September 30, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

San Francisco, CA Public Health Emergency Leave  

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

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

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

New York COVID-19 Sick Leave

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

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

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

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

Colorado Family and Medical Leave Insurance (CO FAMLI)

Contributions begin January 1, 2023

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

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

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

Private Plan Guidance

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

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

Benefits Regulations

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

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

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

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

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

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

District of Columbia Paid Family Leave (DC PFL)

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

Oregon Paid Family and Medical Leave (OR PFML)

Contributions begin January 1, 2023

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

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

Private Plans

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

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

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

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

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

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

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

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

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

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

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

Benefits Regulations

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

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

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

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

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

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

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

2023 PFML Benefits and Rates

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

Other News

New Jersey Required Postings

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

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

The individual notice may be provided:

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

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

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

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

July 26, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

San Francisco, CA Public Health Emergency Leave  

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

Colorado Healthy Families and Workplaces Act and Public Health Emergency Leave  

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

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

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

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

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

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

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

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

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

Other COVID-19 Legislation

New York Vaccination Leave Extension

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

Non-COVID-19 Legislation

State and Local

Paid Sick Leave Updates

Bloomington, MN Earned Sick and Safe Leave

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

New Mexico Healthy Workplaces Act Rules

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

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

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

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

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

Puerto Rico Minimum Wage, Vacation and Sick Leave Act Amendment

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

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

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

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

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

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

Paid Family and Medical Leave Updates

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

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

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

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

Oregon Paid Family and Medical Leave (OR PFML) Updates

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

* See the Equivalent Plan Fact Sheet for more details.  OED will be releasing more information next month, including an equivalent plan guidebook.

• • In September 2023 individuals will utilize Frances Online to file and track OR PFML claims.
  • Resources for employers, including frequently asked questions and file specifications, may be found at Francesinfo.oregon.gov.
• Contributions toward the OR PFML program begin January 1, 2023.  Employers must also provide written notice to employees outlining their rights and responsibilities under the law. As noted above, the Paid Leave Oregon website includes Fact Sheets on various topics, but it is anticipated that an official model notice will be provided.

Rhode Island TDI/TCI Weekly Benefit Maximum Increase

Effective July 1, 2022 the weekly benefit maximum for Rhode Island Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI) increased from $887 to $1,007 ($1,359 with the dependency allowance); the minimum weekly benefit remains $114.

Other News

San Francisco, CA Family Friendly Workplace Ordinance Amendment

San Francisco’s Family Friendly Workplace Ordinance (FFWO), originally effective on January 1, 2014, granted employees the right to seek “flexible or predictable working arrangements” to assist them with their responsibilities in caring for a child under 18, a family member with a serious health condition, or a parent age 65 or older. 

Effective July 12, 2022, Ordinance No. 39-22 expanded the scope of the FFWO so that eligible care recipients now include any person age 65 or older who is in a family relationship with the employee, rather than being limited to the employee’s parent. “Family relationship” includes relationships by blood, legal custody, marriage, or domestic partnerships (as defined in SFAC Ch. 62 or CFC §297) to another person as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent.

A revised work arrangement may take the form of a change in the employee’s terms and conditions of employment as they relate to:

• the number of hours the employee is required to work (e.g., part-time work, part-year employment, or job sharing arrangements);
• the employee’s work schedule (e.g., modified hours, variable hours, predictable hours, or other schedule changes or flexibilities);
• the employee’s work location (e.g., telework); or
• the employee’s work assignments or duties.

Employees must submit a request for a revised work arrangement to the employer in writing, to which the employer is required to respond within 21 days of receipt. If the employer grants the request they must do so in writing. If the employer does not agree with the arrangement as requested, they must engage the employee in an interactive process to attempt to determine an arrangement that is acceptable to both parties.  Employers may only deny a request if they can demonstrate that such an arrangement would cause undue hardship, and must provide a detailed response to this effect to the employee in writing. At that time the employee may request reconsideration, and may also file a complaint with the Office of Labor Standards Enforcement (OLSE).

The ordinance applies to employers with 20 or more employees nationwide, though its requirements may be waived in a collective bargaining agreement if expressly stated.

Employees who regularly work* at least 8 hours per week within the geographic boundaries of the city or county of San Francisco are eligible after they have been employed by the employer for at least 6 months.  OLSE may exempt certain employees working in public safety or public health functions, upon the employer’s request.

* Work includes telework from the employee’s residence or other location that is not an office or worksite of the employer if the employer maintains an office or worksite within the geographic boundaries of the city or county of San Francisco at which the employee may work, or prior to the 22 COVID-19 pandemic was permitted to work. When determining where a remote employee is assigned for purposes of the FFWO, an employer should consider factors including, but not limited to, the location of the employee’s computer, manager, teammates or co-workers, personnel file, where the employee worked prior to beginning telework, and/or the employee’s proximity to the business location. See the FFWO rules for more information.

Employers are required to post a notice informing employees of their rights under the ordinance, in English, Spanish, Chinese, and any language spoken by at least 5% of the Employees at the workplace or job site. OLSE has posted an updated version of the model notice on its FFWO webpage.

Illinois Leave Law Updates

Bereavement Leave Expansion

On June 9 the governor of Illinois approved SB3120 (now Public Act 102-1050), amending the state’s existing Child Bereavement Leave Act and renaming it the Family Bereavement Leave Act effective January 1, 2023.

