Welcome to our January 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.
Update: Mandatory Vaccination Policies in the Workplace
The Emergency Temporary Standard (ETS) established and published by OSHA in November 2021 requiring employers with 100 or more employees to implement a vaccination and testing policy has been put on hold permanently. On January 13, 2022, in a 6-3 decision, the United States Supreme Court reinstated the temporary injunction blocking the enforcement of the ETS. Subsequently, on January 25, 2022, OSHA officially withdrew its enforcement of the ETS.
Although private employers are no longer obligated to comply with the ETS, it is still essential that employers remain aware of state and local laws that may require (or prohibit) mandatory vaccination policies. Click here for more information about OSHA’s withdrawal of the ETS. For more information about the current state of mandatory vaccination requirements in the workplace, please click this link to read the article by our legal partners at Fisher Phillips..
As of this update, the following states have issued legislation or executive orders allowing employers to mandate vaccination for either state workers or some 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’ mandatory vaccine policies, including Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia.
Cal-OSHA Issues Revised COVID-19 Workplace Safety Protocols in Effect Until April 14, 2022
On December 16, 2021, Cal-OSHA re-adopted its COVID-19 Emergency Temporary Standards (ETS) with several key revisions that went into effect on January 14, 2022, and will remain enforceable through April 14, 2022. These changes include modifications to the face covering standards (including the imposition of a “light test” for cloth face coverings) and return-to-work criteria (early discontinuance of quarantine after close contact). This newest version of the ETS removes the distinction between vaccinated and unvaccinated employees regarding testing. Under the amended version of the ETS, employers must also make COVID-19 testing available at no cost, during paid time, to fully vaccinated, asymptomatic employees who have had close contact or during an outbreak.
Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.
Cal-OSHA’s ETS FAQs can be found here.
Colorado Issues Final Rules on Premium Payments for Paid Family and Medical Leave Program
Colorado established the Paid Family and Medical Leave Program to provide employees with 12 weeks of paid leave funded by a payroll tax paid equally by the employer and employee. The payroll tax collection will begin in 2023, and the final rule establishes that the payroll tax for the first two years of the program will be 0.9% of the employee’s wages. Therefore, the employer will pay 0.45%, and the employee will pay 0.45%. Wages subject to the tax include salary or hourly wages, commissions, payment for piecework, bonuses, and tips/gratuities. This law applies to all employers with at least one employee in Colorado. However, employers with less than ten employees may opt out of contributing and are only obligated to withhold and pay the employee’s contribution to the fund. For more information, please visit this link.
Massachusetts Continues to Phase Out Premium Pay for Retail Work on Holidays
Since 2019, Massachusetts has slowly decreased the premium employers must pay to non-exempt employees working in retail establishments on holidays. Effective January 1, 2022, the employees that work on certain holidays and Sundays will be paid at a rate of 1.1 times the employee’s regular rate. The applicable holidays are New Year’s Day, Veterans Day, Columbus Day, Memorial Day, Juneteenth Independence Day, Independence Day, and Labor Day. Massachusetts will eliminate premium pay for holidays effective January 1, 2023. For more information, please visit this link.
Electronic Monitoring of Employees in New York: New Restrictions and Requirements Will Take Effect in 2022
In November 2021, an amendment to the New York Civil Rights Law was signed by Governor Hochul. Under the new law, private employers with operations in New York must provide written notice to all employees subject to electronic monitoring. Employers must also place a poster giving notice of the electronic monitoring in a “conspicuous place” so the affected employees may review it. The law carves out exemptions for processes that are not designed to monitor employee activity but may do so as a result. For example, if the process is designed to maintain the employer’s computer system, it would not require notice. Employers must implement this notice requirement by May 7, 2022. For more information, please visit this link.
Ohio Prohibits Vaping in the Workplace
In Ohio, the prohibition against smoking in the workplace has been amended to expand the definition of smoking. Effective immediately, “smoking” includes electronic smoking devices and any vapor product. Therefore, vaping in the workplace is now prohibited. Employers must revise their policies to encompass the new amendment appropriately. For more information and a sample policy template, please visit this link.
Washington Employers May Consider Delaying Collections of “Washington Cares Act” Premiums from Employees
When the Washington Cares Act was passed, the state became the first to establish a mandatory, public, state-run, long-term care insurance program. Effective January 1, 2022, employers began withholding the premium from employee wages and forwarding those premiums to the state. However, as the effective date drew near, Governor Inslee and legislators recognized that aspects of the law needed revisions. In response to the pending legislation, Governor Inslee advised that if employers decide to delay withholding the premiums from workers, they will not be subject to penalties and interest under the Act. Subsequently, the Washington legislature approved a bill to delay payroll tax collection until July 2023 to work on resolving outstanding issues associated with implementing the Act. For more information, please visit this link.