Statutory Update – COVID-19 Legislation; DC PFML and RI TDI/TCI Updates, New Hampshire PFL & More

July 16, 2021

COVID-19 Legislation

Federal

OSHA Emergency Temporary Standard Features Paid Leave for Healthcare Workers

The Occupational Safety and Health Administration’s (OSHA) COVID-19 Healthcare Emergency Temporary Standard (ETS) became effective on June 21, following its publication in the Federal Register.  Healthcare employers must comply with most provisions by July 6, 2021, and with training, ventilation and barrier provisions by July 21, 2021.

Section 1910.502(l)(4) of the ETS includes instructions for removing an employee providing healthcare services or healthcare support services* from the workplace when the employee has tested positive for or diagnosed with COVID-19, is suspected to have COVID-19, or is e­xperiencing symptoms associated with COVID-19.  Section 1910.502(l)(5) outlines pay requirements for employees subject to this removal:

1. If an employer allows an employee to work remotely or in isolation upon being removed from the workplace, the employer must continue to pay the employee the same regular pay and benefits the employee would have received had the employee not been absent from work, until the employee meets return to work criteria (see below).
2. Otherwise, employers with 11 or more employees must continue to provide the benefits to which the employee is normally entitled and must also pay the employee the same regular pay the employee would have received had the employee not been absent from work, up to $1,400 per week, until the employee meets return to work criteria.
   1. Employers with fewer than 500 employees may reduce payment to 2/3 the employee’s regular pay, up to $200 per day, beginning the third week of removal.
   2. The employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, such as a publicly or employer-funded compensation program (e.g., paid sick leave, administrative leave), for earnings lost during the period of removal or any additional source of income the employee receives that is made possible by virtue of the employee’s removal.
3. Employees returning to the workplace after a COVID–19-related workplace removal must not suffer any adverse action as a result of that removal from the workplace and must maintain all employee rights and benefits, including the right to their former job status, as if they had not been removed.

* See ETS sections 1910.502(a) and 1910.502(b) for applicability, exclusions and definitions, as well as OSHA’s ETS flowchart and FAQ.

Return to Work Criteria:

1. The employee has been removed from the workplace for 14 days; or
2. The employee was removed and provided a COVID-19 test at least five days after the exposure at no cost to the employee.
   1. Negative result: the employee may return to work after seven days following exposure;
   2. Positive result: the employer must keep the employee removed until they meet the return to work criteria in #4 below;
   3. If the employee refuses to take the test, the employer must continue to keep the employee removed from the workplace for 14 days but is not obligated to provide the medical removal protection benefits in accordance with #2 in the pay requirements section above. Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons, consistent with applicable nondiscrimination laws.
3. The above “removal” requirements do not apply if the exposed employee is only suspected to have COVID-19 or is not exhibiting symptoms, and has either been fully vaccinated for COVID-19 or has had COVID-19 and recovered within the past three months.
4. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed healthcare provider or CDC’s Isolate If You Are Sick and Return to Work Criteria for Healthcare Personnel guidance. Employers must also consider state or local requirements.

The ETS notes that OSHA recognizes that CDC’s Strategies to Mitigate Healthcare Personnel Staffing Shortages allows elimination of quarantine for certain healthcare workers. However, this is only to be exercised as a last resort, if the workers’ absence would mean there are no longer enough staff to provide safe patient care, specific other amelioration strategies have already been tried, patients have been notified, and workers are utilizing additional PPE at all times.

Vaccination Leave: The ETS also specifies that employers must support COVID–19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination

State and Local

Vaccination Leave

Los Angeles City, CA COVID-19 Vaccine Leave

On June 24 the mayor of the City of Los Angeles issued a public order requiring private employers to provide “COVID-19 Vaccine Leave” to their employees.

• Effective dates: January 1 through September 30, 2021.
• COVID-19 Vaccine Leave is defined as time an employee takes off work for reasons associated with receiving a COVID-19 vaccine injection. This includes the time the employee spends traveling to and from an appointment, receiving the injection, and recovering from vaccination-related side effects that prevent the employee from being able to work or telework.
• Eligible employees are those who perform work within the geographic boundaries of the city, and have been employed by the employer for at least 60 days.