The Child Bereavement Leave Act currently provides that an employee* is entitled to up to 10 work days of unpaid leave for needs associated with the death of their child. The amendments include:

• Covered Family Members: Leave may also be used due to the death of the employee’s spouse, domestic partner (as defined), sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.
• Reasons for use (changes in italics):

• 1. To attend the funeral or alternative to a funeral of a covered family member;
  2. To make arrangements necessitated by the death of the covered family member;
  3. To grieve the death of the covered family member;
  4. To be absent from work due to:

• 1. 1. 1. a miscarriage;
        2. an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure;
        3. a failed adoption match or an adoption that is not finalized because it is contested by another party;
        4. a failed surrogacy agreement;
        5. a diagnosis that negatively impacts pregnancy or fertility;
        6. a stillbirth.
• To support the need for leave due to reasons 1 through 3 above, employers may request reasonable documentation such as a death certificate, obituary or written verification from a mortuary, funeral home, religious institution or government agency.  For leave due to conditions under #4, the employer may request verification from an appropriate source (e.g., a healthcare provider, an adoption agency, or a surrogacy organization) recorded on a form to be provided by the Illinois Department of Labor.  The employer may not require that the employee disclose the exact reason for leave.
• Leave must be completed within 60 days of the date the employee (1) receives notice of the death of a covered family member, or (2) experiences one of the events listed under #4 above.
• In the event of the death of more than one family member, an employee is entitled to a maximum of six weeks of bereavement leave in a 12-month period. However, an employee is not entitled to leave exceeding or in addition to the amount of leave permitted under FMLA.

* Employer and employee are as defined under FMLA.

Employee Sick Leave Act (Kin Care) Amendment

On May 13 the governor of Illinois signed SB0645 (now Public Act 102-0817), amending the state’s “Kin Care” law effective January 1, 2023. 

Section 21 of the law currently states that “Nothing in this Act shall be construed to invalidate, diminish, or otherwise interfere with any collective bargaining agreement nor shall it be construed to invalidate, diminish, or otherwise interfere with any party’s power to collectively bargain such an agreement.” The amendment adds to this that the requirements under the Employee Sick Leave Act are to serve as the “minimum standard” in a negotiated CBA.

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

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

June 10, 2022

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

Oregon Paid Family and Medical Leave (OR PFML) – 2023 Contribution Rate

Last month the Oregon Employment Department (OED) announced that the contribution rate for OR PFML beginning January 1, 2023, will be 1% of employees’ wages (the law itself indicated that the rate was “not to exceed” 1%). 

• The maximum wages subject to contribution will be $132,900.
• Of the total rate employers will contribute 40% and employees will contribute 60%.
• Employers with fewer than 25 employees nationwide are not required to pay the employer portion of the contribution.
• Employers may elect to pay the required employee contributions, in whole or in part, as an employer-offered benefit.
• More information may be found on the OED’s Contributions Fact Sheet.

July 1, 2022 Reminders

1. Connecticut Paid Family and Medical Leave (CT PFML)
   • CT PFML and CT FMLA Notice Requirement Begins
     • Beginning July 1, 2022, employers must at the time of hiring, and annually thereafter, provide written notice to each employee (1) of the entitlement to family and medical leave under CT FMLA and the terms under which such leave may be used; (2) of the opportunity to file a claim for compensation under CT PFML; (3) that retaliation by the employer against the employee for requesting, applying for or using family and medical leave for which the employee is eligible is prohibited; and (4) that the employee has a right to file a complaint with the Labor Commissioner for any violation of either law’s requirements.
     • The CT DOL has posted a model Employer’s Written Notice of Employee’s Rights template to satisfy this notice requirement on its website. Employers may create their own notice; however, it must contain the information required by regulations.
   • CT PFML Maximum Benefit Amount will increase July 1, from $780 per week to $840 per week, in accordance with the state’s minimum wage increase from $13/hour to $14/hour.
2. District of Columbia Paid Family and Medical Leave (DC PFML) Rate Decrease
   • Effective July 1 the employer contribution rate for DC PFML will decrease from 0.62% to 0.26% of wages.
3. Rhode Island Temporary Disability Insurance (TDI) and Temporary Caregiver Insurance (RI TCI) Weekly Benefit Amount
   • The RI Department of Labor and Training (RI DLT) typically releases the maximum weekly benefit amount on or around July 1.
4. Laws Becoming Effective July 1
   • Alabama Adoption Promotion Act
     • • See our May 12 Update for details.
       • Note: According to guidance we have obtained from legal resources, “paid leave” would include benefits provided under an employer’s Short Term Disability program. This means that, even if an employer does not sponsor a separate paid leave policy for bonding, but does offer STD benefits for childbirth and recovery, they must provide paid leave to an employee who adopts a child. This update has been added to the May 12 blog post.
   • West Hollywood, CA Accrued Leave
     • • The law became effective for hotel employers January 1, 2022, and applies to all other employers effective July 1; see our December 3, 2021 Statutory Update for more details.
       • Updates:
         • On May 16 the City Council approved Ordinance No. 22-1180, making the following amendments to the original law effective June 15:
           • Removed the requirement that, once an employee reaches 192 hours of paid leave, the employer must provide a cash payment once every 30 days for accrued time over the maximum.
           • Added a one-year waiver of the law’s leave requirements under certain conditions (see Section 4(B)). 
         • The City Council has also posted administrative regulations on its Minimum Wage webpage. Per the regulations:
           • Leave accrual begins on the first day of employment.
           • Paid leave is accrued at a rate of 0.047 hours per hour worked, and unpaid leave is accrued at a rate of 0.039 hours per hour worked (this is a clarification of the original law’s rates, specified as “96/52 hours” and “80/52 hours”, respectively).
           • Full-time employees (employees working 40 hours/week or classified as full-time by company policy, if more generous) accrue up to 96 hours of paid leave and 80 hours of unpaid leave per year; leave is prorated for employees working fewer than full-time hours.
           • Employers may provide paid leave for sick, vacation, or personal necessity separately, as long as the total combined number of paid leave hours is greater than or equal to 96 hours for full-time employees, and at least 50% of the time is either vacation or personal necessity leave.
           • Employers may choose to front-load paid leave in lieu of accrual. Employers who chose to front-load leave must select one type of anniversary, either the beginning of each year of employment or other 12-month period. All required paid leave hours must be provided at each anniversary date.
           • Unused paid leave, whether provided under accrual or by front-loading, will carry over to the following year up to a maximum of 192 hours, unless the employer’s policy is more generous. Unused unpaid leave will carry over to the following year up to a maximum of 80 hours, unless the employer’s policy is more generous. When an employee reaches the maximum accrued paid and unpaid leave, the employee will not accrue additional leave until a portion of the leave is used.
           • For the use of accrued unpaid leave, “immediate family member” is as defined under the California Family Rights Act (CFRA).
           • Per California Labor Code 227.3, any portion of paid leave classified as vacation or personal necessity leave shall be paid out at the employee’s regular wage rate upon termination. Any portion of paid leave classified as sick leave is not required to be paid to the employee upon termination. However, if an employee is rehired within 1 year of the date of separation from employment, any previously accrued and unused paid leave classified as paid sick leave must be reinstated, unless also paid out at termination under the employer’s policy. Unused unpaid leave need not be paid out at termination, but must be reinstated with rehire within 1 year.
           • Employees are entitled to use accrued paid and unpaid leave no later than 120 days  from their first day of employment or consistent with company policies, whichever is sooner. However, paid leave designated as sick leave must be made available to an employee no later than the 90th day of their employment, pursuant to state law.
   • New Mexico Healthy Workplaces Act (NM HWA)
     • • The law, enacted on April 8, 2021, provides that, beginning July 1, 2022, employees working in New Mexico must accrue 1 hour of paid leave for every 30 hours worked, up to 64 hours per year. Accrued time may be used for an employee’s or a covered family member’s illness or injury, or to tend to certain legal and family issues.
       • More information may be found in our May 14, 2021 Update and on the New Mexico Department of Workforce Solutions’ Paid Sick Leave webpage, which includes FAQ and the HWA guide, as well as the required notice (also available in Spanish). The notice must be posted and provided at time of hire, in English, Spanish or any primary language of 10% of the employer’s workforce.
   • Bernalillo County, NM Employee Wellness Act
     • • The Employee Wellness Act requires that employees accrue 1 hour of paid leave for every 32 hours worked, which can be used for any reason.  The law originally became effective on October 1, 2020, and featured a phased-in limit for accruals, as outlined below.  The maximum accrual requirement, 56 hours for employers with 35 or more employees, becomes effective this July 1.

