Absence management changes: U.S. states and federal government updates for May 2024

This spring, several states made updates to regulations affecting how employers (and their third-party administrators) should manage employee leaves of absence. In addition, the Equal Employment Opportunity Commission (EEOC) issued its final regulations and Interpretative Guidance for the Pregnant Workers Fairness Act (PWFA). In this article, we’ll cover the state developments in Colorado, Connecticut, Maryland and Oregon, and we’ll share a summary of the EEOC guidance on PWFA, to keep you up to date on these important developments.

Colorado FAMLI reporting reminder

Employers who offer a private plan to cover obligations under the Colorado Family and Medical Leave Insurance Program (CO FAMLI) must soon begin submitting a private plan administration summary of the previous calendar quarter. For the first three years that a private plan is active, the summary must be submitted no later than the last day of the month immediately following the end of the calendar quarter addressed by the summary; however, the FAMLI Division has granted an extension for the first 2024 quarter report, extending the deadline for the summary submission to 5/31/2024. The private plan administration summary must include an aggregate summary of private plan data, including:

• Total number of benefits applications 
• Total benefit amounts paid
• Total number of employees covered under the private plan
• The purposes for approved leave
• The reported gender of individuals who applied for benefits
• The average weekly wage of individuals who received benefits
• For Care of Family Leave, the relationship of the family member to the individual who received benefits
• Total number of appeals 

Private plan employers should be working with their plan administrator or approved insurance carrier to aggregate the data required for this report. For employers who chose to purchase a private plan from an approved insurance carrier, the insurance carrier may report on the employer’s behalf. The FAMLI Division has provided a Reporting Template, which can be downloaded here.  Additional information, including a schedule for submissions, can be found at the Colorado FAMLI website and on the Private Plans Quarterly Reporting page.

What employers should consider

Employers who offer a private plan in Colorado, in lieu of the state program, should now be preparing the private plan administration summary for the first calendar quarter of 2024, utilizing the format provided by the FAMLI Division. Private plan employers should also mark their calendars to ensure that they meet future quarterly reporting deadlines, as outlined by the FAMLI Division. 

Amendments to Connecticut leave laws

Connecticut recently enacted Senate Bill 222 (2024), which makes amendments to the Connecticut Paid Leave (CT PFML), the Connecticut Family and Medical Leave (CT FML), and the Connecticut Family Violence Leave (CT FVL) laws. These changes go into effect 10/1/2024.

Connecticut Paid Leave (CT PFML)

The CT PFML law received the most amendments under Senate Bill 222. Here is a summary of notable changes:

• Expanded definition of “employer”: The definition of “employer” was expanded to include a federally recognized tribe that has entered into a memorandum of understanding with the Governor to participate in the PFML program.        
  1. Note: Prior to this amendment, “employer” was defined as “a person engaged in any activity, enterprise or business who employs one or more employees, and includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer and any successor in interest of an employer.”
  2. “Employer,” as defined by the CT PFML law, still does not include:
     • The federal government
     • The state, municipalities, local or regional boards of education, or non-public elementary or secondary schools, unless their unionized employees collectively bargain to participate (however, the state of Connecticut is a covered employer as to its non-unionized workforce)
     • Railroads
     • Governments of other states
     • Sovereign nations (including tribes, unless, effective 10/1/2024, entered into a memorandum of understanding to participate)
• Added definition of “municipality”: Under the added definition, a “municipality” is “any metropolitan district, town, consolidated town and city, consolidated town and borough, city, borough, village, fire and sewer district, sewer district and each municipal organization having authority to levy and collect taxes.” As a reminder, municipalities are not included in the definition of “employer” under the CT PFML, unless their unionized employees collectively bargain to participate.
• Clarified employer requirements: Employers are required under the CT PFML law to remit employees’ contributions to the Connecticut Paid Leave Authority, the agency that oversees and enforces the program, and employers are subject to penalties if they fail to do so. Further, employers must register with the Paid Leave Authority to ensure contributions are accurately attributed. However, the CT PFML law was silent regarding the process. Amendments add explicit requirements for employers, providing that each employer that makes payments of wages to any employee must:
  1. Register with the Connecticut Paid Leave Authority (the Authority) and
  2. Submit reports required by the Authority in a form and manner prescribed by the Authority.

This added language eliminates a gap in the statute and provides a clear foundation upon which employers and third-party administrators (TPAs) can rely regarding the registration and reporting requirements.

• Coordination of benefits between CT PFML and other programs: Amendments clarify that state or federal benefits which provide income replacement cannot be received concurrently with CT PFML benefits; however, amendments also clarify that employees who receive compensation from the Victim Compensation Program, administered by the Office of Victim Services within the Judicial Department, may now also receive CT PFML benefits, so long as the total compensation received by the employee during the period of leave from the two programs must not exceed the employee’s regular rate of compensation.

