April 1, 2024

Federal, State, and Canada Updates

Federal Update

Department of Labor, Office of Disability Employment Policy (ODEP)

If you have employees who are struggling with Long COVID, the ODEP has many resources available to support you and your employees, such as their Guide for Employers and the Working with Long COVID fact sheet. You can find many more resources on the Job Accommodation Network’s (JAN) Long COVID page, including information on how Long COVID interacts with the Americans with Disabilities Act (ADA), accommodations, and more.

State/Territory Updates

Colorado

As a reminder, you will want to designate someone internally to be the person who receives updates from the Family and Medical Leave Insurance (FAMLI) program when an employee applies for FAMLI leave. Documentation is currently mailed and will now be emailed as well. You can add the designated individual’s contact information in My FAMLI+ Employer. Page 41 of the Employer User Guide has instructions on how to add a contact.

If you missed the March FAMLI webinar hosted by the Colorado Department of Labor & Employment, here is the recording and the slide deck.

Delaware

There’s been a couple of changes to Delaware’s Paid Family and Medical Leave (DE PFML) program since we last covered a summary of the upcoming law. New regulations adopted this year help shed some light on the program’s rules. Both definitions of employee and employer have been clarified, most notably, that an employer needs to have employees physically working within the state. Previously, a covered employee only had to meet the requirement of 1,250 hours of service within the state during the previous 12-month period, but now they must also have worked for their employer for a period of at least 12-months.

We had previously advised that an employer can require or allow an employee to elect to use their unused PTO before accessing PFML benefits. The caveat now is that employers cannot require use of more than 75% of that PTO. Additionally, if PTO is required, it can be counted against the length of the employee’s DE PFML leave. If requiring this coordination of benefits and PTO, employers will need to also provide their employees with a written notice of this requirement. For our clients whom we administer a leave of absence service, fear not, we will include this written notice within our employee introductory letters.

Lastly, these new regulations have specified the instructions around the required employer notice, which will soon enough be available on the PFML website. The notice can be provided electronically to an employee’s work or personal email, and must be provided at least 30 days prior to when payroll contributions start in January 2025. Notice must also be provided at the time of hire, when an employee requests leave, and when an employee’s leave request may qualify under DE PFML.

Oregon

Recently signed by Governor Tina Kotek, the Oregon State Legislature has passed Senate Bill 1515. The bill will make the following changes to how the Oregon Family Leave Act (OFLA) and Paid Leave Oregon (PLO) interact with each other, beginning July 1, 2024:

  • OFLA and PLO will not be allowed to be taken concurrently, rather, OFLA will be in addition to any leave under PLO. PLO will still run concurrently with the federal FMLA.
  • Leave reasons under OFLA will no longer include parental bonding, family care, or medical leave, as these reasons will only be covered under PLO. OFLA will continue to include pregnancy disability leave, bereavement leave, sick child leave, leave to care for a child of the employee or the employee’s spouse or domestic partner, and leave due to the closure of the child’s school or child care provider as a result of a public health emergency.
    • Sick child leave will cover care for a child who is suffering from an illness, injury, or condition that requires home care, for both serious and non-serious health conditions.
    • Bereavement leave will be reduced from 12 weeks to 4 weeks maximum within a 12-month period, still allowing up to 2 weeks of leave for each family member’s death.
  • Currently, PTO usage is permitted with mutual consent from the employer to supplement PLO. Effective July, an employee will be permitted to utilize accrued paid sick leave, accrued paid vacation or any other paid leave offered by the employer concurrently with PLO, so long as the combined amount of accrued paid leave and PLO benefits do not exceed their regular wage.
  • Also under this bill, but effective January 1, 2025, family leave under PLO will now include leave to effectuate the legal process required for placement of a foster child or adoption. Due to this not being available under PLO until January 1, 2025, OFLA will instead cover this leave reason during the period of July 1, 2024 through December 31, 2024.
  • An eligible employee may commence leave under OFLA without prior notice under the following circumstances: an unexpected serious health condition of the employee or of a family member; an unexpected illness, injury, or condition of the employee’s child that requires home care; a premature birth, unexpected adoption, or unexpected foster placement; the death of a family member; or an illness, injury, or condition related to the employee’s own pregnancy or childbirth that disables the employee from performing any available job duties.
    • If the employee does not provide prior notice, they are still required to give oral notice within 24 hours of the commencement of the leave, and written notice within 3 days after their return to work. Oral notice can be given directly by the employee, or another person on their behalf.
    • Employers of large retail, hospitality, and food service industries would be relieved of predictive scheduling penalties if an employee provides less than 14 days’ notice of their need or return from OFLA or PLO leave.

In our previous newsletter, there were other changes to OFLA and Oregon sick leave that went into effect as of March 2, 2024. There’s likely more changes to come as the state continues to try and better align the PLO and OFLA laws, so keep an eye out for our updates as they occur.

Puerto Rico

A public health emergency has been declared in Puerto Rico and it’s not COVID-related. Dr. Carlos Mellado Lopez, Puerto Rico’s Secretary of Health, has issued Administrative Order No. 2024-589 which declares a public health emergency due to a 140% increase in dengue fever cases as compared to last year. Dengue is a viral infection transmitted by the bite of infected Aedes mosquitoes.

The Administrative Order was signed on March 25, 2024 and goes into effect immediately. It will be in effect for 90 days (until June 23, 2024) – if cases continue to increase, the health emergency may be extended further.

Non-exempt employees who have contracted dengue fever or are suspected of having contracted it will have to first use available paid leave from their employer, including accrued sick leave. If further time is needed, they are entitled to up to five additional days of paid leave.

Washington

Senate Bill 5793 has been sent to Governor Inslee for his signature and if signed into law, the bill will expand the state’s paid sick leave law to allow employees to utilize the leave after the declaration of an emergency by a local or state government or agency, or by the federal government.

The bill adds a new “family member” as well as changes to existing “family members” under the law. Employees will be able to take sick leave to care for any individual who regularly resides in the employee’s home, except that it does not include an individual who simply resides in the home with no expectation that the employee would provide care for the individual. “Child” will now include a child’s spouse, “grandchild” is now defined as a child of the employee’s child, and “grandparent” is now defined as a parent of the employee’s parent.

Canada Update

Manitoba

The Manitoba government has introduced Bill 9, “The Employment Standards Code Amendment Act,” which has recently gone through its first reading in the Legislative Assembly. If passed, the Bill would come into force once it receives royal assent and would extend the length of leave for one’s own serious injury or illness from 17 weeks to 27 weeks. This change would align the duration of the leave with that of the federal Employment Insurance (EI) sickness benefits duration. We’ll continue to keep you updated on the bill’s progress as it moves through the legislative process.

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