Statutory Update: Maryland Enacts Paid Family and Medical Leave; WA PFML and OR PST Amendments
April 13, 2022
State and Local
Paid Family and Medical Leave Updates
Maryland’s Legislature Enacts Paid Family and Medical Leave
On April 9 the Maryland General Assembly enacted the Time to Care Act of 2022 (SB275), overriding the governor’s veto the day before. The Act establishes the “Maryland Family and Medical Leave Insurance Program” to provide job-protected paid family and medical leave to employees working in the state.
Below is a summary of the law’s text. Regulations defining provisions and requirements are scheduled to be adopted by June 1, 2023.
Maryland Paid Family and Medical Leave (MD PFML)
Contributions: October 1, 2023
Benefits Entitlement: January 1, 2025
All Employers who employ at least one individual in the State of Maryland, including governmental entities
Excludes “self-employed individuals”: any individual who is the sole owner and only employee of a sole proprietorship, limited liability company, C Corporation, or S Corporation. Self-employed individuals may opt in, for an initial period of no fewer than 3 years.
Types of Plans
Private Plan - An employer may satisfy MD PFML requirements through a private employer plan consisting of employer-provided benefits, insurance or a combination of both if the private employer plan is offered to all of the employer’s eligible employees and meets or exceeds the rights, protection and benefits provided to a covered employee under the MD PFML law.
Employer- and Employee-Paid
Beginning October 1, 2023, employees*, employers with 15 or more employees**, and self-employed individuals electing to participate in the program will be required to contribute to the Family and Medical Leave Insurance Fund.
The initial rate will be determined on or before June 1, 2023, and will be in effect from October 1, 2023, through December 31, 2025.
Beginning in 2025 the contribution rate and the employer/employee cost share will be determined every two years. To be set on or by June 1 and be in effect for the 24-month period beginning the next January 1.
Maximum wages subject to premium assessment will be equal to maximum wages subject to social security taxation ($147,000 in 2022).
If the employer elects to pay a portion of the employee’s required contribution, the employer may deduct an amount that is less than 75% of the rate of contribution required from the wages of the employee.
Private plan sponsors and their covered employees are exempt from contributing to the Family and Medical Leave Insurance Fund.
* Section 8 of the law text states that it is intended that the State pay the required contribution to the Fund for employees who make an hourly wage that is less than $15.00 per hour. This provision expires June 30, 2026.
** Section 7 of the law’s text states that it is intended that the State pay the required contribution to the Fund for employers that are community providers that are community–based agencies or programs funded by the Behavioral Health Administration, the Developmental Disabilities Administration, or the Medical Care Programs Administration to serve individuals with mental disorders, substance–related disorders, or a combination of those disorders or developmental disabilities.
Reasons for Leave
Employee’s own serious health condition;
To bond with a child during the first year following birth or after placement for foster care, kinship care or adoption;
To care for a family member with serious health condition;
To care for a service member with a serious health condition resulting from military service who is the employee’s next of kin;
For circumstances and needs related to a family member’s qualifying exigency.
Covered Family Members
Child of any age: the employee’s biological, adopted, foster, or stepchild; a child for whom the employee has legal or physical custody or guardianship; legal ward of the employee or of the employee’s spouse; a child to whom the employee stands in loco parentis, regardless of the child’s age;
Parent: employee’s or spouse’s biological, adoptive, foster, stepparent; someone who acted as a parent or stood in loco parentis to the employee or the employee’s spouse as a minor; employee’s legal guardian;
Employee’s grandparent, grandchild or sibling, whether biological, adoptive, foster or step.
Eligibility for Leave
No service length requirement.
Employee must have worked at least 680 hours over the 12-month period immediately preceding the date on which leave is to begin.
Note: Regulations may clarify whether this refers to hours worked with the current employer or with any employer in Maryland.
An employee may not receive more than 12 weeks of benefits per Application Year, except that an employee may receive an additional 12 weeks if, during the same Application Year, the employee takes leave for their own serious health condition and leave to bond with a new child.
“Application Year”: the 12-month period beginning on the first day of the calendar week in which an individual files an application for MD PFML benefits
Leave may be taken intermittently in increments of at least four hours.
Weekly Benefit Amount
If the employee’s Average Weekly Wage* (AWW) is 65% or less of the State Average Weekly Wage** (SAWW), the employee’s Weekly Benefit Amount (WBA) will be 90% of the employee’s AWW.
If the employee’s AWW is greater than 65% of the SAWW, the employee’s WBA will be the sum of:
1. 90% of employee’s Average Weekly Wage (AWW) up to 65% of the SAWW, plus
2. 50% of the employee’s AWW that is greater than 65% of the SAWW.
If the employee is taking partially paid leave, the employee’s WBA will be the lesser of:
1. The amount required to make up the difference between wages paid to the employee while the employee is taking partially paid leave and the full wages normally paid to the employee, or
2. If the employee’s AWW is greater than 65% of the SAWW, the employee’s WBA will be the sum of: (a.) 90% of employee’s Average Weekly Wage (AWW) up to 65% of the SAWW, plus (b.) 50% of the employee’s AWW that is greater than 65% of the SAWW
* Average Weekly Wage (AWW): the employee’s total wages received over the last 680 hours for which the employee was paid divided by the number of weeks worked.
