APPLIES TO Hospital Employers with Employees in CT

EFFECTIVE October 1, 2023

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look New Connecticut legislation mandates specific requirements for nurse staffing committees and staffing plans. The Connecticut Department of Public Health will oversee hospital compliance and assess fines for violations.

Discussion

Governor Ned Lamont recently signed HB 6941 which creates new requirements for Connecticut hospitals with respect to nurse staffing plans, staffing committees, reporting requirements, civil penalties for non-conforming hospitals and the right of nurses to object to participating in certain hospital activities.  Effective October 1, 2023, the changes brought by the new law are summarized below. The legislation affects both unionized and non-unionized hospitals.

Creation of Hospital Staffing Committees for Nurse Staffing Plans

Under the new law, Connecticut hospitals are required to dedicate a staffing committee to develop annual nurse staffing plans. The committee must be comprised of at least 50% direct care registered nurses (RNs) employed by the hospital as well as non-direct care RNs and a “broad base” of representatives “across hospital services.” The committee’s membership selection will depend on whether the hospital is unionized or not; however, in both unionized and non-unionized hospitals, the staffing committee is required to have two co-chairpersons with direct patient care experience. One chair will be elected by the committee’s direct care RNs and the other chair will be elected by committee members who are not direct care RNs.

Employees who are selected to serve on the staffing committee must be compensated at their regular pay rate, including differentials, for their time spent serving on the committee. Under the legislation, hospitals are asked to treat time spent serving on the committee as part of an employee’s regularly scheduled work week to the extent possible, although this is not a direct mandate.

Responsibilities of the Hospital Staffing Committee

Each staffing committee will be tasked with evaluating research about patient outcomes, sharing procedures for communicating concerns about the staffing plan and staffing assignments, and reviewing all reports communicated to the committee about these concerns or any RN objection or refusal to participate in a particular staffing assignment.

The new law also sets forth procedures required for conducting committee business. Specifically, a majority of the committee must be present, and the committee must take minutes of each meeting. Additionally, upon request, the committee must make the minutes available to any hospital staff member or to the Connecticut State Department of Public Health (DPH).

Hospital Notice and Recordkeeping Requirements Pertaining to Staffing Committees

At the time of hire, and annually each year after, the hospital must inform nurses about the staffing committee. This notice should include the staffing committee’s purpose, the criteria and process for becoming a member, the hospital’s internal review process for the nurse staffing plan, and how input is obtained from direct care RNs and other members of patient care teams in developing the plan.

Additionally, hospitals must maintain accurate records of the ratios of patients to direct care RNs and patients to assistive personnel providing patient care in each direct care unit for each shift. These records must be maintained for at least the three preceding years, and must include the number of: (1) patients in each unit on each shift, (2) direct care RNs assigned to each patient in each unit on each shift, and (3) assistive personnel providing patient care assigned to each patient in each unit on each shift. Upon request, these records must be made available to the DPH, hospital staff, patients, collective bargaining representatives, and/or the public.

Submission of Staffing Plans and Reporting Requirements to DPH

Hospitals must submit their proposed nurse staffing plans to DPH on a semi-annual basis, by January 1 and July 1. The proposed plan must include written certification that the plan is sufficient to provide adequate and appropriate patient health care services. Hospitals are also required to post the plans on each patient care unit in a location that is accessible and visible to staff, patients, and the public.

Beginning January 1, 2024, each proposed plan must include: (1) information about any objections to or refusals to comply with the nurse staffing plan by hospital staff that were communicated to the hospital staffing committee; (2) measurements of and evidence to support successful implementation of the nurse staffing plan; (3) retention, turnover and recruitment metrics for direct care RN staff; (4) each time since the last plan was submitted that the hospital was non-compliant with the plan, including nurse staffing ratios, a description of how and why the hospital was non-compliant, and the hospital’s plans to avoid future noncompliance; and (5) certification that the hospital and its hospital staffing committee are meeting the law’s requirements, with a description of how each requirement is being met.

Hospitals must report twice a year to DPH regarding their compliance with nurse staffing assignments as outlined in the nurse staffing plans. This reporting obligation begins October 1, 2024. If the DPH receives complaints of noncompliance, it will investigate and, if necessary, issue orders that require the hospital to implement corrective action plans and pay civil fines.

RN Objections to Participation

Under the new law, hospitals cannot require RNs to perform patient tasks that are beyond the scope of their license, training, or experience. If required to do so, RNs can object to such assignments, unless their objection/refusal occurs: (1) during an ongoing surgical procedure (RNs must wait until it is completed); (2) in critical care units, labor and delivery, or emergency departments (RNs must wait until they are relieved by another nurse); (3) public health or institutional emergencies; and (4) where the RN’s inaction or abandonment would jeopardize patient safety.

