by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
December 19, 2019
Take a deep breath and let’s review what happened in 2019, and what’s coming in 2020. First we will look at legislative activity. In another post we will check in with our favorite federal agencies, the Equal Employment Opportunity Commission and the Department of Labor.
Part 1 – Legislative Activity
In 2019, state legislatures were quite busy on the leave of absence front. Here is a summary of significant bills that were enacted and developments for those already in place:
PAID FAMILY AND MEDICAL LEAVE
California – CA PFL extended, leave reason added. Effective July 1, 2020, CA Senate Bill 83 amended California’s existing Paid Family Leave (PFL) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.
CA Senate Bill 83 also added a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. The pay benefit is new but the law still won’t provide job protection for such leave. Rights to reinstatement for all PFL benefits reasons (bonding, care of a family member, and military exigencies) may be available under other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.
More changes may be on the way. The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.
Colorado – Just a study. Lots of legislative activities that made all of us followers of the paid family leave legislative bandwagon believe Colorado would pass such a bill ultimately resulted in a bill to fund a study to decide whether to enact such legislation in the future.
Connecticut – PFML enacted. CT paid family leave was signed into law in June by the Governor. Premium contributions will start on January 1, 2021, with employee benefits payable effective January 1, 2022. To learn more about the significant provisions of CT PFL, please click here to read our Radar blog post.
New Jersey – changes to existing PFML laws. In February New Jersey enacted significant changes and expansion of its existing Family Leave Act (FLA), Security and Financial Empowerment Act (SAFE Act), and Family Leave Insurance program (FLI). Some of the changes were effective immediately upon passage and others are phased in over the next several months:
- Significant expansion of the types of family relationships for which
employees can take leave or receive benefits pursuant to the NJ FLA,
SAFE Act, and NJ FLI, including removal of the age limit for care of
a covered child with a serious health condition under NJ FLA and
NJ FLI. (Effective February 2019.)
- Lower threshold for covered employers, from employers with 50 or
more employees to those with 30 or more employees. (Effective July 2019.) - Employees who are, or whose family member is, a victim of domestic or sexual violence can now
receive FLI benefits for leaves covered by the SAFE Act. (Effective February 2019.) - Increase in weeks of FLI benefits from 6 weeks to 12 weeks, or from 42 days to 56 days if taken
intermittently. (Effective for leaves commencing on or after July 1, 2020.) - Elimination of the 7-day waiting period before an employee can receive paid leave. (Effective for
leaves commencing on or after July 1, 2019.) - Increase in benefits payments. (Effective for leaves commencing on or after July 1, 2020.) These
changes also apply to the state temporary disability benefits. - Increase in “wages” measurement for calendar years beginning on and after January 1, 2020.
- A NJ employer’s private plan no longer requires approval by a majority of the employees. (Effective
in February 2019.)
For the details, including a handy reference chart of all the changes, check out this Radar post.
Massachusetts – Regulations and other developments. Regulations were finalized in June 2019 and employer/employee contributions started in July, but a lot more information is yet to come. Employers can opt out of the state plan and provide employee benefits through a private plan. The Massachusetts Department of Family and Medical Leave issued a bond form for self-funded private plans and, together with the Department of Insurance, approved a declaration form for insured private plans. Lots of Massachusetts PFML information is available on this blog – just put “Massachusetts” in the search bar.
Oregon – PFML enacted. Signed by the Governor in August 2019, Oregon creates the most generous (to date) leave and benefits, with employee contributions to start January 1, 2022, and benefits as of January 1, 2023. To read more about the salient provisions of Oregon PFML, please click here.
Washington – Ready, set, go! Matrix Radar and our WA PFML team have been furiously tracking the regulations promulgated by the State of Washington in anticipation of the January 1, 2020, 
launch of benefits under WA PFML. We are ready to administer voluntary plans for clients that elected that route. Here is the latest post, but pay close attention to Matrix Radar for all the developments!
Washington news flash! Here is an unsettling piece of breaking news: the WA Employment Security Department, charged with administering the state plan benefits, just released its form for use when an employee seeks leave for his/her own or a family member’s serious health condition. The form does not contain any questions for the provider about intermittent leave usage – no request for estimated frequency and duration. I ask, how will the ESD monitor intermittent leave usage and gauge whether an employee is taking appropriate intermittent leave? We all know that is hard enough under the FMLA and other laws that require this information. The ESD will be administering intermittent leaves in a vacuum.
ORGAN DONATION
California amended its existing organ and bone marrow donation law effective January 1, 2020. Current law provides for 30 days’ paid leave of absence for organ donation and 5 days of paid leave for bone marrow donation. Under the new law, employees are entitled to an additional 30 days of unpaid leave for organ donation. To read more, please click here.
Oregon. Effective January 1, 2020, Oregon’s companion to FMLA, the Oregon Family Leave Act (OFLA) has been amended to allow employees to take leave for “[a]ny period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.” In reality most situations where an employee is serving as an organ or tissue donor are already covered as a serious health condition under OFLA but this removes any doubt that such absences are covered, as well as appointments in preparation for such donation.
New York. Similarly, New York passed a law to include organ donation in the definition of serious health condition under the NY PFL law. We summarized the law, passed in 2018 and effective February 3, 2019, on Matrix Radar here.
LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE
New York. Effective November 18, 2019, this new law requires employers to grant reasonable leave to victims of domestic violence. To read our blog about this important new law and its requirements, please click here.
Puerto Rico. In July, the Governor of Puerto Rico signed legislation effective August 1, 2019, affording employees who are, or whose family members (very broadly defined) are victims of domestic violence, sexual abuse, sexual harassment, or stalking to take up to 15 days of unpaid leave in a calendar year (on a “fractioned” or intermittent basis, too). That law also requires PR employers to provide reasonable accommodations to such individuals, which includes changes in work schedule or location and provides that requested accommodations can only be denied if “unreasonable.”
FLIGHT CREWS
California. Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”). Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews. It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.
PREGNANCY ACCOMMODATIONS
Kentucky. Effective June 27, 2019, SB 18 requires Kentucky employers to consider reasonable accommodations for their employees with “limitation(s)” (but not necessarily disabled in the fashion employers have come to expect) as a result of pregnancy and related conditions. To read more about that law, please click here.
Oregon. Effective January 1, 2020, Oregon employers must grant reasonable accommodations to employees with known limitations as a result of pregnancy, childbirth and related conditions. The Oregon law also requires employers to provide the notice of rights to all employees by July 1, 2020, and within 10 days of an employee providing notice of her pregnancy. Click here to read more.
MATRIX CAN HELP! Matrix will administer all of the above new or expanded leave laws for our clients using Matrix’s FMLA/Leave of Absence services. No client action needed! The laws have been or will be implemented in our system as of the effective date, along with any other updates to scripts, packets, etc. that are needed due to the changes.
Matrix manages pregnancy accommodation laws for clients with our ADA services. The above two new laws will likewise be added to our suite of state and federal pregnancy accommodation laws managed by our ADA Specialists.
Matrix has designed a WA PFML voluntary plan for our participating clients. We have filed and received approval for over 40 such plans. In preparation for January 1 claims, we have made necessary system changes, added WA PFML to our letters and packets, provided extensive training for our claims staff, and held educational webinars for our clients with voluntary plans administered by Matrix. If the thought of the state administering your employees’ claims has you concerned – especially in light of the inadequate medical certification form the state plans to use – contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering or send a message to us at [email protected].