Statutory Update – COVID-19 Legislation; Pending Federal Paid Leave, PFML Updates, IL and NM Paid Sick Leave & More
May 14, 2021
State and Local
Chicago, IL COVID-19 Vaccination Leave
On April 21 Chicago‘s City Council passed Substitute Ordinance 2021-1219, which prohibits employers from taking adverse action against any employee who takes time off during work hours to obtain COVID-19 vaccination. If the employer requires employees to be vaccinated, this time must be paid at the employee’s regular rate of pay, for up to four hours per injection. If vaccination is voluntary, employees must be allowed to use available paid time off. Employers in violation of the ordinance face fines between $1,000 and $5,000. In addition, an employee who brings civil action in response to retaliatory action may be entitled to reinstatement, as well as damages of up to three times the employee’s missed wages and applicable attorney’s fees.
The ordinance took effect immediately and will remain in force until the Commissioner of Public Health makes a written determination that the threat to public health posed by COVID-19 has diminished to the point that it can safely be repealed.
Washington Paid Family and Medical Leave (WA PFML) Amendment
On April 21 the governor of Washington signed HB1073, temporarily amending the hours requirement for WA PFML eligibility for workers impacted by the COVID-19 pandemic. Under the WA PFML law, employees are eligible for benefits if they have been employed at least 820 hours during the “qualifying period” of the first four of the last five completed calendar quarters. The new law provides that employees who would otherwise be eligible to receive WA PFML benefits but did not meet the hours requirement due to the pandemic may apply for a “pandemic leave assistance employee grant” beginning August 1, 2021.
- applies to claims with effective start dates between January 1, 2021, through March 31, 2022;
- is calculated the same as WA PFML benefits;
- is available if the employee worked 820 hours during the first through fourth quarters of 2019 or 820 hours during the second quarter of 2019 through the first quarter of 2020;
- is not available if the employee didn’t meet the standard hours requirement because of employment separation due to misconduct or voluntary separation unrelated to the COVID-19 pandemic;
- is not available during any week in which the employee receives any type of unemployment compensation, workers’ compensation, industrial insurance or disability compensation.
Small employers* participating in the state plan may apply for reimbursement of costs associated with employees who take leave as described above: $3,000 if the employer hires a temporary worker, or $1,000 for wage-related costs due to the employee’s leave (rules apply).
* Defined as employers with fewer than 150 employees or those with fewer than 50 employees who opt to pay the employer portion of WA PFML contributions.
The amendment was effective upon signing and expires June 30, 2023.
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 place. Please see our side-by-side comparison for details on each law (updates since our April 9 Statutory Update include status notes on Sacramento City, Sacramento County and San Francisco City/County).
Federal & State Leave Legislation
Paid Family and Medical Leave
Federal Paid Leave – Coming Soon?
With the pandemic reinvigorating the push to establish nationwide paid leave, all eyes are on several federal initiatives:
- The American Families Plan proposed by President Biden features family-focused provisions for child care, education, nutrition support, unemployment, and tax credits, as well as a paid leave program that would provide paid time off for employees to take leave for needs associated with their own or a family member’s serious health condition, bonding with a new child, a family member’s military deployment, or sexual assault, domestic abuse or stalking. The program would provide 66 2/3% of earnings (up to 80% for lower income workers), with a maximum of $4,000 per month, with leave entitlement reaching 12 weeks after a 10-year phase-in period. Bereavement leave of three days per year is also included, and would be effective immediately. The Plan’s best chance of survival is if it is introduced as part of the budget reconciliation process, which would allow it to pass with a simple majority vote in the Senate.
- The Building an Economy for Families Act (see Part 1 and Part 2) was released by the House Ways and Means Committee on April 27 and features some of the same key elements as The American Families Plan. Among them are 12 weeks of Universal Paid Family and Medical Leave beginning in 2023 to be used for an employee’s or a family member’s illness, to bond with a new child, or to tend to needs arising from a family member’s military deployment. Leave will be paid at approximately 66 2/3% of earnings (to a maximum), and made available through a new public program administered by the U.S. Department of the Treasury, existing comprehensive state paid leave programs, or through employer benefit programs.
- The FAMILY Act has made several appearances in Congress in the past, and was reintroduced in the 2021-2022 legislative session as H.R.804/S.248. The Act would provide up to 60 days (essentially 12 weeks) of paid leave for an employee’s or a family member’s illness, to bond with a new child, or to tend to needs arising from a family member’s military deployment. Benefits would be calculated based on an employee’s last three years of wages, to a maximum of $4,000 per month.