• • • • More information and resources may be found on the County’s Employee Wellness Act webpage.

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

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

May 12, 2022

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

Delaware Enacts Paid Family and Medical Leave

On May 10 the governor of Delaware signed the Healthy Delaware Families Act (SB1), establishing the “Delaware Family and Medical Leave Insurance Program” to provide job-protected paid leave to employees working in the state. Below is a summary of the law’s text.

Delaware Paid Family and Medical Leave (DE PFML)

Effective Date

• • Contributions: January 1, 2025
  • Benefits Entitlement: January 1, 2026

Subject Employers

• All Employers who employ 10 or more employees in the State of Delaware
  • Employers with 10 to 24 employees* in the state** during the previous 12 months are subject to only the parental leave requirements.
  • Employers with 25 or more employees* in the state** during the previous 12 months are subject to all parental leave, family caregiving leave, and medical leave requirements.
• Excludes the federal government and any business that is closed in its entirety for 30 consecutive days or more per year.
• Small businesses may opt in to the program.

“Small business” is defined as:

1. 1. For purposes of parental leave, all those that employ 9 or fewer employees working anywhere in the state.
   2. For purposes of family caregiving leave and medical leave, all those that employ 24 or fewer employees working anywhere in the state.

*  For this purpose “employees” includes those who meet requirements (a) and (b) under the definition of “Covered Individual” (see ‘Eligible Employees’ below) or are reasonably expected to meet those requirements during the previous 12 months.

** The law text does not specifically state whether these employee counts are based on an employer’s size nationwide or limited to within Delaware. However, since the exclusions from the definition of “employer” and the definition of “small business” both specifically indicate “in this state”, until regulations are released to clarify it is assumed that this distinction applies to these thresholds as well.

Eligible Employees

All Employees who primarily report to a worksite in Delaware

• • Excludes any individual covered under DE Code Title 29 §5903 (17)a (casual seasonal employees employed by the state), an individual employed by entities in DE Code Title 14 (public school system) in a position that would be covered under Title 29 §5903 (17)a, or an individual in an equivalent positionwith an entity covered by state employee benefits.

“Covered Individual” means an individual who meets all of the following:

1. 1. Has been employed for at least 12 months by the employer;
   2. Has been employed for at least 1,250 hours of service with the employer during the previous 12-month period. For purposes of determining whether an individual meets the service hours requirement, the legal standards established under FMLA apply.
   3. Meets the administrative requirements under the DE PFML law; and
   4. Has submitted an application for DE PFML benefits.

Types of Plans

• State Program
• Private Plan
  • A private plan must meet or exceed rights and requirements outlined for the state program.
  • An employer seeking to qualify benefits under a private plan must notify the DE DOL before January 1, 2024 (method TBD).
  • An employer may provide all family and medical leave coverage through an approved private plan or may provide one or more of medical leave coverage, family caregiving leave coverage, or parental leave coverage using an approved private plan and provide the remaining coverage using the state program.
  • If the private plan provides for insurance, the policy must be issued by an insurer authorized to engage in the business of insurance in the state.
  • If the private plan is in the form of self-insurance, the employer must furnish a bond running to the state, with a surety company authorized to transact business in the state as surety, in a form as may be approved by and in an amount as may be required by the DE DOL. This does not apply to public employers.
  • Private benefits in existence on the law’s enactment date (May 10, 2022) that the DE DOL deems to be comparable to the DE PFML program qualify as a private plan for a period of 5 years from the start of contribution payments if the DE DOL’s approval of private plans would not adversely impact the solvency of the Family and Medical Leave Insurance Fund. The DE DOL may determine comparable value through consideration of factors including wage replacement, length of leave, interrelated benefits, eligibility criteria, or frequency of allowed leave.

