December 22, 2021

2022 Statutory Disability & Paid Family and Medical Leave Benefits and Rates

Other News

Allegheny County, PA Paid Sick Leave – Update

Our October 8 Statutory Update included the announcement of accrued paid sick time requirements in Allegheny County, PA.  As noted, the ordinance’s text indicated that the new law would become effective “on the 90^th calendar day following the posting of the notice information for employers”.  Last week the county released the Paid Sick Leave Notice, which indicates an effective date of December 15, 2021. While this date may come as a bit of a surprise for employers assuming they would have more time to implement, the county’s FAQ refer to Section 2408(C) of the ordinance, which states that fines will not be imposed for violations for one year after the ordinance’s effective date.

Per Section 11 of the guidelines posted on the county’s Administrative Services website, the Notice must be displayed in a conspicuous and accessible location where any employees work, in English, Spanish, and any other primary languages of the employees at that particular workplace. For employees who work remotely or do not have a regular workplace, the employer may provide the Notice on an individual basis in each employee’s primary language in a physical or electronic format that is reasonably conspicuous and accessible.

The guidelines also recommend that employers provide updated amounts of paid sick time available on regular payroll statements or in an online system where employees can access the information.

Washington Long Term Care Premium Collection Delayed

On December 17 Governor Jay Inslee, in conjunction with Democratic leaders within the state’s legislature, announced the decision to delay WA Cares Fund premium collection scheduled to begin January 1, 2022.  The pause will allow legislators the opportunity to address raised concerns and make adjustments to the law during the 2022 legislative session, as well as consider upcoming recommendations from the Long Term Care Commission.

Governor Inslee’s statement included that he is “taking measures within my authority and ordering the state Employment Security Department not to collect the premiums from this program from employers before they come due in April. My actions mean that the state will not collect those funds until the Legislature sorts through these issues.” He further indicated that employers will not be subject to penalties and interest for not withholding premiums during this period.

Senate Majority Leader Andy Billig and House Speaker Laurie Jinkins added the following: “In addition to delaying the premium assessment, we also support employers pausing premium collections from employees in Washington so lawmakers can take necessary action. While we cannot direct employers not to collect, we strongly encourage them to pause on collecting premiums from employees, giving us time to pass legislation extending implementation dates until next year.” 

We will continue to monitor and provide updates as information becomes available. Visit https://wacaresfund.wa.gov/learn-more/ for more information.

Please contact your Trion Account Team members with 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. Trion 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 © 2021 Trion Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

October 8, 2021

COVID-19 Legislation

Federal

Expiration of Tax Credits for Voluntary FFCRA Leave

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

State and Local

Emergency Paid Sick Leave (EPSL)

Status of State and Local EPSL Laws   

The following EPSL Ordinances expired September 30, 2021:

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

The following EPSL laws are still in effect:

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

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

Vaccination Leave Updates

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

Other COVID-19 Legislation

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

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

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

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

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

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

Temporarily amends the definition of “Average Weekly Wage”:

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

Leave Entitlement:

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

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

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

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

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

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

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

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

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

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

Permanently amends the definition of “Employee”:

Current: “Employee” means any individual who has:

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

Under the amendment:  “Employee” means:

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

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

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

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

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

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

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

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

Non-COVID-19 Legislation

Paid Family and Medical Leave Updates

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

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

Connecticut Family and Medical Leave (CT FMLA) Changes

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

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

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

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

2022 Benefits and Rates

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

Paid Sick Leave Updates

Allegheny County, PA Paid Sick Time

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

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

Applies to:

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

Entitlement:

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

Reasons for Use:

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

Covered Family Members:

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

Use:

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

Notice to Employer/Documentation:

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

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

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

Notice and Recordkeeping:

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

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

Other News

California Family Rights Act (CFRA) Amendment

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

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

Missouri Domestic Violence Leave

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

Tennessee Military Leave Amendment

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

Anti-Discrimination

Connecticut Anti-Discrimination – Age

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

Delaware Anti-Discrimination – Definitions

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

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

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

Illinois Anti-Discrimination

Disability

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

Work Authorization Status

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

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

New Jersey Anti-Discrimination – Age

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

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

Charlotte, NC Anti-Discrimination – Hiring and Employment

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

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

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

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 © 2021 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

August 27, 2021

COVID-19 Legislation

Federal

Recent Guidance

Centers for Disease Control and Prevention (CDC)

Interim Public Health Recommendations for Fully Vaccinated People

(Updated August 19)

Internal Revenue Service (IRS)

Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021 for Leave After March 31, 2021 

(Updated July 29 to reflect that qualified wages include those paid for leave taken to accompany an individual who is obtaining a vaccination or to care for an individual who is recovering from vaccination.)

Occupational Safety and Health Administration (OSHA)

Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace 

(Updated August 13)

U.S. Department of Health and Human Services (HHS) and U.S. Department of Justice (DOJ)

“Long COVID” as a Disability Under the ADA, Section 504, and Section 1557

(Released July 26)

State and Local

Vaccination Leave

Cook County, IL Vaccination Leave

On June 24 the Cook County Board of Commissioners adopted the COVID-19 Vaccination Rights for Employees and Prohibition of Retaliation by Employers Ordinance (Ordinance No. 21-3171).

Effective July 1, 2021, the ordinance states that employers who require employees to be vaccinated against COVID-19 must provide up to four hours of paid time off per dose if the appointment falls during the employee’s shift; if vaccination is not a requirement of employment, employees must be permitted to use available paid time off. In addition, employers may not require that employees obtain COVID-19 vaccination only during non-work hours, and are prohibited from retaliating against an employee for taking time during a shift to get vaccinated, or requiring an employee to find a replacement worker to cover hours missed. Details around enforcement and penalties can be found within the ordinance’s text.

These requirements will remain in effect until the Director of the Cook County Public Health Department makes a written determination that the threat to public health posed by COVID-19 has diminished to the point that the ordinance can safely be repealed.

Emergency Paid Sick Leave

While paid COVID-19 leave is no longer mandated on a federal level, state and local requirements are still in effect. Updates since our July 16 Statutory Update include:

District of Columbia

On June 24 the mayor of the District of Columbia approved the Public Emergency Extension and Eviction and Utility Moratorium Phasing Emergency Amendment Act of 2021 (B24-0345, now D.C. Act 24-125), extending the COVID-19-related amendments to the District’s Family and Medical Leave Program (DC FMLA) and Accrued Sick and Safe Leave Act (i.e., Paid Public Health Emergency Leave) until November 5, 2021.  The Office of Human Rights (OHR) has issued an updated version of the COVID-19 DC FMLA poster, to be displayed in a conspicuous place.

