Statutory Update – COVID-19 Legislation; DC PFML Amendment, MD & NV Kin Care, OFLA Amendment & More
June 10, 2021
State and Local
Los Angeles County, CA COVID-19 Vaccination Leave
On May 18, the LA County Board of Supervisors enacted an urgency ordinance requiring private employers to provide paid time off to their employees who perform work in the unincorporated areas of the county for the purpose of obtaining the COVID-19 vaccine.
Leave entitlement is up to four hours per injection (pro-rated for part-time employees based on weekly schedule), but is available only if the employee has exhausted leave under the state’s COVID-19 Supplemental Paid Sick Leave law. This time may also be used for recovery from any post-vaccination symptoms that prevent the employee from being able to work or telework.
Employers must post notice of employees’ rights under the ordinance, and maintain applicable payroll records for four years. The Los Angeles County Department of Consumer and Business Affairs (DCBA) will be releasing a model notice.
Collective Bargaining Agreements may waive the ordinance’s provisions, but only if the waiver is expressly stated and implemented bilaterally.
The ordinance is effective retroactively to January 1, 2021, and set to expire on August 31, 2021.
Emergency Paid Sick Leave Laws
While paid COVID-19 leave is no longer mandated on a federal level, state and local requirements are still in effect. Updates since our May 14 Statutory Update include:
District of Columbia
On May 17 Mayor’s Order 2021-069 was issued, stating that the existing public health emergency declaration, and therefore the required Paid Public Health Emergency Leave implemented last year, will remain in place for as long as extended by D.C. law. The D.C. Council recently voted to provide the Mayor with the authority to extend the COVID-19 public health emergency until July 25 at the latest. (See our side-by-side comparison of EPSL laws for more details on D.C. PHEL.)
This development also extends the temporary “COVID-19 Leave” amendment to DC FMLA. The D.C. Office of Human Rights’ (OHR) website indicates that entitlement to this (unpaid) leave expires once the declared public health emergency ends “or approximately September 30, 2021”. OHR has posted updated guidance and a new version of the required poster, which must be displayed in a conspicuous place and provided electronically to employees working remotely. (See our March 20, 2020 and July 1, 2020 Statutory Updates for more details on COVID-19 Leave under DC FMLA.)
On May 30 Maryland’s legislature passed the Essential Workers Protection Act (HB581) which, in addition to requiring “essential employers” to establish COVID-19-specific safety policies and protocols, mandates that up to 112 hours of Public Health Emergency Leave be provided to “essential workers” during a “catastrophic health emergency”. While the Act was effective upon enactment, PHEL will only become a requirement of employers if and when:
- the Maryland State of Emergency due to COVID-19 is renewed (currently set to expire on/around June 11), and
- state or federal funds for PHEL purposes are made available to the employer.
No funding mechanism has yet been identified, and the state does not consider FFCRA leave tax credits as funding to trigger PHEL under this law.
Some additional detail on the Act may be found in our side-by-side comparison of EPSL laws. We will continue to track the law and provide updates as they become available.
On May 28 the governor of Massachusetts signed HB3702, requiring employers to provide up to 40 hours of Emergency Paid Sick Leave to their Massachusetts employees. Below is a summary of the law’s details.
Massachusetts COVID-19 Emergency Paid Sick Leave (EPSL)
May 28, 2021
Earlier of the exhaustion of the COVID-19 Emergency Paid Sick Leave Fund
(see 'Employer Reimbursement' below) or September 30, 2021
All employers except the federal government
All employees whose primary place of employment is within the state of Massachusetts and who cannot work or telework.
Per the state’s FAQ: An employee's "primary place of employment" means the worksite or physical location where the employee spent the greatest percentage of work hours between the dates of January 1, 2020 and April 30, 2021; temporary telecommuting arrangements entered into during this period should not factor into this determination. For a new employee who commences work on or after May 1, 2021, "primary place of employment" means the worksite or physical location where the employee is expected to spend the greatest percentage of work hours between the first day of work and September 30, 2021, based on the work arrangement agreed upon between the employer and the employee.
Collective Bargaining Agreement Exception
Benefit - Time Available
EPSL entitlement is based on average hours worked:
• Employees who work 40 or more hours per week are entitled to 40 hours of EPSL.
• Employees who work fewer than 40 hours per week are eligible for an amount of EPSL equivalent to the average hours normally worked in a 14-day period.
• Employees who work a variable schedule are eligible for an amount of EPSL equivalent to the average number of hours the employee was scheduled to work per week over the 6-month period immediately preceding leave, including hours taken for any type of leave. Expected hours/wages at time of hire should be used if the individual did not work during such 6-month period.
EPSL may be used on an intermittent basis and in hourly increments.
