Page 40 - BusinessWest June 23, 2021

plan, and which provide the same job protections, including the anti-retaliation provisions.
“You have two options — you can deal with the state Department of Family Leave they set up, or you can have your own third-party administrator,” Netkovick said. “The private plan has to be set up to match the state plan. There’s no requirement it has to be better, but it has to at least match with the state plan.”
One reason a company might do so is because a third-policy benefits administrator offered that service, and the employer may prefer communi- cating with that entity over dealing with the state.
Gannon agreed. “One of the perceived advan- tages to going with private plans is that you do have a little more control over the administration of the plan,” he said, noting that it can be frustrat- ing when the state gets it wrong — for instance, if an employee has been granted 22 weeks of leave rather than 20 because of an administrative error, to cite a hypothetical example.
“There’s nothing you can do to reverse that, which is frustrating for employers,” he told Busi- nessWest. “With private plans, at least in theory, you can reach out to the plan administrator and ask, ‘why did you approve this for 22 weeks as opposed to 20?’ With the state, it’s more challeng- ing to do that.”
One thing is clear — in allowing employees to take amounts of leave not typical across the coun- try, the state is layering on an additional staffing challenge at a time when companies in myriad industries are already challenged by worker shortages.
“If the state department or your third-party administrator makes the determination this per- son qualifies under PFML, then there’s really not much you can do,” Netkovick said. “I know that’s
created staffing issues for a couple of our clients, but they’ve been able to work that out. If there’s some kind of mandated ratio, I could see that becoming an issue — you might have to hire peo- ple on a temporary basis.”
Gannon agreed it can be a hurdle, particularly since employees are eligible for leave starting from day one on the job.
“It has been a challenge from a staffing per- spective, especially these days,” he said. “Staffing would be a challenge without all these job-pro- tected forms of leave, and now we have PFML, too.”
Know the Facts
One key requirement of the PFML law is that employers need to put it in writing for their workforce.
“It doesn’t have to be in the handbook, but it has to be in writing, advising people of their rights under PFML and the qualifications,” Netkovick said, adding that some companies have made it a part of the handbook because they were revising that manual anyway. “But others have made it as a standalone policy that everyone has to sign off on.”
Gannon has also seen employers approach the communication question in different ways. “We’ve had clients doing a complete update of their handbook, not just to make sure they’re compliant with this law, but to determine whether other poli- cies need to be changed,” he said, such as call-out procedures that give an employer enough time to manage absences from a staffing perspective.
Of course, those written policies need to make clear the anti-retaliation elements of the law, too. If an employee files a lawsuit against an employer
for violation of the PFML law and the employer is found to be in violation, numerous remedies are available to the employee, including reinstatement to the same or similar position, three times the lost wages and benefits, and even the employee’s attorney’s fees.
That’s why training managers and supervisors on all aspects of the law is especially important,
“It doesn’t have to be in the handbook, but it has to be in writing, advising people of their rights under PFML and the qualifications.
Gannon said. “They’re the ones who may not real- ize how strong the anti-retaliation provisions are. Depending on the size of the business, an employ- er may rely on managers and supervisors, and if they unknowingly retaliate against someone, it could be a problem for the entire organization. It’s important for those in supervisory or managerial roles to understand the law and how strong those anti-retaliation provisions are.”
Netkovick agreed, adding that yearly trainings on all aspects of workplace law, including Paid Family and Medical Leave, is a good idea.
“Companies need to be aware of that retalia- tion provision — I think that’s the key,” he said. “It’s worthwhile to keep that in mind at the begin- ning, so you know what the lay of the land is in case something comes up after the fact.” u
Joseph Bednar can be reached at [email protected]
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