AlphaAdvisor Compliance Updates | August 2022

Welcome to our August 2022 Edition of AlphaStaff Monthly Compliance Updates!

We are pleased to highlight National and State Legal Updates and resources provided by some of AlphaStaff’s trusted legal partners to help guide and keep you in compliance.

National Updates

CDC Loosens its COVID-19 Guidance

Since the emergence of COVID-19 in 2020, the legal framework addressing employer obligations and employee rights in response to the pandemic has evolved at almost light speed. Employers must remain flexible and ready to revise any company policy impacted by newly enacted laws or regulations. Recently, the Centers for Disease Control and Prevention (CDC) released new COVID-19 guidance that eliminated or revised previously more restrictive protocols. Moving forward, the CDC has made it clear that the burden of the COVID-19 response will be shifting from the employer or business to the employee. The new guidance includes:

• Eliminating recommendations such as “the six-foot social distancing rule.”
• Deeming routine screening of healthy employees is no longer a necessity.
• Reducing the circumstances where quarantining should be required.

Employers can rely on the new CDC guidelines when revising workplace safety policies. For more information, please visit this link.

New Developments in Marijuana Laws

States across the country are adopting a wide array of laws regulating the use of marijuana. Currently, 37 states and the District of Columbia have legalized the use of medical marijuana and 31 states, and the District of Columbia have legalized marijuana use recreationally. It is important that employers remain up to date to development of this type of legislation because it can impact an employer’s ability to enforce an established workplace drug policy. Please review the most recent developments in this area of law and, if necessary, revise the appropriate workplace policy:

• District of Columbia
  • Mayor Muriel Bower signed the Cannabis Employment Protections Amendment Act of 2022 (Act) on July 19, 2022. This Act prohibits an employer from refusing to hire, terminate, suspend, fail to promote, demote, or penalize an applicant or employee for the use of cannabis, designation as a medical cannabis patient or the presence of cannabinoid in their system via a drug test. An exception was carved out that allows employers to test and discipline employees for cannabis use if he/she hold a “safety-sensitive” position. For more information, please visit this link.
• Minnesota
  • Effective July 1, 2022, Minnesota joined the ranks of states to legalize the recreational use of marijuana by allowing the sale and purchase of “edible products containing no more than 5 milligrams of THC per serving.” Although the new law does not provide any explicit protection for applicants or employees that use cannabis, a previously enacted law in the state also makes it difficult for an employer to enforce a policy prohibiting drug use without further considerations. Specifically, employees in Minnesota may not be disciplined when participating in “lawful” activities. As such, it is unclear if THC products will fall under the definition of a “lawful consumable product.”  Pending further legislation or a court ruling on this issue, employers should seek appropriate legal counsel prior to taking any adverse employment actions. For more information, please visit this link.
• Nevada
  • Nevada decriminalized the use of marijuana in 2017. However, a recent ruling by the Nevada Supreme Court clarified that an employee's off-duty use of marijuana was not "lawful use" under state law. Similar to Minnesota, employees in Nevada are protected from discipline for the lawful use of a product outside of work. The Court held that the fact that marijuana remains under federal law and that an employee's off-duty use cannot be deemed "lawful." Therefore, Nevada employers remain able to enforce a drug-free workplace policy as long as they allow for the proper accommodations for registered medical marijuana patients. For more information, please visit this link.

State Updates

Colorado Department of Labor Clarify How Public Health Emergency Leave Applies to Monkeypox  

On August 4, 2022, the White House declared Monkeypox a Public Health Emergency (PHE).  Many Colorado employers may wonder what this new declaration means in terms of the obligation to offer supplement paid sick leave for this disease.  The Colorado Department of Labor issued a clarification on August 9, stating that employers are not required to provide supplemental paid sick leave for monkeypox.  To date, monkeypox has not proven to be “highly fatal” to individuals infected with the disease.  Since the PHE requires high mortality rates to become effective, employers are not required to grant this additional bucket of sick leave pay at this time. For more information, please visit this link.

District of Columbia Employers of Tipped Workers Must Conduct Sexual Harassment Training

Employers in the District of Columbia that employ tipped workers must roll out a number of initiatives under the Tipped Wage Workers Fairness Amendment Act of 2018 before the end of the year. First, covered employers must provide mandatory sexual harassment training to all owners/operators and employees using trainers certified by the Office of Human Rights (OHR). The OHR has created a portal where employers must certify compliance with this requirement by December 31, 2022. Second, employers must create, distribute, and post a copy of the sexual harassment policy. A copy of the OHR Fact sheet must also be posted in a conspicuous place. The employers must certify compliance with this requirement retroactively for 2020 and 2021 by September 30, 2022. Finally, the OHR must also report all sexual harassment complaints going back to 2020 by December 31, 2022. Please visit the OHR resource page for more information, or visit this link.

District of Columbia Mayor Signs Modified Non-Compete Ban

As discussed in the March 2022 edition of the AlphaAdvisor, the District of Columbia delayed the effective date of the Non-Compete ban pending the passage of clarifying amendments. Recently, Mayor Bowser signed an amendment scaling back the near complete ban on non-compete agreements. Effective October 1, 2022, there are limited circumstances where a non-compete can be executed, including a requirement that an employee earns a salary of $150,000 or more. Furthermore, an agreement may not extend for more than 365 days after an employee terminates from the employer's company For more information, please visit this link.

Florida is Blocked from Enforcing “Stop-Woke” Act

The March 2022 edition of the AlphaAdvisor highlighted the implications of the passage of Florida’s Individual Freedom Act. Specifically, the law prohibits employers from appearing to promote any beliefs included in an enumerated list of topics. If an employer does discuss a banned topic during employee training, they may be held liable for discriminating under the Florida Civil Rights Act. On August 18, 2022, an injunction was issued prohibiting the Florida Commission on Human Relations and the Attorney General from enforcing the restrictions under the new law. The Court rejected many of the State’s arguments and noted that the law was at times “mired in obscurity” and “bordering on unintelligible.” Employers must be aware that this is only a partial injunction. Therefore, individuals may still sue an employer if they feel aggrieved. Also, this injunction may be overruled if the State moves forward with an appeal. For more information, please visit this link.

New York State Launches New Hotline for Workplace Sexual Harassment Complaints  

In late July, New York state launched a state-wide, toll-free, confidential hotline (800-427-2773) for employees to report workplace sexual harassment. The New York State Division of Human Rights will operate the hotline utilizing pro bono attorneys during regular business hours. The attorneys will assist provide quick and reliable information to employees on how to proceed with filing a complaint. Further guidance is forthcoming from the Department of Labor, but it is clear that employers must include the hotline's information on any sexual harassment material provided to employees. For more information, please visit this link.