Benefit - Pay
EPSL must be paid at the greater of the employee’s regular rate of pay or the state minimum wage, up to a maximum of $850 (total benefit).
Reasons for Use
Employee’s quarantine ordered by public official or recommended by healthcare provider
Employee’s symptoms of, diagnosis of, or treatment for COVID-19
For the employee to obtain COVID-19 vaccination, or to recover from illness due to vaccination
Care for a family member who is sick and/or under official or healthcare provider-directed quarantine
Covered family members include an employee’s spouse, domestic partner, child, parent, grandchild, grandparent, sibling, a parent of a spouse or domestic partner of the employee, or a person who stood in loco parentis to the employee when such employee was a minor child.
Care for a family member whose school or care facility is closed
Employee’s worksite is closed due to official public health order or recommendation
Employers may request documentation from employees, and must do so in order to claim reimbursement from the state (see 'Employer Reimbursement' below).
Any health information collected must be maintained separately from other personnel files, and be treated as confidential medical records in accordance with applicable state and federal law. Employers may not disclose such information without the employee’s express permission.
Coordination with Other Leaves
• EPSL is in addition to other job-protected time off, paid or unpaid, provided under the state's Earned Sick Time Law, federal law, company policy or Collective Bargaining Agreement; however, EPSL may be reduced if the aggregate amount an employee would receive would exceed the employee’s average weekly wage.
• An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses EPSL, unless federal law requires otherwise.
• Any employer with a separate policy that makes available an amount of COVID-19 sick leave sufficient to meet this law's requirements, and that may be used for the same purposes and under the same conditions, is not required to provide additional leave. However, leave time taken prior to May 28, 2021, does not satisfy the state mandate*, and is not eligible for reimbursement under this state program.
• EPSL may be reduced by the amount of wages or wage replacement that an employee receives for that period under any government program or law.
* This also includes leave for which an employee may have been eligible under FFCRA, the CARES Act, or ARPA: for an employee who took federal or company-provided leave prior to May 28, 2021, the state leave is in addition to this leave. However, to the extent an employee has not exhausted his or her federal or company-provided leave, the 40 hours of state leave and any remaining leave may run concurrently on or after May 28, so long as the state mandate is met in full.
Employers may apply to the state for reimbursement of EPSL hours paid through the $75 million COVID-19 Emergency Paid Sick Leave Fund, up to the $850 maximum per employee.
Applications for reimbursement must be in a form to be prescribed*, and include a copy of a written request for EPSL from the employee to the employer, in which the employee provides:
• the employee’s name;
• the date or dates for which leave is requested and taken;
• a statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
• a statement that the employee is unable to work, including by means of telework, for such reason.
For a leave request based on a quarantine order advice, the statement must also include:
• the name of the governmental entity or of the health care provider; and
• if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
For a leave request based on receipt of the COVID-19 vaccination, documentation of the immunization should be obtained.
Employers eligible to claim federal tax credits for FFCRA leave provided voluntarily may not also request reimbursement for MA EPSL from the state.
* A standard form and instructions for requesting reimbursement are being developed; check the EPSL website for updates.
Notice to Employees
Notice must be posted conspicuously wherever eligible employees are located*. Electronic means are acceptable for employees working remotely or if the employer does not maintain a physical workplace.
* While the law text states that employers must “provide a copy to their employees”, the FAQ specifically state that individual notification is not necessary except for workers who work remotely.
• Employment benefits must be maintained during EPSL.
• Employers are prohibited from taking any adverse action against or in any way interfering with an employee’s ability to use EPSL. In addition, employees cannot be required to search for or find a replacement worker to cover the time that will be missed while using EPSL.
Please see our side-by-side comparison for more details on each of the Emergency Paid Sick Leave laws.
Other Leave News
State and Local
Connecticut Breastfeeding Accommodations Amendment
On June 4 the governor of Connecticut signed HB5158, now Public Act No. 21-27, which amends existing breastfeeding accommodation requirements effective October 1, 2021. The amendment specifies that, absent any undue hardship it may present to the employer, any location provided for an employee to express breast milk must (1) be free from intrusion and public view, (2) include or be situated near a refrigerator or employee-provided cold storage device, and (3) include access to an electrical outlet.
District of Columbia Paid Family and Medical Leave (DC PFML) Amendment
On May 26 the D.C. Council enacted the Short-Term Disability Insurance Benefit Protection Emergency Amendment Act of 2021 (B24-0185, now D.C. Act 24-90). Effective immediately, the Act prohibits employers who sponsor Short Term Disability (STD) policies from reducing plan benefits by any benefit amount payable under the Universal Paid Leave Amendment Act of 2016 (DC PFML). This restriction only applies to insured STD policies, but it appears as though it is not limited to just those issued within the District.
