by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
April 18, 2022
We’re off to a grand start for paid family and medical leave developments in 2022. In this post we’ll share:
- Our up-to-date map showing 2022 state PFML legislative activity
- The new Virginia law authorizing private paid family leave insurance independent of a state program
- The just-passed Maryland PFML law
- Amendments to the existing Washington PFML statute
- A word on those intriguing PFML plans in New Hampshire and Vermont
At Matrix we keep this map up to date in real time as state PFML legislative activities develop. You can always get the latest copy from your account manager or by emailing us at [email protected].
As you can see, although the feds failed to pass a paid leave law, state legislatures have been very busy in the PFML world in 2022. At least 23 states have introduced PFML legislation of some kind – and counting. So far Maryland is the only state to pass a PFML program (see summary below) but the year is young yet! If you need more detail about the state programs that are paying benefits or are in the implementation phase, check out our “statplans” document here: Statutory Disability and Paid Family Leave Laws https://www.reliancestandard.com/statplans/. Every blue and green state on the map is summarized (well, Maryland may take a couple more days but coming soon!).
Virginia’s New Idea
Is this the beginning of a trend? Virginia has passed Senate Bill 15 that enables insured paid family leave products independent of any PFL statute. In summary:
- The law is effective July 1, 2022.
- It establishes paid family leave insurance as a class of insurance available in Virginia.
- The benefit can be written as an amendment or rider to a group disability income policy, included in a group disability income policy, or written as a separate policy.
- The policy may offer paid leave benefits to cover an employee’s loss of income due to:
- the birth of a child or adoption of a child by the employee;
- placement of a child with the employee for foster care;
- care of a family member who has a serious health condition; or
- circumstances arising out of the fact that the employee's family member who is a service member is on active duty or has been notified of an impending call or order to active duty (commonly referred to as “qualifying exigencies”).
- There are no requirements regarding:
- the duration of benefits that must be offered;
- the percentage of wage loss to be covered;
- which family members must be included in the family care benefit; or
- other details we are used to seeing in state mandated PFML or PFL programs.
This insurance product is entirely voluntary – no carrier is required to offer such a policy, and no employer is required to buy it or make it available to employees.
At this point there is no Virginia paid family leave or paid family and medical leave program, although current Senate Bill 1 proposes such legislation. That bill appears to have been tabled until 2023 and legislators would have to do some fancy footwork to coordinate this new voluntary insurance product with a traditional (if there is such a thing) state-mandated paid family and medical leave program.
Maryland’s New PFML Law
Speaking of “traditional” paid leave laws, Maryland has passed a PFML law of the type we are more used to seeing: that is, a state-run program mandatory for most or all employers, usually with private plan options. Maryland Senate Bill 275 was passed by the state legislature but vetoed by Governor Hogan with a letter criticizing the bill as “an irresponsibly crafted, rushed piece of legislation that unfairly penalizes” small business owners. The legislature enacted the bill with a veto override on April 9, 2022. The law has some gaps and unusual provisions, and industry chatter has it that an additional bill will be introduced in 2023 to fix some of the perceived problems.
Here is a brief summary:
- Contributions start October 1, 2023
- Benefits start January 1, 2025
- Covered employers: all with 1 or more employee, but employers with fewer than 15 employees do not have to pay the employer share of contributions
- Employee eligibility: 680 hours worked in prior 12 months – but the law does not specify whether the 680 hours must be worked for the employer from whom leave is sought, or hours from which contributions were withheld, or even hours worked within the state of Maryland. Definitely in need of clarification here!
- 12 weeks of leave & benefits
- An additional 12 weeks is available if the employee qualifies for leave and benefits for both the employee’s own serious health condition AND for bonding with a new child in the same leave year. Huh?
- Leave reasons:
- Bonding with new child
- Employee’s own serious health condition
- Care of family member with a serious health condition
- Care of a servicemember who the employee’s next-of-kin(not defined)
- Military exigencies
- Covered family members (all broadly defined to include biological, adopted, foster, step, and other categories):
- Child – the broad definition also includes a child placed for “kinship care” (not defined)
- Parent and parent-in-law
- Private plans will be allowed – insured or self-funded; such plans must:
- Be offered to all employees
- Equal or exceed the benefits and protections afforded by the PFMLI program
- Be approved by the MD Department of Labor
Full details on the Maryland PFML law will be available soon on our statplans microsite: https://www.reliancestandard.com/statplans/.
Washington Amends Its PFML Statute to Add a New Leave Reason . . . and Other Stuff
Washington Senate Bill 5649 was signed into law by Governor Inslee on March 30, 2022. The bill has many provisions amending the WA paid family and medical leave program effective June 9, 2022. Among the most pertinent provisions, the amendments:
- Add a new family leave reason for leave taken by an employee from work during the 7 calendar days following the death of a family member for whom the employee would have qualified for medical leave for the birth of their child (i.e., pregnancy-related serious health condition) or for family leave for bonding with a new child.
- Essentially, this is a type of bereavement leave for death of a new child
- The statutory language connects the ability to take leave with whether the employee could/would have taken either PFML medical leave or bonding, opening the question whether the leave is available for a stillbirth or miscarriage. The ESD is tasked to provide regulations, so hopefully this rather obtuse language will be given some clarity.
- Mandate that leave taken during the “postnatal period” (the 6 weeks following birth) must be medical leave unless the employee chooses to take family leave. This appears to be a vehicle to provide birth mothers with as much leave as possible, as the medical leave and bonding leave draw from different buckets capped at 12 weeks (plus 2 weeks for a serious health condition related to pregnancy that results in in capacity), but the total amount of leave available is 16 (or 18) weeks.
- Prohibit requiring a medical certification for leave during postnatal period.
- Specify that the exemption from PFML compliance for any party covered by a collective bargaining agreement in existence on October 19, 2017, expires on December 31, 2023.
A Word on New Hampshire and Vermont
These states have veered off in a new direction, with programs that require the state to contract with an insurance carrier to provide paid leave to all state employees and voluntary paid leave for employers and individuals who opt in. New Hampshire’s law goes into effect on January 1, 2023, and promises to be a challenge, as the state only recently issued a Request for Proposals for carriers to bid on the business. That leaves only 8 ½ months to award the bid and for the winning carrier to design and implement a complex program. Good luck with that! You can read more about the New Hampshire program here and on our statplans microsite here.
Vermont is proposing a similar program but is doing so through state contracting processes and without a supporting statute. Although Vermont is likewise hoping to start paying benefits on January 1, 2023, it is being more reasonable as it is open to a phased in approach for the other two tiers of voluntary participants – employers who elect to provide coverage to their employees, and non-covered employees and self-employed individuals who elect to opt in. Even meeting that single January 1 goal is optimistic, however, as so far the state has not even issues an RFP. Watch this space for more information as Vermont plans develop.
Matrix Can Help!
As you can see from all the above information, we stay up to date and keep you informed on all the state PFML developments. More than that, Matrix offers management of self-funded private plans for disability, family, and combined family/medical leaves and benefits, and our sister company Reliance Standard offers insured products as well. If you have any questions, contact us through your Matrix or Reliance Standard sales or account manager, or at [email protected].