HR, Benefits, and Payroll Compliance Monthly Roundup
Federal Government Eliminates Employee Retention Tax Credit
The recently enacted Infrastructure Investment and Jobs Act put an end to Employee Retention Tax Credits for employers. Employers may no longer apply for tax credits on wages that were paid after October 1, 2021. Employers who opened their business during the COVID-19 pandemic may have qualified for a recovery startup business and could have submitted their tax credits for wages paid up until January 1, 2022.
U.S. DOL Issues Final Rule Implementing Executive Order on Federal Contractor Minimum Wage Effective January 30, 2022, Executive Order 14026 is in place; it increases the minimum wage for federal contractors to $15.00 per hour. This increase is applicable to all non-exempt federal contract employees who are engaged in one of the following contracts:
- Purchasing contracts in the construction industry covered by the Davis-Bacon Act
- Service contracts covered by the Service Contract Act
- All concession contracts, including those that are excluded from the Service Contract Act
- Any contract entered into with the federal government involving federal property, or services to federal employees, their dependents, or the public
The hourly rate will increase annually starting January 1, 2023. The increased rates will be contingent upon the prior year’s Consumer Price Index (CPI) for Urban Wage Earners & Clerical Workers.
Supreme Court Blocks OSHA ETS
OHSA withdrew the vaccination and testing emergency temporary standard for employers with 100 or more employees. Despite this, employers may still adopt vaccination requirements in the workplace. To read our full summary, see our e-Alert: Supreme Court Blocks OSHA ETS.
U.S. Supreme Court Lifts Injunctions Against CMS Vaccine Mandate
The Supreme Court gave the green light to the Centers for Medicare and Medicaid Services’ (CMS) final rule requiring COVID-19 vaccinations for healthcare workers. CMS is responsible for conditions and stipulations of healthcare establishments that receive funding from Medicare or Medicaid.
Insurers and Health Plans Required to Cover OTC COVID-19 Tests
The Departments of Health and Human Services (HHS), Labor, and Treasury issued FAQs outlining new requirements for group health plans and health insurance issuers to cover over-the-counter (OTC) COVID-19 diagnostic tests. The new requirements apply to all group health plans (fully insured and self-funded). The new requirements go into effect for tests purchased on or after January 15, 2021. To read our full summary, see our e-Alert: Insurers and Health Plans Required to Cover OTC COVID-19 Tests.
COVID-19 At-Home Test Coverage
Medical carriers will be covering the costs of FDA-authorized, rapid, at-home COVID tests for commercial members for the duration of the federal public health emergency, in accordance with the federal government’s new guidance, effective January 15, 2022. To read our full summary, see our e-Alert: COVID-19 Test Coverage.
Tempe, Arizona Amends Anti-Discrimination Ordinance to Cover Discrimination Based on Hair Texture
The amended ordinance clarifies the definition of race as any group of individuals who may be identified by common physical traits that allude to shared ancestry. Of these traits, the amendment recognizes a protected trait to be the following hairstyles: braids, locs, twists, tight coils or rolls, bantu knots, afros, and headwraps
The New “Notice at Collection” California Employers Must Distribute to the Workforce
Effective January 1, 2023, the California Privacy Rights Act (CPRA) requires employers to provide a ‘notice at collection’ to all employees. Unlike previous notices required by the California Consumer Privacy Act (CCPA), this notice incorporates specific details regarding the data that is collected and how it will be used. Under the CPRA, the following items have been added to the list of personal protected information (PPI):
- Information that reveals an employee’s:
- race or ethnic origin
- religious or philosophical beliefs
- union membership
- precise geolocation
- health, sex life, sexual orientation
- emails and text messages (unless the business is the recipient)
The notice at collection must be provided to the employee at or before the point of collection of personal information. The CRPA states that employers should set a retention schedule for these notices; the retention period is to be set by the employer.
Cal/OSHA Approves 2nd Readoption of ETS and Governor Issues Order Potentially Further Extending COVID Restrictions
In June 2021, California’s Occupational Safety and Health (Cal/OSHA) Standards Board implemented an Emergency Temporary Standard (ETS) regarding the COVID-19 pandemic. With an initial expiration date of January 14, 2022, the ETS has been extended through mid-April 2022 with amendments. To read our full summary, see our e-Alert: Cal/OSHA Approves 2nd Readoption of ETS and Governor Issues Order Potentially Further Extending COVID Restrictions.
Los Angeles County Expands Vaccine Mandate to Cover County Contractor Personnel
Effective immediately, all contractors and subcontractors working within Los Angeles County must be fully vaccinated against COVID-19 or undergo regular testing. This includes contractors who:
- Work in person with members of the Los Angeles County
- Are working on county-owned property, and/or
- Encounter other county workforce members or the public within the county while they are working on assignment
If a medical or religious exemption has been approved, the contractor must submit to weekly testing, wear a mask, and continue to social distance as added safeguards. Contractors must submit proof of vaccination by completing the COVID-19 Contractor Notification and Certification form within seven days of when the County’s Department of Public Health requests the information.
West Hollywood Amends Service Charges, Local Minimum Wage, and Leave Updates
West Hollywood recently passed Ordinance 21-1168 which provides multiple compliance provisions for all employers operating within the city’s geographical limits. The provisions include clarifying how businesses can administer service charges, establishing a local minimum wage, and requiring paid and unpaid leave for employees. To read our full summary, see our e-Alert: West Hollywood, CA Round-Up: Service Charge, Local Minimum Wage, and Leave Updates.
West Hollywood Enacts Ordinance Requiring Training for Employees of Establishments with On-Site Alcoholic Beverage Sales
Certain businesses are now mandated to provide two required trainings to all employees: Responsible Beverage Service (RBS) and Bystander Intervention and Safety Training. Additionally, record keeping requirements for these trainings and signage should be displayed accordingly.
Employers have until August 31, 2022 to ensure that all alcohol server or managers employed prior to July 1, 2022 have completed their RBS certification. This training must be completed every three years thereafter. New hires employed on or after July 1, 2022 will be required to complete RBS training within their first 60 days of employment. The training must be conducted by the Alcohol Beverage Control (“ABC”) or an organization that is certified by ABC and provides a certificate of completion.
Bystander Intervention and Safety Training must be completed for all current employees by May 30, 2022. Employees hired on or after April 1, 2022 have 90 days to complete the training. This training must be provided by the city or an approved organization, and all licensees must ensure that all alcohol servers and managers have a valid certificate.
Employers are required to keep complete records of these trainings (e.g., list of names, dates of trainings, certificates of completion) and ensure their workforce is retrained every third year.
Lastly, the ordinance mandates that signage should be posted in each restroom, hand-washing areas, bar counters, and other conspicuous locations within these establishments. The signage must notify their patrons that their safety is important, and the staff have been training to respond to sexual harassment. The appropriate signage will be distributed by the city.
Colorado Adopts COMPS Order 38 & Passes Final Rule Under Wage Protection Act
Effective January 1, 2022, Colorado’s Overtime and Minimum Pay Standards (COMPS) Order will be amended. The amendment clarifies the two permitted calculations to determine an employee’s regular rate of pay, establishes an exemption for highly compensated employees, and provides additional wage and hour protections for agricultural workers. The new COMPS Order 38 must be distributed with any handbook or policy revision.
The amended Wage Protection Act (WPA) makes note that either of the permitted calculations for regular rate of pay may be used to calculate the pay rate for employees using paid time under the Healthy Families and Workplaces Act (HFWA). Additionally, the amendment clarifies that vacation time is inclusive of any PTO time. Employers cannot require that employees forfeit their vacation or PTO time at the end of the year, or upon separation with the company.
Colorado Criminalizes Certain Restrictive Covenants
Restrictive covenants are agreements that protect a business by restricting other parties from performing similar work for a period of time in certain geographical areas.
In 2021 a bill was put in place which criminalizes any violations of Colorado’s restrictive-covenant statute. Any noncompete agreements in Colorado are considered void unless the agreement is subject to the following exceptions:
- For the purchase and sale of a business or the assets of a business
- For the protection of trade secrets
- For the recovery of the expense of educating and training an employee under certain conditions
- For executive and management personnel
Any restrictive covenants other than the above restrictions are considered unlawful. Effective March 1, 2022 Colorado employers who create void noncompete agreements could face 120 days of imprisonment, a $750.00 fine per violation, or both.
An important section of the bill for employers to beware of: “It is unlawful to use force, threats, or other means of intimidation to prevent any person from engaging in any lawful occupation at any place he sees fit.”
Colorado employers must take care to determine that the restrictive covenants they wish to present to their employees to sign complies with the allowed exceptions.
Colorado Issues Final Rules on Premium Payments for Paid Family and Medical Leave Program
Effective January 1, 2023 Colorado employers with at least one employee will start contributions to fund Colorado’s Paid Family and Medical Leave Program. Contributions will consist of a 0.45% deduction from the employee’s earnings and an employer match of an additional 0.45%. Employers have the option of contributing a larger percentage, up to the entire cost.
Note: Employer contributions are mandated for companies with 11 or more employees. If a company has 10 or less employees, employees will be responsible for the full 0.9% contribution.
Employees may take up to 12 weeks of leave starting on January 1, 2024 for any of the following reasons:
- Care for a new child during the first year after the birth, adoption, or for foster care of a new child
- Care for their own serious health condition
- Care for a family member’s serious health condition
- Plan for a family member’s military deployment
- Address an individual’s safety in the event of a domestic violence or sexual assault
An additional four weeks may be taken should an employee face complication during pregnancy or childbirth.
DC Brings Back Mask Mandate and Encourages Vaccine Mandates
All individuals in Washington, D.C. are now mandated to wear a mask in any indoor setting, regardless of their vaccination status. In addition to the mask mandate, the Office of the Mayor is encouraging all businesses to mandate vaccinations for both employees and visitors.
Washington D.C. Amends COVID-19 Laws
Employers must provide up to 48 hours of paid leave to employees who need to take time off from work related to COVID vaccinations for themselves or qualified family member(s). This time is separate from other forms of Company-paid leave benefits.
The D.C. Family and Medical Leave Act has also expanded its covered purposes to include leave for COVID-related needs.
Florida Passes Law Requiring Exemptions for COVID-19 Vaccination Mandates
The new law prohibits employers from terminating or hiring an employee based on a COVID-19 vaccination mandate.
Employers must allow an employee to opt out of vaccine requirements for any of the following approved reasons:
- For a medical exemption (including pregnancy or anticipated pregnancy) the employee must be of child-bearing age and intend to become pregnant
- For a religious exemption, the new law requires employees to provide a statement that they are declining vaccination because of a sincerely held religious belief
- For an exemption based on COVID-19 immunity, the employee must provide proof of a positive lab result from a diagnostic test or antibody test
- For an exemption based on periodic testing of no more than weekly or if employee is experiencing any COVID-19 symptoms;. this cost is covered by the employer
- For an exemption based on employer-provided personal protective equipment (PPE) the new law requires employees to provide a statement that they agree to comply with the employer’s reasonable written requirement to use PPE when they are at work
Florida’s Department of Health created forms for employees to use when requesting a vaccination exemption.
The Florida Division of Workforce Services: Unemployment Eligibility
If an employee was terminated for refusing to comply with a COVID-19 vaccine mandate the employer will have to prove that they offered approved exemptions.
Illinois Amends Kin Care Law to Remove Exception for Employees Covered by the Railway Labor Act
This law previously exempted employees whose employers were subject to the provisions of Title II of the Railway Labor Act (any labor in relation to railroad and airline industries). However, this amendment now allows all employees, regardless of the Railway Labor Act, to reap the benefits of the Illinois Employee Sick Leave Act.
Kansas Requires Medical & Religious Exemptions for COVID-19 Vaccine Requirements
Kansas enacted a law that if an employer requires employees to receive the COVID-19 vaccination, the employer must also provide exemptions to receiving the vaccination.
Employees must submit written waiver requests stating that the vaccine requirement would either endanger their life or endanger the life of their household members or violate a sincerely held religious belief.
A medical exemption waiver request must include a signed statement by a physician or a physician’s agent. An employer must approve this exemption without questioning the sincerity of the employee’s request.
If an employee was discharged or suspended by an employer violating the Kansas COVID-19 Medical & Religious Exemptions law and the employee is otherwise eligible, the employee will be eligible to receive unemployment benefits.
Massachusetts High Court Clarifies Test to Determine Joint Employer Status under State Wage and Overtime Statutes
In the state of Massachusetts, joint employer status is determined by the “totality of circumstances” test. To be considered a joint employer, organizations must establish the following four factors through the totality of circumstances test:
- Had the power to hire and fire the individual
- Supervised and controlled the individual’s work schedules or conditions of employment
- Determined the rate and method of payment, and
- Maintained employment records
Massachusetts Creates At-Will Employment Exception
Massachusetts is an at-will state, in which employers and employees can choose to terminate their employment at any time. Massachusetts also has the “right to rebuttal” statute where employers must notify an employee whenever they are modifying or adding information to their personnel file. Employees have a right to inspect their personnel file and submit a written statement explaining their position on the modifications; this written statement must then be included in the personnel file. The state’s highest court recently held that employers may not terminate an employee solely for exercising their right to file a rebuttal. To read our full summary, see our e-Alert: Massachusetts Creates At-Will Employment Exception.
East Lansing, Michigan Prohibits Discrimination Based on Hair Texture and Protective Hairstyles
East Lansing expanded the definition of discrimination to include traits historically associated with race. The amendment specifically includes protective hairstyles, such as braids, locs, twists, and knots.
New Jersey Expands Scope of “Employment” for Purposes of Workers’ Compensation Coverage
Under New Jersey’s workers’ compensation law, employment begins when an employee arrives at the employer’s place of employment to report for work and terminates when the employee leaves the place of employment.
Coverage ends when the employee is not in areas of their employer’s control. However, if a NJ employer requires an employee to be away from the employer’s place of employment, the employee is only considered to be working when engaged in duties directly assigned by the employer.
What is Deemed Employment:
- Employment of any employee who utilizes an employer-authorized vehicle, begins, and ends, with the time spent travelling to and from a job site
- When an employee is travelling in a ridesharing arrangement (carpooling) to get to work, and if one of the following conditions is satisfied:
- The vehicle used is owned, leased, or contracted for by the employer
- The employer requires the employee to travel in a ridesharing arrangement as a condition of employment
If an employer provides a parking area for use by an employee, employment begins when an employee arrives at the parking area prior to reporting for work and ends when an employee leaves the parking area at the end of a work period. It is important to note that if the employer’s parking area is separate from the place of employment, an employee starts working from the time they walk from the parking area to the place of employment and ends once they walk back to their vehicle at the end of the day.
New Jersey Prohibits Use of Vehicle Tracking Devices Without Notice
Private employers in NJ must provide employees with written notice before using tracking devices on vehicles operated by employees beginning April 19, 2022.
Under the new law, “tracking device” means a device designed or intended to be used for the sole purpose of tracking a vehicle, person, or device, but does not include expense reimbursement documentation devices.
An employer that knowingly makes use of a tracking device in a vehicle used by an employee without first providing written notice to the employee is subject to a civil penalty of up to $1,000 for the first violation and up to $2,500 for subsequent violations.
New York City Additional Paid Sick Time and Vaccination Mandates
COVID-19 remains an imminent risk in New York City, NY. To help reduce these risks, city officials are encouraging everyone age 5 or older within the city limits to get vaccinated and have implemented a city-wide mask mandate as well as a vaccination mandate for private employers. To read our full summary, see our e-Alert: New York City: Additional Paid Sick Time and Vaccination Mandates.
New York City Council Approves Bill Requiring Inclusion of Salary Ranges in Job Postings
The New York City Council has approved a bill that requires NYC employers with four or more employees to include the lowest minimum and highest maximum salary offered for all advertised NYC job, promotion, or transfer opportunities. This salary range would need to be what the employer believes it would pay at the time of the posting.
The bill would not apply to job postings for temporary employment. The bill now goes before the mayor for consideration.
New York State Court Strikes Down Statewide Mask or Proof Requirement
On January 24, 2022 the NYS Supreme Court in Nassau County struck down New York State’s COVID-19 mask-or-proof of vaccination requirement for indoor public places. On January 25, 2022 the NYS Appellate Division granted a stay (suspension) of the Nassau County Court’s decision pending determination of the State’s appeal. To read our full summary, see our e-Alert: New York State Court Strikes Down Statement Mask or Proof Requirement.
New York Department of Labor Releases Final Regulations for State Sick Leave Law
New York state adopted a statewide sick time law and final regulations that were published in late December 2021 to provide additional clarification. To read our full summary, see our e-Alert New York Department of Labor Releases Final Regulations for State Sick Leave Law.
New York City Enacts Law to Regulate Use of Automated Hiring Tools
As technology has advanced, employers have started to utilize Artificial Intelligence tools to streamline their recruiting and hiring decisions. The U.S. Equal Employment Opportunity Commission (EEOC) launched an initiative to ensure any Artificial Intelligence tools utilized in the hiring process and impacting employment decisions are fair and consistent with federal equal employment opportunity laws. New York City, however, has decided to take an additional approach to ensure discrimination protection for candidates. To read our full summary, see our e-Alert: New York City Enacts Law to Regulate Use of Automated Hiring Tools.
New York City Employers Must Allow Leave for Child COVID-19 Vaccinations
New York City has amended its Earned Sick and Safe Time Act deeming the following reasons eligible for paid sick time:
- To accompany an employee’s child when receiving the COVID-19 vaccination
- To care for an employee’s child who is suffering from side effects of the COVID-19 vaccination
Employees may take up to four hours of paid leave per injection for each of their children. The leave is set to expire on December 31, 2022. To read our full summary, see our e-Alert: New York City: Additional Paid Sick Time and Vaccination Mandates.
Albany, NY Prohibits Discrimination Based on Natural Hair Texture, Protective Hairstyles or Use of Turban Wraps
Albany County, New York passed an amendment that expands protections to make it an unlawful discriminatory practice for an employer to deny employment or promotion to any individual because of an employee’s natural hair texture, use of protective hairstyles (see definition below), or use of turban wraps.
“Protective hairstyle” includes styles such as braids, locs, cornrows, twists, Bantu knots, poufs, and similar styles meant to protect natural hair.
Ohio Prohibits Vaping in the Workplace
The state of Ohio has amended their ‘Smoke-Free Workplace’ requirements to prohibit vaping. Under the amendment, smoking includes the use of electronic cigarettes and vapor products.
Ohio Passes Business Fairness Act
Businesses that were required to close due to the pandemic may resume operations if the business complies with all required safety precautions beginning March 2, 2022.
Oregon OSH Administration has Amended Regulations on COVID-19 Workplace Risks
The Oregon OSH Administration have amended the final rule to the regulations on COVID-19 Workplace Risks; the amendments are:
- Healthcare employers must ensure all employees wear a mask, face covering, or face shield if a six-foot distance can’t be consistently maintained or within shared workspaces less that provide less than 100 square feet per person
- Employers must continue to follow the Indoor Space Advisory
- Employers must provide masks, face coverings, or face shields at no cost
- Employers are no longer required to ensure 6 feet distance in between coworkers, except for healthcare and transit settings
- Except for healthcare settings, employers are no longer required to regularly clean and sanitize all common areas unless it is shared equipment, high-touch surfaces, or has any known COVID-19 exposure
- Employers still need to provide employers with time and supplies to clean more frequently if they wish
- Employers are still required to allow their employees to return to their previous duties, if still available and without any adverse action because of a COVID-19 quarantine. Employees must also be provided the benefits the employee would normally receive when working
- Compensation Obligations:
- For employers with 500 or more employees, the employer must pay the employee the same regular (non-overtime) pay the employee would have received had the employee not been absent from work, up to a maximum of $1,400 per week, until the employee is able to return to work
- For employers with fewer than 500 employees, the employer must pay the employee benefit described directly above, however beginning in the third week of an employee’s removal, the employer is permitted to reduce the amount to only two-thirds of the same regular pay the employee would have received had the employee not been absent from work, up to $200 per day ($1,000 per week in most cases)
The employer’s obligation for compensation is reduced by the amount of compensation for lost earnings that the employee receives from any other source.
Allegheny County, PA, Paid Sick Leave Ordinance Update
In September 2021 Allegheny County, PA passed a sick leave ordinance requiring employers with at least 26 employees to provide paid sick leave to their employees. Recently, the county modified the effective date of the ordinance to December 15, 2021. To read our full summary, see our e-Alert: Allegheny County, Pennsylvania, Paid Sick Leave Ordinance Update.
City of Philadelphia, PA Announces Food Establishment Vaccine Mandate
Effective immediately, proof of COVID-19 vaccination is required for all employees and customers over the age of five who enter a food establishment within the city of Philadelphia. Effected food establishments include those which serve food and/or drink for on-site food consumption, with the following exemptions:
- K-12 and early childcare facilities
- Congregate care facilities
- Special and vulnerable population providers (e.g., soup kitchens)
- Grocery stores
- Convenience stores
- Wholesale food establishments
- Philadelphia International Airport quick-service restaurants
Customers and employees who have established a bona fide exemption for not having the vaccine must provide supporting documentation in lieu of proof of vaccination, as well as a negative test result taken within 24 hours of entry.
Tennessee Passes Multi-Faceted Law on COVID-19 and Vaccination
Tennessee’s new law does not allow government entities, schools, and employers to implement vaccine mandates.
- A private business is not allowed to require proof of vaccination to access the business’s premises
- A private business is not allowed to ask a person why they have not taken the COVID-19 vaccine or if they decline providing proof of vaccination
- Private businesses and private schools may set their own mask policies for employees and customers
- If an employer requires its employees to receive a COVID-19 vaccine and the person seeking unemployment benefits refused to get vaccinated, that person is still eligible for unemployment benefits
Tennessee Issues Emergency Rule on COVID-19 Quarantine Procedures
Tennessee’s new rule requires employees to quarantine immediately after a positive COVID-19 test. Employees with or without symptoms need to self-isolate for at least 10 days. However, self-isolation may end at any time following a negative COVID-19 test.
Private business may be temporarily quarantined if the Commissioner of Health determines the threat of COVID-19 spread can’t be controlled. The quarantining procedures will be lifted as soon as conditions are no longer threatening.
The Washington Industrial Safety and Health Act- Amendment
Washington has increased the number of days a workplace safety citation must be physically posted by employers in the workplace. Notices must now be posted for seven (7) working days, and “working days” excludes weekends and holidays. Employers may use electronic means to inform telework employees of any current safety violations.
Seattle Expands Discrimination Protections
The Seattle human rights ordinance has previously put in place prohibitions against employee discrimination against age, race, color, religion, sex, national origin, marital status, parental status, sexual orientation, gender identity, political ideology, creed, ancestry, or the presence of any disability.
A recent amendment expands this ordinance to prohibit employee discrimination based upon citizenship or immigration status and to clarify race includes hair texture and protective hairstyles, which includes, but is not limited to afros, locs, braids, and twists.
Washington Employers May Consider Delaying January 2022 Start Date for Collecting “Washington Cares Act” Premiums from Employees
In April of 2021 Washington Governor Jay Inslee signed into effect the WA Cares Act which developed a state-run program to provide long-term care insurance affordable for all workers in Washington state. This Act requires Washington employers to withhold mandatory employee premiums to fund the program beginning January 1, 2022.
However, Governor Inslee and legislators agree that changes are needed to improve the WA Cares Act. Based on the anticipated legislative delay, Governor Inslee suggested employers pause on collecting WA Cares premiums until formal extension of implementation dates are released. Although not required, employers may wish to notify their workforce that the withholding will not be deducted from their paycheck starting January 1, 2022, but that it may be implemented in the future, and the reimplementation may be retroactive. It should be noted that if legislation is not passed in a timely manner, employers will be obligated to remit the Q1 tax amounts in April 2022 based on the current law.
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