Statutory Update – COVID-19 Legislation; PFML Updates & 2022 Benefits/Rates, CFRA, Allegheny Cty PA PST & More

October 8, 2021

COVID-19 Legislation

Federal

Expiration of Tax Credits for Voluntary FFCRA Leave

Tax credits offered under the American Rescue Plan Act, available to employers who voluntarily provided Emergency Paid Sick Leave and Emergency Family and Medical Leave following the expiration of FFCRA, ended on September 30. 

State and Local

Emergency Paid Sick Leave (EPSL)

Status of State and Local EPSL Laws   

The following EPSL Ordinances expired September 30, 2021:

• • California State: Any employee on EPSL on September 30 may finish taking leave.  Note: Exclusion pay under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) is still in effect – for more information on the ETS’ requirements see the CA Department of Industrial Relations’ (DIR) dedicated webpage and accompanying FAQ. 
  • Marin County, CA
  • San Anselmo, CA: Adopted by urgency ordinance August 16, expired September 30.
  • Santa Rosa, CA
  • Sonoma County, CA

The following EPSL laws are still in effect:

• • Long Beach, CA: No set expiration date, the ordinance’s status is re-evaluated by the City Council every 90 days. The last recommendation for extension was released on May 14, with the next review to be completed by September 4.  As of today no sunset date has been set.
  • Los Angeles City, CA: Expires two weeks following the end of the local emergency period, which is still in effect. 
  • Los Angeles County, CA: Expires two weeks following the end of the local emergency period, which is still in effect. 
  • Oakland, CA: Sunsets upon expiration of the city’s March 9, 2020, Declaration of COVID-19 Emergency, which is still in effect.
  • Colorado: In effect until the end of “any and all” public health emergencies; the national PHE was last renewed on July 19.
  • District of Columbia: Extended through November 5, 2021.
  • Massachusetts: Extended on September 29 via HB4127, to expire upon the earlier of exhaustion of the COVID-19 Emergency Paid Sick Leave Fund or April 1, 2022. The extension provides no new leave entitlement, but does add to the reasons for use the need for an employee to care for a covered family member who is obtaining or recovering from a COVID-19 vaccination. Updated information, including guidance for employers regarding obtaining reimbursement, has been posted on the state’s dedicated webpage.
  • Nevada (Hospitality): No specified end date.
  • New York: In effect for the duration of COVID-19 quarantine or isolation orders.
  • Pittsburgh, PA: Effective until July 27, 2022.
  • Seattle, WA (Gig Workers): Effective until 180 days after the termination of COVID-19 civil emergency declaration applicable to the city. 

Please see our side-by-side comparison for more details on each of the Emergency Paid Sick Leave laws.

Vaccination Leave Updates

• Los Angeles City, CA: The city’s COVID-19 Vaccine Leave expired September 30 (see our July 16 Statutory Update for more details).
• Los Angeles County: The expiration of the county’s COVID-19 Vaccine Leave was delayed from August 31 to 14 days after the expiration of the COVID-19 local emergency (see our June 10 Update for more details). The Los Angeles County Department of Consumer and Business Affairs (DCBA) has posted an updated version of the poster to be displayed conspicuously at each worksite.

Other COVID-19 Legislation

California State Disability Insurance (CA SDI) – Waiting Period Reinstatement

In our March 20, 2020, Update we noted that the governor of California waived the one-week waiting period for CA SDI benefits via Executive Order N-25-20. On June 11, 2021, he signed Executive Order N-08-21, reinstating the waiting period for claims with a start date on or after October 1, 2021.

District of Columbia Paid Family and Medical Leave (DC PFML) and DC FMLA Changes

On September 27 D.C.’s mayor signed the Fiscal Year 2022 Budget Support Act of 2021 (B24-0285/D.C. Act 24-176), an omnibus bill that includes amendments to the Universal Paid Leave Amendment Act of 2016 (DC PFML) and the DC FMLA. Following the standard 30-day congressional review period and publication in the D.C. Register, the changes below apply as of October 1, 2021*.

