Statutory Update – COVID-19 Emergency Paid Sick Leave, FMLA Forms, CO Paid Sick Leave, MA PFML Regs and More

July 31, 2020

State and Local COVID-19 Emergency Paid Sick Leave Legislation

Please view our side-by-side comparison of Emergency Paid Sick Leave (EPSL) laws in California, Colorado, the District of Columbia, New York and Seattle, WA.

California Local Emergency Paid Sick Leave Ordinances

Earlier this month Sacramento, San Mateo County and Santa Rosa joined six other California localities, as well as the state, in enacting emergency measures providing paid sick leave to workers impacted by COVID-19. Below is an overview of the provisions of these new ordinances.

Sacramento

San Mateo County

Santa Rosa

Sacramento Worker Protection, Health, and Safety Act
Supplemental Paid Sick Leave
Supplemental Paid Sick Leave
Temporary Sick Leave

Link to Law/Ordinance

Effective Date

7/15/20 - 12/31/20

7/8/20 - 12/31/20

7/7/20 - 12/31/20

Employers

500+ employees nationally (not subject to FFCRA's EPSLA)

500+ employees nationally; excludes federal, state and local government agencies

500+ employees nationally; excludes government employers
Employers under 50 employees who qualify for exemption from FFCRA are not required to provide leave for child care due to school/care closure.

Eligible Employees

All employees who perform work in the city who cannot work or telework
Employers may exclude first responders and healthcare workers

Employees who have performed any work within the unincorporated areas of San Mateo County since January 1, 2020; excludes food sector workers covered under California Supplemental Paid Sick Leave (Executive Order N-51-20)
Employers may limit use by emergency responders, healthcare workers and aviation security workers except for employee's own health needs

Employees who have worked at least 2 hours in the city and perform "Allowed or Essential Work" permitted in Orders issued by the Sonoma County Public Health Officer

Collective Bargaining Agreement Exception

Not specified

With expressed clear waiver

Not specified

Benefit - Time Available

FT: 80 hours
Other: 2-week average during 6 months prior to 7/15

FT: 80 hours
Other: 2-week average between 1/1 and 7/7

FT: 80 hours
Other: 2-week average

An employee who works part of his or her hours within the city limits is entitled to paid sick leave hours equal to the number of hours he or she works on average over a two -week period in the city

Benefit - Pay

Own leave: 100% pay; max $511/day, $5,110 total

Family care: 66 2/3% pay; max $200/day, $2,000 total

100% pay
Max $511/day, $5,110 total

100% pay
Max $511/day, $5,110 total

                                                                                Specified Reasons for Use 

Quarantine ordered by public official or healthcare provider

Yes

Yes

Yes

Experiencing symptoms and seeking medical treatment

Yes

Yes

Yes

Underlying health condition or over age 65

Yes

Not specified

Yes

Care for family member who is sick and/or under official or healthcare provider-directed quarantine

Quarantine

Quarantine or Illness

Quarantine

Care for family member whose school or care facility is closed

Yes - minor children only

Yes

Yes - minor children only

Worksite closure due to official public health order or recommendation

Yes

No

No

Documentation

An employer
may request the basis for SPSL; provided, however, that a doctor’s note or other documentation is not required.

An employer may request information supporting an employee’s request for Supplemental Paid Sick Leave, as provided in the FFCRA or in the applicable regulations or guidance issued by the US Department of Labor.

Only specifies that for an employee or family member instructed to isolate "a written note from a medical provider is not required".

Employer Offset

- SPSL is in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement

- An employer may not require an employee to use other accrued paid sick
leave, paid time off, or vacation time before using SPSL

- If an employer has granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020 specifically for use for COVID-19-related matters, the employer may use those leave hours as a credit against the number of SPSL hours required by this section.

- Employers that provide paid leave under California Supplemental Paid Sick Leave (Executive Order N-51-20) are permitted to offset that leave.

- SPSL is in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement

- An employer may not require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL

- If an employer has granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020 specifically for use for COVID-19-related matters, the employer may use those leave hours as a credit against the number of SPSL hours required by this section.

- Employers that provide paid leave under California Supplemental Paid Sick Leave (Executive Order N-51-20) are permitted to offset that leave.

- SPSL is in addition to and independent of any form of leave (e.g., vacation, sick, or personal leaves) to which an employee may be entitled to utilize pursuant to the employer’s policies.

- An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before or in lieu of SPSL.