Connecticut Family and Medical Leave (CT FML)

• Added definition of “municipality”: The CT FML received only one amendment, which was adding a definition for “municipality.” Under the added definition, a “municipality” is “any metropolitan district, town, consolidated town and city, consolidated town and borough, city, borough, village, fire and sewer district, sewer district and each municipal organization having authority to levy and collect taxes.” As a reminder, under the CT FML, “employer” does not include the federal government, the state or a municipality, a local or regional board of education or a nonpublic elementary or secondary school, unless their unionized employees collectively bargain to participate. The state of Connecticut is a covered employer as to its non-unionized workforce.

Connecticut Family Violence Leave (CT FVL)

• Added definition of “sexual assault”: The CT FVL amendment adds a definition for “sexual assault” to be any act that constitutes a violation of the penal code for sexual offenses.
• Expanded coverage: The amendment also expands the CT FVL to include victims of sexual assault. Prior to this amendment, leave was available if the employee is a victim of family violence. Effective 10/1/2024, leave is available if the employee is a victim of family violence or sexual assault.

What employers should consider

Employers should make note of the changes to all three laws, paying particular notice to the coordination of benefits between the CT PFML and other programs and the expanded coverage under the CT FVL law.  Employers should also make necessary updates to internal policies and train employees who work directly with employee leave of absence requests.

Maryland PFML program delayed

Maryland is one of four states with an upcoming paid family and medical leave (PFML) program, which will begin disbursing leave benefits to eligible employees starting in 2026 (as a reminder, the four states are Delaware, Maine, Maryland and Minnesota). However, recently enacted legislation (cross-filed bills Senate Bill 485 and House Bill 571 will delay the start dates for both contributions and benefits for the Maryland PFML program:

• Contributions will now begin 7/1/2025, instead of 10/1/2024.
• Benefits will now begin 7/1/2026, instead of 1/1/2026.

The bills also amend the Maryland PFML law to authorize the state to set criteria for determining which employers are authorized to have a private plan. As a reminder, employers who choose to offer a private plan, in lieu of the state program, will have to pay application and renewal fees.

What employers should consider

Employers should make note of the delayed start dates for both contributions and benefits and make necessary preparations with their payroll administration for employees in Maryland. All employers will be required to electronically register with the Maryland PFML program’s Family and Medical Leave Insurance (FAMLI) Division, administered by the Maryland Department of Labor (DOL). Employers should keep an eye out for future information from the DOL regarding how to register for an account on the FAMLI online portal. Employers who are considering offering a private plan, in lieu of the state program, should closely follow the Maryland PFML program’s private plan guidance.

OFLA regulatory amendments

More changes have arrived for the Oregon Family Leave Act (OFLA). On 5/7/2024, the Oregon Bureau of Labor and Industries (BOLI) issued BLI 14-2024, a Temporary Administrative Order adopting a new subsection to the regulations governing OFLA, which became effective on 5/8/2024. This new section provides guidance and clarifies rights and responsibilities regarding the recent changes to OFLA and Paid Leave Oregon (OR PFML), particularly where, beginning 7/1/2024, certain leave that was previously protected by OFLA will instead be protected by OR PFML. This new section provides that, for leave that was previously protected by OFLA, an employer may rescind a designation or approval if that leave continues on or after 7/1/2024. In addition, the new section requires employers to provide employees with two written notices, provided in the language the employer typically uses to communicate with the employee:

• If an employer has designated or approved leave previously protected by OFLA that is scheduled to occur on or after 7/1/2024, the employer must provide the employee with a written notice, as soon as practicable, but no later than 6/1/2024, that informs the employee that leave occurring on or after 7/1/2024 is not protected by OFLA.
• The employer must notify employees in writing that OR PFML benefits may be available, along with information explaining how to apply for those benefits via the state-administered Paid Leave Oregon program or the employer's equivalent plan, whichever applies to the employee. This notice must be provided concurrently with the notice that rescinds a previous OFLA designation or approval and as soon as practicable, but within 14 calendar days of the employee providing the employer with information that, before 7/1/2024, would have been enough for the employer to provisionally designate the leave under OFLA.
  1. This notice may include the Model Notice/Poster notice provided by the Director of the Employment Department, which can be found in multiple languages on the OR PFML Resources page. 

What employers should consider

Employers should ensure they meet the notice requirements outlined in the Temporary Administrative Order no later than 6/1/2024. Employers should also ensure their Oregon employees are aware that certain leave reasons currently covered under OFLA will be discontinued as of 7/1/2024 and provide the necessary written notices to employees whose leave designation will be revoked effective 7/1/2024. Employees on an OFLA leave for a discontinued leave reason should apply for OR PFML if they have not already done so. Further, employers should update any applicable policy or plan documents to reflect the changes effective 7/1/2024 and consider supplementing policies to provide employees with helpful resources, including OFLA resources, Paid Leave Oregon resources, and third-party administrator contact information, as appropriate.