* These changes were originally introduced in the Fiscal Year 2022 Budget Support Amendment Act of 2021 (B24-0373/D.C. Act 24-159), passed as emergency legislation on August 23.  

Universal Paid Leave Amendment Act of 2016 (DC PFML):

Temporarily amends the definition of “Average Weekly Wage”:

• Current: “Average Weekly Wage” is the total wages subject to contribution earned during 4 out of the 5 quarters immediately preceding the qualifying event during which the employee’s wages were highest, divided by 52.
• Under the amendment: For claims filed after October 1, 2021, and before the 365th day after the end of the public health emergency, the term “average weekly wage” means the total wages subject to contribution for the 4 quarters during which the individual’s wages were the highest out of the 10 quarters immediately preceding the qualifying leave event, divided by 52.  “Public health emergency” means the Coronavirus (COVID-19) public health emergency declared pursuant to Mayor’s Order 2020-046 on March 11, 2020, and all subsequent extensions. Note: Mayor’s Order 2021-096 terminated the public health emergency as of July 25, 2021.

Leave Entitlement:

• Increases leave entitlement for claims filed October 1, 2021, through September 30, 2022:
  • Extends the maximum duration of leave due to the employee’s own serious health condition from 2 weeks to 6 weeks*.
    • • Also adds that a serious health condition includes occurrence of stillbirth (loss of pregnancy at or after 20 weeks) and medical care associated with miscarriage (loss of pregnancy before 20 weeks).
  • Adds 2 weeks of leave for “pre-natal medical care”, defined as routine and specialty appointments, exams, and treatments associated with a pregnancy provided by a health care provider, including pre-natal check-ups, ultrasounds, treatment for pregnancy complications, bedrest that is required or prescribed by a health care provider, and pre-natal physical therapy. 
  • Durations for parental leave (8 weeks) and family care leave (6 weeks) are unchanged.

* Note: The Mayor’s Office recently released a Public Notice indicating that the increased duration for medical leave applies to claims with approved leave beginning on or after September 26, 2021. Individuals who have already filed a medical leave claim and have been approved for the previous maximum of 2 weeks of paid medical leave benefits may be eligible for up to an additional 4 weeks of medical leave, for a total of 6 weeks. These individuals must file a new medical leave claim with requested leave dates that begin on or after September 26, 2021 and provide documentation showing a medical reason for taking the additional leave.  It was also announced that the weekly benefit maximum will increase from $1,000 to $1,009 for all types of DC PFML leave beginning on or after September 26, 2021.

• Within a 52-workweek period, an eligible individual may not receive paid leave benefits, for any number or combination of qualifying leave events, for a duration that exceeds the maximum duration of qualifying parental leave available in the fiscal year during which the individual files a claim for paid leave benefits – except that…
• Within a 52-workweek period, an eligible individual may receive the maximum duration of qualifying pre-natal leave available in the fiscal year during which the individual files a claim for paid-leave benefits in addition to the maximum duration of parental leave available during such fiscal year (e., the potential for 10 weeks pre-natal plus parental leave); provided, that an eligible individual may not receive any combination of qualifying pre-natal leave and qualifying medical leave for a duration that exceeds the maximum duration of qualifying medical leave available for the fiscal year during which the individual files a claim for paid-leave benefits.

Waives the 1-week waiting period for claims filed after October 1, 2021, and before the 365th day after the end of the public health emergency (defined above).

Adds that an eligible individual may receive retroactive paid-leave benefits if they submit a claim within 30 calendar days after the qualifying leave event, unless prevented from doing so due to exigent circumstances. “Exigent circumstances” means:

• Physical or mental incapacity that prevents an eligible individual or eligible individual’s authorized representative from filing for paid leave benefits following the occurrence of a qualifying leave event;
• A demonstrable inability to reasonably access the means by which a claim could have been filed by the eligible individual or the eligible individual’s authorized representative following the occurrence of a qualifying leave event; or 
• Actual lack of knowledge by an eligible individual of their right to apply for paid leave benefits pursuant to this act due their employer’s noncompliance with the law’s requirements (such “noncompliance” must be confirmed by the Mayor).

