Q3 ’24: All You Need is Leave [Love]

New State Average Weekly Wage (SAWW)

Each year, Colorado releases an updated State Average Weekly Wage (SAWW) that goes into effect July 1 of that year through June 30 of the following year. The Colorado FAMLI benefit calculation is based on this figure, so when the new SAWW is released, the new FAMLI minimum and maximum benefit amounts are known.

For the period of July 1, 2024, through June 30, 2025, it will increase from $1,421.16 to $1,471.34.

Impacts to the FAMLI weekly benefit amount are as follows:

Not all claimants will be affected equally. For example, those currently receiving the maximum benefit of $1,100 per week will not experience immediate changes.

Other claimants may see a slight increase in their weekly benefits. This adjustment is based on a sliding scale tied to each individual’s average weekly wage compared to the state’s average. Effective July 1, 2024, the first $735.67 of an individual’s average weekly wage will be replaced at a 90% rate, with the remainder replaced at 50%.

For instance, a current FAMLI claimant earning $1,000 per week currently receives $784 weekly. As of July 1, their benefit will increase to $794 per week.

Starting January 1, 2025, the maximum weekly benefit amount (currently $1,100) will increase for new claims to $1,324.21.

Final Rules on Paid Family and Medical Leave

I’m imagining being magically whisked away to Delaware. Hi, I’m in Delaware (if you don’t know the movie I’m referencing, party on, Wayne). Anyways, contributions for Delaware’s Paid Family and Medical Leave program (Healthy Delaware Families Act) begin January 1, 2025, with benefits available January 1, 2026. Please reference our PFML Overview Guide for more details on plan provisions. However, some additional final rules were adopted which became effective June 30. Of note:

• Employers must provide employees with notice of its coordination policy for PTO and PFML benefits. The notice must include:
  • Whether use of unused, accrued paid time off is required prior to accessing PFML benefits;
  • How much unused, accrued paid time off is required to be used before accessing PFML benefits; and
  • Whether the use of accrued paid time off counts towards the total length of leave provided under the HDFA.
  • If PFML leave also qualifies for employer-provided short-term disability, long-term disability, or other paid leave policy, employers may count both the wage replacement amount and the duration of the PFML leave against the benefit amounts and leave duration provided under any of the employer-provided policies.

• If an employer provides a disability or paid leave policy as primary coverage, the PFML benefit payments must be reduced to what the employer-provided policy pays so that the covered individual receives no more than 100% of their average weekly wage. If the PFML is primary, then the employer-provided leave policy supplements the PFML benefit up to no more than 100% of a covered individual’s average weekly wages. If there is no language within the employer’s policy regarding whether the policy is primary or secondary, then the PFML Program will be secondary.
• Employees must provide at least 30 days’ advance notice prior to filing a claim for leave. If the 30 days’ notice is not practicable, notice must be given as soon as practicable. If the leave is foreseeable at least 30 days in advance and employee fails to give advance notice, with no reasonable excuse, the employer may delay coverage until 30 days after the date the employee does provide notice. For the employer to delay the start of leave, the need for leave and approximate date leave would be taken must have been clearly foreseeable.

Paid Leave for All Workers Finalized Regulations (4 Months After the Law Took Effect)

On April 30, 2024, the Illinois Department of Labor (IDOL) published the final regulations interpreting the Illinois Paid Leave for All Workers Act (the “Act”) which took effect on January 1, 2024. Our summary is below.

Qualifying Pre-Existing Paid Leave Policies

The Act includes broad carveout language for employers with pre-existing paid leave policies that provided employees at least 40 hours of paid leave (or the prorated equivalent, one hour for every 40 hours worked) and offered employees the option, at their discretion, to take paid leave for any reason. If an employer’s policy meets these qualifications, the employer would not need to modify its paid time off policy to comply with the Act.

The final regulations stipulate a pre-existing policy must have been enacted prior to January 1, 2024, and have been in effect on January 1, 2024, to qualify. However, employers may modify their pre-existing policies after January 1 so long as they still provide the minimum amount of time required by the law.

Accrual and Carryover of Paid Leave

The Act requires that paid leave accrue at a rate of one hour for every 40 hours worked.

If an employer provides paid leave to employees by accruing the time (compared to frontloading), the Act requires carryover of accrued but unused leave from one 12-month period to the next. A 40-hour carry-over cap can be imposed by employers through a valid written policy.

Using Paid Leave

Employees can determine how much paid leave they want to use, except that employers may set a minimum increment of at least two hours per day.

It is the employee’s choice whether and when to apply paid leave to an absence in the first instance. If the employee has more than one type of leave available to cover an absence, the employer “should” confirm and document which category of leave the employee wishes to draw from.

