Statutory Update – COVID-19 Legislation; PFML Updates & 2022 Benefits/Rates, West Hollywood Accrued Leave, WA LTC

December 3, 2021

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave (EPSL) Updates

Below are a few updates since our last summary on October 8:

• Fairfax, CA: On September 1, Fairfax, CA’s Town Council passed Ordinance No. 857, requiring employers with 25 or fewer employees (i.e., employers not covered by the state’s SPSL requirements) to provide ‘COVID-10 Supplemental Sick Leave’ to their employees.  The ordinance was effective immediately and expired September 30, 2021.
• Long Beach, CA: Long Beach’s ordinance has no set expiration date; rather, the ordinance’s status is re-evaluated by the City Council every 90 days. On November 1 the Council issued its recommendation that Supplemental Paid Sick Leave requirements sunset on December 31, 2021.
• Colorado: In effect until the end of “any and all” public health emergencies; the national PHE determination was last renewed effective October 18.
• District of Columbia: Paid Public Health Emergency Leave applied through November 5, 2021 (see new Vaccination Leave requirements below).

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

Other COVID-19 Legislation

District of Columbia Vaccination Leave and DC FMLA Amendment

On November 18 D.C.’s mayor signed the COVID Vaccination Leave Emergency Amendment Act of 2021 (B24-0404 / D.C. Act 24-209).  The Act:

1. Effective immediately, temporarily amends the District’s Accrued Sick and Safe Leave Act (ASSLA) to include paid leave for reasons associated with a COVID-19 vaccination.

• • Applies to: All employers, except D.C. government and public charter schools; and All employees who have worked for the employer for at least 15 days prior to the request for leave.
  • Amount of Leave:
    • 2 hours per injection for the employee’s or a child’s* vaccination (including booster);
    • 8 hours per injection during the 24 hours following the 2-hour vaccination leave, for the employee’s recovery of symptoms or to care for a child* recovering from symptoms;
    • Maximum 48 hours in a year, beginning on the Act’s effective date.

* “Child” is defined as a child under age 18 who lives with the employee and for whom the employee permanently assumes and discharges parental responsibility, or a foster child under age 18.

• • Rate of Pay: Greater of the employee’s regular rate of pay or D.C. minimum wage. 
  • Leave is in addition to any paid time otherwise accrued under ASSLA, as well as paid leave provided by an employer via policy, contract or collective bargaining agreement unless the employer provides equivalent paid leave for COVID-19 vaccination and recovery that does not reduce other available paid leave.  Leave requirements may not be waived or reduced by collective bargaining agreement.
  • Employers may require documentation from an employee who takes leave, such as a vaccination record, but may not require the employee to provide more than 48 hours’ notice prior to leave, or to find a replacement worker during the hours leave will be taken.

2. Effective November 5, 2021, extends and expands requirements for unpaid “COVID-19 Leave” under the District’s Family and Medical Leave Act (DC FMLA) originally established in 2020.

• • Individuals employed for at least 30 days prior to the request for leave are eligible to take up to 16 weeks of unpaid leave in the two-year period beginning November 18, 2021, if they are unable to work because they:

1. 1. 1. Have tested positive for COVID-19 or are caring for a family member or individual with whom they share a household who has tested positive for COVID-19 and must quarantine pursuant to Department of Health guidelines (this is an addition to the 2020 leave reasons);
      2. Have a recommendation from a health care provider or a directive from an employer that they isolate or quarantine due to COVID-19, including because they or an individual with whom they share a household are at high risk for serious illness from COVID-19;
      3. Must care for a family member or an individual with whom they share a household who is isolating or quarantining pursuant to Department of Health guidance, the recommendation of a health care provider, or the order or policy of the family member’s or individual’s school or childcare provider; or
      4. Must care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee due to COVID-19.

