EEOC Covid-19 Guidance Updated. With the official end of the federal national emergency, the EEOC just released updated “technical assistance” related to Covid-19, which includes:
A warning that the end of the emergency does not give employers license to automatically end all accommodations granted during the pandemic. They are required to discuss it with each employee, and individually evaluate the continuing need for accommodation.
“Long Covid” is still a potential disability and is confidential medical information. Examples of potential accommodations provided are quiet workspaces, use of noise cancelling devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.
When considering whether to continue screening employees for symptoms or exposure, or asking them health questions, don’t forget that it may be considered “disability-related inquiry” or “medical examination” that requires a business necessity justification. The EEOC confirmed that following CDC recommendations satisfies this requirement.
Reiteration that comments related to Covid-19 may violate anti-discrimination laws, such as harassing an employee for wearing a mask, or criticizing an employee for obtaining a religious exemption to a vaccine requirement.
HSA Limits: The IRS just announced that HSA limits will increase in 2024. For individuals, the maximum will increase $4,150 ($8,300 for families). A high deductible plan (required for an HSA) will be defined as a health plan with annual deductible of at least $1,600 for individuals ($3,200 for families).
DOT Drug Testing: DOT just published a final rule that allows for “oral fluid” (saliva) drug testing for DOT compliance purposes and requires it for transgender or nonbinary individuals and when direct observation is required and a same-gender technician is not available. The new rule is technically effective June 1, 2023, but cannot be implemented until HHS certifies at least 2 laboratories to process the tests. This will give employers another option for DOT-regulated drug tests, including preemployment, random, reasonable suspicion, post-accident, follow-up, or return-to-duty tests.
80/20 Tip Rule: in 2021, DOL issued a rule that set a limit of 20% for non-tipped work, and required minimum wage for any continuous period of non-tipped work exceeding 30 minutes. A lawsuit requesting a nationwide injunction was rejected in TX district court, but the 5th Circuit sent it back for reconsideration, with a strongly implied hint that the injunction should be granted. If it is, we may to revert back to the prior rule (at least temporarily), which gives no time frame for when tipped employees no longer qualify for the credit. Nonetheless it’s always advisable to follow what DOL has published as its position on the matter and avoid enforcement actions altogether.
Posters: DOL updated the FLSA posters to include PUMP Act last month, and it is currently required to be posted. It also updated the FMLA poster, but because the changes are not substantive there is no requirement that it replace existing posters. Next month, DOL is expected to update its “Know Your Rights: Workplace Discrimination is Illegal” poster to include the Pregnant Workers Fairness Act, and EEOC is also updating its “Know Your Rights” poster to include PUMP and PWFA Acts. Employers should post updates as they come out, but may want to pause and wait for all of them to be updated before ordering any new all-in-one poster.
NLRB Allows “Employee Outbursts”: The NLRB just issued an opinion confirming that disruptive behavior may be protected under Section 7 when connected with concerted protected activity, even if it is abusive or offensive. This applies to both union and nonunion employers. Before taking action against disruptive employees, employers should consider the situation and evaluate whether Section 7 rights are involved.
California: The California Supreme Court has officially confirmed that wages due on weekends/holidays may be paid the next day.
PHE Leave Expires: Colorado has required employers to provide additional sick leave for reasons related to Covid-19 since the beginning of 2021 and have been prohibited from requiring documentation. That obligation ends June 9, 2023 (4 weeks after the official end of the state emergency declaration). The state required paid sick and safe leave obligations for up to 48 hours of leave remains in effect, and the public health emergency statute remains in effect and will be automatically revived in the event of another declared emergency.
Harassment/Discrimination: After several attempts to impose even more onerous burdens on employers, this year the Colorado legislature passed a heavily negotiated version of the Protecting Opportunities and Workers’ Rights Act (POWR). The act makes significant changes to workplace discrimination and harassment laws in Colorado, and assuming the Governor signs it as expected will generally:
Reject the “severe or pervasive” standard for harassment. Plaintiffs would only need to show that the harassment was both objectively and subjectively offensive, and beyond mere “petty slights, annoyances, or lack of manners”.
