Paid Leave Concerns When Employees Get COVID-19 Twice – Law360.com

https://www.law360.com/articles/1291176

Law360 (July 15, 2020, 4:21 PM EDT) —

Mark Konkel
Mark Konkel
Maria Biaggi
Maria Biaggi
Nicholas Kromka
Nicholas Kromka

The coronavirus has been novel in more ways than one. On one end of the spectrum, employers confront new questions of almost philosophical dimensions.

How much risk is too much risk? What risks should we ask our employees to accept? Where is the line between ordinary risk — the kind that employees undertake when they walk out the door every day to go to work — and the extraordinary risks posed by a pandemic from which, in the end, employers cannot entirely shield their workforces?

A seemingly more mundane novelty is the plethora of new COVID-19 laws and regulations. Compliance should just be a matter of reading a statute and, well, complying. But even there, an evolving real-world pandemic potentially makes compliance just as complicated.

One example we have helped our clients wrestle with involves exactly this kind of straightforward-on-paper, tricky-in-practice complexity.

One requirement of the Families First Coronavirus Response Act appears to be simple: When an employee working for an employer with under 500 employees gets sick with COVID-19, is seeking a COVID-19 diagnosis, or is subject to a quarantine order of a doctor or a government, they are entitled to up to 80 hours of emergency paid sick leave.

And that made perfect sense when the law was hurriedly drafted: You get sick once, and you do not get sick again, right?

Wrong. Mounting evidence now shows that contracting COVID-19 does not confer absolute immunity and that many individuals have now contracted the novel coronavirus more than once. So what happens when an employee exhausts his or her 80-hour emergency paid sick leave entitlement, recovers from COVID-19, and then contracts it again?

What are the basic requirements of the FFCRA?

Under the FFCRA, full-time and part-time employees who are unable to work or telework due to one of the qualifying reasons below may take up to 80 hours of paid sick leave.

  • The employee is subject to a federal, state or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  • The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to the first or second reason above.
  • The employee is caring for his or her child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID–19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the secretary of the U.S. Department of Health and Human Services in consultation with the secretary of the U.S. Department of the Treasury and the secretary of the U.S. Department of Labor.

An employee who contracts COVID-19 may be eligible to take 80 hours of emergency paid sick leave for one or more of the above-qualifying reasons. However, they may only take 80 hours of paid sick leave once.

That is, the language of the FFCRA is arguably quite clear that two weeks of emergency paid sick leave is all an employee is entitled to within one Family and Medical Leave Act period, i.e., 12 months, whether a calendar year, another fixed 12-month leave year, etc.

The new legislation, effective April 1 to Dec. 31, was quickly drafted in March when the coronavirus was still novel. But while there is still so much that is unknown about COVID-19, we can no longer assume that an individual who has been infected with COVID-19 and recovers, will not be able to get the virus again.

In the U.S., people are reporting testing positive for the virus after having recovered from an initial infection.[1] According to the Centers for Disease Control and Prevention:

When a positive test occurs less than about 6 weeks after the person met criteria for discontinuation of isolation, it can be difficult to determine if the positive test represents a new infection or a persistently positive test associated with the previous infection. If the positive test occurs more than 6-8 weeks after the person has completed their most recent isolation, clinicians and public health authorities should consider the possibility of reinfection.[2]

And, of course, persons who are determined to be potentially infectious should undergo evaluation and remain isolated.

In April, the DOL issued guidance which also confirms the plain language of the FFCRA’s FMLA Expansion Act. That is, employees are not entitled to any more than 12 weeks of FMLA leave in a 12-month period, regardless of whether an employee takes paid leave under the FMLA Expansion Act or regular unpaid FMLA leave for reasons unrelated to COVID-19.

The FMLA Expansion Act does not add additional job-protected leave time. Rather, it adds additional qualifying reasons to take leave. Thus, an employee who takes 12 weeks of FMLA leave, does not have an additional 12 weeks of leave under the act because he or she is, for example, experiencing symptoms of COVID–19 for a second time and seeking another medical diagnosis.