Puts forth that each March 1, beginning in 2022, the CFO of the Paid Leave Fund will certify the Fund’s balance and projected revenues and expenditures, and the resulting impact on employer contributions (reduction if warranted, but not to be increased above the current .62% of wages) and potential for expansion of program benefits. Any change in contributions or benefits would be applied as of July 1, but only if the change would not cause the Fund’s balance to fall below the equivalent of 9 months of benefits.  The plan for expansion of program benefits is prioritized, with the initiation of pre-natal leave on a permanent basis, and then incremental increases to entitlements for medical, parental and family leave until the maximum duration for each ultimately reaches 12 weeks (again, only if possible given the results of each year’s financial review).

Permanently prohibits employers who sponsor Short Term Disability (STD) policies from reducing plan benefits by any benefit amount payable under DC PFML.  As summarized in our June 10 Update, this restriction was originally passed under B24-0185/D.C. Act 24-90 and B24-0186/D.C. Act 24-97 (now D.C. Law 24-18) as temporary legislation, and applies to all insured STD programs, regardless of contract situs.

Notice to Employees: The Department of Employment Services (DOES) will provide an updated poster, which will be made available by late fall. The poster must be conspicuously displayed in the premises at which any covered employee is employed by February 1, 2022.

District of Columbia Family and Medical Leave Act (DC FMLA):

Permanently amends the definition of “Employee”:

Current: “Employee” means any individual who has:

1. been employed by the same employer for 1 year without a break in service except for regular holiday, sick, or personal leave granted by the employer; and
2. worked at least 1,000 hours during the 12-month period immediately preceding the request for family or medical leave.

Under the amendment:  “Employee” means:

1. For leave provided [to bond with a new child, or due the employee’s or a family member’s serious health condition], an individual who has:

a. been employed by the same employer for at least 12 consecutive or non-consecutive months, inclusive of holiday, sick, or personal leave granted by the employer as part of its regular benefits whether such leave was paid or unpaid, in the 7 years immediately preceding the date on which the period of family or medical leave is to commence; and

b.  worked at least 1,000 hours for the employer during the 12-month period referenced in (a.) above preceding the date on which the period of family or medical leave is to commence.

      2. For leave provided under [temporary COVID-19 DC FMLA leave, currently effective until November 5, 2021], an individual employed by an employer for at least 30 days prior to the request for leave.

Note: Even with the amendment described in #1 above, there are still differences in DC FMLA eligibility vs. federal FMLA: 

• Federal FMLA applies to employers with 50 or more employees within a 75-mile radius; DC FMLA applies to employers with 20 or more employees (no change there);
• The 12 months of employment under DC FMLA is based on consecutive or non-consecutive months over the 7-year period preceding the start of leave; federal FMLA considers all of an employee’s service with the employer, except that, with certain exceptions, periods prior to a break in service of 7 years or more need not be counted; and
• According to the new law’s text, DC FMLA measures the hours threshold over the entire 7-year period prior to leave; federal FMLA’s hours threshold (1,250) is measured only during the 12 months immediately preceding the start of leave.

Massachusetts Paid Family and Medical Leave (MA PFML) – Eligibility for Remote Workers

In our January 12 Update we summarized the Massachusetts Department of Revenue’s (DOR) Technical Information Release (TIR) 20-10 and TIR 20-15, which addressed the applicability of MA PFML contributions and eligibility to employees temporarily working remotely due to the COVID-19 public health emergency. On September 13 the Massachusetts Department of Revenue updated its related FAQ to reflect that, “after September 13, 2021, wages paid to a non-resident employee will no longer be sourced based on where the employee worked prior to the COVID-19 state of emergency. Instead, the wages for such period will generally be sourced based on where the employee’s work is actually performed.”