Maryland

In our July 16 Update we addressed the status of Maryland’s Public Health Emergency Leave (PHEL), a component of the Essential Workers Protection Act (MEWPA) passed on May 30, 2021.  Under MEWPA, employers must institute PHEL for their employees if and when:

1. the Maryland State of Emergency due to COVID-19 is renewed, and
2. state or federal funds for PHEL purposes are made available to the employer.

On August 11 the governor issued a proclamation officially terminating Maryland’s state of emergency effective August 15, 2021. Therefore, and at least as of right now, PHEL will not become a requirement.

Pittsburgh, PA

Following the Pennsylvania legislature’s June 10 vote to terminate the governor’s disaster emergency declaration and subsequent expiration of the Pittsburgh’s and Philadelphia’s COVID-19 paid sick leave requirements, the mayor of Pittsburgh signed a new ‘COVID-19 Sick Time’ ordinance. The new ordinance is almost identical to the original ordinance except that time off for employees to obtain COVID-19 vaccination for themselves or for family members has been added.

While the enactment of a new ordinance would suggest that a new leave entitlement is required, updated FAQ posted by the city indicate that the new ordinance is an extension of the original, and that any leave provided to an employee under FFCRA, other similar state/local law, or a company policy established after March 13, 2020, may be credited toward the ordinance’s requirements.

The ordinance will be added to the city’s Paid Sick Days Act as Section 626B effective July 29 and will expire in 365 days (on July 29, 2022), unless extended.

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

Other COVID-19 Legislation

Duluth, MN Earned Sick and Safe Time Ordinance Amendment

On July 19 the Duluth City Council adopted Ordinance #21-023-O, making the following permanent amendments to the city’s Earned Sick and Safe Time Ordinance (ESST) effective August 18, 2021:

• Closure of employee’s workplace due to public health reasons has been added to permitted reasons for use.
• Notice requirements have been expanded to include that each employee must be provided a copy of the employer’s earned sick and safe time policy or the employer’s equivalent paid leave policy; previously, only a conspicuous posting was required.  In addition, if an employer maintains an employee handbook, a copy of the employer’s earned sick and safe time policy or the employer’s equivalent paid leave policy must be included. The city has posted an updated version of the model notice on its website.

Remedies for violation of the ordinance now include that the employer may be ordered to provide written notice to all employees outlining the violation and corrective action taken.

Washington Updates

Protections for High Risk Individuals

On May 11 the governor of Washington signed the Health Emergency Labor Standards Act (SB5115), permanently amending the state’s labor laws to include various employer obligations during a public health emergency*.

Among in the requirements is an amendment to the Washington Industrial Safety and Health Act (RCW 49.17), which outlines an employer’s responsibilities for notifying the state when a portion of a worksite population tests positive for the disease that is the subject of the emergency declaration. The amendment prohibits an employer from discharging, replacing, or in any manner discriminating against a “high risk” employee* who:

1. Seeks accommodation that protects him or her from the risk of exposure to the infectious or contagious disease; or
2. If no accommodation is reasonable, utilizing all available leave options, including but not limited to leave without pay and unemployment insurance, until completion of the public health emergency or until an accommodation is made available.

* “Public Health Emergency” is defined as a declaration or order concerning any infectious or contagious disease, including a pandemic, issued by the President of the United States or the governor of Washington and covering every county of the state.

A “high risk” employee means an employee who, (1) due to age or an underlying health condition, is at a high risk of severe illness from the disease that is the subject of the public health emergency, as defined by the Centers for Disease Control and Prevention, and (2) a medical provider has recommended the employee’s removal from the workforce because of his or her high risk of severe illness. Note: employees are not required to disclose any medical condition or diagnosis to the employer.

The new law was effective immediately, and replaced the governor’s Proclamations 20-46 through 20-46.3 issuing protections for individuals at higher risk for severe illness from COVID-19; all were rescinded effective June 28. (Proclamations 20-46 and 20-46.2 were addressed in our May 1, 2020, and September 1, 2020, Updates, respectively.)

Anti-Discrimination – COVID-19

On May 21 the governor issued Proclamation 21-08, which prohibits employers from taking adverse action against any employee for receiving a COVID-19 vaccination, taking a reasonable period of time off to receive a vaccination or to recover from its side effects, taking time off to quarantine or isolate due to COVID-19, or taking time off if the employee is experiencing COVID-19 symptoms and seeking a diagnosis or treatment.

The Proclamation was effective immediately and will remain in effect until the end of the state of emergency, or until the Proclamation is amended or rescinded.

Washington Paid Family and Medical Leave (WA PFML) Amendment

In our May 14 Update we provided some detail around “pandemic leave assistance” grants for employees and small business grants provided under the WA PFML program via HB1073.  The state’s Employment Security Department (ESD) recently released amendments to the WA PFML regulations, applicable August 1, 2021. Included in the new rules are the following clarifications:

• Voluntary WA PFML plans are not required to pay pandemic leave assistance benefits to employees. Employees eligible for pandemic leave assistance who work for an employer with an approved voluntary plan may apply to the state for benefits.
• Employees applying for pandemic leave assistance must attest that they were not:
  • Separated from employment due to misconduct; or
  • Voluntarily separated from employment for reasons not related to the COVID-19 pandemic.
• An application for a small business grant for an employee taking leave under pandemic leave assistance does not count toward an employer’s maximum number of applications for small business grants otherwise permitted under the WA PFML law (see RCW 50A.24.010). However, the employer may not use additional grant applications otherwise permitted to receive more than one grant for an employee taking leave under pandemic leave assistance.

Non-COVID-19 Legislation

Paid Family and Medical Leave Updates

Connecticut Paid Family and Medical Leave (CT PFML) “Catch Up” Contributions

Our May 14 Update included notice that employers who were unable to begin taking payroll deductions for CT PFML contributions on January 1, 2021, were permitted to take “catch up” contributions of no more than 1% of employee wages through June 30. The homepage of the CT PFML website reflects that this period has been extended to September 30, 2021.

Contributions must be remitted to the Connecticut Paid Leave Authority (CT PLA) by the last business day of the month after the close of each quarter. Employers who have not yet registered their business with CT PLA are encouraged to do so as soon as possible.

Oregon Paid Family and Medical Leave (OR PFML) Implementation Timeline Changes

In our May 14 Update we noted that Oregon’s legislature was considering a change to the effective dates for OR PFML.  On July 27 Oregon’s governor signed HB3398, authorizing a postponement of the program’s implementation:

• Regulations will be issued by September 1, 2022 (previously September 1, 2021)
• Contributions begin January 1, 2023 (previously January 1, 2022)
• Leave entitlement begins September 3, 2023 (previously January 1, 2023)

Interplay with the state’s Family Leave Act (OFLA) also begins September 3, 2023.

