DOL Updates FMLA Forms

On July 16th, the Department of Labor (DOL) updated Family and Medical Leave Act (FMLA) forms which employers may use to administer FMLA leaves within their organizations. The FMLA does not require the use of any specific form or format but using the forms can simplify leave administration and facilitate compliance for employers.

In the press release, the DOL announced that the forms collect the same information but are “simpler and easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave.” Among the changes announced are boxes that can be checked instead of requiring written responses and electronic signature features. As the DOL stated, “[t]he changes reduce the amount of time it takes a healthcare provider to provide information, and help leave administrators review and communicate information to employees more directly and with greater clarity, reducing the likelihood of violations.”

The DOL also updated its guidance related to FMLA leave related to COVID-19. The two updates are:

  • Telemedicine visits are considered in-person visits for purposes of establishing a serious health condition (Guidance, Question #12)
  • Employers may require an employee returning from FMLA to get a COVID-19 test as long as all employees returning to the office are also required to get a test (Guidance, Question #13)

Note: The FMLA covers employers with 50 or more employees for at least the past 20 weeks. It also applies to public agencies, regardless of the number of employees, and to elementary and secondary schools, both public and private. The federal FMLA only applies to employees who have worked for a covered employer for a minimum of 12 months, although these 12 months do not need to be consecutive. Additionally, the employee must have worked at least 1,250 hours for the employer during the previous 12 months at a site where the employer has 50 or more employees within a 75-mile radius. See the differences between federal and WI FMLA here. If you are unsure if you are an FMLA covered employer, please contact us as noted below.

Lake Effect is here to answer your FMLA questions and/or help administer this process within your organization. Contact us at info@le-hrlaw.com or 1-844-333-5253.

#bekind #staywell #grantgrace

For most of us, Memorial Day weekend has always served as the unofficial kick-off to the summer season, a long weekend spent with family and friends enjoying time together and creating memories. But the reality of life with COVID-19 has put many of these plans on hold and makes leaving the house feel like an act of bravery.

Over the past few months, the Lake Effect team has been sharing with you the latest government updates and guidance. Today, we would like to take a few moments to recognize the true meaning of Memorial Day and honor those who have lost their lives in active military service, a true act of bravery.

Next, we want to help you officially kick off the Summer of 2020 with some old school good vibrations! In March, when the reality of living in a world with COVID-19 became clear, our team came up with three phrases signifying how we wanted to face the uncertain times ahead:

  • Be Kind
  • Stay Well
  • Grant Grace

Be Kind: COVID-19 has impacted everyone in different ways. We will have good days and bad, but any act of kindness we can provide each other, even a stranger, goes a long way toward getting through these days together. This weekend, how can you make someone smile by sharing your kindness?

Stay Well: Not only should we monitor our temperatures, practice social distancing, and wash our hands frequently, but we should be mindful of our mental health as well. It is important that we stay aware of our current mental state, and care for ourselves and each other. There have been times when some of us had to take a personal” timeout,” and other times when we just needed to be there for each other (of course, via phone or Microsoft Teams). This weekend, soak up some sun, have an impromptu picnic with the family at one of our lovely parks, take advantage of the rain that is in the forecast and binge on Netflix all day, or make more bread – whatever fills your tank mentally and physically.

Grant Grace: The challenges we face today are many. For some, social distancing has led to feelings of isolation; for others, it has led to crowded homes with children home from school all day or college kids reluctantly returning home early; it has converted dining room tables or kitchen counters into unintended classrooms and home offices. We have cancelled weddings and graduations, and we have postponed memorials and funerals to say goodbye to loved ones. No matter how hard we try to stay strong, we are not perfect. This is a stressful time for all of us. Our quirks shine brighter than ever when we are stressed. Be gentle with yourself and with others. We’ll get through this together.