Leave Entitlement:

• Employers with 25 or fewer employees must provide full-time* employees up to four hours per injection, and up to eight hours to recover from any vaccination-related side effects. Part-time employees must be provided a prorated amount of these entitlements based on the average number of hours worked in the 60 days preceding the injection (see page 3 of the order for an example).
• Employers with 26 or more employees must provide the same amounts of leave specified above, but only after the employee has exhausted COVID-19 Supplemental Paid Sick Leave mandated by the state or by the city.

* Employees considered full-time by their employers, or who worked or were scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date of leave.

Pay:

• Non-exempt employees must be paid at the highest of the following rates: (1) the employee’s normal rate of pay for the workweek during which leave is taken; (2) the City’s $15 per hour minimum wage; or (3) the employee’s average hourly pay for the 60 days preceding leave, not including overtime.
• Exempt employees must be paid in the same manner as the employer calculates wages for other forms of paid leave.
• Up to $511 per day ($255.50 per each 4 hour period) with a maximum of $1,022 in total, unless federal legislation is enacted that increases these amounts.
• Employers may request written verification of the receipt of a COVID-19 vaccine from the employee in order for COVID-19 Vaccine Leave to be paid.

Interplay with Other Leaves:

• COVID-19 Vaccine Leave is in addition to other paid leave available to an employee, including paid time under the state’s accrued paid sick time and COVID-19 Supplemental Paid Sick Leave laws. An employer may not require an employee to use other paid or unpaid leave prior to using COVID-19 Vaccine Leave.
• An employer who, on or after January 1, 2021, provided its employees another benefit in addition to any other accrued leave entitlements, including those under the state’s accrued paid sick leave and COVID-19 Supplemental Paid Sick Leave laws, for the same reasons and at least the same rate of pay as COVID-19 Vaccine Leave, may count the company’s supplemental benefit toward this order’s requirements. However:
  • • If an employee took time off work to receive a COVID-19 vaccine or to recover from a COVID-19 vaccination on or after January 1, 2021, and the employer did not compensate the employee in an amount equal to or greater than what is required by COVID-19 Vaccine Leave, then upon the oral or written request of an employee, the employer must provide the employee with a retroactive payment that provides this compensation. Any retroactive payment required must be paid on or before the payday for the next full pay period after the employee’s request.
    • If the employer required an employee to use leave other than paid leave provided under the state’s or city’s COVID-19 Supplemental Paid Sick requirements, such as vacation, paid or unpaid time off, or other sick leave benefits, then upon the oral or written request of an employee, the employer must reclassify the paid leave taken as COVID-19 Vaccine Leave, and restore the leave taken by the employee under the different category of leave. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of COVID-19 Vaccine Leave, must be reflected on the employee’s wage statement on or before the payday for the next full pay period after employee’s request.

Collective Bargaining Agreements that do not feature COVID-19 vaccine leave provisions must comply with the order unless and until the agreement is amended to expressly waive the order’s requirements in clear and unambiguous terms.

Nevada COVID-19 Vaccination Leave

On June 9 the governor of Nevada signed SB209, which temporarily adds to the state’s wage and hour laws (NRS 608) mandatory paid time off for obtaining a COVID-19 vaccination.

• Effective dates:  June 9, 2021, through December 31, 2023.
• Applies to all private employers with 50 or more employees in the state.
• Does not apply to:
  • • Employers who provide a clinic on their premises where an employee may receive a COVID-19 vaccination during regular work hours; or
    • Newer employers for the first two years of operation.
• All employees are eligible for two hours of paid leave per injection, for a maximum entitlement of four hours.  Employees must provide at least 12 hours’ notice of the intention to use this time.
• Leave for vaccination is in addition to any other form of paid leave to which the employee may be entitled.
• An employer may not require an employee to find a replacement worker, or retaliate against or discipline employees in any way for taking leave. Hours of leave may not be counted against an employee in calculating hours for overtime.
• Employers must: (1)Post a notice of rights and obligations in a conspicuous place;  and (2) Maintain a record of the receipt and use of this leave for one year.

