HR, Benefits, and Payroll Compliance Monthly Roundup
CDC Streamlines COVID-19 Guidance
CDC recommends instead of quarantining if you were exposed to COVID-19 that you wear a high-quality mask for 10 days and get tested on day 5. When a person tests positive for COVID-19, the CDC recommends that the person stays at home isolated for at least 5 days regardless of vaccination status.
The CDC guidance is not a law. Employers should continue to keep themselves aware of any updates issued regarding COVID-19 that may impact their business and adjust their policies and procedures, as appropriate. Please see the CDC for more information.
Inflation Disrupts California’s Minimum Wage Rate Schedule
California’s minimum wage law is directly tied to inflation-based increases. With changes to the consumer price index (CPI), the state’s minimum wage law requires the state to move the date of annual increases forward. On January 1, 2023, the minimum wage will increase to $15.50 per hour instead of $15.00 per hour for all employers. We will be sending an e-Alert with further details.
California Amends CalSavers Program
Beginning January 1, 2023, California has enacted amendments to the California Secure Choice Retirement Savings Program (CalSavers), which mandates automatic payroll deductions into individual retirement accounts (IRAs) for private-sector workers. The amendments expand the definition of “eligible employer” and requires employers with one or more employees that do not offer a retirement savings program to implement a payroll deposit retirement savings arrangement by December 31, 2025. Qualifying larger employers are already required to implement a retirement savings arrangement under the program.
Privacy Rights Act Update
San Francisco Amends Rules for Family Friendly Workplace Ordinance
Employers that have a physical location in San Francisco and 20 or more employees are covered under the ordinance. Remote employees are only covered if they are assigned to a physical location in San Francisco. Employers must confirm, in writing, that an employee’s request for flexible or predictable working is approved.
If the request is denied, the employer must engage in an interactive process with the employee. Employers must now provide a copy of the Family Friendly Workplace form within a reasonable amount of time after the employee requests an accommodation. An employer’s handbook must describe the right to accommodation under the ordinance. If an employer maintains a handbook that speaks to accommodations, then it must be updated to reflect the ordinance in the next updated version.
San Francisco Adopts Public Health Emergency Leave
Voters in San Francisco have approved a ballot initiative (Proposition G) that will require certain employers to provide paid leave to employees for public health emergencies. The requirement takes effect on October 1, 2022. Please see our e-Alert for further details.
Colorado Updates its Paid Sick Leave Guidance
Colorado’s Department of Labor has provided more guidance regarding the Healthy Families and Workplaces Act. Previously, the Act was silent on the amount of sick leave that employees could accrue in a subsequent year if they carried over 48 hours of unused sick leave. In the revised Interpretive Notice & Formal Opinion, employers can count carried-over unused sick leave toward the employee’s sick leave entitlement of 48 hours.
In addition, the guidance clarifies that when a Public Health Emergency is declared, employers can count an employee’s accrued but unused sick leave hours towards the Public Health Emergency Leave (PHEL) 80-hour entitlement.
Connecticut Creates New Discrimination Protections and Leave for Victims of Domestic Violence
Connecticut has amended its Human Rights and Opportunities Act to include domestic violence as a protected class for discrimination purposes. Connecticut employers are now required to post in their workplace information concerning domestic violence and the resources available to victims of domestic violence in Connecticut.
Additionally, employers are unable to deny an employee a leave of absence due to a domestic violence situation when the proper documentation is provided by the employee.
Connecticut’s Pandemic “Hero Pay” Program Goes into Effect
Essential workers who worked in Connecticut between March 10, 2020, and May 7, 2022, may receive up to $1,000 (hero pay or premium pay). Eligible employees must have earned less than $149,999 annually, were unable to work from home, and were not employed by a government agency. Employees may apply here by October 1, 2022.
District of Columbia Amends Tipped Wage Workers Fairness Act
Employers in Washington D.C. with one or more workers who receive all or part of their wages in the form of tips are required to submit documentation and completed certifications to the District of Columbia Office of Human Rights (OHR).
Employers must provide all current owners, managers, and employees with sexual harassment prevention training by December 31, 2022. Newly hired employees must receive their training within 90 days of their start date. Every two years in-person harassment training is required for managers and in-person, or online training is required for business owners and operators.
A sexual harassment policy must be submitted to the OHR via their portal by September 30, 2022. The policy must include instructions on how to file a complaint. The policy and OHR’s Fact Sheet should be distributed to employees and posted in a location accessible to all employees.
Employers must report how many complaints of harassment they have received from all employees for the year; these reports should be submitted to the OHR portal by December 31 of the applicable calendar year. The first submittal will be retroactive to include 2020 and 2021 and should be submitted by September 30, 2022.
