Statutory Update – 2021 Statutory Disability and Paid Family Leave Benefits and Rates

December 15, 2020

Other Leave News

2021 Statutory Disability and Paid Family Leave Benefits and Rates

California
State Disability Insurance (CA SDI) and Paid Family Leave (CA PFL)

2020

January 1, 2021

Maximum Duration

SDI: 52 weeks
PFL: 8 weeks (7/1/20)

No Change

Benefit Percentage

• If High Quarter earnings < 1/3 of the State’s Average Quarterly Wage (SAQW): 70%
• If High Quarter earnings => 1/3 of the SAQW: 60%
(SAQW = 13x SAWW)

No Change

Maximum Weekly Benefit

$1,300

$1,357

State Average Weekly Wage (SAWW)

$1,325

$1,383

Contribution Rate
Employee-Paid

1.0%

1.2%

Taxable Wage Ceiling

$122,909

$128,298

Maximum Employee Contribution

$1,229.09 per year

$1,539.58 per year

Additional Notes

Leave for Qualifying Exigency begins January 1, 2021

Required Notice


Connecticut 
Paid Family and Medical Leave (CT PFML)

January 1, 2020

January 1, 2021

Contribution Rate
Employee-Paid

N/A

.5%

Taxable Wage Base (SSA)

$142,800

Maximum Employee Contribution

$714 per year

Required Notice

Employee notice requirements are set to begin July 1, 2022; however, employers may want to utilize materials posted on the CT PFML website to notify their employees of upcoming contribution requirements.

Contributions commence January 1, 2021; Benefit entitlement begins January 1, 2022.


District of Columbia
Paid Family Leave (DC PFL)

July 1, 2020

January 1, 2021

Maximum Duration

Own Illness: 2 weeks
Family Care: 6 weeks
Bonding: 8 weeks
Combined maximum: 8 weeks
in a 52-week period

No Changes

Benefit Formula

• If EAWW* =< 150% of DC min. wage x 40: 90%
• If EAWW > 150% of DC min. wage x 40: 90% of 150% of DC min.
wage x 40 plus 50% of the difference of the EAWW and 150% of DC min. wage x 40

DC Minimum Wage

$15/hour

Maximum Weekly Benefit

$1,000

Contribution Rate
Employer-Paid

.62%

Maximum Contribution

No maximum

Required Notice

Notice posted and provided at hire, annually and at the time of need for leave


Hawaii
 Temporary Disability Insurance (HI TDI)

January 1, 2020

January 1, 2021

Maximum Duration

26 weeks

No Change

Benefit Percentage

58%

No Change

Maximum Weekly Benefit

$650

$640

Employee Contribution Rate
Employee- and Employer-Paid, Employer pays any balance required

Up to ½ of plan costs, max .5%

No Change

Maximum Weekly Wage Base

$1,119.44

$1,102.90

Maximum Employee Contribution

$5.60 per week

$5.51 per week

Required Notice


Massachusetts
Paid Family and Medical Leave (MA PFML)

2020

January 1, 2021

Maximum Duration

N/A

Own Illness: 20 weeks
Bonding or Qualifying Exigency: 12 weeks
Injured Servicemember: 26 weeks
Combined maximum: 26 weeks in a 52-week period
12 weeks for Family Care begins July 1, 2021

Benefit Formula

80% of EAWW* =< 50% of SAWW,
plus 50% of EAWW > 50% of SAWW

State Average Weekly Wage (SAWW)

$1,487.78

Maximum Weekly Benefit

$850

Contribution Rate
Employee- and Employer-Paid

.75% Total Contribution
.62% Medical, .13% Family Care

No Change

Maximum Employee Contribution Rate

.248% Medical, .13% Family Care

No Change

Maximum Wage Base (SSA)

$137,700

$142,800

Maximum Contribution

$1,032.75 Total
(~$520.50 Employee) per year

$1,071 Total
(~$539.78 Employee) per year

Required Notice


New Jersey
Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI)

2020

January 1, 2021

Maximum Duration

TDI: 26 weeks
FLI: 12 weeks (7/1/20)

No Change

Benefit Percentage

85% (7/1/20)

No Change

Maximum Weekly Benefit

$881 (7/1/20)

$903

State Average Weekly Wage (SAWW)

$1,259.82

$1,291.42

Employee Taxable Wage Base

$134,900

$1,291.42

Employee Contribution Rate
NJ TDI is Employee- and Employer-Paid,
Employer contribution rate varies; NJ FLI is Employee-Paid

TDI: .26% of taxable wages
FLI: .16% of taxable wages

TDI: .47% of taxable wages
FLI: .28% of taxable wages

Maximum Employee Contribution

TDI: $350.74
FLI: $215.84 per year

TDI: $649.54
FLI: $386.96 per year

Employer Taxable Wage Base

$35,300

$36,200

Alternative Earnings Test

$10,000

$11,000

Base Week Amount

$200

$220

Required Notice

Worksite poster as well as notice at hire and time of need for leave


New York
Disability Benefits Law (NY DBL)

January 1, 2020

January 1, 2021

Maximum Duration

26 weeks
Max. 26 weeks in a 52-week period combined with NY PFL

No Changes

Benefit Percentage

50%

Maximum Weekly Benefit

$170

Employee Contribution Rate
Employee- and Employer-Paid, 
Employer pays any balance required

.5%

Maximum Employee Contribution

$31.20 per year

Required Notice

Posted Notice of Compliance (DBL-120 for insured plans) or Certificate of Participation in Group Disability Self-Insurance (DB-120.2 for self-funded plans), as well as a Statement of Rights (DB-271S) provided at time of need for leave.


New York
Paid Family Leave (NY PFL)

January 1, 2020

January 1, 2021

Maximum Duration

10 weeks
Max. 26 weeks in a 52-week period combined with NY DBL

12 weeks

Benefit Percentage

60%

67%

State Average Weekly Wage (SAWW)

$1,401.17

$1,450.17

Maximum Weekly Benefit

$840.70

$971.61

Contribution Rate
Employee-Paid

.270%

.511%

Maximum Employee Contribution

$196.72 per year

$385.34 per year

Required Notice

Posted Notice of Compliance (PFL-120 for insured plans, employers with self-funded plans may request from NY WCB) as well as a Statement of Rights (PFL-271S) provided at time of need for leave.


Puerto Rico
SINOT

January 1, 2020

January 1, 2021

Maximum Duration

26 weeks

No Changes

Benefit Percentage

65%

Maximum Weekly Benefit

$113

Contribution Rate
Employee- and Employee-Paid

.3% Employee, .3% Employer
on first $9,000 of earnings

Maximum Employee Contribution

$27 Employee, $27 Employer
per year

Required Notice

Worksite poster as well as individual certificate/notice of benefits


Rhode Island
Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI)

2020

January 1, 2021

Maximum Duration

TDI: 30 weeks
TCI: 4 weeks
Combined maximum: 30 weeks in a 52-week period

No Change

Benefit Percentage

85%

No Change

Maximum Weekly Benefit

$887; $1,197 with dependency allowance
(7/1/20 - 6/30/21)

Contribution Rate
Employee-Paid

1.3%

No Change

Taxable Wage Base

$72,300

$74,000

Maximum Employee Contribution

$939.90 per year

$962.00 per year

Financial Eligibility Test

$13,800 in Base Period earnings; or
(1)  $2,300 in at least one Base Period quarter
(2)  Base Period taxable wages at least 1.5x highest quarter of earnings and
(3)  $4,600 of taxable wages in Base Period (10/1/20)

No Change

Required Notice


Washington
Paid Family and Medical Leave (WA PFML)

January 1, 2020

January 1, 2021

Maximum Duration

Own Illness: 12 weeks; +2 weeks for pregnancy incapacity (PI)
Family Care: 12 weeks
Combined maximum: 16 weeks
in a 52-week period (18 weeks w/PI)

No Change

Benefit Formula

•    If EAWW* =< 1/2 SAWW: 90%
•    If EAWW > 1/2 SAWW: 90% of 1/2 of the SAWW plus 50% of the difference of the EAWW and 1/2 of the SAWW

No Change

Maximum Weekly Benefit

$1,000

$1,206
Based on 90% of SAWW stated in regulations

State Average Weekly Wage (SAWW)

$1,255

$1,340

Contribution Rate
Employee- and Employer-Paid

.4% Total Contribution

No Change

Maximum Employee Contribution Rate

63.333% of Total Contribution
(~.253% of wages)

No Change

Maximum Wage Base (SSA)

$137,700

$142,800

Maximum Contribution

$550.80 Total
(~$348.83 Employee) per year

$571.20 Total
(~$361.76 Employee) per year

Required Notice

Worksite poster as well as Statement of Employee Rights (“Employer to Employee Notice”) at time of need for leave

*EAWW = Employee’s Average Weekly Wage, as defined by each law; SAWW = State Average Weekly Wage

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change.

Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Legislation; Reminders, CO HFWA, 2021 Statutory Disability & Paid Family Leave Benefits and Rates

December 15, 2020

COVID-19 Leave Legislation

Emergency Paid Sick Leave

Philadelphia, PA

On November 13 Philadelphia’s Department of Labor issued emergency regulations addressing the interplay of the city’s accrued paid sick leave law (Promoting Healthy Families and Workplaces, Phila. Code §9-4100) and the recently enacted Public Health Emergency Leave (PHEL) and Healthcare Epidemic Leave (see our March 20 and October 5 Updates for more details).

Below are a few notable items from the regulations:

  • Working from home within the geographic boundaries of the City of Philadelphia constitutes the performance of work within the geographic boundaries of the City of Philadelphia.
  • An employer that chooses to exercise an exception under the federal Families First Coronavirus Response Act (FFCRA) and not provide FFCRA leave to eligible employees must provide Public Health Emergency Leave (PHEL) to such individuals.
  • An employer that provides some but not the full benefit an employee is entitled to receive under the city’s accrued sick leave, PHEL, and Healthcare Epidemic Leave requirements must provide supplemental leave or allow the employee to borrow against future leave that the employee is entitled to accrue in the same calendar year, such that the total available combined provides paid leave in the same or a greater amount than the city’s requirements (see examples beginning on page 4).
  • Use/Interplay:
      • Employees are entitled to use PHEL for a COVID-19-related purpose until the earlier of one month after the conclusion of the Public Health Emergency or December 31, 2020. Employers are not required to allow an employee to use PHEL if he or she is reasonably able to perform work remotely (see “Ability to Work Remotely” under section 4.2.1). In that event, the employee is permitted to use accrued leave.
      • An eligible employee who chooses to take Healthcare Epidemic Leave from a given healthcare employer is not entitled to take any other leave benefit for the same purpose, nor may the employer require the employee to use accrued paid leave or the PHEL concurrently with Healthcare Epidemic Leave.
      • An eligible employee who takes Healthcare Epidemic Leave for his or her own illness may use accrued leave or PHEL for any permitted purpose other than the his or her own COVID-19 illness.  The employee may not use PHEL for his or her own COVID-19 illness if he or she is provided with Healthcare Epidemic Leave.
      • See the chart on page 12 for additional information on permitted uses for each type of leave.
  • Documentation required:
      • Reasonable documentation for PHEL may include, but is not limited to, a public statement from a government official, the City Department of Public Health, or the Center for Disease Control if the statement specifically addresses the employee’s circumstances.  The employee need not provide the employer with documentation from a governmental official, however the employer may require a signed statement from the employee affirming that the conditions described in such public statement apply to the employee or to the family member for whom the employee is providing care. Consistent with CDC guidance, employers may not require a note from a health care professional.
      • Forms of acceptable documentation for Healthcare Epidemic Leave include: (1) a positive COVID-19 test or written communication from a healthcare provider indicating a positive COVID-19 test, (2) a federal, state, or local governmental isolation order, or (3) a written isolation recommendation from a healthcare provider.
  • Notification to employees: In addition to the notice requirements for accrued sick leave, employers must post a notice regarding PHEL and Healthcare Epidemic Leave in a conspicuous place accessible to all employees, and provide electronic access if employees are not working on site. If the employer produces a handbook for employees or independent contractors, this information must also be included in such handbook, promptly in the case of an electronic version, and upon the handbook’s next revision in the case of a printed version.
Pittsburgh, PA

On December 9 the mayor of Pittsburgh signed Ordinance 2020-0927, which temporarily adds Chapter 626A to the city’s Paid Sick Days Act and requires employers with 50 or more employees to provide “COVID-19 Sick Time” for reasons associated with COVID-19. Below is an overview of the Ordinance’s requirements.

Pittsburgh, PA
COVID-19 Sick Time

Link to Ordinance

Effective Date

December 9, 2020

Expires upon termination of the State's or the City's emergency disaster declarations, whichever is sooner.

Employers

Employers with 50 or more employees

Eligible Employees

Employees unable to work or telework who:

(a) are working for an employer subject to the Ordinance within the City of Pittsburgh after December 9;

(b) normally work for an employer subject to the Ordinance within the city but are currently teleworking from any other location as a result of COVID-19; or

(c) work for an employer subject to the Ordinance from multiple locations or from mobile locations, provided that 51% or more of the employee’s time is spent within the city.

COVID-19 Sick Time must be made available to employees employed by the employer for 90 days prior to the need for leave.

Collective Bargaining Agreement Exception

None specified

Benefit - Time Available

• Requiring accrual of sick leave under the city's Paid Sick Days Act is suspended if an employee’s otherwise permissible sick time use request arises directly from COVID-19.

• The following amounts of COVID-19 Sick Time must be provided to employees without any waiting period or accrual requirements, once they have been employed by the employer for the previous 90 days. 

        • 40+ hours/week: 80 hours

        • <40 hours/week: 14-day average hours the employee regularly works or is scheduled to work

        • Variable schedule: number of hours equal to the average number of hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type.

• Employers may designate a higher limit than those specified above.

• Time may be used in the smallest increment the employer's payroll system uses to account for absences or use of other time.

• Employees may use COVID-19 Sick Time until 1 week following the official termination of the public health emergency.

• Employers may continue to require receipt of sick time on an accrual basis for all other permissible requests for use of Sick Time under the Paid Sick Days Act.

Benefit - Pay

100% regular rate of pay

Reasons for Use

Quarantine ordered by public official or healthcare provider

Yes

Experiencing symptoms and seeking medical treatment

Yes

Underlying health condition or over age 65

Not specified

Care for family member who is sick and/or under official or healthcare provider-directed quarantine

Quarantine or illness

Care for family member whose school or care facility is closed

No

Worksite closure due to official public health order or recommendation

No

Documentation

Not specified

Note: The Paid Sick Days Act allows for documentation to be requested for absences in excess of 3 days.

Employer Offset

• COVID-19 Sick Time is in addition to any paid leave or sick time provided by the employer or pursuant to the city's Paid Sick Days Act, and an employee may choose to use COVID-19 Sick Time before any sick time under the Paid Sick Days Act. 

• An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses COVID-19 Sick Time, unless state or federal law requires otherwise.

• Employers may substitute COVID-19 leave under federal or state law or any company policy adopted after March 13, 2020, for its obligations under this Ordinance to the extent they provide equivalent benefits. Employers are required to provide additional COVID-19 Sick Time to the extent that the requirements of this Ordinance exceed the requirements of federal or state law or the employer's policy.

Notice to Employees

None stated

Please also see our updated side-by-side comparison of Emergency Paid Sick Leave laws.

Worker Protections

San Francisco, CA

Worker protections provided by September 11’s Ordinance No. 162-20 were extended by Ordinance No. 236-20, amending the expiration date to January 10, 2021. See our October 5 Update for additional details.

District of Columbia

On November 16 the mayor of the District of Columbia signed the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2020 (B23-0980, now D.C. Act 23-483) which, in addition to requiring employers to establish policies around social distancing and workplace safety, prohibits employers from retaliating against any employee who:

    • has tested positive for COVID-19, provided that the employee did not physically report to work after receipt of the positive test result;
    • is sick and waiting for a COVID-19 test result;
    • must quarantine due to exposure to someone with COVID-19;
    • is caring for someone who is sick with COVID-19 symptoms or is quarantined; or
    • refuses to serve a customer or client, or to work within 6 feet of an individual, who is not complying with established workplace protections.

Employers are permitted to prohibit an employee who has tested positive for COVID-19 from entering the workplace until a medical professional has cleared the employee to return to or until the period of quarantine recommended by the Department of Health or the U.S. Centers for Disease Control has passed.

Non-compliance penalties may be in the form of fines up to $500 per violation, legal costs and/or payment of lost wages.

The Act was effective immediately upon signing, and will remain in place for 90 days, unless extended.

Other Leave News

2021 Reminders:

California Family Rights Act (CFRA) and New Parent Leave Act (NPLA) changes are effective January 1, 2021. (See our October 5 Update for more details.)

Colorado’s Healthy Families and Workplaces Act (HFWA) becomes effective January 1, 2021. (July 31 Update; see additional updates below)

Connecticut Paid Family and Medical Leave (CT PFML)

    • All employers with one or more employees working in the state must register with the Connecticut Paid Leave Authority (CT PLA) by December 31, 2020 (November 13 Update). New information has been added to the Business Registration webpage, including a step-by-step guide to the registration process (the guide also references where an employer may designate interest in applying for a private plan).
    • Program contributions begin January 1, 2021. (October 5 Update)
    • Note:
      • While employee notice requirements don’t “officially” begin until July 1, 2022, employers may wish to utilize materials posted on the CT PFML website, such as the Employee Fact Sheet, paystub insert and/or poster, to notify their employees of upcoming contribution requirements and details on CT PFML program benefits.
      • The private plan application process is still being developed.  It is anticipated that employers who receive provisional approval during the first quarter of 2021 will be excused from remitting Q1 contributions to the state, and that funds collected from their employees beginning January 1 may instead be used to support the private plan. Employers interested in pursuing a private plan are encouraged to monitor the Exemption webpage; more information is also available in the CT PLA’s private plan Policy & Procedures (October 5 and November 13 Updates)

Maine Employee Leave Act becomes effective January 1, 2021. (October 5 Update)

Massachusetts Paid Family and Medical Leave (MA PFML)

    • Insured private plan renewals must be completed by December 31, 2020. (September 1 Update)
    • Employers participating in the state program may now create an account through which they will be able to review employee applications, download documents and decision letters, and receive updates via email.
    • Benefit entitlement for own illness, bonding, qualifying military exigency, and care for an injured servicemember begins January 1, 2021; benefit entitlement for care for a family member begins July 1, 2021.
    • The Department of Family and Medical Leave (DFML) has posted new information on its Employer and Employee webpages, including an updated worksite poster (the poster and its translations can be found here).

New leave entitlements under the amendments to New York City’s Earned Sick and Safe Time Act (ESTA) are effective January 1, 2021. (October 5 Update)

New York State Paid Sick Leave (NY PSL) entitlement begins January 1, 2021. (November 13 Update)

Colorado Healthy Families and Workplaces Act Rules

In our July 31 Update we outlined the specifics of Colorado’s Healthy Families and Workplaces Act (HFWA) (C.R.S. 8-13.3-401 et seq.) effective January 1, 2021.  On November 10 the Colorado Department of Labor and Employment released final rules for the Wage Protection Act of 2014 (WPA), which include a few important clarifications with regard to HFWA:

  • Accrual of paid sick leave under HFWA applies to employers with 16 or more employees effective January 1, 2021, and to all other employers on January 1, 2022; public health emergency leave applies to all employers effective January 1, 2021.  The WPA rules clarify that the method for determining employer size will the same as the method directed for the federal Family and Medical Leave Act (see 7.4).
  • HFWA 405(2)(a) states, upon the declaration of a public health emergency, employers may count an employee’s accrued but unused HFWA paid sick leave toward the Public Health Emergency Leave entitlement. The WPA rules add to this by stating that for the entire duration of a public health emergency, employers:
      1. are required to permit employees to take both (a) HFWA time accrued prior to the declaration of the public health emergency for any of the applicable qualifying reasons, and (b) the amount of Public Health Emergency Leave provided to the employee on the date of the declaration of the public health emergency;
      2. remain subject to the minimum HFWA paid sick time accrual requirements; and
      3. must permit an employee to use the full amount of Public Health Emergency Leave prior to using any of their time previously accrued under HFWA if the employee requires leave under circumstances that qualify for leave under both accrued HFWA leave and Public Health Emergency Leave (example provided: employee is experiencing symptoms of a communicable illness that was the subject of the declaration of a public health emergency and needs to obtain testing and treatment) (see 3.5.1(D)).
  • An employer may require “reasonable documentation” that leave is for a HFWA-qualifying purpose only if the leave requested or taken is for four or more consecutive days on which the employee would have ordinarily worked absent the leave-qualifying condition. An employer may not require documentation for leave that is for a qualifying reason related to a public health emergency, nor may an employer request the details of an employee’s or family member’s health information or for leave associated with domestic violence, sexual assault or stalking (see 5.6).
  • An employer may require use of HFWA leave in hourly increments, or may require or allow smaller minimum increments.  If an employer does not specify the minimum increment in writing, the minimum is six minutes.
  • Additional leave is not required if an employer’s policy provides fully paid leave for both HFWA and non-HFWA purposes (e.g., sick time and vacation).  The employer must communicate to employees, in a writing distributed in advance of an actual or anticipated leave request, that its leave policy provides paid time that meets or exceeds all requirements of HFWA and its applicable rules (including Public Health Emergency Leave). 
      • If an employee uses all available paid time off for non-HFWA-qualifying reasons (e.g., vacation), additional HFWA leave need not be provided, except that if a public health emergency is declared after an employee uses some or all available paid time off for the applicable benefit year, the employer must supplement the employee’s current total of accrued, unused leave in accordance with Public Health Emergency Leave requirements.
  • HFWA leave must be paid at the employee’s regular rate of pay, excluding overtime, bonuses or holiday pay, or at the applicable minimum wage, whichever is greater.
  • Notification Requirements:
    1. Employers must display a poster in a conspicuous place accessible to all employees
        • If the work site or other conditions make a physical posting impractical (including remote work, private residences employing only one worker, and certain entirely outdoor work sites lacking an indoor area), the employer must provide a copy of the poster to each employee or worker within their first month of work, including through (if information is customarily disseminated to the employees or workers through these means) either electronic communication or conspicuous posting on a web-based platform.
    2. Employers must provide each new employee written notice outlining HFWA’s rights and requirements. Interpretive Notice & Formal Opinion (“INFO”) #6B may serve as the notice to employees, though the 11/9/20 final “WARNING” rules reflect that the poster may be also be used for the individual notice.
        • Including the written HFWA notice among other employment-related documents, such as a handbook, a manual, or other written or posted policies, complies with this written notice requirement, as long as the documents are provided either (1) in hard copies given to each employee or (2) in electronic form if the employee easily access the documents electronically and is provided actual notice that the documents contain information regarding their terms of employment, not simply a link that fails to so notify the employee.
  • Notices must be provided in English and any language spoken by at least 5% of employees.
  • Notice and posting requirements are waived during any period an employer’s business is closed due to a public health emergency.
  • Upon an employee’s request, an employer must provide, in writing or electronically, documents sufficient to show the current amount of paid leave the employee has (1) available for use and (2) already used during the current benefit year, including information as to any Public Health Emergency Leave provided and used. Employers may choose a reasonable system for fulfilling such requests including, but not limited to, listing such information on each pay stub, using an electronic system where employees can access their own information, or providing the necessary information via letter or electronic communication.
  • Employers must retain record of each employee’s hours worked, paid sick leave accrued and paid sick leave used for a period of two years.

2021 Statutory Disability and Paid Family Leave Benefits and Rates

California
State Disability Insurance (CA SDI) and Paid Family Leave (CA PFL)

2020

January 1, 2021

Maximum Duration

SDI: 52 weeks
PFL: 8 weeks (7/1/20)

No Change

Benefit Percentage

• If High Quarter earnings < 1/3 of the State’s Average Quarterly Wage (SAQW): 70%
• If High Quarter earnings => 1/3 of the SAQW: 60%
(SAQW = 13x SAWW)

No Change

Maximum Weekly Benefit

$1,300

$1,357

State Average Weekly Wage (SAWW)

$1,325

$1,383

Contribution Rate
Employee-Paid

1.0%

1.2%

Taxable Wage Ceiling

$122,909

$128,298

Maximum Employee Contribution

$1,229.09 per year

$1,539.58 per year

Additional Notes

Leave for Qualifying Exigency begins January 1, 2021

Required Notice


Connecticut 
Paid Family and Medical Leave (CT PFML)

January 1, 2020

January 1, 2021

Contribution Rate
Employee-Paid

N/A

.5%

Taxable Wage Base (SSA)

$142,800

Maximum Employee Contribution

$714 per year

Required Notice

Employee notice requirements are set to begin July 1, 2022; however, employers may want to utilize materials posted on the CT PFML website to notify their employees of upcoming contribution requirements.

Contributions commence January 1, 2021; Benefit entitlement begins January 1, 2022.


