Welcome to our September 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.
I-9 Compliance Flexibility Set to Expire October 31, 2022
On April 25, 2022, U.S. Immigration and Customs Enforcement (ICE) announced yet another extension of the flexibilities in rules related to Form I-9 compliance initially granted in 2020 at the height of the COVID-19 pandemic. AlphaStaff has released several communications to keep our clients aware of the status of this rule. The temporary flexibility, set to expire October 31, 2022, allows employers that have employees working exclusively in a remote setting due to COVID-19-related precautions to be temporarily exempt from Form I-9’s physical inspection requirements. Additionally, this same exemption applies to employers and workplaces that are operating fully remotely. Under the temporary rules, employers were allowed to virtually inspect Form I-9 documents. However, after October 31, 2022, absent another extension, employers will be required to resume physical inspection of all Form I-9 identity and work authorization documents provided by new hires. Additionally, all existing employees who were onboarded using remote verification must report to their employer or their employer’s designated authorized representative within three business days for in-person verification of documents. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on Form I-9 or to section 3 as appropriate. ICE has clarified that subsequent Form I-9 audits will use the “in-person completed date” as a starting point for employees initially verified remotely. 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. Employers must remain up to date on the 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:
- New Jersey
- On February 22, 2021, New Jersey legalized the use of recreational marijuana by adults over the age of 21. The New Jersey Cannabis Regulatory Commission recently published guidance on how the law will impact an employer’s ability to maintain a drug-free workplace. Under the law, employers are prohibited from taking adverse employment actions based on off-duty marijuana use by an employee. However, the guidance confirms employers may continue to rely on reasonable suspicion testing if they suspect an employee has reported to work under the influence. For more information, please visit this link.
California Extending COVID-19 Supplemental Paid Sick Leave
California’s COVID-19 Supplemental Paid Sick Leave (SPSL) was set to expire on September 30, 2022. However, the legislature recently passed a bill extending the SPSL requirements through December 31, 2022. There is little doubt that Governor Newsome will sign it into law. It is important to note that employers must only continue allowing employees to use the allotted paid sick leave under the law. Employees who have already depleted the paid leave balance will not be issued additional hours. Under the pending legislation, employers may require an employee to submit a second diagnostic test after the initial COVID positive test. Most notably, this legislation also establishes a Relief Grant Program to assist employers with 26 to 49 employees to subrogate up to $50,000 of the costs of implementing this program. There are several factors that employers must meet to qualify for this assistance. For more information, please visit this link.
Connecticut Creates New Discrimination Protections and Leave for Victims of Domestic Violence
Effective October 1, 2022, Connecticut employers with three or more employees may not prohibit an employee’s request for a reasonable leave of absence to address issues related to domestic violence. Connecticut also expanded the protected class definition under the discrimination law to include victims of domestic violence. An employer may request certification to support the leave, including a police report, court order of protection, court evidence, or medical professional documentation. Employers should update their current leave policy to comply with the new obligation. Please visit this link for more information.
New York City Amends Law Requiring Wage/Salary Information in Job Postings
As highlighted in the April 2022 AlphaAdvisor, New York City postponed the effective date of the Pay Transparency Law to November 1, 2022, to provide clarification on a number of ambiguities in the law. In summary, all employers with four or more employees and a least one employee located in New York City must include the expected minimum and maximum salary for the position in each job posting or advertisement. The New York City Commission on Human Rights recently published a fact sheet clarifying several questions about the law. For example, employers could face multiple penalties for noncompliance, including compensatory and punitive damages, attorney’s fees, costs related to a private right of action, civil penalties of up to $250,000, and affirmative relief. The amendment also allows an employer to avoid monetary civil penalties for a first offense if the violation is corrected within 30 days. To ensure compliance, employers must review their current job posting templates and update their hiring practices policies. Please visit this link or visit the NYC Commission’s resource page for more information.
New York City Rolls Back COVID-19 Vaccine Mandate for Private Sector Employees
Currently, private employers in New York City are prohibited from allowing an unvaccinated employee to physically report to work unless an accommodation is required by law. Effective November 1, 2022, private employers in New York City will no longer be required to enforce the city’s COVID-19 vaccination mandate and may adjust company policy so that unvaccinated employees may physically return to the office. For more information, please visit this link.
Oklahoma Amends Wage Payment Law to Address Direct Deposit and Payroll Cards
Numerous states prohibit employers from requiring employees to receive wages via direct deposit or payroll cards without an employee’s express consent. Effective November 1, 2022, Oklahoma employers may require their employees to receive electronic wage payments, including direct deposit and payroll cards. If an employee refuses direct deposit or fails to provide the necessary financial institution information, Oklahoma employers may deposit wages into a payroll card. For more information, please visit this link.
Puerto Rico Governor Declares Monkeypox State of Emergency
At the height of the COVID-19 pandemic, Puerto Rico amended its paid leave law to establish a special five-day paid leave for illnesses that have triggered a state of emergency declaration by the Governor or Secretary of State for the Health Department. On September 1, 2022, Governor Pedro Pierluisi declared a state of emergency due to the increased number of monkeypox virus infections. This declaration means non-exempt employees infected with monkeypox may be entitled to additional paid leave. However, employees must exhaust all available accrued leave before utilizing the special leave. Accordingly, private employers in Puerto Rico should examine their current leave policy and update it to comply with the requirements under this declaration. For more information, please visit this link.