D.C. Increases Paid Leave Amounts
Beginning October 1, 2022, the maximum amount of paid leave a qualified employee may take in a 52-week period will be increased to twelve (12) weeks. Please see our e-Alert for more details.
Florida Stop Woke Law Partially Enjoined
Florida’s Individual Freedom Act (IFA), or the so-called “Stop-WOKE” law, was partially enjoined on August 18, 2022. The law dramatically restricted the type of communications employers are permitted to make concerning diversity, non-discrimination, and anti-harassment. The injunction issued by Chief Judge Mark Walker prohibits the Florida Commission on Human Relations and the Florida Attorney General from enforcing the IFA’s provisions against employers. The Judge warned that this does not prohibit individuals from pursuing private causes of action based on the law. The defendants are expected to appeal the injunction shortly.
Hawaii Amends Sexual Harassment Law
Under the amended law, an employer may not enter into or require an employee to enter into a nondisclosure agreement that prevents the employee from disclosing or discussing sexual harassment or sexual assault in the workplace.
Maine Limits Private Employer Use of Nondisclosure Agreements
Maine’s new law went into effect on August 8, 2022. The law prohibits employers from requiring employees and prospective employees to enter into an agreement that will prevent the employee from disclosing or discussing discrimination, including harassment. It also prevents restrictions on settlements, separations, and severance agreements that prevent the disclosure of facts relating to discrimination, including harassment. The law allows 21 days for employees to consider nondisclosure provisions and 7 days to revoke once executed.
Maryland Enacts PFML Program
Beginning October 1, 2023, employers with 15 or more employees participating in the program must begin contributing to the fund. Maryland employees will be able to apply for paid leave beginning January 1, 2025. Please see our e-Alert for details.
Maryland Amends Sexual Harassment Law
Beginning October 1, 2022, the definition of harassment and sexual harassment has been expanded.
Maryland Amends Reasonable Accommodation Law
Employers’ obligations to reasonably accommodate an employee’s disability have been expanded to mimic federal law requirements under the Americans with Disabilities Act (“ADA”). Starting October 1, 2022, an employer is required to reasonably accommodate an employee’s disability and an applicant’s disability.
Massachusetts Court Says Home Inspectors are Contractors
The Massachusetts Appeals Court recently found that home inspectors who worked through a home inspection company were independent contractors rather than employees under the state unemployment insurance law. The case Tiger Home Inspection, Inc. v. Dir. of the Dept. of Unemployment Assistance, provides clarification on how the ABC test is likely interpreted in the unemployment context.
Minnesota Legalizes THC Products
On July 1, 2022, Minnesota legalized some extent of recreational use of marijuana. The law is viewed similarly to alcohol in the workplace, allowing employers to prohibit possession, use, and/or being under the influence of THC during working hours or while on company property. Employers may continue pre-employment drug screenings, random screenings (for safety-sensitive positions), and reasonable suspicion drug screenings. However, should an employee test positive for THC, employers must keep in mind Minnesota’s lawful consumable products law.
New Hampshire Enacts Law on COVID-19 Vaccination Requirements
New Hampshire employers are no longer able to require employees to provide proof of COVID-19 vaccination or submit to a COVID-19 test more than once a month unless the employer is a health care facility, provider, or contractor subject to a federal vaccine requirement.
New Jersey Amends Final Rules Under the Family Leave Act
The new rules provide further clarification on the Family Leave Act. Notably, the rules:
- Defines a family member as any individual related by blood or marriage to an employee
- Clarifies that employees who take leave on a reduced work schedule may take the time in increments of hours, days, or weeks
- Provides more clarification as to the amount of notice an employee should provide their employer
New Discrimination and Family Leave Notice Requirements
The New Jersey Division of Civil Rights has added new and amended requirements for employers to display and distribute certain workplace posters. Covered employers must display both the NJ Law Against Discrimination (NJLAD) notice and the New Jersey Family Leave Act (NJFLA). Each employee must be provided with a written copy of the NJLAD and NJFLA notice of rights annually, by December 31 of each year. These notices must also be provided upon request.
New Jersey High Court Weighs in on Independent Contractor Case
On August 2, 2022, the New Jersey Supreme Court issued an opinion on independent contractor classifications. In East Bay Drywall v. Department of Labor & Workforce Development, the court determined that East Bay did not provide sufficient evidence that proved all three prongs of the “ABC” test were met.