District of Columbia
Paid Family Leave (DC PFL)

July 1, 2020

January 1, 2021

Maximum Duration

Own Illness: 2 weeks
Family Care: 6 weeks
Bonding: 8 weeks
Combined maximum: 8 weeks
in a 52-week period

No Changes

Benefit Formula

• If EAWW* =< 150% of DC min. wage x 40: 90%
• If EAWW > 150% of DC min. wage x 40: 90% of 150% of DC min.
wage x 40 plus 50% of the difference of the EAWW and 150% of DC min. wage x 40

DC Minimum Wage

$15/hour

Maximum Weekly Benefit

$1,000

Contribution Rate
Employer-Paid

.62%

Maximum Contribution

No maximum

Required Notice

Notice posted and provided at hire, annually and at the time of need for leave


Hawaii
 Temporary Disability Insurance (HI TDI)

January 1, 2020

January 1, 2021

Maximum Duration

26 weeks

No Change

Benefit Percentage

58%

No Change

Maximum Weekly Benefit

$650

$640

Employee Contribution Rate
Employee- and Employer-Paid, Employer pays any balance required

Up to ½ of plan costs, max .5%

No Change

Maximum Weekly Wage Base

$1,119.44

$1,102.90

Maximum Employee Contribution

$5.60 per week

$5.51 per week

Required Notice


Massachusetts
Paid Family and Medical Leave (MA PFML)

2020

January 1, 2021

Maximum Duration

N/A

Own Illness: 20 weeks
Bonding or Qualifying Exigency: 12 weeks
Injured Servicemember: 26 weeks
Combined maximum: 26 weeks in a 52-week period
12 weeks for Family Care begins July 1, 2021

Benefit Formula

80% of EAWW* =< 50% of SAWW,
plus 50% of EAWW > 50% of SAWW

State Average Weekly Wage (SAWW)

$1,487.78

Maximum Weekly Benefit

$850

Contribution Rate
Employee- and Employer-Paid

.75% Total Contribution
.62% Medical, .13% Family Care

No Change

Maximum Employee Contribution Rate

.248% Medical, .13% Family Care

No Change

Maximum Wage Base (SSA)

$137,700

$142,800

Maximum Contribution

$1,032.75 Total
(~$520.50 Employee) per year

$1,071 Total
(~$539.78 Employee) per year

Required Notice


New Jersey
Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI)

2020

January 1, 2021

Maximum Duration

TDI: 26 weeks
FLI: 12 weeks (7/1/20)

No Change

Benefit Percentage

85% (7/1/20)

No Change

Maximum Weekly Benefit

$881 (7/1/20)

$903

State Average Weekly Wage (SAWW)

$1,259.82

$1,291.42

Employee Taxable Wage Base

$134,900

$1,291.42

Employee Contribution Rate
NJ TDI is Employee- and Employer-Paid,
Employer contribution rate varies; NJ FLI is Employee-Paid

TDI: .26% of taxable wages
FLI: .16% of taxable wages

TDI: .47% of taxable wages
FLI: .28% of taxable wages

Maximum Employee Contribution

TDI: $350.74
FLI: $215.84 per year

TDI: $649.54
FLI: $386.96 per year

Employer Taxable Wage Base

$35,300

$36,200

Alternative Earnings Test

$10,000

$11,000

Base Week Amount

$200

$220

Required Notice

Worksite poster as well as notice at hire and time of need for leave


New York
Disability Benefits Law (NY DBL)

January 1, 2020

January 1, 2021

Maximum Duration

26 weeks
Max. 26 weeks in a 52-week period combined with NY PFL

No Changes

Benefit Percentage

50%

Maximum Weekly Benefit

$170

Employee Contribution Rate
Employee- and Employer-Paid, 
Employer pays any balance required

.5%

Maximum Employee Contribution

$31.20 per year

Required Notice

Posted Notice of Compliance (DBL-120 for insured plans) or Certificate of Participation in Group Disability Self-Insurance (DB-120.2 for self-funded plans), as well as a Statement of Rights (DB-271S) provided at time of need for leave.


New York
Paid Family Leave (NY PFL)

January 1, 2020

January 1, 2021

Maximum Duration

10 weeks
Max. 26 weeks in a 52-week period combined with NY DBL

12 weeks

Benefit Percentage

60%

67%

State Average Weekly Wage (SAWW)

$1,401.17

$1,450.17

Maximum Weekly Benefit

$840.70

$971.61

Contribution Rate
Employee-Paid

.270%

.511%

Maximum Employee Contribution

$196.72 per year

$385.34 per year

Required Notice

Posted Notice of Compliance (PFL-120 for insured plans, employers with self-funded plans may request from NY WCB) as well as a Statement of Rights (PFL-271S) provided at time of need for leave.


Puerto Rico
SINOT

January 1, 2020

January 1, 2021

Maximum Duration

26 weeks

No Changes

Benefit Percentage

65%

Maximum Weekly Benefit

$113

Contribution Rate
Employee- and Employee-Paid

.3% Employee, .3% Employer
on first $9,000 of earnings

Maximum Employee Contribution

$27 Employee, $27 Employer
per year

Required Notice

Worksite poster as well as individual certificate/notice of benefits


Rhode Island
Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI)

2020

January 1, 2021

Maximum Duration

TDI: 30 weeks
TCI: 4 weeks
Combined maximum: 30 weeks in a 52-week period

No Change

Benefit Percentage

85%

No Change

Maximum Weekly Benefit

$887; $1,197 with dependency allowance
(7/1/20 - 6/30/21)

Contribution Rate
Employee-Paid

1.3%

No Change

Taxable Wage Base

$72,300

$74,000

Maximum Employee Contribution

$939.90 per year

$962.00 per year

Financial Eligibility Test

$13,800 in Base Period earnings; or
(1)  $2,300 in at least one Base Period quarter
(2)  Base Period taxable wages at least 1.5x highest quarter of earnings and
(3)  $4,600 of taxable wages in Base Period (10/1/20)

No Change

Required Notice


Washington
Paid Family and Medical Leave (WA PFML)

January 1, 2020

January 1, 2021

Maximum Duration

Own Illness: 12 weeks; +2 weeks for pregnancy incapacity (PI)
Family Care: 12 weeks
Combined maximum: 16 weeks
in a 52-week period (18 weeks w/PI)

No Change

Benefit Formula

•    If EAWW* =< 1/2 SAWW: 90%
•    If EAWW > 1/2 SAWW: 90% of 1/2 of the SAWW plus 50% of the difference of the EAWW and 1/2 of the SAWW

No Change

Maximum Weekly Benefit

$1,000

$1,206
Based on 90% of SAWW stated in regulations

State Average Weekly Wage (SAWW)

$1,255

$1,340

Contribution Rate
Employee- and Employer-Paid

.4% Total Contribution

No Change

Maximum Employee Contribution Rate

63.333% of Total Contribution
(~.253% of wages)

No Change

Maximum Wage Base (SSA)

$137,700

$142,800

Maximum Contribution

$550.80 Total
(~$348.83 Employee) per year

$571.20 Total
(~$361.76 Employee) per year

Required Notice

Worksite poster as well as Statement of Employee Rights (“Employer to Employee Notice”) at time of need for leave

*EAWW = Employee’s Average Weekly Wage, as defined by each law; SAWW = State Average Weekly Wage

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change.

Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Legislation, CO PFML, CT PFML, NY PSL, NYC ESTA, 2021 Benefits & Rates

November 13, 2020

COVID-19 Leave Legislation

State and Local Legislation

COVID-19 Emergency Paid Sick Leave Updates

San Francisco, CA

On October 20 San Francisco’s Board of Supervisors extended the Public Health Emergency Leave Ordinance (PHELO) through December 12, 2020. (See our October 5, July 31 and May 1 Updates for additional details.)

District of Columbia

On October 7 the mayor of the District of Columbia signed Order 2020-103, which extends all of the mayor’s orders related to the declared public emergency and public health emergency currently in effect, through December 31, 2020.  Included in these are the Paid Public Health Emergency Leave and the temporary expansion of DC FMLA. (See our September 1 Update for additional details.)

Please see our side-by-side comparison of Emergency Paid Sick Leave laws.

Michigan Worker Protections

On October 22 the governor of Michigan signed HB6032, which states that an employer may not discharge, discipline, or retaliate against an employee who complies with the absence provisions of the law outlined below, opposes a violation of the law, or reports health violations related to COVID-19.

  • An employee who tests positive for or who displays the principal symptoms* of COVID-19 should remain at home (apart from seeking medical care) until 24 hours have passed since the resolution of fever without medication, 10 days have passed since symptoms appeared or since the employee was swabbed for the test yielding a positive result, and other symptoms have improved.
  • An employee** who has been in close contact with (defined as within 6 feet for 15 minutes of) someone who tests positive for or is displaying the principal symptoms* of COVID-19 should remain at home (apart from seeking medical care) until either 14 days have passed since contact or the individual displaying symptoms receives a medical determination that they did not have COVID-19 at the time of the close contact with the employee. 

* The “principal symptoms” of COVID-19 are defined as (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; and/or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, abdominal pain.

** Does not apply to the following classes of employees: healthcare professionals, health care facility workers, first responders, child protective services employees, workers at child care and adult care facilities, and correctional facility workers.  

  • The law’s protections do not apply to any employee who does not comply with the requirements above or who, after displaying the principal symptoms of COVID-19, fails to make reasonable efforts to schedule a COVID-19 test within 3 days after receiving a request from his or her employer to get tested for COVID-19.
  • Employers in violation may face civil action for relief, a minimum of $5,000 in damages, or both.

The requirements of the law, effective retroactively to March 1, 2020, are very similar to those of the governor’s previously issued Executive Orders (covered in our April 17 and September 1 Updates), which were ultimately invalidated by the Michigan Supreme Court.

Oregon Family Leave Act Amendment

In our October 5 Update we noted that, effective September 14, Oregon’s Bureau of Labor and Industries (BOLI) permanently expanded the qualifying reasons for leave under the Oregon Family Leave Act (OFLA) to include care for an employee’s child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official. The September 11 Permanent Order was accompanied by a Temporary Order which, for the purposes of this leave for this reason, defines “child care provider”, identifies that the need for leave may be “ongoing, intermittent, or recurring”, and indicates what verification an employer may request. The Temporary Order is effective September 14, 2020, through March 12, 2021.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Colorado Voters Approve Paid Family and Medical Leave

This Election Day Colorado voters approved a ballot measure which will require statewide paid family and medical leave, an item that has failed to pass the state legislature for several years.  The approval of Proposition 118 establishes the Paid Family and Medical Leave Insurance Act.  Below is a summary of the Act’s provisions and requirements; further guidance is expected by January 1, 2022 upon the development of program rules and regulations.

Colorado Paid Family and Medical Leave (CO PFML)

Effective Date
  • Contributions: January 1, 2023
  • Benefit Entitlement: January 1, 2024
Applies To All Employers who (1) employed at least one person for each working day during each of 20 or more calendar workweeks in the current or immediately preceding calendar year, or (2) paid wages of $1,500 or more during any calendar quarter in the preceding calendar year

  • Excludes the Federal government
  • Local government employers may decline participation

All Employees

  • Excludes independent contractors and employees subject to the Federal Railroad Unemployment Insurance Act
  • Self-employed individuals and employees of a local government that has declined participation may opt in, for an initial period of no fewer than 3 years.
Types of Plans State Plan, administered by the newly formed Division of Family and Medical Leave

Private Plan: Insured or Self-funded (features a bond requirement)

Contributions .9% of wages, split 50/50 by employer and employee

  • Employer may choose to contribute a larger percentage, but may not require employees to pay more than 50% (.45% of wages).
  • Maximum wages subject to premium assessment is equal to the maximum wages subject to Social Security taxation ($142,800 in 2021).
  • Contributions for private plans may not exceed the above limits.
  • Wages include, but are not limited to, salary, wages, tips, commission, and other forms of compensation as determined by the Division by rule.

“Small businesses” with 9 or fewer employees are not required to pay the employer portion of premium, but must still remit the employee portion.

Reasons for Leave
  • Employee’s own serious health condition;
  • To care for a child during the first year following the birth, adoption or placement through foster care;
  • To care for a family member with serious health condition;
  • For needs arising from a family member’s qualifying exigency;
  • To attend to needs associated with domestic violence, sexual assault or abuse, or stalking.
Covered Family Members
  • Spouse or Domestic Partner
  • Child of any age: biological, adopted, foster, stepchild, legal ward, child of domestic partner, a child to whom the employee stands in loco parentis, or person to whom the employee stood in loco parentis when that person was a minor
  • Parent: employee’s or spouse/domestic partner’s biological, adoptive, foster, stepparent, legal guardian, or someone who stood in loco parentis to the employee or the employee’s spouse/domestic partner as a minor
  • Employee’s or spouse/domestic partner’s grandparent, grandchild or sibling, whether biological, adoptive, foster or step
  • 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
Eligibility for Leave
  • No service length requirement.
  • Employee must, at the time of need for leave, have earned at least $2,500 during his or her Base Period or Alternative Base Period.
    • Base Period: the first four of the last five completed calendar quarters immediately preceding the first day of the individual’s benefit year
    • Alternative Base Period: the last four completed calendar quarters immediately preceding the benefit year
    • Benefit Year: the period of 52 consecutive calendar weeks beginning with the first week of a claim series established by the filing of a valid initial claim
Leave Entitlement 12 weeks per Application Year, with an additional 4 weeks for employees with a serious health condition related to pregnancy or childbirth complications.

  • Application Year: the 12-month period beginning on the first day of the calendar week in which an individual files an application for CO PFML benefits

Leave may be taken intermittently in increments of one hour, or shorter periods if consistent with the employer’s policy for employee leaves. However, CO PFML benefits are not payable until at least 8 hours of leave has accumulated.

Benefit Calculation
  • No waiting period for benefits
  • Weekly Benefit Amount:
    • 90% of employee’s Average Weekly Wage (AWW) that is less than or equal to 50% of the State Average Weekly Wage (SAWW), plus
    • 50% of the employee’s AWW that exceed 50% of the SAWW
  • Average Weekly Wage (AWW): 1/13 of the wages paid in the employee’s Base Period or Alternative Base Period in which the total wages were highest.
    • Wages include, but are not limited to, salary, wages, tips, commission, and other forms of compensation as determined by the Division by rule.
  • State Average Weekly Wage (SAWW) estimated: $1,340 in 2024; $1,392 in 2025
  • Maximum Weekly Benefit$1,100 in 2024, then 90% of SAWW (estimated max benefit of $1,253 in 2025)
  • An employee with multiple employers may elect to take CO PFML from one employer or more than one. Wages earned from an employer for whom the employee continues to work will not be counted in the Average Weekly Wage used to calculate weekly benefits.
Notice to Employer
  • Employees must make a reasonable effort to schedule leave so as not to unduly disrupt the operations of the employer.
  • At least 30 days’ notice is required for foreseeable necessity of leave; for leave that is not foreseeable, notice must be provided as soon as practicable.
Employment and Benefits Protection
  • Employers may not discipline or take retaliatory actions against employees for requesting or using CO PFML.
  • Any employee employed by his or her current employer at least 180 days prior to the start of CO PFML is, upon return from that leave, entitled to return to the same position or a position with equal seniority, status, employment benefits, and pay.
  • Accrual of seniority other employment benefits is not required during a period of CO PFML.
  • Employees are entitled to continuation of their health benefits during their leave, but are required to pay their portion of the health premium.
Coordination with Other Leaves
  • Runs concurrently with FMLA and/or the CO Family Care Act where applicable.
  • Employers may require that CO PFML be taken concurrently or otherwise coordinated with payment made or leave allowed under a disability policy or a separate bank of time off solely for the purpose of paid family and medical leave.  This requirement must be provided in writing.
  • Employers may not require employees to exhaust any accrued vacation time, sick time or other paid time off prior to or while receiving CO PFML benefits.  However, an employer and an employee may mutually agree that the employee may use any accrued paid time, unless the aggregate amount the employee would receive would exceed the employee’s average weekly wage.
  • Future rulemaking will outline the interaction of benefits in the event an employee is also eligible for Workers Compensation or the state’s Domestic Abuse Leave Law.
Notice Requirements Employers must:

  • Post notice in a prominent location in the workplace, and
  • Notify employees of the program, in writing at hire, and upon learning of an employee experiencing an event that triggers a need for leave.

Model notice(s) will be provided by the Division.

Connecticut Paid Family and Medical Leave (CT PFML) Employer Registration is Now Open

In our October 5 review of the CT PFML program, we noted that employers subject to CT PFML requirements must register with the CT Paid Leave Authority to establish their accounts for reporting and premium remittance – registration is now active and may be initiated through the Employer webpage (see bottom of page for options). 

Contributions to the CT PFML trust fund begin January 1, 2021; premium remittance for the first quarter of 2021 will be due by March 31, 2021.  The process for applying for exemption from the state program via private plan is still under development (see the Exemption webpage for more details).

New York State Paid Sick Leave Update

New York’s Paid Sick Leave (PSL) law recently became effective, with accrual beginning September 30 and leave entitlement beginning January 1, 2021 (see our September 1 and noted earlier Updates for details).  Last month the New York Department of Labor (NY DOL) unveiled a new dedicated website, which includes FAQ that clarify various aspects of the law’s requirements. Below are a few items from the FAQ that are not specifically addressed in the PSL law itself:

Accrual/Entitlement:

  • Employees who telecommute are covered by the law only for the hours when they are physically working in New York State, even if the employer is physically located outside New York State.
  • Employees do not accrue paid sick leave during periods paid sick leave is being used. Accrual is only associated with hours worked, which include on-call time, training time, and travel time.
  • When employees are paid on a non-hourly basis (e.g., commission or flat rate), accrual of sick leave is measured by the actual length of time spent performing work.
  • Employers who provide PSL time at the beginning of each year (“frontload”) may do so for part-time employees based on the hours they are anticipated to work. However, if the employer frontloads fewer than 40 hours, the employer must still track the employee’s hours worked and accrual of sick leave to ensure that the employee receives any time earned above the frontloaded amount.
  • An employee’s immigration status has no effect on their eligibility for sick leave benefits.
  • An employee’s use of NY COVID-19 Emergency Paid Sick Leave does not impact the employee’s paid sick leave accruals or usage.
  • Collective bargaining agreements entered into on or after September 30, 2020, may provide different, but comparable, benefits. However, the agreement must acknowledge this law’s provisions by specifically referencing Labor Law Section 196-b and identify any benefits deemed comparable to the leave in the law.
  • NY PSL operates independently from other State and Federal leave requirements and must therefore be paid in addition to any other State or Federal leave entitlements.

Use:

  • Employers may not require an employee to work from home or telecommute instead of taking sick leave. If an employee voluntarily agrees to work from home or telecommute his or her accrued paid sick leave will be retained.
  • An employee’s eligibility for safe leave is not dependent on reporting to law enforcement or a criminal conviction.
  • Permissible reasons to use accrued sick leave do not include bereavement.
  • There is no specified advance notice or time period requirement for use of PSL, provided, however, that there is an oral or written request to the employer prior to using the accrued sick leave, unless otherwise permitted by the employer.
  • An employee can only choose to use sick leave during Paid Family Leave (NY PFL) if the employer allows it. Taking sick leave at the same time as NY PFL may allow the employee to receive their full salary for all or part of the leave. However, an employee cannot receive more than their full wages while receiving NY PFL benefits.
  • An employer may take disciplinary action, up to and including termination, against an employee who uses leave for purposes other than those provided for under the law, or who lies to their employer in connection with taking such leave.

Pay:

  • Employers are not required to pay employees for lost tips or gratuities, but employers may not take a tip credit for leave time and must pay the employee their normal rate of pay or the applicable minimum wage, whichever is greater.
  • Employees who are paid at more than one rate of pay must be paid for leave under the law at the weighted average of those rates. The weighted average is the total regular pay divided by the total hours worked in the week.

Other:

  • An employer’s failure to provide employee benefits such as sick leave is equivalent to a failure to pay employee wages. Should an employer fail to provide their employees with sick leave as required under the law, they may be subject to civil/administrative actions and/or criminal penalties, including, but not limited to, an order assessing the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due.
  • An employer can have a policy that allows employees to donate unused leave to other employees, as long as the policy is entirely voluntary.
New York City Earned Safe and Sick Time Notification Requirements

In our October 5 Update we outlined the amendments to New York City’s Earned Safe and Sick Time (ESTA) law effective September 30.  The amendments pose a few new employee notification requirements with which impacted employers must comply:

Existing:

  • Written notice of rights and responsibilities under the law upon the employee’s commencement of employment, in English and the primary language spoken by the employee.
  • Notice must also be conspicuously posted at an employer’s place of business in an area accessible to employees.

New:

  • Employers must provide an updated Notice of Employee Rights to existing employees impacted by the amendments (e., employers with 100 or more employees; employers with four or fewer employees and a net income of $1 million or more; and employers of domestic workers) by January 1, 2021. The city has posted an updated version of the notice, in English and Spanish (additional translations to be added), on its website.
  • The amount of safe/sick time accrued and used leave and the total balance of accrued leave must be noted on a pay statement or other form of written documentation provided to the employee each pay period.  Employers have until November 30 to comply with this requirement.
2021 Statutory Disability and Paid Family Leave Updates

California

State Disability Insurance (CA SDI) and Paid Family Leave (CA PFL)

2020 January 1, 2021
Maximum Duration
  • SDI: 52 weeks
  • PFL: 8 weeks (7/1/20)
No Change
Benefit Percentage
  • If High Quarter earnings < 1/3 of the State’s Average Quarterly Wage (SAQW): 70%
  • If High Quarter earnings => 1/3 of the SAQW: 60%

(SAQW = 13x SAWW)

No Change
Maximum Weekly Benefit $1,300 $1,357
State Average Weekly Wage (SAWW) $1,325 $1,383
Contribution Rate Employee-Paid 1.0% 1.2%
Taxable Wage Ceiling $122,909 $128,298
Maximum Employee Contribution $1,229.09 per year $1,539.58 per year
Additional Notes Leave for Qualifying Exigency begins January 1, 2021

Connecticut

Paid Family and Medical Leave (CT PFML)

January 1, 2020 January 1, 2021
Contribution Rate Employee-Paid N/A .5%
Taxable Wage Base (SSA) $142,800
Maximum Employee Contribution $714 per year
Contributions commence January 1, 2021; Benefit entitlement begins January 1, 2022

District of Columbia

Paid Family Leave (DC PFL)

July 1, 2020 January 1, 2021
Maximum Duration
  • Own Illness: 2 weeks
  • Family Care: 6 weeks
  • Bonding: 8 weeks
  • Combined maximum: 8 weeks in a 52-week period
No Changes
Benefit Formula
  • If EAWW* =< 150% of DC min. wage x 40: 90%
  • If EAWW > 150% of DC min. wage x 40: 90% of 150% of DC min. wage x 40 plus 50% of the difference of the EAWW and 150% of DC min. wage x 40
DC Minimum Wage $15/hour
Maximum Weekly Benefit $1,000
Contribution Rate Employer-Paid .62%
Maximum Contribution No maximum

Hawaii

Temporary Disability Insurance (HI TDI)

January 1, 2020 January 1, 2021
Maximum Duration 26 weeks No Change
Benefit Percentage 58% No Change
Maximum Weekly Benefit $650 Expected early December
Employee Contribution Rate Employee- and Employer-Paid, Employer pays any balance required Up to ½ of plan costs, max .5% No Change
Maximum Weekly Wage Base $1,119.44 Expected early December
Maximum Employee Contribution $5.60 per week

Massachusetts

Paid Family and Medical Leave (MA PFML)

2020 January 1, 2021
Maximum Duration N/A
  • Own Illness: 20 weeks
  • Bonding or Qualifying Exigency: 12 weeks
  • Injured Servicemember: 26 weeks
  • Combined maximum: 26 weeks
  • in a 52-week period

12 weeks for Family Care begins July 1, 2021

Benefit Formula 80% of EAWW* =< 50% of SAWW, plus 50% of EAWW > 50% of SAWW
State Average Weekly Wage (SAWW) $1,487.78
Maximum Weekly Benefit $850
Contribution Rate Employee- and Employer-Paid
  • .75% Total Contribution
  • .62% Medical, .13% Family Care
No Change
Maximum Employee Contribution Rate .248% Medical, .13% Family Care No Change
Maximum Wage Base (SSA) $137,700 $142,800
Maximum Contribution $1,032.75 Total (~$520.50 Employee) per year $1,071 Total (~$539.78 Employee) per year

New Jersey

Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI)

2020 January 1, 2021
Maximum Duration
  • TDI: 26 weeks
  • FLI: 12 weeks (7/1/20)
No Change
Benefit Percentage 85% (7/1/20) No Change
Maximum Weekly Benefit $881 (7/1/20) $903
State Average Weekly Wage (SAWW) $1,259.82 $1,291.42
Employee Taxable Wage Base $134,900 $138,200
Employee Contribution Rate NJ TDI is Employee- and Employer-Paid, Employer contribution rate varies; NJ FLI is Employee-Paid
  • TDI: .26% of taxable wages
  • FLI: .16% of taxable wages
  • TDI: .47% of taxable wages
  • FLI: .28% of taxable wages
Maximum Employee Contribution
  • TDI: $350.74
  • FLI: $215.84
  • (per year)
  • TDI: $649.54
  • FLI: $386.96
  • (per year)
Employer Taxable Wage Base $35,300 $36,200
Alternative Earnings Test $10,000 $11,000
Base Week Amount $200 $220

New York

Disability Benefits Law (NY DBL)

January 1, 2020 January 1, 2021
Maximum Duration
  • 26 weeks
  • Max. 26 weeks in a 52-week period combined with NY PFL
No Changes
Benefit Percentage 50%
Maximum Weekly Benefit $170
Employee Contribution Rate Employee- and Employer-Paid, Employer pays any balance required .5%
Maximum Employee Contribution $31.20 per year

New York

Paid Family Leave (NY PFL)

January 1, 2020 January 1, 2021
Maximum Duration
  • 10 weeks
  • Max. 26 weeks in a 52-week period combined with NY DBL
12 weeks
Benefit Percentage 60% 67%
State Average Weekly Wage (SAWW) $1,401.17 $1,450.17
Maximum Weekly Benefit $840.70 $971.61
Contribution Rate Employee-Paid .270% .511%
Maximum Employee Contribution $196.72 per year $385.34 per year

Puerto Rico

SINOT

January 1, 2020 January 1, 2021
Maximum Duration 26 weeks No Changes
Benefit Percentage 65%
Maximum Weekly Benefit $113
Contribution Rate Employee- and Employer-Paid .3% Employee, .3% Employer on first $9,000 of earnings
Maximum Contribution $27 Employee, $27 Employer per year

Rhode Island

Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI)

2020 January 1, 2021
Maximum Duration TDI: 30 weeks

TCI: 4 weeks

Combined maximum: 30 weeks

in a 52-week period

No Change
Benefit Percentage 85% No Change
Maximum Weekly Benefit $887; $1,197 with dependency allowance (7/1/20 – 6/30/21)
Contribution Rate Employee-Paid 1.3% Expected early December
Taxable Wage Base $72,300
Maximum Employee Contribution $939.90 per year
Financial Eligibility Test $13,800 in Base Period earnings; or

  1. $2,300 in at least one Base Period quarter
  2. Base Period taxable wages at least 1.5x highest quarter of earnings and
  3. $4,600 of taxable wages in Base Period (10/1/20)
No Change

Washington

Paid Family and Medical Leave (WA PFML)

  January 1, 2020 January 1, 2021
Maximum Duration
  • Own Illness: 12 weeks; +2 weeks for pregnancy incapacity (PI)
  • Family Care: 12 weeks
  • Combined maximum: 16 weeks
  • in a 52-week period (18 weeks w/PI)
No Change
Benefit Formula
  • If EAWW* =< 1/2 SAWW: 90%
  • If EAWW > 1/2 SAWW: 90% of 1/2 of the SAWW plus 50% of the difference of the EAWW and 1/2 of the SAWW
No Change
Maximum Weekly Benefit $1,000

$1,206

Based on 90% of SAWW

stated in regulations

State Average Weekly Wage (SAWW) $1,255 $1,340

Contribution Rate Employee- and Employer-Paid

.4% Total Contribution No Change
Maximum Employee Contribution Rate

63.333% of Total Contribution (~.253% of wages)

No Change
Maximum Wage Base (SSA) $137,700 $142,800
Maximum Contribution $550.80 Total (~$348.83 Employee) per year $571.20 Total (~$361.76 Employee) per year
* EAWW = Employee’s Average Weekly Wage, as defined by each law; SAWW = State Average Weekly Wage

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change.

Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Legislation, 2021 Updates, CA Changes, CT PFML, NYC & More

October 5, 2020

COVID-19 Leave Legislation

Federal Legislation

Families First Coronavirus Response Act (FFCRA) Updates 

The Department of Labor (DOL) has responded to the August 3 U.S. District Court for the Southern District of New York (“the Court”) ruling that challenged four limitations of FFCRA paid leave eligibility.  On September 11 the DOL issued revised regulations, effective September 16:

    • Work Availability: The DOL regulations indicate that for some qualifying reasons for Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML) the employer must have work available (i.e., the employee would miss paid work time). The Court found this illogical and the DOL’s reasoning deficient, and struck down the entire requirement. This effectively expanded the pool of employees eligible for FFCRA leave to those who have been furloughed.

DOL Response: The DOL reaffirmed its position on the work availability requirement (i.e., that a FFCRA-qualifying reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason, such as a furlough), but clarified that the intention was to apply this requirement to all FFCRA-qualifying reasons.

826.20 of the FFCRA regulations was revised to add “An Employee … may not take Paid Sick Leave where the Employer does not have work for the Employee.” following each reason for FFCRA-qualifying leave where this distinction didn’t originally appear (employee’s healthcare provider-recommended quarantine, employee seeking COVID-19 diagnosis, and for a “substantially similar condition”).

    • Health Care Provider Exclusion: The Court determined that the DOL exceeded its authority in expanding the definition of “health care provider” from being based on an employee’s job duties (as under FMLA, and borrowed by FFCRA) to being based on the employer’s operations, thereby excluding a large number of individuals from FFCRA leave eligibility.

DOL Response: The DOL revised the definition of “health care provider” for purposes of excluding individuals from FFCRA entitlements to focus on the “role and duties of those employees rather than their employers”. §826.30(c)(1) of the FFCRA regulations was amended to reflect this definition* as:

        1. Any employee who is defined as a health care provider under FMLA (29 CFR 825.102 and 125), or;
        2. Any other employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. These employees include:

a. Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in #2 above;

b. Employees providing services described in #2 above under the supervision, order, or direction of, or providing direct assistance to, a person described in #1 or #2a above; and

c. Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

* This definition of health care provider applies only for the purpose of determining whether an employer may elect to exclude an employee from taking leave under the Emergency Paid Sick Leave Act (EPSLA) and/or the Emergency Family and Medical Leave Expansion Act (EFMLEA), and does not otherwise apply for purposes of the FMLA or for advising self-quarantine under EPSLA. See also FAQ #56.

Typical work locations: Employees described above may include employees who work at, for example, a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. This list is illustrative – an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider.

Employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

Further clarifications:

        • Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
        • Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
        • Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
        • Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.
    • Employer Consent for Intermittent Leave: The DOL’s regulations allow that intermittent leave be taken under certain circumstances, but only with the employer’s consent.  The Court agreed that intermittent leave may be at the employer’s discretion in instances where the employee’s presence in the workplace might pose a threat to the health of other employees, but concluded that employer consent for other leave reasons is unreasonable.

DOL Response: The DOL reaffirmed its position that employer approval is required for intermittent EPSL and EFML:

        • An employee must obtain his or her employer’s approval to take EPSL or EFML intermittently while the employee is teleworking. Leave may be taken in any increment agreed upon by both parties.
        • If an employee is working at his or her usual worksite, intermittent EPSL and EFML may only be taken in full-day increments, only for needs associated with a child’s school or care closure, and only with the employer’s consent. Intermittent leave may not be taken for reasons associated with COVID-19 quarantine due to or symptoms associated with COVID-19 or illness.  FAQ #21 clarifies this: “Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.”
        • School closure: The DOL clarified “intermittent” for purposes of EPSL and EFML use for hybrid or alternate school arrangements:
          • If school is closed (where the child cannot attend in person) for full days, the employee may take EPSL or EFML for those days – in this instance, leave is not considered “intermittent” and employer approval is not required.
          • If school is closed for partial days (e.g., in a hybrid-learning scenario), the employee may request intermittent time to assist with at-home learning for those periods of time, as agreed to by the employer.

(See also FAQ #20-22 and #98-99.)

    • Documentation Requirements: The DOL’s regulations state that employers may require documentation before an employee is permitted to take EPSL or EFML, which the Court found inconsistent with what the law itself states.

DOL Response: The DOL amended §826.100 of the regulations to read that documentation supporting EPSL or EFML should be provided “as soon as practicable”, rather than prior to leave. See also FAQ #16.

Additionally, §826.90(b) was updated to remove the notation that an employer may not require advance notice of the need for EFML, as the FFCRA law states that “where the necessity for [EFML] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable”. Notice for EPSL may only be required after the first workday (or portion thereof) for which an employee takes leave. After the first workday, it will be reasonable for an employer to require notice as soon as practicable under the facts and circumstances of the particular case. Notice of the need for EFML is required as soon as practicable. If the reason for this leave is foreseeable, it will generally be practicable to provide notice prior to the need to take leave.

In addition to the updates and clarifications themselves, the DOL interpreted that they apply nationwide – see FAQ #102.

For more information, see A Coronavirus Update for Employers, released by MMA’s Compliance Center of Excellence on September 21.

State and Local Legislation

Emergency Paid Sick Leave (EPSL)

In September California State, Sacramento County, CA and Philadelphia, PA joined the list of jurisdictions enacting emergency measures providing paid leave to workers impacted by COVID-19. Below is an overview of the provisions of these new laws.

Please also see our updated side-by-side comparison of Emergency Paid Sick Leave laws.

 

California State Sacramento County, CA Philadelphia, PA
Supplemental Paid Sick Leave (SPSL) Supplemental Paid Sick Leave (SPSL) Public Health Emergency Leave (PHEL)
Link to Law/Ordinance AB1867 see also FAQ Sacramento County Worker Protection, Health, and Safety Act of 2020 Bill No. 200303

Temporarily adds §9-4116 to the city’s paid sick leave law

Effective Date

September 19, 2020

(applicability to Food Sector Workers is retroactive to April 16, see below)

Expires 12/31/20,
unless FFCRA is extended

October 1, 2020

Expires 12/31/20

September 17, 2020

Expires 12/31/20

Employers

Private “Hiring Entities” with 500+ employees nationally, plus any entity employing emergency responders and healthcare providers (as defined under FFCRA) who elected to exclude these employees from FFCRA’s Emergency Paid Sick Leave Act (EPSLA).

Please refer to Section 4 of the law for the full definitions of Covered Worker and Hiring Entity.

Employers located within unincorporated Sacramento County with 500+ employees nationally (not subject to FFCRA) All employers (“Hiring Entities”)
Please refer to the law text for the full definitions of Employer and Hiring Entity
 

Eligible Employees

All employees who leave their homes to perform work, including emergency responders and healthcare providers excluded by the Hiring Entity from FFCRA’s EPSLA.

Food Sector Workers AB1867 codifies the benefits available to food sector workers originally established under Executive Order N-51-20, and are effective retroactively to April 16, 2020. Please refer to Section 3 of the law for the full definitions of Food Sector Worker and Hiring Entity.

All employees working within unincorporated Sacramento County who cannot work or telework

Employers may exclude first responders and healthcare workers

  • All “covered individuals” working within the geographic boundaries of the city for at least 40 hours/year for one or more Hiring Entity who are not covered under FFCRA’s EPSLA and who cannot work or are not “reasonably able” to telework. “Covered individuals” include employees and other individuals such as pool/per diem healthcare workers, home healthcare workers, domestic service workers, and those who work for food delivery or transportation networks. Please refer to the law text for the full definitions of Covered Individual and Employee.
  • Terminated individuals are eligible for reinstatement of available leave time if rehired within 6 months.
Collective Bargaining Agreement Exception Not specified Not specified Provisions may be waived in CBA but only if (a) the waiver is explicitly expressed, (b) the CBA provides comparable benefits, and (c) the agreement is in effect contractually. CBA terms must be implemented bilaterally.
 

Benefit – Time Available

  • FT or scheduled to work at least 40 hours in each of the 2 weeks preceding leave: 80 hours
  • PT or scheduled to work fewer than 40 hours in each of the 2 weeks preceding leave: the number of hours normally scheduled during a 2-week period
  • Variable schedule: 14 times the average number of hours worked each day in the 6-month period preceding leave (or since date of hire, if sooner); if the employee has worked for the employer for fewer than 14 days, the employee is entitled to the total number of hours worked.
  • Active firefighters (as defined) scheduled to work more than 80 hours in the 2 weeks prior to taking SPSL are entitled to leave in an amount equivalent to the number of hours scheduled to work in that 2-week period
  • Working 40h/week or classified as FT prior to 10/1: 80 hours
  • Other: 2-week average during 6 months prior to 10/1
  • 40+ hours/week: greater of 80 hours or the average hours worked over a 14-day period, to a maximum of 112 hours
  • <40h/wk: 14-day average
  • Variable schedule: average wages per day over the 6-month period preceding the declaration of the public health emergency, including wages for time on any type of leave, multiplied by 14. Expected hours/wages at time of hire should be used if the individual did not work during such 6-month period.
  • PHEL may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
  • A covered individual may use all or a portion of PHEL at any time during the public health emergency and for one month following the conclusion of such emergency.
  • For covered individuals working for more than one Hiring Entity, a centralized system for tracking and payment will be developed. Until then, the individual is entitled to leave from each Hiring Entity in accordance with the requirements above.
  • The maximum 112 hours of PHEL is available each time a new public health emergency is declared, or when a second declaration is made for the same health concern more than one month after the original public health emergency has ended.
Benefit – Pay 100% pay (greater of regular rate or minimum wage);
Max $511/day, $5,110 total
Own leave: Regular rate of pay; max $511/day, $5,110 total

Family care: 66 2/3% pay; max $200/day, $2,000 total

100% regular rate of pay
Reasons for Use
Quarantine ordered by public official or healthcare provider

Yes
Hiring Entity may also prohibit the employee from working due to concerns regarding potential COVID-19 transmission

Yes

Yes

Experiencing symptoms and seeking medical treatment

Yes

Yes

Yes

Underlying health condition or over age 65 Possibly – leave is available if the employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19 Yes

Not specified

Care for family member who is sick and/or under official or healthcare provider-directed quarantine

No

Quarantine

Quarantine

Care for family member whose school or care facility is closed

No

Yes – minor children only

Yes

Worksite closure due to official public health order or recommendation

No

Yes

No

Documentation

Not specified – Hiring Entity must make SPSL available upon written or verbal notice from an employee An employer may request the basis for SPSL; provided, however, that a doctor’s note or other documentation is not required.

A Hiring Entity is only permitted to request that a covered individual submit a self-certified statement, asserting that leave was used for PHEL purposes.

 

Employer Offset

  • SPSL is in addition to leave provided under California’s  Healthy Workplaces, Healthy Families Act (CA Paid Sick Leave), but is not in addition to any leave provided under Executive Order N-51-20 (for food sector workers) or SPSL provided under similar federal or local law – that time may be counted toward entitlement under this law.
  • A Hiring Entity may not require an employee to use any paid or unpaid leave, paid time off, or vacation time prior to or instead of SPSL.
  • If a Hiring Entity already provides a covered worker with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons covered by and at the same or a greater level of compensation as this law, then the Hiring Entity may count the hours of the other paid benefit or leave towards the total number of hours of SPSL that the Hiring Entity is required to provide to the employee.
  • For non-food sector workers – if a Hiring Entity already provided supplemental paid leave between March 4, 2020, and the effective date of this section for the reasons covered under this law but did not compensate the covered worker in an amount equal to or greater than the amount of compensation required under this law, the Hiring Entity may retroactively provide supplemental pay to the covered worker to satisfy the compensation requirements, in which case those hours may count towards the total number of SPSL required.
  • SPSL is in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement.
  • An employer may not require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL.
  • If an employer granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020, specifically for use for COVID-19 related matters, the employer may use those leave hours as a credit against the number of SPSL hours required by this ordinance.
  • If an employee is entitled to leave hours pursuant to Executive Order N-51-20 (now codified by AB1867), the employer may use those leave hours as a credit against the number of SPSL hours required by this ordinance.
  • Covered individuals who are entitled to leave under FFCRA from a specific Hiring Entity, are not entitled to PHEL from that same Hiring Entity.
  • Hiring Entities may require PHEL to run concurrently with public health emergency paid leave or paid sick time provided by federal or state law unless such federal or state law prohibits the concurrent use of paid leave. A Hiring Entity must provide additional PHEL to the extent that this law’s requirements exceed the requirements of the other laws.
  • If a Hiring Entity’s existing policy provides an amount of paid sick leave that satisfies or exceeds the requirements of this law, and can be used for the same reasons and under the same conditions, the Hiring Entity is not required to provide additional paid leave.
 

Notice to Employees

  • For non-food sector workers: Inclusion of SPSL available on employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. Enforceable the next full pay period following September 9, 2020.
  • For all covered workers:
    • Notice posted conspicuously; may be distributed electronically if workers do not frequent a workplace. Links to the notices may be found in the FAQ (currently #26)
    • Records of hours worked, leave provided and leave used must be maintained for 3 years.
None stated
  • Notice must be distributed to all employees or posted conspicuously, in all languages spoken by 5% of population, within 15 days of the law’s effective date (i.e., by 10/2/20).  May be provided electronically to remote employees or if the Hiring Entity does not maintain a workplace. A model notice is posted on the city’s COVID-19 paid sick leave resources webpage.
  • Records of hours worked, leave provided and leave used must be maintained for 2 years.
Additional EPSL Updates

San Francisco, CA

Leave entitlement provided by San Francisco’s Public Health Emergency Leave Ordinance (PHELO), originally set to expire mid-June and extended to mid-August, has been extended an additional 60 days by Ordinance No. 136-20, to October 15. (See our May 1 Update for more details.)

Seattle, WA

Effective September 13 Ordinance No. 126123 amends the previously enacted Paid Sick and Safe Time for Gig Workers Ordinance (Ord. No. 126091) to exclude any gig worker considered to be an employee of a Hiring Entity subject to the city’s existing Paid Sick and Safe Time (PSST) Ordinance (Seattle Mun. Code Ch. 14.16). The Hiring Entity is responsible for providing paid time in accordance with the PSST law. (See our July 1 Update for more details on the COVID-19 gig worker ordinance.)

Oregon Family Leave Act Amendment

In our March 20 Update we reported that on March 18 Oregon’s Bureau of Labor and Industries (BOLI) issued a Temporary Administrative Order expanding the qualifying reasons for leave under the Oregon Family Leave Act (OFLA) to include care for an employee’s child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official. On September 11 BOLI issued an order making this change permanent. The change amends OR Admin. Rules §839-009-0230 effective September 14.

Worker Protections

San Francisco, CA

On September 11 the mayor of San Francisco approved Ordinance No. 162-20, which prohibits employers from taking any adverse action against employees, independent contractors, or job applicants who are unable to work because they have tested positive for COVID-19 or because they are isolating or quarantining, or have previously isolated or quarantined, due to COVID-19 symptoms or exposure. Employers may require individuals to identify the general basis for their absence or inability to work, or their request to take off work, but may not require healthcare provider documentation. The ordinance expires in 61 days (November 11), unless reenacted.

New Jersey

New Jersey’s Department of Labor and Workforce Development (LWD) has extended rules previously adopted which, during the declared COVID-19 public health emergency, prohibit employers from terminating or otherwise penalizing an employee who requests or takes medically-supported time off from work because the employee has, or is likely to have, an infectious disease that may infect others at the employee’s workplace. The rules are codified at NJAC 12:70-1.1 et seq. and are set to expire August 10, 2027. (See also our April 8 Update.)

Philadelphia, PA

In addition to the Public Health Emergency Leave summarized above, the mayor of Philadelphia approved Bill No. 200306 on September 9, which permanently amends the city’s paid sick leave law (Promoting Healthy Families and Workplaces, Phila. Code §9-4100). This new statute requires that employers compensate certain healthcare employees for lost wages and medical expenses in the event they contract a communicable disease at work during a declared pandemic or epidemic affecting the city.

Employees covered under this amendment are eligible if they worked for the employer for at least 40 hours in the three months prior to contracting the disease, and are defined as follows:

    • Healthcare Employee:  Any person who has full-time or part-time employment within a healthcare organization, including but not limited to hospitals, nursing homes, and home healthcare providers.
    • Pool Employee: Any healthcare professional*, other than an employee of a temporary placement agency, who works only when he or she indicates that he or she is available for work and who has no obligation to work when he or she does not indicate availability.

* “Healthcare professional” is defined in the existing law as any person licensed under Federal or Pennsylvania law to provide medical or emergency services, including but not limited to doctors, nurses and emergency room personnel.

Employees must be reimbursed for all wages lost as a result of their inability to work due to isolation, treatment and recovery associated with the disease. Payment must be at the employee’s normal rate and cover the days the individual would have worked had he or she not contracted the disease; this estimate must be based on the average number of days the employee worked per week during the three months prior to infection. The employer must also provide reimbursement for medical expenses related to treatment, or provide needed care at its own facility at no cost to the employee.

The exception for employees covered by a collective bargaining found in the city’s existing paid sick leave law does not apply to these benefits.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

2021 Statutory Disability and Paid Family Leave Updates

Massachusetts Paid Family and Medical Leave (MA PFML)

On October 2 the Department of Family and Medical Leave (DFML) announced that for 2021 the contribution percentage will remain .75% of employees’ wages, and the maximum weekly benefit amount will remain the previously communicated amount of $850.

New Jersey Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI)

New Jersey’s Department of Labor and Workforce Development (LWD) recently posted benefit maximums and wage base information for 2021 NJ TDI and NJ FLI. Contribution rates are expected 4th quarter. 

  July 1, 2020 January 1, 2021
Benefit Duration TDI: 26 weeks

FLI: 12 weeks

No change
Benefit Percentage 85% No change
Maximum Weekly Benefit $881 $903
State Average Weekly Wage (SAWW) $1,259.82 $1,291.42
Employee Taxable Wage Base $134,900 $138,200
Employee Contribution Rate TDI: .26%

FLI: .16%

Expected November per LWD website
Maximum Annual Contribution TDI: $350.74

FLI: $215.84

Employer Taxable Wage Base $35,300 $36,200
Alternative Earnings Test Amount $10,000 $11,000
Base Week Amount $200 $220

New York Paid Family Leave (NY PFL)

On September 1 New York’s Department of Financial Services (DFS) released the contribution rate for NY PFL for 2021.  The new rate is markedly higher than the current rate, partially due to the inclusion of a .005% “risk adjustment” for COVID-19 claims paid according to Chapter 25 of the Laws of 2020 (S8091, or NY COVID-19 Emergency Paid Sick Leave). Below are the NY PFL benefit and contribution rates and maximums for the upcoming year; no changes are anticipated for NY State Disability (NY DBL).

  January 1, 2020 January 1, 2021
Benefit Duration 10 weeks 12 weeks*
Benefit Percentage 60% 67%
State Average Weekly Wage (NYSAWW) $1,401.17 $1,450.17
Maximum Benefit $840.70 $971.61
Employee Contribution Rate .270% .511%
Maximum Annual Contribution $196.72 $385.34

* The maximum duration of NY DBL and NY PFL benefits combined will remain 26 weeks in a 52-week period.

More information, including the 2021 version of the required Statement of Rights (PFL-271S), may be found on the state’s Updates for 2021 webpage. 

California Leave Legislation

Following the wrap-up of the California legislative session on August 31, the governor of California approved several bills impacting the state’s leave laws:

    • SB1383 (September 17): Repeals and replaces the California Family Rights Act (CFRA) (Cal. Gov. Code 12945.2) and the New Parent Leave Act (§12945.6) effective January 1, 2021:
  CFRA effective January 1, 2021
Covered Employers

Any person who directly employs 5 or more persons to perform services for a wage or salary, including the state, and any political or civil subdivision of the state and cities

Currently CFRA applies to employers with 50 or more employees employed within 75 miles – the radius has been removed entirely. Lowering this threshold removed the necessity for the New Parent Leave Act, hence the repeal.

Employee Eligibility 1,250 hours worked in the 12 months prior to leave*
Leave Entitlement

12 weeks in a 12-month period

The 12-week combined maximum for parents employed by the same employer has been removed – each parent is entitled to 12 weeks.

Employment Protection

Required

The “key employee” exclusion for reinstatement was removed.

Leave Reasons
  • Employee’s own Serious Health Condition, except for leave associated with disability due to pregnancy, childbirth, or related medical conditions;
  • To bond with a new child following birth or placement for adoption or foster care;
  • To care for a Covered Family Member with a Serious Health Condition;
  • Qualifying Exigency related to active duty or call to active duty of an employee’s spouse, domestic partner, child, or parent in the US Armed Forces (new).
Covered Family Members Spouse, domestic partner, child of any age (previously under age 18 or 18 or older and incapable of self-care), parent, employee’s grandparent or grandchild, sibling (new)

Child and Parent relationships include step, by adoption, foster, legal ward/guardian and in loco parentis. Child relationship also includes a domestic partner’s child.

Pay Unpaid. The employee may elect, or the employer may require, use of accrued paid time off. Employee may not use accrued sick time for bonding or to care for an ill family member unless the employee and the employer mutually agree.
Notice to Employer Reasonable advance notice for foreseeable need; employee should make a reasonable effort to schedule leave so as not to minimize disruption to the employer’s operations.
Certification May be required. Employer may also request fitness for duty certification for employee to return to work following leave for his or her own Serious Health Condition.
Maintenance of Group Health Benefits Required for an employee taking leave under CFRA or FMLA at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously.
Use and Interplay with Other Leaves
  • CFRA leave may be taken in one block of time or intermittently.
  • The 12-month period during which CFRA leave may be taken runs concurrently with the 12-month period under FMLA, and begins the date FMLA leave begins.
  • CFRA leave runs concurrently with FMLA leave, except for FMLA leave taken for disability due to of pregnancy, childbirth, or related medical conditions. An employee is entitled to take, in addition to the leave provided under CFRA and the FMLA, California Pregnancy Disability Leave (Cal. Gov’t Code §12945), if the employee is otherwise qualified for that leave.
  • Note: Because CFRA now includes more family members not covered by FMLA, there is increased potential for an employee to use CFRA to care for one of these family members (e.g., grandparent, grandchild or sibling) and still have 12 weeks entitlement for another qualifying leave under FMLA.
Collective Bargaining Agreements No change required during the life of an existing contract.
Employee Notification An updated poster is expected from DFEH.
Additional Information AB1867 (the COVID-19 SPSL requirements of which are summarized earlier in this Update) directs the establishment of a new “small employer family leave mediation pilot program”, which, in the event of a CFRA dispute or report of violation, would authorize the employer or the employee to request all parties to participate in mediation through the DFEH’s dispute resolution division. This provision will be repealed on January 1, 2024.

* Individuals employed by an air carrier as a flight deck or cabin crew member are eligible if they have (1) more than 12 months of service with the employer; (2) worked or been paid for 60 percent of the applicable monthly guarantee (as defined), or the equivalent annualized over the preceding 12-month period; and (3) worked or been paid for a minimum of 504 hours during the preceding 12-month period.

    • 2018’s SB1123 expanded the California Paid Family Leave (CA PFL) law by adding qualifying exigency related to the covered active duty or call to active duty of an employee’s spouse, domestic partner, child or parent in the US Armed Forces to the reasons for leave, effective January 1, 2021 AB2399, signed on September 30, officially amends CA UIC §3302 to add the definition of “military member” and revise the existing definitions of “care recipient”, “care provider”, and “family care leave”.
    • AB2017 (September 28) amends the California Kin Care law (CA Labor Code §233) to state that the designation of paid sick leave taken under the law is at the sole discretion of the employee. The Kin Care law requires that if an employer provides paid sick leave to employees, employees must be permitted to use an amount of not less than 6 months of accrual to care for a family member (see 246.5 for recognized reasons for sick leave use). Employers are encouraged to review their sick leave policies to ensure that employees are aware of their right to designate this time.
    • AB2992 (September 28) amends CA Labor Code 230 and §230.1, which provide employment protections to employees who are victims of domestic violence, sexual assault, or stalking, to also cover victims of any crime “that caused physical injury or that caused mental injury and a threat of physical injury.”  The bill defines the term “victim”, which includes a person whose immediate family member dies as the direct result of a crime.

Connecticut Paid Family and Medical Leave (CT PFML) Update

The Connecticut Paid Family and Medical Leave Insurance Authority (CT PFMLIA) has released information on the CT PFML website in preparation for the commencement of employee contributions on January 1, 2021

    • The CT PFML program is designed to be fully funded by employee contributions. Employers may contribute on their employees’ behalf, but are not required to do so.
        • The contribution amount is .5% of employee earnings, which include, but are not limited to, wages, vacation and holiday pay, tips, commissions, bonus, and severance pay (see wages definitions in subsection (b) of CT Gen Stat § 31-222). Maximum earnings subject to taxation is based on the Social Security contribution base ($142,800 in 2021).
        • Contributions must be remitted to the state quarterly, with the first payment due by March 31, 2021.
    • Beginning in November 2020, covered employers will need to register with the CT PFMLIA to establish their accounts. Instructions for doing so are being developed on the Employer webpage (see bottom of page for options).
    • Benefits begin January 1, 2022:  Employees may take up to 12 weeks to care for their own or a covered family member’s serious health condition, to serve as an organ or bone marrow donor, to bond with a new child, to care for an ill or injured service member, or because of a qualifying exigency.  An additional 2 weeks may be available in the event of incapacitation during pregnancy.  Up to 12 days of leave are available to address needs associated with family violence.
    • Benefit Amount: Weekly benefits will equal 95% of the employee’s base weekly earnings* up to an amount equal to 40x the state minimum wage** plus 60% of the employee’s base weekly earnings above 40x the state minimum wage, to a maximum of 60x the state minimum wage.

* Base Weekly Earnings: amount equal to 1/26, rounded to the next lower dollar, of a covered employee’s total wages earned during the two quarters of the covered employee’s base period in which such earnings were highest. Base Period: the first four of the five most recently completed quarters.

** The state minimum wage will be $13.00 in January 2022, $14.00/hour on July 1, 2022, and $15.00/hour on June 1, 2023.  Weekly benefit maximums will be $780, $840 and $900, respectively.

