Federal Update
Equal Employment Opportunity Commission (EEOC)
Pregnant Workers Fairness Act (PWFA)
The EEOC published in the Federal Register today a Notice of Proposed Rulemaking (NPRM) to implement the PWFA, which went into effect on June 27, 2023. The public is able to submit comments to the EEOC regarding the rule, which requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. Input is also requested for the average cost of a pregnancy-related accommodation. Comment is due by October 10, 2023 and you can do so here.
An NPRM is the initial step as to how the EEOC proposes to interpret the PWFA and certain terms in the statute such as “temporary”, “known limitation”, and “essential functions”. It also uses terms such as “uncomplicated” as it relates to pregnancy. There is also insight as to when employers can request medical documentation and an emphasis on the interactive process when an employee requests an accommodation. You can find a summary of key provisions of the NPRM here.
State Updates
Colorado
Department of Labor and Employment (CDLE)
In June, we advised that Colorado had expanded its Healthy Families & Workplaces Act to include additional reasons for which employees may utilize sick leave. As of August 7, 2023, employees can use sick time for bereavement, attending funeral or memorial services and dealing with financial and legal matters that arise after the death of a family member. Employees can also use sick time due to issues arising from inclement weather. The CDLE has released an updated poster that includes these new leave reasons. The poster must be displayed where it is easily accessible to employees, shared (electronically) with remote workers, and provided in other languages as needed (you can find more versions here).
Illinois
Child Extended Bereavement Leave Act (CEBLA)
Governor Pritzker has signed SB 2034 which goes into effect January 1, 2024. The bill expands the Family Bereavement Leave Act by providing unpaid leave time for employees who experience the loss of a child due to homicide or suicide. “Child” is defined as the employee’s biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.
“Large” employers (employing 250 or more employees on full-time basis in Illinois) will be required to provide up to 12 weeks of unpaid leave while “small” employers (employing at least 50 but fewer than 250 employees on a full-time basis in Illinois will be required to provide up to 6 weeks of unpaid leave. Other details:
- Leave may be taken in a single continuous period or intermittently in increments of at least four hours.
- Leave must be completed within one year after the employee notifies their employer of the loss.
- Employers may require reasonable advance notice of the employee’s intention to take leave, unless it is not reasonable and practicable.
- Employers may also require reasonable documentation such as a death certificate, a published obituary, or written verification of death, burial, or memorial services. Employers may also require that the documentation include the cause of death.
- Employees may elect to substitute any period of paid or unpaid leave (including family, medical, sick, annual, personal or employment benefits program) for an equivalent period of leave under this law.
- Employees are entitled to job restoration (same or equivalent position) upon return from leave.
- The law does not extend the maximum period of leave to which an employee is entitled under the Family and Medical Leave Act (FMLA) or any other paid or unpaid leave provided under federal, state, or local law, a collective bargaining agreement, or an employment benefits program or plan.
Employee Blood Donation Act (EBDA) Amended
Back in 2005, Illinois passed the EBDA, signed into law by then Governor Blagojevich. Fast forward to present day and thanks to current Governor JB Pritzker, employees in Illinois will be able to take leave to also donate an organ, effective January 1, 2024. Governor Pritzker has signed HB 3516 which amends the EBDA to include organ donation. Employees will have up to 10 days of leave in any 12-month period to serve as an organ donor (leave for blood donation stays the same with eligible employees entitled to up to one hour every 56 days). Eligibility under law for blood donation and now organ donation is unchanged. Full-time employees who have worked for their employer for at least 6 months or more are eligible.
Victims’ Economic Security and Safety Act (VESSA) Amended
Governor Pritzker has signed HB 2493 that amends VESSA by adding the following leave reasons:
- To attend the funeral or alternative to a funeral or wake of a family or household member who is killed in a crime of violence;
- To make arrangements necessitated by the death of a family or household member who is killed in a crime of violence; or
- To grieve the death of a family or household member who is killed in a crime of violence.
Generally, under VESSA, an employee’s leave entitlement varies by employer size:
- An employee working for an employer that employs at least 50 employees is entitled to a total of 12 workweeks of leave during any 12-month period.
- An employee working for an employer that employs at least 15 but not more than 49 employees is entitled to a total of 8 workweeks of leave during any 12-month period.
- An employee working for an employer that employs at least one but not more than 14 employees shall be entitled to a total of 4 workweeks of leave during any 12-month period.
For the new leave reasons mentioned above, employees are entitled to a total of two workweeks (10 work days) of unpaid leave and the leave must be completed within 60 days after the date on which the employee receives notice of the death of the victim.
You may recall from this newsletter that Illinois passed the Family Bereavement Leave Act (FBLA) that went into effect January 1, 2023. The FBLA only applies to employers who are subject to the FMLA while VESSA applies to all employers. If an employee is also entitled to unpaid bereavement leave under the FBLA, VESSA (as amended) does not create a right for the employee to take unpaid bereavement that exceeds, or is in addition to, the unpaid bereavement leave the employee is entitled to under the FBLA.
Employers may require that an employee provide certification for their leave. We anticipate that the Illinois Department of Labor will update the required VESSA poster and we will share once it’s available.
Oregon
Full speed ahead for Paid Leave Oregon (PLO) which will kick off on September 3, 2023. You may recall that there was a real possibility that the program would be delayed (again) due to solvency issues, but those concerns have been quelled. While benefits start on September 3, 2023, employees can start filing claims through Frances Online on August 14, 2023.
You can find an updated payroll contributions chart here (you’ll need to scroll halfway down the page), which includes the three examples of earnings, contributions, and benefit amounts – this may be helpful for your employees, as well as your own knowledge.
Meanwhile, SB 913 goes into effect on September 24, 2023 and includes language that amends the taxable wage ceiling to match the social security wage cap (currently $160,200). Previously, contributions to PLO were to be capped at $132,900.
Lastly, also from SB 913, employers may permit an employee to use all or a portion of paid sick time, vacation leave, or any other paid leave earned by the employee in addition to receiving paid family and medical leave insurance benefits (to replace an employee’s wages up to 100% of the employee’s average weekly wage. In other words, they can receive more than 100% of their usual wages.