Specify that the nature of the work or the frequency with which harassment occurred in the past is no longer relevant.
Direct courts to consider the “totality of the circumstances”, with 9 specific factors to consider.
Include marital status as a protected class.
Severely limit confidentiality agreements in discrimination and harassment settlements.
Establish that it is a discriminatory or unfair employment practice to fail to initiate an investigation of a complaint, or to take prompt, reasonable, and remedial action.
Eliminate the ability to assert that an individual’s disability has a “significant impact on the job” as a rational for an employment practice. Adverse employment actions will only be permitted if there are no reasonable accommodations that would allow employee to perform the essential functions of the job.
Because the new standards are new and don’t follow established case law in Colorado (or elsewhere), Colorado employers should expect increased litigation, and plenty cases of first impression.
Equal Pay for Equal Work. The legislature also passed an amendment to the EPEW Act intended to clarify and enhance obligations related to promotions and career development. It is effective January 1, 2024, but unfortunately rulemaking is not required to be completed until July 1, 2024.
For each “job opportunity”, employers must disclose to employees, in good faith:
The hourly or salary compensation (or a compensation range).
A general description of the benefits and other compensation; and
The date the application window is anticipated to close.
And, within 30 days after a candidate begins working employers must make reasonable efforts to announce, post, or otherwise make known to the employees with whom the selected candidate is intended to regularly work, at a minimum:
The name of the candidate selected;
The candidate’s former job title if selected while already employed by the employer;
The candidate’s new job title; and
How other employees can demonstrate an interest in similar job opportunities in the future, including identifying individuals or departments to whom the employees can express interest in similar job opportunities.
In positions with “career progression”, employers must also disclose to all eligible employees the requirements for career progression, along with each position’s compensation, benefits, full-time or part-time status, duties, and access to further advancement.
Secure Savings Retirement Program: Colorado’s retirement savings program applies to employers who have been in business in Colorado for at least two years, have employed at least 5 people for at least 180 days, and do not offer a qualified savings plan to employees. It is in the process of phasing in for different-sized employers, and those with 15 employees should have already registered with the state. Employers with 5-14 employees are required to register by June 30, 2023, and should be receiving a notice from the state with more information.
Florida: The Governor signed SB 1718, which requires Florida employers with 25+ employees to use E-verify to confirm every new employee’s authorization to work in the U.S. within 3 business days after the first day the employee begins working. The new requirement is effective July 1, 2023. Employers can sign up on the government’s E-verify.gov website.
Hawaii: The legislature just passed a pay transparency bill that, if signed by the Governor as expected, would require employers with 50+ employees to disclose pay ranges that “reasonably reflect the actual expected compensation” in job postings beginning January 1, 2024. Unlike some other states, it does not require postings to include benefits and does not apply to internal transfers or promotions.
Omnibus Jobs Act: The Minnesota legislature passed a major piece of legislation that will have significant impacts on employers, and that is expected to be signed by the Governor shortly. It creates a statewide paid sick and safe leave requirement, prohibits most non-compete agreements, creates additional paystub requirements, prohibits mandatory employer-sponsored “captive audience” meetings, expands parental leave, and increases state protections for pregnant workers. Sick and safe leave is effective January 1, 2024, and some other requirements are effective July 1, 2023.
For sick and safe leave, all employees (in any size employer) will be entitled to accrue one hour of ESSL for every 30 hours worked, up to 48 hours per year. Employees will be able to carry over ESSL, but it may be capped at 80 hours. In the alternative, employers may front-load 80 hours of ESSL.
Employers should prepare for additional required posters and notices, and plan for significant updates to their employee handbooks and payroll systems.
Employers should also be aware that a paid family leave bill is currently making its way through the legislature.