Non-COVID-19 Legislation

Paid Family and Medical Leave Updates

Connecticut Paid Family and Medical Leave (CT PFML) – Reminders

• Contributions for the third quarter of 2021 must be remitted no later than October 31.
• Benefits under the CT PFML program begin January 1, 2022.  The Connecticut Paid Leave Authority (CT PLA) has communicated that eligible employees will be able to begin filing for benefits in December.  Instructions for claim filing have not yet been released, though they are expected shortly.  This guidance may be released by CT PLA or the program’s administrator, Aflac. See the 2022 Benefits and Rates table below for more details on CT PFML benefit amounts; more information can be found on the official CT PFML website.
• While employee notice requirements are not set to begin until July 1, 2022, employers may want to utilize materials posted on the CT PFML Employer Page to inform their employees about program benefits beginning January 1.

Connecticut Family and Medical Leave (CT FMLA) Changes

When the CT PFML law was passed in 2019 it included amendments to the state’s unpaid “FMLA-like” law, CT FMLA, to better align the two laws:

* The Connecticut Department of Labor recently released guidance regarding the transition for employees on CT FMLA leave January 1 when entitlement changes from 16 weeks/24 months to 12 weeks/12 months.  The guidance asserts that if an employee begins CT FMLA leave prior to January 1, 2022, the duration of CT FMLA leave will be capped at 12 weeks in the applicable 12-month period as of January 1, even if the employee was approved for, and commenced, 16 weeks of CT FMLA leave in 2021.  In 2022, the employer can look back over the applicable 12-month period to see if the employee has used any leave to determine if they have time available. See the full guidance for more details, including methods for measuring the “applicable 12-month period”. Note that formal regulations, once released, may differ.

New York Paid Family Leave (NY PFL) Amendment – Intermittent Leave

On October 6 the New York Workers Compensation Board announced an amendment to the NY PFL regulations regarding intermittent leave entitlement.  Currently the regulations state that an employee’s maximum entitlement to NY PFL taken in daily increments is calculated using the employee’s average number of days worked per week multiplied by 12 (the maximum number of weeks for continuous leave), capped at 60 days per year.  Effective January 1, 2022, the amendment removes the 60-day cap, which has no impact on employees who normally work 5 or fewer days per week, but increases entitlement for those who normally work 6 or 7 days per week (i.e., someone who normally works 7 days per week would be entitled to 84 individual days of NY PFL in a 52-week period beginning January 1, 2022). 

2022 Benefits and Rates

The following information will be updated as each state releases their 2022 rates and benefit amounts.

Paid Sick Leave Updates

Allegheny County, PA Paid Sick Time

On September 14 Allegheny County, PA’s City Council approved Ordinance No. 15-21, adding Article 24 to the Allegheny County Health Department Rules and Regulations to require employers to provide paid sick time to their employees. 

The ordinance’s notice requirements became effective immediately (though the model notice is pending); remaining requirements will become effective 90 days after the county’s designated agency makes employer notice materials available through the county website.

Applies to:

• All employers with 26 or more employees operating within the geographical boundaries of the county; excludes the United States government and any office, department, agency, authority, institution or other body of the State of Pennsylvania, including the legislature and the judiciary;
• All employees, excluding independent contractors, state and federal employees and seasonal employees (as defined in the law text).

Entitlement:

• Employees accrue 1 hour of paid sick leave for every 35 hours worked within the geographical boundaries of the county, beginning the later of the law’s effective date or commencement of employment, up to 40 hours per calendar year. Employers may provide a faster accrual rate. “Calendar year” is defined as a regular and consecutive 12-month period, as determined by the employer and communicated to all employees.
• Accrual for exempt employees is automatically based on a 40-hour workweek; if an exempt employee normally works fewer than 40 hours per week, accrual is based on their regular schedule.
• Employers may frontload the full 40-hour allotment of sick leave.
• Paid sick leave carries over from one year to the next, unless 40 hours is frontloaded at the beginning of the calendar year.  If the employer provides less than 40 hours at the beginning of the year, an employee may carry over enough time so that the total time available does not exceed 40 hours. 
• Payout of accrued but unused leave is not required upon separation of employment. Employees rehired within 6 months of termination are entitled to reinstatement of previously accrued time, and may use that time immediately.
• Employers are not required to provide additional leave if they have a policy or collective bargaining agreement that provides paid leave in an amount equivalent to, and that may be used for the same reasons and under the same conditions as, this ordinance’s requirements.

