August 8, 2023

MMA’s Absence, Disability, and Life Practice and Empathy, a platform for helping families navigate the emotional and logistical challenges of loss, recently partnered to better understand how top employers are supporting their employees in some of life’s most difficult moments – through bereavement and loss.

The research conducted sheds light onto the key bereavement care initiatives and comprehensive benefits being offered at today’s top companies.  The findings show the compassion industry-leading companies are showing their workforce, bringing in a new era of bereavement support.

This is the first installment of a broader series. The “Moments that Matter” series sets out to recognize compassionate, industry-leading large employers who are committed to supporting their employees during life’s most challenging times.  The series builds off the release of MMA ADL’s 2023 Leaves of Absence and Time Away from Work Survey, which revealed a significant focus on and expansion of company-paid policies among employers.

December 22, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

California COVID-19 Supplemental Paid Sick Leave (SPSL)

California’s statewide SPSL requirements expire December 31, 2022. As of today there is no indication that they will be extended or reinstated, especially given the mayor’s October 17 announcement that the state’s COVID-19 State of Emergency will end on February 28, 2023. Any employee on leave as of the law’s expiration date may finish taking leave.

Los Angeles City, CA COVID-19 Supplemental Paid Sick Leave (SPSL)

The City of Los Angeles Office of Wage Standards’ website has been updated to reflect that, as a result of the mayor’s and the City Council’s actions to end the COVID-19 Emergency Declaration on February 1, 2023, SPSL requirements will expire on February 15, 2023.

San Francisco, CA Public Health Emergency Leave (PHEL) – Reminder

San Francisco’s permanent PHEL law became effective October 1, 2022.  Between October 1 and December 31, 2022, employers with 100 or more employees worldwide were required to make up to 40 hours of PHEL available to employees for reasons associated with the current (COVID-19) public health emergency. Beginning January 1, 2023, that entitlement increases to up to 80 hours.  More information may be found in our July 26 and September 30 Updates, as well as on the city’s Office of Labor Standards Enforcement (OSLE)’s PHEL webpage.

Colorado Public Health Emergency Leave (PHEL)

In accordance with the governor of Colorado’s November 11 Executive Order, the conditions for which PHEL may be taken during the current public health emergency have been expanded to include not only COVID-19 but also flu, respiratory syncytial virus (RSV), and similar respiratory illnesses. The expansion beyond COVID-19 does not entitle employees to an extra 80 hours of PHEL for these conditions, it simply broadens the range of conditions for which PHEL may be used.

Based on the October 13 renewal of the nationwide COVID-19 public health emergency, PHEL requirements apply until at least February 8, 2023, but will be extended if either the federal or state public health emergency declarations are renewed further. Employees may take PHEL until four weeks after the end of the public health emergency period. Guidance may be found on the Colorado Department of Labor and Employment’s HFWA webpage and in the updated INFO #6B, located here.

Employers must provide written notice of employees’ rights and responsibilities under HFWA/PHEL. Notification requirements are outlined on page 7 of INFO #6B. Providing INFO #6B to employees satisfies the individual notice requirement; the model worksite poster may be found on CDLE’s Posters webpage (see ‘Colorado Paid Leave & Whistleblower Poster’, updated June 1).

 Please see our side-by-side comparison for details on the Emergency Paid Sick Leave Laws.

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

Important Reminders

Colorado Family and Medical Leave Insurance (CO FAMLI)

• Contributions toward the program begin January 1, 2023 (rate information is in the table below). Benefits begin January 1, 2024.
  • • The Employer FAQ instruct that FAMLI premium deductions should be taken post-tax, and reported on IRS form W-2 in Box 14, with “FAMLI” as the label.
• Premium remittance and wage reporting are due quarterly, no later than the last day of the month immediately following the end of the quarter.  Premiums and reporting for the first quarter of 2023 will be due April 30, 2023.
• The MyFAMLI+ Employer portal is now open for registration; employers must register before the first premium payments are due (April 30, 2023). Registration may be completed through the MyFAMLI+ Employer webpage, which also features User Guides and other resources.
• Employers must post a notice in a prominent location in the workplace and notify its employees in writing, at hire and upon learning of an employee experiencing an event that triggers a need for leave.  The model notice may be found in the FAMLI Toolkit in multiple languages.

Private plans:

• Applications for Private Plans are not yet being accepted; therefore, all employers subject to the law must begin contributing to the program beginning January 1, 2023.
• Per the Private Plan rules effective December 30, 2022 (view the complete Private Plan rules here):
  • Private plan applications must be submitted to the FAMLI Division no later than 60 days prior to the requested effective date.
  • Applications must be submitted by October 31, 2023 for a January 1, 2024 effective date.
  • Employers with an approved private plan effective no later than January 1, 2024, may apply to the Division for reimbursement of premiums paid in 2023, minus the required private plan administration fee. Once an approved private plan is in effect, the employer is no longer required to remit premiums or submit wage reports, but must continue to maintain internal records.
    • If an employer collects premium contributions from its employees in 2023, and the Division later reimburses the employer for premiums remitted in 2023, the employer must reimburse its employees for any premium contributions collected, unless the terms of the approved private plan allow the employer to collect premiums from employees in 2023.
  • Private plans must cover all of the employer’s employees localized in Colorado, and provide all of the same rights, protections and benefits provided by the FAMLI Act (see section 5.3). The cost to employees covered by the private plan may not be greater than the cost charged to employees under the state plan.
  • Associated fees (per application/Colorado FEIN):
    • $500 administration fee for applications received through 2024.
    • Self-funded private plan applications must be accompanied by a surety bond, issued by a surety company authorized to transact business in Colorado, in an amount equal to one year of total premiums;
    • Beginning in 2025, an annual maintenance fee in an amount calculated by the Division based on costs arising out of the administration of the employer’s private plan.
  • Employers sponsoring self-funded private plans must establish and maintain a separate account into which all employee contributions are deposited and kept, and from which all benefits and administrative costs may be paid.
  • Private plan approvals remain in place for 8 years. However, employers will be required to submit an annual attestation that their contact information is accurate and their private continues to satisfy requirements. Surety bonds for self-funded plans must also be reviewed annually.
    • Plan renewals must be submitted no later than 60 days prior to the renewal date.
    • Notice of material changes must be provided to the Division no later than 60 days before the changes take effect.  Employees must be notified at least 30 days in advance of a change. (See section 5.13 for examples of what constitutes a material change.)

