by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
October 26, 2020
Sometimes it does seem like we are sailing o’er the deep blue sea with all this PFML stuff – so many dangers and unknowns out there! There have been several developments in the various state paid family and medical leave programs in recent months, and more are coming with the approach of the new year. (Please, let it be a new year and not a 2020 Groundhog Day version!)
Here we will summarize developments in various states that have PFML laws in place or are about to, presented in alphabetical order. In this post we are covering only the actual PFML programs, and not special COVID-related paid leave laws. Oh, and we’ll take a look at that pending federal HEROES Act as well. Put on your belt and suspenders to get ready for that one if it passes!
PFML 2020 Overview
We keep this map up to date throughout each calendar year in order to have a graphic view of the status of paid family and medical leave laws and proposed legislation in the United States. Early in 2020 I expected at least 2 or 3 more states to pass PFML legislation. Then COVID hit, and almost everything leave-wise not related to the pandemic ground to a halt. It doesn’t look like any state will enact PFML programs this year except perhaps Colorado. See our Colorado summary below for details on that.
In total, 23 states introduced PFML legislation in 2020 or carried bills over from 2019; of those, only 4 bills remain pending at this time, and none has seen any activity in recent months.
The increases in California Paid Family Leave and San Francisco Paid Parental Leave benefits, each going from 6 to 8 weeks, went into effect on July 1, 2020. CA PFL is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption, while the San Francisco PPL benefits supplement the CA PFL bonding benefits for San Francisco employees. See our prior blog post here.
Coming up, CA PFL will be available for a new qualifying reason effective January 1, 2021. California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
These leaves are not job protected under the CA paid family leave program. However, rights to reinstatement come from other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act. CFRA was recently amended to add military exigencies as a covered leave reason. See our prior blog post on this and other expansions of CFRA https://www.matrix-radar.com/blogs/2020/09/28-1.
After failing for several years to pass PFML legislation, a PFML program is now a ballot initiative that Colorado will vote on this election. Too close to call at this point, but you know we’ll report here if the voters say yea. The proposed program would be funded by employers and employees jointly, would provide up to 12 weeks of leave per year for the typical family and medical reasons (with an additional 4 weeks if the employee experiences pregnancy complications) , and includes the now-ubiquitous provision to allow leave to care for someone who is “like a family member.”
Employee contributions for the Connecticut paid family and medical leave program will start January 1, 2021, with employers required to withhold 0.5% of employees’ wages to fund the program. Benefits start January 1, 2022. The CT Paid Family and Medical Leave Insurance Authority – the agency charged with developing and administering Connecticut’s PFML program – finally seems to be making some progress toward the process for approval of private plans – both insured and self-funded.
The CT PFML law requires approval by a majority of an employer’s Connecticut employees to adopt a private plan to provide benefits. The Authority has issued a template for the “plain language” explanation employers must provide to its employees at least 2 weeks prior to the vote. No details yet on when or how to conduct the vote, but the results must be verifiable by the Authority. Also no details yet regarding how to file for Authority approval of a private plan if the employees vote for approval.
We are monitoring the Authority’s progress very closely, attending all Authority board meetings and reviewing all materials the board issues. These materials, including the plain language template, can be viewed at the Authority’s website page for its October 8, 2020, meeting, here. At Matrix and Reliance Standard, we are ready to assist clients in developing an insured or self-funded CT PFML private plan and can assist with the required employee vote.
District of Columbia
The District’s Universal Paid Leave program started paying benefits on July 1, 2020. The amount of weeks of leave is a bit skimpy compared to other states: 2 weeks for employee’s medical condition, 6 weeks to care for a family member, and 8 weeks for bonding, with a total 8-week cap in a 52-week period. Remember, though, that the DC FMLA also provides up to 16 weeks of unpaid but job-protected leave in a 24-month period for similar reasons (plus an additional 16 weeks for COVID-related reasons). The DC paid leave program is administered by the District; no private plans are allowed.
