April 8, 2020

Federal Legislation

DOL Issues Temporary Rules for Paid Leave under the Families First Coronavirus Response Act (FFCRA)

On April 6, 2020, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published rules to provide direction for administering the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) contained in the Families First Coronavirus Response Act (FFCRA). These leave requirements apply to employers with fewer than 500 employees and are effective April 1, 2020.

The following includes guidance provided by the WHD temporary rule (FFCRA rules will ultimately appear as Part 826 of CFR Title 29) and the DOL FAQ (#60-79 are new), and supplements information provided by MMA ADL in previous Statutory Update releases on March 20, March 25 and March 30:

Defined terms:

• “Subject to quarantine or isolation order”: Quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause an employee (or category of employees such as by age range or medical condition) to be unable to work even though his or her employer has work that the employee could otherwise perform.
• “Telework”: Work an employer permits or allows an employee to perform while the employee is at home or at a location other than his or her normal workplace. An employee is able to telework if his or her employer has work available, the employer permits the employee to work from the employee’s location, and there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work. Telework may be performed during normal hours or at other times agreed by the Employer and Employee. Telework is work for which wages must be paid as required by applicable law and is not compensated as paid leave under the EPSLA or the EFMLEA.
•  “Substantially similar condition” for use of Emergency Paid Sick Leave has not yet been defined (DOL FAQ #73)

Employers should calculate business size each time an employee needs to take leave, which means availability of Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML) could vary from one week to another.  Per the example in the temporary rules:

“If an employer has 450 employees on April 20, 2020, and an employee is unable to work starting on that date because a health care provider has advised that employee to self-quarantine because of concerns related to COVID-19, the employer must provide paid sick leave to that employee. If, however, the employer hires 75 new employees between April 21, 2020, and August 3, 2020, such that the employer employs 525 employees as of August 3, 2020, the employer would not be required to provide paid sick leave to a different employee who is unable to work for the same reason beginning on August 3, 2020.”

• An employer’s count should include all employees working in the United States, including full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency.  Independent contractors and employees who are laid off or furloughed need not be counted. Businesses comprised of multiple entities are instructed to follow FLSA joint employer rules and the FMLA integrated employer test in determining size. (DOL FAQ #2)
• Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, if the leave payments would jeopardize the viability of their business as a going concern. Employers electing this exemption should document their determination based on the criteria set forth in the rules and retain these records. Note that display/distribution of the mandatory Employee Rights Notice is still required. (DOL FAQ #4, #58-59; rules §826.40)

Employer notice to employees:

• The Employee Rights Notice must be displayed by April 1, 2020, in a conspicuous place accessible to all employees. Per the posted FAQ, the notice may be distributed to all current employees working remotely via mail or email and/or posted on a website available to all employees. Although the FFCRA does not require employers to provide a translated notice to employees, the Department has issued the notice in other languages.
• Notices for Emergency Family and Medical Leave: FFCRA does not require employers to respond to employees who request EFMLEA leave with “traditional FMLA” notices of eligibility, rights and responsibilities, or written designations that EFML leave use counts against employees’ FMLA leave allowances. However, an employer that has established practices for providing individual employees with specific notices compliant with the FMLA regulatory guidance (29 CFR 825.300) may prefer to apply its existing practices to EFML users.

Employee eligibility:

• EPSL: All employees, effective immediately
• EFML: Employees on payroll for the 30 calendar days preceding leave.  The CARES Act expanded this to include rehired employees who were laid off March 1, 2020, or later and had worked for the employer for at least 30 of the 60 calendar days prior to the layoff. (Sec. 3605)
• Exceptions:
  • • An employer may exclude health care providers and emergency responders from EPSL and EFML eligibility (see definitions in rules §826.30 and DOL FAQ #56-57). However, an employer’s exercise of this option does not authorize an employer to prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies.
    • Employees subject to reduced hours, worksite closure or furlough are not entitled to EPSL or EFML, but may be eligible for unemployment benefits. If an employer later reopens the worksite, employees would be eligible for FFCRA paid sick leave or paid FMLA as warranted. (DOL FAQ #23-28 #77)
    • Federal employees covered under FMLA Title II are also excluded. In addition, under the CARES Act, the Director of the Office of Management and Budget (OMB) has the authority to exclude certain Federal employees from EPSL and EFML.

Use:

• An employee may take EPSL if he or she becomes ill with COVID-19 symptoms and needs to seek a medical diagnosis, or if a health care provider directs him or her to self-quarantine because the provider believes the employee may have COVID-19 or is particularly vulnerable to COVID-19. EPSL is not available for an employee who decides to self-quarantine for an illness without medical advice, even if symptoms are present. (DOL FAQ #61-62)
• EPSL may be taken for an employee to care for an individual who, as a result of a quarantine or isolation order, is unable to care for him- or herself, and providing that care prevents the employee from working (or teleworking). An “individual” is described as an immediate family member, someone who regularly resides in the employee’s home, or someone whose relationship with the employee creates an expectation of care (DOL FAQ #63-66, #71). EFML is available only to care for the employee’s son or daughter (#72).
• ESPL and EFML may be taken intermittently under certain circumstances (see DOL FAQ #20-22; rules §826.50)
• Leave for more than one parent or guardian: Generally speaking, an employee should not need to take EPSL or EFML if a co-parent, co-guardian or the child’s usual care provider is available. (DOL FAQ #69; see also IRS FAQ #44)
• Employees receiving workers’ compensation or state-provided temporary disability benefits are generally not eligible for EPSL or EFML. (DOL FAQ #76)

Interplay with Other Leave Types (note: some changes were made to DOL FAQ #31-33 from the previous version; see also #77):

• Leave under EPSLA is in addition to, and not a substitute for, other sources of leave which the employee had already accrued, was already entitled to, or had already used, before the EPSLA became operational on April 1, 2020. Therefore, neither eligibility for, nor use of, EPSL may count against an employee’s balance or accrual of any other source or type of leave.
• An employer may not deny EPSL or EFML on the grounds that the employee has already taken another type of leave or taken leave from another source, including leave taken for reasons related to COVID-19 (this does not apply to the 12-week maximum under FMLA, as leave under EFML is included in that maximum).
• Section 5107(1) of the FFCRA law text states that, “Nothing in this Act shall be construed to in any way diminish the rights or benefits that an employee is entitled to under any (A) other Federal, State or Local law, (B) collective bargaining agreement, or (C) existing employer policy.” “Existing employer policy” as it is used here is defined in the temporary rules as a COVID-19-related paid leave that an employer may have voluntarily provided prior to April 1, 2020, which offered more paid leave than under the employer’s standard or current policies. FFCRA still requires these employers to provide the entirety of the paid leave to which its employees are eligible under EPSLA and EFMLEA.
  • • However, an employer may prospectively terminate such a voluntary additional paid leave offering as of April 1, 2020, or thereafter, as long as the employer had not already amended its leave policy to reflect the voluntary offering. This means that the employer must pay employees for leave already taken under such an offering before it is terminated, but the employer need not continue the offering in light of FFCRA taking effect.
• An employer may not require, coerce, or unduly influence an employee to use unpaid or paid leave before taking EPSL or EFML.
• Supplementing EPSL or EFML benefits:
  • • An employee may choose to use EPSL prior to using any other type of paid leave to which he or she is entitled under any other Federal, State, or local law, collective bargaining agreement, or employer policy that existed prior to April 1, 2020. An employer may allow, but not require, an employee to supplement EPSL with company paid leave, up to the employee’s regular earnings.*
    • For EFML:
      • During the first two weeks of unpaid EFML, the employee can elect to use, or the employer can require the employee to use, paid time available through an employer’s policy. If the employee elects to use EPSL during this period he or she may choose to supplement EPSL pay with company paid leave, up to the his or her regular earnings.*
      • For the remaining EFML weeks, leave the employee has available under the employer’s policies to care for a child, such as vacation, personal leave or paid time off, may be used concurrently with EFML to supplement the EFML benefit, if the employee and the employer agree. If EFML is used concurrently with another source of paid leave, the employer must pay the employee the full amount to which the employee is entitled under the employer’s preexisting policy for the period of leave taken.*
      • * Any tax credit entitlement is limited to FFCRA benefit maximums.
• Employees have no right or entitlement to EPSL or EFML for any unpaid or partially paid leave taken before April 1, 2020.