Paid Sick Leave Updates

Oregon Paid Sick Time Law Amendments

On July 22 the Oregon Bureau of Labor and Industries issued Temporary Administrative Order BLI 9-2021, temporarily amending Rule 839-007-0020 of the state’s Paid Sick Time Law to expand the public health emergency scenarios under which sick time may be used (new text in italics):

(a) Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;

(b) A determination by a lawful public health authority or by a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others, such that the employee must provide self-care or care for the family member;

(c) The exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons;

(d) An emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or

(e) A determination by a public official with the authority to do so that the air quality index or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.

The Order is in effect from July 22, 2021, through January 17, 2022.

On July 14 the governor of Oregon signed SB588, amending the Multiemployer Exception section of the Paid Sick Time Law (ORS 653.646) to state that, effective January 1, 2023:

An employer signatory to a collective bargaining agreement to which the employer has agreed to contribute to a multiemployer-employee trust or benefit plan that is maintained for the benefit of the employees subject to the agreement shall be considered to have met the requirements of the Paid Sick Time Law if:

(a) The terms of the agreement provide a sick leave policy or other paid time off program that is substantially equivalent to or more generous than the minimum requirements of the Paid Sick Time Law for the benefit of employees:

• • • • Who are employed through a hiring hall or similar referral system operated by the labor organization or a third party;
      • Whose terms and conditions of employment are covered by the multiemployer collective bargaining agreement; and
      • Whose employment-related benefits are provided by the joint multiemployer-employee trust or benefit plan;

(b) The trustees of the trust or benefit plan have agreed to the level of benefits provided under the sick leave policy or other paid time off program; and

(c) The contributions to the trust or benefit plan are made solely by the employer signatories to the agreement.

An employee is eligible to use sick time accrued under a sick time policy or other program made available by an employer as described above beginning on the 91st calendar day of employment with an employer who is a signatory to the multiemployer collective bargaining agreement described. An employee may combine employment service attributable to each employer signatory for whom the employee worked to meet the eligibility requirements under item (a) above.

The Order also calls out anyone employed as a longshore worker as excluded from eligibility.

Other News

California Electronic Notifications

On July 16 the governor of California approved SB657, amending the state’s labor code effective January 1, 2022, permitting employers to send required employment-related notices to employees via email, with pertinent documents attached. This change does not relieve employers from the obligation to physically display required postings, however.

Illinois Family and Medical Leave

On August 10 the governor of Illinois approved HB12/Public Act 102-0335, amending various existing state laws to expand eligibility for leave entitlement and employment protections under the Family and Medical Leave Act of 1993 (FMLA) for school district, public university and community college employees. The Act lowers the hours threshold for FMLA eligibility from 1,250 in the 12 months prior to leave to 1,000 hours effective January 1, 2022.

Minnesota Lactation and Pregnancy Accommodations

On June 30 the governor of Minnesota approved finance and policy omnibus bill SF9, which included an amendment to the section of the state’s employment law addressing accommodations for nursing mothers (§181.939) effective January 1, 2022. The amendment:

• Requires that an employee’s breaks for expressing breast milk must be paid during the first 12 months following the birth of the child.
• Repeals the existing pregnancy accommodations law (§181.9414) and transfers those requirements to §181.939:
  • Employers with 15 or more employees (currently 21 or more) must provide reasonable accommodations for health conditions associated with pregnancy or childbirth upon request by the employee, unless​ the employer can demonstrate that an accommodation would impose undue hardship.
  • A pregnant employee is not required to obtain the advice of a licensed health care provider or certified doula, nor may an employer ​claim undue hardship, for the following accommodations:

1. 1. 1. more frequent restroom, food,​ and water breaks;
      2. seating; and
      3. limits on lifting over 20 pounds.

The employer should engage the employee in an interactive process with respect to her request for reasonable accommodation.

• “Reasonable accommodation” may include, but is not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom​ breaks, and limits to heavy lifting.  An employer may not require an employee to take a leave or accept an accommodation. Actions not required to accomplish accommodation include creating a new or additional position, discharging an employee, transferring another employee with greater seniority, or promoting an employee.

Domestic Violence Leave

Illinois Domestic Violence Leave Amendments

On August 20 the governor of Illinois approved HB3582/Public Act 102-0487, which makes the following amendments to the state’s Victims’ Economic Security and Safety Act effective January 1, 2022:

• Adds “crime of violence” to the events to which protections under the Act apply. The term is defined as “any conduct proscribed by Articles 9, 11, 12, 26.5, 29D, and 33A of the Criminal Code of 2012 or a similar provision of the Criminal Code of 1961, in addition to conduct proscribed by Articles of the Criminal Code of 2012 referenced in other definitions [in the Act]”.
• Adds to the definition of “family or household member” the employee’s civil union partner, grandparent, grandchild, sibling, and anyone whose close association with the employee is the equivalent of a family member as defined by the employee. The amendment also replaces “son or daughter” with “child” and removes any age restriction.
• Specifies that unpaid leave for reasons covered under the Act may be taken consecutively; previously only intermittent leave or reduced work schedule were noted.
• Adds that the employee may choose which form of acceptable documentation will be submitted to certify leave under the Act, and that the employer may not require more than one document be submitted during the same 12-month period leave is requested if the reason for leave is related to the same incident or person. Any information received by the employer must be treated as confidential, unless disclosure is consented to in writing by the employee or otherwise required by law.

Missouri Domestic Violence Leave

On July 14 the governor of Missouri signed HB432 which, in addition to other protections for “vulnerable persons”, establishes the requirement that employers provide unpaid leave to employees for needs associated with domestic violence, sexual assault or trafficking (as defined in Missouri Revised Statutes §455.010 and §566.209). The new law adds MRS §285.625 to §285.670, and is effective August 28, 2021.

Applies to:

• All employers with 20 or more employees;
• All employees performing work in Missouri.

Entitlement:

• Based on employer size:                                                                                                                                    
  • Employers with 20-49 employees: 1 workweek per 12-month period*;
  • Employers with 50 employees: 2 workweeks per 12-month period*.

* Note: the law specifies that it does not create a right to unpaid leave exceeding leave entitlement under FMLA.