Action needed! All Massachusetts employers need to take certain actions as we approach the start of PFML benefits on January 1, 2020:
- Employers using the state MA PFML plan: Verify that your contact person is correctly identified in the state’s records.
When an employee submits an application for benefits with the Department of Family and Medical Leave (DFML), the DFML must contact the employer to confirm the details and obtain necessary information. The DFML is asking each employer to verify the correct contact person and contact details. A copy of the notice being sent can be reviewed here: https://mailchi.mp/657cf7bd8b0c/action-required-preparing-for-massachusetts-paid-family-and-medical-leave-8140810?e=dd4c39ea55.
Who should be identified? This is the person within your organization who will be responsible for managing MA PFML leaves and benefits and responding to the DFML ‘s requests for information such as employee wages and hours worked, prior leaves taken, whether the employee will receive other pay during the period of leave, your company’s leave policies, etc.
To verify that the right person is identified and that contact information for that person is correct, log onto https://www.mass.gov/forms/leave-administrator-contact-information. The DFML requests that all employers accomplish this by October 31 so that they will not miss any important notices relating to employee claims or otherwise.
A note to employers using Matrix as a leave and/or disability administrator but providing MA PFML benefits through the state plan: The individual to be identified for this purpose is not Matrix Absence Management or any of our employees. If you have elected to provide benefits through the state plan, Matrix is not involved in managing claims under that plan. Moreover, much of the information the DFML will seek is not accessible to Matrix. Of course, Matrix will assist upon request by providing information we do have, such as prior leaves taken by the employee an administered by Matrix.
- Renewals of private MA PFML plans – insured or self-funded: All employers with private MA PFML plans must renew their plans annually. The DFML has given an extension for renewing insured plans to the period November 30-December 31 – and not sooner! Employers with self-funded private plans must file a renewal prior to the expiration of their current plan. Usually filing a month ahead should be adequate time for DFML to approve the renewal.
As you may recall, an employer can file a private plan with the DFML at any time, and it will go into effect on the first day of the calendar quarter following approval. There are many advantages to private plans, especially for larger employers. If you want to consider this option, please contact your Matrix or Reliance Standard account manager.
Pre-filing of MA PFML Bonding Claims. In anticipation of an influx of PFML claims starting January 1, 2021, the DFML announced it would start accepting PFML claims for bonding with a new child on December 2, 2020 – although benefits will not start until January 1. However, recent communications from the DFML indicate they may not be quite ready by December 2, but they do still expect to be able to accept bonding claims in December. Matrix and Reliance Standard will likewise be ready to accept bonding claims for private plans sometime in December.
Reminders: The increase in New Jersey Family Leave Insurance (FLI) benefits from 6 weeks to 12 weeks became effective July 1, 2020. See our prior blog post here.
In addition, NJ FLI was expanded effective March 25, 2020, to include as covered leave reasons the closure of a child’s school or the quarantine of a family member due to an epidemic of a communicable disease. More details are here. Unlike many other COVID-related leave legislation passed this year, these provisions do not have a sunset date and are written broadly enough to have effect during a pandemic of a communicable disease other than COVID-19.
No new disability or paid family leave developments here – although lots of COVID-specific activity earlier this year. See our prior blog post about New York’s paid sick/quarantine leave.
Under Oregon’s PFML program, employee/employer shared contributions will start on January 1, 2022, and benefits will on January 1, 2023. Lots of time! Oregon is doing a great job of getting organized, with various topical work groups (e.g., benefits and “equivalent” – private – plans) and biweekly town halls. You can read our summary of the Oregon PFML law here, and be sure to watch this space for more details as the program develops.
Rhode Island Senate Bill 2831 is still pending, with no activity since March 2020 (why is that not surprising?). If passed, this bill would expand RI Temporary Caregiver Insurance benefits (basically, paid family leave) from 4 weeks to 6 weeks effective January 1, 2021 and then to 8 weeks effective January 1, 2022. The current RI legislative session adjourns January 4, 2021, so there’s still time for some action.