Contributions

• Employer- and Employee-Paid, beginning January 1, 2025
• For 2025 and 2026, the total contribution rate will be 0.80% of wages, allocated as follows:
  • • Medical leave: 0.40% of wages                                                                                                                                                                           
    • Family caregiving leave: 0.08% of wages                                                                                                      
    • Parental leave: 0.32% of wages.                                                                                                                                                                  

The contribution rates will be re-evaluated annually for future years.

“Wages” means remuneration for employment as determined for purposes of old-age, survivors, and disability insurance for employees and employers under the Federal Insurance Contribution Act, 26 U.S.C. Chapter 21.

Maximum contribution amount not stated; given the definition of wages, the maximum may be linked to the maximum wages subject to social security taxation ($147,000 in 2022).

• • An employer may deduct from employee wages no more than 50% of the contribution required for each leave type. An employer may elect to pay all or any portion of the employee’s share of the contribution for each leave type.
  • Private Plans:
    • Employees covered by a private plan may not be charged a higher rate than the state program rate.
    • An employer with an approved private plan will not be required to remit the contributions associated with the leave type(s) covered under the private plan.
  • An employee and employer may opt to file a waiver of the required payroll contributions when an employee’s work schedule or length of employment with the employer is not expected to meet the requirements for eligibility for DE PFML benefits.

Reasons for Leave

DE PFML benefits will payable to a Covered Individual for the following reasons:

• • Because of the birth, adoption, or placement through foster care of a child during the first year after the birth, adoption, or placement.
  • To care for a covered family member with a serious health condition (as defined under FMLA).
  • Due to the individual’s own serious health condition that makes them unable to perform the functions of their position.
  • Due to a qualifying exigency arising out of the foreign deployment of the employee’s spouse, child, or parent (qualifying exigency is as defined under FMLA).

Covered Family Members

The employee’s

• • Spouse
  • Child
  • Parent

All as defined under FMLA

Leave Entitlement

• • Parental leave: 12 weeks per Application Year*, to be taken within one year of the birth, adoption, or placement of a child.
  • Medical leave, family caregiving leave, qualifying exigency: 6 weeks combined in any 24-month period
  • Maximum: 12 weeks per Application Year*

* An “Application Year” is the 12-month period as defined under FMLA.

• • Except for parental leave, a Covered Individual is eligible for benefits not more than once in a 24-month period.
  • If two parents are entitled to parental leave, family caregiving leave or qualifying exigency leave and are employed by the same employer, the aggregate number of weeks of leave to which both may be entitled may be limited by the employer to 12 weeks during any 12-month period. The DE DOL may adopt regulations limiting aggregate family caregiving leave claimed by multiple family members for the same qualifying event.
  • Intermittent or reduced schedule leave may be taken only when medically necessary and supported by documentation. DE PFML benefits are not payable for less than one work day of covered leave taken in one work week.

Weekly Benefit Amount

• • 80% of the Covered Individual’s average weekly wages during the 12 months preceding submission of the application, rounded up to the nearest even $1.00

“Wages” means remuneration for employment as determined for purposes of old-age, survivors, and disability insurance for employees and employers under the Federal Insurance Contribution Act, 26 U.S.C. Chapter 21.

• • Minimum Weekly Benefit: $100; if the Covered Individual’s average weekly wage is less than $100 a week, the weekly benefit must be the full wage
  • Maximum Weekly Benefit: $900 in 2026 and 2027; to be re-evaluated annually after 2027
  • No unpaid elimination period is specified in the law.

Notice to Employer

• • An employee must provide their employer notice of the intention to take covered leave 30 days in advance, if known, or as soon as practicable.
  • For leave on an intermittent or reduced schedule basis, the employee must provide the employer with prior notice of the schedule on which leave will be taken, to the extent practicable.

Employment and Benefits Protection

• • Employees returning from DE PFML leave are entitled to be restored by the employer to the position held when leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment, including fringe benefits and service credits, to which the employee had been entitled at the commencement of leave.
  • During DE PFML leave the employer is required to maintain any health care benefits the employee had before taking leave for the duration of the leave as if the employee had continued in employment continuously. The employee must continue to pay their share of the cost of health care benefits as required before the commencement of leave.

Coordination with Other Leaves

• • DE PFML leave that also qualifies as leave under FMLA runs concurrently with leave taken under FMLA and may not be taken in addition to leave under FMLA.
  • An employer may require that payment made under DE PFML be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy. The employer must provide employees written notice of this requirement.
  • An employer may require the use of unused accrued paid time off before accessing DE PFML benefits, and the use of accrued paid time off may count toward the total length of leave provided under this chapter, if the employee is not required to exhaust all paid time off.  “Paid time off” is defined as an employer’s provision of vacation and sick leave.
  • An employee may not access DE PFML benefits if the use of benefits results in the employee receiving more than 100% of their weekly wages.
  • The DE PFML law does not diminish an employer’s obligation to comply with any of the following that provide more generous leave:
    • A collective bargaining agreement;
    • An employer policy; or
    • Any other law.

Collective Bargaining Agreements (CBA)

• • An individual’s right to covered leave may not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after the law’s effective date (July 1, 2022).