Documentation:

• Employees must provide a signed statement requesting leave, which should include the employee’s name, requested leave dates, the COVID-19 qualifying reason for leave, and a statement that the employee is unable to work or telework due to the COVID-19 reason.
  • • Supporting documentation must also be provided; this documentation may be in the form of:
      • The name of the government entity that issued the quarantine or isolation order to which the employee or the individual for which the employee is caring is subject.
      • The name of the health care provider who advised the employee or the individual for which the employee is caring to self-quarantine for COVID-19 related reasons.
      • For leave needed due to closure of school or place of care, documentation should include the child’s name, the name of the facility that closed or the care provider that became unavailable due to COVID-19 reasons, and a statement that no other suitable person is available to care for the child during the period of requested leave. Additional information may be needed to substantiate leave to care for a child over age 14. (IRS FAQ #44)
      • For leave taken under the Family and Medical Leave Act of 1993 (i.e., “traditional” FMLA) for an employee’s own or a covered family member’s serious health condition related to COVID-19, the normal FMLA certification requirements still apply.
• Documentation, including record of oral statements and criteria for denial under the small business exception, must be retained for a period of four years.
  • • Guidance for employers as to what documentation should be retained in order to qualify for tax credit can be found under #4 of the IRS FAQ.

Employees who take EPSL or EFML are entitled to continued coverage under the employer’s group health plan on the same terms as if such leave was not taken, provided plan contributions are maintained.

• For unpaid leave, or where EPSL or EFML pay is insufficient to cover the employee’s contributions, employers are directed to FMLA regulations (29 CFR 825.210(c)).
• If an employee chooses not to retain group health plan coverage during EPSL or EFML, the employee is entitled upon returning from leave to be reinstated in coverage on the same terms as prior to taking the leave, including family member coverage.

Job Protection:  In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from EPSL or EFML in the same manner that he or she would be returned to work after FMLA leave.  Note that this requirement does not apply in the event of an employment action, such as layoff, that would have affected the employee regardless of whether the leave was taken: the employer must be able to demonstrate that the employee would have been laid off even if he or she had not taken leave. Additional exceptions may apply for “key” employees and for employers with fewer than 25 employees. (DOL FAQ #43).

Enforcement:

• The DOL will not bring enforcement actions against any employer for violations of the Act occurring within 30 days of the FFCRA’s enactment (i.e., March 18 through April 17, 2020), provided that the employer has made reasonable, good faith efforts to comply with the Act. After April 17, 2020, the DOL will fully enforce violations of the Act, as appropriate and consistent with the law. (DOL FAQ #78-79)
• The FMLA’s general prohibitions on interference with rights and discrimination (29 U.S.C. 2615), as well as the FMLA’s enforcement provisions (29 U.S.C. 2617), apply for purposes of the EFMLEA, except that an employee’s right to file a lawsuit directly against an employer does not extend to employers who were not previously covered by the FMLA

Employers are directed to the IRS for information on claiming tax credits for EPSL and EFML:

• COVID-19-Related Tax Credit FAQ
• Coronavirus Tax Relief
• IRS Form 7200: Advance Payment of Employer Credits Due to COVID-19

Additional Resources

FFCRA

Department of Labor

• • • COVID-19 and the American Workplace
    •  Employee Rights Notice and FAQ
    • FFCRA Fact Sheets for employees and employers
    • Q&A addressing COVID-19, FLSA and FMLA

Americans with Disabilities Act (ADA/ADAAA)

Equal Employment Opportunity Commission (EEOC)

• • •  March 27 webinar
    • What You Should Know About the ADA, the Rehabilitation Act, and COVID-19
    • Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) and Unemployment Insurance

Department of Labor (DOL)

• • •  April 2 News Release:    Unemployment Insurance Program Letter No. 14-20
    • April 4 News Release:      Unemployment Insurance Program Letter No. 15-20
    • April 5 News Release:      Unemployment Insurance Program Letter No. 16-20

State Legislation

State Disability and/or Paid Family Leave Program Responses to COVID-19

Updates from our previous version are in bold type:

* As originally presented in our March 30 release, these changes are permanent as a result of Senate Bill 2304 (P.L.2020, c.17), signed by the governor of New Jersey on March 25, 2020. The law also similarly amends the definition of “serious health condition” under the New Jersey Family Leave Act.

** 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

*Please see updated information in our April 17 release*

On April 7, 2020 the mayor of Los Angeles approved “COVID-19 Supplemental Paid Sick Leave” (Ordinance No. 186590), which requires employers to provide paid sick leave to employees working in Los Angeles. 

The provisions of the Ordinance are as follows:

• Effective Date: April 10, 2020, until December 31, 2020
• Applies to:
  • • Employers with 500 or more employees nationally (i.e., employers not impacted by FFCRA) who have employees performing work in Los Angeles
      • • Employers of a first responder (as defined under the ordinance) or a health care professional (as defined under the California Family Rights Act) are exempt.
    • Employees who have been employed by the same employer from February 3, 2020, through March 4, 2020, and perform any work within the geographical boundaries of Los Angeles
      • • Independent contractors are excluded, but the employer must be able to demonstrate that an individual is an independent contractor.
        • Will not apply to employees covered by a Collective Bargaining Agreement if the CBA expressly waives its provisions and is bilaterally modified.
• Leave Entitlement
  • • Employees working at least 40 hours per week or classified as full-time by the employer are eligible for 80 hours of Supplemental Paid Sick Leave.  Leave is calculated based on the employee’s average two-week pay between February 3 and March 4, 2020.
    • Employees working less than 40 hours per week and not classified as full-time by the employer are eligible for Supplemental Paid Sick Leave in an amount no greater than the employee’s average two-week pay between February 3 and March 4, 2020.
    • The maximum amount payable is $511 per day, $5,110 in total.
      • • Employees of joint employers are limited to the total aggregate amount of leave specified for one employer.

• Reasons for Use: An employee may take leave:
  • • Under recommendation by a public official or healthcare provider to prevent the spread of COVID-19
    • If he or she is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, kidney disease or a weakened immune system
    • To care for a family member who is not sick but who has been advised by a public official or healthcare provider to quarantine or isolate
    • To provide care for a family member whose school or care provider has closed in accordance with a public official’s recommendation.  Care providers include senior care facilities. Eligible children are those under the age of 18.
• Request for Supplemental Paid Sick Leave may be given verbally or in writing.  Employers may not require documentation of the need for this leave; however, it is recommended that employers maintain records of use.
• 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”.
• While the LA Ordinance shares some similarities with requirements for businesses with fewer than 500 employees under FFCRA, it should be noted that it does not provide economic relief or tax credits to employers who are obligated to provide leave.

Colorado Health Emergency Leave with Pay

MMA ADL previously reported on the issuance of Colorado’s Health Emergency Leave with Pay (“Colorado HELP”), which requires employers in certain industries to provide paid sick leave to their employees. The Colorado Department of Labor and Employment published updates to the rules, adding retail stores that sell groceries and food and beverage manufacturers as covered industries, effective on March 26 and April 3, respectively. The March 26 changes also expand eligibility from only employees with flu-like symptoms who are awaiting COVID-19 testing, but also those who are under instruction from a health care provider to quarantine or isolate due to a risk of having COVID-19. The rule amendments are not to be applied retroactively.

