Statutory Update – Leave News
February 24, 2020
Federal Paid Parental Leave
On December 20, 2019, President Trump signed paid parental leave into law. Originally introduced in 2019 as the “Federal Employee Paid Leave Act” (H.R.1534), the law was rolled out as part of the National Defense Authorization Act (NDAA, S.1790). Effective October 1, 2020, the law provides federal employees covered by the Family and Medical Leave Act of 1993 (FMLA) 12 weeks of paid leave for the birth, adoption, or foster care placement of a child.
District of Columbia Paid Family Leave (DC PFL)
In late December the Department of Employment Security (DOES) pushed back the deadline for employee notification of DC PFL from January 1 to February 1. They also amended the language on their website to more clearly outline the requirements:
All DC employers are required to post the employee PFL notice in their worksites along with other labor law posters by February 1, 2020. In addition, this notice must be provided in electronic or physical form to:
- All employees at least once between February 1, 2020 and February 1, 2021 and at least once a year every following year;
- All new employees hired after February 1, 2020 at the time of hire; and
- Individual employees when the employer receives direct notice after February 1, 2020 of the employee’s need for leave for an event that could qualify for PFL benefits.
The employee PFL notice may be downloaded in several languages from does.DC.gov.
Chicago Paid Sick Leave Amendment
In December 2019, the Chicago’s City Council amended the Minimum Wage Ordinance and redefined the definitions of employer and employee. Effective July 1, 2020, the changes also impact the city’s Paid Sick Leave Ordinance.
- The Paid Sick Leave Ordinance previously defined a covered employer as any employer who employs at least one covered employee and maintains a place of business in the city limits or is required to maintain a Chicago business license. Effective July 1, 2020, a covered employer is defined as a person who gainfully employs at least one employee regardless of whether the employer has a Chicago worksite or is subject to business license requirements.
- The amendment specifically excludes the following from the definition of employee:
- An outside salesperson (regularly engaged in making sales or obtaining orders or contracts for services where most of such duties are performed away from the employer’s place of business);
- A member of a religious corporation or organization;
- A student at, and employed by, an accredited Illinois college or university;
- Motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois; and
- Certain day camp counselors.
The Ordinance, amendments and required notice may be found on the Paid Sick Leave webpage at www.Chicago.gov.
Minneapolis, MN Earned Sick and Safe Time
Minnesota’s Earned Sick and Safe Time Ordinance, originally effective July 1, 2017, requires that notice of rights and responsibilities be provided to employees at the time of hire as well as posted conspicuously in any language spoken by at least 5% of employees. Notice must also be included in written policies, such as an employee handbook, and provided upon request. In addition, beginning January 1, 2020, the new Minneapolis Wage Theft Prevention Ordinance requires that record of accrued, used and available balance of Sick and Safe Time be automatically provided on employees’ pay stubs (see updated Sick and Safe Time FAQ #40-42 and Wage Theft Ordinance FAQ #33). Employers must maintain records of accrual and use for 3 years.
New Jersey Temporary Disability Insurance (TDI)
Last month the governor of New Jersey signed A1449 which, effective May 20, 2020, amends the TDI law by adding organ and bone marrow donation as qualifying reasons for benefits. Leave taken for these reasons is not subject to the 7-day waiting period, and is job-protected, unlike disability leave taken for other reasons.
New Jersey Earned Sick Leave Law (ESLL)
On January 6, 2020, New Jersey’s Department of Labor (DOL) released final rules for the Earned Sick Leave Law, which was effective October 29, 2018. The final rules do not make any significant changes over the original law, the September 2018 proposed rules, or the FAQ, but there are a few items of note from the Recommendations and Response summary preceding the final rules (the rules themselves begin on page 38):
- The original law provides that if an employer’s existing policy grants covered employees paid time off in an amount and manner that meets the requirements for Earned Sick Leave, the employer is not required to provide additional paid leave. However, the final rules clarify that, if an employer chooses to maintain a single paid time off (PTO) bank to comply with the ESLL, the entire PTO bank must comply with the requirements of the law. Employers wishing to deviate from any of the ESLL requirements have the option of splitting their leave policies – an ESLL-compliant policy and a non-ESLL compliant policy for other types of leave (#8-9, #92, #111-112).