• Leave may be taken continuously, intermittently or on a reduced work schedule.
• Employers must also make reasonable safety accommodations, unless it can be demonstrated that the requested accommodation imposes undue hardship. A reasonable safety accommodation is defined as “an adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, implementation of a safety procedure, or assistance in documenting domestic violence that occurs at the workplace or in work-related settings, in response to actual or threatened domestic violence”. Any exigent circumstances or danger facing the employee or his or her family or household member** may be considered in determining whether the accommodation is reasonable.

** “Family or household member” includes the employee’s spouse, parent, son or daughter under the age of 18 or incapable of self-care, other person related by blood or by present or prior marriage, other person who shares a relationship through a son or daughter, and persons jointly residing in the same household.

Reasons for Leave:

1. Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee’s family or household member;
2. Obtaining services from a victim services organization for the employee or the employee’s family or household member;
3. Obtaining psychological or other counseling for the employee or the employee’s family or household member;
4. Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee’s family or household member from future domestic or sexual violence or to ensure economic security; or
5. Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence.

Notice to Employer: Employees must provide at least 48 hours’ notice of intent to take leave, unless providing such notice is not practicable.

Certification:

• Employers may request certification of the need for leave, and may not take any action against the employee if that certification is provided within a reasonable timeframe.  An employee may satisfy the certification requirement by providing a sworn statement, as well as:
  • Documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the employee or the employee’s family or household member has sought assistance in addressing domestic violence or sexual violence and the effects of such violence;
  • A police or court record; or
  • Other corroborating evidence.
• An employer may also require any request for safety accommodation be in writing, signed by the employee or by an individual acting on the employee’s behalf, attesting that the accommodation is for a purpose covered by the law.
• Any information received by the employer must be treated as confidential, unless disclosure is consented to in writing by the employee or otherwise required by law.

Employment and Benefits Protection:

• An employee returning from leave must be restored to the same position as was held when the leave commenced, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
• Group health benefits in place for the employee and family members prior to leave must be maintained. The employer may recover any premiums paid during the period of leave if the employee fails to return to work after the expiration of leave entitlement for a reason other than a reason covered by this law, or due to other circumstances beyond the employee’s control.
• Taking leave for the purposes stated above may not result in the loss of any employment benefit the employee may have accrued prior to leave; however, accrual during leave is not required.

Notice to Employees: Employers must provide notice of the law’s provisions to all current employees by October 27, 2021, and thereafter to each new employee upon commencement of employment. A model notice will be furnished by the state’s Department of Labor and Industrial Relations, and electronic distribution will be acceptable.

Anti-Discrimination

Maine Anti-Discrimination – Domestic Violence

On July 15 Maine’s legislature enacted LD1294, amending §4572 of the Maine Human Rights Act effective October 18, 2021, to state that employers may not discriminate against an employee or applicant because the individual has sought and received a protection from abuse order.

Minnesota Anti-Discrimination – Familial Status

On June 30 the governor of Minnesota approved public safety omnibus bill HF63, which includes two amendments to the state’s Human Rights Act effective July 1, 2022:

• §363A.02 of the Act (Public Policy) currently prohibits discrimination in employment due to race, color, creed, religion, national origin, sex, marital status, disability, status with regard to public assistance, sexual orientation, and age. Under the amendment, employers are also prohibited from discriminating based on a person’s familial status*.
• * Per §363A.03, “Familial status” means the condition of one or more minors being domiciled with (1) their parent or parents or the minors’ legal guardian, or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian. The protections afforded against discrimination on the basis of family status apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.
• §363A.08 (Unfair Employment Practice) requires that employers provide reasonable accommodation for a job applicant or qualified employee with a disability. The amendment instructs that the employer engage the individual in an informal, interactive process to identify the limitations resulting from the disability and any potential reasonable accommodations that could overcome those limitations.

Pennsylvania Anti-Discrimination – Military

On June 30 the governor of Pennsylvania approved HB196/Act. No. 31, which amends PA.C.S. §7309 effective August 28, 2021, to extend the anti-discrimination and employment protections for National Guard members to members of a National Guard or reserve component from another state.

Please contact your MMA ADL Account Team members with 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 © 2021 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

July 16, 2021

COVID-19 Legislation

Federal

OSHA Emergency Temporary Standard Features Paid Leave for Healthcare Workers

The Occupational Safety and Health Administration’s (OSHA) COVID-19 Healthcare Emergency Temporary Standard (ETS) became effective on June 21, following its publication in the Federal Register.  Healthcare employers must comply with most provisions by July 6, 2021, and with training, ventilation and barrier provisions by July 21, 2021.

Section 1910.502(l)(4) of the ETS includes instructions for removing an employee providing healthcare services or healthcare support services* from the workplace when the employee has tested positive for or diagnosed with COVID-19, is suspected to have COVID-19, or is e­xperiencing symptoms associated with COVID-19.  Section 1910.502(l)(5) outlines pay requirements for employees subject to this removal:

1. If an employer allows an employee to work remotely or in isolation upon being removed from the workplace, the employer must continue to pay the employee the same regular pay and benefits the employee would have received had the employee not been absent from work, until the employee meets return to work criteria (see below).
2. Otherwise, employers with 11 or more employees must continue to provide the benefits to which the employee is normally entitled and must also pay the employee the same regular pay the employee would have received had the employee not been absent from work, up to $1,400 per week, until the employee meets return to work criteria.
   1. Employers with fewer than 500 employees may reduce payment to 2/3 the employee’s regular pay, up to $200 per day, beginning the third week of removal.
   2. The employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, such as a publicly or employer-funded compensation program (e.g., paid sick leave, administrative leave), for earnings lost during the period of removal or any additional source of income the employee receives that is made possible by virtue of the employee’s removal.
3. Employees returning to the workplace after a COVID–19-related workplace removal must not suffer any adverse action as a result of that removal from the workplace and must maintain all employee rights and benefits, including the right to their former job status, as if they had not been removed.

* See ETS sections 1910.502(a) and 1910.502(b) for applicability, exclusions and definitions, as well as OSHA’s ETS flowchart and FAQ.

Return to Work Criteria:

1. The employee has been removed from the workplace for 14 days; or
2. The employee was removed and provided a COVID-19 test at least five days after the exposure at no cost to the employee.
   1. Negative result: the employee may return to work after seven days following exposure;
   2. Positive result: the employer must keep the employee removed until they meet the return to work criteria in #4 below;
   3. If the employee refuses to take the test, the employer must continue to keep the employee removed from the workplace for 14 days but is not obligated to provide the medical removal protection benefits in accordance with #2 in the pay requirements section above. Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons, consistent with applicable nondiscrimination laws.
3. The above “removal” requirements do not apply if the exposed employee is only suspected to have COVID-19 or is not exhibiting symptoms, and has either been fully vaccinated for COVID-19 or has had COVID-19 and recovered within the past three months.
4. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed healthcare provider or CDC’s Isolate If You Are Sick and Return to Work Criteria for Healthcare Personnel guidance. Employers must also consider state or local requirements.