In addition, the duration of Colorado HELP was updated to 30 days beginning April 3, 2020 (expiring on or around May 2), but could be extended again if the State of Emergency continues past that date.

New Jersey Passes Temporary Job Protection Act

On March 20, 2020, the governor of New Jersey signed A3848 which, during the Public Health Emergency and State of Emergency declared on March 9, 2020, prohibits employers from terminating or otherwise penalizing an employee who takes time off of work because he or she has or is likely to have an infectious disease, as certified by a healthcare provider. Following the certification period, the employee must be reinstated to his or her position held prior to leave with no reduction in status, seniority, pay or benefits.

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

Other Leave News

Massachusetts Paid Family and Medical Leave (PFML)

On April 3, 2020, the Massachusetts Department of Insurance (DOI) released Notice 2020-A, which provides guidance to insurance carriers developing insured products compliant with MA PFML private plan requirements. Carriers are required to file their product(s) with the DOI by June 3, 2020.

The DOI’s Notice also includes a policy template. The template, along with the DOI’s policy checklist, are intended to help ensure the carriers’ submitted policies are compliant. These pieces may also prove useful to employers who plan to self-insure their private plan in writing their policy document.

Employers who filed a Declaration of Insurance along with their private plan application were instructed at the time to submit a policy form to the Department of Family and Medical Leave (DFML) once available from their insurance carrier. The DOI’s Notice indicates that, rather than having the employer submit the policy form prior to their exemption renewal, the policy form number will be requested at the time of renewal. The DFML will update its website to outline this procedure.

Dallas, TX Paid Sick Time Ordinance Postponed

Dallas’ Earned Paid Sick Time Ordinance, which went into effect on August 1, 2019 but was not set to be enforced until April 1, 2020, was halted via court injunction on March 30, 2020. The ordinance has been postponed until further notice, as reflected on the city’s Paid Sick Time webpage. With this ruling, Dallas joins Austin and San Antonio as Texas cities with paid sick leave currently “on hold”. Employers are encouraged to seek legal counsel before reversing any policy put in place to comply with the Dallas ordinance. 

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.

March 30, 2020

Federal Legislation

Guidance on Paid Leave under the Families First Coronavirus Response Act (FFCRA)

The Department of Labor (DOL) released additional guidance around the emergency paid sick leave and expanded FMLA benefits required of employers with fewer than 500 employees under FFCRA effective April 1, 2020. The newest guidance falls under #15-59 of the DOL’s posted Q&A (MMA ADL reported on the release of #1-14 on March 25) and includes the following:

• Employees are required to provide their employers with documentation supporting the need for paid sick and/or expanded FMLA leave.  Employers who intend to claim a tax credit under FFCRA should retain this documentation. (#15-16)
• Inability to work and intermittent leave: (#17-22)
  • • An employee will be considered unable to work if one of the COVID-19 qualifying reasons outlined under FFCRA prevents him or her from being able to perform work under normal circumstances at the employee’s regular worksite or via telework, and for the employee’s normal number of hours.
    •  Employees who are teleworking: An employer and an employee may agree on intermittent FFCRA paid sick or expanded FMLA leave if the employee is unable to telework his or her normal number of hours due to a COVID-19 qualifying reason. The increment is as agreed upon by the employer and the employee.
    • Employees who are not teleworking (i.e., working at usual worksite):
      • Paid sick leave must be taken in full day increments. Note, however, that once FFCRA paid sick leave for official quarantine order, employee’s own illness, or care for an ill family member begins, leave must continue until time is exhausted or there is no longer a qualifying reason; days used to stay home with a child whose school or place of care has closed need not be consecutive.
      • An employee who no longer has a qualifying reason for taking FFCRA paid sick leave before such leave is exhausted may take any remaining leave at a later time if another qualifying reason occurs, up until December 31, 2020.
      • Expanded FMLA may be taken intermittently as agreed upon between the employee and his or her employer.
• Employees subject to reduced hours, worksite closure or furlough are not entitled to FFCRA paid sick leave or expanded FMLA, but may be eligible for unemployment benefits. If an employer later reopens, employees would be eligible for FFCRA paid sick leave or paid FMLA as warranted. (#23-28)
• FFCRA paid sick leave and expanded FMLA benefits may not be received at the same time as unemployment benefits. Employees are encouraged to contact state unemployment agencies with specific questions regarding eligibility. (#29)
• Employers must continue health benefits for employees on FFCRA paid sick or expanded FMLA leave; employees may still be required to remit contributions. (#30)
  • • Health plan requirements for eligibility, including any requirement to complete a waiting period, would apply in the same way as if an employee continued to work, including that the days an employee is on FFCRA paid sick leave count towards completion of the waiting period. (#51)
• Other leave entitlement:
  • • Leave taken under FFCRA paid sick leave and/or expanded FMLA cannot be taken simultaneously with a company’s leave policy.  Employers may allow, but not require, employees to supplement the amount an employee receives from FFCRA paid sick leave or expanded FMLA, up to normal earnings, with an existing company leave policy. (#31-34)
    • FFCRA paid sick leave is in addition to other leave provided under Federal, State, or local law, an applicable collective bargaining agreement, or an employer’s existing company policy. (#46)
• Employers that are part of a multiemployer collective bargaining agreement may satisfy FFCRA paid sick leave and expanded FMLA obligations by making contributions to a multiemployer fund, plan, or other program in accordance with existing collective bargaining obligations. (#35-37)
• Eligible employees are those as defined under the Fair Labor Standards Act (FLSA).  Eligible employees are entitled to FFCRA paid sick leave regardless of length of employment, however only those who have been employed for 30 days or more at the time of leave are eligible for expanded FMLA. (#38)
  • • For purposes of FFCRA paid sick leave, a full-time employee is one who is normally scheduled to work 40 hours or more per week; there is no distinction between full-time and part-time employees under expanded FMLA. (#48-49; see also #5-6)
    • Public sector employees are generally eligible for FFCRA paid sick and expanded FMLA leave; some exceptions for federal employees exist. (#52-54)
    • Employers may exclude health care providers and emergency responders on a case-by-case basis (#38, #56-57)
• Certain small businesses may be exempt from providing paid leave for the purpose of caring for a child whose school or place of care has closed if the leave would jeopardize the viability of the company. (#4, #58-59)
• Under FFCRA, the definition of a child will include an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. (#40)
• Employees returning from FFCRA paid sick leave or expanded FMLA leave are entitled to be restored to the same or equivalent position (there are exceptions for “key” employees and for smaller employers).  Leave taken under FFCRA does not protect employees from employment action that may have occurred regardless of leave, such as layoff. (#43)
• Leave taken under expanded FMLA is included in the 12-week entitlement of an otherwise-FMLA-eligible employee, not in addition to. (#44-45)
  • • Note: FFCRA paid sick leave is not a form of FMLA leave and therefore does not count toward the FMLA maximum entitlement of 12 workweeks in a 12-month period. However, if an employee takes paid sick leave concurrently with the first two weeks of expanded FMLA, which would otherwise be unpaid, then those two weeks do count towards the 12 workweeks.
• A “health care provider”, as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA. (#55)

Additional Resources

The DOL has posted additional information on its COVID-19 and the American Workplace webpage, including:

• • The Employee Rights Notice, which must be displayed by April 1, 2020, in a conspicuous place accessible to all employees. Per the posted FAQ the notice may be distributed to all current employees working remotely via mail or email and/or posted on a website available to all employees.
  • FFCRA Fact Sheets for employees and employers
  • Q&A addressing COVID-19, FLSA and FMLA

With regard to the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has posted a recorded webinar supplementing previously released information: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”)

On March 27, 2020, the President signed H.R.748, or The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”), into law.  The CARES Act does not make any adjustments to leave provided under the Families First Coronavirus Responses Act (FFCRA), but mainly cites changes to existing law text (see Sections 3601-3611). 

