Welcome to our March 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.
EEOC Updates Guidance on Religious Accommodation for COVID-19 Vaccines
Evaluating an employee’s requests for religious accommodations can be difficult for an employer. There is never a clear-cut answer, and an employer must assess each accommodation request based on the request’s unique set of circumstances. As a result of COVID-19, many employers implemented mandatory vaccination policies, which increased the number of employees requesting religious accommodations. The increase in these requests highlighted many of the difficulties employers face when implementing the interactive process. Recently, the EEOC updated its FAQs to help employers address the most “pressing” concerns that arise when evaluating this type of accommodation request.
They also took the extraordinary step of publishing the religious accommodation form developed for internal use by employees within the agency. Generally, the EEOC does not make internal documents available to the public, so this exception further emphasizes the “extraordinary circumstances” COVID-19 has created for employers and the importance of properly implementing the interactive process. For more information, please visit this link. You can also find the EEOC accommodation form here.
Employers Can No Longer Accept Expired List B Documents
As a result of the pandemic, the Department of Homeland Security established several temporary policies in 2020 to ease the burden of I-9 compliance for employers. These policies reduced the typically stringent requirements for completing the I-9 verification process. However, as COVID-19 restrictions begin to relax nationally, the DHS is taking steps to return to business as usual. Effective May 1, 2022, employers will no longer be able to accept expired List B documents for I-9 verification purposes. Furthermore, active employees that previously submitted an expired List B documentation for verification must present valid documentation for inspection by their employer. Employers must collect and inspect valid documentation for any Form I-9 completed using expired documentation by July 31, 2022. For more information, please visit this link.
California Labor Commissioner Issues 2022 COVID-19 Supplemental Paid Sick Leave Poster and FAQs
The February Compliance Update provided an overview of California’s newly enacted 2022 COVID-19 Supplemental Sick Leave Law (CPSL). Since then, the California Labor Commissioner released additional resources to assist covered employers in complying with the law. First, they published the posters that employers must display in a conspicuous place within the worksite. Second, the Labor Commissioner posted updated FAQs detailing the law and clarifying newly added provisions under the law. One of the most notable additions allows an employer to request an employee to provide documentation of a positive test result to use the leave. Therefore, if the employee does not provide the requested documentation, the employer can deny the paid leave. For more information, please visit this link. The published FAQs can be found here.
D.C. Ban on Non-Competes Postponed to October 1, 2022
The applicability date of the Ban on Non-Compete Agreement Amendment Act of 2020 (the “Act”) was April 1, 2022. However, the Act’s applicability date has been postponed to October 1, 2022. The Act prohibits private employers from requiring or requesting an employee to sign a non-compete agreement. The applicability date was delayed due to the law’s broad scope in its current form. As a result, it creates a hurdle for employers that use non-competes to protect their business interests. Recognizing the issue for employers, the legislator bought time to draft an amendment to the Act that will allow employers to implement “bona fide conflict of interest” policies. These policies will allow an employer to restrict an employee from engaging in activities for which they receive compensation that would cause the employer to “conduct its business in an unethical manner.” Despite the delay in the applicability date of the Act, employers still need to review their current policies and agreements to ensure compliance under the Act. For more information, please visit this link.
D.C. Increasing Amount of Paid Leave Under D.C. Universal Paid Leave Law
Effective July 1, 2022, employees in D.C. will be able to take a maximum of up to 12 workweeks of paid leave for parental leave, family leave, or medical leave. Currently, employees have access to a maximum of 8 workweeks for parental leave and 6 workweeks for family and medical leave. Initially, the increase in available paid leave would occur gradually. However, this drastic increase in maximum paid leave for employees directly results from a significant surplus in the Universal Paid Leave Fund. Additionally, the payroll tax rate for Fund contributions will decrease from 0.62% to 0.26% on July 1. For more information, please visit this link.
Florida Legislature Amends Florida Civil Rights Act to Restrict Topics Employer Can Discuss in Training
Florida recently passed House Bill 7, expanding an employer’s civil liability exposure if prohibited topics are discussed during employee diversity or unconscious bias training. This Bill closely models the Executive Order issued by Donald Trump but was never enforced because of a federal court injunction and President Biden’s ultimate revocation of the Order. 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. This law covers both public and private employers with at least 15 employees. Although this law is expected to face legal challenges, covered employers must carefully review current policies and training material to ensure compliance under the law. For more information, please visit this link.