New Hampshire Paid Family and Medical Leave (NH PFML)

• The NH PFML program begins providing benefits to state employees beginning January 1, 2023.
• The program is voluntary for private employers.  Employers wishing to sponsor a group plan may partner with the state’s selected carrier, MetLife, or another carrier, though benefits may also be provided on a self-funded basis.
• Employers who purchase coverage from MetLife will be eligible for a Business Enterprise Tax (BET) credit for up to 50% of the premium paid by the employer on behalf of their workers for the 6-week plan. If the 12-week plan is purchased, the employer will receive the BET tax credit equivalent for the 6-week plan.
• Employees of employers who elect not to sponsor a group plan may purchase individual coverage directly through MetLife during the enrollment period that runs January 1 through March 2, 2023.

Eligibility:

• Employers designated as a New Hampshire employer (i.e., with a physical presence in NH) are eligible to purchase coverage.
• Employees working in New Hampshire for a covered employer are eligible for NH PFML benefits. Workers that are not designated as working for a NH employer are not eligible for NH PFML insurance coverage.

Benefits:

• 60% wage replacement following a 7-day elimination period.
• Maximum weekly benefit of 60% of SSA maximum (weekly). The 2023 SSA maximum is $160,200, making the maximum weekly benefit $1,848.46.
• Maximum benefit duration of 6 weeks per year; group plans may offer 12 weeks.
• Benefits for individual plans begin after a 7-month waiting period.

Reasons for Leave:

• For the employee’s own serious health condition, when disability coverage does not apply;
• To bond with a child during the first year of birth including placement for adoption or fostering;
• To care for a family member with a serious health condition;
• Any qualifying need arising out of the fact that the employee’s spouse, child, or parent is a covered military member on covered active duty;
• To care for a covered servicemember with a serious injury or illness if the employee is the servicemember’s spouse, child, parent, or next of kin.

As noted above, the program is voluntary for private employers; however, employers opting out still have a few responsibilities:

• Address employees’ questions and direct employees to MetLife;
• Support the claims process by providing wage and leave information, work schedules and other benefits information to MetLife;
• Employers with 50 or more employees must collect payroll contributions and remit premium to MetLife.
  • Upon an employee’s enrollment MetLife will notify the employer and request verification of employment. Following completion of enrollment MetLife will send a rate letter with the employee’s premium amount and remittance instructions. Although there is a 7-month waiting period for benefits, premium payment begins as of the policy effective date.
  • MetLife will send a bill/remittance statement quarterly for all premiums due.
  • Note: All communication with the employer (enrollment/deduction notification, claim notification, premium statements) will be directed to the contact the employee designates during their enrollment.  For multi-site employers this may present a challenge in that, depending on whose information the employee provides, these communications may not reach the appropriate party(-ies).  Large employers may wish to publish a communication instructing NH employees whom to designate as this contact.

More information may be found on the MetLife and NH PFML websites:

MetLife NH PFML webpage: New Hampshire Paid Family Leave (NH PFL)

• Benefit Guide
• Employer FAQ*
• Employee FAQ*
• * FAQ include information regarding Coordination of Benefits

NH PFML website: NH Paid Family Medical Leave

• FAQ

Oregon Paid Family and Medical Leave (OR PFML)

• Contributions toward the program begin January 1, 2023 (rate information is in the table below). Benefits begin September 3, 2023.
  • Employers must hold employee contributions collected in trust for the State of Oregon and for payment to the Department of Revenue.
• Premium remittance and wage reporting are due quarterly, no later than the last day of the month immediately following the end of the quarter.  Premiums and reporting for the first quarter of 2023 will be due April 30, 2023.
• Employers must register on Frances Online, the portal through which employers will file OR PFML reporting, remit contributions, or apply for a Private Plan. It is also the system employees will utilize to file and track OR PFML claims beginning next September. Visit the Frances Online website for information and resources.
• Employers must post a notice at each work site and provide it electronically or by mail to any remote workers. The model notice may be found in the Resources webpage in multiple languages.
  • The Oregon Employment Department (OED) has also provided a model notice template for employers to utilize once their Private Plan is approved and becomes effective (found under ‘More Resources’).
• Private plans: OED began accepting OR PFML “Equivalent” plan applications on September 6.  More information on private plan requirements and the application process may be found in our September 30 Update and on the state’s Equivalent Plan and Resources webpages.

2023 PFML Benefits and Rates

Please contact your MMA account team members with specific questions about this or other updates, and stay up to date with the latest news and information by subscribing to the MMA ADL blog: https://mma-adl.com/blog/

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Marsh & McLennan Agency LLC shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affected if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. d/b/a in California as Marsh & McLennan Insurance Agency LLC; CA Insurance Lic: 0H18131. Copyright © 2022 Marsh & McLennan Agency LLC. All rights reserved. MarshMMA.com

September 30, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

San Francisco, CA Public Health Emergency Leave  

Our July 26 Statutory Update included a summary of San Francisco’s Public Health Emergency Leave (PHEL) Ordinance, which becomes effective October 1, 2022.

The new (permanent) law requires employers to inform their employees of their rights to PHEL by posting a notice at each job site in all languages available and, where feasible, by providing it to employees via electronic communication, which may include email, text, and/or posting on the employer’s web- or app-based platform. The city’s Office of Labor Standards Enforcement (OSLE) recently posted the model notice on their PHEL webpage.