Federal Pregnant Workers Fairness Act 

In April, the Equal Employment Opportunity Commission (EEOC) issued its final regulations and Interpretative Guidance for the Pregnant Workers Fairness Act (PWFA). Alight sent out a Compliance Alert at that time, providing a link to the full text and a teaser for future additional analysis of the 400+ pages.  

As a refresher, the PWFA was enacted in 2022 and went into effect on 6/27/2023. It requires covered employers (those with at least 15 employees) to provide reasonable accommodations to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless such accommodation would cause an undue hardship for the employer. The final regulations and Interpretive Guidance were published in the Federal Register on 4/19/2024 and will go into effect 60 days after publication, on 6/18/2024.

Here are some notable aspects of the new regulations:

Employee eligibility requirements:

• The term “employee” includes “applicant,” where relevant, and, as the definition of “employee,” includes “former employee,” where relevant (see Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)).
• When determining whether an employee who needs leave as a reasonable accommodation meets the definition of a “qualified employee,” an employee will be considered qualified if:
  1. any inability to perform essential function(s) of the position is for a temporary period;
  2. the essential function(s) could be performed in the near future; and
  3. the inability to perform the essential function(s) can be reasonably accommodated.
• A note on “in the near future”:
  1. “In the near future” is defined to mean generally 40 weeks from the start of the temporary suspension of an essential function(s), where the request to temporarily suspend an essential function(s) is due to a current pregnancy.
  2. For conditions other than a current pregnancy, there is no specific length of time for “in the near future” because, unlike a current pregnancy, there is not a consistent measure of how long conditions can generally last. The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires and how long a period may be under the ADA.
• The PWFA does not create a right to reasonable accommodation based on an individual’s association with someone else who may have a PWFA-covered limitation, nor is a qualified employee entitled to accommodation because they have a physical or mental condition related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical conditions.

Covered reasons for PWFA accommodation:

• A qualified employee may be eligible for a PWFA reasonable accommodation if the individual has a physical or mental condition (known limitation) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
• Whether an employee has a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” must be construed broadly to the maximum extent permitted by the PWFA.
• The “physical or mental condition” that is the limitation may be a modest, minor, and/or episodic impediment or problem.
• The definition of “limitation” also includes when an employee is seeking health care related to the pregnancy, childbirth, or a related medical condition itself.
• Related medical conditions may include conditions that existed before pregnancy or childbirth and for which an individual may already receive an ADA reasonable accommodation.
• The non-exhaustive list of examples for the definition of “pregnancy, childbirth, or related medical conditions” includes: current pregnancy, past pregnancy, lost pregnancy (miscarriage or stillbirth), potential or intended pregnancy (including infertility, fertility treatments, use of contraception, and having or choosing not to have an abortion), labor/childbirth (including vaginal delivery and cesarean section), postpartum treatment or recuperation, lactation (including breastfeeding and pumping), preeclampsia, and gestational diabetes, among other conditions.

Leave as an accommodation:

• Leave may be provided as a reasonable accommodation under the PWFA.
• However, the PWFA prohibits employers from requiring qualified employees with known limitations to take leave as a reasonable accommodation where there is another reasonable accommodation that will allow them to remain at work that does not result in an undue hardship.
• Notes on job and benefits protection while on leave:
  1. An employee with a known limitation who is granted leave as a reasonable accommodation under the PWFA is entitled to return to their same position, unless the employer demonstrates that holding open the position would impose an undue hardship.
  2. An employer must continue an employee’s health insurance benefits during their leave period to the extent that it does so for other employees in a similar leave status, such as paid or unpaid leave.

Concurrency or interaction with other laws or available benefits:

• ADA should always be considered alongside a PWFA accommodation request, particularly since requests for accommodation under the PWFA may be indistinguishable from requests for accommodation under the ADA and there will be situations in which both apply.  
• If a physical or mental condition is not covered by the PWFA, exacerbates existing conditions that may be disabilities under the ADA, or is no longer related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, an individual may seek an accommodation under the ADA and the reasonable accommodation process would follow the ADA.
• If an employee has a right to leave under the FMLA, an employer policy, or a state or local law, the employee is entitled to leave regardless of whether they make a request for leave as a reasonable accommodation. An employee who needs leave beyond what they are entitled to under other laws or policies may request leave as a reasonable accommodation.
• Employees must be allowed to choose whether to use unpaid leave or paid leave (e.g., accrued, short-term disability program, or any other employee benefit) to the same extent that the employer allows employees to choose between these types of leave when they are using leave for reasons unrelated to pregnancy, childbirth, or related medical conditions.