RNs who plan to object to refuse an assignment must immediately notify a supervisor to coordinate a suitable replacement. Within 12 hours of objecting, the objecting/refusing RN must submit a written report on a form developed by the hospital and approved by DPH.

Hospitals are prohibited from taking adverse action against an RN for objecting or refusing to perform patient tasks outside of their expertise/experience. However, a hospital, DHP, or the State Board of Examiners for Nursing may require a nurse to complete additional training or education consistent with the nurse’s job description.

Action Items

1. Review the full committee selection and staffing plan requirements here.
2. Develop the required RN objection and/or refusal of assignment form, with approval from DPH.
3. Review and revise policies and procedures to be consistent with new staffing committee requirements, notice obligations, and recordkeeping requirements.
4. Consult with legal counsel regarding existing labor-management procedures to ensure compliance with any applicable staffing plans developed under the new law.
5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

APPLIES TO Employers with 10+ Employees in DE

EFFECTIVE As indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Delaware Department of Labor Division of Paid Leave has published the first set of interpretive rules in anticipation of the state’s upcoming family and medical leave program. The rules provide guidance on determining employer and employee coverage, the duration and amount of benefits available, and employee notice obligations. The rules also provide a detailed explanation of how employers can apply for: (1) a private plan in lieu of the state program; or (2) an exemption from coverage based on a pre-existing comparable private paid time off benefit plan.

Discussion

In 2022, Delaware enacted the Healthy Delaware Families Act (HDFA), creating a paid family and medical leave requirement for Delaware employers. As enacted, the obligation to provide paid benefits under the program does not begin until January 1, 2026, with employer and employee contributions beginning on January 1, 2025.

On July 11, 2023, and in anticipation of the HDFA’s effective date, the Delaware Department of Labor Division of Paid Leave (Division) published the first set of rules regarding the PFML program, which are summarized below.

Covered Employers and Employees

The HDFA applies to employers with 10 or more employees in Delaware. Employers with 10 to 24 employees in Delaware, however, are only required to comply with law’s Parental Leave requirements. Employers with 25 or more employees in Delaware are subject to all PFML requirements. As outlined in the rules, employers should determine whether they meet either the 10-employee or 25-employee coverage threshold by counting the number of employees over the preceding 12-month period

“Covered employees” include individuals who (1) work primarily at a worksite in Delaware (i.e., spend at least 60% of their working hours physically in Delaware) and (2) meet or are reasonably expected to meet the employee eligibility requirement of 12-months of service and 1,250 hours of service within the previous 12-month period. “Reclassified” employees must be counted but employees who are covered by a waiver of coverage are not. The rules define under what circumstances an employer may “reclassify” employees, as well as what is required to establish a waiver of coverage.

Once an employer meets either the 10-employee or 25-employee coverage threshold, the employer will remain subject to the program for at least 12 consecutive months. After the 12-month period, and with a covered employee count below either the 10 or 25-employee coverage threshold, the employer will no longer be obligated to comply with the applicable provisions of the HDFA. However, employers with 10 to 24 employees may voluntarily “opt in” to allow its employees to access PFML benefits for family caregiver leave, medical leave, or qualified exigency leave through the program. Employers must provide notice to employees who gain or lose coverage under the HDFA due to the change in their employer’s headcount.

Reasons for Use and Duration of Benefits

The rules categorize the PMFL benefits into four different areas of coverage:

• Parental Leave – leave authorized for time off within the first year after birth, adoption, or placement through foster care of a child.
• Family Caregiving Leave – Leave authorized for time off in the event of a serious health condition (illness or accident) of a child, spouse, or parent.
• Medical Leave – Leave authorized for time off in the event of the employee’s serious health condition.
• Qualified Exigencies – Leave authorized for time off for qualified issues that arise in connection with a military deployment.

Employees are eligible to receive up to 6 weeks of PFML in a 24-month period to be used for Family Caregiving Leave, Medical Leave, or Qualified Exigencies. The 24-month period is the 24-month period that begins on the first day of the requested leave.

Employees are eligible for up to 12 weeks of PFML in an application year to be used for Parental Leave. The “application year” is the employer’s designated 12-month period for leave under the federal Family Medical Leave Act (FMLA). If employees are combining Parental Leave with another line of coverage, employees are eligible for a maximum of 12 weeks of PFML in an application year.

The rules provide that employers with 10 to 24 employees may temporarily reduce the Parental Leave maximum benefit duration from 12 weeks to a minimum of 6 weeks for claims submitted prior to January 1, 2031. To qualify for this option, employers must notify the Division of their intention to do so by January 1, 2024, and they must notify their employees of this decision in writing no later than December 1, 2024.

