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

October 5, 2020

COVID-19 Leave Legislation

Federal Legislation

Families First Coronavirus Response Act (FFCRA) Updates 

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

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

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

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

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

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

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

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

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

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

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

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

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

Further clarifications:

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

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

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

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

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

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

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

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

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

State and Local Legislation

Emergency Paid Sick Leave (EPSL)

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

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

	California State	Sacramento County, CA	Philadelphia, PA
	Supplemental Paid Sick Leave (SPSL)	Supplemental Paid Sick Leave (SPSL)	Public Health Emergency Leave (PHEL)
Link to Law/Ordinance	AB1867 see also FAQ	Sacramento County Worker Protection, Health, and Safety Act of 2020	Bill No. 200303 Temporarily adds §9-4116 to the city’s paid sick leave law
Effective Date	September 19, 2020 (applicability to Food Sector Workers is retroactive to April 16, see below) Expires 12/31/20, unless FFCRA is extended	October 1, 2020 Expires 12/31/20	September 17, 2020 Expires 12/31/20
Employers	Private “Hiring Entities” with 500+ employees nationally, plus any entity employing emergency responders and healthcare providers (as defined under FFCRA) who elected to exclude these employees from FFCRA’s Emergency Paid Sick Leave Act (EPSLA). Please refer to Section 4 of the law for the full definitions of Covered Worker and Hiring Entity.	Employers located within unincorporated Sacramento County with 500+ employees nationally (not subject to FFCRA)	All employers (“Hiring Entities”) Please refer to the law text for the full definitions of Employer and Hiring Entity
Eligible Employees	All employees who leave their homes to perform work, including emergency responders and healthcare providers excluded by the Hiring Entity from FFCRA’s EPSLA. Food Sector Workers AB1867 codifies the benefits available to food sector workers originally established under Executive Order N-51-20, and are effective retroactively to April 16, 2020. Please refer to Section 3 of the law for the full definitions of Food Sector Worker and Hiring Entity.	All employees working within unincorporated Sacramento County who cannot work or telework Employers may exclude first responders and healthcare workers	All “covered individuals” working within the geographic boundaries of the city for at least 40 hours/year for one or more Hiring Entity who are not covered under FFCRA’s EPSLA and who cannot work or are not “reasonably able” to telework. “Covered individuals” include employees and other individuals such as pool/per diem healthcare workers, home healthcare workers, domestic service workers, and those who work for food delivery or transportation networks. Please refer to the law text for the full definitions of Covered Individual and Employee. Terminated individuals are eligible for reinstatement of available leave time if rehired within 6 months.
Collective Bargaining Agreement Exception	Not specified	Not specified	Provisions may be waived in CBA but only if (a) the waiver is explicitly expressed, (b) the CBA provides comparable benefits, and (c) the agreement is in effect contractually. CBA terms must be implemented bilaterally.
Benefit – Time Available	FT or scheduled to work at least 40 hours in each of the 2 weeks preceding leave: 80 hours PT or scheduled to work fewer than 40 hours in each of the 2 weeks preceding leave: the number of hours normally scheduled during a 2-week period Variable schedule: 14 times the average number of hours worked each day in the 6-month period preceding leave (or since date of hire, if sooner); if the employee has worked for the employer for fewer than 14 days, the employee is entitled to the total number of hours worked. Active firefighters (as defined) scheduled to work more than 80 hours in the 2 weeks prior to taking SPSL are entitled to leave in an amount equivalent to the number of hours scheduled to work in that 2-week period	Working 40h/week or classified as FT prior to 10/1: 80 hours Other: 2-week average during 6 months prior to 10/1	40+ hours/week: greater of 80 hours or the average hours worked over a 14-day period, to a maximum of 112 hours <40h/wk: 14-day average Variable schedule: average wages per day over the 6-month period preceding the declaration of the public health emergency, including wages for time on any type of leave, multiplied by 14. Expected hours/wages at time of hire should be used if the individual did not work during such 6-month period. PHEL may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time. A covered individual may use all or a portion of PHEL at any time during the public health emergency and for one month following the conclusion of such emergency. For covered individuals working for more than one Hiring Entity, a centralized system for tracking and payment will be developed. Until then, the individual is entitled to leave from each Hiring Entity in accordance with the requirements above. The maximum 112 hours of PHEL is available each time a new public health emergency is declared, or when a second declaration is made for the same health concern more than one month after the original public health emergency has ended.