Employee notification requirements:

• The employee, or their representative, must communicate the limitation to the employer, and this communication may be made orally, in writing, or by another effective means. The communication need not be in writing, be in a specific format, use specific words, or be on a specific form in order for it to be considered “communicated” to the employer.
• When an employer receives a request for an accommodation under the PWFA, the employer and employee can engage in the interactive process.
• An employer may choose to ask the employee to confirm the request in writing or to fill out a form. However, the covered entity cannot ignore or close an initial request if the employee does not complete these types of written confirmation procedures, because that initial request is sufficient to place the employer on notice. If a form is used, the form should be simple enough that it does not deter the employee from pursuing the request and does not delay the employer from providing an accommodation.

Documentation:

• An employer is not required to seek supporting documentation from an employee who requests an accommodation under the PWFA. The employer may require that the supporting documentation come from a health care provider; however, the employer may not require that supporting documentation be submitted on a specific form or be from the provider treating the employee for the condition at issue, as long as the health care provider is able to: confirm the physical or mental condition; confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (i.e., a PWFA limitation); and describe the adjustment or change at work that is needed due to the PFWA limitation. Furthermore, the employer may not require that an employee be examined by a health care provider of the covered entity’s choosing.
• ADA restrictions on when employers are permitted to ask disability-related questions and require medical examinations are extended to the PWFA. Further, any medical information obtained during the interactive process under the PWFA must be maintained on separate forms and in separate medical files and be treated as a confidential medical record, in accordance with the ADA’s rules on the confidentiality of medical information.
• If an employer has sufficient information from the employee to determine whether they have a PWFA limitation and need an accommodation, requiring the employee to provide additional information or documentation could be a violation of the PWFA’s anti-retaliation or adverse action prohibition provisions.  
• An employer may not fail to provide a reasonable accommodation based on the employee’s failure to provide supporting documentation if the covered entity’s request for supporting documentation violates the standards set out in the PWFA.
• If an employer decides to seek supporting documentation, the employer is permitted to do so only when it doesn’t have sufficient information to determine that the employee has a PWFA limitation, an accommodation is needed, and such a request is reasonable under the circumstances. This principle also applies to episodic conditions. If an employer already has sufficient information to determine that the employee has a PWFA limitation that is episodic, and the accommodation is needed periodically due to the limitation (e.g., time off), the employer cannot seek additional or new supporting documentation every time the condition arises.
• An employer cannot defend the failure to provide an accommodation based on the lack of supporting documentation if:
  1. the covered entity did not seek supporting documentation;
  2. seeking supporting documentation was not reasonable under the circumstances;
  3. the covered entity sought documentation beyond that which is reasonable; or
  4. the covered entity did not provide the employee sufficient time to obtain and provide the supporting documentation sought.

Self-confirmation statement:

• For the purposes of supporting documentation, employer must accept an employee’s self-confirmation of pregnancy when:
  1. The pregnancy is obvious
  2. The employee is seeking one of these “predictable assessment” accommodations:
     • Carry or keeping water near and drinking, as needed
     • Additional restroom breaks, as needed
     • Allowing an employee whose work requires standing to sit, as needed
     • Allowing an employee whose work requires sitting to stand, as needed
     • Taking breaks to eat and drink, as needed
• The employer must also accept a self-confirmation statement from an employee seeking an accommodation related to pumping milk or nursing during work hours.
• A “self-confirmation statement,” which is a simple statement in which the employee confirms the limitation and adjustment or change that is needed at work due to the limitation.
• The self-confirmation statement can be made by any means and can be part of the request for reasonable accommodation. It may be spoken, written (on paper or electronically, e.g., email or text), a recording, or made during a live conversation.
• Self-confirmation does not need to use any particular words or format, does not need to be written on a form, does not need to be a particular length, does not need to be notarized or otherwise verified, and does not need to be accompanied by documentary or physical evidence.

For the full text, the final regulations and Interpretative Guidance can be found here.

What employers should consider

Employers with at least 15 employees are covered by the PWFA and must provide reasonable accommodations where required under the law. Employers should become familiar with the details and examples provided in the final regulations and Interpretative Guidance, as adhering to the requirements of the PWFA can directly impact employer operations. For example, similar to the ADA, the PWFA requires employers to engage in the interactive process, to determine a reasonable accommodation when the employee informs the employer of a known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Employers should plan on making necessary updates to internal policies and train employees who work directly with employees in the interactive process for reasonable accommodations.

What will this change within Alight Leave Solutions?

Alight Leave Solutions specializes in state and federal leave of absence solutions, including certain paid and unpaid family/medical leave offerings. The above leave laws are a part of Alight Leave Solutions’ leave. Alight will incorporate the necessary changes, as provided by amendments and additional guidance provided, as applicable, where it impacts the administration of leave as an accommodation.