COMPLIANCE CORNER
Bye Bye Bye to 2021 and hello 2022. Any other NSYNC fans out there? When we wrapped 2020, we had such optimism for 2021. We have a vaccine! COVID will go away! Ahh, how silly we were. 2021 looked much like 2020, but with its own special kick in the pants—vaccine mandates, new variants, and an even bigger spider web of leave and accommodation laws to navigate.
We thank you for your continued partnership through another challenging year. We very much hope to see you in person in 2022 (I am *this* close to booking a plane ticket for a conference), but no matter what is thrown our way, please know the TPG team is here to provide guidance and insight along the way.
FEDERAL UPDATES
Let’s not talk about COVID, or the ETS, or vaccines. I feel relieved already. But this is COVID-adjacent as more workers shift to remote work. Which leads to this question—when you have employees who work remotely in one state, but the office in which they report into is in another state, how do FMLA and various state leave laws apply? Would you like to learn more? I thought so.
In determining FMLA coverage, an employee who works remotely (75 miles or more from the employer’s office) is covered under FMLA if the office to which the employee reports and from which assignments are made has 50 or more employees working within 75 miles of its location. FMLA regulation 825.111, paragraph (2) states: “An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.”
For state leaves, you will want to consider which state the employee works out of (meaning, where they physically sit). Your remote employees would be subject to the leave laws, including state disability and PFL benefits, in the state in which they live and work, even if their work is assigned out of another office location.
I will use myself as an example. I am a remote employee in Nebraska (currently wearing sweatpants, slippers, and no makeup, but that is not important). However, the division to which I belong is run out of our HQ office in Oregon. Therefore, I am eligible for FMLA because there are more than 50 employees within a 75-mile radius assigned to our HQ location in Oregon. Additionally, I would be potentially eligible for any leave laws that exist in Nebraska (INSERT: NOTHING BURGER). However, I am not eligible for Oregon leave(s) as I do not physically work in the state.
It is important to have work and office locations correctly assigned within your HRIS to ensure proper leave eligibility.
FMLA FAQ
Are employees sick with COVID-19, or who are caring for a family member sick with COVID-19, entitled to FMLA?
It depends. Don’t you love that answer? TPG advises employers have employees fill out a healthcare certification to determine if FMLA and/or other state leaves apply. The completion of the medical certification will guide you in determining if the condition meets the definition of serious health condition under FMLA.
CASE LAW
In my 15 years of working with employees, managers, and HR professionals, I routinely encounter the assumption that employers cannot contact an employee on FMLA, and even that it is illegal to do so. Let me throw down my nope card (any Exploding Kittens fans?).
Let’s lay some groundwork. As a general rule, an employee on leave should be fully relieved of their work and not asked to perform any tasks. However, it is unlikely to be an FMLA violation if an employer makes sporadic calls to an employee asking general questions or to wrap up an assignment on which the absent employee was working. Smith v. Genon and Sherman v. AI/FOCS, Inc. demonstrate where the employer went wrong by asking their employees on protected leave to perform work.
In contrast, in Blank v. Nationwide Corporation, 2021, Blank was demoted as a result of an investigation unrelated to his FMLA leave. The employee was contacted to inform him of the demotion on the day his FMLA was approved. Blank filed an FMLA interference claim, and the court found that employer contact in this circumstance did not constitute interference with the employee’s rights under FMLA.
FMLA interference is typically the result of requiring an employee to work while on leave, refusing to offer leave or failure to respond to leave requests. Minimal contact is fine and if the employee has done something that is actionable, such as needed discipline, that can be addressed.
What about simply checking in? I always encourage managers and HR professionals to periodically touch base with their employees to see how they are. Why, you ask? Because it shows you care, it helps keep the employee stay engaged with their employer, and it gives your employee the opportunity to let you know if they may need workplace accommodations upon return or a leave extension.
Employers should make clear—in writing—to employees on FMLA leave that they are not expected to nor should they perform work, other than simple ministerial tasks.
UPCOMING EVENTS
Get your vaccine cards ready! Your very own Brycie Repphun and Christine Hinnerichs, along with Stephanie Mills-Gallan, an employment attorney specializing in Leave of Absence compliance with Littler, will be presenting IN-PERSON during DMEC’s Compliance Conference in Los Angeles on March 21–24.
