October 18, 2023

U.S. and Canada Updates

Federal Update

Social Security Administration (SSA)

The SSA has released updates for 2024. The cost-of-living adjustment (COLA) will be 3.2% for benefits payable to Social Security beneficiaries starting in January. The taxable wage base is increasing from $160,200 to $168,600. As an FYI, many state benefit programs cap contributions from their respective programs at the maximum Social Security wage base. You can read the press release from the SSA here.

State and D.C. Updates

California

Recently, Governor Newsom signed into law SB 848, which amends the California Fair Employment and Housing Act (FEHA) to require employers with 5 or more employees to provide up to 5 days of leave to employees who experience reproductive loss, and have been employed for at least 30 days prior to experiencing such loss. “Reproductive loss” is defined to include failed adoption, failed surrogacy, miscarriage, stillbirth, and unsuccessful assisted reproduction. It is important to note that this reproductive loss leave is a separate entitlement from other leave reasons that may be available to employees, such as CFRA and PDL. Instead, it acts as a subset of the bereavement leave law to increase an employee’s entitlement to leave.

The reproductive loss leave is unpaid unless an employer already has a policy in place to provide pay or if the employee opts to use any paid leave they are otherwise entitled to, such as accrued or available paid sick leave, vacation, or paid personal leave. Additionally, the leave can be used intermittently, but regardless must occur within 3 months of the loss. If an employee experiences such loss more than once within a 12-month period, an employer is not obligated to provide more than 20 days of reproductive loss leave within that period. Lastly, the law does not have any mentions in regard to permitting employers to request documentation for evidence of entitlement to this leave. This means that asking for documentation that such a leave is necessary is not allowed. This law will come into effect as of January 1, 2024.

Governor Newsom also recently signed SB 616 which increases the number of paid sick days from 3 to 5 (or from 24 hours to 40 hours) under the Healthy Workplaces, Healthy Families Act (HWHFA) of 2014. There are some changes to note:

  • Currently, employers may use a different accrual method as long as an employee has no less than 24 hours of accrued sick leave or paid time off (PTO) by the 120th calendar day of employment or each calendar year, or in each 12-month period. Per SB 616, the alternate accrual method will also require that an employee have no less than 40 hours of accrued sick leave or paid time off by the 200th calendar day of employment or each calendar year, or in each 12-month period.
  • At this time, accrued paid sick days are required to carry over to the following year. However, employers may limit an employee’s use of accrued paid sick days to 24 hours or 3 days in each year of employment, calendar year, or 12-month period. No accrual or carryover is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. “Full amount of leave” means 3 days or 24 hours. SB 616 redefines “full amount of leave” to mean 5 days or 40 hours.
  • Employers are currently not required to provide additional paid sick days if their current policy provides leave for employees that could be used for the same purposes and under the same conditions as the HWHFA. One condition requires employers to provide sick leave or PTO in a manner that results in an employee’s eligibility to earn at least 3 days or 24 hours of sick leave or PTO within 9 months of employment. SB 616 revises that condition so that an employee must be eligible to earn at least 5 days or 40 hours of sick leave or PTO within 6 months of employment.
  • Currently, employers may limit an employee’s total accrual of paid sick leave to 48 hours or 6 days. SB 616 increases the accrual threshold to 80 hours or 10 days.

We will keep a lookout for an updated poster from the Department of Industrial Relations and will share once it’s available.

District of Columbia

The Department of Employment Services (DOES) has released the new maximum weekly benefit for the District’s Paid Family Leave program. The weekly benefit is increasing from $1,049 to $1,118 for claims that begin on or after October 1, 2023. The DOES website notes an updated poster (as of October 1, 2023), however, the link is for the current notice. We’ve let them know and once the site is updated, we will share the new poster with you.

Maryland

Maryland has confirmed the total contribution rate for their Family and Medical Leave Insurance (FMLI) program. The total rate of 0.9% of covered wages will be split evenly between employer and employee, up to the Social Security wage base (currently $160,200 in 2023; $168,600 in 2024). Employers may choose to cover part or all of the employee contributions. Those with 15 or more employees in the state must remit contributions to the program beginning October 1, 2024, and those with fewer than 15 employees need only collect employee contributions.

Employers also have the option to provide an insured or self-insured program. As a reminder, the Maryland FMLI program will go into effect January 2026.

Massachusetts

The Bay State confirmed changes to its Paid Family and Medical Leave program for next year. Effective January 1, 2024, the maximum weekly benefit under PFML will increase from $1,129.82 to $1,144.90. Additionally, the contribution rate will increase from 0.62% to 0.88%. This contribution rate is the total shared cost between employer and employees. In 2023, employees and employers are responsible for 0.318% and 0.312% of the cost, respectively. For 2024, these will increase to 0.46% for employees, and 0.42% for employers.

MA PFML requires that employers provide notice of the program to employees annually. This notice is typically released in October, but at the time of this newsletter, the new version was not available. When it is, we will be sure to update you via our next newsletter. Once the new version of the poster is released, it must be provided to employees this year by December 2, 2023.

Additionally, for benefit applications filed on or after November 1, 2023, employees will be allowed the option to top-up their benefits received from MA PFML to 100% of their wages using available accrued vacation, sick, or other paid time off. Currently, employees are not allowed to use accrued paid time off while receiving benefits, unless it is during the 7-day waiting period. Employers are required to provide employees with this option once November comes along. Please note that benefits applications that are filed on or after November 1, 2023 for retroactive leaves (that began before November 1, 2023) will be eligible for “topping off” with wages from accrued time off. The Department of Family and Medical Leave will be issuing guidance for employers that we will share once it’s available.

New Hampshire

As a friendly reminder, open enrollment for the 2024 New Hampshire Paid Family and Medical Leave program will be held from December 1, 2023 through January 29, 2024. Employers may enroll at any time, however, employees will have the option to enroll in the Individual Plan during this time.

New Jersey

For the second straight year, there will be no employee contributions to the Temporary Disability Insurance (TDI) program. As far as the Family Leave Insurance (FLI) program, employees will contribute 0.09% of the first $161,400 in covered wages with a maximum contribution of $145.26.

Canada Provincial Update

Ontario

You may recall from a previous newsletter of ours in April 2023 that we mentioned Bill 79, the “Working for Workers Act,” had been introduced. We’re happy to finally give the update that the bill passed its third reading and will be receiving royal assent in the coming weeks. Among other affected Acts, the Ontario Employment Standards Act (ESA) will be amended once this bill becomes law. Reservist leave will now be available to employees after at least two consecutive months of employment (previously 3 months), and the leave entitlement can now apply for the purposes of the employee’s treatment, recovery, or rehabilitation due to an illness or injury that results from participation in certain operations/activity in the Reserves.

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