Employer Notice Requirements

Employers must satisfy the following notice requirements:

• Notice/Workplace Poster: Post an IDOL-provided notice in a conspicuous place on the work premises and include a copy of the notice in a written document, employee manual, or policy. The notice must be provided in English and, if a “significant percentage” of workers are not literate in English, in any other language commonly spoken in the workplace.

• Define 12-Month Period: Designate in writing to the employee at time of hire the 12-month period used for paid leave.

• Policy: Provide a written policy if the employer imposes terms and conditions on employees’ use of paid leave (such as notice requirements). The policy must be made available in English and in any additional language commonly spoken by the employer’s workforce.

• Notice that PTO Policy Used for Compliance: If an employer chooses to credit the paid leave provided for under the Act to an existing paid leave allowance provided by the employer, such policy must be communicated to the employee within 30 days after the start of employment or of the effective date of the policy.

• Initial Notice of Frontloading: If an employer chooses to frontload paid leave in lieu of accrual, the employer must give written notice to the employee informing the employee of how many paid leave hours that employee is receiving on or before the first day of initial employment or on or before the first day of the initial 12-month period.

• The final regulations do not contain any paystub reporting requirements. As originally proposed, the regulations would have required employers to report employee’s paid leave accrual and remaining balance on each paystub and provide these records to the employee upon request.

The proposed regulations had a requirement that employers post “[a] statement, written by the employer, summarizing the employer’s written paid leave manual, handbook, or policy, if the employer has one.” This language has been removed from the final regulations, and the posting requirements have reverted to the IDOL-issued notice.

Voluntary Paid Family and Medical Leave Coverage

Kentucky joined a number of other states by giving insurers the authority to approve PFL products, if the employer would like to voluntarily offer this benefit to their employees. This new law does not require an employer purchase family leave insurance or otherwise provide paid family and medical leave to employees. However, the Act authorizes qualified life insurers to offer paid family leave insurance policies under specified circumstances.

Under the Act, a paid family leave insurance policy may provide leave benefits for an employee to:

• provide physical or psychological care for a family member because of a serious health condition or any other reason specified in the policy;
• bond with a child during the first 12 months after birth, adoption, or placement with the employee for foster care;
• address a qualifying exigency recognized under FMLA for a family member on covered active duty or notified of an impending call to active duty in the armed forces;
• to care for a family member injured in the line of duty as a member of the armed forces or as a first responder; or
• for any other reasons not based on the employee’s disability specified in the policy.

If an employer elects to provide this benefit, a paid family leave insurance policy must:

• include the details, requirements, and length of benefits available for each covered reason for family leave;
• provide at least two weeks of leave during a period of 52 consecutive calendar weeks
• state whether there is an unpaid waiting period for benefits and the terms and conditions of the waiting period;
• state the amount of benefits to be paid for each covered reason for leave;
• provide the definition of and methods for calculating the wages upon which the amount of benefits would be based;
• indicate whether benefits would be subject to offsets for other wages or income and the circumstances under which wages may be offset; and
• state any other limitation, exclusion, or reduction of eligibility for benefits available under the policy.

Paid Family and Medical Leave (Time to Care Act) Delayed – Again

In May 2023, Maryland amended the Time to Care Act and delayed contributions to begin October 1, 2024 (originally scheduled for October 1, 2023) with benefits available January 1, 2026 (originally scheduled to be available January 1, 2025).

Contributions and benefits have been delayed again, now contributions will begin on July 1, 2025, and covered employees will begin receiving benefits on July 1, 2026. The secretary of labor will set the rate of contribution by February 1, 2025. The secretary of labor had set the rate of .90% for employers with at least 15 employees. However, this rate is likely to change due to the updated law. Once set by the secretary of labor, the rate will be in effect from July 1, 2025, to June 30, 2026.

Paid Family and Medical Leave Changes

The legislature made several changes to their program, which will become effective before January 1, 2026, when both contributions and benefits begin. The PFML changes were in the omnibus bill identified as HR 5247 and located now at Article 73 of Chapter 127 – MN Laws.

The basics of the PFML law remain the same – please review our PFML Overview Guide for more detail, but the notable changes are outlined below:

