Statutory Update – COVID-19 Leave Legislation, July 1 Statutory Changes & More

July 1, 2020

COVID-19 Leave Legislation

Federal Guidance

Families First Coronavirus Response Act (FFCRA)

The Department of Labor (DOL) recently posted additional Q&A offering guidance around the use of leave provided under FFCRA for child care during the summer months:

    •  While paid leave under FFCRA is not available simply because a child’s school is closed for “summer vacation”, the unavailability of care – in the form of summer camp or summer enrichment programs in which the child was enrolled, for example – due to COVID-19 may be a qualifying reason for FFCRA leave (#67, 93).  More detailed guidance is available in the DOL’s June 26 Field Assistance Bulletin No. 2020-4.
    • The fact that an employee has been simultaneously working from home and caring for his or her child(ren) successfully to a point does not necessarily disqualify him or her from eligibility for FFCRA leave. The Q&A offers that eligibility may stem from a change in circumstances. (#91)
Return to Work

The Equal Employment Opportunity Commission (EEOC) has updated their FAQ addressing COVID-19 return to work considerations and application of the Americans with Disabilities Act (ADA/ADAAA) and the Rehabilitation Act. The FAQ offer guidance around medical exams (workplace temperature readings and COVID-19 and antibody testing) and employee health-related inquiries, confidentiality of employee health records, hiring practices and discrimination, and managing accommodations for employees who may be at higher risk for COVID-19.  An additional resource is the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, last updated on March 21.

On June 25 the Centers for Disease Control (CDC) added information to its site addressing individuals at high or increased risk of contracting COVID-19, including stating that COVID-19 risk “increases with age” rather than simply identifying age 65 as a threshold, as well as expanding its list of underlying medical conditions that may increase the severity of illness. Employers formulating return to work plans are encouraged to consider this guidance and include procedures to accommodate employees who may be at elevated risk.

On June 18 the DOL’s Occupational Safety and Health Administration (OSHA) released a document titled Guidance on Returning to Work, which provides guidance to employers on appropriate preparations for bringing employees back to work safely, including hazard assessment, basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. This guidance supplements OSHA’s March publication Guidance on Preparing Workplaces for COVID-19 and the White House’s April Guidelines for Opening Up America Again. Additional information specific to COVID-19 may be found on OSHA’s dedicated website.

Leave Donation Programs and COVID-19

On June 11 the Internal Revenue Service (IRS) issued Notice 2020-46, which states that cash payments employers make to qualifying charitable organizations (as defined in IRC §107(c)) providing relief to victims of the COVID-19 pandemic in exchange for sick, vacation or personal leave donated by employees will not be treated as compensation. Employees donating time will not be treated as receiving the value of the leave as income and therefore will not be required to pay taxes on the value (they may not claim a tax deduction, however). Donations must be paid to the selected organization(s) by December 31, 2020.

State and Local Legislation

District of Columbia Coronavirus Support Congressional Review Emergency Amendment Act of 2020

On June 8 the mayor of the District of Columbia signed the Coronavirus Support Congressional Review Emergency Amendment Act of 2020 (B23-0759, now D.C. Act 23-328). Effective June 9, the Act restates and/or replaces previously enacted legislation*. Also, while the provisions of the Act cover a number of topics, the information here is limited to the impact on the District of Columbia Family and Medical Leave Act (DC FMLA) and the Accrued Sick and Safe Leave Act (ASSLA).

COVID-19 Leave under DC FMLA:

    • Allows for 16 weeks of “COVID-19 Leave” during the COVID-19 public health emergency**.
    •  Individuals employed for at least 30 days prior to the request for leave are eligible to take unpaid leave due to an employee’s or household member’s official or healthcare provider-recommended quarantine, or to care for a child whose school or place of care is closed.
    • Applies to employers of all sizes.
    • Employers may require “reasonable” documentation of the need for leave.
    •  Any paid leave provided by the employer counts against the 16 weeks of allowable leave.
    • Employee may elect, but may not be required, to use this leave prior to any other company or statutory leave entitlement.
    • This leave entitlement expires on the date the COVID-19 public health emergency ends.