Moreover, employees who may have taken FMLA leave for reasons other than the public health emergency in the preceding leave year may have reduced leave time under the FMLA for purposes of the public health emergency. This may have the unfortunate effect of potentially leaving those who are most vulnerable with less leave time than employees who have not needed to use regular unpaid FMLA leave for their own serious health condition. Also, the FFCRA only applies to employers with 500 or fewer employees.

New York employers are required to comply with both the FFCRA and the New York Emergency Paid Sick Leave Law, or EPSL. The benefits available under the EPSL vary based on the size and net income of the employer.

Under the EPSL, private employers with 100 or more employees are required to provide their employees with at least 14 days of paid sick leave. Employees in New York are eligible for benefits under the EPSL when the benefits provided by that law are in excess of those provided under the FFCRA.

In this situation, employees would be entitled to federal benefits, plus the difference in benefits provided under the FFCRA and the EPSL. In other words, no double dipping. And, unless the employee has to care for a family member with a serious health condition, he or she would not be entitled to New York paid family leave.

Given all this, there is no statutory obligation under the FFCRA to provide employees with additional paid leave in the unfortunate circumstance that an employee contracts the virus twice. However, this may not always be the answer under state law.

For example, the New York State Department of Health and New York State Department of Labor recently issued guidance providing that health care employees who test positive after a quarantine or isolation may receive paid sick leave for up to two additional periods of quarantine or isolation.

Employers could certainly opt to pay employees during a second quarantine, but they are not required to under the current federal law. Alternatively, employers could provide unpaid time off, if the employee has exhausted his or her paid time off.

An employer may also be obligated to consider leave as a reasonable accommodation for individuals whose disabilities put them at greater risk from COVID-19, unless such an accommodation would cause an undue hardship on the employer.

So that ends the inquiry, right? Again: wrong.

What’s an employer to do?

We are always wary of simple answers to tricky questions. One answer to the questions posed above is deceptively simple: If an employee has exhausted her 80 hours of FFCRA leave, it is exhausted, and she is not entitled to a second round of leave.

While that position is straightforward and legally defensible, it misses a bigger context. If an employee is not entitled to additional leave but has contracted COVID-19 twice (or more), a sensible employer, or at least, one that is interested in avoiding getting sued by other employees, will not allow the sick employee to return to work. But if an employer takes the position that an employee ordered to stay home is not entitled to pay, it opens up a whole other can of worms.

One policy arguably underlying the pay protection provisions of the FFCRA is to encourage candor: Employees will be less likely to ignore or minimize their own symptoms, and to tell their employers about what is going on, if they are not concerned about losing compensation as a reward for their honesty.

And with federal unemployment benefits of $600 per week in addition to the normal level of benefits still in place, an employee may well consider continuing to stay home or eventually finding another job.

These concerns underscore why many larger employers who are not subject to the FFCRA’s coverage because of their size have gratuitously offered pay protection to sick employees: You want to know that employees are sick, tell them to stay home to avoid community spread in the workplace, and — perhaps most importantly to your longer-term business goals — actually retain a workforce you hope can return soon enough in full force.

Obviously, employers must first and foremost ensure compliance with applicable law, including the FFCRA. But navigating the pandemic is not just a question of strict compliance. Arguably, protecting continuity of operations, the health of the workforce and an employer’s long-term investment in its workforce is at least as important as ensuring any shorter-term compliance.

While this article cannot address how a specific employer will weigh those potentially competing concerns, smart employers consider all of those impacts in deciding whether or not to maintain a leave policy that may exceed, not just meet, the requirements of the FFCRA.

Regardless of whether the U.S. is in the first or second wave, the possibility is now evident that employees may get the coronavirus for a second time, while having already exhausted the leave entitlements under the FFCRA, state leave laws and the employer’s PTO policy. Employers should be prepared to face this new obstacle, particularly as cases in the U.S. are not abating.