• • One such change is the addition of rehire verbiage with regard to the 30-day employee eligibility for expanded FMLA leave under FFCRA: “the term ‘employed for at least 30 calendar days’, used with respect to an employee and an employer described in [FFCRA FMLA eligibility], includes an employee who was laid off by that employer not earlier than March 1, 2020, had worked for the employer for not less than 30 of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer.”
  • Section 3606 addresses law text amendments with regard to FFCRA paid sick leave and expanded FMLA tax credits.

State Legislation

State Disability and/or Paid Family Leave Program Responses to COVID-19

Updates from our previous version are in bold type:

* CA EDD has clarified certification requirements for COVID-19-related SDI and PFL claims. Per the online FAQ, “This requirement can be met by a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to you. Telehealth and virtual appointments are acceptable for a physical examination, but medical certifications are still required.”

** These changes are permanent as a result of Senate Bill 2304 (P.L.2020, c.17), signed by the governor of New Jersey on March 25, 2020. The law also similarly amends the definition of “serious health condition” under the New Jersey Family Leave Act.

MMA ADL will continue to research and monitor developments.

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

Other Leave News

Washington Paid Family and Medical Leave (WA PFML)

On March 25, 2020, the governor of Washington signed HB 2614, which makes several clarifications on and amendments to the WA PFML law, including:

• Excludes “casual labor” from the definition of employment and, thus, from quarterly reporting and premium payments.  Casual labor is defined as work that is performed 12 or fewer times per calendar quarter, and on an inconsistent basis. Someone who performs casual labor cannot use those hours or wages toward their eligibility for WA PFML.
• Expands the definition of a covered family member to include a child’s spouse.
• Includes “Paid Time Off” and “Supplemental Benefit Payments” in the list of defined terms:*
  • • “Paid Time Off includes vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.”  Added text specifies that an eligible employee may receive paid time off while satisfying the waiting period.
    • “Supplemental Benefit Payments means payments made by an employer to an employee as salary continuation or as paid time off.  Such payments must be in addition to any paid family or medical benefits the employee is receiving.”
    • * Please see our February 24 Statutory Update for more information around Supplemental Benefit Payments  
• Waives the seven calendar day waiting period for leave taken due to qualifying exigency.
• Adds language around WA PFML benefits and child support obligations.
• Clarifies that an employer who has an approved Voluntary Plan for medical leave or family leave, but not both, must remit premium for the portion the Voluntary Plan does not cover.

The Employment Security Department (ESD) has posted an updated version of the Employer Toolkit on the WA PFML 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.

March 25, 2020

Federal Legislation

Guidance on Paid Leave under the Families First Coronavirus Response Act

On March 24, 2020, the U.S. Department of Labor (DOL) released initial guidance for employers around leave provided under the Families First Coronavirus Response Act (FFCRA) passed last week (requirements were summarized in MMA ADL’s March 20 release). The full text of the DOL’s guidance is available here; below are a few items of note:

Effective Date: FFCRA’s Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act provisions apply to leave taken between April 1, 2020 and December 31, 2020. The effective date was previously communicated as April 2.

• • • The guidance confirms that leave provided under FFCRA is in addition to any leave provided by the employer before or after the FFCRA effective date of April 1, even if the employer’s leave is intended for the same purposes.

Employer size:

• • • An employer’s size will be based on all full-time and part-time employees in any U.S. state, territory or possession, at the time of each employee’s need for leave. The count should include employees currently on leave, temporary employees and day laborers, but exclude individuals classified as independent contractors under the Fair Labor Standards Act (FLSA).
    • Businesses comprised of multiple entities are instructed to follow FLSA joint employer rules and the FMLA integrated employer test in determining size (#2 in Q&A).

Possible exemptions for businesses with fewer than 50 employees will be addressed in future regulations.

Pay:

• • • The total number of hours paid under Emergency Paid Sick Leave is capped at 80 over a two-week period.
    • Calculation of pay for Emergency Family and Medical Leave must include all hours the employee would normally have been scheduled to work.  This includes overtime, however a premium is not required on overtime hours.
      • • Examples for calculating pay for part-time or variable hour employees is included (#5 & 6 in Q&A).
    • Rate of pay is based on the definition under FLSA over a period of 6 months prior to the date of leave.

Formal regulations are expected shortly.

The DOL has posted additional information on its COVID-19 and the American Workplace webpage, including:

• • The Required Notice*, which must be displayed in a conspicuous place accessible to all employees. Per the posted FAQ the notice may be distributed to all current employees working remotely via mail or email and/or posted on a website available to all employees.

 *Please note: the version of the notice posted as of today includes some slight errors with regard to leave due to school/daycare closure, including omission from the reasons for paid sick leave and an incorrect aggregate limit for the 10-week paid FMLA portion. For this reason, a direct link to the document is not included here; please visit the DOL website directly, as it is expected an updated version will be posted.  

• • FFCRA Fact Sheets for employees and employers
  • Q&A addressing COVID-19, FLSA and FMLA

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”)

A third phase of legislation in response to the COVID-19 crisis is currently underway: The Coronavirus Aid, Relief and Economic Security Act proposes further aid to businesses, workers, state and local governments, and the healthcare system. While the current bill does not appear to include leave requirements similar to those under FFCRA, this is subject to change as it moves through the judicial system. It is expected that the Senate will approve the bill within the next day or so, at which point it will move on to the House for consideration.  

State Legislation

Recap of State Disability and/or Paid Family Leave Program Responses to COVID-19

Paid Sick Time Law Updates

Below are recent COVID-19-related changes to paid sick and leave legislation. Note that these are in addition to changes reported in our March 20 release.