Paid Public Health Emergency Leave under ASSLA:

Beginning April 10, 2020, and for the duration of the COVID-19 public health emergency**, non-healthcare employers with 50 to 499 employees must provide paid leave for any of the reasons covered under Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave Act (EPSLA):

    • the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
    • the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    • the employee is caring for an individual who is subject to an order as described in #1 or has been advised as described in #2;
    • the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
    • the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees employed at least 15 days prior to leave are eligible.

Leave Entitlement:

    • Full-Time employees: 80 hours
    • Part-Time employees: the usual number of hours the employee works in a two-week period.

Pay: Employees must be compensated at their regular rate of pay. If the employee does not have a regular rate of pay, his or her rate should be determined by dividing the employee’s total gross earnings (including tips, commissions, piecework, or other earnings) during his or her most recent two-week period by the number of hours worked during that period. The employee’s rate may be no less than the District’s minimum wage.

Use:

    • Employees may use public health emergency leave concurrently with or after exhausting other company or statutory entitlement.
    •  If used concurrently, the employer may reduce the payment under emergency leave by the amount provided by other paid leave.
    • If an employee elects to use paid leave provided under this section after exhausting other paid leave, the employer may reduce the number of hours of paid leave an employee may use under this section by the number of hours of paid leave taken under federal or District law or the employer’s policies.
    • Employers may not require more than 48 hours’ notice of the need for leave; in an emergency, the employer must accept “reasonable” notice.
    • Employer may request documentation for absences exceeding three consecutive workdays, but must allow that documentation to be provided at least one week after the end of leave.  However, employers that do not contribute towards an employee’s health insurance premiums may not request certification of leave.

The Act is effective for 90 days, until September 6, 2020.

    • * COVID-19 Response Emergency Amendment Act (B23-0718 / Act 23-247): repealed – signed March 17, effective through May 26 (see our March 29 update for more detail)
    • COVID-19 Response Supplemental Emergency Amendment Act of 2020 (B23-0733 / Act 23-286): repealed – signed April 10, effective through May 26 (see our April 17 update for details)
    • COVID-19 Response Supplemental Temporary Amendment Act of 2020 (B23-0734 / Act 23-323): repealed – signed May 21, effective through June 8
    • Coronavirus Support Emergency Amendment Act of 2020 (B23-0757 / Act 23-326): expired – signed May 27, effective through June 8
    • Another similar bill, the Coronavirus Support Temporary Amendment Act of 2020 (B23-0758), is currently pending – it was sent to the mayor on June 22, with response due July 7.
    • ** “COVID-19 public health emergency” refers to the emergencies declared via Mayor’s Orders 2020-045 and 2020-046 on March 11, including any extensions.
Seattle, WA Paid Sick and Safe Time for Gig Workers

On June 12 the mayor of Seattle approved the Paid Sick and Safe Time for Gig Workers Ordinance (Ordinance No. 126091), which temporarily provides Paid Sick and Safe Time (PSST) to individuals performing “gig” work in Seattle.   

Effective July 13, 2020.

Applies to the following “Hiring Entities” who hire 250 or more gig workers worldwide:

    • Organizations operating as “Food delivery network companies” in Seattle offering prearranged delivery services for compensation using an online-enabled application or platform to connect customers with workers for delivery from eating and drinking establishments, food processing establishments, grocery stores, or any facility supplying groceries or prepared food and beverages for an online order; and
    • Transportation services companies” licensed or required to be licensed under Seattle Municipal Code Chapter 6.310 offering prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a “transportation network company endorsed vehicle,” as defined in SMC Chapter 6.310 (e.g., Uber, Lyft).