Mark A. Konkel is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren LLP.

Maria B. Biaggi is an associate at the firm.

Nicholas J. Kromka is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

California COVID Call to Cost Billions for Workers’ Compensation System

As expected, the largest workers’ compensation market in the country has rendered the opinion that it is presumed that anyone that is employed outside of their house has contracted the virus at work.  Prior to this order or COVID for that matter the total cost of loss in the California system was predicted to be $18.1 B.  The median risk load as a result if you include “First Responders” is $11.2 B, or 61%.  If you exclude “First Responders”, the additional cost expected is $5.2 B, or a risk load or 28%.

It will be interesting how insurance carriers and those on large deductibles react to this.

FOR IMMEDIATE RELEASE: Contact: Governor’s Press Office
Wednesday, May 6, 2020 (916) 445-4571

Governor Newsom Announces Workers’ Compensation Benefits for Workers who Contract COVID-19 During Stay at Home Order

Benefit will be available for diagnosed workers working outside their homes

 

Presumption will be workers contracted the virus at work; employers will have chance to rebut

 

Governor also signed executive order waiving penalties on property taxes for residents and small businesses experiencing economic hardship based on COVID-19; order also extends deadline for filing property tax statements

 

SACRAMENTO – As California prepares to enter Stage 2 of the gradual reopening of the state this Friday, Governor Gavin Newsom today announced that workers who contract COVID-19 while on the job may be eligible to receive workers’ compensation. The Governor signed an executive order that creates a time-limited rebuttable presumption for accessing workers’ compensation benefits applicable to Californians who must work outside of their homes during the stay at home order.

 

“We are removing a burden for workers on the front lines, who risk their own health and safety to deliver critical services to our fellow Californians, so that they can access benefits, and be able to focus on their recovery,” said Governor Newsom. “Workers’ compensation is a critical piece to reopening the state and it will help workers get the care they need to get healthy, and in turn, protect public health.”

 

Those eligible will have the rebuttable presumption if they tested positive for COVID-19 or were diagnosed with COVID-19 and confirmed by a positive test within 14 days of performing a labor or service at a place of work after the stay at home order was issued on March 19, 2020. The presumption will stay in place for 60 days after issuance of the executive order.

 

The Governor also signed an executive order that waives penalties for property taxes paid after April 10 for taxpayers who demonstrate they have experienced financial hardship due to the COVID-19 pandemic through May 6, 2021. This will apply to residential properties and small businesses. Additionally, the executive order will extend the deadline for certain businesses to file Business Personal Property Statements from tomorrow to May 31, 2020, to avoid penalties.

 

“The COVID-19 pandemic has impacted the lives and livelihoods of many, and as we look toward opening our local communities and economies, we want to make sure that those that have been most impacted have the ability to get back on their feet,” said Governor Newsom.

 

Since declaring a state of emergency due to COVID-19 on March 4, 2020, Governor Newsom has taken several actions to benefit workers on the front lines, includingpaid sick leave benefits for food sector workers that are subject to a quarantine or isolation order; critical child support services for essential workers and vulnerable populations; additional weekly unemployment benefits; and needed assistance in the form of loans for small businesses and job opportunities in critical industries for workers that have been displaced by the pandemic.

 

The 72’nd Annual Workers’ Compensation Educational Conference – Orlando

Another year and another convergence of the who’s who in the field of workers’ compensation at the Marriott World Center in Orlando this week.  Known as the largest insurance conference in the country, the Workers’ Compensation Institute brings together “centers of influence” in law, medicine, claims adjusting, underwriting, brokerage, risk-bearing, managed care, regulation, legislation, staffing and of course coemployment.

Dating back over a decade, the Workers’ Compensation Institute and specifically Jim McConnaughhay and Steve Rissman have granted the PEO community a one day educational track.  Shortly thereafter, FAPEO and NAPEO threw their influence and sponsorship behind it.  Special thanks to the WCI, FAPEO and NAPEO for making this a success and bringing positive exposure to the PEO industry.