• Added coverage for former employees – qualified employees who are separated from employment for less than 26 weeks may receive MN PFML benefits. Coverage applies until the individual is hired by a new employer or 26 weeks pass, whichever occurs first.
• If an employer provides wage replacement to an employee for weeks that should be paid by the Paid Leave division, the division may reimburse the employer directly for those weeks.
• The contribution calculation for small employers has changed. For employers with fewer than 30 employees and an “EMPLOYER average weekly wage” less than or equal to 150% of the SAWW, the rate is now 75% of the regular rate. Of that, employers pay 25% and employees pay the remainder. It’s unclear what an employer average weekly wage is as PFML regulation traditionally defines ‘employee’ average weekly wage.
• The “initial paid week,” which created a lot of confusion for employers, is not a waiting period. The initial week must be paid retroactively after the applicant has met the seven-day qualifying event and must be paid in the first benefit payment. In other words, the minimum period for which benefits are payable, except for a bonding claim, is a single qualifying event of at least seven calendar days. Therefore, an employee who only needs leave for five days is not eligible. For intermittent leave, “initial paid week” means seven consecutive or nonconsecutive, or a combination of consecutive and nonconsecutive, calendar days from the effective date of leave, of which only days when leave is taken are payable.
• Previously, leave could be taken in increments of one workday. Now, intermittent leave must be taken in accordance with the established employer policy for other forms of leave, as long as the policy allows for increments of at least one workday.
• Since our practice has expertise in assisting clients move into a private plan, we were happy to see some guidance that addresses claim transitions. If moving from private plan to private plan, state plan to private plan, or private plan to state plan. the plan covering the employee when benefits were approved is required to continue paying benefits. If an extension or recertification is required, the employee reapplies with the new plan. If an application for leave is filed by a former employee to a private plan, the plan pays benefits for the totality of the leave. Private plans may not cut off eligibility for a former employee during an approved leave.
• The bill also added offset language stating that eligible employees may receive both PFML and STD benefits and that STD benefits may be offset by PFML benefits paid to the employee pursuant to the terms of the STD policy.

Paid Family and Medical Leave FAQs Available

In May, the state published Frequently Asked Questions Guides interpreting the Paid Leave for employees and their families (Employee Guide) and employers (Employer Guide). Both Guides provide crucial insight into Minnesota’s interpretation and intended implementation of the program.

Paid Family and Medical Leave – Wage Detail & Reporting

Every quarter, employers are required to submit a report that details wages paid to their employees. The Paid Leave division will leverage the existing Unemployment Insurance (UI) Online system to collect wage detail reports for the program. If an employer is covered by the UI program, they will be able to submit a single wage detail file for both programs when they pay their UI taxes. The data used in the UI filing will be used to report wages directly to the Paid Leave program.

If an employer is not covered by the Unemployment Insurance program, they will need to set up a “Paid Leave Only” account. The state will post instructions on their website as soon as Paid Leave Only accounts are available.

The first wage detail reports will be due on October 31, 2024, and will be based on wages paid between July 1, 2024, and September 30, 2024. There is more information on wage detail reporting at: Updated pages to submit and adjust wage detail information / Employers – Unemployment Insurance Minnesota (uimn.org)

Keep in mind, the required reports are for wage detail, premiums do not need to be paid until after the Paid Leave program launches in 2026 and the initial wage detail reports are for informational purposes only. The first premiums for Paid Leave will not be due until April 30, 2026, and those initial premiums will only apply to wages earned between January 1, 2026, and March 31, 2026.

Employers will need to provide the first and last name, social security number, wages paid, and hours worked for each employee. This is identical to information provided to the Unemployment Insurance division.

Pregnancy Accommodation and Parental Leave Law Amendments

The Minnesota legislature made slight adjustments to the state’s pregnancy accommodation law and the pregnancy and parental leave law that will go into effect August 1, 2024. The amendments clarify that when an employee takes leave as a pregnancy accommodation or pursuant to Minnesota’s pregnancy and parental leave law, employers must maintain the employee’s coverage under any group insurance policy, group subscriber contract, or healthcare plan for the employee and any dependents as if the employee was still working. However, employers can continue requiring employees to pay their share of the premium for any such benefits. Additionally, employers may not count any time an employee takes off work to attend prenatal care medical appointments against the employee’s 12-week leave entitlement under the pregnancy and parental leave law.

Earned Sick and Safe Time Leave Amendments

On May 24, the governor signed legislation amending the state’s Earned Sick and Safe Time (ESST) law, nearly six months after the statute took effect. The top changes are outlined below.

• Employers must permit employees to use all paid leave provided to them in accordance with the ESST law when the paid leave may otherwise be used for personal injury or illness. In other words, if an employer provides employees paid leave in an amount beyond the statutory minimum, and the employer permits employees to use such paid leave for personal illness or injury, then the employer must treat the entire paid leave balance as ESST and cannot otherwise restrict the amount of the paid leave it considers ESST.
• Previously, only employees who worked in the state of Minnesota for at least 80 hours in one year were covered by the ESST law. The amendments clarify that an employee is eligible for ESST immediately upon employment, provided the employee is anticipated to work at least 80 hours in one year.
• Employers no longer need to list an employee’s ESST balance on the employee’s earning statement, but employers still need to provide the information in a reasonable format. Instead, employers must provide each employee their total number of ESST hours available and used each pay period on a written or electronic record. If the record is electronic, then the employer must allow employees during working hours to use an employer-owned device to access, and print, their ESST balance.
• Employers can only require employees to provide reasonable documentation establishing their leave is covered by the ESST statute when the absence lasts for more than three consecutive scheduled workdays. Additionally, when ESST is used for an absence due to domestic abuse, sexual assault, or stalking of the employee or the employee’s family member and the employee cannot obtain documentation in a reasonable time or without added expense, the employer must accept a written statement from the employee indicating ESST was used for a qualifying reason as reasonable documentation.
• Employers are not required to permit employees to use ESST in increments smaller than 15 minutes.
• Employees can use ESST for funeral-related reasons, in addition to addressing financial or legal matters “that arise after” a family member’s death.