Leave Entitlement: 

    • For workers who began working for the hiring entity before July 13, 2020, hiring entities have the choice of one of two methods* for calculating PSST entitlement:
        • Calculating an accrual of 1 day of PSST for every 30 days worked** beginning the later of October 1, 2019 or the commencement of work; or
        • Providing at least 5 days of PSST as of July 13, 2020, following which workers will accrue at least 1 day of PSST time for every 30 days worked** after July 13.
    • Hiring entities may subtract compensation provided for any PSST-qualifying paid leave used between October 1, 2019 and July 13, 2020; this deduction must be itemized in a compensation statement.
    • Workers who commence work on or after July 13, 2020 will accrue 1 day of PSST for every 30 days worked** on or after July 13.
    • Hiring entities may provide PSST in advance of accrual.
    • * The selected option must be filed with the Office of Labor Standards by July 27, 2020.
    • ** A “day worked” is any calendar day that a worker performs services in whole or in part in Seattle.

Use:

    • A worker may use accrued PSST if he or she performed work in Seattle during the 90 days prior to the request for leave.
    • Accrued PSST may be used for any of the following reasons:
        • For the diagnosis, care or treatment of a mental or physical health condition of the worker or a covered family member, including preventive care;
        • If the hiring entity has suspended operations for any health- or safety-related reason, including by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material;
        • When a covered family member’s school or place of care has been closed;
        • For the worker’s or a family (or household) member’s needs resulting from domestic violence, sexual assault or stalking.
    • PSST may be requested for immediate use, including consecutive days, and may be used in 24-hour increments.
    • Hiring entities may require oral or written verification of the need for PSST exceeding three consecutive days, except during a civil emergency proclaimed by a public official in response to COVID-19. The request must be made in a manner that does not result in an unreasonable burden for the worker, or intrude upon the worker’s privacy. The worker must be allowed at least 10 days to provide such verification. 
    • Hiring entities may permit a worker to donate accrued PSST to another worker.

Pay:

    • For each 24-hour day of use, a gig worker is entitled to the average daily compensation (including tips) in his or her highest earning calendar month since October of 2019. 
    • Used PSST must be paid by the later of 14 days from the date of use or the next scheduled pay date. In the event verification is required, the worker must be paid for PSST no later than the next scheduled pay date after verification is provided.

Carryover: Workers must be permitted to carry over at least 9 days of unused PSST from one 12-month benefit period to the next (calendar year unless otherwise defined by the hiring entity in a written policy). A hiring entity may allow a more generous carry over provision.

Termination: If a worker separates from work due to inactivity, deactivation or other reason and recommences work for the same hiring entity within 12 months, the worker is entitled to previously accrued time.

Notification: Hiring entities must provide each worker with:

    • Written notice of rights in a manner sufficient to reach all workers.  This notice must include terms of accrual and use, retaliation protections and complaint procedures.  Hiring entities are responsible for communicating this information to workers regardless whether a model notice is provided, though one is expected.
    • A monthly accounting of accrued, used and available PSST, as well as the applicable compensation rate. This accounting may be provided on the worker’s pay stub, a weekly compensation statement or by electronic means. Hiring entities must retain records for three years.

Employers are prohibited from retaliating against or otherwise impeding a worker from exercising his or her rights under the ordinance.

Expiration Date: Workers may accrue and use PSST until 180 days after the termination of the civil emergency proclaimed by the Mayor on March 3, 2020, or the termination of any concurrent civil emergency proclaimed by a public official in response to the COVID-19 public health emergency and applicable to the city, whichever is latest. The remaining requirements will stay in effect to retain provisions necessary for recordkeeping and enforcement, to the later of three years or December 31, 2023.

Refer to the Seattle’s Office of Labor Standards’ website for more information, including upcoming guidance and the model notice.

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

 

Other Leave News

Statutory Disability and Paid Family Leave Benefit Changes

Effective TODAY (July 1, 2020):

California

    • Paid Family Leave (CA PFL) maximum duration increases from 6 weeks to 8 weeks in a 12-month period.
    • San Francisco Paid Parental Leave (SF PPL) maximum duration increases from 6 weeks to 8 weeks in a 12-month period.

