Offering Practical Guidance to Employers
Michigan employers soon will face a significantly higher minimum wage and more onerous employee sick leave obligations after the Michigan Supreme Court invalidated the Michigan legislature’s amendments related to two voter ballot initiatives. Mothering Justice v. Attorney General and State of Michigan, No. 165325 (July 31, 2024).
Learn more here.
The governor of Rhode Island has signed into law amendments to the Temporary Caregiver Insurance (TCI) law that will increase the amount of leave benefits available to employees beginning Jan. 1, 2025.
Currently, eligible employees in Rhode Island can take six weeks of leave under TCI to care for a newborn, or newly adopted child, or to care for a family member with a serious health condition. As of Jan. 1, 2025, employees will be entitled to seven weeks of leave, which will increase to eight weeks as of Jan. 1, 2026.
Initially enacted in 2014, TCI provides partial wage replacement and job protection for eligible Rhode Island employees. The wage replacement benefits are fully funded by employee payroll deductions. The amendments continue to expand the length of leave available to employees under TCI after prior amendments in 2022 and 2023 gradually expanded TCI leave from four weeks to the current six weeks.
Rhode Island also increased the minimum dependent allowance from $10.00 per week to $20.00 per week effective Jan. 1, 2025. Employees with dependents are entitled to the greater of the minimum dependent allowance or 7% of their weekly benefit amount for each dependent.
In Rhode Island, employees receiving TCI while out on leave cannot continue to work and take leave on an intermittent basis, but they must remain out on leave for the entire duration of the leave period to collect benefits.
Employees seeking to take leave must notify their employers in writing at least 30 days prior to the start of the leave, barring unforeseen circumstances. Employers may receive requests for information from the Rhode Island Department of Labor and Training regarding employees who have applied for leave, but all other information regarding the leave is confidential.
Employees returning from TCI leave are entitled to return to a comparable position with the equivalent seniority, status, employment benefits, pay, and other terms and conditions, including fringe benefits.
Jackson Lewis attorneys continually monitor paid leave developments in Rhode Island and around the country. If you have questions regarding leave law compliance, contact a Jackson Lewis attorney to discuss.
Under the Cook County Paid Leave Ordinance, most employers in Cook County, Illinois, must provide their employees in the county up to 40 hours of paid leave that can be used for any reason. The Cook County Commission on Human Rights issued Final Interpretive and Procedural Rules governing the Ordinance that provide employers much-needed clarification, including on who the Ordinance applies to and whether it overlaps with other state and local leave entitlements, how to calculate paid leave under the Ordinance, whether carryover of accrued, unused paid leave may be capped, and when employers may lawfully deny paid leave requests. The Final Rules also contain other extensive requirements, and employers are encouraged to consult counsel for assistance in updating their written leave policies to comply with the Final Rules.
Learn more here.
The Chicago Paid Leave and Paid Sick and Safe Leave Ordinance is set to take effect on July 1, 2024, and the City’s Department of Business Affairs and Consumer Protection has published its long-awaited interpretive rules. These final rules provide guidance on several questions unanswered by the Ordinance, such as its application to remote workers, requirements for written leave policies, permissible restrictions on an employee’s ability to take leave, and recordkeeping requirements.
The New York State Department of Labor has issued revised materials, including an updated mandatory model policy, ahead of the June 19, 2024, effective date for the transition of workplace lactation breaks from unpaid to paid in New York.
Learn more here.
On the eve of the effective date of the Equal Employment Opportunity Commission’s (EEOC’s) final Pregnant Workers Fairness Act (PWFA) regulations (Final Rule), a federal court in Louisiana postponed the effective date of what the court describes as the “Final Rule’s requirement that covered entities provide accommodation for the elective abortions of employees that are not necessary to treat a medical condition related to pregnancy” until final judgment is entered in pending litigation. State of Louisiana v. EEOC, et al., No 2:24-cv-00629 (W.D. La. June 17, 2024), and U.S. Conference of Catholic Bishops v. EEOC, et al., No. 2:24-cv-00691 (W.D. La. June 17, 2024). The order may impact employers with employees in Louisiana and Mississippi.
The PWFA was permanent legislation included in the Consolidated Appropriations Act of 2023 signed by President Joe Biden on Dec. 29, 2022, and went into effect on June 27, 2023.
The law requires employers (including state government employers) with at least 15 employees to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.
The EEOC published the text of the Final Rule and interpretative guidance implementing the PWFA in the April 19, 2024, Federal Register, effective June 18, 2024.