- If an employer provided additional paid leave specifically for COVID-19 related purposes (“Voluntary COVID-19 Leave”) above and beyond an employee’s regular or previously accrued leaves (e.g., sick or personal leaves) between March 17 and June 30, 2020, or provided supplemental leave pursuant to the laws of another jurisdiction requiring the provision of additional paid leave specifically for COVID-19 related purposes at any time, the obligation to provide SPSL may be reduced for every hour the employee was permitted to take such leave. If an employer provided Voluntary COVID-19 Leave to an employee at a rate of pay or hourly accrual rate less than that provided by SPSL, then such amounts or hours may be offset against such rates and hours as the employee would have received under SPSL.

- This ordinance is intended to provide additional COVID-related paid sick leave beyond what an employer normally provides.

- Does not apply to any employer that has provided its employees, as of July 7, 2020, with some combination of paid personal leave at least equivalent to the paid sick time required by this ordinance for a COVID-related leave. An employer that provides some combination of paid sick leave less than the paid sick time required by this chapter is required to comply with this chapter to the extent of such deficiency.

Notice to Employees

Notice of safety requirements only

None stated

None stated

Colorado Emergency Paid Sick Leave

On July 14, the governor of Colorado signed the Healthy Families and Workplaces Act (HFWA) (SB20-205).  Effective immediately, the law mandates that all employers in the state, regardless of size, provide employees with paid sick leave in the amounts and for the purposes specified by the Families First Coronavirus Response Act’s (FFCRA) Emergency Paid Sick Leave Act (EPSLA) (see our March 20 Update for additional EPSLA details):

Reasons for Use: The employee is unable to work (or telework) because he or she:

    1. is subject to a federal, state or local COVID-19 quarantine or isolation order;
    2. has been advised by a medical provider to self-quarantine due to COVID-19 concerns;
    3. is experiencing symptoms of COVID-19 and seeking medical diagnosis
    4. is caring for an individual who falls under numbers 1 or 2 above
    5. is caring for a son or daughter whose school has been closed, or whose care provider is unavailable, due to COVID-19 concerns
    6. is experiencing other substantially similar condition specified by the Secretary of Health and Human Services

Leave Entitlement:

    • Full Time Employees: 80 hours
    • Part-Time Employees: Number of hours that employee works on average over a two-week period
    • The total number of hours paid under Emergency Paid Sick Leave is capped at 80 over a two-week period.
    • With the exception of a workplace being closed due to a temporary government quarantine/isolation order, no paid leave applies if an entire business is completely closed, whether temporarily or permanently (i.e., in that event employees are not on “leave”, they are on furlough or layoff).

Benefit:

    • Reasons 1, 2 & 3 above: greatest of the employee’s regular rate of pay, federal minimum wage, state minimum wage, or local minimum wage
      • Maximum: $511 per day, up to $5,110 total
    • Reasons 4, 5 & 6 above: two thirds the employee’s regular rate of pay                                                                                                                                          
      • Maximum: $200 per day, up to $2,000 total

Employer Offset:

    • HFWA-required leave must be provided in addition to leave under an employer policy that existed prior to April 1, 2020, and an employee may first use HFWA-required paid leave before using any other leave under an employer policy that existed prior to April 1, 2020. (This is in accordance with FFCRA regulations 29 C.F.R. 826.160(a),(b); see also FFCRA FAQ #32.)
    • In response to our request for clarification, the Colorado Department of Labor and Employment (CDLE) responded that, “Compliance can be through a paid leave policy not limited to COVID-19 that an employer adopted on or after April 1, 2020, if it (A) provides the same quantity and pay rate of leave as HFWA, for all situations HFWA covers, and (B) lets employees take HFWA-required leave even if they already used their leave under the policy for other purposes (e.g., a vacation or a non-COVID-related health need)”.
        • CDLE Interpretive Notice & Formal Opinion (“INFO”) #6A states that if an employee ​already received paid leave in 2020 ​for any of the categories of​ COVID-related needs that HFWA covers, the employer can count this leave against HFWA leave requirements, regardless whether the leave was provided under federal law, state law, or its own policies.  However, if the prior leave was at ​less than full pay ​for a condition in categories 1, 2 or 3 (the categories HFWA requires ​full pay for),​ ​it ​counts toward the HFWA requirement with a discount​ for how much the pay was reduced (examples are included in the Opinion).
    • An employer that, under a collective bargaining agreement (“CBA”), already provides “equivalent or more” paid leave​, is exempt from other HFWA requirements, as long as the ways the CBA differs from HFWA would not​ diminish employee rights to “equivalent” paid leave. CBAs effective or renegotiated after HFWA’s effective date must expressly waive the law’s requirements, as well as provide equivalent or more generous leave.

