Federal Update
Pregnant Workers Fairness Act (PWFA)
The big news this week is the release of the final regulations by the Equal Employment Opportunity Commission (EEOC) for the PWFA – you can read all 400+ pages here. The final rule and interpretive guidance is effective June 18, 2024. Here are some of the key changes in the final regulations as compared to the proposed regulations:
- Accommodation requests may be made not only for physical and mental conditions originating during pregnancy, but also for pregnancy-related conditions. This includes existing conditions that are episodic in nature, such as morning sickness. It also includes existing conditions that are exacerbated by and therefore related to pregnancy or childbirth such as and not limited to high blood pressure, anxiety, carpal tunnel syndrome, menstruation, or infertility treatment.
- A “known limitation” means the employee or the employee’s representative has communicated to the employer about the limitation. “Limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical condition. “Physical or mental” condition is an impediment or problem that may be modest, minor, and/or episodic.
- A reasonable accommodation under PWFA may include and is not limited to removing one or more essential job functions, temporarily and for the near future. The EEOC has described “temporary” and in the “near future” to mean that a temporary accommodation for a pregnancy or related condition may generally last for up to 40 weeks. It is possible for each new accommodation request under PWFA to be eligible for a new 40 weeks of time. For instance, a pregnant employee requests and is approved for accommodation under PWFA during the pregnancy. Following childbirth, they experience a new limitation and request a new accommodation for it. This new limitation is eligible for up to 40 weeks of temporary accommodation.
- Seeking documentation of an employee’s limitation is not reasonable if:
- The limitation and need for an adjustment or change at work due to the limitation is obvious.
- The employer already has sufficient information about a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs an adjustment or change at work due to the limitation.
- The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing. These are otherwise known as “predictable assessment” accommodations.
- The employee is lactating and needs modifications to pump at work or nurse during their work hours.
- The employer would not ask an employee without known limitations under the PWFA for documentation in that situation normally.
The Larkin Company is on track to begin rolling out administration of the PWFA in mid-May. We will be reaching out to clients in the coming weeks to gather the necessary information to ensure a successful launch of this new accommodation process.
State Updates
California
The Employment Development Department (EDD) has announced the projected 2025 Maximum Weekly Benefit Amount to remain the same as 2024 which is $1,620 per week. Additionally, while the current wage replacement rates are 60% to 70% of wages, the rates are projected to increase to 90% for lower wage earners and 70% for all other covered workers beginning January 1, 2025. Lastly, the State Disability Insurance (SDI) contribution rate is projected to decrease to 1.0% in 2025 from 1.1%. As a reminder, the taxable wage ceiling for SDI was removed in 2024 and should remain the same for 2025. You may review the full disability insurance fund forecast here.
Kentucky
In early April, Governor Beshear signed HB 179 (“Paid Family Leave Insurance Act”) into law. The Bluegrass State joins Arkansas, Florida, Texas, and Virginia who have passed similar laws in recent years (Virginia was the first in 2022). The law went into effect as of April 5, 2024, and authorizes life insurance companies to offer paid family leave insurance policies. As with other similar state laws, adding Paid Family Leave to your policy is optional and not a mandated requirement. As we’ve mentioned previously, each law is a bit different, and we recommend reaching out to your insurance carrier if you would like more information. If you are a Larkin client and decide to add a Paid Family leave Insurance policy in Kentucky or elsewhere, please be sure to let your Larkin Client Success Manager know.
Maryland
We previously mentioned in our newsletter that the Maryland General Assembly was considering a bill which would change the timeline of the Old Line State’s Family and Medical Leave Insurance (FAMLI) program. Recently, this bill was passed. If you recall, contributions would have begun October 2024, with FAMLI benefits becoming available January 2026. With the bill’s passing, contributions for the program will now begin July 1, 2025, with benefits beginning July 1, 2026.
In other news, the Maryland Department of Labor will be hosting a FAMLI 101 webinar series on May 22, 2024 from 2-3PM EST to help introduce the upcoming FAMLI program – you will be able to register here.
New York
Governor Hochul has signed the FY 2025 budget for the Empire State which includes major changes for employers.
New York will become the first state in the country to expand access to prenatal care for pregnant women by requiring employers to provide 20 hours of paid leave that can be taken during pregnancy for medical appointments, procedures, tests, and discussions with healthcare providers. This leave does not impact the employee’s entitlement to Paid Family Leave benefits and is separate from the already mandated paid sick leave law. This leave goes into effect January 1, 2025.
Starting June 19, 2024, employers will be required to provide paid 30-minute breaks for nursing mothers to express breast milk during the workday. Additionally, employers will be required to permit an employee to use existing paid break time or mealtime for time in excess of 30 minutes. Employees will be allowed to express breast milk for their nursing child each time the employee has reasonable need to do so for up to three years following the birth of their child.
And finally, the state’s paid COVID-19 sick leave requirement (for mandatory quarantine or isolation) will come to an end on July 31, 2025.
Utah
Military reservists (of the armed forces of the United States) in the Beehive State will have a new leave entitlement when they enter active duty, active duty for training, inactive duty training, or state active duty. Leave of absence from employment for up to five years must be provided to employees in these situations.