• • Employers may request reasonable documentation consistent with the reason for need for leave.
  • Reasonable advance notice may be required for foreseeable leave.  For leave that is not foreseeable, notice must be provided as soon as practicable, but may not be required fewer than 24 hours after leave is taken.
  • Any paid leave provided by an employer that the employee elects to use for leave under the Act will count against the total workweeks of COVID-19 Leave available.
  • Employees may elect to use leave provided under the Act before other leave to which the employee is entitled under the employer’s policies, or under federal or District law, unless prohibited by federal or District law.
  • DC FMLA’s employment and benefits protections apply during COVID-19 Leave.
  • The Act’s requirements do not supersede any clause regarding family and medical leave contained in a collective bargaining agreement in force as of the Act’s effective date.
  • An updated DC FMLA poster is anticipated.

As emergency legislation, the Act will remain in effect for 90 days (until February 3, 2022) unless it is extended by temporary or permanent legislation.

New York Vaccination Leave – Updated Guidance

The New York Department of Labor (NY DOL) recently released updated FAQ confirming that the 4 hours of leave per COVID-19 vaccine injection under the state’s Vaccination Leave law may be used to obtain a booster shot. Previously covered in our March 17 and April 9 Statutory Updates, the law is set to expire December 31, 2022.

Non-COVID-19 Legislation

Federal

Status of Federal Paid Family and Medical Leave

On November 19 the House of Representatives passed the revised Build Back Better Act (H.R. 5376), which features a pared-down version of the originally proposed 12 weeks of ‘Universal Paid Family and Medical Leave’.  The current proposal features four weeks of paid family and medical leave with a maximum benefit of approximately $800 per week, beginning in 2024. The proposal also provides for reimbursements to “legacy” states that already have a PFML program in place, and grants to employers who offer equivalent benefits to their employees.

The Act is now in the hands of the Senate, where it likely faces further changes – these changes may include yet another version of paid leave, or its removal from the Act altogether. We will continue to monitor and report updates.

State and Local

Paid Family and Medical Leave Updates

Connecticut Paid Family and Medical Leave (CT PFML) – Updates and Reminders

Benefit Applications are Now Being Accepted

Beginning December 1, 2021, employees may submit applications for CT PFML benefits for leaves occurring on or after January 1, 2022.

Employees may apply with Aflac online (recommended), or via phone, fax or mail.  In order to file online, employees must first create an account on CT.gov; the Connecticut Paid Leave Authority (CT PLA) has provided written instructions as well as an instructional video to assist with this process. 

CT PLA has added updated content to the CT Paid Leave website, including:

• • Claim Process webpage;
  • Application Checklist for employees;
  • Human Resources Toolkit, which features details on program benefits and the claim process, plus a comparison of CT PFML versus FMLA and CT FMLA;
  • Informational and instructional YouTube videos.

Private Plans

The Connecticut Paid Leave Authority (CT PLA) recently posted an updated version of the Private Plan Policy and Procedures document outlining the requirements and process surrounding exemption from the CT PFML state program via a private plan. 

Private plans:

• • may be insured through an approved carrier or self-funded;
  • Self-funded plan applications must be accompanied by a surety bond in an amount equal to the estimated total yearly contributions that would otherwise be owed to the state fund.
  • must be approved via vote by 50% +1 of the number of employees working in Connecticut prior to application submission;
  • may be applied for on a rolling basis, and become effective the first day of the calendar quarter following approval;
  • Separate applications are required per Federal Employer Identification Number (FEIN).
  • Applications must be approved by CT PLA at least 30 calendar days before the end of the quarter prior to the quarter in which the approval takes effect in order for the employer’s obligation to remit contributions to the state fund is waived.  For example, in order for contributions to be waived for the quarter beginning on April 1, 2022, the application must be approved by CT PLA no later than March 1, 2022.
  • renew every 3 years unless material changes are made (surety bonds must be updated every year).

For more information and resources, visit the CT PFML Private Plan webpage.

New York Paid Family Leave (NY PFL) Amendment – Covered Family Members

On November 1 the governor of New York signed S2928A, which adds siblings as covered family members under NY PFL effective January 1, 2023. The definition of “sibling” includes biological, adoptive, half- and step- relationships.   

2022 Benefits and Rates

Other News

West Hollywood, CA Accrued Leave

Please see our June 10, 2022 post for updates to this law’s requirements.

