2018 has been a big year with substantial legislative activity. We’ve kept you informed throughout the year on significant measures, such as the Massachusetts Paid Family and Medical Leave law, New Jersey’s Paid Sick and Safe Leave law, and South Carolina’s Pregnancy Accommodation law. As the summer wraps up, we thought we’d update you on the leave of absence-related bills still in legislative limbo, review recently signed legislation, and take a look back at some of the bills that met their demise.
New York presents us with two pieces of leave-related legislation still pending:
New York Senate Bill 2496 – This law, named the “Living Donor Protection Act of 2018” would amend several laws to increase protections for organ and tissue donors. The part that impacts leaves of absence would add “transplantation, preparation, and recovery from surgery related to organ or tissue donation” to the definition of serious health condition under the New York Paid Family Leave (PFL) law. The law also would prohibit insurers from discriminating against individuals because of their status as an organ or tissue donor. The law remains pending, ready for the Governor’s signature. If signed, it would become effective 90 days after signature.
New York Senate Bill 8380 – This law would also amend the New York PFL law, this time authorizing PFL for bereavement upon the death of a family member. Per existing law, a family member means a child, parent, grandparent, grandchild, spouse, or domestic partner. This law was sent to the Governor on June 20, 2018, and, if signed, it would apply to all policies or contracts issued, renewed, modified, altered, or amended on or after January 1, 2020.
Moving on to New Jersey, three bills await the Governor’s pen:
New Jersey Assembly Bill 2762 – This piece of pending legislation requires that when a covered individual applies for temporary disability benefits for pregnancy or the birth of a child, the plan administering the benefits must automatically process an application for the family leave insurance (FLI) benefits program, unless the person opts out of that program. The individual would now only be required to submit only one application for both programs. The application for benefits must be processed to allow the FLI benefits to begin immediately after the conclusion of the disability benefits. A person who is approved for benefits must notify the plan administrator of her planned return-to-work date and if she returns to work on an earlier date.
A private plan that offers only temporary disability benefits must provide to its claimants written notice of the application process for family leave benefits concurrently with its written approval of temporary disability benefits. A private plan that offers both temporary disability benefits and paid family leave benefits must adapt its process to the new requirements, so individuals are only required to submit one application for both temporary disability benefits and family leave benefits.
This piece of legislation, if enacted, would take effect 180 days after signature.
New Jersey Assembly Bill 2763 – Another pending bill would require the Commissioner of Labor and Workforce Development to provide additional data in the annual reports for the temporary disability and family leave insurance programs. Currently, the law requires the Commissioner to issue an annual report with data regarding program usage, claimant demographics, program costs and revenues. The bill expands the list of required data to include:
- gross wages of workers receiving benefits;
- labor union membership of workers receiving benefits;
- intermittent usage of family leave benefits;
- race, ethnicity, or national origin of workers receiving benefits;
- educational attainment level of workers receiving benefits;
- location of employers employing workers that receive benefits; and
- whether the employer is private or a governmental entity.
The bill also changes the reporting requirement regarding the employer size from employers with fewer than 50 employees to employers with fewer than 30 employees. The bill would take effect immediately if signed.
New Jersey Assembly Bill 4118 – This bill would change the filing process for TDI and FLI benefits. The bill allows individuals to submit TDI and FLI claims up to 60 days before the start of leave if an individual knows in advance when the leave will begin. Additionally, it requires the Division of Unemployment and Temporary Disability Insurance of the Department of Labor and Workforce Development (the Division) to pay the benefit for the claim at the start of the leave. While the law does not currently disallow an early claim submission, employers are not required to provide the necessary information to determine the individual’s eligibility until 9 days after the leave start date, and the Division is not able to process a claim until the eligibility documentation is received. With the proposed change, the employer would be required to submit eligibility documentation to the Division no more than 9 days after the employee requests the leave.
The Division must process the claim immediately and pay the benefit at the start of the leave or after any applicable waiting period. If the Division receives the claim fewer than 30 days before the start of the leave, the Division must pay the benefit no more than 30 days after receipt of the claim. Under the bill, the TDI and FLI weekly benefits for claims submitted before the start of leave are computed using the individual’s average weekly wage in effect on the date the claim is submitted.
If an individual did not have enough base weeks or total earnings during the 52 weeks preceding the week the individual submits the claim to qualify for TDI or FLI benefits, the Division must notify the individual that he or she can file the claim again upon or after the start of the leave, at which point the Division will reconsider eligibility for benefits based on the 52 weeks preceding the leave start date. If signed, the provisions would apply only to claims for periods of disability and family temporary disability beginning on or after January 1, 2018.
And here are a few newly enacted laws we want to alert you to:
California Assembly Bill 2587 – The Governor of California signed this law on July 9; it goes into effect January 1, 2019. On January 2018, a new law went into effect that removed the statutory 7-day waiting period for Paid Family Leave (PFL) benefits. Employers previously could require an employee use up to 2 weeks of vacation time before receiving PFL benefits. During that time, they could apply vacation time to the 7-day waiting period. When the law eliminated the 7-day waiting period, it left a reference applying unused vacation time to the (now nonexistent) waiting period. Assembly Bill 2587 simply erases that outdated reference. There are no other substantive changes to the vacation rule; employers can still require the use of vacation time (up to 2 weeks) when an employee applies for PFL benefits.
Hawaii Senate Bill 2990 – This law was enacted on July 5 and requires the Hawaii Legislative Reference Bureau, by September 1, 2019, to conduct an analysis to explore the impacts of a PFL program to assist the legislature in determining the most appropriate framework for the establishment of PFL in Hawaii.
New Jersey Assembly Bill 1827– This law, signed on May 2 and effective October 29, concerns New Jersey’s Paid Sick and Safe leave program. It exempts public employees and employers from the law, expands the term “per diem health care employee,” exempts any individual who is certified as a “homemaker-home health aide,” and provides that when a different employer succeeds or takes the place of an existing employer, all employees of the original employer are entitled to their accrued earned sick leave.
Vermont House Bill 711 – Enacted on May 28 and effective July 1, this law adds crime victims to the list of protected classes in the state’s Fair Employment Practices Act and requires employers to provide an employee who is a crime victim with unpaid leave to attend certain legal proceedings.
Duluth Paid Sick and Safe Leave – Duluth, Minnesota, is the latest municipality to pass an ordinance mandating paid time off for an employee’s or family member’s health needs or other needs for time off related to domestic abuse, sexual assault, or stalking. The law requires accrual of one hour of paid sick leave for every 50 hours worked, up to a total of 64 hours per year. Leave can be capped at 40 hours per year. The ordinance is effective January 1, 2020.
Vermont House Bill 196 – Vermont’s Family Leave Insurance bill died when Governor Scott vetoed the bill that would have been funded by a 0.141% payroll tax on employees.
Maine House Bill 1091 – Maine’s Governor also killed its paid family leave bill, which would have required a contribution of no more than 0.5% of the employee’s wages.
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