2023 Family and Sick Leave Policies

With the arrival of the new year comes the effective date of many new leave laws (and expansions of existing leave laws) across the United States. Below we summarize the family and sick leave laws that will go into effect in various states in 2023.

California

California employers will see two major changes to leave laws in 2023 (both of which we blogged about here): an expanded definition of “family member,” health and sick leaves, and bereavement leave protections. Beginning in 2023, eligible California workers will be able to take family or medical leave under the California Family Rights Act (“CFRA”) and sick leave under the Healthy Workplaces, Healthy Families Act (“HWHFA”) to care for a “designated individual. ,” which is defined as “any person who is related by blood or association with the employee equivalent to a family relationship,” and can be identified by the employee when the employee requests leave. Second, California employers will be required to provide eligible employees with five days of unpaid bereavement leave to care for needs resulting from the death of a family member (which takes its definition from the CFRA, but it is not yet clear whether it includes a “designated person”) at any time within three months of the death of the family member. Employees will also be able to use any accrued but unused paid vacation, sick, or personal time to take bereavement leave.

In Colorado

In Colorado, beginning January 1, 2023 covered employers must begin contributing to the medical leave insurance fund created by the Family Insurance and Medical Leave Act (“FAMLI Act”) at a 0.9% payroll tax. The payroll tax, which will remain at 0.9% until 2023 and 2024, will be split equally between employers and employees. The FAMLI Act applies to most Colorado employers and will cover Colorado workers (including remote workers working for Colorado employers) who earned at least $2,500 in the applicable base period. Beginning in 2024, eligible Colorado workers can request up to 12 weeks of paid leave (up to 16 weeks for medical conditions related to pregnancy or childbirth) for certain valid reasons, including a critical health condition for an employee or family member, to care for a new child born or newly deployed, to address the needs arising from the military service of an active family member, and/or because the service member or their family member is a victim of domestic violence, stalking, or sexual abuse or harassment. Colorado employers must ensure they are ready for 2023 by registering with the FAMLI Division and creating a plan to collect and remit the required premiums, which will be required after the close of the first quarter of 2023.

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In Oregon

Beginning January 1, 2023, employers with 25 or more employees in Oregon must begin contributing to the new Oregon Paid Family and Medical Leave Insurance (“PFMLI”) program, which provides eligible employees with paid time off for certain family and medical reasons. Employers pay 40 percent of the premium and employees pay 60 percent, which equates to 1 percent of the employee’s 2023 salary. Employers with fewer than 25 employees do not have to make contributions to the scheme, but they still have to collect and remit their employees’ money. to share. Employers may choose to participate in the program through the Oregon Department of Employment program or through an equivalent state-approved program. As of September 3, 2023, eligible workers can apply for PFMLI benefits for up to 12 weeks (14 if pregnant) to (i) have a bond with a child after birth or adoption; (ii) recovery from a serious medical condition; or (ii) if the employee or family member has experienced domestic violence, sexual abuse, or harassment.

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Maine

Maine has amended its paid leave law, effective January 1, 2023, to require all private employers with 11 or more employees to pay all accrued vacation pay when an employee leaves the job for any reason. Failure to comply with this requirement may result in payment of the amount owed, liquidated damages up to twice the overdue amount, and attorney’s fees and costs.

New York

As we previously reported, beginning January 1, 2023, eligible workers in New York can apply for New York Paid Family Leave benefits to care for siblings (including biological, adopted, step, or half-siblings). The maximum annual employee contribution for 2023 is $399.43, which is $24.28 less than 2022, and the maximum weekly employee benefit will increase to $1,131.08.

In Michigan

Michigan is scheduled to implement the Michigan Earned Sick Time Act (“ESTA”), effective February 20, 2023, to expand coverage and the amount of paid sick time available to workers. The Michigan legislature originally approved ESTA in September 2018, which would have required employees to accrue one hour of sick time for every 30 hours worked, without accrual or rollover as follows: employers with 10 or more employees would have been required to allow 72 hours of paid sick time per year, while employers with fewer than 10 employees would be required to allow 40 hours of paid sick time and an additional 32 hours of unpaid sick time per year. However, subsequent amendments to ESTA significantly reduced the original legal requirements and led to the adoption of the Paid Medical Leave Act (“PMLA”), which went into effect in March 2019. Several groups filed to challenge the constitutionality of the amendment. process and on July 19, 2022, the Michigan Court of Claims reinstated the 2018 ESTA originally approved. The State of Michigan filed an appeal and ordered that the Court’s decision be stayed pending appeal. Although the Court rejected the request for revocation, it postponed the enactment of ESTA until 20 February 2023, to give employers time to make any necessary changes to comply. The parties in the case requested that the appeals court issue a decision by February 1, 2023.

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Looking Forward

Some states have significant changes on the horizon that employers should be aware of, although there is no immediate need to act. By 2025, paid family and medical leave laws will go into effect in Delaware and Maryland. Both states will require covered employers to begin contributing to eligible state funds before leave benefits are available to employees. Delaware employers have until January 1, 2024 to make arrangements for payroll contributions to the fund, while Maryland employers with 15 or more employees must begin contributing to the fund by October 1, 2023 at a rate set by the state. Vermont, on the other hand, uses a voluntarily a paid family and medical leave program. Benefits under Vermont’s plan will begin with state employees on July 1, 2023 and extend to employers and self-employed workers on July 1, 2024. Unlike the plans described above, Vermont’s plan does not require employers to contribute payroll taxes. Instead, participating private employers will pay a weekly premium based on their chosen plan. Vermont’s program follows a similar voluntary program in New Hampshire, which was established in 2021.

Employers should take some time before the end of 2022 to ensure that their policies are in line with the 2023 requirements.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 356

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