    • Notice to Employees: Beginning July 1, 2022, employers must, at the time of hiring and annually thereafter, provide written notice to each of their employees outlining their benefits, rights and responsibilities under the CT PFML law.

Note that, while the law itself does not impose notification requirements until that time, employers may want to inform employees prior to withholding contributions January 1, 2021.

    • The CT Paid Leave Authority is developing the process for applying for exemption via Private Plan.  Private plans must meet or exceed all of the benefits and requirements established under the state program, and must be approved by a majority vote of the employer’s employees. Employers wishing to explore this avenue are encouraged to monitor the exemption webpage for updates.
    • Further guidance is expected from CT PFMLIA in the coming months.

More information may be found on the Employer, Employee and Third Party Administrator pages of the CT PFML website; resources include employer and employee fact sheets, plus FAQ.

Hawaii Family Leave Law Expanded

On September 15 the governor of Hawaii signed HB 2148, which expands the state’s Family Leave Law (HFLL) to include grandchildren as covered family members effective July 1, 2020.  The bill also adds the definition of “sibling”, which became a covered relationship in 2017.

Maine Earned Employee Leave Act Rules

Maine’s Earned Employee Leave Act (S.P.110/L.D.369, now 26 MRS §637) becomes effective January 1, 2021.  Below is a summary of the law’s provisions and requirements, which includes guidance provided by the final rules issued by the Maine Department of Labor (MDOL) on September 14 and recently posted FAQ.

Applies to:

      • Employers as defined in 26 MRS §1043(9) with more than 10 employees in Maine for more than 120 days in any calendar year.
          • Excludes employment in a seasonal industry.
          • For the sole purpose of determining the accrual of earned paid leave for construction workers, the term “employer” includes all covered employers bound by a collective bargaining agreement negotiated by a multiemployer bargaining unit.
      • All employees engaged in employment as defined in 26 MRS §1043(11), including part-time and per diem employees.
          • Excludes independent contractors and employees covered by a collective bargaining agreement during the period between January 1, 2021 and the expiration of the agreement. New contracts negotiated after January 1, 2021, must include Earned Paid Leave as a benefit.

Entitlement: 

      • Employees accrue 1 hour of paid leave for every 40 hours worked, up to 40 hours per year, beginning the later of the Act’s effective date or the employee’s date of hire.  Exempt employees are assumed to work 40 hours per week.
      • Employers may frontload 40 hours of paid leave at the beginning of the calendar year or on the employee’s anniversary date.

Pay:  Employees must be compensated for leave at their regular rate of pay, as defined in 26 MRS §664(3), which includes bonuses and commissions. The base rate will be calculated by reference to the week immediately prior to the leave taken.

Use:

      • Paid leave may be used after the employee has been employed for 120 calendar days during a one-year period.
      • Accrued leave may be used for any reason.
      • Leave may be used in increments of 1 hour unless the employer allows for smaller increments of time.
      • Employees may use up to 40 hours of accrued paid leave per year, though employers may allow a higher limit.
      • An employer cannot require an employee to use accrued paid leave when the employer causes the employee to be unable to perform their job, such as by closing the business or cancelling a shift.
      • Notice to Employer: Absent an emergency, illness or other sudden necessity for taking earned leave, an employee must give reasonable notice to the employee’s supervisor of the employee’s intent to use earned leave. An employer may have a written policy requiring up to 4 weeks’ notice for foreseeable leave. Use of leave should be scheduled to prevent undue hardship on the employer as reasonably determined by the employer.
      • Documentation:  An employer may require a general description of the need for leave, however unless the leave is for more than three consecutive days, the employer cannot require a medical note or other documentation. 

Carryover: Employees may carry over up to 40 hours of accrued but unused time from one year to the next.  Regardless the number of hours carried over from the previous year, hours are only required to accrue up to 40 hours in the current year.

Termination and Rehire Provisions:

      • Payout of accrued but unused time at termination is required if terms of employment or the employer’s established practice includes provisions to pay the balance of unused earned paid leave at the time of separation.
      • Unused time must be reinstated if the employee is rehired within 1 year and the time was not paid out at termination.

Existing Policies:  If an employer has a policy that grants covered employees paid time off in an amount and with the same reasons for leave and use provisions as the Act the employer is not required to provide additional paid leave

Note: If the employer’s policy provides more than 40 hours of leave to full-time employees, it only needs to meet the characteristics of the Earned Employee Leave Act for 40 hours of leave. For example, the employer may allow 40 hours of leave for any reason but allow additional time that may only be used with advance notice (e.g., vacation time).

Notice to Employees: Employers must display a poster in a place accessible to all employees.

Preemption: The Act preempts municipalities or other political subdivisions from enacting ordinances or other rules regulating earned paid leave

New York City Earned Sick and Safe Time Amended

On September 28 the mayor of New York City signed a bill (INT 2032-2020, now Local Law No. 97), intended to better align the city’s Earned Safe and Sick Time Act (ESTA) (NY City Admin Code Title 20, Chapter 8) with the paid sick leave law recently enacted by the state (see our September 1 and prior Updates noted for details on NY PSL).  The following changes to NYC ESTA are effective September 30 (note that only the sections that changed are referenced here):

  Prior to September 30, 2020 Effective September 30, 2020
Covered Employees Employees and domestic workers employed within the city for more than 80 hours in a calendar year who perform work on a full-time or part-time basis. 80 hour requirement removed
Covered Employers All employers that employ 5 or more employees, and all employers of one or more domestic workers. Added: Any employer with 4 or fewer employees that had a net income of $1 million or more during the previous tax year.
 

 

Entitlement/Accrual

Beginning date of hire, one hour of safe/sick time for every 30 hours worked by an employee, up to 40 hours per calendar year.

Employers with 4 or fewer employees must provide unpaid time.

 

Separate/different entitlement for domestic workers.

 

Beginning date of hire, one hour of safe/sick time for every 30 hours worked by an employee, up to the following maximums:

  •  Employers with 4 or fewer employees and a net income of greater than $1 million in the previous tax year*, employers with one or more domestic workers, and employers with between 5 and 99 employees: 40 hours per calendar year;
  • Employers with 100 or more employees: 56 hours per calendar year.

* Employers with 4 or fewer employees that had a net income of less than $1 million during the previous tax year must provide unpaid time.

Separate/different domestic worker entitlement removed.

Use Employees may use safe/sick time after 120 days of employment.

Employers may limit use to 40 hours per year.

Employees may use safe/sick time as it is accrued, except that:

  • Employees of any employer with 4 or fewer employees that had a net income of $1 million or more during the previous tax year may use paid safe/sick time as it is accrued on or after January 1, 2021.
  • Employees of any employer with 100 or more employees may use any accrued amount of paid safe/sick time that exceeds 40 hours per calendar year on or after January 1, 2021.

Annual use maximums are the same as accrual maximums above.

Carryover Except for domestic workers, up to 40 hours of unused safe/sick time may be carried over to the following calendar year.

Carry over is not required if employer pays out unused safe and sick leave and employees are provided with an amount of paid safe and sick leave that meets or exceeds the requirements of the law for the new calendar year on the first day of the new calendar year.

  • Employees of any employer with 99 or fewer employees: up to 40 hours
  • Employees of any employer with 100 or more employees: up to 56 hours

Carry over is not required if employer pays out unused safe and sick leave and employees are provided with an amount of paid safe and sick leave that meets or exceeds the requirements of the law for the new calendar year on the first day of the new calendar year

Documentation May be required for absences in excess of 3 consecutive workdays. An employer may not require that such documentation specify the nature of the employee’s or the employee’s family member’s injury, illness or condition, except as required by law. May be required for absences in excess of 3 consecutive workdays. An employer may not require that such documentation specify the nature of the employee’s or the employee’s family member’s injury, illness or condition, except as required by law. Where a health care provider charges an employee a fee for the provision of documentation requested by their employer, such employer shall reimburse the employee for such fee.
 

 

Notice of Rights

  • Written notice of rights and responsibilities under the law upon the employee’s commencement of employment, in English and the primary language spoken by the employee.
  • Notice must also be conspicuously posted at an employer’s place of business in an area accessible to employees.
Added:

  • Employees who were already employed prior to the effective dates of provisions of this chapter establishing their right to safe/sick time, such notice must be provided within 30 days of the law’s effective date.
  •  The amount of safe/sick time accrued and used during a pay period and an employee’s total balance of accrued safe/sick time must be noted on a pay statement or other form of written documentation provided to the employee each pay period. Employers have until November 30 to comply with this requirement.

An updated model notice will be made available on the city’s website.

 

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Legislation, MA PFML Private Plans, NY Paid Sick Leave & More

September 1, 2020

COVID-19 Leave Legislation

Federal Legislation

Families First Coronavirus Response Act (FFCRA) Updates
  • New York Ruling: On August 3 the U.S. District Court for the Southern District of New York (“the Court”) issued a ruling that invalidates four limitations of FFCRA paid leave eligibility outlined in the Department of Labor’s (DOL) April 1 regulations:
      • Work Availability: The DOL regulations indicate that for some qualifying reasons for Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML) the employer must have work available (i.e., the employee would miss paid work time). The Court found this illogical and the DOL’s reasoning deficient, and struck down the entire requirement. This effectively expanded the pool of employees eligible for FFCRA leave to those who have been furloughed.
      • Health Care Provider Exclusion: The Court determined that the DOL exceeded its authority in expanding the definition of “health care provider” from being based on an employee’s job duties (as under FMLA, and borrowed by FFCRA) to being based on the employer’s operations, thereby excluding a large number of individuals from FFCRA leave eligibility.
      • Employer Consent for Intermittent Leave: The DOL’s regulations allow that intermittent leave be taken under certain circumstances, but only with the employer’s consent.  The Court agreed that intermittent leave may be at the employer’s discretion in instances where the employee’s presence in the workplace might pose a threat to the health of other employees, but concluded that employer consent for other leave reasons is unreasonable.
      • Documentation Requirements: The DOL’s regulations state that employers may require documentation before an employee is permitted to take EPSL or EFML, which the Court found inconsistent with what the law itself states.

It is unclear whether the ruling applies to employers nationally or only to those in New York, and it remains to be seen how the DOL will respond. Employers should consult with legal counsel before deciding how to apply the ruling for their workforce.

For more details, see the Compliance Alert released by MMA’s Compliance Center of Excellence on August 14: The Empire State Strikes Back.

  • Back to School: On August 27 the DOL issued new Q&A regarding the use of leave provided under FFCRA while children are returning to school.  Essentially, employees may use FFCRA leave (Emergency FMLA or Emergency Paid Sick Leave) for days or portions of days during which their child is not scheduled to attend school in person and the employee needs the leave to assist with remote learning (i.e., the school is considered “closed” to the child when only remote learning is available). However, if it is the parent’s choice for his or her child not to attend school during designated in-person periods, this does not qualify for FFCRA leave (i.e., the school is not “closed”) (see #98-100 for the full guidance).

State and Local Legislation

Emergency Paid Sick Leave (EPSL)

In August Sonoma County, CA and the state of Washington have joined the list of jurisdictions enacting emergency measures providing paid leave to workers impacted by COVID-19. Below is an overview of the provisions of these new laws.

Please also see our updated side-by-side comparison of Emergency Paid Sick Leave laws in California, Colorado, the District of Columbia, Nevada, New York and Washington.

Sonoma County, CA

Washington State

Supplemental Paid Sick Leave

Food Production Workers Paid Leave

Link to Law/Ordinance

Effective Date

8/18/20 - 12/31/20,
unless FFCRA is extended

8/13/20 - termination or the expiration of Proclamation 20-25 (State of Emergency)

Employers may not operate between 8/18 and 11/13/20 unless they provide this leave

Employers

500+ employees nationally; excludes government agencies

Food production employers operating orchards, fields, dairies, fruit- and vegetable-packing warehouses, meat and seafood processors and packers, certain farm labor contractors, and other specified industries

Eligible Employees

Employees who have worked at least 2 hours within the geographical boundaries of unincorporated Sonoma County.

Does not exclude emergency responders and healthcare workers; however, an employer may deny these individuals leave for school/care closures if staffing needs dictate.

Food production workers, including domestic workers (including those living in WA), seasonal or migrant workers as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and foreign workers lawfully present in the US to perform agricultural labor or services on a temporary or seasonal basis. Workers do not need to be classified as employees to be covered. Excludes workers covered by FFCRA.

Collective Bargaining Agreement Exception

Not specified

Not specified

Benefit - Time Available

FT (40h/wk): 80 hours
Other: 2-week average over the past 6 months

FT or scheduled to work at least 40 hours in the 2 weeks preceding leave: 80 hours
PT or scheduled to work fewer than 40 hours in the 2 weeks preceding leave: the number of hours normally scheduled during a 2-week period or, if the worker's schedule varies, 14 times the average number of hours worked each day in the period preceding leave.

Benefit - Pay

100% pay
Max $511/day, $5,110 total

$10.75/hour

Quarantine ordered by public official or healthcare provider

Yes

Yes

Experiencing symptoms and seeking medical treatment

Yes

Yes

Underlying health condition or over age 65

Not specified

Yes

Care for family member who is sick and/or under official or healthcare provider-directed quarantine

Quarantine or Illness

No

Care for family member whose school or care facility is closed

Yes

No

Worksite closure due to official public health order or recommendation

No

No

Documentation

An employer may request the basis for SPSL but may not require employees to furnish a doctor's note or other documentation.

Not specified

Employer Offset

SPSL is in addition to any paid time off available to an employee under the California Paid Sick Leave law as well as any preexisting paid time off (vacation, sick and/or PTO) provided to employees prior to March 16, 2020, subject to the below potential offsets. An employer may not require an employee to use any other paid or unpaid leave, sick pay, paid time off, or vacation time provided by the employer to the employee before the employee uses SPSL.

If an employee has at least 80 hours of accrued paid sick leave benefits as of August 18, 2020, or at least 160 hours of a combination of paid sick leave, vacation and PTO paid time off benefits (“Accrued Leave Benefits”), the obligation to provide SPSL will be considered satisfied. If accrued paid sick leave benefits afforded employees as of August 18 are less than 80 hours, or Accrued Leave Benefits are less than 160 hours, an employer is required to furnish SPSL to the extent of such deficiency.

For Full-Time workers (as defined above) employers must substitute this paid leave with any other paid sick leave provided (including WA statutory paid sick leave) if that leave is immediately and similarly available.

Notice to Employees

Notice posted in English and Spanish in the workplace, on any intranet or app-based platform, or via email.

It is not clear whether a model notice will be provided by the county.

None stated

Additional EPSL Updates

District of Columbia

On August 19 the District of Columbia passed the Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (B23-0869, now D.C. Act 23-405), which is yet another in a series of recent emergency measures covering multiple topics including unemployment insurance, employee leave, small business grants, consumer protections, housing, health and human services, education and public safety. The Act restates the temporary D.C. Family and Medical Leave Act (DC FMLA) and Accrued Sick and Safe Leave Act (ASSLA) requirements previously enacted (see our July 1 and July 31 updates for details). 

D.C.’s Office of Human Rights (OHR) posted updated versions of their guidance and model notice on its website on August 25. Employers subject to DC FMLA, as well as those temporarily covered for COVID-19 leave, are required to inform employees of new rights under the law. Notice must be posted in a conspicuous place and provided to eligible employees; electronic means are acceptable for employees working remotely.

Nevada COVID-19 Employer Liability Immunity and Hospitality Industry Worker Protections

On August 11 the governor of Nevada signed SB4 which, effective retroactively to August 5, provides immunity for certain employers* against civil liability claims arising from COVID-19 exposure, provided that those employers have complied with established health and safety protocols. 

The bill also requires that the Nevada Department of Health and Human Services issue regulations for “public accommodation facilities” in counties with 100,000 or more residents (currently Clark and Washoe Counties) to reduce and prevent the transmission of COVID-19 during the public health emergency. “Public accommodation facilities” include hotels, casinos, bed and breakfasts, and other facilities offering rooms and areas to the public in return for monetary compensation.

Included in the requirements for worker safety are COVID-19 testing for those returning to work after March 13, 2020, daily temperature checks, and that, upon becoming aware of a guest’s or staff member’s positive COVID-19 diagnosis, the employer notify each employee known to have been in close contact with the individual as soon as practicable, but no later than 24 hours, after the employer learns of the diagnosis.  Employees who have been in close contact with someone who has been positively diagnosed, or who are experiencing symptoms of COVID-19, must be provided up to 3 days of paid time off to undergo testing and await testing results, and additional paid time with documentation of a delay in testing. Employees who receive a positive diagnosis of COVID-19 must be allowed at least 14 days off, 10 of which must be paid. This time off is in addition to any other leave to which the employee may be entitled, but may be deducted from leave for the employee’s own health needs provided under FFCRA’s Emergency Paid Sick Leave Act (EPSLA) (5102(a)(1)-(3)).

* Includes private employers, private non-profit organizations and state government agencies, with the following exclusions: (1) Hospitals, independent emergency care centers, and businesses that provide in-home nursing care or operate hospice care, intermediate care, or skilled nursing facilities; and (2) Public school entities for children in preschool, kindergarten or grades 1 through 12.

Worker Protections

Michigan Worker Protections

On August 27 the governor of Michigan issued Executive Order 2020-172, “Protecting workers who stay home, stay safe when they or their close contacts are sick”. Effective immediately, the Order applies to any employer subject to the Paid Medical Leave Act (the state’s accrued sick and safe time law), but includes employers with fewer than 50 employees, and states that employees may not be discharged, disciplined, or otherwise retaliated against for staying home when they are at risk of infecting others with COVID-19.

        • An employee who tests positive for or who displays the principal symptoms* of COVID-19 should remain at home (apart from seeking medical care) until 24 hours have passed since the resolution of fever without medication, 10 days have passed since symptoms appeared or since the employee was swabbed for the test yielding a positive result, and other symptoms have improved.
        • An employee** who has been in close contact with (defined as within 6 feet for 15 minutes of) someone who tests positive for or is displaying the principal symptoms* of COVID-19 should remain at home (apart from seeking medical care) until either 14 days have passed since contact or the individual displaying symptoms receives a negative COVID-19 test result. 

* The “principal symptoms of COVID-19” are defined in the order as (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain./

** Does not apply to the following classes of employees provided that their employers’ rules governing occupational health allow them to go to work: healthcare professionals, health care facility workers, first responders, child protective services employees, workers at child care and adult care facilities, and correctional facility workers.  

        • Employees must be treated as though they are taking medical leave under the Paid Medical Leave Act. However, leave length may not be limited by hours accrued and must extend the length of time as required by the Order. Employers may deduct accrued paid time; if paid time has been exhausted, the leave may be unpaid.
        • Employers are not prohibited from disciplining or discharging an employee who is allowed to return to work under the Order but declines to do so. In addition, any employee who voluntarily returns to work before the timeframes noted above have been satisfied is not entitled to the Order’s protections.

The Order replaces Executive Order 2020-166, issued August 7, which replaced Executive Order 2020-36 (covered in our April 17 update).

Washington Protections for High-Risk Individuals

On July 29 the governor of Washington announced via Proclamation 20-46.2 that the protections for individuals at higher risk for severe illness from COVID-19 established by Proclamation 20-46 (covered in our May 1 update) will be continued for the duration of the current State of Emergency.  Proclamation 20-46.2 was accompanied by a guidance memo, which states that, effective July 29, the Proclamation’s provisions apply only to:

        • Employees age 65 and older;
        • Employees whose conditions are listed by the Centers for Disease Control and Prevention (CDC) under the “at increased risk” category; and
        • Employees whose conditions are listed by the CDC under the “might be at increased risk” category, but only if, based on the employee’s medical circumstances and workplace conditions, the employee is, in fact, at increased risk for suffering severe illness from COVID-19.

Employers may not require medical certification from older adults or employees who fall within the “at increased risk” category. They may require medical certification when the employee either falls within the “might be at an increased risk” category or seeks to use any leave where a state or federal law, collective bargaining agreement, or contractual obligation separately requires verification (e.g., FFCRA, employer leave, state paid sick leave or unemployment insurance).

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Georgia Lactation Accommodation

On August 5 the governor of Georgia signed HB1090 (now Act 595), which amends GA Code §34-1-6 for private employers and adds a new section (§45-1-7) for public employers. The Act strengthens existing law by requiring that break time for breast milk expression be paid at the employee’s regular rate of pay, by mandating that employers provide a private location for expression of milk, and by removing the requirement that these breaks run concurrently with existing break periods. However, employers are not required to provide paid break time to an employee on any day that the employee is working away from any of the employer’s worksites.

The Act was effective immediately upon signing and applies to all employers; private employers with fewer than 50 employees may be excluded if the requirements present undue hardship.

Massachusetts Paid Family and Medical Leave (MA PFML) Private Plan Exemption Renewals

Massachusetts’ Department of Family and Medical Leave (DFML) has released guidance around renewal of approved Private Plans:

    • Self-Insured Private Plan exemptions effective October 1, 2019, expire on September 30, 2020.  Renewal applications may be submitted via MassTaxConnect between August 30 and September 30, 2020, and must include the following:
    • Fully Insured Private Plan exemptions effective October 1, 2019, expire on December 31, 2020. Renewal applications may be submitted via MassTaxConnect between November 30 and December 31, 2020, and must include the policy form number included on the Insurance Declaration Document, which will be provided by the insurance carrier. The Massachusetts Department of Insurance is currently working through approvals of insurance carrier policy filings, which likely explains this extension.
      • Employers wishing to renew their current exemption but switch to a self-insured plan may do so beginning on October 1, 2020, by logging into MassTaxConnect and completing the renewal application.
    • Employers who do not intend to renew their exemption may contact the MA PFML Contact Center at 617-466-3950, or send a message through MassTaxConnect

For more information on MA PFML exemption via private plan please visit the MA PFML website.

Reminder: New York Paid Sick Leave Accrual Begins September 30!

Beginning September 30 New York employees must accrue 1 hour of paid sick and safe leave for every 30 hours worked.  Employees may use accrued time starting January 1, 2021, for their or a covered family member’s needs associated with medical care or due to domestic violence, sexual offense, stalking or human trafficking.  Please see our March 25 and April 8 updates for more details. Note: it is expected that the New York Department of Labor will issue regulations and/or guidance, but none have yet been released.

Puerto Rico Working Mothers Protection Act Amendment

On August 8 the governor of Puerto Rico signed HB2424 (available only in Spanish), which immediately amended the Working Mothers Protection Act to provide 5 weeks of paid benefits to female employees adopting a child age 6 years or older. Leave begins the day the child joins the family, regardless whether the adoption has been finalized.  Employees must provide 30 days notice of the need for leave, provide documentation, and communicate their plans for return to work. The Act does not make changes to the current adoption benefit of 8 weeks for children age 5 and younger.

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Emergency Paid Sick Leave, FMLA Forms, CO Paid Sick Leave, MA PFML Regs and More

July 31, 2020

State and Local COVID-19 Emergency Paid Sick Leave Legislation

Please view our side-by-side comparison of Emergency Paid Sick Leave (EPSL) laws in California, Colorado, the District of Columbia, New York and Seattle, WA.

California Local Emergency Paid Sick Leave Ordinances

Earlier this month Sacramento, San Mateo County and Santa Rosa joined six other California localities, as well as the state, in enacting emergency measures providing paid sick leave to workers impacted by COVID-19. Below is an overview of the provisions of these new ordinances.

Sacramento

San Mateo County

Santa Rosa

Sacramento Worker Protection, Health, and Safety Act
Supplemental Paid Sick Leave
Supplemental Paid Sick Leave
Temporary Sick Leave

Link to Law/Ordinance

Effective Date

7/15/20 - 12/31/20

7/8/20 - 12/31/20

7/7/20 - 12/31/20

Employers

500+ employees nationally (not subject to FFCRA's EPSLA)

500+ employees nationally; excludes federal, state and local government agencies

500+ employees nationally; excludes government employers
Employers under 50 employees who qualify for exemption from FFCRA are not required to provide leave for child care due to school/care closure.

Eligible Employees

All employees who perform work in the city who cannot work or telework
Employers may exclude first responders and healthcare workers

Employees who have performed any work within the unincorporated areas of San Mateo County since January 1, 2020; excludes food sector workers covered under California Supplemental Paid Sick Leave (Executive Order N-51-20)
Employers may limit use by emergency responders, healthcare workers and aviation security workers except for employee's own health needs

Employees who have worked at least 2 hours in the city and perform "Allowed or Essential Work" permitted in Orders issued by the Sonoma County Public Health Officer

Collective Bargaining Agreement Exception

Not specified

With expressed clear waiver

Not specified

Benefit - Time Available

FT: 80 hours
Other: 2-week average during 6 months prior to 7/15

FT: 80 hours
Other: 2-week average between 1/1 and 7/7

FT: 80 hours
Other: 2-week average

An employee who works part of his or her hours within the city limits is entitled to paid sick leave hours equal to the number of hours he or she works on average over a two -week period in the city

Benefit - Pay

Own leave: 100% pay; max $511/day, $5,110 total

Family care: 66 2/3% pay; max $200/day, $2,000 total

100% pay
Max $511/day, $5,110 total

100% pay
Max $511/day, $5,110 total

                                                                                Specified Reasons for Use 

Quarantine ordered by public official or healthcare provider

Yes

Yes

Yes

Experiencing symptoms and seeking medical treatment

Yes

Yes

Yes

Underlying health condition or over age 65

Yes

Not specified

Yes

Care for family member who is sick and/or under official or healthcare provider-directed quarantine

Quarantine

Quarantine or Illness

Quarantine

Care for family member whose school or care facility is closed

Yes - minor children only

Yes

Yes - minor children only

Worksite closure due to official public health order or recommendation

Yes

No

No

Documentation

An employer
may request the basis for SPSL; provided, however, that a doctor’s note or other documentation is not required.

An employer may request information supporting an employee’s request for Supplemental Paid Sick Leave, as provided in the FFCRA or in the applicable regulations or guidance issued by the US Department of Labor.

Only specifies that for an employee or family member instructed to isolate "a written note from a medical provider is not required".

Employer Offset

- SPSL is in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement

- An employer may not require an employee to use other accrued paid sick
leave, paid time off, or vacation time before using SPSL

- If an employer has granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020 specifically for use for COVID-19-related matters, the employer may use those leave hours as a credit against the number of SPSL hours required by this section.

- Employers that provide paid leave under California Supplemental Paid Sick Leave (Executive Order N-51-20) are permitted to offset that leave.

- SPSL is in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement

- An employer may not require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL

- If an employer has granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020 specifically for use for COVID-19-related matters, the employer may use those leave hours as a credit against the number of SPSL hours required by this section.