So, enjoy your holiday weekend in whatever form it takes. #bekind #staywell #grantgrace

IRS Increases Flexibility for Employer Health Plans, FSAs and Dependent Care Programs

On May 13, 2020, the IRS released new guidance giving employers greater flexibility in the administration of sponsored Sec. 125 cafeteria plans (including health insurance, flexible spending and dependent care plans), whether insured or self-insured. Under the new rules, an employer may amend plan documents to permit employees to make new health care elections or change current elections mid-year on a prospective basis (outside of the customary open enrollment period). An employer may also give employees more time to apply unused medical flexible spending and dependent care account dollars, recognizing that cancellation of medical procedures and school/day care closures during the pandemic have dramatically affected employee balances in these accounts.

Under the new guidance, employers may permit eligible employees covered by a Sec. 125 cafeteria plan to do the following:

  • Employer Sponsored Health Plans:
    • Allow employees to enroll in health care insurance plan on a prospective basis, even if the employee initially declined to elect coverage under the employer-sponsored health coverage.
    • Revoke an existing election and make a new election to enroll in different coverage sponsored by the same employer on a prospective basis.
    • Revoke an existing election, provided that the employee attests in writing that they are enrolled, or will immediately enroll, in other health coverage not sponsored by the employer. (The guidance provides a sample attestation.)
  • Medical Flexible Spending Plans and Dependent Care Spending Plans:
    • Revoke an election, make a new election, or decrease or increase an existing election applicable to a health flexible savings account or dependent care assistance program. (Employers can limit the election changes to be no less than amounts already reimbursed to the employee.)
    • Revise their plans to provide options for employees who have unused amounts at the end of the 2020 calendar year in one of two ways:
      • Grace Period: Allows plan participants to incur expenses and use the remaining funds in the account no later than March 15, 2021.
      • Carry over: Allows plan participants to carry over amounts up to $550 into their plan for the 2021 year.
      • Note: An employer would need to choose either the Grace Period or the Carry Over option, they cannot do both.

Keep in mind that the increased flexibility allowed by the new IRS guidance is optional, not required. To implement any of the above changes, an employer must adopt amendment(s) to applicable Sec. 125 cafeteria plans on or before December 31, 2021, and those amendments may be effective retroactively to January 1, 2020. The employer must also inform all eligible employees of any changes to the Sec. 125 cafeteria plans. Employers should work closely with their benefits brokers and health plan providers to make any of these changes.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Updates ADA Accommodations and EEO Reporting

On May 7, 2020, the EEOC updated an existing technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” New questions and answers on “Return to Work” address an employer’s obligations to accommodate employees with underlying medical conditions as they begin to return to the workplace during the ongoing COVID-19 pandemic. The EEOC also provided updated guidance on EEO reporting.

The new guidance confirms that if an employee has a medical condition that may create a higher risk for severe illness from COVID-19 (as identified by the CDC) and is in need of a reasonable accommodation, the employee must inform their employer either verbally or in writing about the medical condition and the potential need for an accommodation. The employer may then ask questions or seek medical documentation to determine whether the employee has a disability that can be reasonably accommodated without undue hardship. Notably, if an employee does not request an accommodation, the employer is not required to take action. If the employer knows and is concerned that an employee has a medical condition that increases the risk of severe illness from COVID-19 (as identified by the CDC), the employer may not exclude that employee from the workplace or take any other adverse action solely on that basis unless (1) the employee’s disability poses a “direct threat” to their health that (2) cannot be eliminated or reduced by reasonable accommodation.

The ADA “direct threat” requirement is a high, fact-specific standard. The direct threat assessment may not be based solely on a condition being on the CDC’s list; rather, an employer must make an individualized assessment based upon a reasonable medical judgment about the employee’s specific disability. In most cases, the employer will have to consider such factors as: the severity of the pandemic in the geographic area of the worksite; employee’s specific health condition; the employee’s job duties; likelihood of exposure to the virus at the worksite; and measures being taken by the employer to protect all workers.

Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude or take adverse action against the employee unless there is no way to provide a reasonable accommodation absent undue hardship to the employer. Potential reasonable accommodations may include: providing enhanced protective gear or equipment; erecting protective barriers in the workplace; eliminating marginal functions; and temporarily modifying an employee’s work location or schedule.