Notice Requirements

1. Individual notice

• • At time of hire, and
  • When an employee requests covered leave or when the employer acquires knowledge that an employee’s leave may be for a qualifying event under DE PFML.

Note: At the time a Covered Individual files a new claim for DE PFML benefits, the employer or an approved private plan must also advise the individual that:

(1)  Family and medical leave benefits may be subject to federal and state income taxes;

(2) Requirements exist pertaining to federal and state estimated tax payments on family and medical leave benefits; and

(3) Under regulations established by the Secretary, applicable taxes will be deducted and withheld from the Covered Individual’s payment of family and medical leave benefits.

2. Poster displayed in a conspicuous place accessible to employees at the employer’s place of business in English, Spanish, and any language that is the first language spoken by at least 5% of the employer’s workforce, if the poster has been provided by the DE DOL.

Note: The DE PFML law features interesting phrasing in designating core administrative functions such as certification collection, claim determination, and benefits payment as the responsibility of “the employer or an approved private plan”. This seems to suggest that employers will be expected to administer DE PFML benefits even if participating in the state program.  However, in one of final sections of the law (§3713) are the statements, “By January 1, 2025, the Department shall establish and administer a family and medical leave insurance program.” and “By not later than [January 1, 2026], the Department shall pay family and medical leave benefits as specified under this chapter.” This may be clarified as additional information is released

Washington Paid Family and Medical Leave (WA PFML) Rules – Waiting Period

On April 26 Washington’s Employment Security Department (ESD) adopted rules regarding the 7-day waiting period for WA PFML benefits.  Effective June 9, 2022, the rules found at WAC 192-500-185 are amended as follows:

• A waiting period does not reduce the maximum duration of an employee’s available paid family or medical leave. The rules were previously silent on this.
• The waiting period does not apply to medical leave taken upon the birth of a child. Currently the waiting period is waived only for family leave for bonding following a child’s birth or adoption and for leave due to qualifying exigency.

Other News

Alabama Adoption Promotion Act

On April 7 Alabama’s legislature passed the Adoption Promotion Act (SB31/Act 2022-424).  Effective July 1, 2022, the Act requires that:

• Employers provide 12 weeks of unpaid family leave to an eligible employee for the birth and care of a child born to that employee during the first year after the child’s birth, or for the care of a child placed with the employee in connection with adoption within one year of the placement of the child with the employee.

Note: As this is a covered reason for leave under federal FMLA, and considering the new law only applies to employers subject to and employees eligible for FMLA, this provision doesn’t pose a significant change for employers.

• Requests for additional family leave due to the adoption of an ill child or a child with a disability must be considered on the same basis as comparable cases of complications accompanying the birth of a child of an employee. Employers are not required to provide additional family leave to an eligible employee once the employee has exhausted the leave to which the employee is entitled under federal law.
• Employers who provide paid leave* to an employee for the birth and care of a child born to that employee must also provide the lesser of either (1) equivalent paid leave or (2) two weeks paid leave to an employee for the care of a child placed with the employee in connection with adoption during the first year after the placement of the child with the employee.
  • An employer is only required to provide paid leave described above to one of two different eligible employees if both employees would be using the benefits for the care of a child placed for adoption with both employees.
  • * Update June 2, 2022:  According to guidance we have obtained from legal resources, “paid leave” would include benefits provided under an employer’s Short Term Disability program. This means that, even if an employer does not sponsor a separate paid leave policy for bonding, but does offer STD benefits for childbirth and recovery, they must provide paid leave to an employee who adopts a child.
• Leave benefits may be taken by an employee intermittently only if the employee and the employer agree.
• Employee must provide at least 30 days’ notice of intent to take the leave, except that if the date of placement requires leave to begin in less than 30 days, the employee shall provide notice as is practicable.

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

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

April 13, 2022

Non-COVID-19 Legislation

State and Local

 

Paid Family and Medical Leave Updates

 

Maryland’s Legislature Enacts Paid Family and Medical Leave

Note: The MD PFML law, including the program’s effective dates, was amended in May of 2023; please see our May 25, 2023 Update for details.

 

On April 9 the Maryland General Assembly enacted the Time to Care Act of 2022 (SB275), overriding the governor’s veto the day before. The Act establishes the “Maryland Family and Medical Leave Insurance Program” to provide job-protected paid family and medical leave to employees working in the state.

Below is a summary of the law’s text. Regulations defining provisions and requirements are scheduled to be adopted by June 1, 2023.

Washington Paid Family and Medical Leave (WA PFML) Amendment

On March 30 the governor of Washington signed SB5649, amending the WA PFML law effective June 9, 2022. In addition to implementing measures aimed at monitoring the financial stability and solvency of the family and medical leave insurance account, the amendment makes a few changes to more visible aspects of the program:

• Family leave may be taken for seven days following the death of a child for whom the employee:
• 1. would have qualified for medical leave for the birth; or
  2. would have qualified for bonding leave for 12 months following placement with the employee.
• If an employee is eligible for WA PFML benefits due to incapacity during pregnancy or for prenatal care, the six-week “postnatal” period following the birth of her child will automatically be designated medical leave unless the employee chooses to use family leave during that time. Certification of a serious health condition will not be required during the postnatal period.
• Currently the WA PFML law excludes parties subject to a Collective Bargaining Agreement (CBA) in effect on October 19, 2017, until the CBA expires or is reopened or renegotiated. The amendment sets the end date for this exclusion as December 31, 2023.
• The Employment Security Department (ESD) will be required to publish a current list of all employers with approved Voluntary Plans on its website.