- Employers that provide paid leave under California Supplemental Paid Sick Leave (Executive Order N-51-20) are permitted to offset that leave.

- SPSL is in addition to and independent of any form of leave (e.g., vacation, sick, or personal leaves) to which an employee may be entitled to utilize pursuant to the employer’s policies.

- An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before or in lieu of SPSL.

- If an employer provided additional paid leave specifically for COVID-19 related purposes (“Voluntary COVID-19 Leave”) above and beyond an employee’s regular or previously accrued leaves (e.g., sick or personal leaves) between March 17 and June 30, 2020, or provided supplemental leave pursuant to the laws of another jurisdiction requiring the provision of additional paid leave specifically for COVID-19 related purposes at any time, the obligation to provide SPSL may be reduced for every hour the employee was permitted to take such leave. If an employer provided Voluntary COVID-19 Leave to an employee at a rate of pay or hourly accrual rate less than that provided by SPSL, then such amounts or hours may be offset against such rates and hours as the employee would have received under SPSL.

- This ordinance is intended to provide additional COVID-related paid sick leave beyond what an employer normally provides.

- Does not apply to any employer that has provided its employees, as of July 7, 2020, with some combination of paid personal leave at least equivalent to the paid sick time required by this ordinance for a COVID-related leave. An employer that provides some combination of paid sick leave less than the paid sick time required by this chapter is required to comply with this chapter to the extent of such deficiency.

Notice to Employees

Notice of safety requirements only

None stated

None stated

Colorado Emergency Paid Sick Leave

On July 14, the governor of Colorado signed the Healthy Families and Workplaces Act (HFWA) (SB20-205).  Effective immediately, the law mandates that all employers in the state, regardless of size, provide employees with paid sick leave in the amounts and for the purposes specified by the Families First Coronavirus Response Act’s (FFCRA) Emergency Paid Sick Leave Act (EPSLA) (see our March 20 Update for additional EPSLA details):

Reasons for Use: The employee is unable to work (or telework) because he or she:

    1. is subject to a federal, state or local COVID-19 quarantine or isolation order;
    2. has been advised by a medical provider to self-quarantine due to COVID-19 concerns;
    3. is experiencing symptoms of COVID-19 and seeking medical diagnosis
    4. is caring for an individual who falls under numbers 1 or 2 above
    5. is caring for a son or daughter whose school has been closed, or whose care provider is unavailable, due to COVID-19 concerns
    6. is experiencing other substantially similar condition specified by the Secretary of Health and Human Services

Leave Entitlement:

    • Full Time Employees: 80 hours
    • Part-Time Employees: Number of hours that employee works on average over a two-week period
    • The total number of hours paid under Emergency Paid Sick Leave is capped at 80 over a two-week period.
    • With the exception of a workplace being closed due to a temporary government quarantine/isolation order, no paid leave applies if an entire business is completely closed, whether temporarily or permanently (i.e., in that event employees are not on “leave”, they are on furlough or layoff).

Benefit:

    • Reasons 1, 2 & 3 above: greatest of the employee’s regular rate of pay, federal minimum wage, state minimum wage, or local minimum wage
      • Maximum: $511 per day, up to $5,110 total
    • Reasons 4, 5 & 6 above: two thirds the employee’s regular rate of pay                                                                                                                                          
      • Maximum: $200 per day, up to $2,000 total

Employer Offset:

    • HFWA-required leave must be provided in addition to leave under an employer policy that existed prior to April 1, 2020, and an employee may first use HFWA-required paid leave before using any other leave under an employer policy that existed prior to April 1, 2020. (This is in accordance with FFCRA regulations 29 C.F.R. 826.160(a),(b); see also FFCRA FAQ #32.)
    • In response to our request for clarification, the Colorado Department of Labor and Employment (CDLE) responded that, “Compliance can be through a paid leave policy not limited to COVID-19 that an employer adopted on or after April 1, 2020, if it (A) provides the same quantity and pay rate of leave as HFWA, for all situations HFWA covers, and (B) lets employees take HFWA-required leave even if they already used their leave under the policy for other purposes (e.g., a vacation or a non-COVID-related health need)”.
        • CDLE Interpretive Notice & Formal Opinion (“INFO”) #6A states that if an employee ​already received paid leave in 2020 ​for any of the categories of​ COVID-related needs that HFWA covers, the employer can count this leave against HFWA leave requirements, regardless whether the leave was provided under federal law, state law, or its own policies.  However, if the prior leave was at ​less than full pay ​for a condition in categories 1, 2 or 3 (the categories HFWA requires ​full pay for),​ ​it ​counts toward the HFWA requirement with a discount​ for how much the pay was reduced (examples are included in the Opinion).
    • An employer that, under a collective bargaining agreement (“CBA”), already provides “equivalent or more” paid leave​, is exempt from other HFWA requirements, as long as the ways the CBA differs from HFWA would not​ diminish employee rights to “equivalent” paid leave. CBAs effective or renegotiated after HFWA’s effective date must expressly waive the law’s requirements, as well as provide equivalent or more generous leave.

Notice to Employees:  Employers must provide each employee written notice outlining HFWA’s rights and requirements, as well as display a poster in a conspicuous place accessible to all employees. Both must be provided in English and any language spoken by at least 5% of employees.

    • Distribution and posting may be managed electronically if the employer does not maintain a physical workplace or if employees perform work remotely or via a web-based platform.
    • The notice and posting requirements are waived during any period an employer’s business is closed due to a public health emergency.
    • Interpretive Notice & Formal Opinion (“INFO”) #6A may serve as the notice to employees and includes links to the poster and Spanish translations of both.

As under EPSLA, “reasonable” documentation may be requested, but the request may not interfere with the employee’s ability to take leave. Documentation may be required as soon as the employee can provide it.

These requirements are in effect until December 31, 2020.

Additional information and guidance may be found in Interpretive Notice & Formal Opinion (“INFO”) #6A. Employers are encouraged to consult the Division’s “INFOs” webpage for future updates.

HFWA terminates the paid sick leave requirements under the previously enacted Colorado Health Emergency Leave with Pay (“HELP”), in effect through July 14.

The law also implements accrued paid sick leave and public health emergency leave effective January 1, 2021; details are under Other Leave News below.

Additional EPSL Updates

Below are a few updates to COVID-19 laws reported in previous releases:

    • Correction: In our summary of Long Beach, CA’s COVID-19 Paid Supplemental Sick Leave the benefit percentage for leave associated with care for another person was inadvertently omitted. The correction to 66 2/3% has been made to the online version of the May 29 Statutory Update. We apologize for any confusion this oversight may have caused.
    • Under Oakland, CA’s COVID-19 Emergency Paid Sick Leave Ordinance (May 29 Statutory Update), employers must provide a notice outlining rights under the ordinance in a manner calculated to reach all employees (posting at the workplace, electronic distribution, and/or posting on an employer’s intranet) in any language spoken by at least 10% of employees. The poster/model notice has been made available on the city’s website.
    • San Francisco, CA’s Public Health Emergency Leave Ordinance (PHELO) (May 1 Statutory Update), originally set to expire mid-June, was extended by Ordinance No. 90-20, to August 16, 2020.
    • The District of Columbia’s Coronavirus Support Congressional Review Emergency Amendment Act (B23-0759/D.C. Act 23-328) and its accompanying Coronavirus Support Clarification Emergency Amendment Act (B23-0776/D.C. Act 23-332) were enacted on June 9. The Acts carry forward temporary changes made to the District’s Family and Medical Leave Act (DC FMLA) and Accrued Sick and Safe Leave Act (ASSLA) by the Coronavirus Support Emergency Amendment Act (“CSEA”, B23-0757/D.C. Act 23-326), and are effective for 90 days (see our July 1 Statutory Update for details on the changes). 

On July 7 the mayor signed the Coronavirus Support Temporary Amendment Act (B23-0758, now D.C. Act 23-334), which restates the temporary DC FMLA and ASSLA requirements.  The Act’s “projected” effective date is October 1.

July 6 Guidance from D.C.’s Office of Human Rights (OHR) states that employers subject to DC FMLA, as well as those temporarily covered for COVID-19 leave, are required to inform employees of new rights under the law. Notice must be posted in a conspicuous place and provided to eligible employees; electronic means are acceptable for employees working remotely. OHR has posted a model notice on its website.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Family and Medical Leave Act (FMLA) Forms

Earlier this month the Department of Labor’s (DOL) Wage and Hour Division (WHD) released updated versions of its FMLA model notices and certification forms (the Employee Rights poster has not been changed). Per the DOL’s July 16 news release, the new forms were redesigned using public feedback to help streamline the FMLA administration process.  The new forms, as well as Q&A regarding their use, may be found on the DOL’s website.

Colorado Paid Sick and Public Health Emergency Leave

In addition to emergency paid sick leave outlined above, Colorado’s Healthy Families and Workplaces Act (HFWA) (SB20-205) implements permanent paid sick and public health emergency leave requirements beginning January 1, 2021. The law adds Part 4 to Colorado Revised Statutes, Title 8, Article 13.3.

Accrued Paid Sick Leave

Effective Date:

    • January 1, 2021, for employers with 16 or more employees, and
    • January 1, 2022, for all other employers.

Applies to:

    • All employers as defined by C.R.S. §8-4-101, but includes the state and its entities, counties, cities, municipalities, school districts and political subdivisions.
    • Excludes the federal government.

All employees working in Colorado (as defined in C.R.S. §8-4-101).

Entitlement:

    • Employees accrue 1 hour of paid sick leave for every 30 hours worked, beginning the later of the Act’s effective date or the employee’s date of hire.  Exempt employees are assumed to work 40 hours per week.
    • Maximum accrual of 48 hours, though employers may select a higher limit.
    • In lieu of accrual, employers may provide the employee with an amount of paid sick leave that meets or exceeds the law’s requirements at the beginning of each year.
    • Employers may loan paid sick leave to an employee in advance of accrual.
    • With the exception of a workplace being closed due to a temporary government quarantine/isolation order, no paid leave applies if an entire business is completely closed, whether temporarily or permanently (i.e., in that event employees are not on “leave”, they are on furlough or layoff).
    • Regulations around paid sick leave requirements for fee-for-service employees are forthcoming.

Pay: Employees must be compensated for use of paid sick leave at their regular rate of pay or the applicable minimum wage, whichever is greater. Rate of pay does not include overtime, bonus or holiday pay.

Use:

    • Paid sick leave is available for use upon accrual.
    • Accrued leave may be used:
      • for the diagnosis or treatment of the employee’s or a Covered Family Member’s mental or physical illness or injury, or for preventive care;
      • for the employee’s or a Covered Family Member’s needs associated with domestic abuse, sexual assault or harassment, including counseling, relocation, and legal services.
      • due to a public health emergency where a public official has ordered closure of the employee’s place of business or of the employee’s child’s school or place of care.

“Covered Family Members” include:

          • anyone related to the employee by blood, marriage, civil union, or adoption;
          • a child to whom the employee stands in loco parentis or person who stood in loco parentis to the employee as a child; or
          • a person for whom the employee is responsible for providing and arranging health- or safety-related care.

Public Health Emergency” is defined as:

          1. an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which (a) an emergency is declared by a federal, state or local public health agency, or (b) a disaster emergency is declared by the governor; or
          2. a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.
    • Leave may be used in increments of 1 hour unless the employer allows for smaller increments of time.
    • Employees may use up to 48 hours of accrued paid sick leave per year, though employers may allow a higher limit.
    • Notice to Employer:
        • When the need for leave is foreseeable, employees should make an effort to (1) provide advance notice of the need for leave, and (2) schedule time off so as not to unduly disrupt the employer’s operations.
        • An employee’s request for leave may be verbal, in writing, electronic, or by any other means acceptable by the employer.
        • Employers may set forth reasonable notice requirements in a written policy, but may not deny paid sick leave to an employee based on noncompliance with such a policy.
    • Employers may request documentation for leave of four or more consecutive workdays, but may not require disclosure of details relating to domestic violence, sexual assault or stalking, or the details of an employee’s or a family member’s health information. 
    • Employers may not require an employee to find a replacement to cover time he or she is absent during use of paid sick leave.

Carryover: Employees may carry over up to 48 hours of accrued but unused time from one year to the next.  Employers may still limit use to 48 hours per year.

Termination and Rehire Provisions:

    • Payout of accrued but unused time upon separation of employment is not required.
    • Unused time must be reinstated if the employee is rehired within 6 months and the time was not paid out at termination.

Existing Employer Policies: Employers whose paid leave policies meet or exceed the law’s requirements for entitlement and use are not obligated to provide additional paid leave.

    • Any paid sick leave provided to an employee of a federal contractor under Executive Order 13706 may be considered paid sick leave under HFWA.

Collective Bargaining Agreements: An employer that, under a collective bargaining agreement (“CBA”), already provides “equivalent or more” paid leave​, is exempt from other HFWA requirements, as long as the ways the CBA differs from HFWA would not​ diminish employee rights to “equivalent” paid leave. CBAs effective or renegotiated after HFWA’s effective date must expressly waive the law’s requirements, as well as provide equivalent or more generous leave.

Notice to Employees:  Employers must provide each employee written notice outlining HFWA’s rights and requirements, as well as display a poster in a conspicuous place accessible to all employees. Both must be provided in English and any language spoken by at least 5% of employees.

    • Distribution and posting may be managed electronically if the employer does not maintain a physical workplace or if employees perform work remotely or via a web-based platform.
    • The notice and posting requirements are waived during any period an employer’s business is closed due to a public health emergency.
    • Colorado’s Division of Labor Standards and Statistics’ Interpretive Notice & Formal Opinion (“INFO”) #6B may serve as the notice to employees and includes links to the poster and Spanish translations of both.

Recordkeeping: 

    • Employers must retain record of each employee’s hours worked, paid sick leave accrued and paid sick leave used for a period of two years.
    • Any health or safety information obtained must be kept separate from other personnel information and treated as confidential medical records

Additional information and guidance may be found in Interpretive Notice & Formal Opinion (“INFO”) #6B. Employers are encouraged to consult the Division’s “INFOs” webpage for future updates.

Public Health Emergency Leave – apples to all employers, regardless of size, January 1, 2021

In addition to the accrued paid sick leave requirements outlined above, HFWA requires employers* to supplement an employee’s* accrued leave so that, as of the date a public health emergency* is declared, the employee has immediate use of the following amounts of paid leave:

Full-Time Employees (those who normally work 40 hours per week or more): 80 hours

All Other Employees: an amount equivalent to the greater of (1) the amount of hours the employee is scheduled to work in a 14-day period, or (2) the average number of hours the employee usually works during a 14-day period.

Employees may use public health emergency leave for up to four weeks after the official termination of a public health emergency:

    1. to seek preventive care concerning a communicable illness that is the cause of the public health emergency;
    2. to self-isolate and care for themselves due to symptoms of, a diagnosis of, or to seek diagnosis of or treatment for, a communicable illness that is the cause of the public health emergency;
    3. due to determination by a public official or health authority with jurisdiction over the employee’s work location, or by the employer, that the employee’s presence in the community or on the job would jeopardize the health of others because the employee has been exposed to, or is experiencing symptoms of, the communicable illness, regardless whether he or she has been diagnosed. 
    4. to care for a Covered Family Member* who falls under 1, 2 or 3 above;
    5. to care for Covered Family Member whose school or place of care has closed or if a care provider is unavailable due to the public health emergency, including if the school or place of care is physically closed but providing care remotely;
    6. due to inability to work because the employee has a health condition that may increase susceptibility to or risk of the communicable illness that is the cause of the public health emergency

Employees are eligible for the amount of leave described above once during the entirety of a public health emergency, even if the public health emergency is amended, extended, restated or prolonged.

Employers may count an employee’s accrued but unused HFWA paid sick leave toward this entitlement.

When the need for leave is foreseeable and the employee’s workplace has not been closed, the employee must provide the employer with notice of the need for leave as soon as practicable. 

 Employers may not require documentation to support public health emergency leave.

* The definitions of Employer, Employee, Public Health Emergency and Covered Family Member are the same as those under accrued paid sick leave. The accrued paid sick leave Notice to Employees and Recordkeeping requirements outlined above also apply to public health emergency leave.

Georgia Kin Care Law Extended

On June 29 the governor of Georgia signed Senate Bill 408, extending the state’s “kin care” law (GA Code §34-1-10) through June 30, 2023.  The law, which requires employers who provide employees with paid sick leave to allow use of that time to care for covered family members, was originally slated to sunset on July 1, 2020.

Massachusetts Paid Family and Medical Leave (MA PFML) Final Regulations

On July 24 Massachusetts’ Department of Family and Medical Leave (DFML) posted the final version of the revised MA PFML regulations (redline versions identifying the proposed and final changes were also graciously provided). In our May 29 release we highlighted areas where significant changes were proposed – that list is duplicated below, with notable edits made the between the proposed changes and final regulations in italics:

Many of the rules apply to state plan administration and may or may not apply in the same manner under a private plan.

Newly Defined Terms (§2.02)

    • Accrued Paid Leave: Leave earned by or otherwise provided to a covered individual pursuant to a benefit plan or policy offered by an employer or covered business entity including, but not limited to, sick leave, annual leave, vacation leave, personal leave, compensatory leave or paid time off. Accrued paid leave shall not include a (i) disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer or covered business entity.
    • Active Duty
    • Application for Benefits
    • Average Working Week
    • Complete Application
    • Extended Illness Leave Bank: A voluntary program where covered individuals may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under M.G.L. c. 175M
    • Former Member of the Armed Services
    • Good Cause
    • Job Protected Leave: The period of time described in 458 CMR 2.16(1), immediately following the first date on which an employee commences the taking of any type of leave that is associated with a qualifying reason regardless of whether an application for benefits has been submitted to the Department in connection therewith or whether that leave is paid or unpaid. Employees who do not file an application for benefits with the Department, but use any other type of leave, including accrued paid leave or unpaid leave approved by an employer, leave under a (i) temporary disability policy or program of an employer; or (ii) paid family, or medical leave policy of an employer; or (iii) an Extended Illness Leave Bank provided by an employer and taken for a qualifying reason, will be entitled to job protected leave as of the date of commencing such leave and that leave will run concurrently with the leave period provided in M.G.L. c. 175M.
    • Municipality
    • Private Plan Administrator

Definition Changes

Base Period: The last four completed calendar quarters within the previous five calendar quarters immediately preceding the date an application for benefits is filed with the Department for a qualified period of paid family or medical leave. A completed calendar quarter is one for which an employment and wage detail report has been or should have been filed, pursuant to 458 CMR 2.04(1) and (2).

Continuing Treatment by a Health Care Provider:

    • (a)(3): The requirement for treatment by a health care provider means an in-person visit or telehealth visit to a health care provider. The first (or only) in-person or telehealth treatment visit must take place within seven calendar days of the first day of incapacity.
    • (g): Cosmetic treatments or substance abuse disorders are not serious health conditions, unless inpatient hospital care is required or unless complications develop.

§2.08 (10) added: Leave for Substance Use Disorder.

(a) A Substance Use Disorder may be a serious health condition. Family or medical leave may only be taken for treatment for substance use disorder by a health care provider, by a provider of health care services on referral by a health care provider or by a program licensed or approved by the Massachusetts Department of Public Health. An absence because of the employee’s use of the substance, rather than for treatment, does not qualify for leave.

(b) Treatment for substance use disorder does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take leave for treatment. However, if the employer has an established policy, applied in non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance use, pursuant to that policy, the employee may be terminated whether or not they are presently taking leave. An employee may also take leave to care for a covered family member who is receiving treatment for substance use disorder. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance use disorder because the employee has exercised his or her right to take leave.

Covered Contract Worker: A self-employed individual:

(a) for whom an employer or covered business entity is required to report payment for services on IRS Form 1099-MISC;

(b) for whom an employer or covered business entity is required to remit contributions to the Family and Employment Security Trust Fund pursuant to the requirements of M.G.L. c. 175M, §6;

(c) who performs services as an individual entity in Massachusetts;

(d) who resides in Massachusetts; and

(e) who is not classified as an independent contractor pursuant to M.G.L. c.151A, §2.

  • Also, added to §2.03, Covered Business Entities and Covered Contract Workers:  Notwithstanding the requirements set forth in 458 CMR 2.03(1)-(3), self-employed individuals or covered contract workers properly classified in accordance with M.G.L. c.151A, §2 are not considered part of an employer’s workforce.

Financial Eligibility Test:

    • A demonstration that, over the 12 months preceding an individual’s application for benefits with the Department, the individual has received total wages as an employee or payments for service as a covered contract worker from Massachusetts employers or Massachusetts covered business entities that in the aggregate equal or exceed 30 times the individual’s weekly benefit amount as determined under 458 CMR 2.12, and that in the aggregate are not less than the dollar amount calculated annually by the Massachusetts Department of Unemployment Assistance pursuant to M.G.L. c. 151A, § 24(a). Wages received from multiple employers or covered business entities within the base period can be aggregated to determine financial eligibility for leave.

Intermittent leave:

    • Original regulations: An employer may designated a minimum increment for use, not to exceed four consecutive hours.

Proposed: Leave may be taken in 15 minute intervals.

Final: Intermittent leave shall be taken in increments consistent with the established policy of the employer or covered business entity uses to account for use of other forms of leave; provided, however, that the Department will not pay in increments of less than 15 minutes. A covered individual shall not be permitted to apply for payment for benefits associated with intermittent leave until they have 8 hours of accumulated leave time unless more than 30 calendar days has lapsed since the initial taking of such leave

    • For each request for payment associated with intermittent leave, the employee must verify with DFML the hours of leave taken each week in order to receive benefit payments. (§2.10)
    • An employer with an employee who has been approved for intermittent leave must provide DFML the amount of wages or qualified earnings paid to the employee on a monthly basis or at other intervals deemed necessary by DFML. DFML may seek a refund from the covered individual or offset any future benefit payments where DFML has determined that the employee has received wages or qualifying payments from both the employer and from the [State Plan] for the same period. (§2.13)
    • In the event that an employee’s work schedule varies from week to week, the maximum weekly benefit amount will be calculated based on the average of number of hours worked from the two highest quarters of the 12 months preceding the employee’s application for MA PFML benefits. An employee will not be eligible for benefits in excess of the number of hours so determined by DFML. For purposes of intermittent leave, benefits may be prorated on an hourly basis utilizing the average number of hours worked during the 12 months preceding the employee’s application for MA PFML benefits.
    • The benefit year for an employee who received benefits for an intermittent leave will commence, following an approval by DFML for continued benefits, on the Sunday immediately preceding the first absence following the exhaustion of the prior benefit year.

Opt-in Instructions for employers not otherwise required to comply with MA PFML (§2.06)

Partial Exemptions (§2.07(1)(a)-(b)): 

    • An employer may apply for exemption via private plan for medical leave coverage, family leave coverage, or both. Contributions toward the state program will be required for the portion of coverage (medical leave or family leave) not included in the private plan.
    • An employer may not apply for an exemption for only a portion of its covered workforce. All employees and covered contract workers and former employees under [MA PFML] must be included in the employer’s private plan in order to be approved for an exemption.

Application for Exemption Due to Approved Private Plan (§2.07)

    • Coverage under a private plan shall begin for all employees and covered contract workers no later than the first day of the first quarter immediately following the date of approval of the private plan exemption or on the date of hire of the employee or covered contract worker for private plans already approved. Employers or covered business entities that have been approved for a private plan exemption may require an employee or covered contract worker to provide verification of wages earned with an employer or covered business entity in the Commonwealth for purposes of determining whether that employee or covered contract worker meets the financial eligibility requirements. (§2.07(1)(c))
    • In addition to equity in benefits and cost to the state program, private plans must also follow requirements around appeals, notice and basis for benefit calculation. (§2.07(2)(c)-(e))
    • Covered individuals have the right to appeal a claim denial under a private plan with DFML. Claim documentation must be provided by the employer/administrator to DFML within ten business days of a request in connection with an appeal. (§2.07(6))

Non-renewal or Termination of a Private Plan (§2.07(8))

    • The final regulations also add (e) regarding applications for private plan benefits submitted by former employees

Application for State Plan Benefits (§2.08):

    • An individual’s application for benefits may be filed with DFML no more than 60 days before the anticipated start date of leave.
    • Notice must be provided to the employer no less than 30 calendar days prior to leave, or as soon as practicable if beyond the employee’s control.
    • Notice of the need for leave must be made to the employer prior to application to DFML.
    • DFML will notify the employer not more than five business days after an application for PFML benefits is filed. Notification will include the employee’s identifying information, details on the type of leave and applicable dates, and certification provided.
    • An application for benefits will not be processed unless the employee consents to DFML sharing information regarding the application with the employer and healthcare provider.
    • An employer must respond within 10 business days to a request from DFML for relevant claim information such as an employee’s past wages, job description, work schedule and other leave available and taken (increase from 5 days).
    • DFML may allow an employer or its designee to submit an application for benefits on behalf of a covered individual. In order to do so, employers, covered business entities, or leave administrators must be approved by the Department and agree to adhere to all of the requirements prescribed in [regulations §2.08].
    • Leave Entitlement: In the case of multiple births, no more than 12 weeks of leave benefits total are available in a benefit year for this purpose. (§2.08(5)(c))

Process for State Plan Benefit Determinations (§2.09), which includes:

    • Where DFML finds that a covered individual has failed to provide notice of a relevant change in circumstances which would have reduced the amount of benefits paid, the employee will be responsible for reimbursing DFML the amount overpaid within 30 calendar days of the DFML’s request.

Benefit Extensions (§2.10):

    • Following approval of benefits, any change in relevant circumstances that would justify an extension, reduction, or other modification of the period of leave or the amount of benefits, must be communicated to DFML by the employee or the employer within 7 calendar days of the change.
    • A covered individual must apply for and be eligible for benefits in any subsequent benefit year.
    • An employer may seek recertification of the employee’s serious health condition following the expiration of the initial period of incapacity cited in the original healthcare certification, or where an intermittent leave has extended for more than six months from the approval by DFML, whichever occurs first.

Return to Work (§2.11): An employer may request fitness-for-duty certification if the employee is provided with a list of the essential functions of his or her job within 10 business days of the notice to the employer of the approval of leave by DFML, and must indicate that the certification must address the employee’s ability to perform those essential functions (increase from 5 days).

