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Family and medical leave, incl. FMLA

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[Guidance Overview] Employers Risk FMLA Violation by Delaying FMLA Notification, Designation While Employees Use Other Leave
"While acknowledging that the FMLA permits an employer to require, or to permit an employee to elect, to 'substitute' accrued paid leave ... to cover any part of the unpaid FMLA entitlement period, [DOL Opinion Letter FMLA2019-1-A] states that '[t]he term substitute means that the paid leave provided by the employer ... will run concurrently with the unpaid FMLA leave.' ... While acknowledging that the FMLA allows employers to adopt leave policies more generous than those required by the FMLA ... the Opinion also says an employer may not designate more than 12 weeks of leave -- or more than 26 weeks of military caregiver leave -- as FMLA-protected." (Solutions Law Press)
DC Paid Family Leave Effective Dates Approaching
"[E]mployers with at least one employee working in Washington DC are subject to the new Paid Family Leave (PFL) benefit, under the Universal Paid Leave Act (UPLA). Effective July 1, 2019, DC will begin collecting the payroll tax from employers to fund the benefits. Employees working in DC can apply for benefits starting July 1, 2020.... [T]he DC Office of Paid Family Leave (OPFL) has created a new website which includes employee notices, FAQs, and other written resources." (Keller Benefit Services)
Dueling Paid Leave Plans Introduced In Congress
"The latest Democratic paid sick leave plan -- The Healthy Families Act -- would allow many employees to earn up to a week of paid leave for a variety of reasons.... The FAMILY Act would create a national insurance fund to provide 12 weeks of paid family and medical leave to workers for pregnancies, the birth or adoption of a child, to recover from a serious illness, or to care for a seriously ill family member.... [Two Republican senators] are championing the [CRADLE] Act, which would enable new parents to receive up to three months of paid parental leave. The catch: employees would agree to postpone access to Social Security Benefits for a certain period of time in order to fund the benefit." (Fisher Phillips)
[Guidance Overview] DOL: Employers May Not Delay FMLA Designation, Even at Employee's Request
"Although the opinion letter appears employer-friendly, in that employers have a solid basis for declining an employee's request to first exhaust paid leave before dipping into their unpaid FMLA leave entitlement, the key underpinning of the opinion letter is the DOL's desire to ensure that, when an employee takes leave for an FMLA-qualifying reason, the employee receives the protections of the FMLA, both with respect to the ability to take leave in the first place, and with respect to other protections such as the right to reinstatement following the conclusion of such leave." (Bryan Cave Leighton Paisner LLP)
[Guidance Overview] I Want to Save My FMLA for a Rainier Day
"The reasoning of the Government hinges on the premise of the law that the burden is on the employer to be aware of this law, and its application to the circumstances of its employees.... The [DOL] is now formally extending this duty one step further, saying that, in doing so, the FMLA timeclock must be triggered by the employer." (Brouse McDowell)
[Guidance Overview] DOL Reiterates That Employees Can't Decline Federal FMLA
"The DOL directive ... does not address employer compliance with other State medical leave laws ... Under Wisconsin law, the employee may determine if WFMLA leave will be used during the absence period unless the employer leave to be used by the employee and the WFMLA leave are for the same reasons. Then, the employee use of employer leave will be viewed as an election to use WFMLA leave for the period of absence. This may result in a federal/Wisconsin difference in the use, and availability, of FMLA leave." (von Briesen & Roper, s.c.)