District of Columbia Paid Family Leave (DC PFL) benefits entitlement begins (see our May 29 update for recent information).

New Jersey

    • Temporary Disability Insurance (NJ TDI) and Family Leave Insurance (NJ FLI) benefit percentage increases from 66 2/3% with a maximum of $667 per week to 85% with a maximum of $881 per week.
    • Family Leave Insurance (NJ FLI) maximum duration increases from 6 weeks to 12 weeks in a 12-month period; intermittent allowance increases from 42 to 56 days.

Rhode Island Temporary Disability Insurance (RI TDI) and Temporary Caregiver Insurance (RI TCI) benefit maximum increases from $867 to $887 per week; the maximum with the dependency allowance increases from $1,170 to $1,197 per week.

 

Maryland Healthy Working Families Act Amendment

House Bill 880 amends Maryland’s paid sick leave law effective October 1, 2020 to include a legal ward of the employee and/or of the employee’s spouse, and a legal guardian of the employee’s spouse as covered family members.

Minneapolis, MN Sick and Safe Time Ordinance Upheld

On June 10, 2020, the Minnesota Supreme Court upheld an April 2019 Court of Appeals ruling that the Sick and Safe Time Ordinance applies to employers based outside the city. The Ordinance requires that employees who work at least 80 hours per year within the geographic boundaries of the city be able to accrue up to 80 hours of sick and safe time annually; employers with 6 or more employees must provide this time as paid leave. The Court also held that the Ordinance does not conflict with the state’s Sick and Safe Leave (“kin care”) law.

Philadelphia, PA Domestic Workers Bill of Rights

Effective May 1, 2020, individuals and companies who employ domestic workers are obligated to comply with Philadelphia’s Domestic Worker Bill of Rights (DWBR).  Passed last fall, the law:

Applies to any employer (“Hiring Entity”) as defined by the Pennsylvania Wage Payment and Collection Law (Act No. 329) and the state’s Minimum Wage Act, who employs a domestic worker, as well as any individual, partnership, association, corporation, business trust or combination thereof, that pays a wage or wages for the services of a domestic worker.

    • Includes any entity, person or group of persons that provides compensation directly or indirectly to a domestic worker for the performance of domestic services and any entity, person or group of persons acting directly or indirectly in the interest of the hiring entity in relation to the domestic worker.

Covers all employees, including part-time and temporary employees, as well as independent contractors, who work for one or more employer for the purposes of caring for a child; serving as a companion or caretaker for a sick, elderly or disabled person; housekeeping or house cleaning; cooking; providing food or butler service; parking cars; cleaning laundry; gardening; personal organizing; or for any other domestic service purpose.

    • Excludes family members; house sitters, pet sitters, dog walkers; individuals who work at a business primarily operated out of their residence, such as a home daycare; household repair or maintenance persons, such as roofers, plumbers, and painters; home healthcare workers paid through public funds; and anyone under the age of 18

Assigns minimum protections to workers, including requirements around meal and rest breaks, and paid and unpaid leave:

    • Unpaid leave will accrue at a rate of 1 hour per 40 hours of work, to a maximum of 40 hours per calendar year, and may be used in accordance with the city’s Promoting Healthy Families and Workplaces ordinance:
        • Diagnosis, care or treatment of the employee’s or a covered family member’s health condition, including preventive care;
        • Needs associated with domestic abuse, sexual assault or stalking.
    • Paid leave* will also accrue at a rate of 1 hour per 40 hours of work, to a maximum of 40 hours per calendar year, and may be used for:
        • Replacement of compensation for work time lost due to a change in work schedule or cancellation of planned work time by the employer;
        • “Significant and unexpected” personal matters;
        • Any reason allowed under the Promoting Healthy Families and Workplaces ordinance (listed above); or
        • Any other reason established by regulation.
        • * Important note:  Unlike similar laws (see below), Philadelphia’s DWBR includes a mechanism to allow workers to accrue and carry time across employers. The details of the paid leave compensation system will be developed in future regulations, and the paid leave provisions are not effective until those regulations are adopted.