• San Francisco, CA Paid Sick Leave: San Francisco’s Office of Labor Standards Enforcement (OLSE) has issued guidance regarding the use of San Francisco paid sick leave, which adds needs associated with a public health emergency as reasons for use. The guidance also indicates that employers may not require doctor’s notes or other documentation for the duration of the current COVID-19 health emergency.
• Minnesota:
  • • Duluth Earned Sick and Safe Time:  Duluth’s Earned Sick and Safe Time (ESST) ordinance does not specifically list public health emergency as a reason for use of accrued time.  However, FAQ posted on the (ESST) website instruct that ESST may be used for needs associated with COVID-19, including screening, providing or receiving care for symptoms and quarantine with suspected exposure.
    • Minneapolis, MN Sick and Safe Time: The city’s Department of Civil Rights has posted FAQ on the Sick and Safe Time website addressing the use of accrued time for COVID-19-related reasons.  While the ordinance currently includes public health emergency as a covered reason for use, the guidance outlines specific reasons such as quarantine due to suspected exposure to COVID-19, care for the employee or a family member with symptoms of the virus, school and place-of-care closures, and closure of the employee’s workplace by a public official.  
• Nevada Earned Paid Leave: The law allows for the use of accrued paid time for any reason, which would include needs associated with COVID-19. The Office of the Labor Commissioner has issued guidance stating that use of accrued paid leave due to a mandatory government quarantine should not be counted against an employee’s leave balance.
• New York Paid Sick Leave: Our March 20 update included mention that, along with emergency paid sick leave in response to COVID-19, the governor of New York also announced comprehensive paid sick leave requirements expected to be effective on or around September 15, 2020.
  • Applies to essentially all private employers and employees, as defined under NYLL Section 190. Government agencies and their employees are excluded.
  • Accrual: 1 hour per 30 hours worked, beginning the later of the law’s effective date or the employee’s date of hire, with the following maximums:
    • Employers with four or fewer employees in a calendar year: 40 hours
      • Employers of this size with net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid leave  
    • Employers with five to 99 employees in a calendar year: 40 hours
    • Employers with 100 or more employees in a calendar year: 56 hours
  • Employers may also “frontload” the annual maximum amounts above at the beginning of each year.
  • Leave entitlement begins January 1, 2021:
    • Reasons for leave: (1) Diagnosis, care or treatment of an employee’s or covered family member’s physical or mental illness, including preventive care; (2) The employee’s or a covered family member’s needs associated with domestic violence or stalking.
    • Covered Family Members: Employee’s spouse, domestic partner, child, parent, sibling, grandparent or grandchild; also includes spouse’s or domestic partner’s child or parent. Parent and child relationships include biological, foster, step, adoptive, legal guardianship and in loco parentis.
    • Employers may set a minimum increment for use, not to exceed four hours.
  • Accrued but unused time will carry over to the following year; however, employers may impose annual use limits in accordance with the accrual limits outlined above.
  • Employers are not required to pay out accrued but unused time upon the employee’s separation of employment
  • Employers who currently provide time off that meets or exceeds the requirements of the new law are not required to provide additional time.
  • All records must be retained for six years. In addition, an employer must provide an employee with an accounting of accrued, used and available time upon request.
  • The new law does not impact similar laws currently in force in New York City and Westchester County.
• Oregon Paid Sick Time: Oregon’s Paid Sick Time Law includes needs associated with a public health in its reasons for use.  The Bureau of Labor and Industries has posted FAQ around the availability of paid sick time during the COVID-19 outbreak, which include the suggestion that employers be flexible in the portion of the law that allows a request for medical certification for absences exceeding three days. The FAQ also make note of the recent change to the Oregon Family Leave Act (OFLA), which was covered in our March 20 update.
• Seattle, WA Paid Sick and Safe Time (PSST): Effective March 18 the law is amended to allow employees to use accrued time upon closure of an employee’s family member’s school or place of care. The amendments also require an employer with 250 or more full-time equivalent employees to allow their employees to take time under the law when their workplace has reduced operations or closes for any health or safety reason. The Office of Labor Standards has noted the changes on its PSST webpage.

MMA ADL will continue to research and monitor developments.

More 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.

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.

March 20, 2020

On March 18, 2020, the President signed H.R.6201 into law.  Now known as the Families First Coronavirus Response Act (FFCRA), this law is the second to be passed in an effort to provide relief to businesses and workers impacted by the coronavirus (COVID-19) pandemic (the first was H.R.6074, or the Coronavirus Preparedness and Response Act, passed on March 6). While the law is quite broad in scope, this update focuses on the provisions for paid leave.

* Differs from current FMLA definitions of Employee (Sec. 101(2)(A) and (B)(ii)) and Employer (Sec. 101(4)(A)(i)), but only for leave provided under FFCRA

^† The law does not specify how the 500 employee threshold is calculated, though it is reasonable to believe the Department of Labor would borrow the integrated employer test used from the FLSA and/or FMLA (see September 11, 2000 DOL opinion letter for reference). Also, for both Emergency Paid Sick Leave and FMLA Expansion FFCRA states that “The Secretary of Labor shall have the authority to issue regulations for good cause … to exempt small businesses with fewer than 50 employees … when the imposition of such requirements would jeopardize the viability of the business as a going concern”.

What About Larger Employers?

FFCRA does not impose paid leave requirements on employers with 500 or more employees.  The Senate is currently reviewing proposals for a third “phase” of legislation and, while main focus seems to be on economic “stimulus and relief”, it does appear as though what is ultimately passed will have some component related to paid leave.

In our March 6 release we outlined practical and compliance items to consider in designing a policy to address employee needs that may not be met by existing company benefits during a public health emergency.  Since then we have been working with our customers and vendor partners to help shape best practice recommendations.  Below are a few positions resulting from those discussions:

Short Term Disability (STD)

At this time, it is not recommended that employers adjust their disability programs, either in the way of altering benefits, removing waiting/elimination periods or providing benefits for conditions that may not normally meet the plan’s definition of disability.  In fact, many insurance carriers will not permit such changes on insured policies. Employers with self-funded plans considering alterations of this sort are strongly advised to consult with counsel.

Family and Medical Leave Act of 1993 (FMLA)

We have been in contact with legal resources and the predominant opinion on FMLA is, as the law stands now and FFCRA requirements aside, FMLA does not come into play unless and until an employee and/or a covered family member experiences symptoms. Per the Department of Labor, “leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA”. It is recommended that the FMLA process be initiated after three consecutive days of missed work with reported symptoms.  Employers may wish to consider being flexible with requirements around deadlines and what may be accepted for medical certification.

Americans with Disabilities Act (ADA/ADAAA)

Currently COVID-19 on its own isn’t being considered a disability under ADA, so direct accommodations will likely not apply.  However, employers are encouraged to consider accommodations requested by individuals with medical conditions that could be further compromised by COVID-19.  Guidance on how the ADA may apply during a pandemic situation can be found on the U.S. Equal Employment Opportunity Commission (EEOC)’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, which was updated on March 19.

Additional Protections for Employees

State Laws

In our March 13 release we discussed how some of the states with mandated disability and/or family leave programs have been responding to workers’ needs around COVID-19.  Below is a reiteration of some of those changes, plus a few developments on these and other legislation since then.

Statutory Disability and Family Leave Laws

• • • California: The governor’s March 12 Executive Order waived the one-week waiting period for State Disability Insurance (SDI)
    • New York: Quarantined employees covered by SB8090, passed on March 16, could be fast-tracked for Disability Benefits (DBL) and Paid Family Leave (PFL) benefits while under official quarantine.  Details are under new paid sick leave legislation below.
    • Rhode Island: The recently posted Workplace Fact Sheet includes “emergency regulations” affecting state programs as part of the State of Emergency declared on March 9.  The regulations waive the seven-day waiting period for Temporary Disability Insurance (TDI) and Temporary Caregiver Insurance (TCI) benefits; they also waive medical certification requirements for individuals under COVID-19 quarantine.
    • New Jersey and Washington have released user-friendly scenario infographics to help explain which state benefits apply when. (While there is no PFML law in place, Oregon has released a similar piece)

Paid Sick Leave Laws

Existing Laws

• • • • Currently, 19 Paid Sick Leave Laws include specific language allowing use of accrued time for public health emergency and/or school closure.  Similar laws in Maine (eff. 1/1/21), Nevada (eff. 1/1/20) and Bernalillo County, NM (eff. 7/1/20) allow leave to be taken for any reason.

* Pittsburgh’s Paid Sick Days Act just became effective on March 15, however employers may allow use in advance of accrual if they choose.

Some of those that do not specifically call out public emergency as a qualifying reason for use have issued guidance that accrued time may be used for this purpose.  These include California, Emeryville, CA, and Santa Monica, CA (which follows the state’s guidance for use).