The ETS notes that OSHA recognizes that CDC’s Strategies to Mitigate Healthcare Personnel Staffing Shortages allows elimination of quarantine for certain healthcare workers. However, this is only to be exercised as a last resort, if the workers’ absence would mean there are no longer enough staff to provide safe patient care, specific other amelioration strategies have already been tried, patients have been notified, and workers are utilizing additional PPE at all times.

Vaccination Leave: The ETS also specifies that employers must support COVID–19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination

State and Local

Vaccination Leave

Los Angeles City, CA COVID-19 Vaccine Leave

On June 24 the mayor of the City of Los Angeles issued a public order requiring private employers to provide “COVID-19 Vaccine Leave” to their employees.

• Effective dates: January 1 through September 30, 2021.
• COVID-19 Vaccine Leave is defined as time an employee takes off work for reasons associated with receiving a COVID-19 vaccine injection. This includes the time the employee spends traveling to and from an appointment, receiving the injection, and recovering from vaccination-related side effects that prevent the employee from being able to work or telework.
• Eligible employees are those who perform work within the geographic boundaries of the city, and have been employed by the employer for at least 60 days.

Leave Entitlement:

• Employers with 25 or fewer employees must provide full-time* employees up to four hours per injection, and up to eight hours to recover from any vaccination-related side effects. Part-time employees must be provided a prorated amount of these entitlements based on the average number of hours worked in the 60 days preceding the injection (see page 3 of the order for an example).
• Employers with 26 or more employees must provide the same amounts of leave specified above, but only after the employee has exhausted COVID-19 Supplemental Paid Sick Leave mandated by the state or by the city.

* Employees considered full-time by their employers, or who worked or were scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date of leave.

Pay:

• Non-exempt employees must be paid at the highest of the following rates: (1) the employee’s normal rate of pay for the workweek during which leave is taken; (2) the City’s $15 per hour minimum wage; or (3) the employee’s average hourly pay for the 60 days preceding leave, not including overtime.
• Exempt employees must be paid in the same manner as the employer calculates wages for other forms of paid leave.
• Up to $511 per day ($255.50 per each 4 hour period) with a maximum of $1,022 in total, unless federal legislation is enacted that increases these amounts.
• Employers may request written verification of the receipt of a COVID-19 vaccine from the employee in order for COVID-19 Vaccine Leave to be paid.

Interplay with Other Leaves:

• COVID-19 Vaccine Leave is in addition to other paid leave available to an employee, including paid time under the state’s accrued paid sick time and COVID-19 Supplemental Paid Sick Leave laws. An employer may not require an employee to use other paid or unpaid leave prior to using COVID-19 Vaccine Leave.
• An employer who, on or after January 1, 2021, provided its employees another benefit in addition to any other accrued leave entitlements, including those under the state’s accrued paid sick leave and COVID-19 Supplemental Paid Sick Leave laws, for the same reasons and at least the same rate of pay as COVID-19 Vaccine Leave, may count the company’s supplemental benefit toward this order’s requirements. However:
  • • If an employee took time off work to receive a COVID-19 vaccine or to recover from a COVID-19 vaccination on or after January 1, 2021, and the employer did not compensate the employee in an amount equal to or greater than what is required by COVID-19 Vaccine Leave, then upon the oral or written request of an employee, the employer must provide the employee with a retroactive payment that provides this compensation. Any retroactive payment required must be paid on or before the payday for the next full pay period after the employee’s request.
    • If the employer required an employee to use leave other than paid leave provided under the state’s or city’s COVID-19 Supplemental Paid Sick requirements, such as vacation, paid or unpaid time off, or other sick leave benefits, then upon the oral or written request of an employee, the employer must reclassify the paid leave taken as COVID-19 Vaccine Leave, and restore the leave taken by the employee under the different category of leave. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of COVID-19 Vaccine Leave, must be reflected on the employee’s wage statement on or before the payday for the next full pay period after employee’s request.

Collective Bargaining Agreements that do not feature COVID-19 vaccine leave provisions must comply with the order unless and until the agreement is amended to expressly waive the order’s requirements in clear and unambiguous terms.

Nevada COVID-19 Vaccination Leave

On June 9 the governor of Nevada signed SB209, which temporarily adds to the state’s wage and hour laws (NRS 608) mandatory paid time off for obtaining a COVID-19 vaccination.

• Effective dates:  June 9, 2021, through December 31, 2023.
• Applies to all private employers with 50 or more employees in the state.
• Does not apply to:
  • • Employers who provide a clinic on their premises where an employee may receive a COVID-19 vaccination during regular work hours; or
    • Newer employers for the first two years of operation.
• All employees are eligible for two hours of paid leave per injection, for a maximum entitlement of four hours.  Employees must provide at least 12 hours’ notice of the intention to use this time.
• Leave for vaccination is in addition to any other form of paid leave to which the employee may be entitled.
• An employer may not require an employee to find a replacement worker, or retaliate against or discipline employees in any way for taking leave. Hours of leave may not be counted against an employee in calculating hours for overtime.
• Employers must: (1)Post a notice of rights and obligations in a conspicuous place;  and (2) Maintain a record of the receipt and use of this leave for one year.

The law also permanently amends the state’s Earned Paid Leave law (NRS 608.0197).  Prior to this amendment, the law did not list any specific reasons for which an employee may use accrued time.  SB209 maintains the provision that “an employee may use paid leave available for use by that employee without providing a reason to his or her employer for such use”, but adds the following (as 608.0197(2)(b)): 

An employer shall allow an employee to use paid leave for any use, including, without limitation:

1. Treatment of a mental or physical illness, injury or health condition;
2. Receiving a medical diagnosis or medical care;
3. Receiving or participating in preventative care;
4. Participating in caregiving; or
5. Addressing other personal needs related to the health of the employee.

New York COVID-19 Vaccination Leave Guidance

In our March 17 and April 9 Statutory Updates we provided details on New York’s COVID-19 Vaccination Leave effective March 12.  On May 28 the New York Department of Labor (NY DOL) released guidance clarifying that employees who experience side effects of COVID-19 vaccination must be permitted to use sick time accrued under the state’s Paid Sick Leave law (NY Labor Law §196-B) to recover from those symptoms. 