Notice to Employees:  Employers must provide each employee written notice outlining HFWA’s rights and requirements, as well as display a poster in a conspicuous place accessible to all employees. Both must be provided in English and any language spoken by at least 5% of employees.

    • Distribution and posting may be managed electronically if the employer does not maintain a physical workplace or if employees perform work remotely or via a web-based platform.
    • The notice and posting requirements are waived during any period an employer’s business is closed due to a public health emergency.
    • Interpretive Notice & Formal Opinion (“INFO”) #6A may serve as the notice to employees and includes links to the poster and Spanish translations of both.

As under EPSLA, “reasonable” documentation may be requested, but the request may not interfere with the employee’s ability to take leave. Documentation may be required as soon as the employee can provide it.

These requirements are in effect until December 31, 2020.

Additional information and guidance may be found in Interpretive Notice & Formal Opinion (“INFO”) #6A. Employers are encouraged to consult the Division’s “INFOs” webpage for future updates.

HFWA terminates the paid sick leave requirements under the previously enacted Colorado Health Emergency Leave with Pay (“HELP”), in effect through July 14.

The law also implements accrued paid sick leave and public health emergency leave effective January 1, 2021; details are under Other Leave News below.

Additional EPSL Updates

Below are a few updates to COVID-19 laws reported in previous releases:

    • Correction: In our summary of Long Beach, CA’s COVID-19 Paid Supplemental Sick Leave the benefit percentage for leave associated with care for another person was inadvertently omitted. The correction to 66 2/3% has been made to the online version of the May 29 Statutory Update. We apologize for any confusion this oversight may have caused.
    • Under Oakland, CA’s COVID-19 Emergency Paid Sick Leave Ordinance (May 29 Statutory Update), employers must provide a notice outlining rights under the ordinance in a manner calculated to reach all employees (posting at the workplace, electronic distribution, and/or posting on an employer’s intranet) in any language spoken by at least 10% of employees. The poster/model notice has been made available on the city’s website.
    • San Francisco, CA’s Public Health Emergency Leave Ordinance (PHELO) (May 1 Statutory Update), originally set to expire mid-June, was extended by Ordinance No. 90-20, to August 16, 2020.
    • The District of Columbia’s Coronavirus Support Congressional Review Emergency Amendment Act (B23-0759/D.C. Act 23-328) and its accompanying Coronavirus Support Clarification Emergency Amendment Act (B23-0776/D.C. Act 23-332) were enacted on June 9. The Acts carry forward temporary changes made to the District’s Family and Medical Leave Act (DC FMLA) and Accrued Sick and Safe Leave Act (ASSLA) by the Coronavirus Support Emergency Amendment Act (“CSEA”, B23-0757/D.C. Act 23-326), and are effective for 90 days (see our July 1 Statutory Update for details on the changes). 

On July 7 the mayor signed the Coronavirus Support Temporary Amendment Act (B23-0758, now D.C. Act 23-334), which restates the temporary DC FMLA and ASSLA requirements.  The Act’s “projected” effective date is October 1.

July 6 Guidance from D.C.’s Office of Human Rights (OHR) states that employers subject to DC FMLA, as well as those temporarily covered for COVID-19 leave, are required to inform employees of new rights under the law. Notice must be posted in a conspicuous place and provided to eligible employees; electronic means are acceptable for employees working remotely. OHR has posted a model notice on its website.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Family and Medical Leave Act (FMLA) Forms

Earlier this month the Department of Labor’s (DOL) Wage and Hour Division (WHD) released updated versions of its FMLA model notices and certification forms (the Employee Rights poster has not been changed). Per the DOL’s July 16 news release, the new forms were redesigned using public feedback to help streamline the FMLA administration process.  The new forms, as well as Q&A regarding their use, may be found on the DOL’s website.

Colorado Paid Sick and Public Health Emergency Leave

In addition to emergency paid sick leave outlined above, Colorado’s Healthy Families and Workplaces Act (HFWA) (SB20-205) implements permanent paid sick and public health emergency leave requirements beginning January 1, 2021. The law adds Part 4 to Colorado Revised Statutes, Title 8, Article 13.3.

Accrued Paid Sick Leave

Effective Date:

    • January 1, 2021, for employers with 16 or more employees, and
    • January 1, 2022, for all other employers.

Applies to:

    • All employers as defined by C.R.S. §8-4-101, but includes the state and its entities, counties, cities, municipalities, school districts and political subdivisions.
    • Excludes the federal government.

