HR Newsletter

Federal, state, and local employment laws continue to be enacted at a rapid pace. With a lot of legislative activity taking place in the first half of this year, now is a good time to review these changes and assess how evolving rules may impact your business. Below are recent developments in five major employment areas: workplace safety, paid leave, minimum wage, nondiscrimination, and marijuana laws.

COVID-19 Safety Laws & Regulations

Federal:

In June, the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS) aimed at protecting healthcare workers from COVID-19. Among other things, the ETS requires covered employers to develop a COVID-19 plan and provide workers with paid time off to get vaccinated and to recover from any side effects. OSHA has also published updated general industry guidance that focuses protections on unvaccinated and otherwise at-risk workers and encourages COVID-19 vaccination.

State and Local:

In 2021, state and local jurisdictions continue to issue their own safety rules in response to COVID-19, including but not limited to:

• California. In June, the California Department of Industrial Relations (DIR) revised emergency rules related to protecting workers from COVID-19. The revised rules reflect the state's latest COVID-19 public health guidance and include changes to face coverings and physical distancing requirements.
  
  • Santa Clara County (CA). In May, the county issued an order that requires employers to determine the vaccination status of all employees and contractors and to take certain other safety measures.
• Maryland. In May, Maryland enacted legislation requiring "essential employers" to take certain steps during a public health emergency, including providing personal protective equipment to essential employees and following certain protocols if an employee contracts COVID-19.
• Oregon. In June, Oregon's Occupational Safety and Health Administration (OSHA) published a final rule that requires employers to, among other things, notify employees who quarantine or isolate of their right to return to their job and certify that they're operating their HVAC system in accordance with the rule (employers with more than 10 employees).

Paid Leave:

Federal Tax Credits for COVID-19 Leave:

The federal requirement for covered employers to provide emergency paid sick leave and public health emergency leave expired at the end of 2020, however the American Rescue Plan Act (ARPA) extended tax credits for employers that provide such leave voluntarily. The tax credits are available for covered leave taken from April 1, 2021 through September 30, 2021. The ARPA also added new reasons for which employees may take leave, including leave for time awaiting the results of a COVID-19 test, to obtain the COVID-19 vaccine, or to recover from any adverse health impacts arising from the vaccine.

In June, the IRS released guidance indicating that employers may receive the federal tax credits for paid sick leave and/or public health emergency leave provided pursuant to a federal, state, or local law, if the leave otherwise satisfies the requirements of the Families First Coronavirus Response Act (FFCRA), as amended by the ARPA.

State and Local COVID-19 Leave Requirements:

While the federal paid leave requirement for COVID-19 expired at the end 2020, some states and local jurisdictions enacted their own requirements. In 2021, these included but weren't limited to:

• California. In March, California enacted legislation that requires employers with more than 25 employees to provide COVID-19 supplemental paid sick leave to employees. The leave requirement applies retroactively to January 1, 2021 and will remain in effect through September 30, 2021. Several cities in the state have also enacted their own requirements.
• Massachusetts. In May, Massachusetts enacted legislation that requires all employers to provide COVID-19 emergency paid sick leave. Employers that provide the leave may request reimbursement from the state's COVID-19 Emergency Paid Sick Leave Fund. The leave requirement will expire when the $75 million fund is exhausted or September 30, 2021, whichever occurs first.
• Nevada. In June, Nevada enacted legislation that amended its paid leave law to require paid leave for COVID-19 vaccination.
• New York. In March, New York enacted legislation that grants employees paid time off to receive a COVID-19 vaccination. Note: Under a state law enacted in 2020, employers must also provide leave to employees subject to a COVID-19 quarantine or isolation order.

Other Paid Leave:

This year, we've also seen states and local jurisdictions enact new or expanded paid leave requirements beyond reasons related to COVID-19. Some examples include, but are not limited to:

• New Mexico enacted legislation that requires employers to provide paid sick and safe leave to employees, effective July 1, 2022.
• Virginia enacted legislation that requires employers to provide paid sick leave to certain home health workers. The law took effect on July 1, 2021.
• Washington enacted legislation that expands employee eligibility for the state's paid family and medical leave program.

Minimum Wage:

Each year, the majority of state or local minimum wage increases occur on January 1 or July 1 (an overview of July 1 minimum wage increases is available here). However, there are some jurisdictions that increase their minimum wage rates at other points in the year. For instance:

• Connecticut: The minimum wage increases to $13 per hour on August 1, 2021.
• Florida: The minimum wage increases to $10 per hour on September 30, 2021.

Also keep in mind that new minimum wage laws continue to be enacted. For example, Rhode Island recently enacted legislation that will raise the state's minimum wage in phases, eventually reaching $15 per hour. Closely monitor minimum wage changes in your jurisdiction to ensure compliance.

COVID-19 Vaccinations:

In 2021, both federal and state authorities issued new or updated guidance and rules on whether employers can require vaccination, whether and to what extent employers can seek proof of vaccination, and whether employees are entitled to pay for the time it takes to receive the vaccine. For instance, in May, the U.S. Equal Employment Opportunity Commission (EEOC) published updated guidance that makes clear that federal laws don't prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodation requirements.

By contrast, Montana enacted legislation that prohibits employers from refusing employment to an individual or discriminating against an employee based on their vaccination status. Keep in mind that other states and some local jurisdictions may prohibit or limit employers from mandating employee vaccinations or have privacy laws that may impact employers. Make sure you review and understand the vaccination-related rules that apply to your business.

Hairstyle Discrimination:

In the past couple of years, several state and local jurisdictions have enacted laws that expressly prohibit hairstyle discrimination. In 2021, these included:

• Connecticut (effective March 13, 2021)
• Delaware (effective April 14, 2021)
• Nebraska (effective August 25, 2021)
• Nevada (effective June 2, 2021)
• New Mexico (effective July 1, 2021)
• Oregon (effective January 1, 2022)

You may also have an obligation to accommodate employees' hairstyles under federal, state, and/or local laws. For instance, under federal law, employers with 15 or more employees must provide reasonable accommodations for employees' sincerely held religious beliefs or practices, unless it would cause an undue hardship. For appearance and grooming standards, this typically means making an exception to a policy when it conflicts with an employee's known religious beliefs or practices.

Marijuana Laws:

A growing list of states have approved recreational marijuana laws. Some of these laws include express employment protections. In the first half of 2021, the following states adopted employment protections for recreational marijuana users:

• Connecticut. In June, Connecticut approved recreational marijuana and passed certain employment protections for recreational marijuana use outside of work.
• New Jersey. In February, New Jersey adopted a law that prohibits employers from taking any adverse action against an individual who uses cannabis during non-work hours, unless it would violate a federal contract or cause the employer to lose federal funding. The employment-related protections don't become operative until initial rules and regulations are adopted.
• New York. In March, New York enacted legislation that legalizes recreational marijuana use and generally prohibits employers from taking adverse action against employees or applicants who legally use or possess marijuana products during non-work hours or while they're outside the workplace.

Note: None of these laws require employers to allow employees to use or be impaired by recreational marijuana during work hours or in the workplace.

This continues to be an evolving area of employment law, with court cases regularly testing the scope of protections for applicants and employees. Check your state law and work with legal counsel to determine your rights and responsibilities.

Conclusion:

These are just some of the legislative trends affecting employers to date in 2021. Make sure you understand all the laws that apply to your business and regularly review workplace forms, policies, practices, and training to ensure compliance.

Home

Next