There is no- one- size- fits- all list to determine classification; employers must take all the facts into consideration when determining if a worker is an employee or an independent contractor. This case indicates how stringent NJ’s application of the ABC test is to reclassify independent contractors as employees.
New Jersey Cannabis Commission Issues Guidance on Reasonable Suspicion
On September 9, 2022, the New Jersey Cannabis Regulatory Commission issued long-awaited guidance for employers on how to respond when employees are suspected of marijuana impairment. The Act legalized the use of recreational marijuana but created many obstacles and uncertainties for employers seeking to maintain a drug-free workplace.
The Commission recommends that the staff member making a reasonable suspicion determination utilize a “Reasonable Suspicion Observation Report.” The sample provided by the Commission may be used to document the physical signs and evidence of suspected drug use, as well as the testing procedures used.
New York Department of Health Revises Health Screening Requirements
On August 2, 2022, the NYS DOH updated its guidance for Home Care Agencies to check their employees’ temperature once a day upon arrival to work to determine if a fever is present. Employers should maintain their COVID-19 policies for health screening and self-monitoring requirements.
New York Extends Effective Period of Law on Wage Deductions
New York employers can make certain deductions from their employees’ wages, including deductions for accidental overpayments, salary advances (including advances of vacation time), and insurance premiums under the NY Wage Deduction Law. The law was originally set to expire ten years after it took effect but has now been extended to expire on November 6, 2024.
Oregon Adopts Rules Implementing Family and Medical Leave Insurance
Payroll contributions for the state’s family and medical leave insurance will begin January 1, 2023. Employees can start utilizing the benefit September 3, 2023. New rules clarify that an employee is not eligible for the benefits if they are eligible for unemployment insurance or state workers’ compensation. Employees can receive up to 12 weeks of benefits for any combination of covered leave reasons. Those with limiting conditions related to pregnancy, childbirth, or an associated condition may receive an additional two weeks of leave.
The rules also state that the maximum amount of leave for purposes of bonding with a child is 12 weeks, whether or not a new benefit year begins during the first year of the child’s life. The new rules allow an employer to require a 30-day written notice of anticipated leave.
Oregon Issues Rules on Paid Leave Oregon Employer Equivalent Plans
The state’s family and medical leave program, Paid Leave Oregon, establishes a state plan to administer leave. However, updated rules provide instruction for employers to apply for an employer-administered plan. Employers will be required to provide decisions on claims in writing to the employee and must include the details on the amount approved, how the employee can contact the State to determine their average weekly wage, and how to appeal a denial. Employers using their own plan must submit it by May 31, 2023 to be approved prior to employees being eligible on September 3, 2023.
Pennsylvania Amends Veteran Hiring Preference Law
Under the veteran hiring preference law, employers can use veteran preference for hiring, promoting, or retaining employees. The law’s definition of veteran was expanded effective September 6, 2022 to include individuals who served in the armed forces whose last discharge was due to a disability under conditions other than dishonorable. Additionally, the definition of surviving spouse now includes an unmarried spouse of a deceased veteran or service member that passed while on active duty in the armed forces, Reserves, or National Guard.
Pennsylvania Overtime Calculation Amendments
Employers who pay nonexempt employees a salary may need to adjust their payroll practices to comply with this new wage and hour requirement in the state of Pennsylvania. See our e-Alert for details.
Washington Amends PFML Rules to Address Loss of a Child
Effective September 8, 2022, employers must provide an employee paid family leave benefits during the 7 calendar days following the death of the employee’s child if the death occurs either during the first 12 months after the child’s birth or during the first 12 months after placement of the child with the employee. Additionally, only employees who gave birth are eligible for medical leave for the recovery of childbirth. Employees will need to provide sufficient documentation to substantiate the need for leave.
Washington Sets Expiration Date for CBA Exception to PFML Law
Previously, employers in Washington who had employees covered under a collective bargaining agreement (CBA) that was in existence on or before October 19, 2017 were ineligible to receive paid family medical leave benefits until the agreement is renegotiated or expires. This amendment is set to expire on December 31, 2023, and employees subject to a CBA will be entitled to paid family medical leave benefits.
Seattle Prohibits Discrimination Based on Pregnancy Outcomes
A recent amendment to the Seattle Fair Employment Practices Act expands this ordinance to prohibit employee discrimination based upon an employee’s actual, potential, perceived, or alleged pregnancy outcomes. Pregnancy outcomes are the results of a fertilization event and the results experienced by someone who is or was pregnant. Examples may include but are not limited to live birth, stillbirth, miscarriage, abortion, hyperemesis gravidarum (morning sickness), pregnancy-related anemia, preeclampsia, and perinatal depression.
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