Benefit – Pay	100% pay (greater of regular rate or minimum wage); Max $511/day, $5,110 total	Own leave: Regular rate of pay; max $511/day, $5,110 total Family care: 66 2/3% pay; max $200/day, $2,000 total	100% regular rate of pay
Reasons for Use
Quarantine ordered by public official or healthcare provider	Yes Hiring Entity may also prohibit the employee from working due to concerns regarding potential COVID-19 transmission	Yes	Yes
Experiencing symptoms and seeking medical treatment	Yes	Yes	Yes
Underlying health condition or over age 65	Possibly – leave is available if the employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19	Yes	Not specified
Care for family member who is sick and/or under official or healthcare provider-directed quarantine	No	Quarantine	Quarantine
Care for family member whose school or care facility is closed	No	Yes – minor children only	Yes
Worksite closure due to official public health order or recommendation	No	Yes	No
Documentation	Not specified – Hiring Entity must make SPSL available upon written or verbal notice from an employee	An employer may request the basis for SPSL; provided, however, that a doctor’s note or other documentation is not required.	A Hiring Entity is only permitted to request that a covered individual submit a self-certified statement, asserting that leave was used for PHEL purposes.
Employer Offset	SPSL is in addition to leave provided under California’s  Healthy Workplaces, Healthy Families Act (CA Paid Sick Leave), but is not in addition to any leave provided under Executive Order N-51-20 (for food sector workers) or SPSL provided under similar federal or local law – that time may be counted toward entitlement under this law. A Hiring Entity may not require an employee to use any paid or unpaid leave, paid time off, or vacation time prior to or instead of SPSL. If a Hiring Entity already provides a covered worker with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons covered by and at the same or a greater level of compensation as this law, then the Hiring Entity may count the hours of the other paid benefit or leave towards the total number of hours of SPSL that the Hiring Entity is required to provide to the employee. For non-food sector workers – if a Hiring Entity already provided supplemental paid leave between March 4, 2020, and the effective date of this section for the reasons covered under this law but did not compensate the covered worker in an amount equal to or greater than the amount of compensation required under this law, the Hiring Entity may retroactively provide supplemental pay to the covered worker to satisfy the compensation requirements, in which case those hours may count towards the total number of SPSL required.	SPSL is in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement. An employer may not require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL. If an employer granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020, specifically for use for COVID-19 related matters, the employer may use those leave hours as a credit against the number of SPSL hours required by this ordinance. If an employee is entitled to leave hours pursuant to Executive Order N-51-20 (now codified by AB1867), the employer may use those leave hours as a credit against the number of SPSL hours required by this ordinance.	Covered individuals who are entitled to leave under FFCRA from a specific Hiring Entity, are not entitled to PHEL from that same Hiring Entity. Hiring Entities may require PHEL to run concurrently with public health emergency paid leave or paid sick time provided by federal or state law unless such federal or state law prohibits the concurrent use of paid leave. A Hiring Entity must provide additional PHEL to the extent that this law’s requirements exceed the requirements of the other laws. If a Hiring Entity’s existing policy provides an amount of paid sick leave that satisfies or exceeds the requirements of this law, and can be used for the same reasons and under the same conditions, the Hiring Entity is not required to provide additional paid leave.
Notice to Employees	For non-food sector workers: Inclusion of SPSL available on employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. Enforceable the next full pay period following September 9, 2020. For all covered workers: Notice posted conspicuously; may be distributed electronically if workers do not frequent a workplace. Links to the notices may be found in the FAQ (currently #26) Records of hours worked, leave provided and leave used must be maintained for 3 years.	None stated	Notice must be distributed to all employees or posted conspicuously, in all languages spoken by 5% of population, within 15 days of the law’s effective date (i.e., by 10/2/20).  May be provided electronically to remote employees or if the Hiring Entity does not maintain a workplace. A model notice is posted on the city’s COVID-19 paid sick leave resources webpage. Records of hours worked, leave provided and leave used must be maintained for 2 years.