As a reminder, the amount of PHEL available must also be included on the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. If an employer provides unlimited paid leave or paid time off, the employer may satisfy this requirement by indicating “unlimited” on the employee’s itemized wage statement or notice. This is similar to notice requirements under the statewide COVID-19 Supplemental Paid Sick Leave and accrued Paid Sick Leave, see CLC §246(i).

New York COVID-19 Sick Leave

On September 14 the New York State Department of Health (NYSDOH) announced that it would begin following the Centers for Disease Control and Prevention’s (CDC) guidance regarding COVID-19 exposure and isolation updated on August 24.  The CDC’s new guidance does not differentiate based upon vaccination status, and states:

• Individuals who have been exposed to COVID-19 should begin wearing a mask immediately, continue to do so for 10 days, and watch for symptoms.
  • Individuals who are sick but have not yet received a COVID-19 test result should isolate immediately.
• After 5 days from the date of exposure, a COVID-19 test should be taken, regardless of whether symptoms are present.
• If the test is negative, isolation may end, but precautions (wearing a mask, etc.) should continue for 10 days.
• If the test is positive, the individual should stay at home and isolate from others for at least 5 days, and wear a mask if they must be around others at home or in public, for up to 10 days.
• Isolation may end:                                                                     
  • After 5 days, if no symptoms;                                                  
  • After 5 days or after 24 hours of being fever-free, whichever is later;                                                  
  • After 10 days after moderate illness (shortness of breath);                                                  
  • After 10 days and consultation with a physician following severe illness or if the individual has a weakened immune system.                                                  

NYSDOH’s isolation guidance webpage indicates that New York employees who must isolate may (continue to) utilize the Affirmation of Isolation Form as if it were an individual Order for Isolation issued by the New York State Health Commissioner. This attestation may be used by an employee as part of their request for paid COVID-19 Sick Leave.

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

Colorado Family and Medical Leave Insurance (CO FAMLI)

Contributions begin January 1, 2023

• All employers, including local government employers that decline participation in the FAMLI program, and employers who intend to meet their obligations under the FAMLI Act through an approved private plan, must register with the FAMLI Division via “MyFAMLI+ Employer” by January 1, 2023. The portal is set to become available during Q4 2022.
• The total contribution rate for 2023 and 2024 will be 0.9% of wages*, split equally between employers and employees (0.45% each). Employers may choose to contribute a larger share of the premium, or pay the full amount.
  • Maximum wages subject to premium assessment is equal to the maximum wages subject to Social Security taxation ($147,000 in 2022; release of the 2023 maximum is anticipated next month).
  • An employer may not deduct more than the maximum allowable employee share of the premium from wages paid for a pay period.
  • If an employer fails to deduct the maximum allowable employee share of the premium from wages paid for a pay period, the employer is considered to have elected to pay that portion of the employee share, and the employer cannot deduct this amount from a future paycheck of the employee for a different pay period.
  • An employer may not deduct the employee share of the premium for a pay period where there is a lack of sufficient employee wages to cover the premium for that pay period.

* The definition of wages may be found at 7 CCR 1107-1 §1.5.3

• Employers must remit premiums and file wage reports on a quarterly basis.  
  • The Division will notify employers of their expected premium amount on the first business day of the calendar month the premium is due to be paid.
  • Remittance is due no later than the last day of the month immediately following the end of the calendar quarter for which the premiums have accrued (e.g., contributions and reporting for the first quarter of 2023 will be due by April 30, 2023).
  • “Small businesses” with 9 or fewer employees nationwide are not required to pay the employer portion of premium, but must still remit the employee portion.

Private Plan Guidance

The FAMLI Division is in the process of developing regulations addressing employer-sponsored Private Plans (view the proposed rules here). In the interim, the Division has issued Guidance Regarding Approved Private Plans and 2023 Participation, which includes the following:  

• Employers intending to meet their CO FAMLI obligations through a private plan must apply for and obtain a private plan exemption from the Division in accordance with forthcoming Private Plan Rules.  Note, however, that since the process for private plan application is not yet in place, all employers subject to the law must begin contributing to the program beginning January 1, 2023.
• Employers who apply for private plan exemption will be subject to an administration fee in the amount specified by the forthcoming Private Plan Rules. Per the proposed rules, the administration fee will be $1,200 through 2024.
• Self-insured plan applications must also be accompanied by a surety bond, issued by a surety company authorized to transact business in Colorado, in an amount equal to one year of total premiums.
• To ensure that the Division can review and approve an employer’s request for a private plan exemption in time for a January 1, 2024, effective date, employers must apply to the FAMLI Division for a private plan exemption approval by October 31, 2023.
• Employers with an approved private plan effective no later than January 1, 2024, may apply to the Division for reimbursement of premiums paid in 2023, minus the required private plan administration fee. Once an approved private plan is in effect, the employer is no longer required to remit premiums or submit wage reports, but must continue to maintain internal records in accordance with forthcoming Private Plan Rules. 
  • Employers with approved private plans effective after January 1, 2024, will not be eligible for reimbursement of premiums.   