Federal vs. New York Family and Medical Leave Laws -- Part 3
"The comparison chart [in this article details] federal vs. New York family and medical leave laws regarding an intermittent leave, reinstatement rights and the maintenance of health benefits during leave." (Strategic Benefit Services)
DOL Opinion Letter Clarifies Designation and Use of FMLA Leave
"[DOL Opinion Letter FMLA2019-1-A] means FMLA qualifying leave must be designated as such and be deducted from the employee's FMLA allotment ... The opinion letter explicitly states the WHD's disagreement with the Escriba decision, which held that employees may decline FMLA leave to preserve it for future use and instead use vacation time before using FMLA leave. Additionally, the letter prohibits an employer from designating more than 12 weeks of leave (or 26 weeks of leave for military caregiver leave) in a year as FMLA leave." (Ogletree Deakins)
[Guidance Overview] DOL Clarifies That Employee Cannot Decline FMLA Leave When Absence Is Covered by the FMLA
"[T]he employer community has long considered this issue to be a gray area in FMLA administration. Now they have an answer: an employee doesn't get to choose whether or not an absence is covered by the FMLA.... It's not uncommon for collective bargaining provisions or public sector personnel policies to allow employees first to use paid leave, followed by FMLA leave. This opinion letter gives these employers the leverage they need to negotiate CBA provisions and establish policies designating FMLA leave at the earliest opportunity whenever FMLA applies." (FMLA Insights)
Estimates of the Financial Effects on Social Security of the Child Rearing and Development Leave Empowerment Act (CRADLE Act) (PDF)
"This proposal would allow eligible parents to receive parental leave benefits based on births and adoptions in years 2021 through 2025. The basic monthly parental leave benefit would be equal to the primary insurance amount (PIA) ... as if the parent had become disabled on that date.... Those who elect to receive parental leave benefits for a specified number of months ... would have their normal retirement age (NRA) and their earliest eligibility ages (EEA) increased by twice the specified number of months of parental leave benefit received.... We estimate that, if enacted, this proposal would have a negligible effect on the long -range OASDI actuarial balance (that is, less than 0.005 percent of taxable payroll)." (U.S. Social Security Administration [SSA])
[Guidance Overview] Michigan Paid Sick Leave Effective Date is March 29
"In advance of the upcoming March 29, 2019 effective date of the Michigan statewide paid sick leave mandate, the state Department of Licensing and Regulatory Affairs launched a website for the law featuring a paid sick leave model poster and FAQs. These developments come as the state Legislature seeks constitutional clarity on the procedure that led to the amended paid sick leave law and calls into question whether the law, as amended, will in fact be the one to take effect." (Seyfarth Shaw LLP)
Family Leave Proposal Would Require Delay in Social Security Benefits
"Two Republican senators are proposing a policy that would let new parents take up to three months of paid leave, provided they agree to delay their Social Security retirement benefits. The proposal comes as paid family leave is gaining traction with politicians on both sides of the aisle ... Tying Social Security in with a paid leave policy could have pros and cons for American families[.]" (CNBC)
[Official Guidance] Text of DOL Opinion Letter FMLA2019-1-A: Employer May Not Delay Designating Paid Leave as FMLA Leave Nor Permit Employees to Expand Their FMLA Leave Beyond the Statutory 12-Week Entitlement (PDF)
"An employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.... Once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days.... [T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.... [If] an employee substitutes paid leave for unpaid FMLA leave, the employee's paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement." (Wage and Hour Division, U.S. Department of Labor [DOL])
[Guidance Overview] Amendments to New Jersey Family Leave Laws
"Beginning June 30, 2019, ... the law will become applicable to employers employing 30 or more employees. Further, employers with 30 or more employees will become subject to the non-discrimination and non-retaliation provisions of the law, as well as job reinstatement obligations once employees return from leave.... Employees eligible for Family Leave Insurance benefits ... must have worked a minimum of 20 weeks, earning $172 or more per week; or earned a minimum of $8,600 in the past 12 months prior to the leave." (CBIZ)
Federal vs. New York Family and Medical Leave Laws
"In addition to the federal FMLA, New York has laws regarding pregnancy leave, adoptive parents leave, blood donation leave, bone marrow donation leave, military spouse leave and paid family leave (effective Jan. 1, 2018). [A chart compares] federal vs. New York family and medical leave laws regarding the type of leave and criteria for a serious health condition/serious injury or illness." (Strategic Benefit Services)
ABA Publishes Summary of 2018 FMLA Court Decisions
"[T]he ABA's annual report includes all FMLA decisions from this past year. This year's report is as comprehensive as always -- it summarizes 2018 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year." (FMLA Insights)
[Guidance Overview] Are You Ready for the Michigan Paid Medical Leave Act?