This means that an employer may only bar such an employee from the workplace if, after going through all necessary steps and considering all potential accommodations, the facts demonstrate that the employee poses a significant risk of substantial harm to herself that cannot be eliminated by reasonable accommodation.

In a separate action today, the EEOC announced that it will delay collection of 2019 and 2020 EEO-1 (Employer Information Report), 2020 EEO-3 (Local Report) and 2020 EEO-5 (Elementary-Secondary Staff Information Report) due to the COVID-19 public health emergency. The EEOC expects to begin collecting 2019 and 2020 EEO-1 reports in March 2021, and it expects to begin collecting 2020 EEO-3 and EEO-5 reports in January 2021. The EEOC will notify filers of the precise dates the surveys will open as soon as those dates are available.

The legal and HR team at Lake Effect is closely monitoring the continuing impact of COVID-19 on the workplace and will continue to provide timely updates. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Updated Cobra Forms

On May 4, 2020, the Department of Labor and the Internal Revenue Service jointly provided updates to the notification and elections deadlines set forth in the Consolidated Omnibus Budget Reconciliation Act (COBRA) intended to protect the participants and beneficiaries in employee benefit plans during the National Emergency caused by the COVID-19 pandemic. The final rule, effective immediately, includes the following:

New “Outbreak Period” defined: The final rule defines a new “Outbreak Period” as the period from March 1, 2020 until 60 days after the end of the declared National Emergency. Note that the Trump Administration has not yet specified the end date of the National Emergency. Thus, we do not yet know when the Outbreak Period will end.

COBRA elections period extended: Normally, after a qualifying event (i.e. employment termination, reduction in hours, or other loss of coverage), employees have 60 days after receipt of a COBRA Election Notice to elect COBRA coverage. Under the new rule, employees will have until 60 days after the end of the Outbreak Period to elect COBRA coverage and return the form to the employer. Again, since we do not know the end of the Outbreak Period, we do not know when the 60-day extension ends.

Deadline to pay COBRA premiums extended: Normally, employees have a grace period of 45 days after making their COBRA election for their initial COBRA premium payment and a grace period of 30 days each month to pay their COBRA premiums for each subsequent month of COBRA coverage. Under the new rule, employees will have 45 days following their COBRA election, which is extended as noted above. Furthermore, for any COBRA premiums due during the Outbreak Period, employees will have 30 days following the end of the Outbreak Period to make catch-up payments (i.e. payments for at least March, April and May). Again, since we do not know the end of the Outbreak Period, we do not know when the 30-day extension ends.

For COBRA notices that have been sent out since March 2020, employers should communicate the new extended deadlines to all recipients. This can be done by a simple letter to the address of record for each employee. Employers should also consider supplementing or modifying COBRA notices provided to employees between May 4 and the end of the Outbreak Period to reflect the revised deadlines set forth in the new final rule.

Employers can download the updated forms in Word format on this page by clicking on the appropriate icons. The new language is highlighted in yellow and areas to be customized are highlighted in green. Employers will then need to insert information about their benefits plan/s, premium/s, COBRA deadlines, and COBRA administrator. Alternatively, the attorneys and HR professionals at Lake Effect HR & Law can help you tailor the forms for your organization. We can also assist and advise on overall COBRA administration.

The attorneys and HR professionals at Lake Effect HR & Law can help you draft the employee communication or update the COBRA forms for your organization. We recognize the administrative struggles this will present for your COBRA administrator and your health plan. Our team is also available to assist and advise on this COBRA administration.

Illinois Provides Model for Newly Required Anti-Harassment Training

On April 30, the Illinois Department of Human Rights released a model training presentation that employers can use to comply with Illinois’ new sexual harassment prevention training requirement. An employer may use this model training, or it may develop a training specifically tailored to its organization, provided that the training meets the state’s minimum legal requirements.

In 2019, Illinois adopted a new law requiring employers to provide annual sexual harassment prevention training to all Illinois employees. This requirement also applies to employers based in other states that have one or more employees working remotely in Illinois or working at a customer’s worksite in Illinois. All Illinois employees must be trained by December 31, 2020. Restaurants and bars must also provide supplemental sexual harassment prevention training targeted specifically for those industries.