Benefits Regulations

On August 26 the Division adopted Benefits Rules (will be located at 7 CCR 1107-3); below are a few items of note:

• Definitions: The definitions of ‘Benefit Year’ (the period for determining an employee’s base period for eligibility and benefit amount calculation) and ‘Application Year’ (the period during which an employee is entitled to the maximum benefit duration) are both now defined as the 12-month period beginning on the first day of the calendar week in which an individual’s benefit start date occurs.  The 12-month period is measured backward from the date an employee uses paid family and medical leave insurance benefits. Under this ‘‘rolling’’ 12-month period, each time an employee takes paid family and medical leave the remaining leave entitlement would be the balance which has not been used during the immediately preceding 12 months.
• Eligibility:  At the time of need for leave, an employee must have earned at least $2,500 during his or her Base Period or Alternative Base Period. To determine whether an individual has met the $2,500.00 threshold the Division will rely on wages reported by the individual’s employer or employers. An individual claimant can meet the $2,500.00 threshold by earning wages subject to premiums from any combination of employers, and a claimant need not earn $2,500.00 from their current employer to meet the threshold.
• Covered Family Members:  Included in the law’s definition of ‘Family Member’ is “any other individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship”.  The regulations provide guidance that, in evaluating this type of relationship, the Division will review factors such as (but not limited to):
  • • shared financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills, or beneficiary designations;
    • emergency contact designations;
    • the expectation of care created by the relationship and/or the prior provision of care;
    • cohabitation and the duration thereof; and
    • geographical proximity.
• Reasons for Leave: For purposes of determining eligibility for safe leave, an individual need not prove that a court has determined that the individual was the victim of domestic violence, stalking, sexual assault, or sexual abuse. Benefits may be awarded based on the victim’s good-faith attestation that the circumstances giving rise to the safe leave satisfy the elements of the offense.
• Applying for Benefits: The rules include a basic overview of the benefits application process, including:
  • Paid family and medical leave insurance benefits are available for absences occurring on or after January 1, 2024 caused by a qualifying condition, regardless of the onset date of the qualifying condition (3.4.4).
  • A claimant must notify their employer or employers at least 30 days in advance if the need for leave is foreseeable, or as soon as practicable if not foreseeable.
    • Employers may require the notice to contain the anticipated start time, anticipated duration and, where applicable, anticipated frequency of leave.
    • Notification must be in the same manner as the claimant and employer typically communicate work availability and, absent unusual circumstances, must comply with the employer’s usual and customary notice and procedural requirements for leave, unless those requirements are contrary to rights, benefits, or protections afforded to the claimant under the FAMLI Act and its implementing regulations.
    • For individuals on intermittent leave, these scheduling and notice requirements apply to each absence.
  • Applications may be submitted up to 30 days prior to the benefit start date, using the Division’s online system, by mail, or by email.
    • If the need for leave is unforeseeable, or if submitting an application in advance of the leave is otherwise impracticable, applications may be submitted up to 30 days after the leave has begun. If the Division receives an application after 30 days, but before 90 days, the Division will consider the application if it includes evidence establishing good cause for the claimant’s failure to submit the application within 30 days.
  • Once an application is properly filed, the Division will notify the claimant and the employer of the proper filing within 5 business days.
  • The Division will adjudicate the claim within two weeks after filing and notify the claimant and the employer(s) of the determination.
  • If the employee’s application is approved, the Division will issue payment for benefits within two weeks after the application is filed and, where applicable, every two weeks thereafter.
  • A covered individual or their designated representative must notify the Division within 10 days after the occurrence of any event, or the foreseeability of any event, that could change the amount or duration of approved leave. Additional documentation may be requested.
  • Employees taking intermittent leave must notify the Division of the individual absences in order to receive wage replacement benefits. Documentation supporting the need for leave must be submitted every six months, or as requested by the Division for claim management purposes.
  • Employers may require an employee to provide certification of his or her fitness for duty prior to returning to work from a FAMLI-approved absence.

(See §3.6 for more details, including documentation requirements.)

• Intermittent Leave:
  • Approved leave may be in the form of continuous leave, intermittent leave, or reduced leave schedule, including leave for bonding with a new child.
  • Leave may be taken in increments of one hour, or shorter periods if consistent with the employer’s policy for employee leaves. However, benefits are not payable until at least 8 hours of leave has accumulated.
• Partial Week Benefits: If some or all awarded leave is for a duration of less than a week, the benefit amount will be prorated based on the portion of work missed for the week. That proration will be as follows:

1. 1. 1. Determine the wage replacement benefit for a full week of leave;
      2. Divide the approved duration of leave by claimant’s regular work schedule; and
      3. Multiply these two numbers together.

• Coordination with Other Leave/Pay:
  • The following are in addition to what was included in the law text, which states that CO FAMLI will run concurrently with FMLA and the CO Family Care Act whenever possible, and may run concurrently with or otherwise coordinated with payment made or leave allowed under an employer’s disability policy or a separate bank of time off solely for the purpose of paid family and medical leave. Employees may not be required to exhaust any accrued vacation time, sick time, or other paid time off prior to or while receiving CO FAMLI benefits.  Future rulemaking may expand upon these points.
  • Unemployment: If a covered individual is awarded continuous leave for an absence caused by a qualifying condition, the duration of the awarded leave is not impacted by subsequent unemployment. If a covered individual is awarded intermittent leave or reduced leave schedule for an absence caused by a qualifying condition, and subsequently becomes unemployed, the awarded leave terminates upon unemployment, and the covered individual may apply for benefits upon reemployment.
  • Holidays: For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as CO FAMLI leave has no effect; the week is counted as a week of CO FAMLI leave. However, if an employee is using CO FAMLI leave in increments of less than one week, the holiday will not count against the employee’s CO FAMLI leave entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
  • Business Closure: If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, the days the employer’s activities have ceased do not count against the employee’s CO FAMLI leave entitlement.

District of Columbia Paid Family Leave (DC PFL)

On July 25 the mayor of the District of Columbia signed the Fiscal Year 2023 Budget Support Act of 2022 (B24-0714/D.C. Act 24-492), permanently removing the one week waiting period and increasing the maximum benefit duration for medical, parental and family caregiving leave to 12 weeks. (See our July 26 Update for more details.)