Weekly Benefit Amount (§2.12):

    • The weekly benefit amount for family or medical leave is calculated on the individual’s average weekly wage at the time of the filing of a request for leave, which is determined by the individual’s earnings in the base period as reported to the Massachusetts Department of Revenue. The weekly benefit amount will not change during the term of the approved leave period subject to a prorated or reduced benefit amount.
    • The maximum weekly benefit amount approved by the Department for any individual covered under the [State Plan] shall be 64% of the state average weekly wage. A covered individual with multiple employers or covered business entities is not required to take paid family or medical leave from each employer or covered business entity during a single period of paid family or medical leave.
    • Added to the list of amounts deducted from benefits are benefits received from a private plan and wages received from another employer or through self-employment. (§2.12(6))
    • The weekly benefit amount for a period shall be reduced by the amount of wages, wage replacement, or leave that a covered individual on family or medical leave receives for that period from

a.  any government program or law, including unemployment benefits under M.G.L. c. 151A, or workers’ compensation under M.G.L. c. 152, other than for permanent partial disability incurred prior to the family or medical leave application for benefits;

b.  under other state or federal temporary or permanent disability benefits law; 

c.   a permanent disability policy or program of an employer or covered business entity; or

d.  Unless the aggregate amount a covered individual receives would exceed the covered individual’s average weekly wage, the weekly benefit amount for a period shall not be reduced by the amount of wage replacement that a covered individual on family or medical leave receives for that period from:

          1. a temporary disability policy or program of the employer or covered business entity; or
          2. a paid family or medical leave policy of the employer or covered business entity; or
          3. any wages received from another employer or covered business entity or through self-employment.  

e.  A covered individual’s family or medical leave allotment under 458 CMR 2.08(8) shall be proportionately reduced by the amount of family of or medical leave taken by the covered individual under 458 CMR 2.12(6) for the same any qualifying reason during the benefit year.

f. The weekly benefit amount and/or leave allotment shall be reduced by any paid or unpaid family or medical leave, wages, or wage replacement, that a covered individual on family or medical leave receives from any source for the same any qualifying reason in the 12-month period prior to filing an application for benefits. However, any leave taken by the covered individual for the same qualifying reason prior to January 1, 2021, shall not count against the covered individual’s weekly benefit amount and/or leave allotment.

    • The weekly benefit amount may be reduced where the covered individual has an outstanding tax obligation or has an obligation for child support.
    • The 7 calendar day waiting period may be waived for family leave that immediately follows pregnancy or recovery from childbirth if supported by documentation from a healthcare provider.

Substitution of Employer-Provided Paid Leave (§2.12(8)):

    • Employees who are approved for leave benefits by DFML may choose to use accrued paid leave provided by their employer rather than receive a paid benefit under MA PFML. The accrued paid leave provided by an employer will run concurrently with available MA PFML leave, however MA PFML benefits will not be paid for this period of time.
    • Employers are required to inform employees who choose to use accrued leave paid by the employer that the use of these employer-provided leave accruals will run concurrently with the leave period provided under MA PFML.
    • See also the definition of Job Protected Leave, above

Employer Reimbursement (§2.12(9)):

    • An employer or covered business entity that makes payments to an employee during a period of family or medical leave equal to or greater than the amount required under [MA PFML] will be reimbursed out of any benefits due to the employee or to become due from the Trust Fund by DFML. This does not apply to employers with private plans.
    • To qualify for reimbursement, an employer must make payments from a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or (iii) an extended illness leave bank.  The policy or program or extended illness leave bank must be granted to a covered individual for a qualifying reason under MA PFML that is separate from and in addition to any sick leave, annual leave, vacation, personal leave, or accrued paid leave that is made available to the employee. Employers will not be eligible for reimbursement from DFML for payments to an employee where the employee has elected to utilize accrued paid leave whether it is in lieu of applying for benefits to the Department or supplementary to a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer or covered business entity.
    • A voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under MA PFML may be reimbursable under M.G.L. c. 175M, §3(c).
    • In order to be eligible for any reimbursement, employers will be required to produce evidence that payments to an employee for a qualifying reason were consistent with the requirements set forth in [these regulations and MA PFML law].
    •  In no event shall DFML reimburse an employer or covered business entity where the employee has received a benefit from the [State Plan] for the same period of time.
Bernalillo County, NM Employee Wellness Act Effective Date Delay

Mid-June Bernalillo County’s County Manager issued an Emergency Order postponing the effective date of the Employee Wellness Act, which requires employers to allow eligible employees to accrue paid time off to use for any reason, from July 1, 2020, to October 1, 2020.  The county’s website reflects the update, including a revised version of the required poster.

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Leave Legislation, July 1 Statutory Changes & More

July 1, 2020

COVID-19 Leave Legislation

Federal Guidance

Families First Coronavirus Response Act (FFCRA)

The Department of Labor (DOL) recently posted additional Q&A offering guidance around the use of leave provided under FFCRA for child care during the summer months:

    •  While paid leave under FFCRA is not available simply because a child’s school is closed for “summer vacation”, the unavailability of care – in the form of summer camp or summer enrichment programs in which the child was enrolled, for example – due to COVID-19 may be a qualifying reason for FFCRA leave (#67, 93).  More detailed guidance is available in the DOL’s June 26 Field Assistance Bulletin No. 2020-4.
    • The fact that an employee has been simultaneously working from home and caring for his or her child(ren) successfully to a point does not necessarily disqualify him or her from eligibility for FFCRA leave. The Q&A offers that eligibility may stem from a change in circumstances. (#91)
Return to Work

The Equal Employment Opportunity Commission (EEOC) has updated their FAQ addressing COVID-19 return to work considerations and application of the Americans with Disabilities Act (ADA/ADAAA) and the Rehabilitation Act. The FAQ offer guidance around medical exams (workplace temperature readings and COVID-19 and antibody testing) and employee health-related inquiries, confidentiality of employee health records, hiring practices and discrimination, and managing accommodations for employees who may be at higher risk for COVID-19.  An additional resource is the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, last updated on March 21.

On June 25 the Centers for Disease Control (CDC) added information to its site addressing individuals at high or increased risk of contracting COVID-19, including stating that COVID-19 risk “increases with age” rather than simply identifying age 65 as a threshold, as well as expanding its list of underlying medical conditions that may increase the severity of illness. Employers formulating return to work plans are encouraged to consider this guidance and include procedures to accommodate employees who may be at elevated risk.

On June 18 the DOL’s Occupational Safety and Health Administration (OSHA) released a document titled Guidance on Returning to Work, which provides guidance to employers on appropriate preparations for bringing employees back to work safely, including hazard assessment, basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. This guidance supplements OSHA’s March publication Guidance on Preparing Workplaces for COVID-19 and the White House’s April Guidelines for Opening Up America Again. Additional information specific to COVID-19 may be found on OSHA’s dedicated website.

Leave Donation Programs and COVID-19

On June 11 the Internal Revenue Service (IRS) issued Notice 2020-46, which states that cash payments employers make to qualifying charitable organizations (as defined in IRC §107(c)) providing relief to victims of the COVID-19 pandemic in exchange for sick, vacation or personal leave donated by employees will not be treated as compensation. Employees donating time will not be treated as receiving the value of the leave as income and therefore will not be required to pay taxes on the value (they may not claim a tax deduction, however). Donations must be paid to the selected organization(s) by December 31, 2020.

State and Local Legislation

District of Columbia Coronavirus Support Congressional Review Emergency Amendment Act of 2020

On June 8 the mayor of the District of Columbia signed the Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (B23-0759, now D.C. Act 23-328). Effective June 9, the Act restates and/or replaces previously enacted legislation*. Also, while the provisions of the Act cover a number of topics, the information here is limited to the impact on the District of Columbia Family and Medical Leave Act (DC FMLA) and the Accrued Sick and Safe Leave Act (ASSLA).

COVID-19 Leave under DC FMLA:

    • Allows for 16 weeks of “COVID-19 Leave” during the COVID-19 public health emergency**.
    •  Individuals employed for at least 30 days prior to the request for leave are eligible to take unpaid leave due to an employee’s or household member’s official or healthcare provider-recommended quarantine, or to care for a child whose school or place of care is closed.
    • Applies to employers of all sizes.
    • Employers may require “reasonable” documentation of the need for leave.
    •  Any paid leave provided by the employer counts against the 16 weeks of allowable leave.
    • Employee may elect, but may not be required, to use this leave prior to any other company or statutory leave entitlement.
    • This leave entitlement expires on the date the COVID-19 public health emergency ends.

Paid Public Health Emergency Leave under ASSLA:

Beginning April 10, 2020, and for the duration of the COVID-19 public health emergency**, non-healthcare employers with 50 to 499 employees must provide paid leave for any of the reasons covered under Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave Act (EPSLA):

    • the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
    • the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    • the employee is caring for an individual who is subject to an order as described in #1 or has been advised as described in #2;
    • the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
    • the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees employed at least 15 days prior to leave are eligible.

Leave Entitlement:

    • Full-Time employees: 80 hours
    • Part-Time employees: the usual number of hours the employee works in a two-week period.

Pay: Employees must be compensated at their regular rate of pay. If the employee does not have a regular rate of pay, his or her rate should be determined by dividing the employee’s total gross earnings (including tips, commissions, piecework, or other earnings) during his or her most recent two-week period by the number of hours worked during that period. The employee’s rate may be no less than the District’s minimum wage.

Use:

    • Employees may use public health emergency leave concurrently with or after exhausting other company or statutory entitlement.
    •  If used concurrently, the employer may reduce the payment under emergency leave by the amount provided by other paid leave.
    • If an employee elects to use paid leave provided under this section after exhausting other paid leave, the employer may reduce the number of hours of paid leave an employee may use under this section by the number of hours of paid leave taken under federal or District law or the employer’s policies.
    • Employers may not require more than 48 hours’ notice of the need for leave; in an emergency, the employer must accept “reasonable” notice.
    • Employer may request documentation for absences exceeding three consecutive workdays, but must allow that documentation to be provided at least one week after the end of leave.  However, employers that do not contribute towards an employee’s health insurance premiums may not request certification of leave.

The Act is effective for 90 days, until September 6, 2020.

    • * COVID-19 Response Emergency Amendment Act (B23-0718 / Act 23-247): repealed – signed March 17, effective through May 26 (see our March 29 update for more detail)
    • COVID-19 Response Supplemental Emergency Amendment Act of 2020 (B23-0733 / Act 23-286): repealed – signed April 10, effective through May 26 (see our April 17 update for details)
    • COVID-19 Response Supplemental Temporary Amendment Act of 2020 (B23-0734 / Act 23-323): repealed – signed May 21, effective through June 8
    • Coronavirus Support Emergency Amendment Act of 2020 (B23-0757 / Act 23-326): expired – signed May 27, effective through June 8
    • Another similar bill, the Coronavirus Support Temporary Amendment Act of 2020 (B23-0758), is currently pending – it was sent to the mayor on June 22, with response due July 7.
    • ** “COVID-19 public health emergency” refers to the emergencies declared via Mayor’s Orders 2020-045 and 2020-046 on March 11, including any extensions.
Seattle, WA Paid Sick and Safe Time for Gig Workers

On June 12 the mayor of Seattle approved the Paid Sick and Safe Time for Gig Workers Ordinance (Ordinance No. 126091), which temporarily provides Paid Sick and Safe Time (PSST) to individuals performing “gig” work in Seattle.   

Effective July 13, 2020.

Applies to the following “Hiring Entities” who hire 250 or more gig workers worldwide:

    • Organizations operating as “Food delivery network companies” in Seattle offering prearranged delivery services for compensation using an online-enabled application or platform to connect customers with workers for delivery from eating and drinking establishments, food processing establishments, grocery stores, or any facility supplying groceries or prepared food and beverages for an online order; and
    • Transportation services companies” licensed or required to be licensed under Seattle Municipal Code Chapter 6.310 offering prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a “transportation network company endorsed vehicle,” as defined in SMC Chapter 6.310 (e.g., Uber, Lyft).

Leave Entitlement: 

    • For workers who began working for the hiring entity before July 13, 2020, hiring entities have the choice of one of two methods* for calculating PSST entitlement:
        • Calculating an accrual of 1 day of PSST for every 30 days worked** beginning the later of October 1, 2019 or the commencement of work; or
        • Providing at least 5 days of PSST as of July 13, 2020, following which workers will accrue at least 1 day of PSST time for every 30 days worked** after July 13.
    • Hiring entities may subtract compensation provided for any PSST-qualifying paid leave used between October 1, 2019 and July 13, 2020; this deduction must be itemized in a compensation statement.
    • Workers who commence work on or after July 13, 2020 will accrue 1 day of PSST for every 30 days worked** on or after July 13.
    • Hiring entities may provide PSST in advance of accrual.
    • * The selected option must be filed with the Office of Labor Standards by July 27, 2020.
    • ** A “day worked” is any calendar day that a worker performs services in whole or in part in Seattle.

Use:

    • A worker may use accrued PSST if he or she performed work in Seattle during the 90 days prior to the request for leave.
    • Accrued PSST may be used for any of the following reasons:
        • For the diagnosis, care or treatment of a mental or physical health condition of the worker or a covered family member, including preventive care;
        • If the hiring entity has suspended operations for any health- or safety-related reason, including by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material;
        • When a covered family member’s school or place of care has been closed;
        • For the worker’s or a family (or household) member’s needs resulting from domestic violence, sexual assault or stalking.
    • PSST may be requested for immediate use, including consecutive days, and may be used in 24-hour increments.
    • Hiring entities may require oral or written verification of the need for PSST exceeding three consecutive days, except during a civil emergency proclaimed by a public official in response to COVID-19. The request must be made in a manner that does not result in an unreasonable burden for the worker, or intrude upon the worker’s privacy. The worker must be allowed at least 10 days to provide such verification. 
    • Hiring entities may permit a worker to donate accrued PSST to another worker.

Pay:

    • For each 24-hour day of use, a gig worker is entitled to the average daily compensation (including tips) in his or her highest earning calendar month since October of 2019. 
    • Used PSST must be paid by the later of 14 days from the date of use or the next scheduled pay date. In the event verification is required, the worker must be paid for PSST no later than the next scheduled pay date after verification is provided.

Carryover: Workers must be permitted to carry over at least 9 days of unused PSST from one 12-month benefit period to the next (calendar year unless otherwise defined by the hiring entity in a written policy). A hiring entity may allow a more generous carry over provision.

Termination: If a worker separates from work due to inactivity, deactivation or other reason and recommences work for the same hiring entity within 12 months, the worker is entitled to previously accrued time.

Notification: Hiring entities must provide each worker with:

    • Written notice of rights in a manner sufficient to reach all workers.  This notice must include terms of accrual and use, retaliation protections and complaint procedures.  Hiring entities are responsible for communicating this information to workers regardless whether a model notice is provided, though one is expected.
    • A monthly accounting of accrued, used and available PSST, as well as the applicable compensation rate. This accounting may be provided on the worker’s pay stub, a weekly compensation statement or by electronic means. Hiring entities must retain records for three years.

Employers are prohibited from retaliating against or otherwise impeding a worker from exercising his or her rights under the ordinance.

Expiration Date: Workers may accrue and use PSST until 180 days after the termination of the civil emergency proclaimed by the Mayor on March 3, 2020, or the termination of any concurrent civil emergency proclaimed by a public official in response to the COVID-19 public health emergency and applicable to the city, whichever is latest. The remaining requirements will stay in effect to retain provisions necessary for recordkeeping and enforcement, to the later of three years or December 31, 2023.

Refer to the Seattle’s Office of Labor Standards’ website for more information, including upcoming guidance and the model notice.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

 

Other Leave News

Statutory Disability and Paid Family Leave Benefit Changes

Effective TODAY (July 1, 2020):

California

    • Paid Family Leave (CA PFL) maximum duration increases from 6 weeks to 8 weeks in a 12-month period.
    • San Francisco Paid Parental Leave (SF PPL) maximum duration increases from 6 weeks to 8 weeks in a 12-month period.

District of Columbia Paid Family Leave (DC PFL) benefits entitlement begins (see our May 29 update for recent information).

New Jersey

    • Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI) benefit percentage increases from 66 2/3% with a maximum of $667 per week to 85% with a maximum of $881 per week.
    • Family Leave Insurance (NJ FLI) maximum duration increases from 6 weeks to 12 weeks in a 12-month period; intermittent allowance increases from 42 to 56 days.

Rhode Island Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI) benefit maximum increases from $867 to $887 per week; the maximum with the dependency allowance increases from $1,170 to $1,197 per week.

 

Maryland Healthy Working Families Act Amendment

House Bill 880 amends Maryland’s paid sick leave law effective October 1, 2020 to include a legal ward of the employee and/or of the employee’s spouse, and a legal guardian of the employee’s spouse as covered family members.

Minneapolis, MN Sick and Safe Time Ordinance Upheld

On June 10, 2020, the Minnesota Supreme Court upheld an April 2019 Court of Appeals ruling that the Sick and Safe Time Ordinance applies to employers based outside the city. The Ordinance requires that employees who work at least 80 hours per year within the geographic boundaries of the city be able to accrue up to 80 hours of sick and safe time annually; employers with 6 or more employees must provide this time as paid leave. The Court also held that the Ordinance does not conflict with the state’s Sick and Safe Leave (“kin care”) law.

Philadelphia, PA Domestic Workers Bill of Rights

Effective May 1, 2020, individuals and companies who employ domestic workers are obligated to comply with Philadelphia’s Domestic Worker Bill of Rights (DWBR).  Passed last fall, the law:

Applies to any employer (“Hiring Entity”) as defined by the Pennsylvania Wage Payment and Collection Law (Act No. 329) and the state’s Minimum Wage Act, who employs a domestic worker, as well as any individual, partnership, association, corporation, business trust or combination thereof, that pays a wage or wages for the services of a domestic worker.

    • Includes any entity, person or group of persons that provides compensation directly or indirectly to a domestic worker for the performance of domestic services and any entity, person or group of persons acting directly or indirectly in the interest of the hiring entity in relation to the domestic worker.

Covers all employees, including part-time and temporary employees, as well as independent contractors, who work for one or more employer for the purposes of caring for a child; serving as a companion or caretaker for a sick, elderly or disabled person; housekeeping or house cleaning; cooking; providing food or butler service; parking cars; cleaning laundry; gardening; personal organizing; or for any other domestic service purpose.

    • Excludes family members; house sitters, pet sitters, dog walkers; individuals who work at a business primarily operated out of their residence, such as a home daycare; household repair or maintenance persons, such as roofers, plumbers, and painters; home healthcare workers paid through public funds; and anyone under the age of 18

Assigns minimum protections to workers, including requirements around meal and rest breaks, and paid and unpaid leave:

    • Unpaid leave will accrue at a rate of 1 hour per 40 hours of work, to a maximum of 40 hours per calendar year, and may be used in accordance with the city’s Promoting Healthy Families and Workplaces ordinance:
        • Diagnosis, care or treatment of the employee’s or a covered family member’s health condition, including preventive care;
        • Needs associated with domestic abuse, sexual assault or stalking.
    • Paid leave* will also accrue at a rate of 1 hour per 40 hours of work, to a maximum of 40 hours per calendar year, and may be used for:
        • Replacement of compensation for work time lost due to a change in work schedule or cancellation of planned work time by the employer;
        • “Significant and unexpected” personal matters;
        • Any reason allowed under the Promoting Healthy Families and Workplaces ordinance (listed above); or
        • Any other reason established by regulation.
        • * Important note:  Unlike similar laws (see below), Philadelphia’s DWBR includes a mechanism to allow workers to accrue and carry time across employers. The details of the paid leave compensation system will be developed in future regulations, and the paid leave provisions are not effective until those regulations are adopted.

Requires employers to:

    • Provide workers with notice of their rights, including how to file a complaint (it is expected that a model notice will be provided by the city);
    • Provide workers working 5 hours or more per month (or “on a casual basis”) with a written contract outlining job duties, wages, weekly schedule including the expected number of hours per week, timing and method of payment, breaks for rest and meals, paid or unpaid leave including sick time, paid holidays, transportation or living accommodations, personal time for live-in workers, and any other applicable benefits, terms or conditions so long as no provision negatively impacts the worker’s rights under federal, state or local law.
    • Provide minimum notice of termination, except in cases of misconduct: four weeks for live-in workers and two weeks for all others.
    • Create and maintain records documenting hours worked, pay rate, leave time earned and used, and the existence of a written contract.

Prohibits employers from:

    • Keeping workers’ personal documents, or recording or otherwise monitoring a worker under private circumstances, such as while in his or her own living quarters, during private communications, or while dressing or using bathroom facilities.
    • Retaliate against a worker or in any way interfere with his or her ability to exercise rights under the law.

More information may be found in the text of the law (added as Chapter 9-4500 of The Philadelphia Code). The city has posted resources, including a contract template, to assist employers with compliance – employers are encouraged watch this space for upcoming regulations, especially those addressing paid leave. 

Philadelphia’s law follows in the footsteps of those enacted in ten other jurisdictions, including California, Connecticut, Hawaii, Illinois, Massachusetts, Nevada, New Mexico, New York, Oregon, and Seattle, WA.  Federal bills (S.2112 and H.R.3760) were introduced mid-2019 but appear to have stalled in committee.

Virginia Mandate on Disability Leave Duration Following Childbirth

On April 9, the governor of Virginia signed Senate Bill 567 (now VA Code §38.2-3407.11:4), which requires that insured individual or group disability policies that include maternity benefits provide at least 12 weeks of payable benefit immediately following childbirth. This requirement applies to policies written in Virginia on or after July 1, 2021.

Pregnancy and Lactation Accommodation

Oregon’s Employer Accommodation for Pregnancy Act (ORS 659A.146-148) became effective for employers with six or more employees as of January 1, 2020.  Employers must post notice of the law’s provisions in a conspicuous and accessible location, as well as provide written notice to all current employees by June 29, to new hires and to any employee within 10 days of informing the employer of her pregnancy. More information, as well as the model notice, may be found on the state’s Bureau of Labor and Industries’ website.

South Carolina: On June 25 the governor of South Carolina signed the South Carolina Lactation Support Act (H3200, now Act No. 141), which requires employers to allow employees reasonable break time, paid or unpaid, to express milk, as well as provide a private location other than a restroom in order to do so. Where possible, employees should have this time coincide with scheduled break periods and make reasonable efforts to minimize disruption to the employer’s operations.  Employers are prohibited from discriminating against or otherwise penalizing any employee for exercising her rights under the Act.

The Act is effective July 25, 2020 and will be added as Section 41-1-130 to the SC Code of Laws.  Prior to the effective date the state’s Human Affairs Commission is expected to post pertinent information for employers and employees on its website. Employers must comply with the Act’s requirements within 30 days from the date this information is provided.

Tennessee: On June 22 the governor of Tennessee signed the Tennessee Pregnant Workers Fairness Act (SB2520) requiring employers with 15 or more employees to make reasonable accommodations for medical needs associated pregnancy and childbirth, unless the employer can demonstrate that a particular accommodation presents undue hardship. If the employer requires for other medical conditions, healthcare provider certification may be requested for accommodation related to temporary transfer to a vacant position, job restructuring, light duty, or time away from work. While this certification is being obtained, the employer must engage the employee in an interactive process to determine if a reasonable accommodation can be provided. Employers are prohibited from requiring an employee to take paid or unpaid leave of absence if another accommodation is available, or for discriminating against or otherwise penalizing any employee who requests accommodation. The Act amends Title 50 of the Tennessee Code and will become effective October 1, 2020.

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Leave Legislation; DC PFL, MA PFML, Chicago Paid Sick Leave

May 29, 2020

State and Local Legislation

Long Beach, CA COVID-19 Paid Supplemental Sick Leave

On May 19 Long Beach, CA’s City Council approved the “COVID-19 Paid Supplemental Sick Leave” ordinance (ORD-20-0017). The ordinance is similar to those recently enacted in Los Angeles City, Los Angeles County, San Francisco, San Jose (reported in our April 17 and May 1 releases) and Oakland (below), and will be added as chapter 8.110 to the Long Beach Municipal Code.

Effective May 19 with continuation following review by the City Council every 90 days.

Applies to:

    • Employers as defined under CLC §18 with 500 or more employees nationally who are not required to provide paid sick leave benefits under FFCRA’s Emergency Paid Sick Leave Act (EPSL)
    • All employees who perform work within the geographic boundaries of the City of Long Beach. Employee status in the construction industry is determined in accordance with CLC §245.5(a)(2); all other employees are determined in accordance with CLC §2750.3.
      • Excludes: Employees who can work remotelyGovernment employees working within the course and scope of their employment.
      • Employers may exclude employees who are healthcare providers and/or emergency responders (as defined in the ordinance).
    • A collective bargaining agreement in place on the ordinance’s effective may supersede the provisions of this ordinance if it contains COVID-19 related sick leave provisions.  If it does not, the employer must comply with the ordinance unless and until the CBA is amended. With such an amendment, or when the CBA expires or is otherwise open for renegotiation, the provisions of the ordinance may be waived only if the waiver explicitly states that employees are waiving the benefits they are legally entitled to pursuant to the City of Long Beach’s COVID-19 Paid Supplemental Sick Leave (PSSL).

Leave Entitlement:

    • Full-Time: 80 hours
    • Part-Time: leave equal to the number of hours the employee works on average over a two-week period.
    • Unused PSSL expires after the ordinance is no longer effective, unless an employer extends an employee’s access to such leave. An employee is not entitled to be paid for unused PSSL under any circumstances.

Benefit

    • Employee’s own need for leave: 100% of the employee’s regular rate of pay to a maximum of $511 per day ($5,110 in total);
    • Care for another person: 66 2/3% of the employee’s regular rate of pay to a maximum of $200 per day ($2,000 in total).
    • A part-time employee’s daily benefit will be calculated based on the average number of hours the employee worked per day during the six months immediately preceding May 19. If an employee has been employed for fewer than six months, the employer must calculate the benefit amount based on the average hours the employer expected the employee to work per day at the time of hire.

Reasons for Use – Inability to work or telework because:

    • The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
    • The employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider;
    • The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
    • The employee is caring for a minor child because the child’s school, daycare, or childcare provider is closed or unavailable because of COVID-19 and the employee is unable to secure a reasonable alternative caregiver.

Certification: An employer may require the employee to identify the basis for requesting leave, but may not require a doctor’s note or other documentation.

Use: An employer may require the employee to follow reasonable notice procedures in order to use paid supplemental sick leave, but only when the need for leave is foreseeable.