We will share our insight on why it is important for employers to separate their paid sick and PTO policies. Due to the constantly evolving nature of mandatory Paid Sick Leave (PSL) laws, a single bucket PTO system is proving problematic. Our workshop is intended to show multi-state employers why they should consider dismantling their PTO policies into a two-bank system and how to do it.
If you are planning to attend, please let your account manager know; we would love to see you there!
STATE UPDATES
CALIFORNIA
COVID-19 Supplemental Paid Sick Leave Expiration
To signal the end of the pandemic (humor me), California’s COVID Supplemental Paid Sick leave expired on September 30, 2021. The law was originally enacted in April 2020 and expired December 31, 2020. California resurrected the law in March 2021, making it retroactive to January 1, 2021. The requirement to provide supplemental paid sick leave has ended; however, if a covered employee was taking supplemental paid sick leave at the time of expiration, the employee can finish taking the amount of leave they are entitled to receive. And let’s be honest folks, with the latest coronavirus variant now circulating in the US, we never know what COVID-related legislation California may throw our way. Additionally, some local supplemental paid sick leave requirements were in effect beyond the September 30 expiration, so employers should review those regulations to ensure compliance.
California Family Rights Act Family Member Definition
California has amended the California Family Rights Act (CFRA) to include coverage for an employee’s parent-in-law. Under CFRA, employees may take leave to care for a parent who has a serious health condition, among other reasons. The law defines parent to mean a biological, foster, or adoptive parent, a stepparent, legal guardian, or other person who stood in loco parentis to the employee when they were a child. The amended law adds parent-in-law to the definition. The expanded definition was effective January 1, 2022.
CONNECTICUT
Paid Family and Medical Leave
Connecticut’s Paid Family and Medical Leave program is LIVE! Beginning January 1, 2022, benefits became available to employees who earned at least $2,325 during their highest-earning quarter within the base period and meet one of the following criteria: presently employed, been employed by an employer in the previous 12 weeks, or are self-employed or sole proprietors who opted into the program. Employees can take leave for their own or a family member’s serious health condition, to bond with a newborn, adopted, or foster child, military exigency or care of a covered service member, organ or bone marrow donation, and safe leave. The maximum weekly benefit is $780 with an increase expected July 1, 2022, to $840. There is no waiting period to receive the benefit and the duration is up to 12 weeks, with an additional 2 weeks if a serious health condition results in incapacity during pregnancy. More details on the program can be found here.
Connecticut Family and Medical Leave
Connecticut’s unpaid Family and Medical Leave Act (CT FMLA) was also revised effective January 1, 2022. Some of the most significant changes include employer coverage if only one employee in Connecticut, employees need to be employed for at least three consecutive months by the employer to be eligible and employees will have an allotment of 12 weeks per leave year (prior to January 1, 2022, employees had 16 weeks over a 24-month period). For those of you who thought you wouldn’t use math past high school (guilty), the CT Department of Labor updated their website to advise how claims transitioning from 2021 to 2022 will be treated.
MASSACHUSETTS
In May 2021, the Massachusetts governor signed legislation providing every full-time employee up to 40 hours (pro rated for part time) of job-protected, emergency paid sick leave for certain COVID-19 reasons, including to obtain the COVID-19 vaccination or to recover from symptoms arising from the vaccination. This entitlement began June 7, 2021, and was set to expire on September 30, 2021, or until the fund is exhausted.
A recent amendment extends the effective period of the leave entitlement to April 1, 2022, or whenever the fund is exhausted
COVID-19 emergency paid sick leave is in addition to all job-protected paid and unpaid time off available to employees under Massachusetts Earned Sick Time Law, any existing employer policy, collective bargaining agreement, or federal law.
MISSOURI
Effective August 28, 2021, Missouri House Bill 432 establishes a new job-protected leave of absence for employees who are victims of domestic or sexual violence or to care for a family or household member who is a victim. The law applies to private employers with 20 or more employees, all public employers, and all employees working in Missouri are eligible for the leave. The leave is available when the employee or the employees’ family or household member needs to seek medical attention; obtain services from a victim’s services organization; obtain psychological care or counseling; participate in safety planning; relocation; or seek legal assistance or remedy. For employers with 50-plus employees, up to 2 weeks of leave are available within any 12-month period. For employers with 20–49 employees, up to 1 week of leave is available in any 12-month period. Leave may be taken continuously, intermittently, or on a reduced work schedule.