Paid Prenatal Leave

New York is the first state to mandate a standalone entitlement to paid prenatal leave. An amendment to New York’s paid sick and safe leave law will require employers to provide up to 20 hours of paid leave in a 52-week period for pregnant employees to attend prenatal medical appointments and procedures. This amendment takes effect January 1, 2025, and provides a separate bank of paid, protected leave for pregnant employees beyond existing paid leave entitlements.

The “paid prenatal personal leave” can be used by pregnant employees for healthcare services, testing, or procedures that relate to their pregnancy. The paid leave can be taken in hourly increments.

Paid prenatal personal leave is in addition to paid sick and safe leave (40 or 56 hours, depending on employer size). The statute does not restrict the number of times paid prenatal leave can be taken by a single employee, other than to limit the use to 20 hours in a 52-week period.

COVID-19 Paid Sick Leave Sunset

On July 31, 2025, the COVID-19 Paid Sick Leave Law that has been in effect since March 2020 will end.

This is welcome news to many New York employers desiring to move past COVID-era employment laws and restrictions.

Reminder – OFLA Changes Effective July 1!

Hi friends, we’ve made it! Between SB999, SB1515, and SB1514, Oregon has made it an especially challenging place for employers to operate – just when we think we should go left, we need to go right! As a quick recap, here is a summary of the most significant changes to OFLA that became effective July 1.

• Parental and serious health condition leave (for employee and family member [except child, see below]) are no longer covered under OFLA. Pregnancy disability as well as OMFLA continues to be covered.
• Paid Leave Oregon will no longer run concurrently with OFLA
• Bereavement leave is capped at two weeks per death and four weeks per leave year
• Sick child leave is still covered and expanded to care for a child who is suffering from an illness, injury, or condition that requires home care or who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency
• OFLA temporarily covers two additional weeks of leave for the fostering or adoption process
  • This provision will sunset on January 1, 2025, and effective January 1, 2025, “family leave” under Paid Leave Orgon will include leave to “effectuate the legal process required for placement of a foster child or adoption of a child”

New State Average Weekly Wage (SAWW) and Benefit Maximum for Paid Leave Oregon

Annually, Oregon releases its updated State Average Weekly Wage (SAWW) which is generally effective from July 1 through June 30 of the following year. The Paid Leave Oregon benefit calculation is based on this figure, so when the new SAWW is released, the Paid Leave Oregon minimum and maximum benefit amounts are known.

The Oregon Employment Department has confirmed the State Average Weekly Wage for the period of July 7, 2024 through June 30, 2025, will increase from $1,269.69 to $1,307.17.

Starting Sunday, July 7, 2024, impacts to the Paid Leave Oregon weekly benefit amount are as follows:

Whether your organization utilizes the state plan or an equivalent plan, the legislation dictates that claims established prior to July 7 of this year will have their benefit amounts calculated using the old SAWW, and only new claims (established after July 7) will be calculated using the new SAWW amount. Once established, a claimant’s weekly benefit amount will apply for the entire benefit year, regardless of if the SAWW is updated mid-claim.

Attention Employers Offering Equivalent Plans – Re-Application Requirements

As outlined in the Oregon Statute and Regulations, all employers who are providing the state-mandated PFML coverage through an approved Equivalent Plan must reapply for that Equivalent Plan exemption once per year for the first three years of the program. This annual reapplication is based on the effective date of coverage with the private carrier. The state is providing a 30-day window for this reapplication process, which can be accessed on the FRANCES online portal.

New State Average Weekly Wage (SAWW) and Benefit Maximum for Paid Family Leave

Washington’s average annual wage grew by 5.9% in 2023 to $89,138, according to the state Employment Security Department.

Employment Security uses the average annual wage to calculate paid family and medical leave benefits for new claims filed on or after January 1, 2025. Based on an average weekly wage of $1,714 in 2023, the maximum weekly paid leave benefit will be $1,542 (up from $1,456) for new claims filed on or after January 1, 2025. The minimum weekly paid leave benefit will remain at its current amount, which is $100.