e-Alert: HRK Monthly Roundup – September 2021

Illinois Domestic Violence Leave to Cover All Victims of Violence

Effective January 1, 2022, Illinois’s Victim’s Economic Security and Safety Act will be extended to cover all victims of violent crimes. The act allows victims to take an unpaid leave of absence for any of the following reasons:

• To seek medical attention for, or recovery from, any physical or psychological injuries.
• To seek services from a victim services organization.
• To seek psychological or other counseling.
• For safety planning, relocating, or other actions to increase safety or ensure economic security.

The act provides several tiers of allocated leave for victims, based on the employer’s size:

• Employers with 1 – 14 employees must provide four weeks of unpaid leave to victims covered under the act.
• Employers with 15 – 49 employees must provide eight weeks of unpaid leave to victims covered under the act.
• Employers with 50 or more employees must provide 12 weeks of unpaid leave to victims covered under the act.

The amendment updates the definition of family/household member to include grandparents, grandchildren, and individuals who share a relationship through a child.

Illinois Clarifies Exception to Salary History Ban

Effective January 1, 2022, Illinois’s Equal Pay Act will be amended to ban the inquiry of a candidate’s salary history. The amendment clarifies that employers are permitted to discuss the wages that they intended to provide to the candidate. However, they are banned from discussing the candidate’s previous wages earned from current or past employers. If a candidate volunteers that they would be forfeiting any kind of deferred compensation during such conversations, the employer may request documentation that supports the candidate’s claim.

Illinois Expands Secure Choice Savings Program

Effective January 1, 2022, the Illinois Secure Choice Savings Program will apply to employers with five or more employees. The program is considered a retirement savings program and is funded by employee payroll deductions. Employers must meet the following three qualifications to offer this program to their employees:

1. The company has a minimum of five employees employed in the state of Illinois within the past calendar year.
2. The company has been in business for at least two years.
3. The company does not offer any type of traditional retirement savings plan.

Employees are eligible to enroll in this plan if they are at least 18 years of age and are employed by an eligible employer. The program has a rolling deadline for enrollment based on the company’s size:

• Employers with more than 25 employees: December 1, 2021
• Employers with between 15 and 25 employees: September 1, 2022
• Employers with between 5 and 15 employees: September 1, 2023

Employers who do not enroll their employees into the program after such election will be subject to penalties and fines.

Illinois Law Requires Public Corporations to Report Sexual Orientation and Gender Identity of Directors

Effective January 1, 2022, the Illinois Business Corporation Act of 1983 will amend their reporting requirements. Amendments include requiring public corporations to report the number of women and minorities on the corporation’s board of directors as well as requiring reporting self-identified sexual orientation and self-identified gender identity of their board of directors.

Illinois Imposes New Prerequisites and Restrictions on Employers’ Use of Restrictive Covenants

Effective January 1, 2022, the Illinois Freedom to Work Act (IFWA) will be amended to align with President Biden’s stance on noncomplete agreements. The following will be added into the amendment:

• The minimum amount of annual earnings will be increased over time for an employer to legally enter a noncompete agreement with an individual. The amounts and effective dates are as follows:
  • Effective 2022: $75,000
  • Effective 2027: $80,000
  • Effective 2032: $85,000
  • Effective 2037: $90,000
• Noncompete agreements will be considered valid if the employer advises the participating individual to consult a lawyer prior to signing the agreement. The individual should be allowed 14 days to review and commit to the terms of the agreement prior to the individual’s start date with the employer.
• Noncompete agreements will only be considered valid if they meet with the following standards:
  • The employer commits to employ an individual for a minimum of two consecutive years.
  • The agreement explicitly outlines prohibiting solicitation of employment with competitors in the agreement.
  • The agreement must outline conditions of legitimate employment.
  • The agreement should only outline employer concerns that can be directly tied to the best interest of the business.
  • Conditions of the agreement must not be carried out with ill intent toward the individual or the greater public. This also prohibits agreements from placing undue hardship to the individual entering the agreement.
• Noncompete agreements will be considered null and void should the individual be laid off or furloughed due to unforeseen business or economic circumstances.
• Any legal action brought forth as it relates to the noncompete agreement will be an employer responsibility. This includes costs for attorneys and other legal fees.