Additionally, employees who are on Family Caregiving Leave for a family member who dies must notify the Division of the date of the family member’s death within 72 hours of the person’s passing. The Division may then continue to pay PFML benefits until seven days after the death of the family member or the previously approved end date for the leave.

The rules indicate that the Division will approve PFML benefits for leave taken on an intermittent or reduced schedule basis, but only when it is medically necessary and supported by documentation. PFML benefits are payable in increments as small as one workday, so if an employee is approved for and takes intermittent FMLA in smaller increments (i.e., 2 hours), the employee will not be eligible for PFML benefits during that absence. The rules do not address the possibility of taking Parental Leave intermittently.

Payroll Contributions and Amount of Benefits

Payroll contributions will begin on the later of either January 1, 2025, or the first day of the payroll period after the employer meets or exceeds the 10 or 25-employee coverage threshold. Payroll contributions will be submitted to the Division on a quarterly basis.

Employers must contribute 50% of the total contribution, but they may elect to contribute more. If an employer decides to contribute more than 50%, the employer must file a change with the Delaware DOL and provide notice to all affected employees by December 15 of the year prior to the January 1 effective date the following year.

Employee Notice Obligations

Under the rules, employees generally should provide employers with at least 30 days’ advance notice of a need for leave under the HDFA. If 30 days’ notice is not practicable, because of a lack of knowledge, a change in circumstances, or a medical emergency, notice must be given as soon as practicable, considering all the facts and circumstances of each individual case.

If the need for leave was clearly foreseeable to the employee at least 30 days in advance of the leave but the employee fails to give timely advance notice with no reasonable excuse, the employer may delay coverage until 30 days after the employee provides notice.

Private Plans

As with most other PFML programs across the country, employers may opt to use a private PFML plan rather than the state’s PFML program. The private plan must provide the same or greater rights, protections, and benefits to employees as they would receive under the state program. Employers may require employees to contribute to the private plan, but not more than what employees would have contributed under the state plan. Employers may also opt for a hybrid approach which may include combining a private plan for certain lines of coverage with the state PFML program for the remaining lines of coverage.

The application for submitting a proposed private plan for substitution will be opened on September 1, 2024. Applications to substitute a private plan for calendar year 2025 must be submitted by December 1, 2024.

Exemptions from Coverage for Pre-Existing Policies

Under the rules, employers that offered private paid time off benefit plans that were in place before May 10, 2022, may be exempt from compliance with the HDFA until December 31, 2029 if their plan is deemed “comparable” to the state’s public plan and they were made available to all employees. To qualify for this exemption, employees may not be required to contribute more to the employer’s “grandfathered” plan than what they would be required to continue under the state PFML program. Additionally, the grandfathered plan’s benefit percentages, maximum benefits, and benefit duration must be within 10% of the state PFML components.

Any grandfathered plan cannot be altered unless the change improves the benefit offered to employees and is approved by the Division. The deadline for submitting grandfathering applications is January 1, 2024. The application will be made available on October 1, 2023.

Action Items

1. Review the Delaware Department of Labor website for more information on the PFML program.
2. Revise policies and train appropriate personnel on paid time off procedures.
3. Consult with counsel regarding any potential “grandfathered” exemptions or substitution of private plans.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

APPLIES TO As Indicated

EFFECTIVE January 1, 2024

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Effective January 1, 2024, employers in Hawaii are required to disclose an hourly rate or salary range that reasonably reflects the actual expected compensation for the job for each job listing. Hawaii’s equal pay law is expanded to prohibit pay discrimination on the basis of any protected characteristic under Hawaii law. Under Hawaii’s revised equal pay law, employees must receive equal pay if they are performing “substantially similar” work.

Discussion

On July 3, 2023, Hawaii Governor Josh Green signed SB 1057, requiring pay transparency in Hawaii job postings. Under the law, and effective January 1, 2024, Hawaii employers with 50 or more employees will be required to disclose an hourly rate or salary range that reasonably reflects the actual expected compensation for the role in each job listing.  Notably, the law does not define “hourly rate” or “salary range,” and it does not require employers to disclose pay information in job listings for positions that are internal transfers or promotions within the company.

The law explicitly excludes job listings for positions with employers that have fewer than fifty employees and public employee positions for which salary, benefits or other compensation are determined pursuant to collective bargaining.  Additionally, the law does not specify whether the 50-employee threshold refers to employees within Hawaii or to a company’s total employee count. Employers will want to monitor interpretations in this regard, prior to and following the law’s effective date.

Aside from pay transparency, SB 1057 also amends Hawaii’s equal pay law in two significant ways. First, the equal pay law will now prohibit pay discrimination based on any protected category under Hawaii law, not just sex. This includes pay discrimination based on race, sex (including gender identity or expression), sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status.