 Interplay with other Leaves:

    • Employees may not be required to exhaust their sick leave or other accrued leave prior to use of PSSL.
    •  If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide PSSL for any employee that received the more generous paid leave.
    • An employer’s obligation to provide PSSL benefits shall be reduced for every hour the employer provided an employee with paid leave in an amount equal to or greater than the ordinance’s requirements, not including previously accrued hours, on or after March 4, 2020, for any of the purposes covered by the ordinance or in response to an employee’s inability to work due to COVID-19.
    • Employers are prohibited from changing any paid time off policies on or after May 19, except to provide additional leave.
Oakland, CA COVID-19 Emergency Paid Sick Leave

On May 12 Oakland, CA passed the “COVID-19 Emergency Paid Sick Leave Ordinance”, which will be added as Chapter 5.94 of the Oakland Municipal Code.

Effective May 12 through December 31, 2020, unless extended.

Applies to:

    • All private employers, including employers subject to the federal Families First Coronavirus Response Act (FFCRA).
      • Includes temporary employment agencies, staffing agencies and similar entities.
      • Excludes: Employers that employed fewer than 50 employees between February 3, 2020 through March 4, 2020, except for unregistered janitorial employers and franchisees associated with franchisors or franchise networks employing more than 500 employees in total & Government entities.
      • Allows employers of healthcare providers and/or emergency responders (as defined under FFCRA, CFR §826.30(c)) to elect exemption if they keep information describing employee classifications exempted and not exempted, as well as information related to location(s) of the exempted employees and from which provisions of the law the employees are exempted, for a period of 3 years.
    • All employees as defined under California Labor Code §2750.3 and IWC wage orders who have worked for the employer for at least two hours after February 3, 2020 within the geographic boundaries of the city.
      • Includes recipients of public benefits who as a condition of receiving public assistance have performed at least two hours of work within the geographic boundaries of the city for an employer after February 3, 2020.
      • Excludes employees who can work remotely.
    • Collective bargaining agreements may waive a provision of the ordinance if that waiver is set forth in clear and unambiguous terms and the CBA meets requirements under CLC §245.5(a).

Leave Entitlement:

    • Employees classified as Full-Time or who worked at least 40 hours per week in Oakland from February 3, 2020, through March 4, 2020, or at any point thereafter, are entitled to 80 hours of Emergency Paid Sick Leave (EPSL).
    • Employees who worked fewer than 40 hours per week from February 3, 2020, through March 4, 2020, and continue to do so are entitled to an amount of EPSL equal to the average number of hours worked in Oakland over 14 days during the period of February 3, 2020 through March 4, 2020. The 14 days must be the 14 days with the highest number of hours worked within the city during that period.
    • The above amounts are also required for employees whose employment began after March 4, 2020.

Benefit: The greater of the employee’s regular rate of pay or the city’s minimum wage, with a maximum benefit of $511 per day ($5,110 in total).

    • Time used must be paid no later than the next regular payday or 14 days after leave is taken.

Reasons for Use – Inability to work or telework because the employee:

    •  Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    • Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    • Is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • Is caring for their son or daughter if the child’s school or place of care has been closed, or child care is unavailable, due to COVID-19 precautions;
    • Is experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury;
    • Needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19. “Family member” is as defined in CLC §245.5(c) and in the ordinance, and also includes an individual to whom the employee is responsible for providing or arranging care and any individual whose close association is the equivalent of a family member.
    • Or, the employee:
      1. Is at least 65 years old;
      2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
      3. Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
      4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Use:

    • Employees may elect to use EPSL in one-hour increments. Employers cannot require employees to use leave in more than one-hour increments.
    • If the need for leave foreseeable the employee must provide notice to the employer as soon as practicable.

 Certification:

    • An employer may not require a doctor’s note or other documentation for the use of EPSL, except for additional conditions that require certification under #8(d) above. The certification need not disclose the employee’s condition, only that he or she is at a heightened risk for serious illness or death if exposed to COVID-19.
    • Healthcare provider certification may be obtained via telemedicine.
    • An employer may only take reasonable measures to verify or document that an employee’s use of EPSL is lawful, and shall not require an employee to incur expenses in excess of five dollars in order to demonstrate his or her eligibility for such paid leave.
    • An employer may not prevent an employee’s access to or use of EPSL in order to obtain documentation to satisfy the reimbursement or tax credit reporting requirements under FFCRA.

Interplay with other Leaves

    •  Employees may elect to use EPSL before using any other leave the employer provides voluntarily or per the pre-existing Oakland Paid Sick Leave law. Employers cannot require employees to use other leave before they use COVID-19 EPSL.
    • Time provided under FFCRA’s Emergency Paid Sick Leave Act may be credited against Oakland EPSL obligations.
    • The obligation to provide EPSL does not apply to any employer that, after February 3, 2020:
      • Provides employees with the ability to accrue at least 160 hours of paid personal leave, if:
      • each employee has immediate access to at least 80 hours of leave after May 12 available for uses the EPSL ordinance requires; and
      • any employee who used paid personal leave before May 12 and has fallen below 80 hours of accrued paid leave as of May 12, be provided additional leave to bring his or her paid personal leave balance up to 80 hours, to be used for purposes the EPSL ordinance requires.

OR

      • Provides its employees immediate access to paid personal leave in amounts at least equivalent to what, and for the same purposes, the EPSL ordinance requires. For this to apply, the paid personal leave must have been in addition to any paid leave the employer was otherwise required to provide pursuant to a collective bargaining agreement, employment contract, or public policy.

If an employer lays off an employee, the employer must compensate the employee for all sick leave accrued under the existing Oakland Paid Sick Leave law immediately upon separation.

Notification to Employees: Within 3 days of its availability from the city, employers must provide a notice outlining rights under the EPSL ordinance in a manner calculated to reach all employees (posting at the workplace, electronic distribution, and/or posting on an employer’s intranet) in any language spoken by at least 10% of employees. The model notice has not yet been published.

Chicago, IL Anti-Retaliation Ordinance

On May 20 Chicago’s City Council passed Substitute Ordinance 2020-2343, which prohibits employers from taking adverse action against employees complying with instruction to isolate or self-quarantine due to COVID-10 by order of the state government or a public health entity, or under instruction of a healthcare provider, either to care for themselves or for family members. This protection is effective immediately and extends until the Commissioner of Public Health determines that the ordinance can be repealed.

The Ordinance also makes a change to the city’s Paid Sick Leave Ordinance, which is discussed below.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

District of Columbia Paid Family Leave (DC PFL) Begins July 1!

Beginning July 1, 2020, eligible employees in the District of Columbia will be able to collect paid family and medical leave benefits period for qualifying reasons:

    • 2 weeks to care for an employee’s own serious health condition;
    • 6 weeks to care for a family member with a serious health condition;
    • 8 weeks to bond with a new child during the first year.

The maximum duration of PFL leave in a 52-week period is 8 weeks of leave, regardless of the number of qualifying leave events.

DC PFL will be administered by the District’s Office of Paid Family Leave (OPFL) and funded via employer contributions.

Resources for may be found on the Department of Employment Services (DOES) and Paid Family Leave websites, including:

Final regulations providing guidance on various aspects of DC PFL benefits were released earlier this year. Items of note include:

    • Eligible employees may have more than one PFL claim open at a time for separate qualifying events (even if they are the same type of event), but may not collect payment for more than one claim on any given day. (§3501.14)
    •  A 7-day waiting period, beginning the first day of the qualifying event, must be satisfied before PFL benefits will be paid. (§3504)
      • The waiting period does not count against an employee’s total PFL entitlement.
      • Only one waiting period applies per benefit year, regardless the number of PFL claims the employee files during that year.
    • Leave may be taken intermittently, in increments of no shorter than 1 day.
      • Instruction around intermittent claims and partial weeks during a continuous leave claim appears in §3506.4 through §3506.15.
    • PFL benefits will be paid on a bi-weekly schedule via direct deposit or debit card (per the 3/13 webinar), with a week running Sunday to Saturday. The actual day of the week for payment is to be determined. (§3507)
    • DC PFL leave runs concurrently with FMLA and DC FMLA; job protection is only as provided under these laws. (§3513)
    • Interplay with company benefits:
      • Employers will be notified when an employee files a claim and upon determination. Upon an approval for benefits, the notification the employer receives will not provide the employee’s benefit amount unless the employee has instructed DOES to include this information.  However, an employer may require an employee to disclose the benefit amount in order for benefits under an employer’s policy to be paid. (§3502.8)
      • Employers may determine how their own leave policies, including Short-Term Disability, sick time, vacation time, comparable leave) work in conjunction with DC PFL. (§3513.5)

The Program Benefits regulations will ultimately appear as Chapter 35 of DCMR Tit. 7.  Final regulations around Employer Contributions have been added as Chapter 34.

Chicago, IL Paid Sick Leave Amendments

In addition to the worker protection provided by Substitute Ordinance 2020-2343 noted above, the ordinance amends the city’s Paid Sick Leave Ordinance (PSLO) effective July 1, 2020.  The change corrects a “scrivener’s error” made in amendments enacted last December that removed several classifications of employees from eligibility.  The corrected definition of eligibility is below, with the re-added groups in italics:

“Covered Employee” means an Employee who, in any particular two-week period, performs at least two hours of work for an Employer while physically present within the geographic boundaries of the City. For purposes of this definition, time spent traveling in the City that is compensated time, including, but not limited to, deliveries, sales calls, and travel related to other business activity taking place within the City, shall constitute work while physically present within the geographic boundaries of the City; however, time spent traveling in the City that is uncompensated commuting time shall not constitute work while physically present within the geographic boundaries of the City.

“Covered Employee” does not include any individual permitted to work:

(a) as a camp counselor employed at a day camp if the camp counselor is paid a stipend on a onetime or periodic basis and, if the camp counselor is a minor, the minor’s parent, guardian or other custodian has consented in writing to the terms of payment before the commencement of such employment;

(b) while subject to subsection 4(a)(2) of the IL Minimum Wage Law, with the exception of the categories of Employees described in subsections 4(a)(2)(A) and 4(a)(2)(B) of the Minimum Wage Law, who shall be entitled to the Wages that their Employer shall otherwise pay under Section 1-24-020(b) and 1-24-030 above, whichever applies, as well as the overtime compensation described in Section 1-24-040; and

(c) for any governmental entity other than the City and its Sister Agencies.

Except as provided in (d)(i) and (d)(ii), “Covered Employee” does not include any individual permitted to work for an Employer who has fewer than four Employees.

(d)(i) All Domestic Workers, including Domestic Workers employed by Employers with fewer than four Employees, shall be Covered Employees

    (ii) Employees who work in the following categories shall be Covered Employees:

        1. As an outside salesman;
        2. As a member of a religious corporation or organization;
        3. At, and employed by, an accredited Illinois college or university at which the individual is a student who is covered under the Fair Labor Standards Act, as amended;
        4. For a motor carrier and with respect to whom the U.S. Secretary of Transportation has the power to establish qualifications and maximum hours of service under the provisions of Title 49 U.S.C. or the State of Illinois under Section 18b-105 (Title 92 of the Illinois Administrative Code, Part 395 – Hours of Service of Drivers) of the Illinois Vehicle Code.

On May 12 the city posted updated rules on the Paid Sick Leave webpage, which outline some employee notification requirements not previously defined, effective July 1, 2020:

    • Notice to Employees must be:
      • Posted for all employees via the employer’s usual practice for required notices, whether paper or electronic.  If a paper notice is posted, it must be printed 11”x17”.
      • Provided along with the employee’s first paycheck, via 8.5”x11” insert or, in the event employees are paid by direct deposit (i.e., do not receive a paycheck), electronic posting.
      • Provided to all employees annually with the first paycheck on or after each July 1.
      • Published in English and any other language that applies (for which a translated model notice is available).
Massachusetts Paid Family and Medical Leave (MA PFML)

Massachusetts’ Department of Family and Medical Leave (DFML) has released proposed amendments to MA PFML regulations issued in June of last year (458 CMR 2.00). 

Material changes featured in the May 14 proposal are listed below. Note that many of the rules apply to state plan administration and may or may not apply in the same manner under a private plan.

Newly defined terms (§2.02):

    • Accrued Paid Leave
    • Active Duty
    • Application for Benefits
    • Complete Application
    • Former Member of the Armed Services
    • Good Cause
    • Job Protected Leave
    • Municipality
    • Private Plan Administrator

Definition changes (new text in italics):

    • Base Period: The last four completed calendar quarters immediately preceding the date an application for benefits is filed with the Department for a qualified period of paid family or medical leave. A completed calendar quarter is one for which an employment and wage detail report has been or should have been filed, pursuant to 458 CMR 2.04(1) and (2).
    • Continuing Treatment by a Health Care Provider, (g): Cosmetic treatments or substance abuse disorders are not serious health conditions, unless inpatient hospital care is required or unless complications develop.
    • Covered Contract Worker: A self-employed individual:
      1. for whom an employer or covered business entity is required to report payment for services on IRS Form 1099-MISC;
      2. for whom an employer or covered business entity is required to remit contributions to the Family and Employment Security Trust Fund pursuant to the requirements of M.G.L. c. 175M, §6;
      3. who performs services as an individual entity in Massachusetts;
      4. who resides in Massachusetts; and
      5. who is not classified as an independent contractor pursuant to M.G.L. c.151A, §2.

Also, the proposal adds to §2.03, Covered Business Entities and Covered Contract Workers:  Notwithstanding the requirements set forth in 458 CMR 2.03(1)-(3), self-employed individuals or covered contract workers properly classified in accordance with M.G.L. c.151A, §2 are not considered part of an employer’s workforce.

Intermittent leave:

    •  Current: An employer may designated a minimum increment for use, not to exceed four consecutive hours. Proposed: Leave may be taken in 15 minute intervals.
    • The employee must verify with DFML the hours of leave taken each week in order to receive benefit payments. (§2.10)
    • An employer with an employee who has been approved for intermittent leave must provide DFML the amount of wages or qualified earnings paid to the employee on a monthly basis or at other intervals deemed necessary by DFML. DFML may seek a refund from the covered individual or offset any future benefit payments where DFML has determined that the employee has received wages or qualifying payments from both the employer and from the Trust Fund for the same period. (§2.13)
    •  In the event that an employee’s work schedule varies from week to week, the maximum weekly benefit amount will be calculated based on the average of number of hours worked from the two highest quarters of the 12 months preceding the employee’s application for MA PFML benefits. An employee will not be eligible for benefits in excess of the number of hours so determined by DFML. For purposes of intermittent leave, benefits may be prorated on an hourly basis utilizing the average number of hours worked during the 12 months preceding the employee’s application for MA PFML benefits.
    • The benefit year for an employee who received benefits for an intermittent leave will commence, following an approval by DFML for continued benefits, on the Sunday immediately preceding the first absence following the exhaustion of the prior benefit year.

Opt-in instructions for employers not otherwise required to comply with MA PFML (§2.06)

Partial Exemptions (§2.07(1)(a)-(b)): 

    • An employer may apply for exemption via private plan for medical leave coverage, family leave coverage, or both. Contributions toward the state program will be required for the portion of coverage (medical leave or family leave) not included in the private plan.
    • An employer may not apply for an exemption for only a portion of its covered workforce. All employees and covered contract workers and former employees under [MA PFML] must be included in the employer’s private plan in order to be approved for an exemption.

In addition to equity in benefits and cost to the state program, private plans must also follow requirements around appeals, notice and basis for benefit calculation. (§2.07(2)(c)-(e))

 Covered individuals have the right to appeal a claim denial under a private plan with DFML. Claim documentation must be provided by the employer/administrator to DFML within 5 business days of a request in connection with an appeal. (§2.07(6))

Non-renewal or termination of a private plan (§2.07(8))

Application for benefits (§2.08):

    •  An individual’s application for benefits may be filed with DFML no more than 60 days before the anticipated start date of leave.
    • Notice must be provided to the employer no less than 30 calendar days prior to leave, or as soon as practicable if beyond the employee’s control.
    • Notice of the need for leave must be made to the employer prior to application to DFML.
    • DFML will notify the employer not more than five business days after an application for PFML benefits is filed. Notification will include the employee’s identifying information, details on the type of leave and applicable dates, and certification provided.
    • An application for benefits will not be processed unless the employee consents to DFML sharing information regarding the application with the employer and healthcare provider.
    • An employer must respond within 10 business days to a request from DFML for relevant claim information such as an employee’s past wages, job description, work schedule and other leave available and taken (increase from 5 days).
    • DFML may allow an employer or its designee to submit an application for benefits on behalf of a covered individual. In order to do so, employers, covered business entities, or leave administrators must be approved by the Department and agree to adhere to all of the requirements prescribed in [regulations §2.08].

Leave entitlement: In the case of multiple births, no more than 12 weeks of leave benefits total are available in a benefit year for this purpose. (§2.08(5)(c))

DFML process for benefit determinations (§2.09), which includes:

    • Where DFML finds that a covered individual has failed to provide notice of a relevant change in circumstances which would have reduced the amount of benefits paid, the employee will be responsible for reimbursing DFML the amount overpaid within 30 calendar days of the DFML’s request.

Benefit extensions (§2.10):

    • A covered individual must apply for and be eligible for benefits in any subsequent benefit year.
    • An employer may seek recertification of the employee’s serious health condition following the expiration of the initial period of incapacity cited in the original healthcare certification, or where an intermittent leave has extended for more than six months from the approval by DFML, whichever occurs first.

Return to work (§2.11): An employer may request fitness-for-duty certification if the employee is provided with a list of the essential functions of his or her job within 10 business days of the notice to the employer of the approval of leave by DFML, and must indicate that the certification must address the employee’s ability to perform those essential functions (increase from 5 days).

Weekly benefit amount (§2.12):

    • The weekly benefit amount for family or medical leave is calculated on the individual’s average weekly wage at the time of the filing of a request for leave, which is determined by the individual’s earnings in the base period as reported to the Massachusetts Department of Revenue. The weekly benefit amount will not change during the term of the approved leave period subject to a prorated or reduced benefit amount.
    • Added to the list of amounts deducted from benefits are benefits received from a private plan and wages received from another employer or through self-employment. (§2.12(6))
    • The weekly benefit amount and/or leave allotment will be reduced by any paid or unpaid leave, wages, or wage replacement that an employee on family or medical leave receives from any source for the same qualifying reason in the 12-month period prior to filing an application for benefits. This excludes leave taken prior to January 1, 2021.
    • The weekly benefit amount may be reduced where the covered individual has an outstanding tax obligation or has an obligation for child support.
    • The 7 calendar day waiting period may be waived for family leave that immediately follows pregnancy or recovery from childbirth if supported by documentation from a healthcare provider.
    • Substitution of Employer-Provided Paid Leave (§2.12(8)):
      • Employees who are approved for leave benefits by DFML may choose to use accrued paid leave provided by their employer rather than receive a paid benefit under MA PFML. The accrued paid leave provided by an employer will run concurrently with available MA PFML leave, however MA PFML benefits will not be paid for this period of time.
      • Employers are required to inform employees who choose to use accrued leave paid by the employer that the use of these employer-provided leave accruals will run concurrently with the leave period provided under MA PFML.
    • Employer Reimbursement (§2.12(9)):
      • An employer or covered business entity that makes payments to an employee during a period of family or medical leave equal to or greater than the amount required under [MA PFML] will be reimbursed out of any benefits due to the employee or to become due from the Trust Fund by DFML.
      • To qualify for reimbursement, a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer, must be a policy or program that is granted to a covered individual for a qualifying reason under MA PFML, that is separate from and in addition to any sick leave, annual leave, vacation, personal leave, or accrued paid time off that is made available to the employee. Employers will not be eligible for reimbursement from DFML for payments to an employee where the employee has elected to utilize accrued paid leave whether it is in lieu of applying for benefits to the Department or supplementary to a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer or covered business entity.
      • A voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under MA PFML may be reimbursable under M.G.L. c. 175M, §3(c). In order to be eligible for any reimbursement, employers will be required to produce evidence that payments to an employee for a qualifying reason were consistent with the requirements set forth in [these regulations and MA PFML law].
      • In no event shall DFML reimburse an employer or covered business where the employee has received a benefit from the Trust Fund for the same period of time.

DFML has posted information regarding a public hearing addressing the proposed changes to be held on June 11; interested parties may register to participate in the hearing and/or submit comments via the Department’s designated webpage.

The Department of Insurance has responded to the release of the proposed changes by stating that the June 3 due date for carriers’ private plan product filings stands, however carriers may delay the submission of policy forms for up to 30 days following finalization of the regulations. In order to take advantage of this, a carrier must file a “placeholder filing” which includes (1) payment of filing fees, and (2) certification that the carrier will file all forms consistent with Filing Guidance Notice 2020-A no later than 30 days from publication of the final regulations. (See our April 8 release for more details).

Separately, DFML recently communicated that as of January 1, 2020, the IRS requires the use of Form 1099-NEC to report nonemployee compensation.  This income was previously reported in Box 7 of the 1099-MISC form and could be subject to contribution withholding with the Massachusetts Department of Family and Medical Leave. Any employer employing individuals that now report wages via a 1099-NEC will not be required to remit contributions on behalf of those individuals.  Employers that employ individuals that still receive wages via a 1099-MISC may still be required to remit contributions on their behalf (refer to Exemption Requests, Registration, Contributions, and Payments).

 

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

 

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

Statutory Update – COVID-19 Leave Legislation; NM, VA and WA Pregnancy Accommodations

May 1, 2020

Federal Guidance

Below are links to various resources providing guidance on recently enacted Federal COVID-19 legislation.  Additional information may be found in previous Statutory Update releases posted on the MMA ADL Blog.

Families First Coronavirus Response Act (FFCRA)

Applicable to employers with fewer than 500 employees

H.R.6201

Department of Labor (DOL)

Internal Revenue Service (IRS)

State and Local Legislation

California COVID-19 Supplemental Paid Sick Leave

On April 16 the governor of California issued Executive Order N-51-20, providing Food Sector Workers up to 80 hours of “COVID-19 Supplemental Paid Sick Leave (SPSL).”

Applies to all private employers (or “Hiring Entities”) with 500 or more employees in the United States. The method applied to calculating size is the same as that under Families First Coronavirus Response Act (FFCRA).

Eligible Employees are Food Sector Workers who meet all of the following criteria:

    • The employee performs work in a food-related industry or in the retail food supply chain, including pick-up, delivery, warehousing, packaging, retail or preparation (as fully defined in 1(b) of the ordinance);
    • The employee is exempt from Executive Order N-33-20 as an Essential Critical Infrastructure Worker; and
    • The employee leaves his or her home to perform work for or through a Hiring Entity.

Leave Entitlement:

    • Considered Full-Time or scheduled to work an average of 40 hours per week for the Hiring Entity for the two-week period preceding leave: 80 hours
    • Employees not falling into the category above are eligible for leave equivalent to the total number of hours normally scheduled over a two-week period.  If the employee works a variable number of hours, eligibility for leave is calculated at 14 times the average hours the employee worked each day for the Hiring Entity during the 6-month period preceding leave (or since date of hire, if shorter).
    • SPSL is in addition to leave provided under California Paid Sick Leave.
    • An employer may not require an employee to use any paid or unpaid leave or time off prior to or instead of SPSL.
    • Employers who, as of April 16, 2020, provide leave of equivalent or greater value than, and for the same reasons for use as, SPSL are not required to provide additional leave.

Reasons for Use:

    • The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    • The employee is advised by a healthcare provider to self-quarantine or self-isolate due to concerns related with COVID-19;
    • The employee is prohibited from working by the Hiring Entity due to health concerns related to potential transmission of COVID-19.

Pay: Each hour of SPSL must be paid at the rate which is the highest of the following, to a maximum of $511 per day and a total of $5,110:

    • The employee’s regular rate of pay for the latest pay period;
    • State minimum wage; or
    • Local minimum wage.

Employers must display a notice in a conspicuous place accessible to all employees. If employees do not frequent a workplace the notice may be distributed electronically. A model notice has been posted.

The Department of Industrial Relations (DIR) has provided additional information on its website in the form of FAQ.

The order was effective immediately upon signing, and its requirements extend the duration of any statewide stay-at-home order.

Los Angeles County, CA Supplemental Paid Sick Leave

On April 28 Los Angeles County’s Board of Supervisors unanimously approved the Worker Protection Ordinance establishing Supplemental Paid Sick Leave (SPSL) for employees impacted by COVID-19. The ordinance’s leave entitlement requirements apply retroactively to March 31 and expire December 31, 2020, unless extended. The ordinance is similar to those recently passed in San Francisco (below), the City of Los Angeles, and San Jose (both covered in our April 17 release).

Applies to employers as defined under California Labor Code Section 18 with 500 or more employees nationally.

Excludes:

An eligible employee is anyone employed as of April 28, 2020 and who performs any work in the unincorporated areas of Los Angeles County. 

Excludes:

    • Employees who are able to work from home.
    • At the employer’s discretion, emergency responders or healthcare providers (as defined in the ordinance)
    • Independent contractors. Employers must be able to demonstrate that an individual is an independent contractor and not an employee.
    • Food sector workers covered under California Supplemental Paid Sick Leave (Executive Order N-51-20).
    • Employees covered by a Collective Bargaining Agreement if the CBA is bilaterally modified to waive the ordinance’s provisions in clear and unambiguous terms.

Leave Entitlement: 

    • Employees working 40 hours per week or classified as Full-Time: 80 hours. SPSL is calculated based on the employee’s highest average two-week pay from January 1, 2020, through April 28.
    • Employees working less than 40 hours per week and not classified as Full-Time are eligible for an amount of SPSL equal to the employee’s average two-week pay from January 1, 2020, through April 28.
    • SPSL is in addition to any paid time off available to an employee under the California Paid Sick Leave law (CLC §246).
      • However, an employer’s obligation to offer SPSL may be reduced for every hour the employer allowed an employee to take paid time off for reasons consistent with those outlined under the ordinance (listed below) on or after March 31, 2020, not including any previously accrued leave.

Pay:  The maximum amount of benefit available per day is $511, with an aggregate maximum of $5,110

Use:

    • An employee’s request for SPSL must be in writing, which includes e-mail and text message.
    • An employer may not require an employee to use any other paid or unpaid leave or time off prior to or instead of SPSL.
    • Employers may require a doctor’s note or other documentation for the use of SPSL.

Reasons for Use:

    • A healthcare provider or public official requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
    • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system);
    • The employee needs to care for a family member (as defined in the ordinance) who is subject to a federal, state, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
    • The employee takes time off work to provide care for a family member whose senior care provider or whose school or child care provider ceases operations in response to a public official’s recommendation.

An employer may not discharge, threaten to discharge, demote, suspend, reduce other employee benefits, or in any manner discriminate or take adverse action against any employee in retaliation for exercising rights protected under the ordinance.

