e-Alert: HRK Monthly Roundup – February 2022

HR, Benefits, and Payroll Compliance Monthly Roundup

 

Federal

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.

Arizona

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

California

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

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.

Washington, D.C.

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

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

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

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

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.

Michigan

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

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