Welcome to our December 2021 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.
Update: Path Out of the Pandemic
As discussed in AlphaStaff’s November update, since President Biden directed OSHA to establish and publish an Emergency Temporary Standard (ETS) for COVID-19, the nation has been anxiously awaiting the agency to complete this task. On November 5, 2021, OSHA finalized and published the ETS. Several employers quickly filed lawsuits challenging OSHA’s authority to enact the ETS. On November 6, a federal court issued a nationwide injunction blocking the ETS from taking effect pending a full review by the Court. The U.S. Court of Appeals for the Sixth Circuit was given jurisdiction to review the ETS challenges and the Department of Labor’s motion to lift the stay. On December 17, 2021, a three-member panel of judges in the Sixth Circuit Court of Appeals overturned the nationwide injunction. Therefore, absent intervention by a full panel of Sixth Circuit judges or the U.S. Supreme Court, a path has been cleared for OSHA to begin enforcement of the ETS. The employer’s deadline to comply could be as early as January 10, 2022. Click here for more information about OHSA’s Emergency Temporary Standard. For more information, please click this link to check out AlphaStaff’s Comprehensive COVID-19 Vaccine FAQs.
Mandatory Employee Vaccines: National Legislation Tracking
Our legal partners at the law firm of Littler Mendelson continue actively tracking states as they update their mandatory vaccination legislation. As of this update, the following states have issued legislation or executive orders allowing mandatory vaccination for either state workers or some type of private employer: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virginia, Washington, and Wisconsin. However, several states have issued bans or limitations on private employers’ institution of mandatory vaccine policies, including Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia. For more information, please visit this link.
New Year = New Guidelines
As we enter the New Year, AlphaStaff remains committed to providing our clients with an overview of the legislation that becomes effective January 1, 2022. In many cases, the newly enacted legislation may require policy updates to maintain compliance. As always, AlphaStaff is here to help you understand how these changes can impact you and assist with updating your policies as necessary. Please reach out to your HRAM if you have any questions.
Department of Labor
Federal Contractor Minimum Wage – Effective January 30, 2022, the final rule enacted by the DOL increases the minimum wage paid to federal contractors and any covered subcontractor from $10.95 to $15 per hour. The rule also increases the minimum cash wages paid to covered tipped employees from $7.65 to $10.50. Employers must notify employees that the implementation of the final rule will impact. For more information, please visit this link.
Record Retention Requirements – This amendment increases employers’ retention period for all applications, personnel, membership, or employment referral records from two years to four years. It also further clarifies that once an employer receives notice of litigation, they maintain the documents and files until the complaint is entirely and finally disposed of or settled. This requirement extends to all appeals or related proceedings. For more information, please visit this link.
New Wage Protection Rules – The Colorado Department of Labor issued several final rules that will impact Colorado employers in the new year. First, forfeiture of accrued PTO or vacation time is prohibited when an employee is terminated. Second, the method for calculating the paid sick leave under the Healthy Families and Workplaces Act has been clarified. Third, COMPS 38 was published, changing where minimum wage amounts and exemption thresholds will be published, establishing a new, highly compensated employee exemption, and enumerating the method of determining regular rate of pay for employees with multiple jobs. The notice requirement for COMPS 38 remains unchanged, and employers must prominently display the updated poster in the workplace or provide it to employees if posting is impractical. For more information, please visit this link.
Connecticut FMLA Amendments and Paid Leave Law – The Connecticut Family and Medical Leave Act has undergone drastic changes with the most recent rounds of amendments. The amendment of this Act increased to include employers with even one employee. Employees also become eligible to take this leave after 12 weeks of service instead of the 12-month requirement before the amendment. Previously, the law allowed an employee to take up to 16 weeks of leave in a 24-month period. Under the new law, an employee may take up to 12 weeks of paid leave during a 12-month period. Lastly, employees will be paid for leave taken under the Family and Medical Leave Insurance program commencing January 1, 2022. For more information, please visit this link.
