During the last year and a half almost all employers have experienced employees moving away from their usual office or work location, some temporarily and some permanently (and still others planning on a temporary move that could end up permanent). While keeping track of your employees these days can be an arduous task, it is very important when it comes to contributions to the appropriate state benefit programs, providing required notices, state leave law entitlement, sick leave requirements, payroll taxes, unemployment insurance obligations, and so on and so forth. Let’s not forget about employees who move out of the country which can add even more complexity to the situation.
We would like to encourage you to keep an open dialogue with your employees and their managers, and stress that any moves be communicated promptly. A remote work agreement and/or policy is always a good idea. States with statutory benefit programs often require registration and quarterly reports of employee wages. We have some specific information below for Connecticut and Massachusetts as it relates to contributions for those state leave of absence benefit programs.
We recommend checking the website of the state in which your employee works (even if the move is expected to be temporary) to understand your full obligations as an employer, and if you have questions, check with the applicable state, or your payroll vendor or tax expert.
U.S. Federal Update
Department of Labor (DOL)
Happy belated birthday to the Amercians with Disabilities Act (ADA), which turned 31 years old this week. To celebrate, the DOL released guidance on “Long COVID” as a disability under the ADA. Those with this condition are commonly referred to as “long-haulers.” Essentially, Long COVID is a physical or mental impairment that can substantially limit one or more major life activities. However, Long COVID isn’t always disabling and an individual assessment is necessary to determine if an individual’s condition is substantially limiting a major life activity.
U.S. State Updates
Speaking of contributions, you may recall that contributions began for the Connecticut Paid Leave Program on January 1, 2021 (the program goes live on January 1, 2022). In our June 4, 2021 newsletter we mentioned that the Connecticut Department of Labor (CT DOL) was allowing a “special, one-time only” authorization for catch-up deductions for employers who had not taken deductions beginning in January. Well, apparently that one-time authorization wasn’t so special after all. The catch-up period has been extended again – employers now have through September 30, 2021. The catch-up period is a defined period of time in which employers may deduct an additional 1%, in addition to the statutory 0.5%, from employee wages if they did not begin taking deductions in January. After September 30, 2021, employers will need special permission from the CT DOL to take paid leave deductions in excess of the statutory 0.5%. Employers will ultimately be responsible for any contribution shortfalls. If you need to register for the program, you can go here to find more information.
As a reminder, if you have employees working in the Commonwealth of Massachusetts, you will need to register with MassTaxConnect (Registering with MassTaxConnect) and make the required employee and/or employer contributions to the Massachusetts Paid Family and Medical Leave (PFML) program. Here is a link to the MA PFML Employer Toolkit which provides employers with information regarding PFML contributions, employee wage reporting requirements, and other employer obligations.
Reporting employee wages and contributions to the Commonwealth is a requirement under the PFML law. Importantly employees cannot apply for PFML benefits until their employer is registered with MassTaxConnect.
The Land of 10,000 Lakes recently passed two bills that include accommodating applicants and employees with a disability as well as those experiencing a pregnancy- or childbirth-related health condition(s).
HB 63 went into effect as of July 1, 2021 and requires employers (with 15 or more employees) to engage in the interactive process with an applicant or employee with a disability in order to determine reasonable accommodation(s). Employers would have to demonstrate if an accommodation would impose an undue hardship.
Included in SB 9, which will go into effect as of January 1, 2022, is the requirement that employers (with 15 or more employees) provide reasonable accommodation to an employee for health conditions related to pregnancy or childbirth. Again, employers would have to demonstrate if an accommodation would pose an undue hardship. A pregnant employee would not have to obtain the advice of a healthcare provider or certified doula nor would the employer be able to claim undue hardship for the following accommodations:
- More frequent restroom, food, and water breaks;
- Seating; and,
- Limits on lifting over 20 pounds.
Employers cannot require an employee to take leave or accept an accommodation that they did not request.
Employers (and third-party administrators) will have more time to prepare for Oregon’s Paid Family and Medical Leave Insurance program. Earlier this week, Governor Brown signed HB 3398 which essentially delays the program by one year. Originally due by September 1, 2021, rules for the program will now be due by September 1, 2022. Employee and employer contributions to the program slated to begin January 1, 2022, will now begin January 1, 2023.
The program was due to go live as of January 1, 2023, but now employees will not be able to file for benefits until September 2023.
Let’s face it, the Washington Paid Family and Medical Leave (PFML) program has been…interesting. There is an aspect of the PFML program that we wanted to point out as it may not be well known or understood. Many, but not all, leave laws require the continuation of group health insurance (GHI) for employees on leave. PFML takes it a bit further to keep us on our toes. PFML itself does not require the continuation of GHI unless the employee’s leave is running concurrently or at some point during the leave overlaps with the Family and Medical Leave Act (FMLA). Pretty straightforward, right? But, what if, for example, an employee is eligible only for PFML when their 16-week leave begins and the employer’s policy for GHI continuation is 8 weeks (i.e., GHI coverage is terminated after 8 weeks of leave). Let’s say the employee hits their 1-year work anniversary and is FMLA-eligible as of week 10 of their leave. Guess what? GHI coverage must be reinstated once they become FMLA-eligible (not retroactive to the start of the non-FMLA leave). It makes sense since FMLA requires GHI continuation while an employee is on FMLA leave (see Section 825.209) and is something to keep on your radar.
A quick reminder regarding the PFML program: Starting August 1, 2021, assistance will be available to certain employees and employers. Employees who were unable to meet the 820 hours worked requirement in 2020 due to the COVID-19 pandemic may be eligible for pandemic leave assistance grants. Claims with an effective start date in 2021 through March 31, 2022 may be eligible. Certain grants are available to assist small employers impacted by the pandemic. This temporary amendment expires on June 30, 2023.