Oregon Paid Family and Medical Leave (OR PFML)

Contributions begin January 1, 2023

• The total contribution rate for 2023 will be 1% of wages*; employers will contribute 40% (.4% of wages) and employees will contribute 60% (.6% of wages).  * The definition of wages may be found at OAR 471-070-0415 through -0465.
• The maximum wages subject to contribution will be $132,900.
• Employers may elect to pay the required employee contributions, in whole or in part, as an employer-offered benefit.
• Employers must hold employee contributions collected in trust for the State of Oregon and for the payment to the Department of Revenue.
• Employers must remit contributions and file reporting on a quarterly basis via Frances Online**.  
  • Remittance is due no later than the last day of the month following the end of each calendar quarter (e.g., contributions and reporting for the first quarter of 2023 will be due by April 30, 2023).
  • Employers with fewer than 25 employees nationwide are not required to pay the employer portion of the contribution, but must still remit the employee portion.
  • Quarterly reporting consists of the Quarterly Tax Report detailing PFML-subject wages, the employee count, and employee and employer PFML contributions, and the Employee Detail Report including PFML-subject wages. These are reports currently in use for Unemployment Insurance.

** As mentioned in our July 26 Update, Frances Online is the new portal through which employers will file OR PFML reporting, remit contributions, or apply for a Private Plan. It is also the system employees will utilize to file and track OR PFML claims beginning next September. Employer registration is required. Resources for employers, including frequently asked questions and file specifications, may be found at Francesinfo.oregon.gov.

Private Plans

• On September 6 the Oregon Employment Department (OED) began accepting OR PFML Private Plan applications through Frances Online.  Per the Equivalent Plan rules (OAR 471-070-2200 et seq.):
  • Private Plan plans must meet or exceed the rights, benefits and protections provided under the State program (specific requirements listed at OAR 471-070-2220).
  • An employer must submit a separate application and receive department approval for each Business Identification Number (Oregon State Payroll Tax Identification Number).
  • Employers requesting approval of a self-insured Private Plan must supply proof of solvency by providing proof of sufficient assets, or a bond or an irrevocable letter of credit issued by an insured institution. Proof of solvency must be in an amount equal to the contributions due or estimated to be due from the employee and employer for a period of three calendar quarters.
  • New plans must remain in effect for a period of not less than one year. Employers must apply for reapproval annually for the first three years following initial approval.
    • After the three-year period following the original effective date of the plan, an application for reapproval must be submitted any time a substantive amendment occurs. For non-substantive amendments, a copy of the revised equivalent plan must be submitted to the department at the time the change becomes effective.
  • Application Fees:
    • Employers must pay a nonrefundable $250 application fee with every:
      • Application for approval of a new Private Plan; or
      • Application for reapproval or amendment of a Private Plan that has substantive amendments* to the equivalent plan that was originally approved.
    • Employers must pay a nonrefundable $150 application fee with every application for reapproval of an Private Plan that has no changes or only non-substantive amendments* to the Private Plan that was originally approved.

* See OAR 471-070-2210 (6) and (7) for examples of “substantive” vs. “non-substantive” amendments.

• Timing: Employers wishing to sponsor a Private Plan with an effective date of September 3, 2023, must submit to the department an Equivalent Plan Application no later than May 31, 2023. OED has identified the following cutoff points for application submission and subsequent exemption from contributions to the state program:

• • Declaration of Intent: If an employer is unable to submit a Private Plan application according to the dates above, the employer may submit a signed and certified Declaration of Intent acknowledging and agreeing to the following conditions:

1. Beginning January 1, 2023, and continuing until the Private Plan application is approved, the employer will:

a. Deduct employee contributions from the subject wages of each employee in an amount that is equal to 60 percent of the total contribution rate; or

b.  If the employer is making the employee contributions in part or in full on the employee’s behalf, place in trust for the State of Oregon an amount that is equal to 60 percent of the total contribution rate.

2. The employer will hold any funds collected or to be contributed on behalf of the employee in trust for the State of Oregon but will not be required to pay employer contributions or remit the withheld employee contributions to the department, unless OED does not receive a Private Plan application by the dates outlined above or the Declaration of Intent is cancelled. If the equivalent plan application is approved by OED, the money collected from the employees may either be returned to the employees or be used for administrative costs and benefits and cannot be considered part of an employer’s assets for any purpose.

3. The employer must submit the Declaration of Intent no later than November 30, 2022, to be exempt from paying and remitting contribution payments beginning with the first quarter that starts January 1, 2023.

4. The employer must submit a Private Plan application no later than the May 31, 2023, deadline. If an equivalent plan application is not received by the department by May 31, 2023, the Declaration of Intent is cancelled and no longer effective. The employer is then liable for paying and remitting an amount equal to the sum of all unpaid employer contributions that were held in trust for the State of Oregon and all unpaid employee contributions due for periods beginning on or after January 1, 2023, and may be subject to penalties and interest.

• • Equivalent plan applications submitted on or after July 1, 2023, will be effective the first day of the calendar quarter immediately following the date of approval.
  • With the exception of the Declaration of Intent process above, employers must remit contributions to the state program for any quarter preceding the effective date of their approved Private Plan.
• Employee Eligibility (OAR 471-070-2250):
  • All employees previously covered under the state program must be covered by the employer’s Private Plan within 30 calendar days of their start date. Any employee who is not covered under a Private Plan for any portion of time within their first 30 calendar days maintains coverage under the state program for that period.
  • All employees previously covered by an employer sponsoring an approved Private Plan must be covered by the new employer’s Private Plan immediately as of their start date.
  • All employees who were not previously covered as described above, such as employees new to the workforce, relocating from another state, or with a gap in coverage exceeding 30 calendar days must be covered by the employer’s equivalent plan within 30 calendar days of their start date.
• Reporting: In addition to the reporting required of state program participants, Private Plan sponsors must also submit aggregate benefit usage and financial reporting on or before each January 31 (refer to OAR 471-070-2230 for details).
• Recordkeeping: Records associated with an approved Private Plan must be retained for six years from the date the plan becomes effective (OAR 471-070-2240).
• Additional Resources:                                                                                                                  
  • Equivalent Plan Webpage, Equivalent Plan Fact Sheet, Equivalent Plan Guidebook, and Equivalent Plan Checklist

Benefits Regulations

On July 22 the OED adopted several rules* related to the application for OR PFML benefits under the state program. The new rules include the following:

* Incorporated into OAR 471-70-1000 through -1440; additional benefits rules are forthcoming.