Further, if an employer’s PTO policy can be used for vacation, sick and personal purposes and is compliant with the entirety of ESLL, and the employee opts to use all of his or her entitlement for vacation, the employer is not obligated to provide extra time off for sick leave purposes later in the same benefit year (#68; see also #70, #97).
- An employer may not require an employee to use earned sick leave even if the employee is absent from work for a covered reason (#10).
- Non-discretionary bonus payments (i.e., bonus payments measured by or dependent upon hours worked, production or efficiency) should be included in calculation of the employee’s regular hourly wage, similar to how such payments are included in the regular hourly wage for calculating overtime compensation (#5, #67; see also: consideration of overtime pay (#38), as well as calculation for tipped employees (#64, #109), for employees with multiple jobs with the same employer (#66, #91) for piece rate employees (#89, #107) and for employees paid by commission (#108)).
Clarification/confirmation around other topics is included as well, such as impact to collective bargaining agreements (#1, #73, #94); use of ESLL for school-related activities (#4); frontloading benefits and carry over (#6-7); use of ESLL during the TDI waiting period (#11); establishment of and change to a benefit year (#12, #58-59, #87-88, #101, #115); notice of need for leave (#15, #36, #45, #55, #71, #86, #112); blackout dates for ESLL use (#18-23); definition of “employee” as it relates to individuals who work both in and outside NJ (#26, #97, #113); payout of unused time at the end of the benefit year (#39, #56, #84, #117); and increments of use for employees with variable work shifts (#104). Further rulemaking may be forthcoming on some of these.
Additional information may be found on the NJ DOL’s Earned Sick Leave webpage.
New Mexico Paid Parental Leave
On December 31, 2019, the governor of New Mexico signed Executive Order 2019-036, providing state employees 12 weeks of paid parental leave following the birth or adoption of a child. The policy was effective one day later, on January 1, 2020.
Bernalillo County, NM Employee Wellness Act
In early December Trion reported that the Bernalillo County, NM Employee Wellness Act, passed on August 20, 2019, was amended in October by Ordinance No. 2019-29. The Ordinance brought about some concern and confusion by reflecting a change in the law’s effective date, from July 1, 2020, to January 1, 2020. On December 11 Ordinance No. 2019-32 was passed, making no changes to the Act’s provisions but confirming the effective date as July 1, 2020.
Employers will be required to post a notice outlining employees’ rights and responsibilities under the Act in a conspicuous place, in both English and Spanish; a model notice will be provided by the County.
Westchester County, NY Safe Time Leave Law
Effective October 30, 2019 Chapter 586 of the Westchester County Code of Ordinances (the Safe Time Leave Law) provides employees who are victims of domestic violence or victims of human trafficking up to 40 hours of paid leave per year to attend or testify in court proceedings relating to domestic violence or human trafficking and/or to move to a safe location. Safe leave is in addition to sick leave provided for under the County’s Earned Sick Leave Law.
By January 28, 2020, employers must give existing covered employees a copy of the Safe Time Leave Law and written notice of their rights to safe leave; new employees must be provided notice at time of hire. Employers must also display a copy of the Safe Time Leave Law and a poster in English and Spanish in a conspicuous location accessible to employees. Model notices and additional information may be found on the County’s website.
Pittsburgh, PA Paid Sick Days Act
In July of last year Trion reported that, after several years of litigation, Pennsylvania’s Supreme Court upheld Pittsburgh’s Paid Sick Days Act; however, at that time an effective date had not yet been determined. In December it was announced that the Act would go into effect on March 15, 2020. The major provisions of the law are as follows:
|Eligibility||All employers, excluding the US Government and the State of Pennsylvania.
Employees working in the city at least 35 hours per year; only time worked in the city is used to compute accrual. Excludes federal and state employees, members of a construction union covered by a collective bargaining unit, and seasonal employees.
|Accrual||1 hour for every 35 hours worked, up to an annual maximum of 40 hours, beginning the date of employment or the Act’s effective date, whichever is later.