"Are you covered? ... Do you already give enough leave? ... How does paid leave work? ... Do you allow leave for the right reasons? ... Which employees must receive leave? ... When do employees become entitled to leave? ... Employee notification requirements ... Documentation of leave for domestic violence or sexual assault ... Records retention ... Penalties for violating the Act." (Masuda Funai)
[Guidance Overview] California Paid Sick Leave Laws Vary by City
"As of January 2019, the following cities have their own separate paid sick leave laws ... Berkeley, Emeryville, Los Angeles (city), Oakland, San Diego, San Francisco, and Santa Monica. Some of these city-specific laws contain provisions that are different than or conflict with the requirements under California law. Employers must adopt the provisions which are more favorable to the employee." (Jackson Lewis)
Comparison of Federal and New York State Family and Medical Leave Laws
"In addition to the federal FMLA, New York has laws regarding pregnancy leave, adoptive parents leave, blood donation leave, bone marrow donation leave, military spouse leave and paid family leave (effective Jan. 1, 2018). [A] comparison chart [details] the types of employers covered, employees eligible and leave amount." (Strategic Benefit Services)
[Opinion] ERIC Submits Comments on Massachusetts Paid Family and Medical Leave Program
"[ERIC's] comments focused on the following issues within the preliminary draft regulations: [1] Insufficient regulatory development timeline; [2] Expanded administrative and reporting requirements; [3] Reduced employer flexibility to design and operate tailored paid leave benefits; [4] Extended definition of 'family member' beyond that used by federal law." (The ERISA Industry Committee [ERIC])
[Guidance Overview] Massachusetts Releases Draft Regulations for Paid Family and Medical Leave
"The draft regulations track many of the law's requirements, while also providing some notable clarifications. In addition, the department provided information on the amount employers must contribute into the Family and Employment Security Trust Fund that will finance these paid leaves. The department also provided information on the employer contributions and employee payroll deductions required to fund these leaves." (Buck)
[Guidance Overview] Massachusetts and New Jersey Make Changes to Paid Leave Laws
"[The Massachusetts regulations] provide the following additional guidance: [1] Require employers to submit a quarterly filing.... [2] Provides guidance on treatment of independent contractors.... [3] Provides guidance on employer contributions.... [4] Offers guidance regarding how to count employees.... [5] Allow employers to adopt a private plan.... [6] Sets forth benefit claim procedures.... [7] Establishes an offset for amounts paid by an employer plan." (Holland & Knight)
[Guidance Overview] More Family Time and Money: New Jersey Expands Its Family Leave Entitlements
"Effective June 30, 2019, the NJFLA will apply to all employers that employ at least 30 employees during each 'working day' in the '20 or more calendar workweeks in the then current or immediately preceding calendar year.' This change substantially increases the number of covered employers.... AB 3975 doubles from 6 to 12 the number of weeks for which benefits are available in any 12-month period for the covered leaves ... that commence on or after July 1, 2020." (Littler)
Access to Paid and Unpaid Family Leave in 2018
"In March 2018, 17 percent of all civilian workers had access to paid family leave, and 89 percent had access to unpaid family leave.... Sixteen percent of private industry workers had access to paid family leave, and 88 percent had access to unpaid family leave. Eleven percent of workers in the smallest establishments (1 to 49 workers) had access to paid family leave, and 80 percent had access to unpaid family leave. Twenty-five percent of workers in the largest establishments (500 workers or more) had access to paid family leave, and 94 percent had access to unpaid family leave." (U.S. Bureau of Labor Statistics [BLS])
The Perks and Pitfalls of Unlimited Paid Time Off
"Employers are obligated to adjust certain production and performance expectations when employees take protected leave under, for example, the Family and Medical Leave Act ... Employers may think putting time off into the proper 'bucket' no longer matters if you have an unlimited leave policy, but it does[.]" (HR Dive)
[Guidance Overview] New Jersey Expands Paid Family Leave
"The expanded definition of family member is now consistent with the New York City Earned Safe and Sick Time Act's definition of a covered family member.... The bill increased the weekly benefit for individuals taking qualifying leave and the maximum duration of benefits. It also increased the availability of a reduced leave schedule and/or intermittent leave." (Buck)
