Statutory Update – COVID-19 Legislation; CT & OR PFML Updates, OR & MN Paid Sick Leave, IL FML & More

August 27, 2021

COVID-19 Legislation

Federal

Recent Guidance

Centers for Disease Control and Prevention (CDC)

Interim Public Health Recommendations for Fully Vaccinated People

(Updated August 19)

Internal Revenue Service (IRS)

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

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

Occupational Safety and Health Administration (OSHA)

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

(Updated August 13)

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

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

(Released July 26)

State and Local

Vaccination Leave

Cook County, IL Vaccination Leave

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

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

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that the threat to public health posed by COVID-19 has diminished to the point that the ordinance can safely be repealed.

Emergency Paid Sick Leave

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

District of Columbia

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

Maryland

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

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

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

Pittsburgh, PA

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

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

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

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

Other COVID-19 Legislation

Duluth, MN Earned Sick and Safe Time Ordinance Amendment

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

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

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

Washington Updates

Protections for High Risk Individuals

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

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

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

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

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

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

Anti-Discrimination – COVID-19

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

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

Washington Paid Family and Medical Leave (WA PFML) Amendment

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

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

Non-COVID-19 Legislation

Paid Family and Medical Leave Updates

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

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

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

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

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

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

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

Paid Sick Leave Updates

Oregon Paid Sick Time Law Amendments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other News

California Electronic Notifications

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

Illinois Family and Medical Leave

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

Minnesota Lactation and Pregnancy Accommodations

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

  • Requires that an employee’s breaks for expressing breast milk must be paid during the first 12 months following the birth of the child.
  • Repeals the existing pregnancy accommodations law (§181.9414) and transfers those requirements to §181.939:
    • Employers with 15 or more employees (currently 21 or more) must provide reasonable accommodations for health conditions associated with pregnancy or childbirth upon request by the employee, unless​ the employer can demonstrate that an accommodation would impose undue hardship.
    • A pregnant employee is not required to obtain the advice of a licensed health care provider or certified doula, nor may an employer ​claim undue hardship, for the following accommodations:
      1. more frequent restroom, food,​ and water breaks;
      2. seating; and
      3. limits on lifting over 20 pounds.

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

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

Illinois Domestic Violence Leave Amendments

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

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

Missouri Domestic Violence Leave

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

Applies to:

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

Entitlement:

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

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

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

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

Reasons for Leave:

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

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

Certification:

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

Employment and Benefits Protection:

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

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

Anti-Discrimination

Maine Anti-Discrimination – Domestic Violence

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

Minnesota Anti-Discrimination – Familial Status

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

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

Pennsylvania Anti-Discrimination – Military

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

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

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