All employees working in Colorado (as defined in C.R.S. §8-4-101).

Entitlement:

    • Employees accrue 1 hour of paid sick leave for every 30 hours worked, beginning the later of the Act’s effective date or the employee’s date of hire.  Exempt employees are assumed to work 40 hours per week.
    • Maximum accrual of 48 hours, though employers may select a higher limit.
    • In lieu of accrual, employers may provide the employee with an amount of paid sick leave that meets or exceeds the law’s requirements at the beginning of each year.
    • Employers may loan paid sick leave to an employee in advance of accrual.
    • With the exception of a workplace being closed due to a temporary government quarantine/isolation order, no paid leave applies if an entire business is completely closed, whether temporarily or permanently (i.e., in that event employees are not on “leave”, they are on furlough or layoff).
    • Regulations around paid sick leave requirements for fee-for-service employees are forthcoming.

Pay: Employees must be compensated for use of paid sick leave at their regular rate of pay or the applicable minimum wage, whichever is greater. Rate of pay does not include overtime, bonus or holiday pay.

Use:

    • Paid sick leave is available for use upon accrual.
    • Accrued leave may be used:
      • for the diagnosis or treatment of the employee’s or a Covered Family Member’s mental or physical illness or injury, or for preventive care;
      • for the employee’s or a Covered Family Member’s needs associated with domestic abuse, sexual assault or harassment, including counseling, relocation, and legal services.
      • due to a public health emergency where a public official has ordered closure of the employee’s place of business or of the employee’s child’s school or place of care.

“Covered Family Members” include:

          • anyone related to the employee by blood, marriage, civil union, or adoption;
          • a child to whom the employee stands in loco parentis or person who stood in loco parentis to the employee as a child; or
          • a person for whom the employee is responsible for providing and arranging health- or safety-related care.

Public Health Emergency” is defined as:

          1. an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which (a) an emergency is declared by a federal, state or local public health agency, or (b) a disaster emergency is declared by the governor; or
          2. a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.
    • Leave may be used in increments of 1 hour unless the employer allows for smaller increments of time.
    • Employees may use up to 48 hours of accrued paid sick leave per year, though employers may allow a higher limit.
    • Notice to Employer:
        • When the need for leave is foreseeable, employees should make an effort to (1) provide advance notice of the need for leave, and (2) schedule time off so as not to unduly disrupt the employer’s operations.
        • An employee’s request for leave may be verbal, in writing, electronic, or by any other means acceptable by the employer.
        • Employers may set forth reasonable notice requirements in a written policy, but may not deny paid sick leave to an employee based on noncompliance with such a policy.
    • Employers may request documentation for leave of four or more consecutive workdays, but may not require disclosure of details relating to domestic violence, sexual assault or stalking, or the details of an employee’s or a family member’s health information. 
    • Employers may not require an employee to find a replacement to cover time he or she is absent during use of paid sick leave.

Carryover: Employees may carry over up to 48 hours of accrued but unused time from one year to the next.  Employers may still limit use to 48 hours per year.

Termination and Rehire Provisions:

    • Payout of accrued but unused time upon separation of employment is not required.
    • Unused time must be reinstated if the employee is rehired within 6 months and the time was not paid out at termination.

Existing Employer Policies: Employers whose paid leave policies meet or exceed the law’s requirements for entitlement and use are not obligated to provide additional paid leave.

    • Any paid sick leave provided to an employee of a federal contractor under Executive Order 13706 may be considered paid sick leave under HFWA.

Collective Bargaining Agreements: An employer that, under a collective bargaining agreement (“CBA”), already provides “equivalent or more” paid leave​, is exempt from other HFWA requirements, as long as the ways the CBA differs from HFWA would not​ diminish employee rights to “equivalent” paid leave. CBAs effective or renegotiated after HFWA’s effective date must expressly waive the law’s requirements, as well as provide equivalent or more generous leave.

Notice to Employees:  Employers must provide each employee written notice outlining HFWA’s rights and requirements, as well as display a poster in a conspicuous place accessible to all employees. Both must be provided in English and any language spoken by at least 5% of employees.

    • Distribution and posting may be managed electronically if the employer does not maintain a physical workplace or if employees perform work remotely or via a web-based platform.
    • The notice and posting requirements are waived during any period an employer’s business is closed due to a public health emergency.
    • Colorado’s Division of Labor Standards and Statistics’ Interpretive Notice & Formal Opinion (“INFO”) #6B may serve as the notice to employees and includes links to the poster and Spanish translations of both.