Illinois Governor Gives Employers Greater Authority to Impose COVID-19 Requirements as a Condition of Employment
On June 1, 2022, an amendment to the Health Care Right of Conscience Act will become effective. The Act creates ambiguity as to whether employers are prohibited from mandating COVID-19 vaccination or testing policies. The amended law explicitly states that an employer can implement mandatory COVID-19 policies and terminate employees for failing to comply with the established guidelines. Although the amendment grants employers greater authority under state law, employers must remain mindful of their obligations under federal law. For more information, please visit this link.
Indiana Restricts Employer Vaccination Mandates
On March 3, 2022, Governor Holcomb signed House Bill 1001 into law, mandating private employers must provide individual exemptions based on medical reasons, religious reasons, or “natural immunity” from prior infections when implementing a mandatory law COVID-19 vaccination policy. Furthermore, if an employee submits an exemption request based on medical reason or “natural immunity,” the employer must approve it without further inquiry. This requirement creates conflict for employers subject to federal EEO laws because the EEOC explicitly allows an employer to request additional information when reviewing a request for accommodations under the ADA. Additionally, the EEOC prohibits employers from using the results from antibody tests, but the Indiana statute allows the use of that test to establish “natural immunity.” As more states pass laws that create conflicts for employers trying to remain compliant, there will need to be judicial intervention. For more information, please visit this link.
Nebraska Passes Law on COVID-19 Vaccination Policy Exemptions
Nebraska has also passed legislation requiring employers to establish an exemption process if they implement a mandatory COVID-19 vaccination policy. Under the law, employees can seek an exemption based on a health care practitioner’s statement that they have a valid medical reason or if they have a sincerely held religious belief. The Department of Health and Human Services established the exemption form that the employee must complete. Unlike Indiana’s law, this statute does not include “natural immunity” as a basis for a medical exemption. Employers with one or more employees are required to comply with this statute. For more information, please visit this link.
New York Requires New Notice of Electronic Monitoring
Effective May 7, 2022, private employers must provide new hires notice of electronic monitoring and obtain the employee’s written acknowledgment of receipt. Therefore, employers do not have to issue the notice requirement to currently employed personnel. All employers with a place of business must comply with this notice requirement.
However, uncertainty remains as to whether a New York employer must provide this notice to remote employees residing outside of New York. Pending further clarification, employers would need to analyze the facts surrounding each worker’s employment circumstances and determine if New York is their “place of employment.” There is also a requirement to display this notice on a poster in a conspicuous place within the workplace. Failure to comply with the notice requirement can result in fines up to $3,000 per violation. Employers should prioritize reviewing current electronic monitoring policies to determine if they must provide this notice to new hires. For more information, please visit this link.
New York Department of Labor Releases Final Regulations for State Sick Leave Law
The New York State Sick Leave Law (NYSSLL) was passed in September 2020, creating a system to provide paid sick leave to New York employees. Recently, the New York Department of Labor issued final regulations providing clarity for many questions that arose during the period for public comment. For example, an employer’s obligation to comply with the NYSSLL depends on their employee count. However, the statute fails to state if the count should be based on employees working in New York only or on the employer’s entire enterprise. The final regulations clarify that an employer should use the enterprise-wide employee headcount to determine their compliance obligations. The NYDOL also explained that there are restrictions on the inquiries an employer can make about the nature of an employee’s use of sick leave. For more information, please visit this link.
South Dakota Amends Medical Marijuana Law
South Dakota has amended their Medical Marijuana Law, allowing employers to prohibit a broader range of employee workplace conduct. Effective July 1, 2022, employers can also implement policies banning employees from possessing marijuana on the company premises. In addition, employers can also create a drug-free workplace policy which may include the use of a drug testing policy. The Amendment also eliminates carve-outs that previously protected registered medical cannabis users when undergoing drug testing. For more information, please visit this link.