Other News

Oregon Paid Sick Time Amendment

On March 21 Oregon’s Bureau of Labor and Industries (BOLI) filed a permanent rule expanding the permissible uses for time accrued under the state’s paid sick time law during a public health emergency. The permanent rule mirrors the temporary rule in place from August 6, 2021, through January 17, 2022, and states that, effective April 1, 2022:

The following public health emergencies are permissible uses of sick leave unless the employee is employed as a first responder:

1. 1. 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
   2. 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

Virginia – Paid Family Leave as Class of Insurance

On April 7 the governor of Virginia approved HB1156, amending the state’s insurance code to include paid family leave as a class of insurance effective July 1, 2022.

The law defines “Family Leave Insurance” as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for a percentage or portion of the employee’s income loss due to:

1. 1. the birth of a child or adoption of a child by the employee;
   2. placement of a child with the employee for foster care;
   3. care of a family member of the employee who has a serious health condition; or
   4. circumstances arising out of the fact that the employee’s family member who is a service member is on active duty or has been notified of an impending call or order to active duty.

Family Leave Insurance may be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate group insurance policy purchased by an employer.

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

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

March 25, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

Philadelphia, PA

On March 9 the mayor of Philadelphia signed Bill No. 220051-A, resurrecting the city’s Public Health Emergency Leave that expired last summer and renaming it “COVID-19 Leave”. 

Effective Dates: March 9, 2022 through December 31, 2023

Applies to:

• All Employers with 25 or more employees (2021 PHEL applied to employers with 50 or more employees)
• Employees who:

1. work for an employer within Philadelphia after March 9, 2022;
2. normally work within Philadelphia but are currently teleworking from any other location as a result of COVID-19; or
3. work for the employer from multiple or mobile locations, provided that 51% or more of their work time is spent in Philadelphia.

• Excludes construction craft employees who are covered by a collective bargaining agreement between a labor organization and one or more employers engaged in the construction industry.

Reasons for Use: An employee may take COVID-19 Leave if they are unable to work due to one or more of the following reasons:

1. A determination by a public official or public health authority having jurisdiction, a health care provider, or an employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless whether the employee has been diagnosed with or has tested positive for COVID-19;
2. The employee’s need to:
   1. self-isolate because they are diagnosed with or have tested positive for COVID-19;
   2. self-isolate because they are experiencing symptoms of COVID-19;
   3. seek or obtain medical diagnosis, care, or treatment because they are experiencing symptoms of an illness related to COVID-19;
3. To care for a family member to whom numbers 1 or 2 above apply;
4. To care for a child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to precautions taken in response to COVID-19;
5. The employee’s need to obtain a COVID-19 vaccination, including a booster, or to recover from any side effects related to the vaccination.

Leave Entitlement:

• Employees who work 40 hours or more per week are eligible for 40 hours of COVID-19 Leave (vs. 80 hours under 2021 PHEL);
• Employees who work fewer than 40 hours per week are eligible for a number of COVID-19 Leave hours equal to the average number of hours worked or scheduled to work, whichever is greater, in a 7-day period;
• Variable schedule employees are eligible for a number of COVID-19 Leave hours equal to 7 times the average number of daily hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type.

Pay:

• COVID-19 Leave must be paid at the employee’s regular rate of pay or the state minimum wage, whichever is greater.

Interplay with Other Leaves:

• COVID-19 Leave is in addition to all other paid leave benefits offered by an employer, and may not be reduced by the amount of any paid leave an employee has previously received. In addition, an employer may not reduce the amount of any paid leave a COVID-19 Leave-eligible employee was otherwise entitled to use or accrue under such employer’s existing policies as of March 9, 2022.
• An employer may not require an employee to use other paid leave available to the employee before the employee is eligible to use COVID-19 Leave, unless state or federal law requires otherwise
• Employers who adopted a COVID-19 paid leave policy may substitute that policy for requirements under the Ordinance; however, the employer must provide additional leave where the Ordinance’s requirements exceed the provisions of the employer’s COVID-19 policy available to a particular employee.
• Employers may substitute leave under federal or state COVID-19 paid leave law for its COVID-19 Leave obligations to the extent they coincide and the relevant federal or state law permits concurrent use of paid leave. Employers must provide additional leave if the requirements of this Ordinance exceed the requirements of those laws and as permitted under the federal or state law.
• Employers are not required to change existing policies or provide additional paid leave if an existing company policy provides a minimum amount of paid leave in 2022 that can be used for the same purposes and under all of the same conditions as COVID-19 Leave:
  • Employees who perform the majority of their work through telework: a minimum of 80 hours;
  • All other employees: a minimum of 120 hours*, whether or not this time is specifically designated as sick leave.

* 112.5 hours for employers who operate on a 7.5 hour work day and consider employees working 37.5 hours per week to be full-time.

Job Protection:

• Employees who take COVID-19 Leave are entitled, upon return from leave, to be restored to the position held prior to leave.

Notice to Employees and Recordkeeping:

• A notice must be distributed to all employees or posted conspicuously, in all languages spoken by 5% of the employer’s workforce, within 15 days of the law’s effective date (i.e., by 3/24/22).  The notice may be provided electronically to remote employees or if the employer does not maintain a workplace. A model notice has been posted on the city’s COVID-19 Pandemic Paid Sick Leave Resources webpage.
• Records of hours worked, leave provided and leave used must be maintained for two years.

Collective Bargaining Agreements:

• The Ordinance’s provisions may be waived in a CBA, but only if (a) the waiver is explicitly expressed, (b) the CBA provides comparable benefits, and (c) the agreement is in effect contractually. CBA terms must be implemented bilaterally.
• As noted above, the Ordinance’s requirements exclude construction craft employees who are covered by a CBA between a labor organization and one or more employers engaged in the construction industry.