Illinois Prohibits Discrimination Based on Work Authorization Status

The Illinois Human Rights Act clarifies that discrimination based on citizenship status will be considered a violation of the Civil Rights Act and is strictly prohibited. Acts of discrimination are defined as any adverse action against an employee due to their work authorization status. This includes, but is not limited to, refusing to hire, segregating, harassing, and limiting opportunities provided to the individual.

Illinois Expands Law on Disability Discrimination to Include Associational Discrimination

Effective January 1, 2022, the Illinois Human Rights Act will include an associational discrimination clause. Currently, the act prohibits discrimination against an individual who is disabled. The amendment provides those same protections to individuals who associate with an individual who has a bona fide disability.

Illinois Amends Personnel Records Review Act to Create a Private Right of Action for Unlawful Disclosure of Disciplinary Action

Effective January 1, 2022, Illinois’s Personnel Records Review Act will be amended to include parameters around an employee’s disciplinary record. An employee’s disciplinary record may not by shared with anyone without written consent from the affected employee. Employees who are affected by a violation of this amendment are encouraged to report the incident to the Director of Labor or file an action in court. Employees have three years from the date of the incident to act upon any violations of the law.

Maine

Maine Passes Emergency Rule on COVID-19 Immunization for Health Care Workers

Previously, Maine required every facility in the state to have all employees receive immunizations against rubeola (measles), mumps, rubella (German measles), varicella (chicken pox), hepatitis B, and influenza.

Effective July 1, 2021, Healthcare facilities, Emergency Medical Services (EMS) organizations and dental health practices  now require proof of immunization for COVID-19. Employees not immunized will be barred from the worksite for the duration of the public health emergency.

Maine Prohibits Discrimination Against Domestic Violence Victims Who Seek an Order of Protection

The Maine antidiscrimination law provides protections based on race, color, sex, sexual orientation, disability, religion, age, ancestry, national origin, and individuals who exercise rights under the Workers’ Compensation Act or Whistleblower’s Act. The law now provides that employers may not discriminate against employees who receive an order of protection from abuse.

Massachusetts

Massachusetts High Court’s Ruling on the Domestic Violence and Abuse Leave Act Holds Lessons for Employers

The Supreme Judicial Court has declared that retaliation may be made against an employer who violates the Domestic Violence and Abuse Leave Act. The court clarified that the act applies to employees in all stages of the employee life cycle, including those that have been extended an offer.

This comes at the conclusion of Osborne Trussell v. The Children’s Hospital Corporation. The plaintiff of this case had received an offer of employment from The Children’s Hospital, but the offer was rescinded after the defendant was made aware of the plaintiff’s victimization in an ongoing domestic abuse case.

Minnesota

Minnesota’s Minimum Wage Rate Updates

Effective January 1, 2022, Minnesota will be raising their minimum wage.

• Large employers, grossing an annual revenue of $500,000 or more, will be subject to pay their workers at least $10.33 per hour.
• Small employers, grossing less than $500,000 or more, will be subject to pay their workers at least $8.42 per hour.

The minimum wage for training periods (first 90 days of employment) and youth workers will also be updated to $8.42 per hour.

Nevada

Nevada Updates Poster Requirement

By October 1, 2021, all employers in the state of Nevada are required to update their compliance posters. The newest update comes from the Department of Employment, Training, and Rehabilitation (DETR), and provides additional resources to employees regarding training and employment programs.

Nevada Amends Paid Leave Law to Allow Vaccination Leave

Nevada’s Paid Leave law now expands the reasons employees may use paid leave, including to receive a COVID-19 vaccination. The law applies to employers with 50 or more employees. Employers who have an on-site COVID-19 vaccination clinic or have been operating for less than two years are exempt from the law.