Requires employers to:

    • Provide workers with notice of their rights, including how to file a complaint (it is expected that a model notice will be provided by the city);
    • Provide workers working 5 hours or more per month (or “on a casual basis”) with a written contract outlining job duties, wages, weekly schedule including the expected number of hours per week, timing and method of payment, breaks for rest and meals, paid or unpaid leave including sick time, paid holidays, transportation or living accommodations, personal time for live-in workers, and any other applicable benefits, terms or conditions so long as no provision negatively impacts the worker’s rights under federal, state or local law.
    • Provide minimum notice of termination, except in cases of misconduct: four weeks for live-in workers and two weeks for all others.
    • Create and maintain records documenting hours worked, pay rate, leave time earned and used, and the existence of a written contract.

Prohibits employers from:

    • Keeping workers’ personal documents, or recording or otherwise monitoring a worker under private circumstances, such as while in his or her own living quarters, during private communications, or while dressing or using bathroom facilities.
    • Retaliate against a worker or in any way interfere with his or her ability to exercise rights under the law.

More information may be found in the text of the law (added as Chapter 9-4500 of The Philadelphia Code). The city has posted resources, including a contract template, to assist employers with compliance – employers are encouraged watch this space for upcoming regulations, especially those addressing paid leave. 

Philadelphia’s law follows in the footsteps of those enacted in ten other jurisdictions, including California, Connecticut, Hawaii, Illinois, Massachusetts, Nevada, New Mexico, New York, Oregon, and Seattle, WA.  Federal bills (S.2112 and H.R.3760) were introduced mid-2019 but appear to have stalled in committee.

Virginia Mandate on Disability Leave Duration Following Childbirth

On April 9, the governor of Virginia signed Senate Bill 567 (now VA Code §38.2-3407.11:4), which requires that insured individual or group disability policies that include maternity benefits provide at least 12 weeks of payable benefit immediately following childbirth. This requirement applies to policies written in Virginia on or after July 1, 2021.

Pregnancy and Lactation Accommodation

Oregon’s Employer Accommodation for Pregnancy Act (ORS 659A.146-148) became effective for employers with six or more employees as of January 1, 2020.  Employers must post notice of the law’s provisions in a conspicuous and accessible location, as well as provide written notice to all current employees by June 29, to new hires and to any employee within 10 days of informing the employer of her pregnancy. More information, as well as the model notice, may be found on the state’s Bureau of Labor and Industries’ website.

South Carolina: On June 25 the governor of South Carolina signed the South Carolina Lactation Support Act (H3200, now Act No. 141), which requires employers to allow employees reasonable break time, paid or unpaid, to express milk, as well as provide a private location other than a restroom in order to do so. Where possible, employees should have this time coincide with scheduled break periods and make reasonable efforts to minimize disruption to the employer’s operations.  Employers are prohibited from discriminating against or otherwise penalizing any employee for exercising her rights under the Act.

The Act is effective July 25, 2020 and will be added as Section 41-1-130 to the SC Code of Laws.  Prior to the effective date the state’s Human Affairs Commission is expected to post pertinent information for employers and employees on its website. Employers must comply with the Act’s requirements within 30 days from the date this information is provided.

Tennessee: On June 22 the governor of Tennessee signed the Tennessee Pregnant Workers Fairness Act (SB2520) requiring employers with 15 or more employees to make reasonable accommodations for medical needs associated pregnancy and childbirth, unless the employer can demonstrate that a particular accommodation presents undue hardship. If the employer requires for other medical conditions, healthcare provider certification may be requested for accommodation related to temporary transfer to a vacant position, job restructuring, light duty, or time away from work. While this certification is being obtained, the employer must engage the employee in an interactive process to determine if a reasonable accommodation can be provided. Employers are prohibited from requiring an employee to take paid or unpaid leave of absence if another accommodation is available, or for discriminating against or otherwise penalizing any employee who requests accommodation. The Act amends Title 50 of the Tennessee Code and will become effective October 1, 2020.

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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