The Act is set to expire in 90 days (August 24), however today the Council enacted B24-0186/D.C. Act 24-97 extending this requirement for the longer term. Following a 30-day congressional review and publication in the D.C. Register, the new Act will be in effect for 225 days (into February, 2022).
Employers sponsoring insured STD programs covering employees working in the District are encouraged to contact their carriers to discuss any required changes.
Maryland Flexible Leave Act Amendment
On May 26 Maryland’s legislature enacted HB56/SB473, amending the Maryland Flexible Leave Act (MFLA). The current law requires employers with 15 or more employees who provide their employees with paid time off, whether it be sick time, vacation, PTO or compensatory time, to permit use of that time for the employee to care for an ill or injured family member. Effective October 1, 2021, employees may also use existing entitlements for bereavement leave upon the death of a child, parent or spouse.
Nevada Kin Care
On May 29 the governor of Nevada approved AB190, which establishes “kin care” requirements under NRS Chapter 608 effective October 1, 2021. The law states that if an employer provides paid or unpaid sick leave* to its employees, the employer must allow an employee to use accrued time to care for a family member with an illness, injury, medical appointment or other medical need. The employer may limit use for this purpose to an amount equivalent to what the employee accrues in a six-month period. Employees covered by a collective bargaining agreement are excluded.
Covered family members include the employee’s child, foster child, spouse, domestic partner, sibling, parent, stepparent, parent-in-law, grandchild, grandparent, or any person for whom the employee is the legal guardian.
Employers will be required to post notice of the new law’s provisions in a conspicuous location at each worksite. A model notice will be provided by the Office of the Labor Commissioner via its website.
* Nevada’s existing Earned Paid Leave law requires employers with 50 or more employees in the state to provide up to 40 hours of accrued paid leave per year.
Oregon Family Leave Act Amendment
- Under the current law, employees are eligible for OFLA if they have employed by the employer for 180 days prior to the need for leave, and, for leave reasons other than bonding with a new child, worked at least 25 hours per week on average during the 180-day period. The amendment provides that during a public health emergency (as defined) an employee is eligible to take leave for any of the reasons covered under OFLA if he or she has worked for the employer for at least 30 days, and for at least 25 hours per week on average during those 30 days.
- Reasons for leave 1(d) is expanded to include care for a child “who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency”. If leave is taken for this reason, the employer may request verification of the need for leave. The request may include the name of the child, the name of the school or place of care, a statement from the employee that no other family member is willing or able to care for the child, and, if the child is older than 14, a statement from the employee that special circumstances exist that require the employee to provide home care for the child during the day. This particular amendment mirrors a change implemented in 2020 in response to the COVID-19 public health emergency and made permanent earlier this year.
- If an OFLA-eligible employee separates from employment for any reason or experiences a temporary cessation of hours, OFLA eligibility will be restored upon rehire or return to work within 180 days or less. Any employee who is rehired or returns to work within 180 days of separation of employment or temporary cessation of hours will have prior service credited. Neither of these provisions alter the amount of OFLA leave that may be taken within any one-year period.
Oregon Military Leave Amendment
On May 21 the governor of Oregon signed HB2231, which amends current state laws associated with reemployment following military service (ORS 408.240 and ORS 659A.082) to state that, effective September 25, 2021, the five-year limit on eligibility for reemployment under USERRA and Oregon law does not apply to voluntary service overseas or voluntary service within the United States during or in response to an emergency or disaster declared by local, state or federal government.
Philadelphia, PA Paid Sick Leave Law Amendment
On May 11 the mayor of Philadelphia signed Bill No. 210249, immediately amending the city’s Promoting Healthy Families and Workplaces and domestic violence leave laws to include “coercive control” within the definition of domestic violence.
(f) “Coercive control” means a pattern of threatening, humiliating, or intimidating actions toward an individual used to punish or frighten the individual, including but not limited to a pattern of behavior that, in effect, takes away the individual’s liberty, freedom, or sense of self, safety, or bodily integrity; including, but not limited to, a pattern of one or more of the following actions:
(1) Isolating the victim from support networks;
(2) Controlling the victim’s economic and other resources, such as transportation;
(3) Closely monitoring the victim’s activities, communications or movements;
(4) Repetitively degrading and demeaning of the victim;
(5) Threatening to kill or harm the victim or the victim’s children or relatives or pets; or to take steps to separate the victim from the victim’s children and or pets;
(6) Threatening to publish or publishing sexualized, false, or embarrassing information, videos, photographs, or other depictions of the victim;
(7) Damaging or taking the victim’s property or possessions;
(8) Displaying or referring to weapons as a means to intimidate or threaten; or
(9) Forcing the victim to engage in unlawful activity.
Please contact your MMA ADL Account Team members with specific questions about these or other updates.
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