Bloomington Sick and Safe Leave: Effective July 1, 2023, Bloomington, Minnesota will require all employers to provide sick and safe leave, and for employers with 5+ employees it must be paid. It covers sick leave for employees and their family members, as well as bereavement, domestic violence/assault/stalking, closures due to public health emergencies, and school closures due to inclement weather. Leave accrues at one hour per 30 worked, up to 48 hours per year. Minneapolis, St. Paul, and Duluth have similar ordinances that are slightly different and will not be preempted by the state law.
New York: The New York City Council passed a bill adding height and weight to the list of protected characteristics under the New York City Human Rights Law. If signed by the mayor, it would take effect in 180 days and would prohibit discrimination absent a bona fide business requirement. New York State is considering a similar law.
Paid Family & Medical Leave. The legislature passed and the Governor just signed a new law that will provide employers with access to some additional information for PFML leaves beginning 1/1/2024. Currently, by statute, the Employment Security Department is limited to disclosing only records related to decisions based on information provided by the employer, and records related to premium assessments. Once the amendment goes into effect ESD will also be to disclose
(i) the type of leave requested (family or medical)
(ii) the requested duration and approved dates of the leave
(iii) whether the employee was approved for benefits
(iv) the amount paid to the employee each week of their leave
This will make it much easier for Washington employers to administer PFML leaves, integrate it with FMLA and other leaves, and calculate the use of supplemental paid leave correctly. ESD has already initiated the rulemaking process to update its guidance, so we hope to have more information well before this takes effect in January.
In addition, the legislature revised how ESD will calculate premium rates to avoid the current solvency issues. Rates are expected to be recalculated each October to ensure a three-month reserve, with a cap of 1.2% (currently 0.8%).
Pre-employment Drug Testing – Cannabis. Effective January 1, 2024, employers are prohibited from discriminating against applicants for off-duty cannabis use or a positive test for nonpsychoactive cannabis metabolites in their system (what remains in a person’s system after they are no longer “high”). Because there is currently no test that differentiates between psychoactive and nonpsychoactive metabolites, this effectively means that employers cannot reject applicants for testing positive for cannabis. There are limited exceptions for some federal employees, and police/firefighters/first responders or other safety-sensitive positions identified in advance. Employers can still include cannabis on a drug screen as long as the results are not provided to the employer.
Vehicle Searches: Effective July 23, 2023, employers are prohibited from searching employees’ privately owned vehicles, even when located on the employer’s property. There are a few very limited exceptions, such as when an employee consents and the search is based on probable cause that the employee unlawfully possesses the employer’s property or a controlled substance in violation of both federal law and the employer’s written policies prohibiting drug use. Consent must be given immediately prior to the search and can’t be waived as a condition of employment. While most employers don’t search employee vehicles, it may be advisable to review any “right to search” handbook provisions to comply with this statute.
Ergonomics/Musculoskeletal Injuries: In response to a finding that work-related musculoskeletal injuries and disorders account for at least one-third of all workers’ compensation claims, are more severe than the average nonfatal injury or illness, and are a common cause of long-term disability in Washington state, the legislature repealed the ban on the Department of Labor & Industries ability to adopt musculoskeletal safety regulations in the workplace. The new law authorizes L&I to adopt limited regulations to “strategically address” workplace safety in high-risk industries (including health care). High-risk industries are generally defined as industries or risk classifications where compensable workers’ compensation claims involve injuries and disorders at a rate greater than two times the state rate over the past 5 years. L& is required to publish a list of NAICS industries and risk classifications eligible for rulemaking and follow the rulemaking process prior to adopting new rules.
Florida: The Governor signed SB 1718, which requires Florida employers with 25+ employees to use E-verify to confirm every new employee’s authorization to work in the U.S. within 3 business days after the first day the employee begins working. The new requirement is effective July 1, 2023. Employers can sign up on the government’s e-verify.gov website.
If you’d like to speak to an HR expert about your business, connect with us.
Asure Software provides this information for general information purposes only. We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice. This information may not be accurate or complete as it relates to a particular company or situation and does not reflect all developments or laws in all jurisdictions.