** State Average Weekly Wage (SAWW): the wage calculated on or before December 15 each year for the following July 1, per MD Code §9-603 (Workers Compensation) ($1,338 for fiscal year ending June 30, 2021, for WC benefits beginning on or after January 1, 2022)
Minimum Weekly Benefit: $50
Maximum Weekly Benefit: $1,000 in 2025
The Maximum Weekly Benefit will be announced each September 1 (beginning September 1, 2025) and will apply to claims for benefits filed on or after the following January 1.
Notice to Employer
For leave that is foreseeable, employers may require employees to provide at least 30 days’ notice.
If the need for leave is not foreseeable the employee must (1) provide as soon as practicable, and (2) generally comply with the employer’s procedural requirements for requesting or reporting other leave, if those requirements do not interfere with the employee’s ability to use MD PFML leave.
Employment and Benefits Protection
Employees returning from MD PFML must be restored to a position of employment equivalent to the position held prior to leave. An employer may deny restoration of the employee’s position of employment if:
1. the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations;
2. the employer notifies the employee of the intent to deny restoration of the employee’s position at the time the employer determines the economic injury would occur; and
3. if the employee’s MD PFML leave has already begun, the employee elects not to return to employment after receiving notice of the employer’s intention to deny restoration of the employee’s position.
During an employee’s period of MD PFML, an employer may terminate his or her employment only for cause.
During an employee’s period of MD PFML, employment health benefits must continue in the same manner as required under FMLA.
Coordination with Other Leaves
If an employee takes leave for which they are receiving MD PFML benefits, the leave will run concurrently with eligible leave that may be taken by the employee under FMLA.
Employees must exhaust all employer-provided leave that is not required to be provided under law before receiving MD PFML benefits. Employer-provided leave to be exhausted must comply with job, benefits, retaliation and discrimination protections required during MD PFML leave.
Employees receiving benefits under Unemployment* or wage replacement benefits under Workers' Compensation are not eligible for MD PFML benefits, except that an employee receiving compensation for a permanent partial disability under Workers’ Compensation may be eligible.
* Section 4 of the law’s text states that “on or before January 1, 2023, the Maryland Department of Labor shall report … on whether a covered employee using benefits under the Maryland Family and Medical Leave Insurance Program … is also eligible for Unemployment Insurance Benefits … and the effect that dual eligibility has on employer ratings.”
Collective Bargaining Agreements (CBA)
The law does not diminish an employer’s obligation to comply with a CBA or employer policy that allows an employee to take leave for a longer period of time than the employee would be able to receive MD PFML benefits.
An employee’s right to benefits under the MD PFML law may not be diminished by CBA or employer policy.
An agreement to waive an employee’s rights under the MD PFML law is void as against public policy.
Employers must provide written notice of rights and responsibilities under the MD PFML law to each employee:
• at the time of hire
• annually; and
• within 5 business days of the employer being notified by the employee or otherwise becoming aware that the employee’s need for leave may be for a MD PFML-qualifying reason
Model notice(s) will be provided by the Maryland Department of Labor.
Washington Paid Family and Medical Leave (WA PFML) Amendment
On March 30 the governor of Washington signed SB5649, amending the WA PFML law effective June 9, 2022. In addition to implementing measures aimed at monitoring the financial stability and solvency of the family and medical leave insurance account, the amendment makes a few changes to more visible aspects of the program:
- Family leave may be taken for seven days following the death of a child for whom the employee:
- would have qualified for medical leave for the birth; or
- would have qualified for bonding leave for 12 months following placement with the employee.
- If an employee is eligible for WA PFML benefits due to incapacity during pregnancy or for prenatal care, the six-week “postnatal” period following the birth of her child will automatically be designated medical leave unless the employee chooses to use family leave during that time. Certification of a serious health condition will not be required during the postnatal period.
- Currently the WA PFML law excludes parties subject to a Collective Bargaining Agreement (CBA) in effect on October 19, 2017, until the CBA expires or is reopened or renegotiated. The amendment sets the end date for this exclusion as December 31, 2023.
- The Employment Security Department (ESD) will be required to publish a current list of all employers with approved Voluntary Plans on its website.
Oregon Paid Sick Time Amendment
On March 21 Oregon’s Bureau of Labor and Industries (BOLI) filed a permanent rule expanding the permissible uses for time accrued under the state’s paid sick time law during a public health emergency. The permanent rule mirrors the temporary rule in place from August 6, 2021, through January 17, 2022, and states that, effective April 1, 2022:
The following public health emergencies are permissible uses of sick leave unless the employee is employed as a first responder:
- 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
- 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
Virginia – Paid Family Leave as Class of Insurance
The law defines “Family Leave Insurance” as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for a percentage or portion of the employee’s income loss due to:
- the birth of a child or adoption of a child by the employee;
- placement of a child with the employee for foster care;
- care of a family member of the employee who has a serious health condition; or
- circumstances arising out of the fact that the employee’s family member who is a service member is on active duty or has been notified of an impending call or order to active duty.
Family Leave Insurance may be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate group insurance policy purchased by an employer.
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