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

November 13, 2020

COVID-19 Leave Legislation

State and Local Legislation

COVID-19 Emergency Paid Sick Leave Updates

San Francisco, CA

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

District of Columbia

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

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

Michigan Worker Protections

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

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

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

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

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

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

Oregon Family Leave Act Amendment

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

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

Other Leave News

Colorado Voters Approve Paid Family and Medical Leave

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

Colorado Paid Family and Medical Leave (CO PFML)
Effective Date	Contributions: January 1, 2023 Benefit Entitlement: January 1, 2024
Applies To	All Employers who (1) employed at least one person for each working day during each of 20 or more calendar workweeks in the current or immediately preceding calendar year, or (2) paid wages of $1,500 or more during any calendar quarter in the preceding calendar year Excludes the Federal government Local government employers may decline participation All Employees Excludes independent contractors and employees subject to the Federal Railroad Unemployment Insurance Act Self-employed individuals and employees of a local government that has declined participation may opt in, for an initial period of no fewer than 3 years.
Types of Plans	State Plan, administered by the newly formed Division of Family and Medical Leave Private Plan: Insured or Self-funded (features a bond requirement)
Contributions	.9% of wages, split 50/50 by employer and employee Employer may choose to contribute a larger percentage, but may not require employees to pay more than 50% (.45% of wages). Maximum wages subject to premium assessment is equal to the maximum wages subject to Social Security taxation ($142,800 in 2021). Contributions for private plans may not exceed the above limits. Wages include, but are not limited to, salary, wages, tips, commission, and other forms of compensation as determined by the Division by rule. “Small businesses” with 9 or fewer employees are not required to pay the employer portion of premium, but must still remit the employee portion.
Reasons for Leave	Employee’s own serious health condition; To care for a child during the first year following the birth, adoption or placement through foster care; To care for a family member with serious health condition; For needs arising from a family member’s qualifying exigency; To attend to needs associated with domestic violence, sexual assault or abuse, or stalking.
Covered Family Members	Spouse or Domestic Partner Child of any age: biological, adopted, foster, stepchild, legal ward, child of domestic partner, a child to whom the employee stands in loco parentis, or person to whom the employee stood in loco parentis when that person was a minor Parent: employee’s or spouse/domestic partner’s biological, adoptive, foster, stepparent, legal guardian, or someone who stood in loco parentis to the employee or the employee’s spouse/domestic partner as a minor Employee’s or spouse/domestic partner’s grandparent, grandchild or sibling, whether biological, adoptive, foster or step Any other individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship
Eligibility for Leave	No service length requirement. Employee must, at the time of need for leave, have earned at least $2,500 during his or her Base Period or Alternative Base Period. Base Period: the first four of the last five completed calendar quarters immediately preceding the first day of the individual’s benefit year Alternative Base Period: the last four completed calendar quarters immediately preceding the benefit year Benefit Year: the period of 52 consecutive calendar weeks beginning with the first week of a claim series established by the filing of a valid initial claim
Leave Entitlement	12 weeks per Application Year, with an additional 4 weeks for employees with a serious health condition related to pregnancy or childbirth complications. Application Year: the 12-month period beginning on the first day of the calendar week in which an individual files an application for CO PFML benefits Leave may be taken intermittently in increments of one hour, or shorter periods if consistent with the employer’s policy for employee leaves. However, CO PFML benefits are not payable until at least 8 hours of leave has accumulated.
Benefit Calculation	No waiting period for benefits Weekly Benefit Amount: 90% of employee’s Average Weekly Wage (AWW) that is less than or equal to 50% of the State Average Weekly Wage (SAWW), plus 50% of the employee’s AWW that exceed 50% of the SAWW Average Weekly Wage (AWW): 1/13 of the wages paid in the employee’s Base Period or Alternative Base Period in which the total wages were highest. Wages include, but are not limited to, salary, wages, tips, commission, and other forms of compensation as determined by the Division by rule. State Average Weekly Wage (SAWW) estimated: $1,340 in 2024; $1,392 in 2025 Maximum Weekly Benefit:  $1,100 in 2024, then 90% of SAWW (estimated max benefit of $1,253 in 2025) An employee with multiple employers may elect to take CO PFML from one employer or more than one. Wages earned from an employer for whom the employee continues to work will not be counted in the Average Weekly Wage used to calculate weekly benefits.
Notice to Employer	Employees must make a reasonable effort to schedule leave so as not to unduly disrupt the operations of the employer. At least 30 days’ notice is required for foreseeable necessity of leave; for leave that is not foreseeable, notice must be provided as soon as practicable.
Employment and Benefits Protection	Employers may not discipline or take retaliatory actions against employees for requesting or using CO PFML. Any employee employed by his or her current employer at least 180 days prior to the start of CO PFML is, upon return from that leave, entitled to return to the same position or a position with equal seniority, status, employment benefits, and pay. Accrual of seniority other employment benefits is not required during a period of CO PFML. Employees are entitled to continuation of their health benefits during their leave, but are required to pay their portion of the health premium.
Coordination with Other Leaves	Runs concurrently with FMLA and/or the CO Family Care Act where applicable. Employers may require that CO PFML be taken concurrently or otherwise coordinated with payment made or leave allowed under a disability policy or a separate bank of time off solely for the purpose of paid family and medical leave.  This requirement must be provided in writing. Employers may not require employees to exhaust any accrued vacation time, sick time or other paid time off prior to or while receiving CO PFML benefits.  However, an employer and an employee may mutually agree that the employee may use any accrued paid time, unless the aggregate amount the employee would receive would exceed the employee’s average weekly wage. Future rulemaking will outline the interaction of benefits in the event an employee is also eligible for Workers Compensation or the state’s Domestic Abuse Leave Law.
Notice Requirements	Employers must: Post notice in a prominent location in the workplace, and Notify employees of the program, in writing at hire, and upon learning of an employee experiencing an event that triggers a need for leave. Model notice(s) will be provided by the Division.