The law requires employers to notify employees of their leave rights and post a workplace posting by October 27, 2021. After October 27, newly hired employees must receive notice of their rights at the time their employment begins. During leave, the employer must maintain coverage for the employee and any family or household member under any group health plan. Finally, covered employers must make timely and reasonable safety accommodations.
OREGON
Oregon Family Leave Act Amendments
Oregon Family Leave Act (OFLA) expanded eligibility and leave provisions effective January 1, 2022, during times of a Public Health Emergency. The amendments give eligibility to employees reemployed after a separation or returning after a temporary work cessation within 180 days and expand eligibility and leave entitlements during public health emergencies. The changes are outlined below:
- Allow employees who have a break in service due to termination, temporary furlough, or layoff of 180 days or less to retain their OFLA eligibility and count time prior to break in service.
- Expands eligibility during a public health emergency to employees working at least 30 days immediately prior to taking leave (reduced from 180 days) and an average of 25 hours or more per week during those 30 days.
- Expands the definition of sick child leave to include providing home care to the employee’s child due to the closure of the child’s school or childcare provider because of a public health emergency and allows for certain employer verification.
The definition of Public Health Emergency is more than COVID; it includes natural disasters, bioterrorism, and epidemics.
Oregon Paid Family and Medical Leave Insurance
The formal rulemaking process is officially underway, and the Oregon Employment Department is marching towards a deadline of September 2022 to have all the administrative rules drafted and passed. Do not miss your opportunity to participate in the rulemaking process! The OR PFMLI team will release draft rules in five batches. For each batch, you have the opportunity to attend four publicly-held meetings; two Rules Advisory Committee meetings; and two public hearings. For more information on the formal rulemaking process, access to draft rules, and the dates/times of upcoming public meetings, visit the formal rulemaking site: https://www.oregon.gov/employ/Agency/Pages/OED%20Administrative%20Rules.aspx
WASHINGTON
Beginning January 1, 2022, the Washington Paid Family Leave rate increased from 0.4% to 0.6%. Additionally, employers will pay approximately 27% of the total premium and employees will pay about 73%. This is a change from the prior split of employees paying 63% and employers 37%.
Washington’s Employment Security Department indicated this increase is due to higher usage and reduced payrolls during the pandemic.
Remember to update your withholding rate; otherwise, employers are responsible for the difference during quarterly reporting.
WASHINGTON, D.C.
Universal Paid Leave Amendment
The District of Columbia has temporarily amended the Universal Paid Family Leave program through emergency legislation, which expired on November 20, 2021. These changes are permanent and were effective December 2, 2021. Some important changes associated with these amendments are the removal the waiting period for claims filed on and after October 1, 2021, and within 365 days after the end of the public health emergency; the addition of paid leave for prenatal care for a 2-week duration; increased duration of leave benefit due to own serious health condition from 2 weeks to 6 weeks, effective October 1, 2021; stabilization of the rate maximum at 0.62%; and a restriction on the ability for Short-Term Disability insurers (but not self-insured plans) to reduce benefits based on estimated or actual DC PFL payments, among other things.
The Department of Employment Services provided an updated Paid Family Leave poster; every covered employer must post the updated notice poster by February 1, 2022.
Paid Leave for COVID Vaccines
On November 18, 2021, Mayor Muriel Bowser signed the “COVID Vaccination Leave Emergency Amendment Act of 2021.” The Emergency Act will remain in effect for not more than 90 days, or until February 16, 2022. The legislation ensures paid time off for both COVID-19 vaccination and recovery from side effects.
Employers subject to the Act include private employers with any number of employees in D.C. and requires up to four hours of paid leave (two hours per dose) for employees who are receiving the COVID-19 vaccination or are accompanying their children to receive the COVID-19 vaccination. Employers also must provide up to eight hours of paid leave per injection during the 24-hour period following the two-hour vaccination leave period for employees experiencing side effects or whose child is experiencing side effects and requires care. Employers are not required to provide more than 48 hours of leave in total in a year starting on the effective date of the Act.
Paid leave must be available to any employee who began work for the employer at least 15 days before the request for leave. Paid leave is in addition to any other paid leave an employer provides under an existing leave policy, including under an existing contract or collective bargaining agreement, except a paid leave policy that expressly provides for COVID-19 vaccination and recovery leave and does not reduce other available paid leave. Employers may require employees taking paid leave for vaccination to provide reasonable documentation, such as a vaccination record or other document attesting to the date and time of the vaccination, upon return to work.
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