Emergency Paid Sick Leave

While paid COVID-19 leave is no longer mandated on a federal level, state and local requirements are still in effect. Updates since our June 10 Statutory Update include:

Los Angeles City, CA

On June 24 the mayor of Los Angeles issued a revised order amending the city’s COVID-19 Supplemental Paid Sick Leave requirements.  The order adds time off to obtain a COVID-19 vaccine to the reasons for SPSL use, including travel time and recovery from any related symptoms. Employers may request verification that the employee received a vaccination. (Note the city’s new COVID-19 Vaccine Leave requirements summarized above.)

Marin County, CA

On June 8 the Marin County Board of Supervisors enacted an urgency ordinance requiring employers to provide up to 80 hours of Supplemental Paid Sick Leave (SPSL) to employees who have not exhausted any other SPSL entitlement during the pandemic. Below is a summary of the law’s details.

Sonoma County, CA

On June 8 Sonoma County’s Board of Supervisors passed an urgency ordinance to amend and extend the county’s Supplemental Paid Sick Leave (SPSL) law. The previous ordinance, which replaced the original ordinance, did not provide additional leave if an employee used SPSL in 2020. The new ordinance specifies that, in order to better align with the state’s SPSL requirements, Sonoma County’s SPSL may be taken between January 1, 2021 and September 30, 2021.  Employer “offset” allowances are still in place:

• To the extent an employee has at least 80 hours of accrued paid sick leave benefits as of June 8, 2021 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 Sonoma County SPSL will be considered satisfied. To the extent an employee’s accrued paid sick leave benefits as of June 8, 2021 are less than 80 hours, or Accrued Leave Benefits are less than 160 hours, an employer must provide SPSL to the extent of such deficiency.
• An employer may credit the total COVID-19 paid sick leave hours furnished to an employee under the American Rescue Plan Act, AB 85 (state budget act), SB 95 (CA State SPSL), and/or Cal/OSHA regulations against Sonoma County’s SPSL requirements.

The new ordinance also adds time off to obtain a COVID-19 vaccine to the reasons for SPSL use, including recovery from any related symptoms.

Colorado

On July 8 the governor of Colorado announced an end to the state’s health emergency declaration. However, since the state’s guidance indicates that availability of Public Health Emergency Leave (PHEL) is linked to “any and all” applicable public health declarations, and the federal declaration is still in effect, PHEL is still required. 

District of Columbia

On June 7 the mayor of the District of Columbia approved the Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (B24-0257, now D.C. Act 24-96), extending Paid Public Health Emergency Leave until September 5.

Maryland

In our June 10 Update we introduced Maryland’s Public Health Emergency Leave (PHEL), a component of the Essential Workers Protection Act (MEWPA) passed on May 30.  As noted, PHEL becomes a requirement of employers if and when:

1. the Maryland State of Emergency due to COVID-19 is renewed, and
2. state or federal funds for PHEL purposes are made available to the employer.

The timing of this requirement is still uncertain. On July 12 the governor issued a proclamation indicating that Maryland’s state of emergency and catastrophic health emergency are still in effect, after having announced the termination of various emergency orders almost a month earlier. Regarding funding, the Maryland Department of Labor’s MEWPA FAQ state that “Funding occurs under the MEWPA when the Governor dedicates funding for paid public health emergency leave through the State budget process. An employer is required to provide the paid public health emergency leave beginning on the date the funding is made available to the essential employer”.  The state’s fiscal year began on July 1, however the allocation of PHEL funds remains to be seen. We will continue to track the law and provide updates as information becomes available.

Philadelphia and Pittsburgh, PA

On June 10 Pennsylvania’s legislature voted to terminate the governor’s disaster emergency declaration, thus ending these cities’ COVID-19 paid sick leave requirements.  Both allow that employees may use this time until one week following the end of the public health emergency (i.e., June 17).

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

Non-COVID-19 Legislation

Paid Family and Medical Leave Updates

District of Columbia Paid Family and Medical Leave (DC PFML) – Minimum Wage Increase

D.C.’s Department of Employment Services (DOES) recently announced that the District’s minimum wage would increase from $15/hour to $15.20/hour effective July 1, 2021.  This change impacts the calculation for an individual’s benefits under the DC PFML program, but does not alter the maximum weekly benefit, which is $1,000 until at least October 1, 2021.

New Hampshire Paid Family Leave

On June 25 the governor of New Hampshire signed budget bill HB2, which included the establishment of the Granite State Paid Family Leave Plan to provide family and medical leave insurance (FMLI) benefits to employees in the state.  More to come on outstanding details, but below is what we know now from the law’s text (some details may be subject to change):

Program(s):

1. Program purchased by the state on behalf of state employees;
2. Voluntary “opt-in” for non-state public and private employers; and
3. Voluntary “purchasing pool” for individual non-state employees who wish to participate.

The Commissioner of the Department of Administrative Services will be requesting bids from approved accident and life insurance carriers to insure the program.  As a condition of the state contract, the selected carrier must also offer the coverage to other public employers, private employers with more than 50 employees, and individual employees. 

• • Employers with more than 50 employees who choose to sponsor coverage for their employees will be able to contract directly with the selected carrier. These employers will be eligible for a tax credit of 50% of the premium paid for FMLI coverage.
  • Individual employees who work for employers who either elect not to offer FMLI coverage or fail to meet participation requirements (assuming this refers to the 50-employee threshold) and do not offer a paid family leave benefit that is at least equivalent to the Granite State plan will be able to secure coverage through a “purchasing pool”.

Reasons for Leave:

• To bond with a new child via birth, adoption or foster care within 12 months of birth or placement;
• To care for a family member* with a serious health condition;
• Any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member on covered active duty; or
• To care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, child, parent, or next of kin.

Note:  Leave for an employee’s own illness is not provided under the program except that individuals opting into the program via the purchasing pool may take leave for their own non-work related serious health condition if their employer does not offer Short Term Disability insurance.

* Covered family members include a child (as defined under FMLA), a biological, adoptive, or foster parent, stepparent, or legal guardian of the child or the child’s spouse or domestic partner, a biological, adoptive, or foster grandparent or step grandparent, or a spouse or domestic partner.

Level of Benefit:

• Leave Entitlement: Up to 6 weeks per year.
• Income Replacement: 60% of the employee’s average weekly wage. Wages used to determine the 60% benefit will be capped at the Social Security taxable wage maximum.
• To Be Determined:
  • • The base period by which the employee’s average weekly wage will be determined.
    • The waiting period before an employee is eligible to be covered under the state program.  It is estimated that no waiting period will apply to an employee who has already met the requirement and then changes jobs. Individual coverage through the purchasing pool will have a seven month waiting period.
    • Whether the state program will feature an elimination period before weekly benefits begin. Individual coverage through the purchasing pool will have a one week elimination period.

