January 6, 2023

U.S. and Canada Updates

U.S. Federal Update

Pregnant Workers Fairness Act (PWFA)

It was almost two years ago that we last mentioned the PWFA, which is now officially on the books after President Biden signed the Consolidated Appropriations Act, 2023 (H.R. 2617) on December 29, 2022. The law goes into effect June 27, 2023 and applies to employers with 15 or more employees. Historically, pregnancy in and of itself, has not been deemed a disability under the Americans with Disabilities Act (ADA) unless there are complications or limitations that interfere with a major life activity. Along the same lines as the ADA, the PFWA requires employers to make reasonable accommodations for employees (and applicants) with limitations related to pregnancy, childbirth and related medical conditions unless the accommodation poses an undue hardship. However, under the PFWA there need not be complications or limitations that interfere with a major life activity; limitations may be a result of the pregnancy progressing normally. Upon request by an employee, employers would have to conduct an interactive process to determine a reasonable accommodation. The law protects employees against retaliation for having requested an accommodation. Also a part of the Consolidated Appropriations Act, the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, requires employers to provide all employees who are nursing with reasonable time and a private space to express breast milk (for up to one year after the child’s birth). Previously, the Fair Labor Standards Act (FLSA) only required employers to provide reasonable break time and a private space for non-exempt employees.

U.S. State Updates

California

City of Los Angeles

The City of Angels is planning to end the COVID-19 Emergency Declaration on February 1, 2023 which means the Supplemental Paid Sick Leave (SPSL) ordinance, originally issued April 7, 2020 and revised on June 24, 2021, will end two weeks later on February 15, 2023.

Department of Industrial Relations (DIR)

The Golden State’s 2022 COVID-19 Supplemental Paid Sick Leave (SPSL) has indeed expired as of December 31, 2022. Please note that an employee may still receive any remaining SPSL entitlement that extends past December 31, 2022. As an example, if an employee exhibited symptoms of COVID-19 and was recommended to isolate on December 28, 2022, they would be entitled to SPSL even if isolation continues into January, 2023. Employees can still request SPSL to which they are entitled if they have yet to be paid by their employer. Last month, the Occupational Safety and Health Standards Board voted to adopt non-emergency COVID-19 Prevention regulations. The updated regulations are in review with the Office of Administrative Law (OAL) and will go into effect immediately (expected to be approved this month). Once approved, the new regulations will remain in effect for two years. The COVID-19 Emergency Temporary Standards will remain in effect until the OAL has completed its review. This fact sheet from Cal/OSHA summarizes the updates nicely. FAQs and a COVID-19 Model Written Program are coming soon – we will share once they are available. We’ll also keep you updated as to when the new standards are approved and if there are any further changes to note.

Employment Development Department (EDD) – Voluntary Plans

For our clients with Voluntary Plans, the Annual Report of Self-Insured Voluntary Plan Transactions (DE 2568V) and the December 2022/January 2023 bank statements are due on February 15, 2023. The EDD typically sends a reminder in mid-January – rest assured that we are assisting you with these annual requirements. To get a jump start on the DE 2568V, we will be reaching out to you for your 2022 wages. In early February, we will reach out for the bank statements as well as the DE 3D (quarterly contribution return) for the 4th quarter of 2022.

San Francisco – Office of Labor Standards Enforcement (OLSE)

The OLSE has confirmed that the Paid Parental Leave Ordinance (PPLO) wage cap for 2023 is $2,700 per week.

Colorado

Department of Labor and Employment (DLE)

The DLE has released an updated Interpretive Notice & Formal Opinion (INFO) #6B which relates to employer/employee rights and obligations under the Health Families and Workplaces Act. Governor Polis signed an Executive Order in November 2022, which provides for additional medical conditions for which employees can use supplemental Public Health Emergency Leave (PHEL). In addition to COVID-19, employees may use PHEL for the Respiratory Syncytial Virus (RSV), influenza, and other respiratory illnesses. At this point, PHEL requirements remain in effect into February 2023. We will see if federal or state public health emergencies are extended further, which will of course impact PHEL requirements for employers.

New York

Anti-Retaliation

SB1958A was signed by Governor Hochul in December 2022 and goes into effect February 20, 2023. The law prohibits employers from assessing any demerit, occurrence, points, or deductions from an allotted bank of time, which subjects, or could subject, an employee to disciplinary action including failure to receive a promotion or loss of pay, when the employee takes a legally protected absence under federal, local, or state law. Employers are also prohibited from retaliating or discriminating against an employee who makes a complaint about a violation of this law.

Electronic Notices

As we reported here, the legislature passed a bill that requires employers in New York to make all required workplace documents (those that are required to be physically posted in the workplace) available electronically via their website or email. The law pertains to postings required to be physically posted at a workplace pursuant to state or federal law. This bill was signed into law by Governor Hochul and went into effect on December 16, 2022. Employees must also be notified that the notices are available electronically.

Rhode Island

The Department of Labor and Training has released the update to the Temporary Disability Insurance (TDI) contribution rate and taxable wage ceiling for 2023. The employee contribution rate remains at 1.1% and the taxable wage ceiling has increased from $81,500 to $84,000. The maximum contribution will be $924. Further Resources – https://thelarkincompany.com/law-changes/rhode-island/

Canada Provincial Updates

Quebec Parental Insurance Plan (QPIP)

The Quebec maximum insurable earnings (MIE) benefit rates and premium rates for 2023 have now both been released. The premium rates for QPIP in 2023 will remain the same as they are in 2022. Therefore, the premium rate for 2023 is 0.494% for salaried workers and 0.692% for employers. However, the Maximum Insurable Earnings (MIE) are increasing in Quebec from $88,500 to $91,000. This means that the maximum premium for salaried workers will be $449.54 and $629.72 for employers in 2023. Further, because of the maximum insurable earnings increase, the maximum weekly QPIP benefit amount payable to workers when they claim QPIP benefits, has increased. The maximum weekly benefit for the Basic Plan is $1,225, and for the Special Plan, it is $1,312. Also, during weeks 8-32 of the basic plan for shareable parental benefits, the maximum weekly benefit amount is $962 (see the second column and third row of the Pregnancy and Birth table).

Prince Edward Island

Emergency Leave under the Employment Standards Act in Prince Edward Island has become permanent, effective December 10, 2022. The Emergency Leave was originally introduced during the pandemic to provide job-protected leave to employees required to self-isolate under orders made by the Chief Public Health Office. Emergency Leave can now be used for certain types of communicable diseases, including COVID-19. When an employee has been diagnosed with a disease transmitted by respiratory route, such as COVID-19 or influenza, and has been advised to stay home from work by a medical practitioner or nurse practitioner, they can be eligible for Emergency Leave. This leave will provide employees with unpaid leave and job protection for the duration of their contagious period based on the advice of a medical professional.

Nova Scotia

Amendments to Pregnancy Leave In Force (NS)

The Nova Scotia Labour Standards Code has been amended from January 1, 2023, to ensure an employee who experiences the end of a pregnancy can take a protected leave from work. Employees will be able to take an unpaid leave of absence of up to five consecutive working days for a pregnancy which does not result in a live birth or an unpaid leave of up to 16 weeks if their pregnancy ends after the 19th week.

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