April 11, 2023

U.S. and Canada Updates

Federal Update

National Paid Family and Medical Leave Program?

Here we go again! We all know the United States is one of a handful of countries that does not provide a national paid family and medical leave program. While it may seem futile, President Biden has again proposed in his fiscal year 2024 budget plan, a national paid family and medical leave program. Biden’s proposal calls for 12 weeks of paid leave for bonding with a new child, caring for a family member, or an employee’s own serious health condition. Also included is paid bereavement leave (3 days). While chances of his budget passing are slim to none, it at least restarts the discussion (once again).

State Updates

Paid Family Leave Insurance

You may have thought voluntary paid leave programs (see New Hampshire and Vermont) are the latest trend in paid leave, but no longer. It appears that adding a family leave insurance amendment or rider to an established group disability or life insurance policy is the newest means to a paid family leave end, these days. Three states have added PFL as a “class of insurance”, meaning insurance carriers can now (as of the effective date of each law) provide insured PFL benefits, in addition to traditional STD benefits. Adding PFL to your group insurance policy within these states is optional, and not a mandatory requirement.

Virginia was the first to make PFL a class of insurance last year when it passed HB 1156, which went into effect July 1, 2022. Then, Arkansas passed SB 111, which goes into effect June 8, 2023. Not to be outdone, Tennessee just enacted SB 454, which will go into effect January 1, 2024. Each law, of course, is a bit different, so we recommend reaching out to your insurance carrier if you would like more information. Please keep your Larkin Account Manager updated if you do add PFL to your group insurance policy. There are other similar bills working their way through their respective legislatures for other states. We’ll keep you posted on these bills.

Larkin Insight – We do not expect many employers to add PFL to their group insurance policy. Our clients typically provide income replacement during PFL leaves by establishing a Leave of Absence Pay program (also referred to as a salary continuation). These programs top up any state PFL benefits, if applicable, up to an employee’s full pay. This ensures that no matter what state an employee is in, they receive income replacement benefits for their family leave. Leave of Absence Pay programs also typically have less paperwork requirements/burden for employees, compared to insured STD PFL programs.

Colorado

As you know, contributions for the Centennial State’s new Family and Medical Leave Insurance (FAMLI) program began on January 1, 2023. Next on the list is the deadline for the first wage reports and premium payments which are due on April 30, 2023, however, there will be a 30-day grace period (you have until May 31, 2023) for the first go around. If you have yet to register on My FAMLI+ Employer, you should do so as soon as possible. This link has all the information you need to register and more.

Unlike other statutory benefit programs that have been enacted in recent years, the FAMLI Act does not allow for retroactive payroll deductions. Therefore, if you have not been deducting your employees’ share of the premium from wages paid after January 1, 2023, you will not be able to deduct missed premiums from future paychecks – employers will be considered as having elected to pay their employees’ share of the premium for those pay periods.

On another note, the state’s military leave law has been amended per House Bill 23-1045. Members of the Colorado National Guard or the reserve forces of the United States may take up to the equivalent of three weeks of work (based on the employee’s regular work schedule) in any calendar year to receive military training. The time is considered an unpaid leave of absence; however, employees may use any paid leave that is available to them. Employees are also entitled to be restored to their previous or a similar position (as long as they are still qualified to perform the duties of their position).

Oregon

As you may also know, contributions for the Beaver State’s Paid Leave Oregon program began on January 1, 2023, as well. Speaking of reports and contributions, the combined payroll report which now includes Paid Leave Oregon is due on May 1, 2023. Go here for support, FAQs and more. Also recently added to Paid Leave Oregon’s many resources are the Taxability fact sheet and Place of performance fact sheet both of which you may find useful.

Canada Provincial Updates

Ontario

Ontario’s Paid Infectious Disease Emergency Leave (Paid IDEL) expired on March 31, 2023. As a reminder, Paid IDEL was available to employees from April 19, 2021, through March 31, 2023. The IDEL was enacted during the pandemic and required employers pay employees for up to 3 days if they missed work for certain reasons related to COVID-19. Read more here.

Although the Paid IDEL has expired, employers may still request reimbursement for paid leave provided to employees while the law was in effect (i.e., for leaves taken up to March 31, 2023). Reimbursement can be requested through the Workplace Safety and Insurance Board (WSIB), for up to $200 per day, for up to three days, per employee. Employers must apply for reimbursement within 120 days of the date that they paid the employee, or by July 29, 2023 (whichever is earlier).

Please note that Ontario’s Unpaid Infectious Disease Emergency Leave is still in effect. This unpaid leave applies when an employee is unable to perform their job duties due to various COVID-19 related reasons. As a reminder, there is no specified limit to the number of days an employee can be on unpaid IDEL. Employers can ask for reasonable evidence to support the leave, but they can’t require a medical certificate. Read more about unpaid IDEL here.

Ontario has also introduced a new bill, Bill 79, which if passed, will amend the Ontario Employment Standards Act (ESA) related to military Reservist Leave. The bill will reduce the number of months of consecutive employment required to qualify for Reservist Leave to two months (it is currently three consecutive months). Further, it would allow Reservist Leaves for an employee who is in treatment, recovery, or rehabilitation in respect of a physical or mental health illness, injury or medical emergency that results from participation in certain Reservist operations or activities.

Bill 79 also contains various non-leave related updates, regarding mass termination requirements, licensing requirements for recruiters of foreign nationals and for third parties who help with the recruitment of foreign nationals, increased fines for corporations convicted of Occupational Health and Safety offenses, and increased fines under the Employment Protection for Foreign Nationals Act (EPFNA).

You can find the proposed bill here. We will keep you posted regarding any updates, such as if/when the law is passed.

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