Welcome to our February 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.
More Clarity Regarding Employer Mandates for At-Home COVID-19 Testing
The Department of Labor (DOL) updated its FAQs, establishing that all insurers and group health plans are obligated to cover the cost of multiple types of COVID-19 testing effective February 4, 2022. Under FAQ 51, the DOL carved out two safe harbors that plans and insurers can adopt to maintain compliance. On February 4, 2022, the DOL published much needed clarifications in FAQ 52. The Department answered several questions regarding the new standards, including the types of tests that qualify for the no-cost coverage, how plans could provide “direct coverage” to the participants, and coordination of benefits between plan and FSA/HSA plans. For more information, please visit this link.
Congress Passes Bipartisan Arbitration Limitation
Earlier this month, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”) passed both the House and Congress, meaning the bill is on its way to President Biden’s desk for approval. President Biden has voiced his support of this legislation leaving little doubt that this Act will become law in the coming weeks. This amendment to the Federal Arbitration Act prohibits the enforceability of pre-dispute arbitration agreements related to claims alleging sexual harassment and sexual assault. It also bars any waiver of the right to bring such claims jointly or on a class basis. Despite being effective upon enactment, the ban limits its scope to disputes or claims arising or accruing on or after the effective date. Therefore, an existing arbitration agreement would not become void—only the provisions related to sexual harassment and sexual assault would be non-arbitrable. As a practical matter, employers will need to review current arbitration agreements to establish the appropriate carve-out, excluding arbitration for claims of sexual harassment or sexual assault. For more information, please visit this link.
DOL Workplace Posters: Same Rules, Higher Consequences for Noncompliance
It is well established that the Department of Labor (DOL) requires employers to display certain posters within the workplace. However, as some employers continue to transition their workforce to a remote environment, it has become necessary to understand how the transformation to a virtual space impacts the posting obligation. In addition, the DOL’s recent increase to the maximum fines issued to an employer for non-compliance creates further motivation for an employer to stay abreast of the poster notice requirements. For more information, please visit this link.
Wage Transparency: How Can Multi-State Employers Manage the Compliance Minefield of Wage Disclosure Laws Nationwide?
As employers increase the utilization of a remote workforce, there is a good chance they may hire employees that reside in a different state. The expanded footprint into unfamiliar territory requires an employer to rapidly adapt their current policies to comply with the applicable employment laws for any new state. The passage of wage transparency legislation is a recent development, but more states are adopting legislation as time passes. Therefore, an employer must review applicable state laws to ensure compliance as they advertise, recruit, and hire for vacant positions. Currently, there are ten states or localities that either have a wage disclosure requirement or a disclosure law that will become effective between now and 2023. For an overview of the current legislation, please visit this link.
California Governor Signs 2022 Supplemental Paid Sick Leave Bill
On February 9, 2022, California resurrected the requirement that employers provide employees up to 80 hours of paid sick leave for several COVID-19 related reasons. The new law is effective as of February 19, 2022, but will be retroactive to January 1, 2022. It defines a covered employer as any employer with 26 or more employees. Employees may use this leave to care for themselves or family members. Employers that operate outside of California but have an employee residing in California may be impacted by the new legislation. Please click here to check out the 2022 California COVID-19 Supplemental Paid Sick Leave Alert detailing the system update. For more information about the legislation, please visit this link.
California Privacy Rights Act for Employers: The New “Notice at Collection” California Employers Must Distribute to the Workforce
As the effective date of the California Privacy Rights Act (CPRA) draws nearer, employers must become well versed in the obligations that arise under the statute. Employers will be required to provide newly hired employees with notice of their rights under this statute before or at the time of collection of personal information. The notice must include the type of information that the employer will collect, how the employer will use or disclose this information, and the retention policy related to the data. The California Attorney General must publish the final regulations interpreting the CPRA by July 1, 2022. However, given the comprehensive nature of the new notice requirement, the sooner employers start auditing their internal data collection processes, the better. For more information, please visit this link.
Colorado Criminalizes Certain Restrictive Covenants
Currently, Colorado deems non-compete agreements void unless the deal falls into an applicable exception such as the purchase and sale of a business or its assets, protection of trade secrets, recovering employee education and training expense, or involves executive and management personnel. The recently passed legislation will elevate non-exempted restrictive covenants to a criminal offense. Effective March 1, 2022, it will be a Class 2 Misdemeanor to knowingly implement a restrictive covenant that is not allowed under an exemption. The penalty for violating this statute includes 120 days imprisonment, a $750 fine per violation, or both. For more information, please visit this link.
D.C. Announces “Applicability Date” for Non-Compete Law
On March 16, 2021, the Ban on Non-Compete Agreement Amendment Act of 2020 (the “Act”) became effective in the District of Columbia. Under the law, private employers are prohibited from requiring or requesting an employee to sign an agreement that includes a non-compete provision. Although the Act was effective in 2021, many aspects of the law will not become enforceable until the applicability date. Specifically, non-compete provisions are void and unenforceable if entered after the Act’s applicability date. The passage of the FY 2022 budget bill established that the applicability date of the Act is April 1, 2022. As this date draws nearer, D.C. employers must review their policies and revise any agreements containing non-compete provisions to ensure compliance with this new law. For more information, please visit this link.
Illinois Equal Pay Reporting Obligations Are Here for Many Illinois Employers
In an effort to address pay inequity in the workplace, the Illinois legislature amended the Equal Pay Act creating a reporting obligation for many employers. Effective May 25, 2022, covered employers must apply for and be issued an Equal Pay Registration Certificate by the Illinois Department of Labor (IDOL). Private employers with more than 100 employees in Illinois must submit workforce demographic information and pay data in the application. On January 25, 2022, the first notices were sent to 625 covered employers advising that they must apply for the certificate by May 25, 2022. As the IDOL continues issuing notices, employers will be allowed at least 120 days to apply for the certification. Employers that began operations after March 23, 2021, have a slightly longer period to comply with this requirement as they must wait until after January 1, 2024, to complete their application. Under the statute, if an employer exempt from obtaining the EPRC receives a notice from the IDOL, the business must certify the exemption in writing to the IDOL. The IDOL is currently developing resources and training materials to assist employers in meeting this reporting obligation. If your business has not already done so, it is essential to register at the IDOL website in order to receive important communications from the Department. Please do not hesitate to contact your HRAM for assistance when you receive the notice from the IDOL. For more information, please visit this link.
Mississippi Enacts Medical Marijuana Law
Effective February 2, 2022, the Mississippi Medical Cannabis Act (the “Act”) was ratified, legalizing medical cannabis to treat an enumerated list of “debilitating medical conditions.” However, the new law does not prohibit employers from enforcing a drug testing policy with applicants or employees. Furthermore, employers are not obligated to accommodate the use of medical marijuana by an employee treating a debilitating medical condition. For more information, please visit this link.
Salary Transparency Law Set to Rock New York City Labor Market: An Employer’s 3-Step Compliance Plan
Effective May 15, 2022, all private employers operating in New York City must disclose the expected salary range on all internal and external job listings. Internal job listings include advertisements for transfers and promotions. Employers must post a good faith estimate of the salary range that they expect to pay for the position. An exemption to this disclosure mandate has been carved out for temporary staffing agencies. New York City employers or employers with employees residing in New York City must review their current compensation structure to ensure significant pay disparity does not exist among employees. For more information, please visit this link.