The law also permanently amends the state’s Earned Paid Leave law (NRS 608.0197).  Prior to this amendment, the law did not list any specific reasons for which an employee may use accrued time.  SB209 maintains the provision that “an employee may use paid leave available for use by that employee without providing a reason to his or her employer for such use”, but adds the following (as 608.0197(2)(b)): 

An employer shall allow an employee to use paid leave for any use, including, without limitation:

1. Treatment of a mental or physical illness, injury or health condition;
2. Receiving a medical diagnosis or medical care;
3. Receiving or participating in preventative care;
4. Participating in caregiving; or
5. Addressing other personal needs related to the health of the employee.

New York COVID-19 Vaccination Leave Guidance

In our March 17 and April 9 Statutory Updates we provided details on New York’s COVID-19 Vaccination Leave effective March 12.  On May 28 the New York Department of Labor (NY DOL) released guidance clarifying that employees who experience side effects of COVID-19 vaccination must be permitted to use sick time accrued under the state’s Paid Sick Leave law (NY Labor Law §196-B) to recover from those symptoms. 

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 June 10 Statutory Update include:

Los Angeles City, CA

On June 24 the mayor of Los Angeles issued a revised order amending the city’s COVID-19 Supplemental Paid Sick Leave requirements.  The order adds time off to obtain a COVID-19 vaccine to the reasons for SPSL use, including travel time and recovery from any related symptoms. Employers may request verification that the employee received a vaccination. (Note the city’s new COVID-19 Vaccine Leave requirements summarized above.)

Marin County, CA

On June 8 the Marin County Board of Supervisors enacted an urgency ordinance requiring employers to provide up to 80 hours of Supplemental Paid Sick Leave (SPSL) to employees who have not exhausted any other SPSL entitlement during the pandemic. Below is a summary of the law’s details.

Sonoma County, CA

On June 8 Sonoma County’s Board of Supervisors passed an urgency ordinance to amend and extend the county’s Supplemental Paid Sick Leave (SPSL) law. The previous ordinance, which replaced the original ordinance, did not provide additional leave if an employee used SPSL in 2020. The new ordinance specifies that, in order to better align with the state’s SPSL requirements, Sonoma County’s SPSL may be taken between January 1, 2021 and September 30, 2021.  Employer “offset” allowances are still in place:

• To the extent an employee has at least 80 hours of accrued paid sick leave benefits as of June 8, 2021 or at least 160 hours of a combination of paid sick leave, vacation and PTO paid time off benefits (“Accrued Leave Benefits”), the obligation to provide Sonoma County SPSL will be considered satisfied. To the extent an employee’s accrued paid sick leave benefits as of June 8, 2021 are less than 80 hours, or Accrued Leave Benefits are less than 160 hours, an employer must provide SPSL to the extent of such deficiency.
• An employer may credit the total COVID-19 paid sick leave hours furnished to an employee under the American Rescue Plan Act, AB 85 (state budget act), SB 95 (CA State SPSL), and/or Cal/OSHA regulations against Sonoma County’s SPSL requirements.

The new ordinance also adds time off to obtain a COVID-19 vaccine to the reasons for SPSL use, including recovery from any related symptoms.

Colorado

On July 8 the governor of Colorado announced an end to the state’s health emergency declaration. However, since the state’s guidance indicates that availability of Public Health Emergency Leave (PHEL) is linked to “any and all” applicable public health declarations, and the federal declaration is still in effect, PHEL is still required. 

District of Columbia

On June 7 the mayor of the District of Columbia approved the Coronavirus Support Congressional Review Emergency Amendment Act of 2021 (B24-0257, now D.C. Act 24-96), extending Paid Public Health Emergency Leave until September 5.

Maryland

In our June 10 Update we introduced Maryland’s Public Health Emergency Leave (PHEL), a component of the Essential Workers Protection Act (MEWPA) passed on May 30.  As noted, PHEL becomes a requirement of employers 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.