Michigan Attorney General and Supreme Court Asked to Issue Opinions on Constitutionality of Paid Medical Leave Law
"If the Michigan Supreme Court declines to issue an Advisory Opinion and the Attorney General issues an opinion that passage of the amendments was unlawful or unconstitutional, ... the original ballot initiatives will take effect, unless a court rules otherwise.... If the original ballot initiatives become law, employers will need to comply with a paid sick leave law and a minimum wage law that are more burdensome than those approved by the Legislature and Governor Snyder." (Warner Norcross & Judd LLP)
[Guidance Overview] New Jersey Expands Family and SAFE Leave Protections and Benefits
"For leave commencing on or after July 1, 2020, changes include ... Benefits are extended from six to twelve weeks during any 12-month period. Weekly benefits will increase from two-thirds (or 66 2/3 percent) of employee's average weekly wage to 85 percent; this change, too, applies to Temporary Disability Insurance benefits (TDB). Maximum weekly benefits increase from $650 to approximately $860. This applies to TBD also. Intermittent leave allotment increases from 42 days to 56 days." (Fisher Phillips)
New Jersey Family Leave: What You Need to Know
"Effective immediately, the definition of who is covered under the act has expanded [to include] siblings, grandparents, grandchildren, in-laws or anyone else related by blood or 'equivalent' family.... [Previously, any] employee of a company with 50 or more employees was guaranteed to have a job waiting for them when they returned from family leave. [Effective June 30, 2019, the] threshold will be lowered to companies with 30 employees or more." (EisnerAmper)
Massachusetts Announces Contribution Rates Effective July 1 for Paid Family Leave
"Employers with 25 or more employees in Massachusetts may deduct the entire amount of the payroll tax from an employee's wages for family leave and up to 40 percent of the payroll tax for medical leave. The total contribution of .63 percent of payroll is split between the medical leave contribution (.52 percent of payroll) and the family leave contribution (.11 percent of payroll)." (Lockton)
[Guidance Overview] New Jersey Expands Family Leave Laws to Provide Greater Benefits to Employees
"Previously, the law permitted employers to require employees to use up to two weeks of existing PTO, vacation or other employer-paid leave benefits in lieu of [family temporary disability leave]. The amendment now prohibits this action, and allows only the employee to elect whether to use PTO or other similar benefits. Furthermore, under the law, an employee's use of PTO or similar benefits will not reduce the amount of state [family temporary disability leave] benefits available to the employee." (FordHarrison)
[Guidance Overview] New Jersey Puts Family First with Paid Family Leave Expansion
"New Jersey Governor Phil Murphy signed an expansive paid family leave bill which provides for increased leave time and pay while on leave beginning in 2020, a broader definition of covered employers and family members, and a right to reinstatement for more employees. The benefits remain employee-funded under the law." (Seyfarth Shaw LLP)
[Guidance Overview] New Jersey Expands Family Leave Laws
"[B]eginning on June 30, 2019, employers with 30 or more employees (in total, anywhere) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period. This change thus takes the NJFLA out of alignment with the federal [FMLA], which applies only to employers with 50 or more employees. The amendment also modifies the NJFLA to provide that family leave may be taken in connection with the placement of a child into foster care with the employee, not just upon the birth or adoption of a child. This change aligns the NJFLA with the FMLA." (Ogletree Deakins)
[Guidance Overview] March 29 Deadline Approaching for Compliance with Michigan Paid Medical Leave Act
"Even an employer currently providing 40 hours of paid time off still needs to review its policy language for issues such as employee eligibility (do your part-time employees earn 40 hours of paid time off per year?), the amount of time off provided per year, how that time is provided, and whether time used under its current paid time off policy is protected from disciplinary action under its attendance policy (just to name a few!)." (Miller Johnson)
New Jersey's New Paid Family Leave Law Provides Greater Benefits for Employees