Further, members of the Utah National Guard or the State Defense Force, when ordered to state military service by the governor, will have the same rights and protections as those provided by federal law for activation to federal military service for the duration of their state service not to exceed five years.
Upon satisfactory release from state or federal orders, or from hospitalization as a result of said orders, employees must be permitted to return to their prior employment and have the same rights and protections as provided by federal law as it pertains to seniority, status, pay, and vacation the employee would have had but for their military service.
HB 245 went into effect on March 18, 2024.
Washington
We previously reported that SB 5793 was sent to Governor Inslee for signature. The bill has been signed by the governor and will go into effect on January 1, 2025. As a reminder, the bill expands the state’s paid sick leave law – you can read about the details in our prior newsletter.
Canada Updates
Employment Insurance (EI)
Currently in the House of Commons, is Bill C-59, An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023. Should the Bill reach royal assent, there would be an additional EI benefit available for claimants related to the adoption or placement of a child.
These EI benefits for the adoption or placement of a child would be 15 weeks total, and be payable during a period that begins as early as five weeks prior to the expected placement, or as of the week the child is actually placed – whichever is earlier. The period of which benefits are payable would end 17 weeks after the week of the placement. If the placement is delayed, then the period may extend, but not exceed beyond 52 weeks after the expected week of placement. These weeks of benefits may be divided between two claimants, however no more than the total 15 weeks can be shared, and only one claimant would need to meet the waiting period for benefits. This benefit is in addition to parental EI benefits, meaning parents can still claim parental EI benefits after the adoption benefits have been claimed. As a friendly reminder, parental EI benefits are also shared by the parents.
If an employee is already claiming parental benefits once the adoption benefit becomes available, they may interrupt their parental benefits so they may claim the adoption benefits, with parental benefits resuming afterward. Employers who top-up maternity or parental EI benefits should determine whether their current maternity or parental top-up pay program will also top-up adoption EI benefits.
Federal Employers – Canada Labour Code (CLC)
In addition to the changes to federal Employment Insurance (EI) benefits mentioned above, Bill C-59 will also make several amendments to the Canada Labour Code that would affect federally regulated employers if or when the bill reaches royal assent. The Bill would introduce two new leaves of absence and minor changes to the notification requirements of bereavement leave under the CLC. Here are the details for federal employers:
One of the prospective additions is a leave of absence related to pregnancy loss in respect to the pregnancy of an employee, their spouse or common-law partner, or another person’s pregnancy whom the employee intended to be the legal parent of the child. In the case where a pregnancy does not result in a live birth, this leave would allow an absence of up to 8 weeks in the case of a stillbirth, or 3 days in any other case, and should be taken within the period beginning as of the date of the loss through 26 weeks after that day. Additionally, if the employee has completed at least 3 consecutive months of employment, then they would be entitled to the first 3 days of their leave with pay at their regular rate of wages.
The second addition would be a leave of absence related to the placement of a child, for up to 16 weeks. This leave for carrying out responsibilities related to a placement can only be taken during the period beginning no earlier than 6 weeks before the estimated date of placement and end no later than 17 weeks following the week of the actual date of placement.
The changes to bereavement leave are related to an employee’s notice for the leave. Employees who take the leave are already required to provide a written notice indicating the length of the leave, but once the changes are in effect, they will also need to include the reasons for the leave. If an employee who is on bereavement leave would like to change the length of their leave, they should provide another written notice of the change as soon as possible – however, if the length of the leave is more than 4 weeks, then any desired change to the leave should be prefaced with a notice in writing with at least four weeks’ notice, unless there is a valid reason as to why such advance notice is not possible. If an employee on a bereavement leave of longer than four weeks does not provide notice of their desire to shorten the leave, then employers may postpone the employee’s return to work up to four weeks after the day an employee informs them of a new end date.
We will be sure to update you when this Bill comes into force and notify you of any changes to the details we’ve outlined above.
Alberta
This province’s Occupational Health and Safety (OHS) division has updated the workplace poster that describes how to report workplace health and safety incidents to the Alberta OHS. Find the updated poster here. As a reminder, the poster must be posted in a conspicuous place within the worksite – distributing them electronically is also acceptable.
Prince Edward Island
Previously mentioned in this newsletter, Bill 106 has received royal assent to become law, and will go into effect as of October 1, 2024. The Bill has gone through some revisions in the time between our last update and its passing. Currently, employees in the province are entitled to 3 days of unpaid sick leave per calendar year and only 1 day of paid sick leave following at least 5 years of continuous employment.
Come October, in addition to the 3 days of unpaid leave, an employee would earn 1 day of paid sick leave after 12 months of continuous employment, an additional day after 24 months, and an additional day after 36 months. At maximum, employees with 36 months or more of continuous employment are entitled to earn up to 3 days of paid sick leave in a calendar year, in addition to any unpaid sick leave the employee is entitled to. Unused paid sick days are not to be carried forward to the following calendar year.
As a reminder, once an employee is entitled to paid sick leave, they are able to use this paid time prior to unpaid sick leave. For hourly employees, pay should be calculated at their regular wages for the hours they would have worked if not requesting leave. Salaried employees would be paid at their regular rate of pay for a day of work.