The timing of this requirement is still uncertain. On July 12 the governor issued a proclamation indicating that Maryland’s state of emergency and catastrophic health emergency are still in effect, after having announced the termination of various emergency orders almost a month earlier. Regarding funding, the Maryland Department of Labor’s MEWPA FAQ state that “Funding occurs under the MEWPA when the Governor dedicates funding for paid public health emergency leave through the State budget process. An employer is required to provide the paid public health emergency leave beginning on the date the funding is made available to the essential employer”.  The state’s fiscal year began on July 1, however the allocation of PHEL funds remains to be seen. We will continue to track the law and provide updates as information becomes available.

Philadelphia and Pittsburgh, PA

On June 10 Pennsylvania’s legislature voted to terminate the governor’s disaster emergency declaration, thus ending these cities’ COVID-19 paid sick leave requirements.  Both allow that employees may use this time until one week following the end of the public health emergency (i.e., June 17).

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

Non-COVID-19 Legislation

Paid Family and Medical Leave Updates

District of Columbia Paid Family and Medical Leave (DC PFML) – Minimum Wage Increase

D.C.’s Department of Employment Services (DOES) recently announced that the District’s minimum wage would increase from $15/hour to $15.20/hour effective July 1, 2021.  This change impacts the calculation for an individual’s benefits under the DC PFML program, but does not alter the maximum weekly benefit, which is $1,000 until at least October 1, 2021.

New Hampshire Paid Family Leave

On June 25 the governor of New Hampshire signed budget bill HB2, which included the establishment of the Granite State Paid Family Leave Plan to provide family and medical leave insurance (FMLI) benefits to employees in the state.  More to come on outstanding details, but below is what we know now from the law’s text (some details may be subject to change):

Program(s):

1. Program purchased by the state on behalf of state employees;
2. Voluntary “opt-in” for non-state public and private employers; and
3. Voluntary “purchasing pool” for individual non-state employees who wish to participate.

The Commissioner of the Department of Administrative Services will be requesting bids from approved accident and life insurance carriers to insure the program.  As a condition of the state contract, the selected carrier must also offer the coverage to other public employers, private employers with more than 50 employees, and individual employees. 

• • Employers with more than 50 employees who choose to sponsor coverage for their employees will be able to contract directly with the selected carrier. These employers will be eligible for a tax credit of 50% of the premium paid for FMLI coverage.
  • Individual employees who work for employers who either elect not to offer FMLI coverage or fail to meet participation requirements (assuming this refers to the 50-employee threshold) and do not offer a paid family leave benefit that is at least equivalent to the Granite State plan will be able to secure coverage through a “purchasing pool”.

Reasons for Leave:

• To bond with a new child via birth, adoption or foster care within 12 months of birth or placement;
• To care for a family member* with a serious health condition;
• Any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member on covered active duty; or
• To care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, child, parent, or next of kin.

Note:  Leave for an employee’s own illness is not provided under the program except that individuals opting into the program via the purchasing pool may take leave for their own non-work related serious health condition if their employer does not offer Short Term Disability insurance.

* Covered family members include a child (as defined under FMLA), a biological, adoptive, or foster parent, stepparent, or legal guardian of the child or the child’s spouse or domestic partner, a biological, adoptive, or foster grandparent or step grandparent, or a spouse or domestic partner.

Level of Benefit:

• Leave Entitlement: Up to 6 weeks per year.
• Income Replacement: 60% of the employee’s average weekly wage. Wages used to determine the 60% benefit will be capped at the Social Security taxable wage maximum.
• To Be Determined:
  • • The base period by which the employee’s average weekly wage will be determined.
    • The waiting period before an employee is eligible to be covered under the state program.  It is estimated that no waiting period will apply to an employee who has already met the requirement and then changes jobs. Individual coverage through the purchasing pool will have a seven month waiting period.
    • Whether the state program will feature an elimination period before weekly benefits begin. Individual coverage through the purchasing pool will have a one week elimination period.