San Francisco, CA Public Health Emergency Leave Ordinance (PHELO)

On April 17 the mayor of San Francisco signed Ordinance No. 59-20, or the Public Health Emergency Leave Ordinance (“PHELO”). The requirements of the ordinance are effective until June 17, 2020, unless extended, or when the San Francisco Public Health Emergency is terminated, if earlier

Applies to private employers as defined under California Labor Code Section 18, with 500 or more employees “worldwide”.

Eligible employees are those who perform any work within the geographic boundaries of the City and County of San Francisco. “Employee” is as defined under California Labor Code §2750.3(a) and includes part-time or temporary workers and participants in a Welfare-to-Work Program administered by the Human Services Agency. It also includes individuals who perform limited work within the city and are considered employees under Rule 6 of the Rules implementing the San Francisco Paid Sick Leave Ordinance (PSLO).

Excludes:

    •  Employees who are able to work from home;
    • Employees covered by a Collective Bargaining Agreement if the ordinance’s requirements are waived in the CBA in clear and unambiguous terms;
    • Independent contractors (consistent with CA law).

Leave Entitlement:

    • Full-Time employees as of February 25, 2020, are eligible for 80 hours of Public Health Emergency Leave (PHEL).
    • Part-Time employees as of February 25, 2020, are eligible for PHEL hours equal to the average number of hours over a two-week period the employee was scheduled during the 6 months prior to February 25, 2020, including hours for which the employee took any type of leave.
    • For employees hired after February 25, 2020, the number of PHEL hours to which they are entitled is equal to the number of hours worked, on average, over a two-week period between the date of hire and the date upon which the leave is taken, including hours for which an employee took any type of leave.
    • The maximum amount of PHEL leave available is 80 hours.
    • PHEL is in addition to any paid time off an employer offered or provided employees on or before the PHELO’s effective date (April 17). However:
      • An employer’s obligation to offer PHEL may be reduced for every hour the employer allowed an employee to take paid time off for reasons consistent with those outlined under the ordinance (listed below) on or after February 25, 2020, not including any previously accrued hours.
      • Employers that provide paid leave under California Supplemental Paid Sick Leave (Executive Order N-51-20, described above) are permitted to offset that leave.
      • Note: that the reasons for use under the PHELO are broader than those under Executive Order N-51-20, so if a company falls under both the PHELO and the Executive Order, the company will need to ensure compliance with both.

Pay:

    • PHEL must be calculated in the same manner as paid sick leave under the PSLO (see §12W.3(h)).
    • Employers must provide payment for PHEL no later than the payday for the next payroll period after PHEL is taken.

Reasons for Use:

    • The employee is subject to a federal, state or local COVID-19 quarantine or isolation order, or is caring for a family member* who is under such quarantine;
    • The employee or a family member is a member of a “vulnerable population” as defined in Order No. C19-05 and unable to work due to recommendations in that order, Order No. C19-07b, or any similar order recommending or requiring restrictions for vulnerable or high-risk individuals.
    • The employee has been advised by a healthcare provider to self-quarantine due to COVID-19, or is caring for a family member who has been so advised**;
    • The employee or a family member is experiencing symptoms of COVID-19 and is seeking medical diagnosis**;
    • The employee is caring for a family member whose school or care provider is closed due to COVID-19;
    • The employee is experiencing any other substantially similar condition specified by the Local Health Officer or by the U.S. Secretary of Health and Human Services.

* Family members are as defined under the San Francisco Paid Sick Leave Ordinance.

** Employers of employees who are healthcare providers or emergency responders (as defined under FFCRA §826.30(c)) may limit these employees’ use of PHEL, but must at a minimum allow them to use PHEL if they have been directed by a healthcare provider to self-quarantine, or if they are experiencing COVID-19 symptoms and do not meet the CDC guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.

Use:

    • Employees may use PHEL before using other accrued paid time off. An employee may choose, but the employer may not require an employee, to use other paid time off before using PHEL.
    • Employers may limit an employee’s use of PHEL hours in a given work week to the average number of hours over a one-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took leave of any type.
    • Employers may not require a minimum increment for use of more than one hour.
    • Employers may require reasonable advance notice, but only if the need for leave is foreseeable.
    • An employer may require an employee to identify the basis for requesting PHEL, but may not require the disclosure of health information or other documentation, such as a doctor’s note or letter from a child care facility.
    • Upon an employee’s separation from employment, an employer is no longer obligated to provide or pay for any Public Health Emergency Leave not used prior to separation. Note:
      • “Furlough” is not considered a separation from employment.
      • The April 24 FAQ indicate that if an employee separates from an employer for any reason and is rehired by the employer within one year from the date of separation, unused PHEL must be reinstated.

Notice to Employees

    • Notice must be provided immediately in a manner calculated to reach all employees (posting at the workplace, electronic distribution, and/or posting on an employer’s intranet) in English, Spanish, Chinese, and any language spoken by at least 5% of employees at the worksite.
    • “To the extent feasible” the amount of PHEL available to the employee must be included on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages, consistent with requirements under the California Paid Sick Leave law (CLC §246(i)).

Employers must retain records documenting work schedules, hours worked, and PHEL taken by employees for a period of four years.

The ordinance, model notice and FAQ may be found on the Office of Labor Standards Enforcement’s (OLSE) webpage.

An employer may not discharge, threaten to discharge, demote, suspend, reduce other employee benefits, or in any manner discriminate or take adverse action against any employee in retaliation for exercising rights protected under the ordinance.

San Jose, CA COVID-19 Paid Sick Leave Guidance

On April 7, San Jose’s City Council adopted Ordinance No. 30390 requiring paid sick leave for employees who must leave their homes to perform “essential work” (see our April 17 release for details).  The city’s Office of Equality Assurance has since posted guidance on its website, including an April 16 Opinion Letter, FAQ (in multiple languages) and an Employee Rights Notice (though no specific notification requirements have been outlined just yet).

Colorado Health Emergency Leave with Pay (“HELP”) Amendment

Colorado “HELP”, on which MMA ADL reported in our March 20 and April 8 releases, has been amended once again.  The following changes are effective as of April 27:

    • The list of industries included has been expanded to include retail establishments, real estate sales and leasing, offices and office work, elective medical, dental and health services, and various personal care services (industry descriptions may be found on the Colorado Department of Labor and Employment’s (CDLE) website).
    • Benefit entitlement has increased from four days at full pay to two weeks (calendar days, maximum 80 hours) at 2/3 the employee’s regular rate of pay (as defined in Rule 1.8).
    • Reasons for leave now include (updates in bold type): (1) Flu-like or respiratory illness symptoms; and (2) Quarantine or isolation instructions from a healthcare provider or authorized government official.
    • Leave ends once the employee has been fever-free for 72 hours, with other symptoms resolving as well, but not earlier than after 7 calendar days off from work (10 for healthcare workers).

Additional notes:

    • Employees are paid only for days they would have worked.
    • Employers may require documentation for taking HELP, but only as consistent with what the Family and Medical Leave Act (FMLA) permits and with the additional limitation that the employee be allowed to provide the documentation (1) upon return from leave, and (2) in the form of his or her own written statement instead of documentation directly from a healthcare provider (see FAQ for more details).
    • Employers who already offer all employees an amount of paid leave sufficient to comply with HELP requirements do not need to offer additional paid leave. However, an employee who exhausted paid leave provided by the employer but then qualifies for paid sick leave under HELP is entitled to the additional paid sick days.

HELP’s leave requirements have been extended to May 26; however, additional extensions may follow if the State of Disaster Emergency declared by the governor continues.

The CDLE’s website reflects the changes above, and any changes previously announced, in the HELP FAQ and Rules.

Washington Protections for High-Risk Individuals

On April 13 the governor of Washington issued Proclamation 20-46, which requires employers to protect individuals identified by the Centers for Disease Control (CDC) as at higher risk for severe illness from COVID-19 by:

  • Utilizing all options for alternative work assignments, including telework, alternative or remote work locations, reassignment, and social distancing measures;
  • If an alternative work assignment is not feasible, allowing use of employer-provided accrued leave or unemployment benefits (at the employee’s discretion); and
  • Maintaining employer-related health benefits during any period of paid or unpaid leave.

Employers are prohibited from taking any adverse action against any employee exercising his or her rights under the proclamation.

These requirements are in effect through June 12, 2020, unless extended.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Accommodations and Anti-Discrimination Protections for Pregnant Workers

New Mexico: HB25, amends the state’s Human Rights Act effective May 20, 2020 to explicitly prohibit discrimination on the basis of pregnancy, childbirth or condition related to pregnancy or childbirth.  Employers must make reasonable accommodations for employees with needs arising from these conditions, and may not require an employee to take paid or unpaid leave of absence if another accommodation is available.

Virginia: Identical bills HB827 and SB712 amend the Virginia Human Rights Act and require employers to provide reasonable accommodations for needs associated pregnancy, childbirth or lactation. Employers are prohibited from requiring an employee to take paid or unpaid leave of absence if another accommodation is available, or for discriminating against or otherwise penalizing any employee who requests accommodation. Employers are required to notify employees of these protections via conspicuous posting, entry in the employee handbook, and in writing to new hires and within 10 days to any employee who provides notice that she is pregnant. The law takes effect on July 1, 2020.

Washington: HB2266 requires employers to provide reasonable accommodations for pregnancy and pregnancy-related conditions. Accommodations may include restructured or modified work duties, scheduling flexibility for prenatal visits, and break times for expression of breast milk without a healthcare provider’s certification (for up to two years). Employers are prohibited from taking any adverse action against an employee for requesting such accommodation. These requirements amend existing regulations effective June 11, 2020.

 

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

 

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved. 

Statutory Update – State COVID-19 Leave Legislation Updates

April 17, 2020
State Disability and/or Paid Family Leave Program Responses to COVID-19

Updates from our previous version of this table are in bold type:

  Program / Change Helpful Links
California State Disability Insurance (SDI):

  • Benefits may be available with medical provider’s certification or written order from a public official
  • 1-week waiting period waived

Paid Family Leave (PFL): Benefits may be available with medical provider’s certification or written order from a public official

Paid Sick Leave: self-quarantine may be considered “preventive care”

EDD – COVID-19 information and state programs

EDD – COVID-19 FAQ

DIR Guidance on CA Paid Sick Leave

Summary of Programs for Workers

Hawaii Temporary Disability Insurance: no changes to law, however, benefits may be available during quarantine with healthcare provider certification COVID-19: Labor Benefits Fact Sheet

TDI FAQ

Hawaii Department of Labor

Hawaii Employers Council

New Jersey Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI): Benefits may be available during mandatory or recommended quarantine due to exposure to or attempt to prevent the spread of a communicable disease during a State of Emergency or public health order; the one week waiting period for TDI is waived for leave for this reason.*

Earned Sick Leave: law as written enables employees to take time off from work for public health emergencies; this was expanded by S2304 to specify reasons associated with a state of emergency declaration.*

NJ DOL – State Benefits and COVID-19

NJ State Benefit Scenarios

New York Disability Benefits (DBL): no changes to the law itself, however some benefit may be available in coordination with Emergency Paid Sick Leave (see our March 20 release for details)

Paid Family Leave (PFL): The definition of “serious health condition” has been expanded to include a family member’s COVID-19 diagnosis.**

Emergency Paid Sick Leave: leave for quarantined workers effective March 16; separate accrued paid sick leave requirements begin later this year***

Attorney General’s Guidance

New Paid Leave for COVID-19

Puerto Rico Temporary Disability (SINOT): no announced changes

Paid Sick Leave:

  • On April 9 the governor of Puerto Rico signed House Bill 2428 (available only in Spanish, and now Act No. 37-2020). The Act permanently amends the current paid sick leave law (Act No. 180-1998) to provide non-exempt employees who are sick or suspected of being sick with a pandemic illness during a state of emergency five days of emergency paid sick leave after all other leave has been exhausted.
  • On March 13 Puerto Rico’s Department of Labor issued guidance that included instruction that employees be entitled to use their sick leave for any true need associated with COVID-19 (Opinion 2020-01, available only in Spanish).
Rhode Island Temporary Disability Insurance (TDI) and Temporary Caregiver Insurance (TCI): 7-day waiting period waived; self-attestation accepted temporarily for individuals under quarantine

Sick and Safe Leave: no changes; law as written enables employees to take time off from work to care for themselves or family members affected by COVID-19

Workplace Fact Sheet
Washington Paid Family and Medical Leave (PFML): no COVID-19 changes

Paid Sick Leave: no changes; law as written enables employees to take time off from work for public health emergencies

ESD – COVID-19 Information for Workers and Businesses

WA PFML COVID-19 FAQ

Paid Sick Leave COVID-19 FAQ

WA State Benefit Scenarios

* Senate Bill 2304 (P.L.2020, c.17) was signed by the governor of New Jersey on March 25, 2020. The law expands the definition of “serious health condition” under NJ TDI, FLA and the New Jersey Family Leave Act (NJ FLA) to include quarantine due to illness from, exposure to, or in attempt to prevent the spread of, a communicable disease during a State of Emergency or under public health order, and waives the one-week TDI waiting period for leave for this reason. The law also amends the Earned Sick Leave Law to include needs associated with a state of emergency declaration among reasons for leave.

Senate Bill 2374 (P.L.2020, c.23), signed on April 14, 2020 and effective retroactively to March 25, removes mandatory or recommended quarantine due to illness from, exposure to, or in attempt to prevent the spread of, a communicable disease during a State of Emergency or under public health order from the definition of “serious health condition” under TDI, FLI and FLA (per S2304) and adds it to reasons for leave. The law also further amends FLA to provide leave to care for a child whose school or place of care has closed by order of a public official due to epidemic or other public health emergency. The law includes guidance around certification, intermittent leave and denials for FLA leave taken for public health emergency reasons.

** Emergency amendment to the NY PFL law announced by NY Workers Compensation Board (WCB) on March 27, 2020, which expires in 90 days (approximately June 25, unless extended). This is separate from Emergency Paid Sick Leave and “fast tracking” to NY DBL and PFL benefits covered in our March 20 release.

*** NY WCB has clarified that the breakdown of employers by size for Emergency Paid Sick Leave obligations is based on an employer’s national employee count. Additional note: Emergency Paid Sick Leave was ultimately passed as S8091, with no changes in provisions. Comprehensive paid sick leave was passed April 3 as part of the state budget (S7506); the law is effective September 30 with leave entitlement beginning January 1, 2021. See our March 20 and March 25 releases for more details.

Los Angeles, CA COVID-19 Supplemental Paid Sick Leave

As reported in our April 8 release, on April 7, 2020 the mayor of Los Angeles signed Ordinance No. 186590, or “COVID-19 Supplemental Paid Sick Leave”, requiring employers to provide paid sick leave to employees working in Los Angeles.  Later that same day, the mayor issued an Emergency Order suspending the Ordinance as passed and replacing certain provisions:

Provision Ordinance Emergency Order *
Effective Date Effective April 10, 2020 through December 31, 2020 Effective April 7, 2020 until two weeks after expiration of the COVID-19 local emergency period
Employers Impacted Applies to employers with 500 employees nationally

Excludes employers of first responders (as defined in the Ordinance) or healthcare providers (as defined under CFRA)

Applies to employers with either:

  1. 500 or more employees within the City of Los Angeles; or
  2.   2,000 or more employees within the United States*

Excludes:

  • Employers of emergency personnel as defined in the April 1 ‘Safer At Home’ Emergency Order
  • Healthcare providers as defined under CFRA or individuals, including contract workers, working at a health facility licensed under HSC §1250;
  • Global parcel delivery services
  • Businesses that started in or relocated to the city between 9/4/19 and 3/4/20 (exceptions apply for construction companies and film producers)
  • Businesses closed for a period of 14 days due to official COVID-19 emergency order, or that provided at least 14 days of leave*
Eligible Employees Employed by the same employer from February 3, 2020, through March 4, 2020, and perform any work within the geographical boundaries of Los Angeles

Employer must be able to prove an individual is an independent contractor and not an employee

No change; however, reference to independent contractors is not included.*

Excludes “employees of government agencies working within the course and scope of their public service employment”

Collective Bargaining Agreements The Ordinance’s provisions may be waived in a CBA, but only if the waiver is expressly stated and the agreement is bilaterally modified. A CBA in place on the effective date of the Order may supersede the Order’s provisions if the CBA includes COVID-19-related sick leave provisions.  If it does not, the employer must comply with the Order’s requirements unless and until the CBA is amended to expressly waive them. Requirements may also be (expressly) waived upon the CBA’s expiration or renegotiation.
Leave Entitlement Employees who work 40h/week or are classified as Full-Time: 80 hours

Employees who work less than 40h/week and not classified as Full-Time: average two-week pay between February 3 and March 4, 2020

Employees of joint Employers are only entitled to the total aggregate amount of leave specified for Employees of one Employer.

With the exception of FFCRA, leave under Supplemental Paid Sick Leave is in addition to other leave available to the employee.

No change*, though Order specifies “employee is unable to work or telework”
Pay Calculated based on average 2-week pay between February 3 and March 4, 2020

Maximum $511/day, $5,110 total

No change*
Employer Offset An employer’s obligation to provide 80 hours of Supplemental Paid Sick Leave is reduced for every hour an employer allowed an employee to take paid leave in an amount equal to or greater than the ordinance’s requirements, not including previously accrued hours, on or after March 4, 2020, for the reasons outlined below. An employer’s obligation to provide 80 hours of Supplemental Paid Sick Leave is reduced for every hour an employer allowed an employee to take paid leave in an amount equal to or greater than the ordinance’s requirements, not including previously accrued hours, on or after March 4, 2020, for the reasons outlined below or in response to an employee’s ability to work due to COVID-19.*

In addition: If an Employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the Employer is exempt from any obligation to provide supplemental leave pursuant to this Order for the Employee that received the more generous paid leave.*

Reasons for Leave
  1. Because a public official or healthcare provider recommends the Employee to quarantine to prevent the spread of COVID-19
  2. Employee is least 65 years old or has an underlying health condition
  3. To care for a family member who is not sick but who has been advised to quarantine
  4. To care for a child under 18 or other family member whose school or care provider has closed in accordance with a public official’s recommendation
  1. Due to Employee’s COVID-19 infection or because a public official or healthcare provider recommends the Employee to quarantine to prevent the spread of COVID-19
  2. No change
  3. No change
  4. Applies only if the employee is unable to secure a “reasonable alternative” caregiver
Documentation Employer may not require documentation No change*
Enforcement Legal action for violation of the Ordinance may result in an award requiring an employee’s reinstatement, back pay or “other legal or equitable relief”, including payment of legal fees No change

* The information above reflects text appearing in the original Ordinance and in the mayor’s Executive Order; additional information and guidance may be found in the Rules and Regulations document posted by the Office of Wage Standards (OWS) on April 11.

San Jose, CA COVID-19 Paid Sick Leave

San Jose’s City Council unanimously adopted the COVID-19 Paid Sick Leave Ordinance (Ordinance No. 30390) effective April 7, 2020.

Eligible employees are those who have worked at least two hours within the boundaries of San Jose and must leave their homes to perform “essential work.” “Essential” work activities and services were originally defined in a March 16 Order issued by the Santa Clara County Public Health Officer announcing the closure of non-essential services, which was superseded by a March 31 Order (see #13).

    • Employee status will be determined in accordance with CLC §2750.3, and applicability to workers in the construction industry will be determined under CLC §245.5(a)(2).
    • Excludes employees who are able to work from home.

Covered Employers are:

      • as defined under the city’s Minimum Wage Ordinance (Municipal Code §4.100.030); and 
      • not subject “in whole or in part” to the paid sick leave requirements under the Families First Coronavirus Response Act (FFCRA) (i.e., the San Jose Ordinance applies to employers with 500 or more employees, as well as to employers with fewer than 50 employees who may qualify for FFCRA exemption).
    • Excludes employers who, as of April 7, provide their employees with some combination of paid personal leave at least equivalent to leave required by the Ordinance.  If leave provided by an employer is in some way less than what the Ordinance requires, the employer is required to make up the difference.
    • Employers operating hospitals may delay compliance with the Ordinance for two weeks following enactment on April 7.

Leave Entitlement:

    • Full-Time employees are eligible for 80 hours of sick leave benefit.
    • Part-Time employees are eligible for sick leave hours equal to the number of hours they work on average over a two-week period.
        • The amount of paid sick leave for Part-Time employees is calculated based on the average number of hours the employee worked per day during the 6 months prior to April 7, 2020. If the employee has been employed for less than 6 months, the calculation should be based on the average hours the employee was expected to work at the time of hire.
    • Unused sick time will not carry over from one year to the next, will not be paid out under any circumstances and will not be available after the sunset of the Ordinance.

Reasons for Use include:

    • The employee is subject by a COVID-19 quarantine order issued by a local official, or is caring for someone who is under such quarantine;
    • The employee has been advised by a healthcare professional to self-quarantine due to COVID-19 or is caring for someone who has been so advised;
    • The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
    • The employee is caring for a minor child whose school or care provider is closed due to COVID-19.

Pay:

      • An employee using sick leave for his or her own needs will be paid his or her full regular rate of pay up to $511 per day, not to exceed $5,110.
      • An employee using sick leave to care for another person will be paid 2/3 his or her regular rate of pay up to $200 per day, not to exceed $2,000.
    • The city’s Office of Equality Assurance is authorized to establish, implement and enforce the Ordinance’s requirements, which may include a notice posting requirement.
    • The Ordinance does not provide economic relief for or tax credits to employers who are obligated to provide leave.
    • The Ordinance is set to sunset on December 31, 2020.

Note: San Francisco’s Board of Supervisors passed a Public Health Emergency Leave Ordinance (“PHELO”) similar to the Los Angeles and San Jose ordinances, which has been submitted to the mayor for approval and signature. Oakland may also enact emergency paid sick leave requirements. We will continue to monitor and provide updates.

District of Columbia COVID-19 Response Supplemental Emergency Amendment Act

On April 10, 2020, Washington D.C. enacted the COVID-19 Response Supplemental Emergency Amendment Act (D.C. Act 23-886), effective retroactively to March 11. While the provisions of the Act cover a number of topics, the information here is limited to its impact on the District’s Accrued Sick and Safe Leave Act (ASSLA).

The Act temporarily amends ASSLA by creating “declared emergency paid leave” for reasons associated with the COVID-19 emergency*, via the addition of §32-531.02a

During the COVID-19 emergency, employers with 50-499 employees** that are not healthcare providers (as defined) must provide declared emergency paid leave for an absence from work for any reason covered under the Families First Coronavirus Response Act (FFCRA)s Emergency Paid Sick Leave Act (EPSLA):

    1. the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    2. the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
    3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    4. the employee is caring for an individual who is subject to an order as described in #1 or has been advised as described in #2;
    5.  the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
    6. the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

*Emergencies declared via Mayor’s Orders 2020-045 and 2020-046 on March 11, including any extensions.

** The Act does not specify if this number is overall or only employees in the District; future regulations may clarify.

 Employees who have been employed at least 15 days prior to the request for leave are eligible.

Leave Entitlement:

        • Full-Time employees: 80 hours
        • Part-Time employees: the usual number of hours the employee works in a two-week period
        • An employer may require that an employee exhaust any available leave under federal or District law or the employer’s own policies prior to using declared emergency paid leave.
        • If the employee exhausts declared emergency paid leave and informs the employer of the continued need to be absent from work, the employer must inform the employee of other paid or unpaid leave available by law or under the employer’s policies.

Pay: Employees must be compensated at their regular rate of pay. If the employee does not have a regular rate of pay, his or her rate should be determined by dividing the employee’s total gross earnings (including tips, commissions, piecework, or other earnings) during his or her most recent two-week period by the number of hours worked during that period. The employee’s rate may be no less than the District’s minimum wage.

Notification: Employers may not require more than 48 hours’ notice of the need for leave; in an emergency, the employer must accept “reasonable” notice.

Certification: Employers may request “reasonable” certification for absences of three or more consecutive working days – however, employers that do not contribute towards an employee’s health insurance premiums may not require certification for absence under declared emergency paid leave. 

        • When certification is requested, the employee is not required to provide it until one week after returning to work. (see §32-531.04(a-1))

Recordkeeping requirements follow existing requirements under ASSLA: record of hours worked and leave taken must be retained for three years.

The amendment expires in 90 days (July 9, 2020), unless extended.

Michigan COVID-19 Leave and Job Protection

On April 3 the governor of Michigan issued Executive Order 2020-36, requiring employers to provide leave and job protection for employees exposed to or diagnosed with COVID-19.

Employees who test positive for COVID-19, or who display one or more of the principal symptoms of COVID-19, should remain in their home or place of residence, even if they are otherwise permitted to leave under Executive Order 2020-21 or any executive order that may follow it (note: on April 9 Executive Order 2020-21 was rescinded and replaced by Executive Order 2020-42), until:

    • Three days have passed since their symptoms have resolved, and
    • Seven days have passed since symptoms first appeared or since the test yielding a positive result was administered.

These requirements cease to apply to anyone who, after showing symptoms, receives a negative COVID-19 test.

Employees who have been in close contact with someone who tests positive for COVID-19 are instructed to remain home until 14 days have passed since contact, or the symptomatic person receives a negative COVID-19 test. 

    • This excludes healthcare professionals, health facility workers, first responders, child protective services employees, employees of child caring institutions, and correctional facility workers,

Employers are prohibited from terminating or otherwise penalizing employees who stay home from work under the terms of the Order, unless the employee returns to work before the time periods specified above have lapsed.

Employers must treat employees as if they were taking leave under Michigan’s Paid Medical Leave Act (PMLA) (MCL §408.961 et seq). Leave must be allowed for the duration of the employee’s need as defined under the Order. The employer may decrement the employee’s PMLA hours or, if the employee has exhausted time, provide unpaid leave. (Note that the Order applies to all employers, even those with fewer than 50 employees who are not required to provide accrued time under PMLA.)

Nothing in the Order prohibits an employer from disciplining or discharging an employee who is allowed to return to work under the Order but refuses to do so.

The Order is in effect until the end of the declared states of emergency and disaster.

Seattle, WA Paid Sick and Safe Time Emergency Rule

On April 8, 2020, Seattle’s Office of Labor Standards (OLS) issued an Emergency Rule (SHRR 70-080) indicating that employers may not require a doctor’s note or other healthcare provider certification during the COVID-19 outbreak, citing that it poses an “unreasonable burden” on employees. Employers are instructed to accept alternative methods of verification such as an oral or written statement from the employee, or documentation from other individuals such as service providers, social workers, case managers or legal advocates stating that, to their knowledge, the employee is using PSST for a covered purpose.  The Rule is in effect through June 7, 2020.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page. 

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

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This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company 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 affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.