What are the requirements?

Voluntary plans must meet or exceed the state plan benefits. The requirements are broadly divided into administrative requirements and benefit requirements. Administrative requirements are associated with ways your business operates the voluntary plan. Benefit requirements govern the kinds of benefits your plan provides to your employees.

Administrative Requirements

Reporting

Employers using a voluntary plan must report employee wages, hours worked, and other information required by the state.

Paid family and medical leave benefits are portable between jobs, and employee qualification is based on hours worked. Therefore, reporting is necessary for voluntary plan employers so that employees have a record of their total hours worked among all employers.

Family Leave and Medical Leave

There are two parts to Paid Family and Medical Leave: family leave and medical leave. An employer can choose a voluntary plan that covers just family leave, just medical leave, or both.

Family leave covers events like the birth of a baby or the adoption or placement of a child younger than 18, the care for a family member, and some military-connected events.

Medical leave covers self-care for the employee after a qualifying event. Medical leave is sometimes called short-term or temporary disability.

If an employer chooses to operate one part and not the other, the employees of that business will use the state plan for the part not chosen. The employer must meet the requirements of the state plan for the option not chosen in addition to operating their voluntary plan.

Third Party Administration

Voluntary plan employers have the option to work with a third party to operate their voluntary plan. If an employer chooses to work with a third party the employer still carries the legal burden of satisfying the requirements of the program.

An employer’s application should be submitted, and agreed to, by the applying employer.

Accelerated Payment Offer

A Voluntary Plan employer may incentivize an employee to return to work early. These employers can offer an accelerated payment schedule where they pay the monetary benefit the employee is entitled to in a shorter period of time, allowing the employee the choice to return earlier than expected.

For an offer to meet the requirements of the law, an employer must offer at least half the entitled amount of time for leave, then compensate the employee the benefit amount they would’ve received had they taken the entire amount of leave.

For example, an employee could intend to take 10 weeks of Paid Family and Medical Leave. The employer could offer 8 weeks of paid leave and the compensation of the final 2 weeks when they return to work. If the employee excepts this offer, they would be out of work for 8 weeks and receive the compensation of 10 weeks.

The decision to accept this offer from an employer is entirely the employee’s. This accelerated payment option is only available to Voluntary Plan participants.

Benefit Requirements

To meet or exceed the state plan, voluntary plans must meet or exceed the state plan in the following benefits:

  • Eligibility
  • Premium amount
  • Leave duration
  • Weekly benefit
  • Job protection
  • Maintenance of health benefits
  • Frequency of benefit payment

 The following chart illustrates the difference in requirements by family leave plan, medical leave plan, or both.

Requirement

State Plan

Voluntary Plan for Medical Leave Only

Voluntary Plan for Family Leave Only

Voluntary Plan for Family and Medical Leave

Employee Eligibility

Covers All Eligible Employees

Covers All Eligible Employees

Covers All Eligible Employees

Covers All Eligible Employees

Premium Amount

0.4%

(0.4% * 2/3) = .27% or less

(0.4% * 1/3) = .13% or less

0.4%  or less

Leave Duration

Up to 12 weeks of family or medical leave, plus 2 weeks if leave results from pregnancy complications.

Up to 16 weeks in combination of family and medical leave, plus 2 weeks if leave results from pregnancy complications.

Up to 12 weeks of medical leave, plus 2 weeks if leave results from pregnancy complications

Up to 12 weeks of family leave

Equal to or more than state plan

Weekly Benefit

Up to 90% wage replacement based on weekly average wage

Equal to or more than state plan by weekly average wage

Equal to or more than state plan by weekly average wage

Equal to or more than state plan by weekly average wage

Job Protection

Employer with 50 or more employees, worked for 12 months with employer, worked 1250 hours during year

Employee must work 9 months and 965 hours for that employer for 12 months preceding date leave will begin, in addition to state plan requirements

Employee must work 9 months and 965 hours for that employer for 12 months preceding date leave will begin, in addition to state plan requirements

Employee must work 9 months and 965 hours for that employer for 12 months preceding date leave will begin, in addition to state plan requirements

Health Benefits While on Leave

Must maintain health benefits while on leave in accordance to FMLA

Must maintain health benefits while on leave in accordance to FMLA

Must maintain health benefits while on leave in accordance to FMLA

Must maintain health benefits while on leave in accordance to FMLA

Frequency of Benefit Payment

1st payment within 14 days after application and biweekly thereafter

Equal or more often than state plan

Equal or more often than state plan

Equal or more often than state plan

  

Eligibility

A voluntary plan must cover all employees of an applying employer.

