U.S. Federal Updates
National Paid Leave
Well, it appears our dreams of a nationwide paid leave program have been dashed…for now. We’ll see what happens in the future. There are plenty of other updates to go over this time around:
Equal Employment Opportunity Commission (EEOC)
It’s that time again. The EEOC has updated their COVID-19 technical assistance Q&A document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws. The updates center around COVID-19 vaccinations, incentives, religious accommodations, and more. The new and updated questions may be found by searching for the date “10/13/21.”
They’ve also published their own internal form for when their own employees request religious accommodations. This may be a good template if you are developing your own form.
Social Security Administration (SSA)
The SSA has released updates for 2022. The cost of living adjustment (COLA) will be 5.9% for benefits payable to Social Security beneficiaries starting in January. The taxable wage base is increasing from $142,800 to $147,000. As an FYI, many state benefit programs cap contributions for their respective programs at the maximum Social Security wage base.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
You may want to take a look at your military leave policy and, if you do not provide paid leave for military reasons, you may want to reconsider. Merely providing unpaid leave is not sufficient as recent lawsuits have brought to light.
Under USERRA, employees who take military leave are “deemed to be on furlough or leave of absence” and are entitled to “…rights and benefits not determined by seniority as are generally provided by the employer…to employees having similar seniority, status, and pay who are on furlough or leave absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.”
In other words, if you provide paid leave for non-military reasons you should consider doing so for military reasons as well. However, courts have found that the leave types should be comparable. When making this determination, factors include the duration of leave, purpose of the leave, and the ability of the employee to choose when to take the leave. For example, a two-day bereavement leave will not be comparable to an extended USERRA leave.
Department of Fair Employment and Housing (DFEH)
Last week the DFEH released Guidance for California Businesses Regarding COVID-19 Safety Measures and Reasonable Accommodations.
The Colorado Division of Family and Medical Leave Insurance now has a website for its Family and Medical Leave Insurance Program.
A reminder that, as of January 1, 2022, all employers (regardless of size) must provide accrued paid sick time under the Healthy Families and Workplaces Act (HFWA). Currently, the law applies to employers with 16 or more employees. Employees earn paid sick time at a rate of 1 hour for every 30 hours worked and are entitled to earn and use up to 48 hours of paid sick time per year. Employers with a PTO policy that provides an amount of leave that meets the requirements under the HFWA and can be used for the same purposes do not have to provide additional paid sick leave.
An updated poster for 2022 has not been released yet – we will include in a future newsletter once it’s available.
We wanted to point out an important distinction with the upcoming Connecticut Paid Leave program. This program will provide only income replacement benefits to employees and not job protection. Employees will need to meet the requirements under the Connecticut Family and Medical Leave Act (CTFMLA) which are changing for 2022. See our September 12, 2021 newsletter for the details.
Speaking of the details, as we mentioned previously, the leave duration under the CTFMLA will change from 16 weeks in a 24-month period to 12 weeks in a 12-month period starting January 1, 2022. The Connecticut Department of Labor has released guidance to assist employers (or third party leave administrators) with the administration of leaves that cross from 2021 into 2022. Of note, if a leave starts prior to January 2022, the leave duration would be capped at 12 weeks in the applicable 12-month period as of January 1, 2022 even if the leave was approved for the full 16-week duration allowed under CTFMLA in 2021. The general rule of thumb is for an employer (or TPA) to look back over the applicable 12-month period to see if an employee has used any leave and to determine if there is any leave available. The guidance provides examples for employers based on the method used for calculating leave entitlement.
District of Columbia
The Department of Employment Services has released the updated employee notice for 2022. The notice may be found here (scroll to the bottom and click page 2 to download “Notice to Employees 2021”). As a reminder, the poster must be posted in the premises at which any covered employee is employed by February 1, 2022. Additionally, notice must be provided annually to all employees (paper or electronic form), at the time of hire (paper or electronic form), and when an employee requests paid leave (paper or electronic form). The Larkin Company will include the notice in the leave packet we provide to D.C. employees who request a leave of absence.
The Paid Family and Medical Leave program has released updates for 2022:
Contribution Rate: Currently, the rate is 0.4% up to $142,000 with employers (with 50 or more employees in the U.S.) contributing 36.67% and employees contributing 63.33%. Starting January 1st, the rate will increase to 0.6% up to the 2022 Social Security Cap of $147,000. Of that 0.6%, employers (with 50 or more employees in the U.S). will pay up to 26.78% and employees will pay 73.22%.
Maximum Weekly Benefit: Will increase from $1,206 to $1,327.
The State will have more resources available on their website on November 1, 2021. We will monitor the site for an update poster and will share once it’s available.