I'll come across someone who is trying to manage multi state employer situations by themselves with an Excel spreadsheet. And kudos to them, and I give them so much credit for the work that they're doing. I think there are resources out there that can make that a lot easier. And for employers who have multiple state issues, look to your resources, talk to your other service providers that you use, talk to your carriers. There are resources out there that can help you make that easier. The software out there, there's a lot of different ways that you can manage this better than just a spreadsheet. I would suggest that employers like that just try to look to the resources they already have relationships with and see what they can find in terms of making that job a little bit easier to stay compliant because there are a lot of compliance considerations here and it's hard to go it alone.

Heather Grimshaw: That absolutely makes sense, and it is difficult to imagine how you would be able to just keep up and keep track. And so in terms of the resources that are helpful to absence management professionals who are tracking all of this, I did also want to mention the Legislative Updates resource on the DMC website that has news and insights on upcoming and recently passed legislation. There's also a state and local lead law resource which provides information about the leave laws as well as links to the state websites that Lori mentioned earlier in our discussion. We so appreciate your time today with the questions, Laurie, and your expertise during the webinar. Thank you so much.

Lori Welty: Thank you. Heather.