Cost to Employees:

• State program: No cost to state employees.
• Non-state employers who opt into the program may choose to provide FMLI at no cost to their employees or on a contributory or partially contributory basis.
• Premiums for individual purchasing pool coverage will not exceed $5 per subscriber per week.

Pertinent Dates:

• Bidding carriers must submit proposals by March 31, 2022;
• Coverage will be in place for state government employees and available for purchase by non-state employers and individuals by January 1, 2023.

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

Effective July 1, 2021 the weekly benefit maximum for TDI and TCI increased from $887 to $978 ($1,320 with the dependency allowance); the minimum weekly benefit remains $107.

On July 6 the governor of Rhode Island signed S0688A, increasing the maximum duration of Temporary Caregiver Insurance (TCI) leave for from 4 weeks per benefit year to:

• • 5 weeks beginning January 1, 2022, and
  • 6 weeks beginning January 1, 2023.

This change does not increase the 30-week maximum for TCI and Temporary Disability Insurance (TDI) leave combined.

Other Leave News

Connecticut Voting Leave

On June 23 the governor of Connecticut signed the state budget (SB1202), which includes the requirement that employers provide employees with up to two hours of unpaid leave to vote in a state election or special election for U.S. senator, representative in Congress, state senator or state representative.  Employees must request this time at least two workdays in advance. This requirement was effective immediately and expires June 30, 2024.

Chicago, IL Paid Sick Leave Law Amendment and Wage Theft Protections

On June 25 Chicago’s City Council passed SO2021-2182, which amends the city’s Paid Sick Leave law effective August 1, 2021, by replacing gender-specific pronouns and expands the reasons for which accrued time may be used, as outlined below. The ordinance also adds language regarding penalties for an employer’s failure to appropriately compensate employees for hours worked or for paid time off (“wage theft”), as well as employees’ rights to seek redress for violations.

The city has posted an updated model notice, which must be posted conspicuously at the worksite and included in each employee’s first paycheck and annually thereafter with the pay on or after July 1.

Louisiana Pregnancy Accommodation

On June 17 the governor of Louisiana signed SB215/Act No. 393, which makes several changes to the state’s Pregnancy Disability Leave law effective August 1, 2021:

• A “reasonable period of time” for leave due to pregnancy is restated as “six weeks for a normal pregnancy and childbirth or the period of time during which the female employee is disabled on account of the pregnancy, childbirth, or related medical conditions, provided the period shall not exceed four months”.
• Adds that employers may not:
  • • refuse to make reasonable accommodations* for an applicant or employee with covered limitations*, unless the employer can demonstrate undue hardship*.  However, employers are not required to create employment opportunities or impact the position of other workers, unless they do so for other employees who require accommodation;
    • deny employment opportunities to a job applicant or existing employee, if the denial is based on the need of the employer to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions*;
    • require an employee or applicant to accept any unnecessary accommodation or to take a leave of absence if another accommodation can be provided;
    • take adverse action against an employee with covered limitations for requesting or using a reasonable accommodation for medical needs arising from pregnancy, childbirth, or related medical conditions.

* See p2-3 of the law for definitions of these terms.

Employers must provide written notice of the law’s provisions to new hires and to existing employees prior to December 1, 2021. Notice must also be conspicuously displayed at the worksite in an area accessible to employees. It is not clear whether the state intends to provide a model notice.

Maine Family Medical Leave Law Amendment

On June 14 the governor of Maine approved HP27/LD61, which amends the state’s Family Medical Leave Requirements to include grandchildren as covered dependents (i.e., “Family medical leave” means leave requested by an employee for … D. a child, domestic partner’s child, grandchild, domestic partner’s grandchild, parent, domestic partner, sibling or spouse with a serious health condition.).  This change will become effective on or around September 28, 2021, 90 days from the adjournment of the legislative session on June 30.

Nevada Kin Care Required Notice

In our June 10 Update we summarized Nevada’s new “kin care” law effective October 1, 2021.  The state’s Office of the Labor Commissioner has posted the model notice, which must be displayed in a conspicuous location at each worksite.

Please contact your MMA ADL Account Team members with 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 © 2021 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

June 10, 2021

COVID-19 Legislation

State and Local

Los Angeles County, CA COVID-19 Vaccination Leave

On May 18, the LA County Board of Supervisors enacted an urgency ordinance requiring private employers to provide paid time off to their employees who perform work in the unincorporated areas of the county for the purpose of obtaining the COVID-19 vaccine.

Leave entitlement is up to four hours per injection (pro-rated for part-time employees based on weekly schedule), but is available only if the employee has exhausted leave under the state’s COVID-19 Supplemental Paid Sick Leave law. This time may also be used for recovery from any post-vaccination symptoms that prevent the employee from being able to work or telework.

Employers must post notice of employees’ rights under the ordinance, and maintain applicable payroll records for four years. The Los Angeles County Department of Consumer and Business Affairs (DCBA) will be releasing a model notice.

Collective Bargaining Agreements may waive the ordinance’s provisions, but only if the waiver is expressly stated and implemented bilaterally.

The ordinance is effective retroactively to January 1, 2021, and set to expire on August 31, 2021.

Emergency Paid Sick Leave Laws

While paid COVID-19 leave is no longer mandated on a federal level, state and local requirements are still in effect. Updates since our May 14 Statutory Update include:

District of Columbia

On May 17 Mayor’s Order 2021-069 was issued, stating that the existing public health emergency declaration, and therefore the required Paid Public Health Emergency Leave implemented last year, will remain in place for as long as extended by D.C. law.  The D.C. Council recently voted to provide the Mayor with the authority to extend the COVID-19 public health emergency until July 25 at the latest. (See our side-by-side comparison of EPSL laws for more details on D.C. PHEL.)

This development also extends the temporary “COVID-19 Leave” amendment to DC FMLA.  The D.C. Office of Human Rights’ (OHR) website indicates that entitlement to this (unpaid) leave expires once the declared public health emergency ends “or approximately September 30, 2021”.  OHR has posted updated guidance and a new version of the required poster, which must be displayed in a conspicuous place and provided electronically to employees working remotely. (See our March 20, 2020 and July 1, 2020 Statutory Updates for more details on COVID-19 Leave under DC FMLA.)