"As of June 30, 2019, the definition of a covered employer would include those with 30 employees, as opposed to 50 employees, for each calendar day of 20 or more calendar workweeks. The definition of 'parent' is now expanded to include foster parents and those who became parents via a gestational carrier.... The definition of 'family member' is now expanded ... Employees are now eligible to take leave ... to care for any of the aforementioned individuals in the event of a domestic violence or sexually violent incident." (Proskauer)
Retroactively Denying FMLA Leave and Firing Employee Soon Thereafter Supports Retaliation Claim
"Denying cross-motions for summary judgment with respect to FMLA claims by an employee who was first approved for FMLA leave and then, after she took it, determined ineligible and fired for excessive absences, a federal district court in Texas found triable issues on whether she reasonably relied on an FMLA coordinator's misrepresentation that she was eligible, considering a handbook policy that detailed FMLA requirements. There were also triable issues on whether the reason for her termination (excessive unexcused absences months before her leave) was pretextual." [Byrd v. City of Houston, No. H-18-778 (S.D. Tex. Jan. 29, 2019)] (Wolters Kluwer; free registration required)
Lululemon to Offer Hourly Workers Up to 6 Months of Paid Parental Leave
"Employees, who are considered full-time by the athletics wear company if they work 24 hours per week, will be eligible for three months of leave after two years at the company, while employees with five or more years behind them will be eligible for six months... [A]bout 60% of Lululemon's 13,400 workers are U.S. based, and of those employees, the majority of full-time workers have been with the company for at least two years. One-fifth have worked there five or more years." (HR Dive)
What Did She Say? Dispute Over Content of Voicemails Requires Jury Trial on FMLA Claims
"Ms. Holladay claimed the company interfered with her FMLA rights by not designating her absences as FMLA. The Court concluded that if Ms. Holladay cited migraines as the reason for her absences in the voicemails then the company should have designated her absences as FMLA. If Ms. Holladay only said that she was ill her notice was deficient and her FMLA claim fails. Because there was competing evidence on both sides the Court held that a jury must decide in a trial." [Holladay v. Rockwell Collins, Inc., No. 17-078 (S.D. Iowa Jan. 24, 2019)] (Jackson Lewis P.C.)
[Guidance Overview] Massachusetts Department of Family and Medical Leave Issues Proposed Regs
"Employers that implement a private plan that meets or exceed the Law's requirements may apply to the Department for an exemption. The Department will accept such applications "on a rolling basis," and, if approved, the exemption will be effective for one year. An employer may apply for exemptions from medical leave coverage, family leave coverage, or both." (Epstein Becker Green)
[Guidance Overview] Draft Regs Issued for Massachusetts Paid Family and Medical Leave Law; Questions Remain
"[T]he draft regulations omit any meaningful explanation of the interactions between employers' existing paid leave policies and the receipt of benefits under the law. The draft regulations are also silent about how private plans should operate. For example, is the employer allowed to make employee wage deductions at the rates promulgated by the Department? Are employers allowed to invest the funds, as in an ERISA-governed retirement plan? What if there is a shortfall in the employer's private leave benefit fund? What if there is a windfall?" (Constangy, Brooks, Smith & Prophete, LLP)
[Guidance Overview] Proposed Regs Implementing Massachusetts' Paid Family and Medical Leave Law
"Covered employers will be required to file quarterly reports with the Department that provide the name, social security number and compensation of each employee and contracted service provider.... An employer's average number of employees will be determined by counting all full-time, part-time, seasonal and temporary employees on the employer's payroll during each pay period and dividing by the number of pay periods in the previous calendar year.... Contract workers for whom employers file IRS Forms 1099 must also be included in this count." (The Wagner Law Group)
[Guidance Overview] IRS Issues New Credit Form for Paid Family/Medical Leave
"The Employer Credit is available for years beginning after 2017 and before 2020, and ranges from 12.5% to 25% of wages paid to a qualifying employee while the employee is on family and medical leave. Employers that qualify may claim or elect not to claim the Employer Credit any time within three years from the due date of their return on either an original return or an amended return." (von Briesen & Roper, s.c.)