New Legislation:

• • • • San Francisco, CA: On March 16 the mayor of San Francisco announced the Workers and Families First program, which allocates $10 million of public funding to help businesses provide an additional five days of sick leave pay to workers above and beyond their existing policies. All San Francisco businesses will be eligible, with up to 20% of funds reserved for employers with 50 or fewer employees. The City will contribute up to one week (40 hours) at $15.59 per hour (current minimum wage) per employee, or $623 per employee. The employer will pay the difference between the minimum wage and an employee’s full hourly wage.
      • Colorado: On March 11 the Colorado Department of Labor published Colorado Health Emergency Leave with Pay Rules (“Colorado HELP”).  The rules require employers in certain industries to provide paid sick leave to employees with flu-like symptoms while awaiting COVID-19 testing. Industries covered include leisure and hospitality, food services, child care, education (including transportation, food service, and related work), home health care, nursing homes, and community living facilities.  The maximum amount of entitlement is four calendar days, during which the individual is only paid for the days he or she would have worked. Leave ends upon receipt of a negative test before the four-day period ends. Employers who already provide paid leave that meets the rules’ requirements do not need to provide additional leave.  The rules are set to expire in 30 days, but there is the possibility this timeframe could be extended.
      • New York: On March 16 the governor announced an agreement with the legislature on SB8090 which, effective immediately, provides job protection and pay for employees during an official mandatory or precautionary order of quarantine or isolation due to COVID-19.  Note that the provisions outlined do not apply if an employee is asymptomatic and is able to work remotely.
        • • • Employers with 10 or fewer employees nationally and a net income less than $1 million will provide job protection for the duration of the quarantine order. Employees will immediately qualify for Paid Family Leave and temporary disability benefits*. These benefits may provide wage replacement up to a maximum combined total of $2,884.62 per week.
            • Employers with 11-99 employees nationally and employers with 10 or fewer employees nationally and a net income greater than $1 million will provide at least five days of paid sick leave, and job protection for the duration of the quarantine order. Employees will then immediately qualify for Paid Family Leave and temporary disability benefits*. These benefits may provide wage replacement up to a maximum combined total of $2,884.62 per week.
            • Employers with 100 or more employees nationally, as well as all public employers, will provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.

* For the purposes of this act, “disability” means an employee is unable to perform his or her work duties from home and has exhausted all paid sick leave provided by their employer under this act.

Sick time provided is in addition to any sick time the employee may have accrued.

Working parents whose minor dependent child is subject to a mandatory or precautionary order of quarantine may also qualify for Paid Family Leave.

More information can be found on the Paid Family Leave and Emergency COVID-10 Paid Sick Leave websites.

The bill also includes an accrued paid sick leave component, which is set to become effective 180 days after passing (around September 12, 2020):

• • • • • • • Employers with four or fewer employees and a net income less than $1 million will provide at least five days of unpaid sick leave each year.
            • Employers with 5-99 employees and employers with four or fewer employees and a net income greater than $1 million will provide at least five days of paid sick leave each year.
            • Employers with 100 or more employees will provide at least seven days of paid sick leave each year.
      • Philadelphia, PA: On March 16 the Office of Labor announced that the City’s “Promoting Healthy Families and Workplaces Act” has been expanded so that covered workers can use accrued leave for COVID-19 related business closures, quarantine, and to stay home with their children during school closures.

Proposed Changes:

• • • • Los Angeles, CA: which has a Paid Sick Leave law in place, is considering an emergency program that would provide at least 14 days of paid sick leave during a public health crisis or major disaster.
      • Puerto Rico: HB2428 was proposed to amend the current sick leave law (Law 180-1998) by replacing the current provision of 20 days of unpaid emergency leave due to diagnosis of a pandemic illness with five days of paid emergency leave
      • Vermont:  Changes to the Earned Sick Time Law that would ensure that employees forced to take COVID-19 related leave are eligible for benefits, as well as provide businesses relief for some of the cost related to paid leave were submitted as amendments to H.681.  As of March 13 the bill has been passed by the House and on to the Senate.

State Family and Medical Leave Laws (Unpaid)

Many states currently have “FMLA-like” laws that provide protection that extends beyond FMLA in one respect or another. These laws typically do not specifically cover absences due to a public health emergency; however, states are beginning to make amendments:

• • •  On March 17, the Washington D.C.’s mayor signed the “COVID-10 Emergency Amendment Act of 2020”, which amends the District of Columbia Family and Medical Leave Act (DC FMLA) to provide “Declaration of Emergency” leave for circumstances associated with a declared public health emergency, including quarantine or isolation advised by a public agency or a medical provider. The Act waives employer size and eligibility requirements for other DC FMLA leaves, and allows leave for the duration of the period in which the emergency declaration is in effect (versus the limitation of 16 weeks in a 24-month period for other leave types). As written, the Act will be in effect for 90 days, but may be extended if necessary.
    • On March 18 Oregon’s Secretary of State issued a Temporary Administrative Order that expands 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.

Unemployment Insurance Laws

Under certain circumstances such as reduction in hours, unavailability of work, site closure, or even inability to work due to a child’s school closure, employees may find assistance through state Unemployment Insurance (UI). In addition to the paid leave provisions outlined above, FFCRA includes direction of funds to support state unemployment programs.  Conditions of the emergency grants include a requirement that each state demonstrates steps to ease eligibility requirements and access to compensation for claimants, including waiving benefit waiting periods and work search requirements. The law also recommends leniency with the experience ratings of employers directly impacted by COVID-19 illnesses in the workplace or quarantine requirements imposed by health officials.

Many states have independently made changes to their UI requirements in response to COVID-19 and the extraordinary increase in claims:

• • States such as California, Connecticut, Minnesota, Rhode Island and New York are waiving the one-week waiting period, allowing claimants impacted by COVID-19 to be paid from day one if eligible.
  • Many states such as California, Connecticut and Rhode Island are waiving the usual requirement that the claimant be actively looking for work.
  • Washington D.C. made several amendments, including allowing employees to receive UI benefits if they voluntarily leave their jobs “for good cause” (as defined).
  • Delaware, New Jersey, Ohio and Washington will provide claimants with benefits if their employer temporarily closes or is shut down due to State of Emergency.
  •  Pennsylvania, Oregon and Vermont may pay claimants if they have temporarily reduced hours and expect to return to work.
  • Some states are communicating that claimants may be eligible for benefits if they must stay home with a family member who has been diagnosed with COVID-19. Colorado appears to be the most generous with their definition of “family member”, citing that a claimant may receive benefits to take care of a domestic partner, parent, child, brother or sister.
  • Many States such as North Carolina, New Hampshire and Ohio may pay the claimant if their healthcare provider orders them to “avoid contact” with others during this time.

Employers are advised to consult with their benefit program carriers to see if and how benefits continue in the event of furlough, temporary layoff and/or reduction in hours.

MMA ADL will continue to research and monitor developments.

More 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.

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.

March 13, 2020

Below is information on how the states with disability and/or paid family leave laws are addressing these programs as they relate to current COVID-19 (coronavirus) concerns. It is worth noting that some of the rules/guidance may impact the interplay of the state program with a company’s Short Term Disability policy (see specifically CA FAQ and RI emergency regulations).

COVID-19 Legislation

In addition to the New York proposal mentioned above, other states, including (but not limited to) Alabama, Hawaii, Illinois, Kentucky, Maryland, Michigan, Minnesota, Tennessee, Utah and Washington have introduced legislation aimed at protecting the public interest.  Federal legislation has also emerged in response to the needs of businesses and their employees in the wake of this national health threat:

•   House Bill 6074: Public Law No. 116-123, or the “Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020”, was signed into law on March 6, 2020.  The Act provides $8.3 billion in emergency funding for federal agencies to respond to the coronavirus outbreak. The funds will be directed toward needs associated with the development and distribution of vaccinations and other medical supplies, grants for public health agencies, small business assistance, emergency preparedness, humanitarian support and promoting telehealth services under Medicare.

•        House Bill 6201: If passed, the “Family First Coronavirus Response Act” would provide individuals affected by COVID-19 with paid leave, food assistance and coverage for virus testing; it would also expand benefits under unemployment insurance and increase states’ funding for Medicaid.  The bill was introduced in the House on March 11, 2020 and referred to committee.  Due to the broad scope and potential cost of the bill, it is likely to face considerable opposition.

•        House Bill 6207, introduced on March 11, 2020, focuses on unemployment benefits for workers affected by COVID-19.

•        Senate Bill 3370 and House Bill 6019 propose means and direction for research and development of a coronavirus vaccine.  Both were introduced in the past few weeks and referred to committee.