Ah, Washington! This PFML program continues to be the problem child among paid leave programs. A few ongoing problems:
- Scanty notice requirements for an employee taking WA PFML – the employee only has to tell the employer the anticipated timing and duration of the leave.
- A serious lack of information available to employers from the Employment Security Department (ESD) about the specific time and reasons an employee is taking off work.
- Very slow ESD response times to employee claims, answering telephone calls on their Customer Care line (sometimes over 3 hours of hold music!), and email inquiries (my last email was not answered for almost 3 months).
But sadly, nothing new in Washington. We hope neighboring Oregon is not thinking the Washington program is all they brag that it is!
The federal Health and Economic Recovery Omnibus Emergency Solutions Act (the HEROES Act – ain’t that cute?), HB 6800, has passed the House and is the subject of much negotiation at this writing. As is pertinent to this blog, the bill proposes many substantial changes to the Families First Coronavirus Response Act (FFCRA) enacted on March 18.
Remember the FFCRA? In short, it expands the FMLA to provide job-protected leave when an employee is unable to work (or telework) because the employee’s child’s school or place of care has been closed due to COVID-19, and provides up to 80 hours of paid sick leave for 6 qualifying reasons related to COVID-19. FFCRA is set to expire on December 31, 2020. If you want to read up on the details, go back to our initial blog post on FFCRA here, or enter FFCRA in the search box above for several additional FFCRA posts.
If HB 6800 or something derived from it passes, we’ll report in more detail. In the meantime, here is a rundown of some of the key leave-related provisions:
- Extends the expanded FMLA to December 31, 2021;
- Expands the family members for whom an employee can take the covered leave, adding to the usual parent, child, or spouse to include siblings, next of kin, grandparents, grandchildren, parents-in-law, domestic partners, and others whose close association with the employee is the equivalent of a family member;
- Expands the covered employer threshold to include employers with 1 or more employees;
- Expands the leave reasons for expanded paid FMLA to include reasons similar to those for the FFCRA’s emergency paid sick leave:
- Self-isolate due to employee’s COVID-19 diagnosis;
- Comply with a recommendation or order by a public health official or health care provider to self-isolate;
- Care for a family member who is self-isolating or seeking diagnosis or treatment for COVID-19;
- Care for the employee’s child when an employee is unable to work (or telework) because the employee’s child’s school or place of care has been closed due to COVID-19 (currently the ONLY reason for expanded FMLA under the FFCRA); and
- Care for a family member incapable of self-care because of a mental or physical disability or who is a senior citizen because the family member’s place of care is closed
- Specifies that the 12 weeks of expanded FMLA (with all the new leave reasons) is in addition to the 12 weeks of unpaid leave an eligible employee is entitled to under the regular FMLA.
- Addresses several other aspects of the FFCRA, such as maximum amount of pay available, intermittent leave, and the nature, timing, and content of certification to support leave.
Emergency Paid Sick Leave
The HEROES Act also expands the Emergency Paid Sick Leave provisions of the FFCRA:
- Extends emergency paid sick leave to December 31, 2021.
- Expands “covered employer” to include employers with 1 or more employees;
- Allows the 80 hours of paid leave to be taken “in any 12-month period” rather than just once;
- Allows intermittent leave usage without requiring employer consent;
- Clarifying that an employee gets a new paid sick leave entitlement when starting employment with a new employer.
Holy cow! That’s a lot of expansion, all on the backs of employers! You can review the HEROES Act here – scroll down to Division L for these leave-related provisions.
Matrix can help!Overwhelmed? Don’t be. It’s unreasonable to expect you’re going to be expert on every state, every moment – in the middle of a pandemic, an election season and the rough seas of change. We will get through it together. We think about, research, plan and develop service support for every new leave program as it’s developed, so you have a safety net and peace of mind. Contact your Reliance Standard or Matrix account manager with questions, and keep watching this space for more information!