• Employees will receive two hours of leave for a single dose vaccination or four hours of leave for a double-dose vaccination.
• Employees must provide at least 12 hours’ notice to the employer.
• Employees do not need to provide a reason for taking leave; however, the amendment specifies that sick leave may be included as a reason.

Employers may not require an individual to seek out a replacement worker and may not deny or retaliate against employees’ rights to request or take vaccination leave.

New Jersey

New Jersey Issues Rules Implementing Marijuana Legalization Law

New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act legalizes the purchase and use of marijuana for individuals who are at least 21 years of age.

The act explicitly states that employers may continue to prohibit the possession or use of marijuana during work hours and/or while on company property. Should an employer suspect that an employee is under the influence of marijuana during work hours or while on company property, the act requires the opinion of a Certified Workplace Impairment Recognition Expert (WIRE). An employer may not take adverse action against an employee until the WIRE has concluded their investigation.

The state is still determining the parameters of a Certified WIRE. Until such time that a formal notice is published on this topic, employers should document each suspected case in detail. Furthermore, adverse action cannot be made against an employee when a drug test yields a positive result for marijuana.

New York

New York Expands Employees’ Ability to Bring Wage Claims

Former New York Governor Cuomo has implemented the No Wage Theft Loophole Act. The act allows employees to easily file claims against an employer for unpaid wages.

In recent findings, the courts have misrepresented Sections 193 and 198 of the New York Labor Law, where employers would withhold monies from an individual’s paycheck without noting the deduction on the pay stub. Employers have used these precedents as a loophole to withhold wages. The intention of the act is to provide additional context to overcome this loophole for future wage claims.

New York State Requires Health Care Workers to be Vaccinated Against COVID-19

Health care workers in hospitals or long-term care facilities, including nursing homes, adult care, and other congregate care settings, must obtain their first dose of the COVID-19 vaccination by September 27, 2021.

The law requires hospital and long-term care facilities to create and implement a mandatory employee vaccination policy. However, accommodations must be reviewed for any religious objections or medical restrictions that would make receiving the vaccine unfeasible.

The following questions have not been addressed although it is hoped that more details will be provided soon:

• Who is considered a health care worker?
• How do workers demonstrate religious objections, medical restrictions, and need for accommodations?
• Which vaccines are accepted under the new requirement?

Health care employers are encouraged to seek counsel regarding vaccination requirements in New York State and New York City.

New York Designation of COVID-19 as a Highly Contagious Communicable Disease Requires Employers to Implement a NY HERO Act Airborne Infectious Disease Exposure Prevention Plan

New York’s health commission has declared COVID-19 a highly contagious communicable disease. Due to this declaration, the following steps must be taken to ensure compliance:

• Employers must review federal, state, and local guidance on COVID-19.
• Employers must finalize and publish their NY HERO Act plan within their workplace.
• Employers must hold a training that goes over the steps the employer is taking to prevent the spread of COVID-19.
  • This includes a verbal overview of the plan, as well as a physical copy to be provided to each employee.
• Employers must post a copy of the plan in a conspicuous location at each worksite.
• Employers should designate an employee of management status to enforce the plan.
• Employers should regularly monitor the risk of exposure to COVID-19 within their workplace.
• Employers should keep up to date with additional COVID-19 guidance that is provided on a federal, state, or local level.

The declaration is set to expire on September 30, 2021, unless otherwise noted by the health commissioner in future publications.

New York City Requires COVID Vaccination for Certain Establishments

New York City has implemented the “Key to NYC Pass”  requiring people 12 or older to provide proof they have obtained at least one dose of a COVID-19 vaccination. The law requires staff at these locations to be vaccinated as well.