MMA ADL will continue to research and monitor developments.

More 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.

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.

February 24, 2020

Washington Paid Family and Medical Leave (WA PFML) is Here!

WA PFML went live on January 1 and, to assist workers in preparing for and submitting leave applications, ESD has updated the Employee page of the PFML website with a new look and feel.  Here employees can find general information about the program, plus access additional resources such as a benefit estimator, checklists, guides and forms on the Get Ready to Apply page.  Employer resources, including the updated Employer Toolkit, can be found on the Employer page.

Model Notice Available

On December 24, 2019, Washington’s Employment Security Department (ESD) posted the model Poster and Statement of Employee Rights, which can both be found on the WA PFML Employer Page.  As of January 1, 2020, employers are required to display the poster in a conspicuous place, plus provide the Statement of Employee Rights within 5 business days of the later of an employee’s (1) 7^th consecutive day of absence, or (2) notice to the employer that absence is due to medical or family leave.

Interplay of WA PFML and Company Leaves

MMA ADL has received a number of questions from our clients about how WA PFML will work with their existing benefit programs.  Given the complexity of the topic we engaged our legal counsel to assist with interpretation.

Does WA PFML run concurrently with FMLA?

FMLA and WA PFML will run concurrently where possible. However, given the restriction that employers may not dictate when an individual takes leave under WA PFML, the potential exists for them to run separately, or “stack”, thereby providing the employee with leave and job protection exceeding each individual law’s maximum duration.

Does WA PFML run concurrently with an Employer’s Short Term Disability and/or Paid Leave benefits?

Nothing in the WA PFML law prohibits an employee from receiving WA PFML and company benefits such as Short Term Disability, Paid Family Leave and Paid Parental Leave at the same time.  However, as employers may not restrict an employee’s access to WA PFML leave or benefits in any way, there is the potential for employees to wait to apply for WA PFML leave until after company benefits have been exhausted.

To reduce the opportunity for this “stacking” of benefits, employers may want to consider amending their policies to make eligibility for receipt of company benefits contingent upon an employee’s application for WA PFML benefits. Thus, an employee is not required to access the employer’s benefits, but if he wishes to do so, he must first apply for WA PFML.

In order to accomplish this, however, the employer must first designate specific company benefits as ‘Supplemental Benefits’…

What are Supplemental Benefits?

The regulations define a “Supplemental Benefit Payment” as “a payment offered by an employer to an employee who is taking leave under [WA PFML]”, and state that “employers may, but are not required to, designate certain benefits including, but not limited to, salary continuation, vacation leave, sick leave, or other paid time off as a supplemental benefit” (WAC 192-500-180).

Any payment that the employer designates as a Supplemental Benefit will, at the time of a WA PFML claim, be “ignored” by the state for the purposes of paying the WA PFML benefit.  The employer will want to make sure that their policies limit the company-provided benefit to a “top-off” of the employee’s WA PFML benefit.  This will take the form of benefit offsets that employers are used to seeing with other statutory benefits.  For example, if an employee is receiving company Paid Family Leave and WA PFML benefits concurrently, the company leave benefit would be reduced, or “offset”, by the amount of the WA PFML benefit; this results in the employee receiving the greater of the two benefits, not both.

Payments not designated as Supplemental Benefits are paid instead of WA PFML benefits for a particular period; they do not run concurrently and do not “top off”.

As noted in the sections above, employers should amend their policies as needed in order to clearly outline how their leave and paid time off benefits will work with WA PFML.

Other Impacts of Supplemental Benefits

As stated in the regulations:

1. 1. Supplemental benefits are excluded from the definition of wages in the WA PFML law
   2. Employers should not report supplemental benefit payments or associated hours to the department during quarterly reporting to ESD for WA PFML purposes*
   3. Employees should not report hours of paid time off that have been offered as supplemental benefit payments by the employer to the department on the weekly application for benefits*.

*  ESD has clarified that only the portion of the supplemental benefits paid at the time WA PFML is taken is non-reportable.

Which Benefits Should Be Designated as Supplemental Benefits?

Since it is permissible for WA PFML benefits to run concurrently with and offset Supplemental Benefits, likely choices are a company’s paid leave benefits such as those for maternity, parental and family care.  The regulations include salary continuation, sick time, vacation time and “other paid time off” in the list of payments that may be designated as Supplemental Benefits, however employers may want to take care when considering this for banks of time that may be used to comply with Washington’s Paid Sick Leave (PSL) ordinance.  Since the PSL allows employees to decide when to use accrued time for qualifying reasons and requires payment at a set rate, there is concern that an employer could be in violation of the PSL law if an employee sought to use a full day of PSL and the employer attempted to offset the full day of PSL with the WA PFML benefit.  Employers are encouraged to consult with an attorney in making this decision.

Notes:

• • Most company disability program benefits are excluded from the definition of wages and are therefore ignored by ESD in the payment of benefits. With that, STD may not need to be specifically designated as a Supplemental Benefit, but it is suggested that employers do so in order to be clear to employees that the two are treated the same way.
  • A benefit’s designation as “Supplemental” is irrelevant during the WA PFML waiting period. That is, it does not matter what type of paid time the employee elects to use during the waiting period, it does not impact WA PFML benefits paid after that time.
  • Employers with Voluntary Plans are not required to designate Supplemental Benefits.  However, the employer’s disability and leave policies should clearly outline how company benefits work in conjunction with WA PFML.

How Does an Employer Designate Supplemental Benefits?

There is no explanation in the law text or regulations as to how an employer identifies Supplemental Benefits for its employees, though the first step may be during preparation of the Statement of Employee Rights that must be provided to the employee at the time of need for leave, as described above.  The model provided by ESD includes the following text:

Rather than simply indicating Yes or No, employers may want to list which of the company’s benefits have been designated as “Supplemental”.  This may help avoid confusion as well as temporarily bridge the gap while formal policies are being updated.

 Note: The Statement of Employee Rights also includes a spot for the employer’s Unique Business Identifier (UBI) number, the company’s 8-digit WA tax registration number issued by the state.  Employees of employers participating in the State program will need the company’s UBI in order to file a WA PFML claim online.

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

February 24, 2020

Federal Paid Parental Leave

On December 20, 2019, President Trump signed paid parental leave into law. Originally introduced in 2019 as the “Federal Employee Paid Leave Act” (H.R.1534), the law was rolled out as part of the National Defense Authorization Act (NDAA, S.1790).  Effective October 1, 2020, the law provides federal employees covered by the Family and Medical Leave Act of 1993 (FMLA) 12 weeks of paid leave for the birth, adoption, or foster care placement of a child.

District of Columbia Paid Family Leave (DC PFL)

In late December the Department of Employment Security (DOES) pushed back the deadline for employee notification of DC PFL from January 1 to February 1. They also amended the language on their website to more clearly outline the requirements:

All DC employers are required to post the employee PFL notice in their worksites along with other labor law posters by February 1, 2020. In addition, this notice must be provided in electronic or physical form to:

1. 1. All employees at least once between February 1, 2020 and February 1, 2021 and at least once a year every following year;
   2. All new employees hired after February 1, 2020 at the time of hire; and
   3. Individual employees when the employer receives direct notice after February 1, 2020 of the employee’s need for leave for an event that could qualify for PFL benefits.

The employee PFL notice may be downloaded in several languages from does.DC.gov.

Chicago Paid Sick Leave Amendment

In December 2019, the Chicago’s City Council amended the Minimum Wage Ordinance and redefined the definitions of employer and employee. Effective July 1, 2020, the changes also impact the city’s Paid Sick Leave Ordinance.