I am proud to participate on a panel Tuesday morning at 9:00 am with Andy Olwert (Next Level), Deb Hetzer (PEMCO), Phil Herron (Continuum HR) and Robert Barrett (Rissman, Barrett, Hurt, Donahue, McLain & Manganese’s, PA) titled “Accountability in the PEO Industry – Posting Wins for PEO’s and Their Claims Teams”.  More information on this data-driven session can be found on the WCI 360 site here:

http://www.wci360.com/conference/professional-employer-organization-breakout

Hope to see you Thursday morning and look forward to catching up with lots of old friends!

California Adopts 16.5% Workers’ Compensation Rate Drop for 7.1

From the Insurance Journal…

http://www.insurancejournal.com/news/west/2017/05/22/451841.htm

California chose to adopt the Workers’ Compensation Insurance Rating Bureau’s (“WCIRB”) recommendation of a -16.5% drop in pure premium rates.  It should be noted that these rates are advisory only and so what to watch next is who adopts the pricing decrease and who does not.  With over 30% of all US workers’ compensation premiums generated out of California, this will provide an intriguing battleground and opportunity for those carriers that buy into WCIRB’s numbers in regard to lower medical loss development, decreasing indemnity claim frequency, and lower than projected loss adjustment expenses.

– Paul R. Hughes

 

2016 Workers’ Compensation Combined Ratio is a 94 per NCCI

It has been a busy month of conventions… NAPEO Legal and Legislative, RIMS and last week the NCCI.  On the ground at the PACE conference in New Orleans, a look back at the NCCI AIS.

The National Council of Compensation Insurance (“NCCI”) Annual Issues Symposium is the preeminent conference for understanding all things workers’ compensation.  Industry experts in the carrier, reinsurance and brokerage communities converge in Orlando every year in May to better understand the meaningful trends in the workers’ compensation line of insurance. The most meaningful number of this year’s event was 94… the lowest combined ratio of any other year since 1990 with the exception of 2006 (93).  It should also be noted that this is a 6 point drop from the 100 of last year and represents one of few years <100.

Based on typical patterns, this is now where capital enters the market… which was illuminated when the NCCI literally sold out of tickets.

With NAPEO’s Legal and Legislative Conference two weeks ago, the NCCI conference last week and PACE in New Orleans this week… it has been a high school reunion of sort – seeing good friends, telling old stories and commiserating on how to make the PEO industry the optimal platform for American business.  Health insurance maybe in the news every day but workers’ compensation is the line of business that PEO’s must have.

The origination of the PEO Compass was to provide an executive summary of all things workers’ compensation and how they impact all things PEO.  The NCCI is a huge driver of this nationwide and sets rates and rules in 37 states.  The document attached is a must read for those like me that are workers’ compensation and data geeks.

https://www.ncci.com/Articles/Documents/II_AIS2017-SOL-Guide.pdf

For those that are not (or would prefer not going through 57 slides), the highlights below:

  • The total P/C industry’s 2016 combined ratio (101%) represents a three-point increase versus that for 2015.
  • Combined ratios increased in all lines of business except workers compensation (slide 4)
  • Premium for the NCCI-serviced Residual Market Pools has remained stable over the last four policy years, at approximately $1.1 billion. (slide 12)
  • Between 2015 and 2016, countrywide private carrier direct written premium grew +2.4% (slide 15)
  • The percentage change in payroll (+4.5%) is approximately equal to the percentage change in the average wage (+2.5%) plus the percentage change in employment (+1.9%).  Employment grew at an above-average rate for the Professional and Business Services; Education and Health Services; Construction; and Leisure and Hospitality sectors.  Employment in the Manufacturing sector was flat, while the All Other sector posted a decrease primarily due to declines in Natural Resources and Mining employment (slide 17)
  • NCCI workers’ compensation filings with effective dates in 2017 averaged –6.7%… California and New York are already seeking approval for rate decreases which are not even part of this data set (slide 18)
  • In 2013, more than 70% of respondents saw an increase in premium at renewal, but by the fourth quarter of 2016, 62% reported seeing a decrease in premium at renewal (slide 23)
  • The workers compensation 2016 calendar year combined ratio for private carriers was 94%. This is the second consecutive year that the industry has posted a six-point underwriting gain. Consecutive combined ratios at this level have not been seen in at least the last 30 years (slide 24)