Cost to Employees:

• State program: No cost to state employees.
• Non-state employers who opt into the program may choose to provide FMLI at no cost to their employees or on a contributory or partially contributory basis.
• Premiums for individual purchasing pool coverage will not exceed $5 per subscriber per week.

Pertinent Dates:

• Bidding carriers must submit proposals by March 31, 2022;
• Coverage will be in place for state government employees and available for purchase by non-state employers and individuals by January 1, 2023.

Rhode Island Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI)

Effective July 1, 2021 the weekly benefit maximum for TDI and TCI increased from $887 to $978 ($1,320 with the dependency allowance); the minimum weekly benefit remains $107.

On July 6 the governor of Rhode Island signed S0688A, increasing the maximum duration of Temporary Caregiver Insurance (TCI) leave for from 4 weeks per benefit year to:

• • 5 weeks beginning January 1, 2022, and
  • 6 weeks beginning January 1, 2023.

This change does not increase the 30-week maximum for TCI and Temporary Disability Insurance (TDI) leave combined.

Other Leave News

Connecticut Voting Leave

On June 23 the governor of Connecticut signed the state budget (SB1202), which includes the requirement that employers provide employees with up to two hours of unpaid leave to vote in a state election or special election for U.S. senator, representative in Congress, state senator or state representative.  Employees must request this time at least two workdays in advance. This requirement was effective immediately and expires June 30, 2024.

Chicago, IL Paid Sick Leave Law Amendment and Wage Theft Protections

On June 25 Chicago’s City Council passed SO2021-2182, which amends the city’s Paid Sick Leave law effective August 1, 2021, by replacing gender-specific pronouns and expands the reasons for which accrued time may be used, as outlined below. The ordinance also adds language regarding penalties for an employer’s failure to appropriately compensate employees for hours worked or for paid time off (“wage theft”), as well as employees’ rights to seek redress for violations.

The city has posted an updated model notice, which must be posted conspicuously at the worksite and included in each employee’s first paycheck and annually thereafter with the pay on or after July 1.

Louisiana Pregnancy Accommodation

On June 17 the governor of Louisiana signed SB215/Act No. 393, which makes several changes to the state’s Pregnancy Disability Leave law effective August 1, 2021:

• A “reasonable period of time” for leave due to pregnancy is restated as “six weeks for a normal pregnancy and childbirth or the period of time during which the female employee is disabled on account of the pregnancy, childbirth, or related medical conditions, provided the period shall not exceed four months”.
• Adds that employers may not:
  • • refuse to make reasonable accommodations* for an applicant or employee with covered limitations*, unless the employer can demonstrate undue hardship*.  However, employers are not required to create employment opportunities or impact the position of other workers, unless they do so for other employees who require accommodation;
    • deny employment opportunities to a job applicant or existing employee, if the denial is based on the need of the employer to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions*;
    • require an employee or applicant to accept any unnecessary accommodation or to take a leave of absence if another accommodation can be provided;
    • take adverse action against an employee with covered limitations for requesting or using a reasonable accommodation for medical needs arising from pregnancy, childbirth, or related medical conditions.

* See p2-3 of the law for definitions of these terms.

Employers must provide written notice of the law’s provisions to new hires and to existing employees prior to December 1, 2021. Notice must also be conspicuously displayed at the worksite in an area accessible to employees. It is not clear whether the state intends to provide a model notice.

Maine Family Medical Leave Law Amendment

On June 14 the governor of Maine approved HP27/LD61, which amends the state’s Family Medical Leave Requirements to include grandchildren as covered dependents (i.e., “Family medical leave” means leave requested by an employee for … D. a child, domestic partner’s child, grandchild, domestic partner’s grandchild, parent, domestic partner, sibling or spouse with a serious health condition.).  This change will become effective on or around September 28, 2021, 90 days from the adjournment of the legislative session on June 30.

Nevada Kin Care Required Notice

In our June 10 Update we summarized Nevada’s new “kin care” law effective October 1, 2021.  The state’s Office of the Labor Commissioner has posted the model notice, which must be displayed in a conspicuous location at each worksite.

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

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