• Eligibility and Maximum Benefits Duration:
  • Beginning September 3. 2023, an individual who has earned at least $1,000 in a combination of subject wages and taxable income from self-employment in either their Base Year or Alternate Base Year and who contributed toward the state program during that period may apply for benefits.
  • Benefits are limited to 12 weeks for family leave, medical leave, or safe leave (in any combination) per Benefit Year; two additional weeks of benefits may be available for limitations related to pregnancy, childbirth, or a related medical condition, including but not limited to lactation.

Note: A covered individual may be entitled to a total of 16 weeks of leave in the Benefit Year (18 weeks with pregnancy/childbirth limitations) in any combination of paid OR PFML leave and unpaid leave under the Oregon Family Leave Act (OFLA) for which they are eligible (see OFLA eligibility and reasons for leave). The leave may be taken for any purpose for which leave is allowable under the respective leave programs.

• • Definitions:
    • Base Year: The first 4 of the last 5 completed calendar quarters preceding the Benefit Year
    • Alternate Base Year: The last 4 completed calendar quarters preceding the Benefit Year
    • Benefit Year: A period of 52 consecutive weeks beginning on the Sunday immediately preceding the date on which family leave, medical leave or safe leave commences.
• Use:
  • OR PFML may be taken in consecutive or nonconsecutive periods of time.
  • Leave may be taken and benefits may be claimed in increments that are equivalent to one work day or one work week. When claiming an increment of less than a full work week, the number of work days that can be reported during a week is based upon the average number of days typically worked per week. When benefits are claimed in an increment that is equivalent to one work day or one work week, leave must be taken from all employers and from all self-employed work for the entirety of that period to receive benefits.
    • Benefit payments for leave taken in daily increments will be prorated (see OAR 471-070-1440 for method of calculation).
• Definitions:
  • Work Day: Any day on which an employee performs any work for an employer and is an increment of a work week. The number of work days in a work week is based on the average number of work days worked by an employee at all employment. If a work day spans two calendar days the work day will count on the calendar day in which the shift began.
  • Work Week: A seven-day period beginning on a Sunday at 12:01 a.m. and ending on the following Saturday at midnight. If a claimant works a variable or irregular schedule, the number of work days in a work week is determined by counting the total number of work days worked in the preceding 12* work weeks and dividing the total by 12* and rounding down to the nearest whole number.  *or number of work weeks since date of hire, if shorter than 12 weeks.
• Notice to Employer:
  • If the need for leave is foreseeable, an employer may require an employee to give written notice at least 30 calendar days before commencing leave. Written notice includes, but is not limited to, handwritten or typed notices, and electronic communication such as text messages and email that is consistent with the employer’s known, reasonable, and customary policies. Notice requirements must be outlined in the employer’s written policy and procedures.
    • The employer may require that notice include the type of leave being requested, the explanation of the need for leave, and the anticipated timing and duration of leave.
    • Whether leave is to be continuous or is to be taken intermittently, notice need only be given one time, but the employee must advise the employer as soon as practicable if dates of scheduled leave change, are extended, or were initially unknown.
  • If the need for leave is not foreseeable, an eligible employee may commence leave without 30 calendar days advance notice. However, the employee must give verbal notice to the employer within 24 hours of the commencement of the leave and must provide written notice within three days after the commencement of leave.
• Application for Benefits:
  • Applications must be submitted online (unless another method is approved by OED) up to 30 calendar days prior to the start of leave and up to 30 calendar days after the start of leave. Applications submitted outside of this timeframe, either early or late, will be denied, except in cases where a claimant can demonstrate an application was submitted late for reasons that constitute good cause.
  • OED will notify the employer when a claimant has applied for OR PFML benefits.
    • The employer may respond to the notice to provide additional information or to report if the claimant did not provide the required notice.
      • If OED determines that the claimant did not provide sufficient notice to the employer, the first weekly benefit amount may be reduced by 25%, unless this would reduce the weekly benefit amount below the minimum benefit amount.
    • OED may need to determine whether a claimant has coverage under a Private Plan and the effective dates of any coverage the claimant has, or information about a claim for benefits that the claimant has filed, under the Private Plan.
    • If the employer does not respond to OED’s notice or request for information within 10 calendar days, the claimant’s application for benefits will be processed using the information available.
  • After a claimant’s application for benefits has been processed by OED and a decision is issued to the claimant, OED will notify the claimant’s employers and administrators, if applicable, whether the claimant’s application for benefits was approved or denied and, if approved, the dates and period of leave that the claimant is approved for.
• Notice to Employees
  • Beginning January 1, 2023, employers must provide written notice to employees outlining their rights and responsibilities under the law. OED has posted a model notice on the OR PFML Resources webpage (several translations are available).

Note: The model notice does not address the specifics of program contributions.  Employers may wish to include this information in the notification to their employees, perhaps by utilizing the OED’s Contributions Fact Sheet or by drafting their own communication.

• • • Employers sponsoring an Private Plan must provide a written policy and procedure for the equivalent plan as described in ORS 657B.210(11)(c) to each eligible employee, at the time of hire and each time the policy or procedure changes, in the language that the employer typically uses to communicate with the employee.

2023 PFML Benefits and Rates

The following information will be updated as each state releases their 2023 rates and benefit amounts.

Other News

New Jersey Required Postings

On August 1 New Jersey’s Division on Civil Rights (NJ DCR) adopted regulations expanding an employer’s obligation to notify employees of their rights under the New Jersey Law Against Discrimination (NJ LAD) and the New Jersey Family Leave Act (NJ FLA). In addition to the current requirement that each law’s respective poster be prominently displayed at the workplace, the amended regulations require that they be provided to each employee before December 31 of each year (beginning this year) and upon an employee’s request.