Two major points about the new training requirement from the state’s FAQs:

  • Although employers are not required to train independent contractors, Illinois strongly advises that independent contractors receive training if they work on-site at an employer’s workplace or interact with employees.
  • Employers should include in their anti-harassment training any employee who is based outside of Illinois but regularly works with employees in the state. For example, a manager based in Wisconsin who supervises employees working in Illinois should be included in the training.

While virtual training may be the only option in our current environment, employers should keep in mind that the EEOC has found that anti-harassment training is most effective when it is tailored to the specific workplace and workforce, as well as provided in-person, with interactive discussion, and by an experienced trainer.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to anti-harassment or other employee training. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Updated Cobra Forms

On May 1, 2020, the Department of Labor announced updates to the Consolidated Omnibus Budget Reconciliation Act (COBRA) Model General Notice and Model Election Notice. The modifications provide information about Medicare as an option for employees who have lost their health insurance as a result of a qualifying event. Given the number of layoffs and terminations resulting from the COVID-19 pandemic, these are timely updates.

Employers can download the updated forms in Word format by clicking on the button below, and the new language is highlighted in yellow and areas to be customized are highlighted in green. Employers will then need to insert information about their benefits plan/s, premium/s, COBRA deadlines, and COBRA administrator. Alternatively, the attorneys and HR professionals at Lake Effect HR & Law can help you tailor the forms for your organization. We can also assist and advise on overall COBRA administration.

Safer at Home Extended – Preparing for Your “New Normal”

In the wake of Governor Evers’ extension of Wisconsin’s Safer at Home Order until May 26th, we are all eager to return to our normal ways, but what will our normal be after the quarantines lapse? What can we learn from this experience? What do we want to carry forward as part of our “new normal,” both personally and in the workplace?

Many people have discovered that they enjoy the flexible work schedule and wellness habits that they can incorporate while working at home. People have enjoyed sleeping in (minus the COVID-19 related dreams), eating healthier, taking walks in the afternoon, spending more quality time with the kids, working during their most productive time of their day, and implementing other work/life balance habits that were difficult to attain in the past. Some organizations are facing very dark days, reducing staff and pay, and anticipating future challenges. In the face of it all, however, organization leaders have expressed pride in the innovation, collaboration, resiliency, and flexibility of their teams over the past few weeks.

What can we learn from this? What can we adopt and incorporate to improve work performance, relationships and overall job satisfaction? Ask yourself and your team members what went well during this time and how you can continue to support new-found innovation, creativity, engagement, collaboration, and resiliency. Use this challenging experience as an opportunity to capture the best parts of your organization’s new normal and strategize now to prevent your organization from falling back into old, bad habits.

In addition, take some time to review your emergency and business continuity plans, handbook policies and procedures, and benefit plans to ensure that your organization is better prepared to manage future catastrophic events. You may want to consider some of the following:

  • Implement an employee assistance plan, including free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems including work-life stressors, family issues, financial concerns, relationship problems, addiction concerns, etc.
  • Implement a financial literacy and advisory program for your team to improve financial literacy, planning and security.
  • Establish an internal Emergency Action Plan and communicate it to staff on a regular basis. Consider testing the plan with impromptu drills.
  • Integrate flexible work schedules and virtual work opportunities that can minimize commute times, reduce transmission of infection, encourage healthy habits, and enable team members to spend more time with family. Expand leave policies to include care for close friends and non-traditional family members.
  • Expand bereavement leave policies to include loved ones beyond immediate family members. Consider providing more than a few days to grieve or plan a funeral.
  • Modify the way you coach and manage employees’ performance to move away from micromanaging to a results-based methodology.
  • Move to a (more) paperless work environment to support virtual team members and improve organizational preparedness during unexpected disruptions or workplace closings.
  • Review and enhance IT security to protect the information of your team members, organization, and clients/customers.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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