Employer Tax Credit for Student Loan Payments – Connecticut has created a tax credit for employers that elect to make student loan payments on behalf of their employees. The employer must make the payment directly to the Connecticut Higher Education Supplemental Loan Authority for loans issued by the same authority. For more information, please visit this link.
Artificial Intelligence Video Interview Act – The technological tools used in recruitment continue to evolve quickly. As a result, Illinois passed the Artificial Intelligence Video Interview Act imposing duties for employers utilizing this type of technology. Beginning in 2022, an employer that uses video interview’s artificial intelligence analysis to determine if an applicant should be granted an in-person interview must collect the applicant’s demographic information. Employers must report this information to the Department of Commerce and Economic Opportunity by December 31 of each year. For more information, please visit this link.
Secure Choice Savings Program Act Expansion – Under this Act, private-sector employers with 25 or more employees that do not already offer retirement savings plans must administer retirement savings programs that automatically deduct IRA contributions from the employees’ paycheck. In August 2021, an amendment was passed expanding the definition of employer to include small businesses that employ at least five employees and to include all employees despite their age in the program. The legislature extended the implementation timeline for small businesses over the next two years. Employers with fewer than 25 employees but more than 15 employees will need to enroll no sooner than September 1, 2022. Employers with at least five but not more than 15 employees must enroll in the program no sooner than September 1, 2023. For more information, please visit this link.
Victims’ Economic Security and Safety Act Amendment – Originally, this law granted leave rights to employees that were the victims of domestic violence, sexual violence, or gender violence. This amendment extends the eligibility for leave to include victims of “any other crime of violence.” Additionally, an employee may take the leave consecutively, intermittently, or reduce their work schedule. Finally, employers cannot require an eligible employee to exhaust other available paid or unpaid leave instead of rights granted under the Act. For more information, please visit this link.
Restrictive Covenant Requirements Expanded – The amended Illinois Freedom to Work Act expands an employer’s obligations when utilizing restrictive covenants. Most notably, the statute establishes salary thresholds to enforce a restrictive covenant. An enforceable non-compete requires an employee’s salary to be at least $75,000, and a non-solicitation agreement requires compensation of at least $45,000 per year. The amendment also expands the notice requirements, the amount of time an employee has to review the covenant and establishes a standard of reasonableness required for a covenant agreement to be valid. For more information, please visit this link.
Lactation Breaks and Pregnancy Accommodation Amendments – Minnesota’s amendment requires employers to grant an eligible employee reasonable lactation breaks and mandates that the employee must be paid during those breaks. The amendment also expands the definition of covered employers to include those with 15 or more employees instead of the previous 21 or more employees. Lastly, the law eliminates the length of service required for an employee to be eligible for this accommodation. For more information, please visit this link.
New York City
NYC Vaccination Mandate – Effective December 27, 2021, private sector employees working in New York City must be vaccinated to enter the workplace physically. Employers must continue to engage in an interactive process to evaluate accommodation requests. However, this mandate does not provide an employee with the option to test as a means of avoiding the vaccination requirement. Furthermore, expansions to the already existing mandate for business visitors will be rolled out with the same effective date. Going forward, employees and visitors must show proof that they received at least two vaccine doses. This requirement will apply to children between the ages of 5 to 11 because they are now eligible to receive the vaccine. For more information, please visit this link.
Oregon Family Leave Act (OFLA) Amendment – Generally, the OFLA allows employees with more than 180 days of service to take unpaid leave for an array of medical and health-related issues. However, this amendment expands the leave rights granted under this statute to all employees with more than 30 days of service when a public health emergency has been declared. For more information, please visit this link.
Noncompete Amendment – Oregon has amended the law expanding restrictions on an employer’s ability to enforce non-compete agreements. Currently, Oregon employers are required to give an employee notice of a required non-compete agreement at least two weeks before the employee’s first day of work. The amendment requires that the non-compete agreement is in writing, and the employee’s compensation must exceed $100,533. Furthermore, the agreement may not extend for more than 12 months from the termination date, and the employee must be paid a severance of at least 50% of their annual gross salary and commissions or 50% of $100,533 for the duration of the agreement. For more information, please visit this link.