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

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

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

New York State Paid Sick Leave Update

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

Accrual/Entitlement:

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

Use:

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

Pay:

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

Other:

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

New York City Earned Safe and Sick Time Notification Requirements

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

Existing:

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

New:

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

2021 Statutory Disability and Paid Family Leave Updates

California State Disability Insurance (CA SDI) and Paid Family Leave (CA PFL)
	2020	January 1, 2021
Maximum Duration	SDI: 52 weeks PFL: 8 weeks (7/1/20)	No Change
Benefit Percentage	If High Quarter earnings < 1/3 of the State’s Average Quarterly Wage (SAQW): 70% If High Quarter earnings => 1/3 of the SAQW: 60% (SAQW = 13x SAWW)	No Change
Maximum Weekly Benefit	$1,300	$1,357
State Average Weekly Wage (SAWW)	$1,325	$1,383
Contribution Rate Employee-Paid	1.0%	1.2%
Taxable Wage Ceiling	$122,909	$128,298
Maximum Employee Contribution	$1,229.09 per year	$1,539.58 per year
Additional Notes		Leave for Qualifying Exigency begins January 1, 2021
Connecticut Paid Family and Medical Leave (CT PFML)
	January 1, 2020	January 1, 2021
Contribution Rate Employee-Paid	N/A	.5%
Taxable Wage Base (SSA)		$142,800
Maximum Employee Contribution		$714 per year
Contributions commence January 1, 2021; Benefit entitlement begins January 1, 2022
District of Columbia Paid Family Leave (DC PFL)
	July 1, 2020	January 1, 2021
Maximum Duration	Own Illness: 2 weeks Family Care: 6 weeks Bonding: 8 weeks Combined maximum: 8 weeks in a 52-week period	No Changes
Benefit Formula	If EAWW* =< 150% of DC min. wage x 40: 90% If EAWW > 150% of DC min. wage x 40: 90% of 150% of DC min. wage x 40 plus 50% of the difference of the EAWW and 150% of DC min. wage x 40
DC Minimum Wage	$15/hour
Maximum Weekly Benefit	$1,000
Contribution Rate Employer-Paid	.62%
Maximum Contribution	No maximum
Hawaii Temporary Disability Insurance (HI TDI)
	January 1, 2020	January 1, 2021
Maximum Duration	26 weeks	No Change
Benefit Percentage	58%	No Change
Maximum Weekly Benefit	$650	Expected early December
Employee Contribution Rate Employee- and Employer-Paid, Employer pays any balance required	Up to ½ of plan costs, max .5%	No Change
Maximum Weekly Wage Base	$1,119.44	Expected early December
Maximum Employee Contribution	$5.60 per week
Massachusetts Paid Family and Medical Leave (MA PFML)
	2020	January 1, 2021
Maximum Duration	N/A	Own Illness: 20 weeks Bonding or Qualifying Exigency: 12 weeks Injured Servicemember: 26 weeks Combined maximum: 26 weeks in a 52-week period 12 weeks for Family Care begins July 1, 2021
Benefit Formula		80% of EAWW* =< 50% of SAWW, plus 50% of EAWW > 50% of SAWW
State Average Weekly Wage (SAWW)		$1,487.78
Maximum Weekly Benefit		$850
Contribution Rate Employee- and Employer-Paid	.75% Total Contribution .62% Medical, .13% Family Care	No Change
Maximum Employee Contribution Rate	.248% Medical, .13% Family Care	No Change
Maximum Wage Base (SSA)	$137,700	$142,800
Maximum Contribution	$1,032.75 Total (~$520.50 Employee) per year	$1,071 Total (~$539.78 Employee) per year
New Jersey Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI)