On November 15 the City Council of West Hollywood adopted Ordinance No. 21-1168, adding Article 5, Chapter 5.130 to the city’s Municipal Code to establish a city-wide minimum wage, outline standards for payment of service charges to employees, and require employers to provide paid and unpaid leave to their employees.  The information below focuses on the leave portion of the ordinance, provisions of which closely resemble Los Angeles’ Hotel Worker Minimum Wage Ordinance; additional guidance may be supplied via regulations.

Effective Dates:

• January 1, 2022, for hotel employers and employees (please refer to section 5.130.020.B of the ordinance for the definitions of “Hotel”, “Hotel Employer” and “Hotel Worker”);
• July 1, 2022, for all other employers and employees.

Applies to:

• All employers except for government agencies, including federal agencies, state agencies, cities, counties, school districts, and all other public entities;
• All employees who perform at least two hours of work in a particular week within the geographic boundaries of the city of West Hollywood and who qualify as entitled to payment of a minimum wage from any employer under the California Labor Code and wage orders published by the California Industrial Welfare Commission (i.e., non-exempt employees).

Accrual and Reasons for Use:

• Full-time employees (employees working 40 hours per week or classified as full-time under the employer’s policies, if more generous) will accrue:
  • • 1.85 hours of paid leave per week of employment (expressed as 96/52 hours in the ordinance), up to a maximum of 96 hours per year, to be used for “sick leave, vacation or personal necessity”; and
    • 1.54 hours of unpaid leave per week of employment (expressed as 80/52 hours in the ordinance), up to a maximum of 80 hours per year, be used as sick leave for the employee’s or an immediate family member’s illness if the employee has exhausted his or her accrued paid time off for that year. (The ordinance does not define “immediate family member”.).
• Employees who work fewer than 40 hours per week (or not classified as full-time under the employer’s policies) accrue time in increments proportional to the full-time accrual above.
• Time does not accrue on work hours exceeding 40 hours per week.

Note: The ordinance does not specify (1) when leave accrual begins, though the later of the ordinance’s effective date or the commencement of employment is assumed; or (2) whether this time accrues only during hours worked within the city.

Use:

• Employees may begin using accrued time after 6 months of employment, or consistent with company policies, whichever is sooner. 

Carryover:

• Accrued paid time carries over from one year to the next, until time off reaches 192 hours. Accrued unpaid time carries over from one year to the next, until time off reaches 80 hours.

Note: After an Employee reaches the 192-hour maximum for paid leave, the employer must provide a cash payment once every 30 days for accrued time over the maximum. 

Employers may provide employees with the option of cashing out a portion, or all, of their accrued paid time off under the maximum, but may not require employees to take advantage of this option.

Accrued paid time off cashed out must be paid out at the employee’s current rate of pay.

Payout at Termination: Not specified.

Note: California State’s paid sick time law does not require payout of accrued but unused time upon separation of employment, nor do the similar local ordinances. However, given paid time under the West Hollywood ordinance may be used for reasons other than sick leave, and CA state law otherwise requires payout of vacation time (or PTO) when employment ends, payout of paid time accrued under the West Hollywood ordinance may be required. Regulations may clarify. 

Employee Protections:

Employers are prohibited from:

• unreasonably denying an employee’s request to use accrued paid time off;
• taking any adverse action against any employee who exercises or attempts to exercise the rights provided under the ordinance; or
• funding the wages and benefits required under the ordinance by reducing the pension, vacation, or other non-wage benefits of any employee or by increasing charges to employees for parking, uniforms, meals, or other work-related materials or equipment.

Notice and Recordkeeping:

• A bulletin published by the city outlining the current minimum wage rate and of employee’s rights under the ordinance must be provided to new hires and posted conspicuously in English, Spanish, and any other language spoken by at least 5% of employees.
• Payroll records must be retained for three years.

Collective Bargaining Agreements:   

The ordinance’s requirements may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms and bilaterally implemented.

Washington Long Term Care – Reminder

Contributions toward Washington State’s long term care program, WA Cares, begin January 1, 2022.  Employees contribute .58% of their wages; there is no cap on applicable wages, nor is there a maximum contribution amount. Employers are not required to contribute. 

More information may be found in our May 19 Statutory Update and on the WA Cares Fund website.

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

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