Recordkeeping: 

    • Employers must retain record of each employee’s hours worked, paid sick leave accrued and paid sick leave used for a period of two years.
    • Any health or safety information obtained must be kept separate from other personnel information and treated as confidential medical records

Additional information and guidance may be found in Interpretive Notice & Formal Opinion (“INFO”) #6B. Employers are encouraged to consult the Division’s “INFOs” webpage for future updates.

Public Health Emergency Leave – apples to all employers, regardless of size, January 1, 2021

In addition to the accrued paid sick leave requirements outlined above, HFWA requires employers* to supplement an employee’s* accrued leave so that, as of the date a public health emergency* is declared, the employee has immediate use of the following amounts of paid leave:

Full-Time Employees (those who normally work 40 hours per week or more): 80 hours

All Other Employees: an amount equivalent to the greater of (1) the amount of hours the employee is scheduled to work in a 14-day period, or (2) the average number of hours the employee usually works during a 14-day period.

Employees may use public health emergency leave for up to four weeks after the official termination of a public health emergency:

    1. to seek preventive care concerning a communicable illness that is the cause of the public health emergency;
    2. to self-isolate and care for themselves due to symptoms of, a diagnosis of, or to seek diagnosis of or treatment for, a communicable illness that is the cause of the public health emergency;
    3. due to determination by a public official or health authority with jurisdiction over the employee’s work location, or by the employer, that the employee’s presence in the community or on the job would jeopardize the health of others because the employee has been exposed to, or is experiencing symptoms of, the communicable illness, regardless whether he or she has been diagnosed. 
    4. to care for a Covered Family Member* who falls under 1, 2 or 3 above;
    5. to care for Covered Family Member whose school or place of care has closed or if a care provider is unavailable due to the public health emergency, including if the school or place of care is physically closed but providing care remotely;
    6. due to inability to work because the employee has a health condition that may increase susceptibility to or risk of the communicable illness that is the cause of the public health emergency

Employees are eligible for the amount of leave described above once during the entirety of a public health emergency, even if the public health emergency is amended, extended, restated or prolonged.

Employers may count an employee’s accrued but unused HFWA paid sick leave toward this entitlement.

When the need for leave is foreseeable and the employee’s workplace has not been closed, the employee must provide the employer with notice of the need for leave as soon as practicable. 

 Employers may not require documentation to support public health emergency leave.

* The definitions of Employer, Employee, Public Health Emergency and Covered Family Member are the same as those under accrued paid sick leave. The accrued paid sick leave Notice to Employees and Recordkeeping requirements outlined above also apply to public health emergency leave.

Georgia Kin Care Law Extended

On June 29 the governor of Georgia signed Senate Bill 408, extending the state’s “kin care” law (GA Code §34-1-10) through June 30, 2023.  The law, which requires employers who provide employees with paid sick leave to allow use of that time to care for covered family members, was originally slated to sunset on July 1, 2020.

Massachusetts Paid Family and Medical Leave (MA PFML) Final Regulations

On July 24 Massachusetts’ Department of Family and Medical Leave (DFML) posted the final version of the revised MA PFML regulations (redline versions identifying the proposed and final changes were also graciously provided). In our May 29 release we highlighted areas where significant changes were proposed – that list is duplicated below, with notable edits made the between the proposed changes and final regulations in italics:

Many of the rules apply to state plan administration and may or may not apply in the same manner under a private plan.

Newly Defined Terms (§2.02)

    • Accrued Paid Leave: Leave earned by or otherwise provided to a covered individual pursuant to a benefit plan or policy offered by an employer or covered business entity including, but not limited to, sick leave, annual leave, vacation leave, personal leave, compensatory leave or paid time off. Accrued paid leave shall not include a (i) disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer or covered business entity.
    • Active Duty
    • Application for Benefits
    • Average Working Week
    • Complete Application
    • Extended Illness Leave Bank: A voluntary program where covered individuals may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under M.G.L. c. 175M
    • Former Member of the Armed Services
    • Good Cause
    • Job Protected Leave: The period of time described in 458 CMR 2.16(1), immediately following the first date on which an employee commences the taking of any type of leave that is associated with a qualifying reason regardless of whether an application for benefits has been submitted to the Department in connection therewith or whether that leave is paid or unpaid. Employees who do not file an application for benefits with the Department, but use any other type of leave, including accrued paid leave or unpaid leave approved by an employer, leave under a (i) temporary disability policy or program of an employer; or (ii) paid family, or medical leave policy of an employer; or (iii) an Extended Illness Leave Bank provided by an employer and taken for a qualifying reason, will be entitled to job protected leave as of the date of commencing such leave and that leave will run concurrently with the leave period provided in M.G.L. c. 175M.
    • Municipality
    • Private Plan Administrator

Definition Changes

Base Period: The last four completed calendar quarters within the previous five calendar quarters immediately preceding the date an application for benefits is filed with the Department for a qualified period of paid family or medical leave. A completed calendar quarter is one for which an employment and wage detail report has been or should have been filed, pursuant to 458 CMR 2.04(1) and (2).