	2020	January 1, 2021
Maximum Duration	TDI: 26 weeks FLI: 12 weeks (7/1/20)	No Change
Benefit Percentage	85% (7/1/20)	No Change
Maximum Weekly Benefit	$881 (7/1/20)	$903
State Average Weekly Wage (SAWW)	$1,259.82	$1,291.42
Employee Taxable Wage Base	$134,900	$138,200
Employee Contribution Rate NJ TDI is Employee- and Employer-Paid, Employer contribution rate varies; NJ FLI is Employee-Paid	TDI: .26% of taxable wages FLI: .16% of taxable wages	TDI: .47% of taxable wages FLI: .28% of taxable wages
Maximum Employee Contribution	TDI: $350.74 FLI: $215.84 (per year)	TDI: $649.54 FLI: $386.96 (per year)
Employer Taxable Wage Base	$35,300	$36,200
Alternative Earnings Test	$10,000	$11,000
Base Week Amount	$200	$220
New York Disability Benefits Law (NY DBL)
	January 1, 2020	January 1, 2021
Maximum Duration	26 weeks Max. 26 weeks in a 52-week period combined with NY PFL	No Changes
Benefit Percentage	50%
Maximum Weekly Benefit	$170
Employee Contribution Rate Employee- and Employer-Paid, Employer pays any balance required	.5%
Maximum Employee Contribution	$31.20 per year
New York Paid Family Leave (NY PFL)
	January 1, 2020	January 1, 2021
Maximum Duration	10 weeks Max. 26 weeks in a 52-week period combined with NY DBL	12 weeks
Benefit Percentage	60%	67%
State Average Weekly Wage (SAWW)	$1,401.17	$1,450.17
Maximum Weekly Benefit	$840.70	$971.61
Contribution Rate Employee-Paid	.270%	.511%
Maximum Employee Contribution	$196.72 per year	$385.34 per year
Puerto Rico SINOT
	January 1, 2020	January 1, 2021
Maximum Duration	26 weeks	No Changes
Benefit Percentage	65%
Maximum Weekly Benefit	$113
Contribution Rate Employee- and Employer-Paid	.3% Employee, .3% Employer on first $9,000 of earnings
Maximum Contribution	$27 Employee, $27 Employer per year
Rhode Island Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI)
	2020	January 1, 2021
Maximum Duration	TDI: 30 weeks TCI: 4 weeks Combined maximum: 30 weeks in a 52-week period	No Change
Benefit Percentage	85%	No Change
Maximum Weekly Benefit	$887; $1,197 with dependency allowance (7/1/20 – 6/30/21)
Contribution Rate Employee-Paid	1.3%	Expected early December
Taxable Wage Base	$72,300
Maximum Employee Contribution	$939.90 per year
Financial Eligibility Test	$13,800 in Base Period earnings; or $2,300 in at least one Base Period quarter Base Period taxable wages at least 1.5x highest quarter of earnings and $4,600 of taxable wages in Base Period (10/1/20)	No Change
Washington Paid Family and Medical Leave (WA PFML)
	January 1, 2020	January 1, 2021
Maximum Duration	Own Illness: 12 weeks; +2 weeks for pregnancy incapacity (PI) Family Care: 12 weeks Combined maximum: 16 weeks in a 52-week period (18 weeks w/PI)	No Change
Benefit Formula	If EAWW* =< 1/2 SAWW: 90% If EAWW > 1/2 SAWW: 90% of 1/2 of the SAWW plus 50% of the difference of the EAWW and 1/2 of the SAWW	No Change
Maximum Weekly Benefit	$1,000	$1,206 Based on 90% of SAWW stated in regulations
State Average Weekly Wage (SAWW)	$1,255	$1,340
Contribution Rate Employee- and Employer-Paid	.4% Total Contribution	No Change
Maximum Employee Contribution Rate	63.333% of Total Contribution (~.253% of wages)	No Change
Maximum Wage Base (SSA)	$137,700	$142,800
Maximum Contribution	$550.80 Total (~$348.83 Employee) per year	$571.20 Total (~$361.76 Employee) per year
* EAWW = Employee’s Average Weekly Wage, as defined by each law; SAWW = State Average Weekly Wage

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

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