Caregiving Benefit Resources and Tips for Employers
"In 2013, approximately 40 million family caregivers in the United States provided an estimated 37 billion hours of care. The estimated value of their unpaid service was approximately $470 billion. Many caregivers are in the 45 to 64 year-old age group.... Nearly 17 percent of today's workforce in the United States provides some level of care for a family member or friend." (The Alliance)
Employer Allowed to Deny Employee Pay Differential Due to FMLA-Related Absences
"The court highlighted that the applicable FMLA regulations explicitly allow employers to withhold a bonus or other payment that is based on the achievement of a goal related to hours worked or perfect attendance. Accordingly, even where an employee does not meet the goal due to FMLA leave, the employer may withhold the payment as long as the employer would do the same for non-FMLA absences." [Flowers v. McCartney, No. 17-604 (E.D. Ark. Jan. 8, 2019)] (The Wagner Law Group)
Michigan Issues Paid Medical Leave Act and Workforce Opportunity Wage Act Posters and FAQs
"Effective March 29, 2019, the PMLA requires Michigan employers with a minimum of 50 employees to provide paid medical leave to their eligible employees.... This poster summarizes the PMLA's eligibility criteria, accrual rate, permitted uses, rates of pay and other general requirements.... [The Michigan Department of Licensing and Regulatory Affairs (LARA)] also released FAQs about the PMLA." (Warner Norcross & Judd LLP)
[Guidance Overview] Michigan's Paid Medical Leave Act Will Be Here Before You Know It
"What does the law require? ... Which employees are eligible? ... For what reasons can leave be taken? ... What is the 'benefit year' under the law? ... Is front loading permissible? ... How much leave is carried over each year? ... When can employees use accrued time? ... What should employers do now?" (Fisher Phillips)
[Guidance Overview] Massachusetts Releases Draft Regs for Paid Family and Medical Leave Law
"Employers with fewer than 25 employees in the Commonwealth are not required to pay the employer portion of premiums. However, all employers having at least one employee in the Commonwealth must otherwise comply with the requirements of the PFML[.]" (Proskauer)
[Guidance Overview] Important Updates to New York Paid Family Leave
"New York's Paid Family Leave program continues to expand in 2019 and employers should be aware of ... the increase to 10 weeks of leave, the 55% wage replacement, and the expansion of the definition of 'serious health condition' to include organ donors.... Governor Cuomo recently issued a veto memorandum outlining his reasons for rejecting the addition of bereavement leave." (Seyfarth Shaw LLP)
[Guidance Overview] Massachusetts Releases Draft Regulations, Contribution Rates for State Paid Family and Medical Leave
"[S]tarting on July 1, 2019, Massachusetts will collect contributions from employers, employees, and the self-employed at an initial rate of 0.63% of wages... [E]mployers may deduct up to 100% of the contributions for family leave from employees' wages, but may deduct only 40% of the contributions for medical leave from employees' wages.... For employers with 25 or more employees, ... 0.52% of the Initial Contribution Rate is designated for medical leave, while the remaining 0.11% of the Initial Contribution Rate is designated as family leave." (Jackson Lewis P.C.)
[Guidance Overview] Massachusetts Department of Family and Medical Leave Releases Proposed Regs
"The [Massachusetts Family and Medical Leave Law (MFMLL)] will require all private employers in Massachusetts to provide covered individuals with paid family and medical leave funded through a payroll tax. Under the proposed regulations, ... the Department will be responsible for, among other things, making decisions about whether to approve employees for paid leave under the MFMLL once the law goes into effect on January 1, 2021.... [T]he proposed regulations left some questions unanswered, and raised some new questions." (Littler)
[Official Guidance] Text of 2018 Instructions for IRS Form 8994: Employer Credit for Paid Family and Medical Leave (PDF)
"An eligible employer uses Form 8994 to figure the employer credit for paid family and medical leave for tax years beginning after 2017. The credit ranges from 12.5% to 25% of certain wages paid to a qualifying employee while the employee is on family and medical leave. You can claim or elect not to claim the employer credit for paid family and medical leave any time within 3 years from the due date of your return on either your original return or an amended return." [Also available: 2018 IRS Form 8994] (Internal Revenue Service [IRS])
[Guidance Overview] Massachusetts Releases Early Draft of Paid Family and Medical Leave Regs
"Although the draft regulations are a work-in-progress, they answer a number of open questions employers have had since the PFML Law was signed last June. In particular, they shed new light on the contributions (i.e. payroll tax) employers will start paying on July 1, 2019, as well as the benefits claim process for workers, beginning January 1, 2021." (Seyfarth Shaw LLP)
Is the Partial Government Shutdown Affecting Your Benefit Plans?