Continuing Treatment by a Health Care Provider:

    • (a)(3): The requirement for treatment by a health care provider means an in-person visit or telehealth visit to a health care provider. The first (or only) in-person or telehealth treatment visit must take place within seven calendar days of the first day of incapacity.
    • (g): Cosmetic treatments or substance abuse disorders are not serious health conditions, unless inpatient hospital care is required or unless complications develop.

§2.08 (10) added: Leave for Substance Use Disorder.

(a) A Substance Use Disorder may be a serious health condition. Family or medical leave may only be taken for treatment for substance use disorder by a health care provider, by a provider of health care services on referral by a health care provider or by a program licensed or approved by the Massachusetts Department of Public Health. An absence because of the employee’s use of the substance, rather than for treatment, does not qualify for leave.

(b) Treatment for substance use disorder does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take leave for treatment. However, if the employer has an established policy, applied in non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance use, pursuant to that policy, the employee may be terminated whether or not they are presently taking leave. An employee may also take leave to care for a covered family member who is receiving treatment for substance use disorder. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance use disorder because the employee has exercised his or her right to take leave.

Covered Contract Worker: A self-employed individual:

(a) for whom an employer or covered business entity is required to report payment for services on IRS Form 1099-MISC;

(b) for whom an employer or covered business entity is required to remit contributions to the Family and Employment Security Trust Fund pursuant to the requirements of M.G.L. c. 175M, §6;

(c) who performs services as an individual entity in Massachusetts;

(d) who resides in Massachusetts; and

(e) who is not classified as an independent contractor pursuant to M.G.L. c.151A, §2.

  • Also, added to §2.03, Covered Business Entities and Covered Contract Workers:  Notwithstanding the requirements set forth in 458 CMR 2.03(1)-(3), self-employed individuals or covered contract workers properly classified in accordance with M.G.L. c.151A, §2 are not considered part of an employer’s workforce.

Financial Eligibility Test:

    • A demonstration that, over the 12 months preceding an individual’s application for benefits with the Department, the individual has received total wages as an employee or payments for service as a covered contract worker from Massachusetts employers or Massachusetts covered business entities that in the aggregate equal or exceed 30 times the individual’s weekly benefit amount as determined under 458 CMR 2.12, and that in the aggregate are not less than the dollar amount calculated annually by the Massachusetts Department of Unemployment Assistance pursuant to M.G.L. c. 151A, § 24(a). Wages received from multiple employers or covered business entities within the base period can be aggregated to determine financial eligibility for leave.

Intermittent leave:

    • Original regulations: An employer may designated a minimum increment for use, not to exceed four consecutive hours.

Proposed: Leave may be taken in 15 minute intervals.

Final: Intermittent leave shall be taken in increments consistent with the established policy of the employer or covered business entity uses to account for use of other forms of leave; provided, however, that the Department will not pay in increments of less than 15 minutes. A covered individual shall not be permitted to apply for payment for benefits associated with intermittent leave until they have 8 hours of accumulated leave time unless more than 30 calendar days has lapsed since the initial taking of such leave

    • For each request for payment associated with intermittent leave, the employee must verify with DFML the hours of leave taken each week in order to receive benefit payments. (§2.10)
    • An employer with an employee who has been approved for intermittent leave must provide DFML the amount of wages or qualified earnings paid to the employee on a monthly basis or at other intervals deemed necessary by DFML. DFML may seek a refund from the covered individual or offset any future benefit payments where DFML has determined that the employee has received wages or qualifying payments from both the employer and from the [State Plan] for the same period. (§2.13)
    • In the event that an employee’s work schedule varies from week to week, the maximum weekly benefit amount will be calculated based on the average of number of hours worked from the two highest quarters of the 12 months preceding the employee’s application for MA PFML benefits. An employee will not be eligible for benefits in excess of the number of hours so determined by DFML. For purposes of intermittent leave, benefits may be prorated on an hourly basis utilizing the average number of hours worked during the 12 months preceding the employee’s application for MA PFML benefits.
    • The benefit year for an employee who received benefits for an intermittent leave will commence, following an approval by DFML for continued benefits, on the Sunday immediately preceding the first absence following the exhaustion of the prior benefit year.