Reasons for Use:

• Diagnosis, care or treatment of the employee’s or a covered family member’s physical or mental illness, injury or health condition, including preventive care;
• Needs associated with a public health emergency:
• Closure of the employee’s place of business by order of a public official;
• Employee’s need to care for a child whose school or place of care has been closed by order of a public official; or
• To care for a covered family member when it has been determined by health authorities or a health care provider that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.

Covered Family Members:

• Employee’s legal spouse or domestic partner;
• Child (biological, adopted, foster, step-, legal ward, child of domestic partner; child to whom the employee stands in loco parentis);
• Parent (biological, adoptive, foster, step- or legal guardian of the employee or the employee’s spouse or domestic partner; person who stood in loco parentis when the employee was a minor child);
• Sibling (biological, adoptive, foster);
• Grandparent or grandparent’s spouse or domestic partner;
• Grandchild;
• Individual for whom the employee has received permission from the employer to care for at the time of the employee’s request to make use of paid sick time.

Use:

• Employees may begin using accrued time beginning the 90^th day after commencement of employment, in the smaller of hourly increments or the smallest increment the employer’s payroll system uses to account for absences or use of other time.
• Use of accrued sick time may be limited to 40 hours per calendar year.

Notice to Employer/Documentation:

• Employees must give notice of the need for leave, and notice should include the anticipated duration of leave when possible.
• Employers may maintain current policies around how soon before an employee’s shift the employee is required make a verbal request for use of sick time, as long as that policy is reasonable and does not obstruct an employee’s ability to use accrued time.  In the absence of a formal policy, the employee must provide the request at least one hour prior to the start of their shift.
• In the event the need for leave is known to the employee in advance (e.g., a scheduled medical appointment), the employer may require advance notice, not to exceed seven days. Employees must make a reasonable effort to schedule leave in a manner that does not unduly disrupt the operations of the employer.
• In the event the need for use of paid sick time is not foreseeable, or if the employee is not able to provide seven-day advance notice, notice should be provided as soon as possible.
• Employers may request documentation for leaves of three or more consecutive work days.  An employer may not require that medical documentation explain the precise nature of the illness. Any information provided to the employer must be treated as confidential and not disclosed without written permission from the employee.

Rate of Pay: Sick time must be paid at the employee’s regular base rate of pay or applicable minimum wage, whichever is greater.

Employee Protections: Employers are prohibited against taking any adverse action against any employee who exercises or attempts to exercise the rights provided under this ordinance.  In addition, employees cannot be required to find a replacement worker to cover paid sick time hours.

Notice and Recordkeeping:

• Employers must provide employees written notice of entitlement, rights and responsibilities. A model notice is expected, but not yet available.
• Records of hours worked and sick time taken must be retained for two years.

Applicability: This ordinance does not apply in any municipality within Allegheny County that has enacted a paid sick time ordinance as long as such ordinance is not less stringent than this ordinance’s requirements. At present this only applies to Pittsburgh’s Paid Sick Days Act, which is very similar to Allegheny County’s ordinance.

Other News

California Family Rights Act (CFRA) Amendment

On September 27 the governor of California approved AB1033, amending CFRA to add parent-in-law to the definition of parent effective January 1, 2022.

AB1033 also expands on the family leave mediation pilot program established under last year’s AB1867 to assist small employers and their employees with CFRA dispute resolution (addressed in our October 5, 2020 Update); see the amended law text for the outlined changes.

Missouri Domestic Violence Leave

In our August 27 Update we outlined the requirements of the state’s newly enacted domestic violence leave law (HB432) effective August 28, 2021.  The Missouri Department of Labor and Industrial Relations has posted the required notice, which must be provided to all current employees by October 27, 2021, and thereafter to each new employee upon commencement of employment.