For employers with fewer than 15 employees (total, not only those working in the city), time accrued is unpaid, with a maximum accrual of 24 hours for the first year after the Act’s effective date. After 1 year from the Act’s effective date, time accrued is paid, yet still limited to 24 hours.
Only work performed within the city is required to be included in the computation of accrued sick time.
As an alternative to accrual, employers may “frontload” the maximum hours at the beginning of each year.
|Use||Employees may begin to use accrued time after the 90th day of employment, up to accrual maximums each year, in the smaller of hourly increments or the smallest increment the employer’s payroll uses to account for absences or use of other time. Employers may require no longer than 7 days’ notice for foreseeable leave. Documentation may be requested for absence in excess of 3 days.|
|Reasons for Leave||Employees may use sick time to tend to their own or to a covered family member’s medical needs, including preventive care, or due to public health emergency.|
|Carryover||Carryover of accrued but unused time from one year to the next is required, unless time is frontloaded.|
|Termination||Employers are not required to payout unused time at termination; however, if a terminated employee is rehired within 6 months, previously accrued time must be reinstated.|
|Notice||Employers must display a notice of employees’ rights and responsibilities in a conspicuous and accessible location where any of their employees work, in English, Spanish, and any other primary languages of the employees at the particular workplace. If physical display is not feasible the notice may be provided on an individual basis in the employee’s primary language in a physical or electronic format that is reasonably conspicuous and accessible.|
|Recordkeeping||Records of hours worked and Sick Time taken by each employee must be retained for 2 years.|
Employers who provide paid time off that meets the Act’s requirements are not obligated to provide additional sick time.
Puerto Rico Working Women’s Bill of Rights Act
On January 3, 2020, the Governor of Puerto Rico signed Act No. 9-2020, known as the “Working Women’s Bill of Rights Act”. The Act, codified under Senate Project (PS) 853, restates legal rights previously established and available to female employees in the public and private sectors, including discrimination based upon sex, unjust dismissal, equal pay, paid maternity leave and return-to-work protections (Working Mothers Protection Act), paid breastfeeding breaks, a workplace free of offensive or intimidating behavior, and adequate internal procedures to address sexual harassment complaints.
What new requirement the Act does impose is that all public offices, government agencies, public corporations, municipalities and private employers with two or more employees must post the Women’s Bill of Rights in a place accessible to all employees and visitors. Puerto Rico’s Department of Labor and the Puerto Rico Women’s Advocate Office (“WAO”) will be releasing a model notice in the coming weeks.
Tennessee Paid Family Leave
On January 7, 2020, the governor of Tennessee signed Executive Order No. 11, which grants certain state employees with paid family leave beginning March 1, 2020. The new policy will provide executive branch employees subject to the TEAM Act and eligible for FMLA with 12 weeks of paid leave for reasons consistent with FMLA.
Paid Family Leave Legislation in 2020 (so far!)
The following states have already proposed paid family leave bills during this legislative session, and there will surely be more to come. Your Trion team will continue to track and provide updates when possible.
- Arizona HB2190 (State employees)
- Colorado – In accordance with SB19-188 signed in May of last year, the Family Medical Leave Insurance (FAMLI) task force submitted its final recommendations to the state in January. Proposals taking the task force’s findings into account are expected in the coming months.
- Florida S1194 and H0889
- Hawaii (Caregiver Leave) HB1652
- Indiana HB1427 and SB0034
- Iowa SF195 (carried over from 2019 session)
- Missouri SB565
- New Mexico HB16
- Nebraska LB311 (carried over from 2019 session)
- New Hampshire HB712 (carried over from 2019 session) and SB730
- Ohio HB91 (carried over from 2019 session)
- Oklahoma HB3439 and HB2865
- Tennessee HB1591
- Vermont H107 was vetoed in both 2019 and this year; H612 was introduced January 8 and is in committee
- Virginia HB825, SB770 and HB328
- West Virginia SB65 (carried over from 2019 session) and HB4385
- Wisconsin AB666 and SB596
Please contact your Trion Account Team members for specific questions about these or other updates.