The posting requirement may be satisfied by a physical display or via an employer’s internet or intranet site accessible to all employees, and by which the employer customarily posts notices for its employees. 

The individual notice may be provided:

• by email;
• through printed material, such a brochure, paystub insert, or attachment to an employee manual; or
• via the employer’s internet or intranet site accessible to all employees, and the employer provides notice to employees that it has been posted.

New NJ LAD notification requirements also apply to real estate agents and property managers, places of accommodation, and health care entities. Additional information, as well as the updated notices, may be found on NJ DCR’s Required Posters webpage.

Please contact your MMA account team members with specific questions about this or other updates, and stay up to date with the latest news and information by subscribing to the MMA ADL blog: https://mma-adl.com/blog/

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Marsh & McLennan Agency LLC shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affected if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. d/b/a in California as Marsh & McLennan Insurance Agency LLC; CA Insurance Lic: 0H18131. Copyright © 2022 Marsh & McLennan Agency LLC. All rights reserved. MarshMMA.com

July 26, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

San Francisco, CA Public Health Emergency Leave  

On June 7 San Francisco voters approved Proposition G, which permanently adds Article 33P to the San Francisco Police Code and requires employers to make Public Health Emergency Leave (PHEL) available to their employees effective October 1, 2022. Below are the details outlined in the ordinance; future amendments or clarifications may come by way of regulations or ordinances adopted by the Board of Supervisors.

Colorado Healthy Families and Workplaces Act and Public Health Emergency Leave  

Colorado’s Public Health Emergency Leave (PHEL), a component of the Healthy Families and Workplaces Act (HFWA), was implemented effective January 1, 2021, as part of the state’s response to COVID-19. The law requires that, during a public health emergency, an employer must supplement the paid time an employee has accrued under HFWA with up to 80 hours of PHEL to use for reasons associated with the public health emergency.

PHEL requirements remain in effect until the expiration of “any and all” public health emergency declarations, and employees may take PHEL until four weeks after the end of the public health emergency period. On July 15 the national public health emergency determination was renewed, and will likely remain in place for at least another 90 days.

The Colorado Department of Labor and Employment (CDLE) recently released an updated version of  Interpretive Notice & Formal Opinion (“INFO”) #6B, which provides guidance around HFWA and PHEL entitlements.  The updated notice clarifies that:

“As of January 1, 2021, all employers in the state are required to provide this PHE-related supplement, distinct from any COVID-related leave they had to provide in 2020. The requirement to provide COVID-related PHE leave remains in effect in 2022 because of continuous, still-ongoing COVID-related PHE declarations.  

This COVID-related supplemental leave does not renew (on the first of the year or any other time). Because the supplement is provided only once per PHE, if an employer has already provided all COVID-related supplemental leave an employee is entitled to, it need not provide that employee additional COVID-related supplemental leave for the duration of the COVID PHE. But employees continue to have access to any unused, supplemental COVID-related leave they were provided on or after January 1, 2021.” 

INFO #6B also includes guidance around the carryover provisions for time accrued under HFWA (non-PHEL time).  The HFWA law text states that an employee may carry over up to 48 hours of accrued but unused HFWA hours from one year to the next, but that employers may limit the amount of time used in the new year to 48 hours. INFO #6B includes carryover scenarios, one of which indicates that an employee’s accrual may halt in the following year as long as they have 48 hours available for use in that year:

“Example 2: An employee earns 48 hours of accrued leave in a benefit year, and uses 8 of those hours during the year. This means that (A) 40 hours of unused, accrued leave “carry forward” and the employee can use these 40 hours in the next benefit year, and (B) the employee will continue to earn accrued leave, up to an additional 8 hours (for 48 hours total), during the benefit year. Another employee earns 48 hours of accrued leave in a benefit year, and uses none of those hours; so, 48 hours “roll over” for use in the next benefit year, and the employee doesn’t earn any more accrued leave during that year, because they have already been provided with 48 hours for the benefit year.”

Employers must provide written notice of employees’ rights and responsibilities under HFWA/PHEL. Notification requirements are outlined on page 8 of INFO #6B (located here). Providing INFO #6B to employees satisfies the individual notice requirement; the model worksite poster may be found on CDLE’s Posters webpage (see ‘Colorado Paid Leave & Whistleblower Poster’, updated June 1).

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

Other COVID-19 Legislation

New York Vaccination Leave Extension

On June 28 the governor of New York signed AB9513, extending COVID-19 Vaccination Leave entitlement from December 31, 2022, to December 31, 2023. (Please see our December 3, 2021 Statutory Update and prior posts for more details.)

Non-COVID-19 Legislation

State and Local

Paid Sick Leave Updates

Bloomington, MN Earned Sick and Safe Leave

On June 6 the Bloomington, Minnesota City Council approved the Earned Sick and Safe Leave Ordinance (Ord. No. 2022-31), adding Chapter 23 to the City Code. Below is a summary of the ordinance’s provisions and requirements.