Opt-in Instructions for employers not otherwise required to comply with MA PFML (§2.06)

Partial Exemptions (§2.07(1)(a)-(b)): 

    • An employer may apply for exemption via private plan for medical leave coverage, family leave coverage, or both. Contributions toward the state program will be required for the portion of coverage (medical leave or family leave) not included in the private plan.
    • An employer may not apply for an exemption for only a portion of its covered workforce. All employees and covered contract workers and former employees under [MA PFML] must be included in the employer’s private plan in order to be approved for an exemption.

Application for Exemption Due to Approved Private Plan (§2.07)

    • Coverage under a private plan shall begin for all employees and covered contract workers no later than the first day of the first quarter immediately following the date of approval of the private plan exemption or on the date of hire of the employee or covered contract worker for private plans already approved. Employers or covered business entities that have been approved for a private plan exemption may require an employee or covered contract worker to provide verification of wages earned with an employer or covered business entity in the Commonwealth for purposes of determining whether that employee or covered contract worker meets the financial eligibility requirements. (§2.07(1)(c))
    • In addition to equity in benefits and cost to the state program, private plans must also follow requirements around appeals, notice and basis for benefit calculation. (§2.07(2)(c)-(e))
    • Covered individuals have the right to appeal a claim denial under a private plan with DFML. Claim documentation must be provided by the employer/administrator to DFML within ten business days of a request in connection with an appeal. (§2.07(6))

Non-renewal or Termination of a Private Plan (§2.07(8))

    • The final regulations also add (e) regarding applications for private plan benefits submitted by former employees

Application for State Plan Benefits (§2.08):

    • An individual’s application for benefits may be filed with DFML no more than 60 days before the anticipated start date of leave.
    • Notice must be provided to the employer no less than 30 calendar days prior to leave, or as soon as practicable if beyond the employee’s control.
    • Notice of the need for leave must be made to the employer prior to application to DFML.
    • DFML will notify the employer not more than five business days after an application for PFML benefits is filed. Notification will include the employee’s identifying information, details on the type of leave and applicable dates, and certification provided.
    • An application for benefits will not be processed unless the employee consents to DFML sharing information regarding the application with the employer and healthcare provider.
    • An employer must respond within 10 business days to a request from DFML for relevant claim information such as an employee’s past wages, job description, work schedule and other leave available and taken (increase from 5 days).
    • DFML may allow an employer or its designee to submit an application for benefits on behalf of a covered individual. In order to do so, employers, covered business entities, or leave administrators must be approved by the Department and agree to adhere to all of the requirements prescribed in [regulations §2.08].
    • Leave Entitlement: In the case of multiple births, no more than 12 weeks of leave benefits total are available in a benefit year for this purpose. (§2.08(5)(c))

Process for State Plan Benefit Determinations (§2.09), which includes:

    • Where DFML finds that a covered individual has failed to provide notice of a relevant change in circumstances which would have reduced the amount of benefits paid, the employee will be responsible for reimbursing DFML the amount overpaid within 30 calendar days of the DFML’s request.

Benefit Extensions (§2.10):

    • Following approval of benefits, any change in relevant circumstances that would justify an extension, reduction, or other modification of the period of leave or the amount of benefits, must be communicated to DFML by the employee or the employer within 7 calendar days of the change.
    • A covered individual must apply for and be eligible for benefits in any subsequent benefit year.
    • An employer may seek recertification of the employee’s serious health condition following the expiration of the initial period of incapacity cited in the original healthcare certification, or where an intermittent leave has extended for more than six months from the approval by DFML, whichever occurs first.

Return to Work (§2.11): An employer may request fitness-for-duty certification if the employee is provided with a list of the essential functions of his or her job within 10 business days of the notice to the employer of the approval of leave by DFML, and must indicate that the certification must address the employee’s ability to perform those essential functions (increase from 5 days).