Two lawsuits were filed in the Western District of Louisiana challenging the Final Rule. The States of Louisiana and Mississippi were first to file their suit on May 13, 2024. Shortly thereafter, a group of Catholic organizations led by the United States Conference of Catholic Bishops filed a second suit. The court consolidated the motions for preliminary injunction in both cases.
The Western District of Louisiana’s decision is limited to the provisions of the EEOC’s Final Rule regarding accommodations for what the court describes as “elective abortions.” The court explains in a footnote:
To avoid any uncertainty, terminations of pregnancy or abortions stemming from the underlying treatment of a medical condition related to pregnancy are not affected by this preliminary injunction. Such procedures are clearly “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000gg(4). Covered employers are therefore required to provide accommodation to the extent set forth in the PWFA.
The scope of the preliminary injunction applies to: (1) the two states who are the plaintiffs in this case — Louisiana and Mississippi — and their agencies; (2) “[a]ny covered entity under the Final Rule with respect to all employees whose primary duty station is located in Louisiana or Mississippi”; and (3) the plaintiffs in the Bishops case — the United States Conference of Catholic Bishops, Society of the Roman Catholic Church of the Diocese of Lake Charles, Society of the Roman Catholic Church of the Diocese of Lafayette, and Catholic University of America.
The EEOC is also preliminarily enjoined:
with respect to the above-listed parties from: (i) initiating any investigation into claims that a covered employer has failed to accommodate an elective abortion that is not necessary to treat a medical condition related to pregnancy; and (ii) issuing any Notice of Right to Sue with respect to the same.
A group of 17 states led by Tennessee filed a similar lawsuit in the Eastern District of Arkansas. That court ruled on June 14, 2024, that the plaintiff states lacked standing — the required level of injury to proceed with a lawsuit — and dismissed that case without prejudice. State of Tennessee, et al. v. EEOC, No. 2:24-cv-00084 (E.D. Ark.). The Eastern District of Arkansas also explained that even if the court were to consider the merits of the case, the plaintiff states were not entitled to an order enjoining the Final Rule because they had not shown a likelihood of irreparable harm.
Previously, a federal court in Texas permanently enjoined the EEOC and Department of Justice from enforcing the PWFA against the State of Texas in February 2024, when it found that Congress improperly passed the Consolidated Appropriations Act of 2023. That case is currently on appeal to the U.S. Court of Appeals for the Fifth Circuit.
The PWFA remains in effect for private employers with at least 15 employees across the country. The EEOC’s Final Rule is also in effect as of June 18, 2024. Litigation will continue to work its way through the courts. For now, the only private employers, (other than the Bishops and related plaintiffs), impacted by the Western District of Louisiana’s decision pausing the effective date of the Final Rule’s requirement that covered employers provide accommodation for “elective abortions” are employers with employees in Louisiana and Mississippi.
Jackson Lewis attorneys will continue to monitor these developments. In the meantime, if you have questions about the PWFA or what these court rulings mean to your workplace, please contact a Jackson Lewis attorney.
The Maine Department of Labor announced proposed rulemaking on May 20, 2024, to implement the upcoming Maine Paid Family and Medical Leave Program.
Maine DOL’s rulemaking has been expected following the Maine Legislature’s passage of the new law in 2023. Employees can begin receiving paid leave benefits effective on May 1, 2026, and employer contributions to the plan funding those benefits begins on January 1, 2025. The proposed rules are not final. Public comment will be open through July 8, 2024, and can be submitted here.
The proposed rules provide greater detail as to how the Maine DOL plans to implement and enforce the new program. The program allows Maine employees up to 12 weeks of family and medical leave benefits over a one-year period.
Covered Employees
Under the proposed rules, covered employees will be defined as: (1) employees who earn wages paid in Maine at least six times the state average weekly wage during the first four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year, and who are not otherwise excluded; or (2) individuals who voluntarily elect coverage. Employees may utilize these benefits by taking continuous leave, intermittent leave, or reduced schedule leave. Both intermittent and reduced schedule leave will be prorated against the full 12-week leave allotment under the law but leave may not be taken in increments of less than a workday without the employer’s agreement.