What this means is that workers’ compensation has become a very sexy line of insurance risk-bearers.  With favorable improvements in operating and investment performance, the median expected rate of return is +20%.  Again, it is therefore no surprise that this years NCCI AIS conference was sold out months prior to the event.

For those that happen to be in New Orleans this week for the annual PACE conference, let’s meet up and strategize in person about the great opportunities ahead for the industry.

– Paul R. Hughes

c: 321.217.7477

e. phughes@libertateins.com

 

 

Understand Average CA Claims Cost in Real-Time (Powered by RiskMD)

California PEO Loss Ratio Study

Because of the speed in which PEOs report payroll and premium for client companies, we are able to show live heat maps back to our PEO community representing areas where both average claims cost and activity are the highest.  On the graphic below, we have highlighted the state of California which represents 18% of workers’ compensation premium for the country; as a result, trends in California tend to be much more meaningful than other states.  The visual below synthesized $3 Billion of payroll information, $155 Million of workers’ compensation premiums, and 5,613 claims.  Countrywide our data aggregates more than $19 Billion of payroll information, $500 Million of workers’ compensation premiums, and 31,000 claims dating back to January 1 2008.  It is not a myth that claims tend to cost more in both metropolitan cities as well as southern California.

RiskMD 4x Faster Than Bureaus

Every time our PEO clients run a payroll, our RiskMD heat maps refresh in real-time, and allow our clients to turn risk into reward.  By understanding data, PEOs can evolve their workers’ compensation platforms into profit centers.  RiskMD synthesizes our data 1.5 years faster than anyone else and an amazing 4 years faster than national and state bureaus.  We can get in and out of areas of profitability and duress in a given class code, zip code, county, or state.

Risk MD Advantages for Making Your Workers Compensation Platform a Profit Center

The advantage to using RiskMD data is that we know where claims are going to be higher than average 3.5 years before bureau information is released.  All of traditional workers’ compensation placements, which represent 92% of the market, do not know payroll and premium until post audit.  Actuarial bureaus then get this information approximately 4-6 months thereafter and use it for rate making purposes approximately one year after that.  As a result, the data used to promulgate workers’ compensation rates countrywide is from the years 2006-2010.  The data you are seeing illuminated on this gauge is as of last Friday (3/21/14).

PEOs should be very bullish in the state of California

PEOs do need to realize that there are wider ranges of results than in every other state (consider average cost per claim and percentage of claims litigated).  There exists a wide range of profitability and non-profitability in California and therefore it needs to be treated as multiple states in its own due to its size, as well as socioeconomic differences within its territory.  In fact: larger carriers use territorial multipliers where more/less rate is charged depending on the county in question.  We feel that we can get more granular than that, by identifying zip codes rather than counties that have the highest averages.

While the data pool will never have as much credibility as “every flip of the coin”, it certainly provides a credible benchmark to show trend in key areas like the state of California.  Click the graphic to zoom in.

RiskMD Data Claims Cost in Real-Time Based on Population Growth

– This view provides an enhanced visualization of the location of claim occurrences by zip code.  The data includes all Risk Transfer Programs claims occurring between 1/1/2008 and 3/21/2014.  This view is updated 3-5 times per week when a new claims files are available to push into our proprietary data store.
– The size of each circle indicates total claim count for the given zip code. The color indicates average cost per claim.
– The data set overlay (colors) indicate population growth by zip code for the years 2009-2014.