Weekly Benefit Amount (§2.12):

    • The weekly benefit amount for family or medical leave is calculated on the individual’s average weekly wage at the time of the filing of a request for leave, which is determined by the individual’s earnings in the base period as reported to the Massachusetts Department of Revenue. The weekly benefit amount will not change during the term of the approved leave period subject to a prorated or reduced benefit amount.
    • The maximum weekly benefit amount approved by the Department for any individual covered under the [State Plan] shall be 64% of the state average weekly wage. A covered individual with multiple employers or covered business entities is not required to take paid family or medical leave from each employer or covered business entity during a single period of paid family or medical leave.
    • Added to the list of amounts deducted from benefits are benefits received from a private plan and wages received from another employer or through self-employment. (§2.12(6))
    • The weekly benefit amount for a period shall be reduced by the amount of wages, wage replacement, or leave that a covered individual on family or medical leave receives for that period from

a.  any government program or law, including unemployment benefits under M.G.L. c. 151A, or workers’ compensation under M.G.L. c. 152, other than for permanent partial disability incurred prior to the family or medical leave application for benefits;

b.  under other state or federal temporary or permanent disability benefits law; 

c.   a permanent disability policy or program of an employer or covered business entity; or

d.  Unless the aggregate amount a covered individual receives would exceed the covered individual’s average weekly wage, the weekly benefit amount for a period shall not be reduced by the amount of wage replacement that a covered individual on family or medical leave receives for that period from:

          1. a temporary disability policy or program of the employer or covered business entity; or
          2. a paid family or medical leave policy of the employer or covered business entity; or
          3. any wages received from another employer or covered business entity or through self-employment.  

e.  A covered individual’s family or medical leave allotment under 458 CMR 2.08(8) shall be proportionately reduced by the amount of family of or medical leave taken by the covered individual under 458 CMR 2.12(6) for the same any qualifying reason during the benefit year.

f. The weekly benefit amount and/or leave allotment shall be reduced by any paid or unpaid family or medical leave, wages, or wage replacement, that a covered individual on family or medical leave receives from any source for the same any qualifying reason in the 12-month period prior to filing an application for benefits. However, any leave taken by the covered individual for the same qualifying reason prior to January 1, 2021, shall not count against the covered individual’s weekly benefit amount and/or leave allotment.

    • The weekly benefit amount may be reduced where the covered individual has an outstanding tax obligation or has an obligation for child support.
    • The 7 calendar day waiting period may be waived for family leave that immediately follows pregnancy or recovery from childbirth if supported by documentation from a healthcare provider.

Substitution of Employer-Provided Paid Leave (§2.12(8)):

    • Employees who are approved for leave benefits by DFML may choose to use accrued paid leave provided by their employer rather than receive a paid benefit under MA PFML. The accrued paid leave provided by an employer will run concurrently with available MA PFML leave, however MA PFML benefits will not be paid for this period of time.
    • Employers are required to inform employees who choose to use accrued leave paid by the employer that the use of these employer-provided leave accruals will run concurrently with the leave period provided under MA PFML.
    • See also the definition of Job Protected Leave, above

Employer Reimbursement (§2.12(9)):

    • An employer or covered business entity that makes payments to an employee during a period of family or medical leave equal to or greater than the amount required under [MA PFML] will be reimbursed out of any benefits due to the employee or to become due from the Trust Fund by DFML. This does not apply to employers with private plans.
    • To qualify for reimbursement, an employer must make payments from a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or (iii) an extended illness leave bank.  The policy or program or extended illness leave bank must be granted to a covered individual for a qualifying reason under MA PFML that is separate from and in addition to any sick leave, annual leave, vacation, personal leave, or accrued paid leave that is made available to the employee. Employers will not be eligible for reimbursement from DFML for payments to an employee where the employee has elected to utilize accrued paid leave whether it is in lieu of applying for benefits to the Department or supplementary to a (i) temporary disability policy or program of an employer or covered business entity; or (ii) paid family, or medical leave policy of an employer or covered business entity.
    • A voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under MA PFML may be reimbursable under M.G.L. c. 175M, §3(c).
    • In order to be eligible for any reimbursement, employers will be required to produce evidence that payments to an employee for a qualifying reason were consistent with the requirements set forth in [these regulations and MA PFML law].
    •  In no event shall DFML reimburse an employer or covered business entity where the employee has received a benefit from the [State Plan] for the same period of time.
Bernalillo County, NM Employee Wellness Act Effective Date Delay

Mid-June Bernalillo County’s County Manager issued an Emergency Order postponing the effective date of the Employee Wellness Act, which requires employers to allow eligible employees to accrue paid time off to use for any reason, from July 1, 2020, to October 1, 2020.  The county’s website reflects the update, including a revised version of the required poster.

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

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Trion Group, a Marsh & McLennan Agency, LLC Company shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 Trion Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

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