Employees are eligible for benefit payments under an approved voluntary plan once they have worked 820 hours in the qualifying period and 340 hours for that employer. Employees who are not yet eligible for coverage under an approved voluntary plan are eligible for benefits under the state plan if they have worked 820 hours in the qualifying period.

If an employee was covered under a voluntary plan by their previous employer, they are immediately eligible for their new employer’s voluntary plan.

Benefit Eligibility Restrictions

The requirement for benefit eligibility in the state plan is working 820 hours in the qualifying period. Voluntary plans must match this requirement* and cannot add additional hurdles to eligibility. Your application will not be approved if it restricts benefit eligibility for reasons like age, gender, race, preexisting conditions, etc.

*By statute, voluntary plans require an employee to also work 340 hours for the voluntary plan employer in the qualifying period to be eligible for benefits.

Premium Amount

The state plan premium will be 0.4% in 2019. These state plan premiums are divided into portions for Family Leave and Medical Leave. The Family Leave portion is 1/3 of the total premium, and the Medical Leave portion is 2/3.

A voluntary plan must be equal or less than these amounts. A voluntary plan that only covers family leave must have a premium of .13%  (0.4% * 1/3) or less. A voluntary plan that only covers medical leave must have a premium of 0.27% (0.4% * 2/3) or less. If your voluntary plan covers both family and medical leave, the premium must be 0.4% or less.

Leave Duration

The state plan offers up to 12 weeks of family or medical leave, plus 2 weeks if the leave is a result from pregnancy complications. There is 16 weeks available for a combination of family and medical leave, and again an additional 2 weeks if the leave results from a pregnancy complication.

A voluntary plan must meet or exceed these maximum leave durations. If a voluntary plan covers only Family Leave, the maximum leave duration must be 12 weeks or more.

If a voluntary plan covers only medical Leave, the maximum leave duration must be 12 weeks or more, plus 2 weeks if a result from pregnancy complications.

If a voluntary plan covers both family and medical leave, it must include a maximum leave duration of 16 weeks or more, plus 2 weeks if a result from pregnancy, in combination of both kinds of leave.

Weekly Benefit

The weekly benefit of the state plan is calculated using the following method:

First, find the weekly average wage of the employee by taking the total wages over the two highest quarters during the qualifying period and dividing by 26.

Second, determine if the weekly wage is greater than ½ the state average, $595 in 2018. If the employee’s average weekly wage is below ½ the state average, the employee’s weekly benefit is 90% of their average weekly wage.

If the employee’s average weekly wage is greater than ½ the state average, first calculate 90% of the employee’s average weekly wage, capped at the state average. This is the first number.

Then take 50% of the employees’ average weekly wage that is above ½ the state average weekly wage. This is the second number.

Add the first number and the second number together and the result is the weekly benefit amount.

A voluntary plan must meet or exceed the benefit calculated here for each employee.

Job Protection

Voluntary plan employers have higher job protection requirements than the state plan. Job protection is available to employees if their voluntary plan employer has 50 or more employees. The employee must work for 9 months with that employer and 965 hours for that employer during the 12 months preceding the date leave will begin.

When the employee returns from leave, they are entitled to:

  1. Return to a position of employment held by the employee when leave commenced; or
  2. Return to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Using the voluntary plan benefits can’t result in the loss of employment benefits accrued before leave begins, or any other right, benefit or position of employment the employee would have been entitled to if they had not taken leave.

An employer can, as a matter of policy:

  1. Request from the employee certification by the employee’s health care provider that the employee can resume work, as long this policy is uniformly enforced.
  2. Require periodic reporting from the employee their status and intention to return to work.

An employer may deny job protection to a salaried employee who is among the highest paid ten percent of employees within seventy-five miles of the facility they work in if:

  1. Denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; and
  2. The employer notifies the employee of the intent of the employer to deny restoration on this basis at the time the employer determines that the injury would occur; and
  3. The leave has commenced and the employee elects not to return to employment after receiving the notice.

A voluntary plan must meet or exceed all provisions in this job protection section.

Health Benefits

A voluntary plan employer must extend access to health benefits, in accordance with FMLA, while an employee is on leave. If an employee is responsible for a part, or all, of the cost of health benefits, an employer can require the employee to continue to pay for those benefits, but they must be offered while the employee is on leave.

Frequency of Benefit Payment

The state plan will issue the first payment within 14 days of receiving an application for benefits. After the initial payment, the benefit will be paid biweekly. A voluntary plan must be equal or issue payment more often.