Tennessee Military Leave Amendment

On April 30 the governor of Tennessee signed HB82/Public Chapter No. 284, amending §8-33-110 of the state’s Military Leave Law effective July 1, 2021, to add that employees who are active members of the Tennessee national guard, Tennessee state guard, or civil air patrol are entitled to reemployment protections equivalent to those afforded to service members called to active service under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The amendment also establishes eligibility conditions for these protections as well as for (existing) unpaid leave.

Anti-Discrimination

Connecticut Anti-Discrimination – Age

On June 24 the governor of Connecticut signed SB56/Public Act 21-69, amending §46a-60 of the state’s Human Rights Act to prohibit employers from requesting or requiring that a prospective employee disclose their age, date of birth, or dates of education on an initial employment application, except if such information is needed based on a bona fide occupational qualification or need, or required in order to comply with any provision of state or federal law. The amendment took effect on October 1, 2021.

Delaware Anti-Discrimination – Definitions

On September 17 the governor of Delaware signed HB224 which, effective immediately, amends various sections* of the Delaware Code to make definitions associated with sexual orientation, gender identity, and disability consistent.  The amended definitions include (but are not limited to):

• Gender identity: a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.
• Major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. “Major life activities” also includes the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological brain, respiratory, circulatory, endocrine, and reproductive functions. 
• Person with a disability: any person who satisfies any one of the following:
  • • A. has a physical or mental impairment which substantially limits 1 or more major life activities;
    • B. has a record of such impairment; or
    • C. is regarded as having such an impairment.
• Sexual orientation includes heterosexuality, homosexuality, or bisexuality.

* Delaware Equal Accommodations Law, Delaware Fair Housing Act, Delaware Criminal Code/Hate Crimes, Insurance/Unfair Practices, Employment Practices, Residential Landlord-Tenant Code       

Illinois Anti-Discrimination

Disability

On August 20 the governor of Illinois approved HB1838 (now Public Act 102-0419) which amends the state’s Human Rights Act to add to the definition of disability that ”discrimination based on disability includes unlawful discrimination against an individual because of the individual’s association with a person with a disability”. The amendment became effective July 1, 2022.

Work Authorization Status

On August 2 the governor approved HB121 (now Public Act 102-0233) which immediately amended the Human Rights Act to include freedom from discrimination in employment based on work authorization status. “Work Authorization Status” is defined as the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.

Employers may not refuse to accept, or request more or different forms than, documentation identified as acceptable under federal law. They are not, however, required to sponsor any applicant or employee to obtain or modify work authorization status, unless otherwise required by federal law.

New Jersey Anti-Discrimination – Age

On October 5 the governor of New Jersey approved AB681, immediately amending the state’s Law Against Discrimination (LAD) (N.J.S.A. 10:5-1 et seq.) to extend protections against age discrimination by:  

• implementing a higher standard for a government employer in terms of setting a mandatory retirement age;  
• eliminating the provision of the law that allows employers not to hire or promote workers over 70 years old;  
• removing the provision within the law that permits higher education institutions to require tenured employees to retire at 70 years old; and  
• expanding the remedies available to an employee required to retire due to age to include all remedies available under the LAD and not just reinstatement of employment with back pay.

Charlotte, NC Anti-Discrimination – Hiring and Employment

On August 9 Charlotte’s City Council approved Ordinance No. 115, which adds Sections 12-83 and 12-84 to the City Code effective January 1, 2022.  The ordinance prohibits discrimination in hiring and various aspects of employment on the basis of race, color, gender, religion, national origin, ethnicity, age, familial status, sex (including sexual orientation, gender identity and gender expression), veteran status, pregnancy, natural hairstyle, or disability.

The ordinance identifies where discrimination may not apply, such as where a religious organization may require its employees to adhere to the organization’s religious tenets, where dress or grooming standards are due to business necessity, or where the employer observes the conditions of a bona fide seniority system or affirmative action plan.  

Please contact your MMA ADL Account Team members with specific questions about these or other updates.

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