Second, SB 1057 adopts a different standard for comparing employees for purposes of analyzing differentials in employee pay. Hawaii’s previous equal pay law tracked the federal Equal Pay Act, applying the “equal work” standard, which requires employee to establish that they were paid less than another employee for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.” The amendment broadens the protections to allow comparison of employees who are performing “substantially similar work” rather than “equal work.” Both amendments to the equal pay law are effective January 1, 2024.

Action Items

1. Have an audit conducted of employee job descriptions and compensation rates to confirm compliance with the new requirements.
2. Update job postings to comply with pay transparency requirements.
3. Train appropriate personnel on job posting and equal pay requirements.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

APPLIES TO All Employers with Employees in ME

EFFECTIVE May 1, 2026

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Beginning May 1, 2026, Maine’s new paid family and medical leave law will provide employees with up to 12 weeks of paid family and medical leave benefits over a one-year period. PFML benefits are financed through premium contributions from both employers and employees, which will begin on January 1, 2025. Maine’s PFML law will cover virtually all Maine employees, including public employees (except federal government employees), as well as self-employed Mainers and tribal government employees. Employers can expect more detailed guidance and regulations to be published by the Maine Department of Labor prior to the Act coming into effect.

Discussion

Beginning May 1, 2026, Maine’s new paid family and medical leave law will provide employees with up to 12 weeks of paid family and medical leave benefits over a one-year period. Employers can likely expect additional guidance to be issued by Maine’s Department of Labor prior to the effective date of the PFML program, however, employers should begin preparations for implementing the program now. Highlights of the new law are summarized below.

PFML Program Financing. The program’s benefits will be financed through a mandatory “premium” based on employee wages of up to 1%, which will be split evenly between employee and employer. Maine employers with fewer than 15 employees will not be subject to the payment of the employer’s portion of the premium, however, they will still be required to collect and pay the employee portion. Although the overall PFML program will not start until May 1, 2026, Maine employers and employees will begin paying the benefit premiums on January 1, 2025.

Employee Eligibility. Defined broadly, a “covered individual” under the new law includes all Maine employees who earn at least six times the state average weekly wage subject to premiums during the prior year. Exceptions exist for tribal employees, the self-employed, and employees subject to collective bargaining agreements.

Employee Notice Requirement and Reinstatement. In order to take leave under the Maine PFML law, employees must provide reasonable notice to the employer of their intention to take leave and the leave must be scheduled in such a way to avoid imposing an undue hardship on the employer (with certain exceptions for unforeseen emergencies). Employees taking PFML that have been employed for longer than 120 days must be returned to the same or equivalent position upon their return from leave.

Employee Benefit Entitlement. The program will pay covered employees “the portion of the covered individual’s average weekly wage that is equal to or less than 50% of the state average weekly wage” at a rate of 90%. Additionally, the program will pay covered employees “[t]he portion of the covered individual’s average weekly wage that is more than 50% of the state average weekly wage” at a rate of 66% up to the maximum weekly benefit of 100% of the average weekly wage. Leave under the program will run concurrently with leave under the federal Family and Medical Leave Act.

Covered Reasons for Leave. Paid leave is provided for the same list of reasons outlined under Maine’s unpaid Family and Medical Leave law. This includes: (1) to bond with the covered individual’s child during the first 12 months after the child’s birth or the placement of the child for adoption or foster care; (2) to care for a family member with a serious health condition, including persons of significant personal bond regardless of biological or legal relationship; (3) to attend to a qualifying exigency; (4) to care for a family member who is a covered service member; (5) to take safe leave; (6) for a serious health condition of the covered employee; (7) for donation of an organ by the employee; or (8) for the death of a close family member if the family member dies or incurs a serious health condition while on active service duty.

Employer Notice Requirements. The Maine DOL is in the process of developing a required poster outlining employee rights under the PFML law. Once the poster is issued and the PFML law goes into effect, Maine employers will be required to display the poster in a conspicuous place in the workplace. Maine employers are similarly required to notify new employees in writing of their rights under the PFML law within the first 30 days of employment.

Effect on Employer Private Plans. Like the separate Maine Earned Paid Leave program, Maine employers will be permitted to substitute their own private plans in place of participation in the state PFML program. Such private plans must provide the same or greater rights, protections, and benefits to employees as they would receive under the state program. If electing to do so, Maine employers are required to seek approval from the Maine DOL in order to substitute their own private plans.

Action Items

1. Review the full Maine PFML program requirements here.
2. Monitor Maine’s DOL website for additional information and guidance on the PFML program.
3. Review current paid leave policies and procedures, and consult with legal counsel regarding implementation of PFML program and compliance with updated obligations.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase