e-Alerts

e-Alert: HRK Monthly Roundup – October 2021

By October 29, 2021 No Comments

HR, Benefits, and Payroll Compliance Monthly Roundup

 

Federal

FAQs Clarify COVID-19 Vaccine Coverage and Premium Discounts

The Department of Labor, the Department of Health and Human Services, and the Treasury Department have worked together to publish FAQs focusing on premium incentives for vaccines, and rapid coverage of preventative services as it relates to the COVID-19 virus.

Premium incentives may be provided to individuals in a group health plan who have received their COVID-19 vaccine. This incentive may be provided as a wellness benefit and must not exceed 30% of a discount or reimbursement.

Effective retroactively back to January 5, 2021, health plans must cover the costs of COVID-19 vaccinations once they become authorized for emergency use or are otherwise approved for mass use. The coverage must expand to all applicable vaccine boosters.

The Safer Federal Workforce Task Force Publishes its Federal Contractor and Subcontractor Guidance

To comply with Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Order), all federal contractors and subcontractors must be fully vaccinated by December 8, 2021, unless required to provide an accommodation for disability or sincerely held religious belief or practice. The Task Force responsible for implementation interprets the Order as applying to government contracts or subcontracts involving services or construction, or those relating to federal property.

Further details can be found in the Executive Order.

DOL Announces Final Rule on Tip Regulations

Effective November 23, 2021, the Fair Labor Standards Act’s (FLSA’s) regulations for tipped employees will be amended. The following changes will be made:

  • Managers and supervisors are prohibited from holding any part of an employee’s tips.
  • Managers and supervisors may not take payment from a pool of tips going to a group of employees. However, they may contribute to this pool.
  • Businesses that pay all employees the traditional minimum wage may include all employees in the payout of pooled tips. This regulation does not apply to businesses who are claiming a tip credit (paying employees the tipped minimum wage).

OSHA Announces Increased Focus on Heat-Related Hazards

OSHA is keeping a close eye on work activities occurring in environments of 80°F or warmer and other heat-related hazards. These initiatives stem from President Biden’s plan to neutralize the negative effects workers are facing due to global climate change.

OSHA will form a National Emphasis Program (NEP) that will take ownership of setting industry standards around heat-related hazards in the workplace. OSHA predicts that details around these additional standards should be soon.

Clarifying Guidance on COBRA Deadline Extension Relief

The IRS published Notice 2021-58 to clarify guidance on COBRA extensions for electing coverage and paying premiums:

  • Individuals electing COBRA coverage within their 60-day window will have 1 year and 45 days after their election to make initial payment for their premiums.
  • Individuals electing COBRA coverage outside of their 60-day window will have 1 year and 105 days after the date the notice was provided to make initial payment for their premiums.

These extensions were announced to help relieve individuals impacted by the COVID-19 pandemic.

Arizona

Arizona Announces $12.80 Minimum Wage Rate for 2022

Effective January 1, 2022, Arizona’s minimum wage will increase to $12.80 per hour. The state’s regulation for tipped workers will remain at $3 below the state minimum wage, putting the minimum wage for tipped workers at $9.80. Employers are required to pay additional funds to a tipped employee whose tips do not meet the minimum wage rate.

Employers must post the updated Labor Law Poster in a location that is available for all employees.

California

Leaves of Absence

Under the California Family Rights Act (CFRA), eligible employees may take 12 weeks of leave per year to provide care to family members, including parents. Assembly Bill 1033 expands the definition of “parent” under the CFRA to include parents-in-law.

Notification of COVID-19 Exposure

AB 654 amends existing provisions requiring employers to provide notification to employees who may have been in close contact at work with a person infected with COVID-19. This law took immediate effect when approved on October 5, 2021.The new law clarifies that employers must notify “all employees who were on the premises at the same worksite as the qualifying individual within the infectious period” (not “employees who may have been exposed”) about the exposure. In addition, they must inform employees about any applicable benefits to which they might be entitled as well as about the cleaning and disinfection plan that the employer has implemented under Cal/OSHA standards.

Cal/OSHA Enhances Enforcement Powers, Including for Policies that Violate Occupational Safety and Health Provisions

Effective January 1, 2022, Cal/OSHA will increase their enforcement power for workplace health and safety violations. Employers will be found to be in violation of Cal/OSHA guidance if:

  • The employer has a written policy or procedure that violates specified Cal/OSHA provisions. The employer’s policy or procedure cannot be the main reason for a citation if it violates an emergency regulation that was adopted within the last 30 days; or
  • Cal/OSHA has evidence of a pattern or practice of violations committed by the employer involving more than one of the employer’s worksites.

A notice in lieu of a violation may be provided to an employer if there is no immediate danger to employees. Failure to respond to any violation brought forth by Cal/OSHA may result in a court subpoena if an employer does not willfully comply with an investigation. Penalties for each violation found will range between $8,908 and $124,709.

California Creates Potential Employment Law Liability for Customers Using Port Drayage Motor Carriers

A port drayage motor carrier is a someone who is hired to transport goods, typically in shipping containers, from the delivery port to another area close by. Effective January 1, 2022, businesses who hire port drayage motor carriers will be held liable for damages should an accident occur when their products are being transported. Reimbursable damages will be paid to either the driver or the state.

California Expands Record Retention Requirements

Effective January 1, 2022, employers will be required to retain records for a minimum of four years. This amendment doubles the retention period for applications, personnel, membership, and employment referral records or files. If an employer has a violation brought against them, they must keep the affected records on hand until the situation has been resolved.

California Phases Out Subminimum Wage for Individuals with Disabilities

Effective January 1, 2022, employers will no longer be able to apply for a permit to pay subminimum wages to disabled employees. Existing permits will only be renewed based on circumstantial review. The state’s goal is to have all workers, including those with a mental or physical disability, earning the state minimum wage by January 1, 2025.

California Family Rights Act to Cover Care for Parents-in-Law

Effective, January 1, 2022, employers subject to the California Family Rights Act (CFRA) must allow eligible employees to take leave to care for a parent-in-law with a serious medical condition. “Parent” is defined as a biological, foster, adoptive, or stepparent, as well as a legal guardian and anyone who served as loco parentis while the employee was a child. Now, it is further defined to mean the parent of a spouse or domestic partner.

The CFRA applies to employers with five or more employees. Eligible employees can take up to 12 weeks of unpaid leave for specific reasons.

Colorado

Colorado Issues Emergency Regulations Requiring COVID-19 Vaccination for Healthcare Workers and Related Policies and Procedures

Healthcare workers working in the state of Colorado were required to receive their first dose of the COVID-19 vaccine by September 30, 2021. By October 31, 2021, all healthcare workers are required to be fully vaccinated. Once fully vaccinated, individuals should continue to receive their dose of boosters as they become available.

Healthcare employers in Colorado are required to record and retain proof of vaccination for all employees. Employers must obtain documentation from employees who qualify for a bona fide medical or religious exemption. Employers are required to report certain information to the Department of Public Health and Environment.

Delaware

Delaware Amends State Law Definitions of Gender Identity, Sexual Orientation, and Disability

On September 17, 2021, Delaware revised the following definitions to remain consistent with other state and federal definitions:

  • Disability: Any trait that limits a person’s movement, senses, or activities.
  • Person with a disability: An individual who has a mental or physical impairment, or history of such impairment.
  • Gender Identity: An individual’s gender-related identity, appearance, or expressions regardless or the individual’s assigned sex at birth.

Sexual Orientation: An individual’s choice to engage in heterosexuality, homosexuality, or bisexuality.

Washington, D.C.

D.C. Announces “Applicability Date” for Non-Compete Law

The Ban on Non-Compete Agreements Amendment Act of 2020 has triggered a lot of questions to employers. The District of Columbia has established an applicability date of April 1,2022 where any contracts that are created on or after that date with a non-compete clause will be considered null and void.

District of Columbia Expands Paid Employee Leave

The emergency legislation is set to expire on November 21, 2021, but there is a permanent law under review. When passed, the following changes will take place under the employee paid leave program:

  • Employees will be eligible for six weeks of medical leave; formerly, this was only at two weeks.
  • Employees will be able to take up to two weeks of leave for prenatal reasons. The reasons include time for check-ups, ultrasounds, treatment for pregnancy complications, bed rest, and/or physical therapy.

Employees will be eligible to take leave if they have completed a total of 1,000 working hours over 12 months within the last seven years. These hours do not need to be served consecutively.

Florida

Florida New Hire Reporting Now Includes Independent Contractors

Effective October 1, 2021, employers must report the following information for their new hires within 20 days of the individual’s first pay date:

  • The name, address, and Social Security number or other identifying number assigned to the individual;
  • The date services for payment were first rendered by the individual; and
  • The name, address, and employer identification number of the service recipient.

Employers should report on both employees and independent contractors. In addition, any independent contractors earning more than $600 in a calendar year should also have demographic information reported.

Indiana

Indiana Issues Emergency Rule Amending Guidelines on Minor Employees

The state of Indiana has updated the phrase “child labor” to read “youth employment” throughout all state employment guidelines. This emergency rule is applicable from September 9, 2021, through December 8, 2021. Employers with five or more employees who utilize youth employment are required to register for the recordkeeping and rest break system, which can be found on Indiana’s Department of Labor website.

Maine

Maine Announces 2022 Minimum Wage Rate

Effective January 1, 2022, Maine’s minimum wage will increase to $12.75 per hour. Subsequently, the minimum salary threshold will increase to $735.59 per week, and $38,251 annually. The increases are important for employers to note when determining if a role is exempt or nonexempt.

The minimum wage for tipped workers will increase to $6.38 per hour.

Massachusetts

Massachusetts Extends COVID-19 Sick Pay

In June 2021, the Massachusetts legislature passed a law providing paid sick leave to all employees in the Commonwealth for reasons related to COVID-19. The legislation, which established a COVID-19 Emergency Paid Sick Leave Fund, was initially set to expire on September 30, 2021. With the recent increase in positive cases, largely due to the Delta variant, the state has extended the leave through April 1, 2022, or until the $75 million of federal funds has been exhausted. Click here to read our full e-Alert on this topic.

Updates to MA PFML for 2022

The Massachusetts Paid Family and Medical Leave (PFML) law requires all private Massachusetts employers to provide covered individuals with paid family and medical leave, funded through a payroll tax that began in October 2019. Employees are eligible for MA PFML if they meet the financial eligibility requirements. This law provides paid, job-protected leave, with no employee hours or service requirement. Each year, the Department of Family and Medical Leave will assess contributions and benefit amounts. Click here to read our full e-Alert on this topic.

Nevada

Nevada Adopts Kin Care Law

Any employer operating in the state of Nevada that offers sick leave must amend their policy to allow employees to use their sick time to care for an immediate family member. An immediate family member is defined as an employee’s child, foster child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, stepparent, or any legal guardian.

This amendment is applicable to both paid and unpaid sick leaves. Employees may go into a negative balance for their sick time, but employers have the option to limit this amount to be equivalent to six months of accruals for that employee. Employers must also post a notice of this amendment in a conspicuous location at their worksite.

New Jersey

New Jersey Requires Hiring Preference Following Work-Related Injuries

Effective immediately, New Jersey’s workers’ compensation statute has been revised to help guide employees back into the workforce. If an employee is injured in the workplace and is unable to return to their previous position, hiring preference must be given to this employee to step into another open position within the organization. The statute does not mandate that employers create a new position for the injured individual.

New York

New York Announces Paid Family Leave Rates for 2022

Effective January 1, 2022, the employee contribution rate for New York’s Paid Family Leave will increase to 0.511% of the employee’s wages for a maximum annual contribution of $423.71. The weekly maximum benefit will be increased to $1,068.36.

Ohio

Cincinnati, Ohio, Passes Ordinance on Single-Occupancy Restrooms

Effective immediately, single-occupancy restrooms in Cincinnati, Ohio, must be available for use by all individuals. The restroom must be equipped with a sink, a toilet, a urinal, and a locking device that can be controlled by the user. The restroom must also be identified by a non-gender-specific sign.

Oregon

Oregon Adopts Temporary Rule Regarding Medical Relief Benefits for Healthcare Workers

Oregon OSHA has amended their Rule Addressing COVID-19 Workplace Risks. If an employee is unable to work due to medical removal provisions, certain benefits must be paid to the individual. This rule applies to all employees who have direct contact with patients that are impacted by COVID-19, excluding administrative staff.

The following scenarios are exempt from this rule:

  • Employers with 10 or fewer employees.
  • An employee who has contracted the COVID-19 virus outside the workplace.
  • Employers who are not in compliance with Oregon’s Health Authority COVID-19 vaccination requirements.
  • Non-hospital care and home healthcare settings where all visitors are required to be screened upon entry to the worksite.
  • Telehealth services where there is no direct contact with patients.

Oregon Amends Law on Reemployment Rights for Military Servicemembers

Under the Uniformed Employment and Reemployment Rights Acts of 1994, servicemembers may serve in active military for up to five years in order to be eligible for reemployment upon their return. Effective immediately, any military member who elects to serve voluntarily past the five-year limit may not be eligible for reemployment.

Pennsylvania

Allegheny County, Pennsylvania, Passes Paid Sick Leave Ordinance

On September 14, 2021, Allegheny County, Pennsylvania, passed an ordinance requiring employers with at least 26 employees to provide paid sick time to their employees. Click here to read our full e-Alert on this topic.

Texas

Texas Allows Unlicensed Carry of Handgun

Texas’s Firearm Carry Act of 2021 states that all individuals, whether licensed or not, may carry a firearm, subject to certain exceptions. This includes concealed firearms. Employers prohibiting weapons in the workplace must post this notice in a conspicuous location as well as provide it to their employees.

Virginia

Virginia OSHA Issues Third Iteration of its Emergency COVID-19 Regulation

Effective immediately, Virginia OSHA has revised their Emergency COVID-19 Regulation. The major changes are:

  • Proof of vaccination is not required from employees. Employers must trust that the admittance of vaccination is sufficient for documentation purposes.
  • Subject to certain exceptions, employers must require unvaccinated employees, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear employer-provided face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE.
  • Employers with 11 or more employees must have an infectious disease preparedness response plan in place.
  • Training on how to handle COVID-19 hazards must be provided to employees working in a high-risk workplace — effective November 7, 2021.

If an employer has two or more confirmed cases of COVID-19, they must report this to the Virginia DOLI within 24 hours of their findings.

Washington

Washington State Amends Volunteer Emergency Responder Leave Law

Under Washington State law, an employer with 20 or more employees may not take adverse action against an employee who is fulfilling their duty as a volunteer emergency responder.

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