- The Healthy Families Act (H.R. 2465) would require employers with 15 or more employees to provide their employees with accrued paid sick and safe leave. Time will accrue at a rate of 1 hour for every 30 hours worked, to a maximum of 56 hours per year, and may be used for the employee’s or a family member’s health care needs, to attend school or place of care meetings necessitated by a child’s medical condition or disability, or for needs associated domestic violence, sexual assault or stalking. Employers with fewer than 15 employees must provide up to 56 hours of unpaid time.
If federal paid leave becomes a reality, a big question is if and how it will coordinate with existing federal and state laws. To add, more than a dozen states introduced new Paid Family and Medical Leave bills in 2021; however, none has yet to progress past its introductory branch. We will continue to track the progress of these proposed laws and provide updates whenever possible.
State Paid Family and Medical Leave (PFML) Updates and Reminders
- Deductions for employee contributions to the CT PFML program officially began January 1, 2021. The CT Paid Leave Authority (CT PLA) has advised that employers who may have been delayed in taking the deductions because they needed additional time to update payroll systems may take “catch up” contributions of no more than 1% until June 30, 2021.
- Collected contributions must be remitted to CT PLA (via the account created at www.CT.gov) by the end of the month following the close of the calendar quarter (e.g., July 31 is the final remittance date for contributions collected from April through June).
- June 30, 2021 is the private plan approval cutoff for employers to be exempt from remitting contributions for the second quarter of 2021 (April-June). Note that employers with private plans approved during this period are still responsible for remitting contributions for the first quarter. More information on private plans may be found on the Exemption webpage and in the CT PLA’s private plan Policy & Procedures.
Contributions to Oregon’s Paid Family and Medical Leave Insurance (PFMLI) program are currently set to begin January 1, 2022, with leave entitlement commencing January 1, 2023. Citing disruption due to the COVID-19 crisis, the Oregon Employment Department’s PFMLI Division has submitted a request to the state legislature to change the implementation timeline. As illustrated on the PFMLI website, it has been proposed that the collection of contributions be pushed back to January 1, 2023, with leave benefits beginning September 1, 2023. The proposed changes include the establishment of regulations by September, 2022, and review of private plan applications beginning in October, 2022. We will continue to monitor and provide updates.
- The Employment Security Department (ESD) has posted an updated version of the Statement of Employee Rights – the only change being removal of the employer signature line. Employers are required to provide this notice within five business days of the later of an employee’s (1) 7th consecutive day of absence, or (2) notice to the employer that absence is due to medical or family leave. More information on WA PFML notice and posting requirements may be found on the employer role and responsibilities webpage.
- In addition to the COVID-19 pandemic-related amendment summarized above, the governor recently approved two permanent changes to the WA PFML law:
- HB1087 (signed and effective April 16) clarifies that, although the WA PFML law replaced the Washington Family Leave Act (WA FLA) as of January 1, 2020, enforcement provisions in place under WA FLA prior to its repeal remain applicable for employee and employer conduct, acts, or omissions that occurred on or before December 31, 2019 (subject to the law’s statute of limitations).
- SB5097 (signed May 10, effective July 25, 2021) adds to the definition of Family Member “any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care”.
Paid Sick Leave
Illinois Employee Sick Leave Act Amendment
On April 27 the governor of Illinois approved the Illinois Health Care and Human Service Reform Act (HB0158, now Public Act 102-1004). Among the Act’s many facets is an immediate amendment to the state’s “kin care” law (the Employee Sick Leave Act), which will now permit employees to use employer-provided sick leave benefits not only for a covered family member’s illness, injury or medical appointment (as under the existing law), but also for “personal care”. Personal care is defined as activities necessary to meet a family member’s basic medical, hygiene, nutritional, or safety needs, providing transportation to and from medical appointments, and emotional support to a family member with a serious health condition who is receiving inpatient or home care.
Employers with employees in Illinois, including those covered under the accrued paid sick leave laws in Chicago and Cook County, should be mindful of this change and ensure that applicable policies are updated.
New Mexico Paid Sick Leave
On April 8 the governor of New Mexico signed the Healthy Workplaces Act (HWA) (HB20), requiring employers to provide their employees with paid sick leave effective July 1, 2022.
- All employers, except the United States, the state or any political subdivision of the state;
- All employees, including part-time, temporary and seasonal employees.
- Employees accrue 1 hour of paid sick leave for every 30 hours worked, beginning the later of the law’s effective date or commencement of employment, up to 64 hours per year.
- Employers may frontload the full 64-hour allotment of sick leave on January 1 of each year; employees hired after January 1 are entitled to a prorated amount.
- Paid sick leave carries over from one year to the next (future regulations may clarify whether this will also apply to frontloaded time).
- Payout of accrued but unused leave is not required upon separation of employment. Employees rehired within 12 months of termination are entitled to reinstatement of previously accrued time.
- Employers are not required to provide additional leave if they have a policy that provides paid leave in an amount equivalent to, and that may be used for the same reasons as, the Act’s requirements.
Reasons for Use:
- The diagnosis, care or treatment of the worker’s or a covered family member’s illness or injury, including preventive care;
- Meetings at the employee’s child’s school or place of care related to the child’s health or disability;
- For absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee, provided that the leave is for the employee to:
- obtain medical or psychological treatment or counseling;
- prepare for or participate in legal proceedings;
- obtain services or assist a covered family member with numbers 1 through 3 above.
Covered Family Members include the employee’s spouse or domestic partner, and anyone related to the employee, spouse or domestic partner as a(n):
- Child (biological, adopted, foster, step-, legal ward, child to whom the employee stands in loco parentis);
- Parent (biological, adoptive, foster, step-, legal guardian, person who stood in loco parentis when the employee was a minor child);
- Sibling (biological, adoptive, foster, step-);
- Grandparent or grandchild;
- Spouse or domestic partner of a family member;
- Individual whose close association with the employee or the employee’s spouse or domestic partner is the equivalent of a family relationship.
- Leave is available upon accrual, and must be provided upon verbal or written notice from the employee. Employees should give notice of the need for leave as soon as possible, and make a reasonable effort to schedule leave in a manner that does not unduly disrupt the operations of the employer.
- An employer may not require an employee to use other paid leave before using accrued paid sick leave.
- Employers may limit use to 64 hours per 12-month period, in the smaller of hourly increments or the smallest increment the employer’s payroll system uses to account for absences or use of other time.
- An employer may elect to measure this 12-month period by (1) calendar year; (2) other fixed 12-month period, such as fiscal year; (3) 12-month period beginning the date an employee first uses accrued leave; or (4) 12-month period measured backward from the date an employee used accrued leave.
- Employers may request documentation for leaves of two or more consecutive work days; however, an employer may not require that leave be delayed on the basis that documentation has not yet been provided.
Rate of Pay: Sick leave must be paid at the employee’s normal hourly rate or applicable minimum wage, whichever is greater.
Notice and Recordkeeping:
- Employers must conspicuously post and provide at time of hire notice of entitlement, rights and responsibilities, in English, Spanish or any primary language of 10% of the employer’s workforce. A model notice is not yet available.
- Records of hours worked and sick leave taken must be retained for the immediately preceding 48-month period.
Note: The law text does not address what, if any, impact the HWA may have on Bernalillo County’s existing accrued leave law. We will monitor and provide updates as available.
Other Leave News
Indiana Pregnancy Accommodation
On April 20 the governor of Indiana signed HB1309, amending the state’s Civil Rights Code to state that employees may request in writing accommodations relating to pregnancy, childbirth or related medical conditions. Employers are not required to make such accommodations unless mandated by an existing law (for example, ADA/ADAAA), but does require that the employer respond to an employee’s request “within a reasonable amount of time”, and prohibits the employer from retaliating against an employee in any way for requesting or using an accommodation. The law applies to employers with 15 or more employees and is effective July 1, 2021.
Pennsylvania Organ Donation Leave
On April 27 the governor of Pennsylvania signed the Living Donor Protection Act (HB203/Act No. 11), requiring employers subject to the federal Family and Medical Leave Act of 1993 (FMLA) to allow FMLA-entitled Pennsylvania employees job-protected leave for “preparation and recovery necessary for surgery related to organ or tissue donation by or for the eligible employee or the eligible employee’s spouse, child or parent”. The law is effective 60 days from signing (on or around June 26, 2021).
Military Leave Updates
Montana: HB590 amends the Montana Military Service Employment Rights Act effective April 30, 2021, to provide that members of the National Guard are entitled to protected leave of absence even if the service is voluntary.
Oklahoma: HB2545 amends Oklahoma Statutes §44-208 to enact the Oklahoma Uniformed Services Employment and Reemployment Rights Act effective April 21, 2021. The Act extends employment protections provided by federal USERRA to national guard members called to active duty by the governor.
Vermont: HB149 amends the state’s military leave law (21 VSA §491-493) effective July 1, 2021, removing the 15-day leave limitation for members of the Reserve Components of the U.S. Armed Forces, of the Ready Reserve, the Vermont National Guard or the National Guard of another state called to engage in military drills, training or other temporary duty. The amendment also extends USERRA rights and protections to members of the National Guard ordered to state active duty.
Please contact your MMA ADL Account Team members for specific questions about these or other updates.
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