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

Non-COVID-19 Legislation

State and Local

Paid Family and Medical Leave Updates

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

In our October 8, 2021 Statutory Update we summarized amendments to the DC PFML program included in the Fiscal Year 2022 Budget Support Act of 2021 (B24-0285/D.C. Act 24-176), signed by the mayor on September 27. In addition to temporary benefit changes, such as the increased maximum duration for medical leave, the introduction of pre-natal leave, and the waiver of the waiting period, the Act outlined a plan for annual review of the program’s solvency and consequent adjustments to benefits and/or the contribution rate.

On March 1 the Office of the Chief Financial Officer certified that current funding allows for enactment of the maximum level of benefits authorized by the Act, as well as a reduction to the employer contribution rate.  With this certification, the following changes will be implemented:

1. Effective July 1, 2022, the employer contribution rate for DC PFML will decrease from 0.62% to 0.26% of wages; and
2. Effective October 1, 2022, leave entitlements will increase to the maximum level outlined in the Act’s schedule.

Permanent removal of the waiting period has been incorporated into budget measures currently under consideration.  In addition, the Department of Employment Services (DOES) will be providing an updated version of the required Employee Notice reflecting the changes above. We will continue to monitor and provide updates.

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

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

March 10, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

California Local Ordinances

• Long Beach: With the recent reinstatement of statewide COVID-19 Supplemental Paid Sick Leave (SPSL) effective February 19 (see our March 4 Statutory Update for details), Long Beach’s SPSL ordinance has ended and only the state’s requirements apply. 
• The following local ordinances are still in effect:
  • Los Angeles City: SPSL Ordinance requirements apply until two weeks after the local COVID-19 emergency period. The March 4 Safer L.A. Order indicates that the city’s emergency period is still in effect.
  • Los Angeles County: SPSL Ordinance requirements apply until two weeks after the local COVID-19 emergency period.

Note: While a March 3 Health Officer Order indicates the county’s emergency period is still in effect, the county’s Department of Public Health website directs to California state SPSL (see ‘Maintain healthy business operations’ and ‘Resources’).

• Oakland: SPSL Ordinance requirements apply for the duration of the city’s Declaration of COVID-19 Emergency.

Note: While the local emergency period is still in effect, the city’s Resources for Workers webpage directs to California state SPSL.

Massachusetts

Massachusetts’ COVID-19 Emergency Paid Sick Leave requirements were set to expire upon the earlier of the exhaustion of the COVID-19 Emergency Paid Sick Leave Fund or April 1, 2022.  The state’s Executive Office for Administration and Finance recently announced that, because reimbursements for the program are approaching their full budgeted amount of $100 million, March 15, 2022, will be the final day of the program. 

Employers may continue to seek reimbursement for qualifying leave costs taken between May 28, 2021 and March 15, 2022.  Applications for reimbursement must be submitted by April 29, 2022.

For more details visit the COVID-19 Temporary Emergency Paid Sick Leave Program website.

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

Other News

San Francisco, CA Paid Sick Leave Guidance

On February 22 San Francisco’s Office of Labor Standards Enforcement (OLSE) posted updated guidance regarding the use of time accrued under the city’s paid sick leave ordinance during the COVID-19 health emergency.  The guidance includes the following:

Reasons for Use: Covered employees must be permitted to use paid sick leave (PSL) for the following COVID-19-related reasons:

• To take time off work because public health officials or healthcare providers require or recommend the employee isolate or quarantine to prevent the spread of disease;
• To take time off work for a COVID-19 vaccination appointment or for vaccination side effects;
• To take time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation (subject to eligibility restrictions – see below);
• To take time off work because the employee needs to provide care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine;
• To take time off work because the employee needs to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Eligibility:

• Workers who have been laid off are no longer eligible.
• Employees who have their hours reduced or eliminated are not entitled to use accrued paid sick leave to account for such reductions or eliminations. Employees who remain scheduled to work may continue to use their accrued paid sick leave for any qualifying reason for any portion of their scheduled hours they are unable to work.
  • Documentation: During the current local health emergency documentation supporting the use of PSL may be requested after five consecutive days of leave, except that, if an employee is using PSL for a COVID-19 related reason and is not under a doctor’s care, the employer must accept the employee’s attestation of the need for leave. This timeframe will revert back to the law’s standard 3 days upon expiration of the local health emergency, unless OLSE revokes the temporary guidance sooner.

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

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

March 4, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

California

Our February 3 Statutory Update included mention that legislation reinstating “COVID-19 Supplemental Paid Sick Leave” was awaiting final approval.  On Wednesday, February 9, SB114 was signed by the governor.

Effective Date: February 19, 2022

• COVID-19 Supplemental Paid Sick Leave (SPSL) requirements are applicable retroactively to January 1, 2022, through September 30, 2022.

Applies to:

• All Employers with 26 or more employees, including those with Collective Bargaining Agreements;
• Employees who are unable to work or telework.                                                                                                                                                                                                                   
  • Excludes independent contractors.

Note: The law features requirements/entitlements for firefighters and for providers of in-home supportive or waiver personal care services (all as defined) that vary from those described here.

Reasons for Use:

1. The employee is, or is caring for a covered family member who is, subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance* of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.

*FAQ #8 clarifies that the order or guidance must be specific to the covered employee’s circumstances. A general stay-at-home order would not count. For example, guidance or an order of a local public health officer that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking 2022 COVID-19 SPSL. See also FAQ #9.

2. The employee has been, or is caring for a covered family member who has been, advised by a health care provider to isolate or quarantine due to COVID-19.
3. The employee is attending an appointment for themselves or for a covered family member to receive a COVID-19 vaccine or vaccine booster.
4. The employee is experiencing symptoms, or caring for a covered family member who is experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.

5. • Employers may limit leave for this reason to 3 days or 24 hours per injection, unless the employee provides verification from a health care provider that the employee or their family member is continuing to experience related symptoms. The 3-day or 24-hour limitation includes any time used to obtain the vaccine or booster (#3 above).
6. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
7. The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
8. The employee or a covered family member has tested positive for COVID-19 (see details under Leave Entitlement below).