Maryland

On May 30 Maryland’s legislature passed the Essential Workers Protection Act (HB581) which, in addition to requiring “essential employers” to establish COVID-19-specific safety policies and protocols, mandates that up to 112 hours of Public Health Emergency Leave be provided to “essential workers” during a “catastrophic health emergency”.  While the Act was effective upon enactment, PHEL will only become a requirement of employers if and when:

1. the Maryland State of Emergency due to COVID-19 is renewed (currently set to expire on/around June 11), and
2. state or federal funds for PHEL purposes are made available to the employer.

No funding mechanism has yet been identified, and the state does not consider FFCRA leave tax credits as funding to trigger PHEL under this law.

Some additional detail on the Act may be found in our side-by-side comparison of EPSL laws. We will continue to track the law and provide updates as they become available.

Massachusetts

On May 28 the governor of Massachusetts signed HB3702, requiring employers to provide up to 40 hours of Emergency Paid Sick Leave to their Massachusetts employees. Below is a summary of the law’s details. 

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

Other Leave News

State and Local

Connecticut Breastfeeding Accommodations Amendment

On June 4 the governor of Connecticut signed HB5158, now Public Act No. 21-27, which amends existing breastfeeding accommodation requirements effective October 1, 2021. The amendment specifies that, absent any undue hardship it may present to the employer, any location provided for an employee to express breast milk must (1) be free from intrusion and public view, (2) include or be situated near a refrigerator or employee-provided cold storage device, and (3) include access to an electrical outlet.

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

On May 26 the D.C. Council enacted the Short-Term Disability Insurance Benefit Protection Emergency Amendment Act of 2021 (B24-0185, now D.C. Act 24-90).  Effective immediately, the Act prohibits employers who sponsor Short Term Disability (STD) policies from reducing plan benefits by any benefit amount payable under the Universal Paid Leave Amendment Act of 2016 (DC PFML).  This restriction only applies to insured STD policies, but it appears as though it is not limited to just those issued within the District.

The Act is set to expire in 90 days (August 24), however today the Council enacted B24-0186/D.C. Act 24-97 extending this requirement for the longer term.  Following a 30-day congressional review and publication in the D.C. Register, the new Act will be in effect for 225 days (into February, 2022).

Employers sponsoring insured STD programs covering employees working in the District are encouraged to contact their carriers to discuss any required changes.

Maryland Flexible Leave Act Amendment

On May 26 Maryland’s legislature enacted HB56/SB473, amending the Maryland Flexible Leave Act (MFLA).  The current law requires employers with 15 or more employees who provide their employees with paid time off, whether it be sick time, vacation, PTO or compensatory time, to permit use of that time for the employee to care for an ill or injured family member. Effective October 1, 2021, employees may also use existing entitlements for bereavement leave upon the death of a child, parent or spouse.

Nevada Kin Care

On May 29 the governor of Nevada approved AB190, which establishes “kin care” requirements under NRS Chapter 608 effective October 1, 2021.  The law states that if an employer provides paid or unpaid sick leave* to its employees, the employer must allow an employee to use accrued time to care for a family member with an illness, injury, medical appointment or other medical need. The employer may limit use for this purpose to an amount equivalent to what the employee accrues in a six-month period.  Employees covered by a collective bargaining agreement are excluded.

Covered family members include the employee’s child, foster child, spouse, domestic partner, sibling, parent, stepparent, parent-in-law, grandchild, grandparent, or any person for whom the employee is the legal guardian.

Employers will be required to post notice of the new law’s provisions in a conspicuous location at each worksite.  A model notice will be provided by the Office of the Labor Commissioner via its website.

* Nevada’s existing Earned Paid Leave law requires employers with 50 or more employees in the state to provide up to 40 hours of accrued paid leave per year.

Oregon Family Leave Act Amendment

On June 8 the governor of Oregon signed HB2474, making the following amendments to the Oregon Family Leave Act (OFLA) (ORS 659A.159 – 659A.186):

• Under the current law, employees are eligible for OFLA if they have employed by the employer for 180 days prior to the need for leave, and, for leave reasons other than bonding with a new child, worked at least 25 hours per week on average during the 180-day period.  The amendment provides that during a public health emergency (as defined) an employee is eligible to take leave for any of the reasons covered under OFLA if he or she has worked for the employer for at least 30 days, and for at least 25 hours per week on average during those 30 days.
• Reasons for leave 1(d) is expanded to include care for a child “who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency”.  If leave is taken for this reason, the employer may request verification of the need for leave.  The request may include the name of the child, the name of the school or place of care, a statement from the employee that no other family member is willing or able to care for the child, and, if the child is older than 14, a statement from the employee that special circumstances exist that require the employee to provide home care for the child during the day. This particular amendment mirrors a change implemented in 2020 in response to the COVID-19 public health emergency and made permanent earlier this year.
• If an OFLA-eligible employee separates from employment for any reason or experiences a temporary cessation of hours, OFLA eligibility will be restored upon rehire or return to work within 180 days or less. Any employee who is rehired or returns to work within 180 days of separation of employment or temporary cessation of hours will have prior service credited.  Neither of these provisions alter the amount of OFLA leave that may be taken within any one-year period.

Oregon Military Leave Amendment

On May 21 the governor of Oregon signed HB2231, which amends current state laws associated with reemployment following military service (ORS 408.240 and ORS 659A.082) to state that, effective September 25, 2021, the five-year limit on eligibility for reemployment under USERRA and Oregon law does not apply to voluntary service overseas or voluntary service within the United States during or in response to an emergency or disaster declared by local, state or federal government.

Philadelphia, PA Paid Sick Leave Law Amendment

On May 11 the mayor of Philadelphia signed Bill No. 210249, immediately amending the city’s Promoting Healthy Families and Workplaces and domestic violence leave laws to include “coercive control” within the definition of domestic violence.

(f) “Coercive control” means a pattern of threatening, humiliating, or intimidating actions toward an individual used to punish or frighten the individual, including but not limited to a pattern of behavior that, in effect, takes away the individual’s liberty, freedom, or sense of self, safety, or bodily integrity; including, but not limited to, a pattern of one or more of the following actions:

(1) Isolating the victim from support networks;

(2) Controlling the victim’s economic and other resources, such as transportation;

(3) Closely monitoring the victim’s activities, communications or movements;

(4) Repetitively degrading and demeaning of the victim;

(5) Threatening to kill or harm the victim or the victim’s children or relatives or pets; or to take steps to separate the victim from the victim’s children and or pets;

(6) Threatening to publish or publishing sexualized, false, or embarrassing information, videos, photographs, or other depictions of the victim;

(7) Damaging or taking the victim’s property or possessions;

(8) Displaying or referring to weapons as a means to intimidate or threaten; or

(9) Forcing the victim to engage in unlawful activity.

Please contact your MMA ADL Account Team members with 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 © 2021 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.