COVID-19 and State/Federal Updates

April 25, 2022

We have a lot to cover this time, but before we get into it, we’d like to share a podcast that we think would be beneficial for those who are involved with disability, accommodations, and the return to work process as well as inclusion and diversity. The podcast is from our friends at the Disability Management Employers Coalition (DMEC) and is titled “Intersectionality: A Valuable Tool to Normalize Disability in the Workplace.” You can find the podcast here.

U.S. Federal Update

Department of Justice (DOJ) – Civil Rights Division

Earlier this month, the DOJ released a Technical Assistance document regarding the Americans with Disabilities Act (ADA) and the opioid crisis as it relates to discrimination against those in treatment or recovery. You can find the document here.

U.S. State Updates

California

Department of Industrial Relations (Cal/OSHA)

The Occupational Safety and Health Standards Board has readopted (3rd time) the COVID-19 Emergency Temporary Standard (ETS) with some changes, of note:

  • Employers are not required to provide testing to returned cases. “Returned case” means a COVID-19 case who returned to work…and did not develop any COVID-19 symptoms after returning. A person would be considered a returned case for 90 days after the initial onset of symptoms or, if the person never developed symptoms, for 90 days after the first positive test.
  • Testing must be offered to all employees with symptoms regardless of vaccination status.
  • Respirators must be offered to all workers.
  • Face coverings are no longer mandatory for unvaccinated workers.
  • Cleaning and disinfection rules have been removed.

The latest rendition of the ETS will take effect as of May 6, 2022 and will likely be in effect through the end of the year. The ETS fact sheets, FAQs, and other resources have not yet been updated – we will monitor and will let you know when updated information is available. You can review the proposed ETS re-adoption document here.

Colorado

The Division of Family and Medical Leave Insurance (DFMLI) now has some great information available on its website for employees and employers.

Employees: Premium and Benefits Calculator and FAQs

Employers: WebinarsSubscribe to the FAMLI NewsletterBreak Room PosterPay Stub Example, and HR Fact Sheet

Delaware

The First State may be the next state to pass a Family and Medical Leave Insurance Program. The Healthy Delaware Families Act (SB 1) has been passed in both the House and Senate and has been sent to Governor Carney’s desk for his signature. Governor Carney is expected to sign the bill. Contributions for this program would begin in January, 2025 with benefits available in January, 2026. Here are pertinent details of the program as it currently stands:

  • Qualifying events include:
    • An employee’s own serious health condition
    • Care for a family member with a serious health condition
    • Bond and care for a new child
    • Qualifying exigency
  • Employees can take a maximum of 12 weeks for parental leave in an application year (defined as the 12-month period as defined in the FMLA); the maximum number of weeks an employee can take for medical and family caregiving (includes qualifying exigency) is 6 weeks in any 24-month period. Employees can take a maximum of 12 weeks of total paid leave in a single year.
  • Applies to employers with 10 or more employees; however, employers with 10 to 24 employees would be subject only to the parental leave provisions of the law.
  • Employers will pay a total contribution of 0.8% for 2025 and 2026 which is allocated as follows:
    • Medical Leave will be 0.40%
    • Family Caregiver Leave will be 0.08%
    • Parental Leave will be 0.32%
  • Employers can deduct up to 50% of contributions from employees or pay the 0.80% themselves.
  • Benefit will be 80% of an employee’s salary or $900 per week, whichever is lower.
  • The law provides job protection and continuation of group health insurance benefits.

Maryland

Maryland is now the 10th state (not including the District of Columbia) to enact a paid family and leave program as the state legislature overrode Governor Hogan’s veto of SB 275 (discussed here in detail). As a reminder, employer and employee contributions for the new program will begin on October 1, 2023 with benefits available on January 1, 2025. We will keep you updated as the development of the program progresses over the coming months.

Oregon

Governor Brown has rescinded the COVID-19 public health emergency (PHE) in the Beaver State. The PHE was slated to be in effect through June 30, 2022, but due to decreased COVID cases and hospitalizations is now rescinded as of April 1, 2022. The end of the PHE affects the Oregon Family Leave Act (OFLA) and amendments made to the law due to the pandemic:

  • Employees can no longer utilize OFLA to care for a child whose school or daycare has closed due to a PHE.
  • The service requirement defaults to pre-pandemic days – employees, once again, will have to work at least 180 days (no longer 30 days) for their employer (and an average of 25 hours per week) to be eligible for OFLA.

Washington

Governor Inslee has signed SB 5649 which makes further changes to the Evergreen State’s Paid Family and Medical Leave (PFML) program which started paying benefits to eligible employees on January 1, 2020. The program is managed by the Employment Security Department (ESD).

  • Employees will be able to claim PFML benefits during the seven calendar days following the death of the family member for whom the employee:
    • Would have qualified for medical leave for the birth of their child; or,
    • Would have qualified for family leave to bond with their child following their birth or placement.
  • PFML benefits for a postnatal period (defined as the first six weeks after birth) must be medical leave (subject to the maximum and minimum weekly benefits, duration, and other conditions and limitations), unless the employee chooses to use family leave during the postnatal period. Certification of a serious health condition is not required for PFML benefits used in the postnatal period.
  • Employees covered under a collective bargaining agreement (CBA) that was in existence on October 19, 2017 are not eligible for PFML benefits until the CBA is reopened, renegotiated, or expired. This exclusion will now expire on December 31, 2023.
  • The ESD will be required to publish, on its website, a current list of all employers that have approved Voluntary Plans.

These changes are effective June 9, 2022.

Canada Provincial Update

British Columbia

As a reminder, employers are required under the Employment Standards Amendment Act (ESA) to grant B.C. employees 5 paid days of leave per year and 3 unpaid leave days for Personal Injury and Illness. Bill 19 received Royal Assent and has thus amended the ESA. The law previously stated that an employee is entitled to 8 personal illness or injury leave days during an “Employment Year.” This definition has now been updated to clarify that the balance of leave will be available during a “Calendar Year.” The amendment to the law took effect on March 31, 2022.

Bill 19 also outlines certain requirements regarding collective bargaining agreements that contain provisions related to Personal Injury and Illness leave. In short, the bill clarifies that the paid personal illness or injury leave requirements of the ESA are the minimum requirements that apply even if a collective agreement contains provisions that meet or exceed those requirements.

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