"While on leave, employees are not in pay status and, therefore, elective contributions to 401(k) plans and cafeteria plans cannot be made.... A temporary or permanent layoff or a cutback in hours affecting a number of employees can have an impact on nondiscrimination testing.... Employees who are laid off or experience a reduction in hours resulting in loss of health plan coverage must be offered COBRA continuation coverage.... IRS is not publishing the monthly 'applicable interest rate' used in calculating lump sum payments from certain pension plans." (The Wagner Law Group)
The Pressure is on to Modernize Time-off Benefits
"About two-fifths of survey respondents now offer paid parental leave for both the birth and non-birth parent ... Just 3% of respondents offer unlimited PTO to all employees, and only 4% are considering it.... The combination of expanding employer leave policies with the increasingly complex regulatory landscape has driven more employers to seek external help in administering these programs." (Mercer)
Racial and Ethnic Disparities in Access to and Use of Paid Family and Medical Leave
"This article examines this question, using data from four nationally representative surveys ... The article's most consistent finding is that Hispanic workers have lower rates of paid-leave access and use than their White non-Hispanic counterparts." (U.S. Bureau of Labor Statistics [BLS])
How the Government Shutdown Impacts Employee Leave Requests
"Any previously scheduled FMLA leave will be treated as a leave without pay and will not be counted towards an employee's FMLA entitlement. If an excepted employee faces circumstances that would normally qualify them for FMLA leave, the employee is placed in a furlough status, which does not count against their FMLA leave entitlement.... [T]he furloughed employee will be entitled to his or her full leave once their employing agency or department resumes operations." (Jackson Lewis P.C.)
FMLA Reg Allows Weekend Pay Bump to Be Premised on Attendance
"A hospital employer did not violate the FMLA when it no longer paid a weekend nurse a 30% shift differential due to absences that exceeded the allotted contractual amount, some of which were FMLA leave ... The court explained that an FMLA 'regulation explicitly allows employers to withhold a bonus or 'other payment' that is based on the achievement of a goal related to hours or attendance. Even if the employee does not meet the goal due to FMLA leave, the employer may withhold the payment -- so long as the employer would withhold it for non-FMLA leave as well.' " [Flowers v. McCartney, No. 17-604 (E.D. Ark. Jan. 8, 2019)] (Wolters Kluwer; free registration required)
Unlimited Vacation: Wave of the Future or Potential Liability?
"[In] Illinois, like a number of states, employers are required to keep track of employees' work hours as well as their vacation or PTO accruals and usage. The Illinois Wage Payment and Collection Act requires employers to pay employees for any accrued, unused vacation or PTO remaining to them at the time of termination. But how does that work with an 'unlimited' PTO policy?" (Franczek Radelet P.C.)
Denial of Pay Premium Due to FMLA-Related Absences Does Not Violate FMLA
"This decision reaffirms decisions reached by other courts by finding that an employer may discontinue a pay differential for FMLA absences, provided the employer acts similarly in response to non-FMLA absences. As with many facets of employment law, consistency is key." [Flowers v. McCartney, No. 17-604 (E.D. Ark. Jan. 8, 2019)] (Ogletree Deakins)
New Hampshire, Vermont Governors Pitch Two-State, Voluntary Paid Family-Leave Plan
"The Republican governors of New Hampshire and Vermont proposed teaming up Wednesday to create a joint paid family- and medical-leave program, pitching it as a way to help two small states with aging populations. New Hampshire Gov. Chris Sununu and Vermont Gov. Phil Scott said the program would be voluntary and administered through a private insurance carrier." (The Wall Street Journal; subscription may be required)
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