Additional EPSL Updates

San Francisco, CA

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

Seattle, WA

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

Oregon Family Leave Act Amendment

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

Worker Protections

San Francisco, CA

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

New Jersey

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

Philadelphia, PA

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

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

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

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

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

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

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

Other Leave News

2021 Statutory Disability and Paid Family Leave Updates

Massachusetts Paid Family and Medical Leave (MA PFML)

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

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

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

	July 1, 2020	January 1, 2021
Benefit Duration	TDI: 26 weeks FLI: 12 weeks	No change
Benefit Percentage	85%	No change
Maximum Weekly Benefit	$881	$903
State Average Weekly Wage (SAWW)	$1,259.82	$1,291.42
Employee Taxable Wage Base	$134,900	$138,200
Employee Contribution Rate	TDI: .26% FLI: .16%	Expected November per LWD website
Maximum Annual Contribution	TDI: $350.74 FLI: $215.84
Employer Taxable Wage Base	$35,300	$36,200
Alternative Earnings Test Amount	$10,000	$11,000
Base Week Amount	$200	$220

New York Paid Family Leave (NY PFL)

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

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

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

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

California Leave Legislation

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

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

	CFRA effective January 1, 2021
Covered Employers	Any person who directly employs 5 or more persons to perform services for a wage or salary, including the state, and any political or civil subdivision of the state and cities Currently CFRA applies to employers with 50 or more employees employed within 75 miles – the radius has been removed entirely. Lowering this threshold removed the necessity for the New Parent Leave Act, hence the repeal.
Employee Eligibility	1,250 hours worked in the 12 months prior to leave*
Leave Entitlement	12 weeks in a 12-month period The 12-week combined maximum for parents employed by the same employer has been removed – each parent is entitled to 12 weeks.
Employment Protection	Required The “key employee” exclusion for reinstatement was removed.
Leave Reasons	Employee’s own Serious Health Condition, except for leave associated with disability due to pregnancy, childbirth, or related medical conditions; To bond with a new child following birth or placement for adoption or foster care; To care for a Covered Family Member with a Serious Health Condition; Qualifying Exigency related to active duty or call to active duty of an employee’s spouse, domestic partner, child, or parent in the US Armed Forces (new).
Covered Family Members	Spouse, domestic partner, child of any age (previously under age 18 or 18 or older and incapable of self-care), parent, employee’s grandparent or grandchild, sibling (new) Child and Parent relationships include step, by adoption, foster, legal ward/guardian and in loco parentis. Child relationship also includes a domestic partner’s child.
Pay	Unpaid. The employee may elect, or the employer may require, use of accrued paid time off. Employee may not use accrued sick time for bonding or to care for an ill family member unless the employee and the employer mutually agree.
Notice to Employer	Reasonable advance notice for foreseeable need; employee should make a reasonable effort to schedule leave so as not to minimize disruption to the employer’s operations.
Certification	May be required. Employer may also request fitness for duty certification for employee to return to work following leave for his or her own Serious Health Condition.
Maintenance of Group Health Benefits	Required for an employee taking leave under CFRA or FMLA at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously.
Use and Interplay with Other Leaves	CFRA leave may be taken in one block of time or intermittently. The 12-month period during which CFRA leave may be taken runs concurrently with the 12-month period under FMLA, and begins the date FMLA leave begins. CFRA leave runs concurrently with FMLA leave, except for FMLA leave taken for disability due to of pregnancy, childbirth, or related medical conditions. An employee is entitled to take, in addition to the leave provided under CFRA and the FMLA, California Pregnancy Disability Leave (Cal. Gov’t Code §12945), if the employee is otherwise qualified for that leave. Note: Because CFRA now includes more family members not covered by FMLA, there is increased potential for an employee to use CFRA to care for one of these family members (e.g., grandparent, grandchild or sibling) and still have 12 weeks entitlement for another qualifying leave under FMLA.
Collective Bargaining Agreements	No change required during the life of an existing contract.
Employee Notification	An updated poster is expected from DFEH.
Additional Information	AB1867 (the COVID-19 SPSL requirements of which are summarized earlier in this Update) directs the establishment of a new “small employer family leave mediation pilot program”, which, in the event of a CFRA dispute or report of violation, would authorize the employer or the employee to request all parties to participate in mediation through the DFEH’s dispute resolution division. This provision will be repealed on January 1, 2024.