Indoor dining: Restaurants, catering halls, event spaces, hotel banquet rooms, bars, nightclub, cafeterias, grocery stores with indoor dining, coffee shops, and fast food or quick service with indoor dining

Indoor fitness: Gyms, fitness centers, fitness classes, pools, indoor studios, and dance studios

Indoor entertainment: Movie theatres, concert venues, museums, aquariums, zoos, professional sports arenas, indoor stadiums, convention centers, exhibition halls, performing arts theaters, bowling alleys, arcades, pool and billiard halls, recreational game centers, adult entertainment, and indoor play areas

Proof of Vaccination:

• CDC Vaccination Card
• NYC Vaccination Card
• NYC COVID Safe App
• Excelsior Pass

Employer Requirements:

• Employers are required to check the vaccination status of all staff and customers 12 or older.
• Employers may not allow entry to anyone 12 or older who has not received at least one dose of the COVID-19 vaccination

Employers may only make exceptions when allowing use of the bathroom or for another reason that will take a small amount of time (less than 10 minutes).

New York City Creates New Mandatory Retirement Savings Program
Two recently enacted laws known as the “Retirement Security for All” require private sector employers to enroll eligible New York City employees into an employer-specific or city-managed retirement savings plan.

Employee/Employer Eligibility:

• Employers are exempt if they have been operating for less than two years or have a retirement savings program in place.
• Employees must be over 21 years of age and work more than 20 hours a week to be covered.

Employees should be automatically enrolled into individual retirement accounts (IRAs), where employers will deposit funds from wage deductions and retain compliance records for at least three years. The default contribution rate is set to 5% and capped at $6,000 for employees under 50 or $7,000 for employees over 50. This program allows employees to adjust contribution rates or opt out at any time.

The penalty for noncompliance with enrollment or depositing funds is $250 per employee for the first violation and $500 per employee if a second violation occurs within two years. Any additional violations within two years will result in a $1,000 fine per employee. Failure to maintain records is also an additional $100 fine per violation.

This law does not yet extend to employers statewide and is not considered an employee benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA).

Oregon

Oregon Passes Temporary Rule Requiring COVID-19 Vaccination in Health Care Settings

Individuals who work, learn, study, assist, observe, or volunteer in a health care setting must be vaccinated against the COVID-19 virus within the state of Oregon. All eligible individuals must be fully vaccinated on or before October 18, 2021. In addition, individuals are required to provide documentation to their employer indicating that they are fully vaccinated.

Individuals who are not fully vaccinated at this time should prepare a medical or religious exemption. Individuals who violate this mandate are subject to a $500 fine for each day they remain out of compliance.

Employers are required to keep a record of vaccination status and any applicable exemptions for at least two years. The Oregon Health Authority reserves the right to request materials regarding this mandate at any time.

 Oregon Amends Paid Sick Leave Law to Include Workers Covered Under Collective Bargaining Agreements

Effective January 1, 2023, employees covered under a collective bargaining agreement will be entitled to Oregon’s paid sick time law. Employers with at least 10 employees are subject to provide full-time employees with an annual minimum of 40 hours of paid sick time. The employee can use this time after they have completed their first 90 days of employment.

Employers may be exempt from this mandate if:

• They provide a sick time policy that goes beyond the state mandate;
• The trustees have previously agreed to the benefits provided within a trust benefit plan; and
• Provisions to the benefit plan are made exclusively by the employer participants of the agreed-upon plan.

Oregon Issues Temporary Rule on Renewed Masking Requirement to Address COVID-19 in all Oregon Workplaces

Oregon employers that have employees exposed to other individuals in indoor work environments must implement masking requirements regardless of vaccination status. Oregon has provided a list for when masks are exempt in indoor spaces and outdoor spaces when individuals cannot maintain at least six feet of distance from one another. Some examples of these include, but are not limited to:

• Sleeping
• Actively eating or drinking
• Engaging in an activity such as swimming, where wearing a mask is not feasible

Employers or those responsible for indoor spaces must ensure all staff members comply and must make reasonable accommodation efforts for individuals entering the space. Signs are required to be posted at every entrance announcing the masking requirement. The rule is set to expire on December 26, 2021.

Pennsylvania