• • The Paid Sick Leave Ordinance previously defined a covered employer as any employer who employs at least one covered employee and maintains a place of business in the city limits or is required to maintain a Chicago business license. Effective July 1, 2020, a covered employer is defined as a person who gainfully employs at least one employee regardless of whether the employer has a Chicago worksite or is subject to business license requirements.
  • The amendment specifically excludes the following from the definition of employee:
    • An outside salesperson (regularly engaged in making sales or obtaining orders or contracts for services where most of such duties are performed away from the employer’s place of business);
    • A member of a religious corporation or organization;
    • A student at, and employed by, an accredited Illinois college or university;
    • Motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois; and
    • Certain day camp counselors.

The Ordinance, amendments and required notice may be found on the Paid Sick Leave webpage at www.Chicago.gov.

Minneapolis, MN Earned Sick and Safe Time

Minnesota’s Earned Sick and Safe Time Ordinance, originally effective July 1, 2017, requires that notice of rights and responsibilities be provided to employees at the time of hire as well as posted conspicuously in any language spoken by at least 5% of employees. Notice must also be included in written policies, such as an employee handbook, and provided upon request. In addition, beginning January 1, 2020, the new Minneapolis Wage Theft Prevention Ordinance requires that record of accrued, used and available balance of Sick and Safe Time be automatically provided on employees’ pay stubs (see updated Sick and Safe Time FAQ #40-42 and Wage Theft Ordinance FAQ #33).  Employers must maintain records of accrual and use for 3 years.

New Jersey Temporary Disability Insurance (TDI)

Last month the governor of New Jersey signed A1449 which, effective May 20, 2020, amends the TDI law by adding organ and bone marrow donation as qualifying reasons for benefits.  Leave taken for these reasons is not subject to the 7-day waiting period, and is job-protected, unlike disability leave taken for other reasons.

New Jersey Earned Sick Leave Law (ESLL)

On January 6, 2020, New Jersey’s Department of Labor (DOL) released final rules for the Earned Sick Leave Law, which was effective October 29, 2018.  The final rules do not make any significant changes over the original law, the September 2018 proposed rules, or the FAQ, but there are a few items of note from the Recommendations and Response summary preceding the final rules (the rules themselves begin on page 38):

• • The original law provides that if an employer’s existing policy grants covered employees paid time off in an amount and manner that meets the requirements for Earned Sick Leave, the employer is not required to provide additional paid leave. However, the final rules clarify that, if an employer chooses to maintain a single paid time off (PTO) bank to comply with the ESLL, the entire PTO bank must comply with the requirements of the law. Employers wishing to deviate from any of the ESLL requirements have the option of splitting their leave policies – an ESLL-compliant policy and a non-ESLL compliant policy for other types of leave (#8-9, #92, #111-112).

Further, if an employer’s PTO policy can be used for vacation, sick and personal purposes and is compliant with the entirety of ESLL, and the employee opts to use all of his or her entitlement for vacation, the employer is not obligated to provide extra time off for sick leave purposes later in the same benefit year (#68; see also #70, #97).

• • An employer may not require an employee to use earned sick leave even if the employee is absent from work for a covered reason (#10).
  • Non-discretionary bonus payments (i.e., bonus payments measured by or dependent upon hours worked, production or efficiency) should be included in calculation of the employee’s regular hourly wage, similar to how such payments are included in the regular hourly wage for calculating overtime compensation (#5, #67; see also: consideration of overtime pay (#38), as well as calculation for tipped employees (#64, #109), for employees with multiple jobs with the same employer (#66, #91) for piece rate employees (#89, #107) and for employees paid by commission (#108)).

Clarification/confirmation around other topics is included as well, such as impact to collective bargaining agreements (#1, #73, #94); use of ESLL for school-related activities (#4); frontloading benefits and carry over (#6-7); use of ESLL during the TDI waiting period (#11); establishment of and change to a benefit year (#12, #58-59, #87-88, #101, #115); notice of need for leave (#15, #36, #45, #55, #71, #86, #112); blackout dates for ESLL use (#18-23); definition of “employee” as it relates to individuals who work both in and outside NJ (#26, #97, #113); payout of unused time at the end of the benefit year (#39, #56, #84, #117); and increments of use for employees with variable work shifts (#104). Further rulemaking may be forthcoming on some of these.

Additional information may be found on the NJ DOL’s Earned Sick Leave webpage.

New Mexico Paid Parental Leave

On December 31, 2019, the governor of New Mexico signed Executive Order 2019-036, providing state employees 12 weeks of paid parental leave following the birth or adoption of a child.  The policy was effective one day later, on January 1, 2020.

Bernalillo County, NM Employee Wellness Act

In early December MMA ADL reported that the Bernalillo County, NM Employee Wellness Act, passed on August 20, 2019, was amended in October by Ordinance No. 2019-29. The Ordinance brought about some concern and confusion by reflecting a change in the law’s effective date, from July 1, 2020, to January 1, 2020.  On December 11 Ordinance No. 2019-32 was passed, making no changes to the Act’s provisions but confirming the effective date as July 1, 2020.

Employers will be required to post a notice outlining employees’ rights and responsibilities under the Act in a conspicuous place, in both English and Spanish; a model notice will be provided by the County.

Westchester County, NY Safe Time Leave Law

Effective October 30, 2019 Chapter 586 of the Westchester County Code of Ordinances (the Safe Time Leave Law) provides employees who are victims of domestic violence or victims of human trafficking up to 40 hours of paid leave per year to attend or testify in court proceedings relating to domestic violence or human trafficking and/or to move to a safe location. Safe leave is in addition to sick leave provided for under the County’s Earned Sick Leave Law.

By January 28, 2020, employers must give existing covered employees a copy of the Safe Time Leave Law and written notice of their rights to safe leave; new employees must be provided notice at time of hire. Employers must also display a copy of the Safe Time Leave Law and a poster in English and Spanish in a conspicuous location accessible to employees. Model notices and additional information may be found on the County’s website.

Pittsburgh, PA Paid Sick Days Act

In July of last year MMA ADL reported that, after several years of litigation, Pennsylvania’s Supreme Court upheld Pittsburgh’s Paid Sick Days Act; however, at that time an effective date had not yet been determined.  In December it was announced that the Act would go into effect on March 15, 2020.  The major provisions of the law are as follows:

Employers who provide paid time off that meets the Act’s requirements are not obligated to provide additional sick time.

More information, including recently released guidelines and FAQ, may be found on the city’s website.

Puerto Rico Working Women’s Bill of Rights Act

On January 3, 2020, the Governor of Puerto Rico signed Act No. 9-2020, known as the “Working Women’s Bill of Rights Act”. The Act, codified under Senate Project (PS) 853, restates legal rights previously established and available to female employees in the public and private sectors, including discrimination based upon sex, unjust dismissal, equal pay, paid maternity leave and return-to-work protections (Working Mothers Protection Act), paid breastfeeding breaks, a workplace free of offensive or intimidating behavior, and adequate internal procedures to address sexual harassment complaints.

What new requirement the Act does impose is that all public offices, government agencies, public corporations, municipalities and private employers with two or more employees must post the Women’s Bill of Rights in a place accessible to all employees and visitors. Puerto Rico’s Department of Labor and the Puerto Rico Women’s Advocate Office (“WAO”) will be releasing a model notice in the coming weeks.

Tennessee Paid Family Leave

On January 7, 2020, the governor of Tennessee signed Executive Order No. 11, which grants certain state employees with paid family leave beginning March 1, 2020.  The new policy will provide executive branch employees subject to the TEAM Act and eligible for FMLA with 12 weeks of paid leave for reasons consistent with FMLA.

Paid Family Leave Legislation in 2020 (so far!)

The following states have already proposed paid family leave bills during this legislative session, and there will surely be more to come.  Your MMA ADL team will continue to track and provide updates when possible.

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

February 24, 2020

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