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

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

Connecticut Paid Family and Medical Leave (CT PFML) Update

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

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

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

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

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

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

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

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

Hawaii Family Leave Law Expanded

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

Maine Earned Employee Leave Act Rules

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

Applies to:

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

Entitlement: 

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

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

Use:

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

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

Termination and Rehire Provisions:

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

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

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

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

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

New York City Earned Sick and Safe Time Amended

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

	Prior to September 30, 2020	Effective September 30, 2020
Covered Employees	Employees and domestic workers employed within the city for more than 80 hours in a calendar year who perform work on a full-time or part-time basis.	80 hour requirement removed
Covered Employers	All employers that employ 5 or more employees, and all employers of one or more domestic workers.	Added: Any employer with 4 or fewer employees that had a net income of $1 million or more during the previous tax year.
Entitlement/Accrual	Beginning date of hire, one hour of safe/sick time for every 30 hours worked by an employee, up to 40 hours per calendar year. Employers with 4 or fewer employees must provide unpaid time.   Separate/different entitlement for domestic workers.	Beginning date of hire, one hour of safe/sick time for every 30 hours worked by an employee, up to the following maximums:  Employers with 4 or fewer employees and a net income of greater than $1 million in the previous tax year*, employers with one or more domestic workers, and employers with between 5 and 99 employees: 40 hours per calendar year; Employers with 100 or more employees: 56 hours per calendar year. * Employers with 4 or fewer employees that had a net income of less than $1 million during the previous tax year must provide unpaid time. Separate/different domestic worker entitlement removed.
Use	Employees may use safe/sick time after 120 days of employment. Employers may limit use to 40 hours per year.	Employees may use safe/sick time as it is accrued, except that: Employees of any employer with 4 or fewer employees that had a net income of $1 million or more during the previous tax year may use paid safe/sick time as it is accrued on or after January 1, 2021. Employees of any employer with 100 or more employees may use any accrued amount of paid safe/sick time that exceeds 40 hours per calendar year on or after January 1, 2021. Annual use maximums are the same as accrual maximums above.
Carryover	Except for domestic workers, up to 40 hours of unused safe/sick time may be carried over to the following calendar year. Carry over is not required if employer pays out unused safe and sick leave and employees are provided with an amount of paid safe and sick leave that meets or exceeds the requirements of the law for the new calendar year on the first day of the new calendar year.	Employees of any employer with 99 or fewer employees: up to 40 hours Employees of any employer with 100 or more employees: up to 56 hours Carry over is not required if employer pays out unused safe and sick leave and employees are provided with an amount of paid safe and sick leave that meets or exceeds the requirements of the law for the new calendar year on the first day of the new calendar year
Documentation	May be required for absences in excess of 3 consecutive workdays. An employer may not require that such documentation specify the nature of the employee’s or the employee’s family member’s injury, illness or condition, except as required by law.	May be required for absences in excess of 3 consecutive workdays. An employer may not require that such documentation specify the nature of the employee’s or the employee’s family member’s injury, illness or condition, except as required by law. Where a health care provider charges an employee a fee for the provision of documentation requested by their employer, such employer shall reimburse the employee for such fee.
Notice of Rights	Written notice of rights and responsibilities under the law upon the employee’s commencement of employment, in English and the primary language spoken by the employee. Notice must also be conspicuously posted at an employer’s place of business in an area accessible to employees.	Added: Employees who were already employed prior to the effective dates of provisions of this chapter establishing their right to safe/sick time, such notice must be provided within 30 days of the law’s effective date.  The amount of safe/sick time accrued and used during a pay period and an employee’s total balance of accrued safe/sick time must be noted on a pay statement or other form of written documentation provided to the employee each pay period. Employers have until November 30 to comply with this requirement. An updated model notice will be made available on the city’s website.

 

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

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