Covered Family Members:

• • • Spouse or registered domestic partner
    • Child (biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis), regardless of age or dependency status
    • Parent (biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child)
    • Grandparent
    • Grandchild
    • Sibling

Leave Entitlement:

Employees considered by the employer to work Full-Time and any employee who worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee takes SPSL, are entitled to:

• 1. 40 hours for the reasons outlined above; and
  2. An additional bank of 40 hours if the employee, or a covered family member for whom the covered employee is providing care, tests positive for COVID-19.

• • • Employees need not exhaust the initial 40 hours of SPSL in order to be eligible for this additional entitlement; however,
    • Employers may require employees to provide documentation of a positive COVID-19 test:

• • • • For leave associated with the employee’s own needs, the employer may require the employee to submit to a diagnostic test, at no expense to the employee, on or after the fifth day after the original test was taken and provide documentation of those results.
      • For leave associated with the care of a covered family member, the employer may require that the employee provide documentation of that family member’s test results.
      • Employers are under no obligation to provide this additional leave to an employee who declines to provide the requested documentation.

Note: The FAQ include that documentation may also be requested if the employee is requesting retroactive pay (see below) for leave that is available only if the employee or qualifying family member was positive for COVID-19. This documentation could include a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

• Maximum Entitlement: 80 hours between January 1, 2022, and September 30, 2022.
• Employees taking SPSL as of September 30, 2022, may take the full amount of SPSL to which they are entitled.

Each bank of leave described above is prorated for employees who do not fall under the “Full-Time” definition:

• • Part-Time employees with a normal weekly schedule are eligible to an amount of SPSL equal to the number of hours they are normally scheduled to work for the employer in one week.
  • Employees with variable schedules who have worked for the employer for more than seven days are entitled to an amount of SPSL equal to seven times the average number of hours they worked each day in the six months preceding the date SPSL is taken (or from start of employment, if shorter than six months).  Employees who have worked for the employer for seven days or fewer are entitled to an amount of SPSL equal to the total number of hours they have worked for the employer.

Pay:

• Exempt employees: SPSL pay must be calculated in the same manner used to calculate wages for other forms of paid leave.
• Non-Exempt employees: SPSL pay may be calculated either:
  • in the same manner as the regular rate of pay for the workweek in which the employee uses SPSL, whether or not the employee actually works overtime in that workweek; or
  • by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. For non-exempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, must be divided by all hours, to determine the correct amount of SPSL.
• Maximum: $511 per day, $5,110 total
  • Any employee reaching the maximum dollar amount may choose to utilize other paid leave available in order to receive full compensation.
• SPSL must be paid no later than the payday for the next regular payroll period after leave is taken.

Retroactive payments:  Upon oral or written request from the employee…

• Any SPSL-eligible leave taken between January 1, 2022, and February 19, 2022, that was paid in an amount less than the maximum stated above must be paid retroactively.  Payment must be provided on or before the payday for the next full pay period after the employee’s request, and must be reflected on the employee’s wage statement (see Notice to Employees below). The number of hours of leave corresponding to the amount of the retroactive payment may be counted towards the total number of hours of SPSL that the employer is required to provide.
• For any SPSL-eligible leave taken between January 1, 2022, and February 19, 2022, that was paid in an amount equal to or greater than this law’s requirements, the hours taken by the employee may be credited to the employee and to the employer as SPSL.

• • If the employee was fully paid, but leave for the absence was deducted from another leave bank that the employer provides, the employee may request that leave be restored and the deduction be made in a corresponding amount from the employee’s 2022 SPSL leave bank. The decision to restore used time is the employee’s decision.

Employer Offsets:

• SPSL is in addition to any paid time accrued or otherwise available to the employee under the Healthy Workplaces, Healthy Families Act (CA Paid Sick Leave, CA Labor Code §245-249).
• Employers may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before or instead of using SPSL.
• If an employer provided supplemental paid leave that is payable for the reasons covered by and at the same or a greater level of compensation as this law on or after January 1, 2022, the employer may count the hours of the other paid benefit or leave towards the total number of hours of SPSL required. This may include leave provided under similar law in effect or that becomes effective on or after January 1, 2022, but may not include remaining leave provided under SPSL laws previously enacted in California (including 2021 SPSL under SB95).
• SPSL does not limit an employer’s obligation to comply with the Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard. An employer may not require a covered employee to exhaust their SPSL before satisfying any requirement to provide paid leave under the ETS’ or ATDS’ requirements. This is a deviation from the 2021 SPSL requirements.

Notice to Employees and Recordkeeping:

Employers must:

1. Display a poster in a conspicuous place outlining employees’ rights and responsibilities. This may be provided electronically to employees who do not frequent a workplace. (A Spanish version is also available.)
2. Beginning the next full pay period after February 19, 2022, provide each employee with written notice that sets forth the amount of SPSL used by the employee through the pay period in which it was due to be paid on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. SPSL must be listed separately from time available under the CA Paid Sick Leave law; zero hours must be listed if the employee has not used any SPSL.

Records of hours worked and paid sick days accrued and used by each employee must be retained for three years.

Additional Notes:

• The California Department of Industrial Relations has updated their online SPSL resources:
  • 2022 SPSL FAQ; COVID-19 Required Postings, Videos and Other Resources; and the 2022 SPSL Eligibility Navigator

COVID-19 Paid Sick Leave requirements still exist in California at the local level in Long Beach, Los Angeles City, Los Angeles County and Oakland – it remains to be seen if/how the statewide law impacts the continuation of these ordinances.

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

Please contact your MMA account team members with specific questions about this or other updates.

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

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.