New Mexico Healthy Workplaces Act Rules

Beginning July 1 New Mexico employees were to start accruing one hour of paid sick and safe leave for every 30 hours worked under the state’s Healthy Workplaces Act (HWA). Late last month the New Mexico Department of Workforce Solutions (NM DWS) issued final rules around the law’s requirements; the rules provide clarification on several topics, including:

• Calculation of hours worked during a week in which paid sick time is used by a variable schedule or per diem employee (11.1.6.8(C) and (D)).
• Rate of pay for salaried, tipped, piecework and commission employees (11.1.6.8(H)-(J)).
• Carryover limit (64 hours per year) (11.1.6.8(L)).
• Documentation requirements (may be requested for absences exceeding two days; employee must be allowed 14 days of return from leave to provide) (11.1.6.8(M)).
• Employers are permitted to choose how to measure when the “year” for accrual, use, and carryover begins and ends: (1) calendar year; (2) other 12-month period, such as fiscal year or employee’s anniversary; (3) 12-month period beginning the date an employee first uses accrued leave; or (4) 12-month period measured backward from the date an employee used accrued leave (HWA Guide, p3). Employers may elect a different 12-month period for benefits to be used for employees covered by a collective bargaining agreement than for employees not covered by a collective bargaining agreement (11.1.6.8(N)).
• Notice to employees: In addition to posted and individual notice requirements (the model poster/notice can be found here), employers must provide employees with an accurate year-to-date written summary of earned sick leave accrued and used at least once every calendar quarter.  This may be done electronically, including by email, website, mobile application or other reasonable method.  Employers may comply by including this information on pay records or earnings statements provided to employees according to their normal pay schedule (11.1.6.8(G)). The requirement of this summary was not included in the original law.
• Process for violation complaints and investigations (11.1.6.9; 11.1.6.11 through 11.1.6.28). 

Note: The HWA Guide states that there is no maximum number of hours an employee may accrue during a given year*, only the 64-hour maximum on use (and the rules’ 64-hour limit on carryover).  If an employer chooses to frontload time at the beginning of each year, that amount may be no less than 64 hours – employers who frontload must still monitor employee hours worked. If an employee works more than 1,920 hours in a year, that employee must receive the appropriate number of accrued sick leave hours, which would be more than the 64 hours they were frontloaded.

* For the purposes of accrued paid sick and safe leave, salaried/FLSA-exempt employees are assumed to work forty hours per week unless their normal workweek is less than forty hours, in which case leave accrues based on their normal workweek.

More information on HWA may be found in our May 14, 2021 Update, as well as on NM DWS’ Paid Sick Leave webpage.

Puerto Rico Minimum Wage, Vacation and Sick Leave Act Amendment

Note: The changes implemented by Law 41-2022 outlined below were nullified by a March 2023 court ruling; please see our May 25, 2023 Update for details.

On June 20 the governor of Puerto Rico signed PC1244 (now Law 41-2022*), which reverses some employment law changes previously made by the by the Labor Transformation and Flexibility Act (LTFA) in 2017.  Among the changes are a few to the Minimum Wage, Vacation and Sick Leave Act (Act No. 180-1998):

• Reduction in the eligibility threshold for non-exempt employees’ sick leave and vacation time from 130 hours per month to 115 hours per month (return to the pre-LTFA threshold).
• Increase in vacation time entitlement for employees working 115 hours or more per month from 6 to 15 days per year based on years of service to 15 days per year, at a rate of 1¼ days per month (return to the pre-LTFA entitlement). Sick leave accrual remains 1 day per month.
  • • Employees of small employers (12 or fewer employees) accrue ½ day of vacation time and 1 day of sick leave per month.
• Addition of paid leave for employees who work at least 20 hours per week, but fewer than 115 hours per month.  These employees will accrue ½ day of vacation time and ½ day of paid sick leave each month.
  • • Employees of small employers (12 or fewer employees) accrue ¼ day of vacation time and ½ day of sick leave per month.

These changes are effective July 20, 2022, except that businesses that generate a gross income of less than $10,000,000 each year and have 50 employees or fewer have until September 18 to comply.

* As the law’s text is only available in Spanish, we relied upon the expertise of representatives of Littler Mendelson P.C. for the information above. Please see the following articles for more information:

• Hot off the Press: New Labor Reform Bill for Puerto Rico (June 21, 2022)
• Puerto Rico Secretary of Labor Issues Opinion on Criteria for Vacation and Sick Leave Accrual for Part-Time Employees Under Act 180 as Amended by Act 41-2022 (July 20, 2022)
• Puerto Rico Secretary of Labor and Human Resources Issues Opinion on Criteria for Defining Microenterprises, Small and Medium Businesses for Purposes of Act 41-2022 (July 20, 2022)

Paid Family and Medical Leave Updates

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

On July 13 the mayor of the District of Columbia signed the Fiscal Year 2023 Budget Support Emergency Act of 2022 (B24-0845/D.C. Act 24-470)*, which includes formalization of the following changes to DC PFML:

• Removal of the one week waiting period for claims filed on or after July 25, 2022.
  • Note: This was originally put into place on a temporary basis by B24-0373/D.C Act 24-159 and B24-0285/D.C. Act 24-176 for claims filed after October 1, 2021, and before the 365th day after the end of the public health emergency (the PHE was terminated July 25, 2021). The permanent application was also part of other laws recently enacted: B24-0719/D.C. Act 24-437 and B24-0720/D.C. Act 24-480.
• Increased maximum length of entitlement for each type of leave, as outlined below.  This change applies to claims filed on or after October 1, 2022, and is in accordance with the Office of the Chief Financial Officer’s certification issued on March 1 (see our March 25 Update for more details).

* As emergency legislation, this Act will be in effect for 90 days (until October 11, 2022). Permanent legislation featuring the DC PFML changes, the Fiscal Year 2023 Budget Support Act of 2022 (B24-0714), is with the mayor for signature.

Oregon Paid Family and Medical Leave (OR PFML) Updates

• The Oregon Employment Department (OED) has unveiled an updated Paid Leave Oregon website: paidleave.oregon.gov. The revamped Employer and Employee pages include links to new resources such as FAQ and Fact Sheets.
• On July 18 OED released a bulletin addressing some recent developments:
  • Oregon employers will soon begin using Frances Online, OED’s new system replacing the Oregon Payroll Reporting System (OPRS) and the Employer Account Access (EAA) portal.
  • Frances Online will be used to file payroll taxes, including Unemployment Insurance, starting with Q3 2022 filings.
  • The new system will also be the portal through which employers will be able to:
    • apply for approval of a private plan offering OR PFML benefits in lieu of the state program (beginning September 6, 2022)*; and
    • submit OR PFML reporting and remit contributions (Q1 2023).