Applications for benefits
In order to receive benefits, the proposed rules explain that a covered employee must submit an application for benefits no more than 60 days before nor 90 days after the start date of the leave. Absent an emergency, illness, or other sudden necessity for taking leave, an employee must give reasonable notice to the employee’s supervisor of the employee’s intent to use leave, generally 30 days before the leave begins. If the request for leave is not foreseeable due to emergency, illness, or other sudden necessity, an employee must make a good faith effort to provide written notice to the employer of the employee’s intent to use leave as soon as is feasible under the circumstances. The notice must state the reason for the leave being requested (family, medical, safe leave, or qualifying exigency); the type of leave needed (continuous, reduced schedule, or intermittent leave); actual or anticipated timing and duration of leave; any other relevant details regarding the employee’s need to take leave.
Undue hardship
While employees are required to schedule leave, the proposed rules explain that the employer bears the burden to prove the undue hardship. “Undue hardship,” as defined in the proposed rules, means a significant impact on the operation of the business or significant expenses, considering the financial resources of the employer, the size of the workforce, and the nature of the industry. An employer’s determination of undue hardship will not be considered reasonable unless the following are established: (1) the employer provided a written explanation of the undue hardship to the employee; (2) the employee retains the ability to take leave within a reasonable time frame relative to the proposed schedule; and (3) the employer has made a good faith attempt to work out a schedule for such leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the employee’s health care provider. Employers and employees will be entitled to appeal the administrator’s decisions to a DOL hearing officer and, following this appeal, may seek review in the Superior Court.
Job restoration
Employees employed for at least 120 consecutive days are generally entitled to job restoration upon return from leave. Employers must return the employee to the position the employee previously held or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
Applications for benefits
Employees can submit applications for paid family and medical leave benefits online once benefits become available. The plan administrator will notify employers within five business days of an application by an employee. Employers will have 10 days to submit documentation or information that it wishes the administrator to consider.
Employer premiums
Benefits will be financed by a mandatory “premium” based on employee wages of up to 1%, to be split evenly between employee and employer, with each bearing a maximum burden of 0.5% of weekly wages as a premium. Maine employers with fewer than 15 employees will not be subject to the payment of the employer’s portion of the premium, though they will still be obliged to collect and remit the employee portion. While coverage is delayed until the May 1, 2026, start date, Maine employers and employees will begin paying the 1% premium beginning on January 1, 2025. Employer premium payments and contribution reports will be due on or before the last day of the month following the close of the quarter. DOL will provide employers forms for submission. Employer premiums will be required up to the contribution and benefit base limit established annually by the federal Social Security Administration for purposes of the federal Old-Age, Survivors, and Disability Insurance program limits pursuant to 42 U.S.C. § 430. An employer’s size for purposes of calculating their premium liability for each year will be calculated based upon the number of employees employed within Maine on October 1 of the previous year.
Private plans
The proposed rules explain that employers will be eligible to substitute both fully insured and self-insured plans for participation in the DOL-administered public program. DOL will process approvals for substitution of private plans and will be valid for three years. Applications for substitution of a private plan will begin to be accepted on January 1, 2026. DOL will provide forms for submission of this application. Approved plans must be substantially equivalent to the protections and benefits available under the public plan.
If you have questions about Maine’s Paid Family and Medical Leave Program or the proposed rules, please reach out to a Jackson Lewis attorney.
Under Minnesota’s Paid Leave Law (PLL) that goes into effect in January 2026, employers must provide covered employees up to 20 weeks of leave to care for themselves and their family members with paid leave benefits available through the Minnesota Paid Leave Program.
Although the PLL was passed on May 25, 2023, employees will not be able to access paid leave benefits until January 1, 2026. In the interim, legislators and agency personnel are working to answer questions and fill information gaps.
Three important recent developments concerning the PLL include: (1) new guidance from Minnesota’s Department of Employment and Economic Development (MN DEED) for employees and employers, (2) amendments to the PLL signed into law by Governor Tim Walz on May 24, 2024, which allow for increases to payroll taxes to implement the PLL and (3) amendments which provide a comprehensive scheme for appeals and calculating benefit amounts, among other changes.
Learn more here.
Minnesota’s legislature was busy providing new rules and obligations for employers. In addition to the changes in the Minnesota Human Rights Act (MHRA), Earned Sick and Safe Time (ESST), and Paid Family and Medical Leave, (which we discuss in separate articles), the Minnesota legislature also made slight adjustments to the state’s pregnancy accommodation law and the pregnancy and prenatal leave law. More information is available here.
Minnesota Governor Tim Waltz signed legislation amending the state’s Earned Sick and Safe Time (ESST) law, on May 24, 2024, nearly six months after the statute took effect. Although all of the amendments are important, the top changes are outlined here.
