July Updates

OSHA Publishes Guidelines on Face Coverings, Masks and Respirators in the Workplace

As more states re-open businesses, OSHA has published an FAQ regarding use of masks in the workplace.  Published on June 10, 2020, the FAQ outlines the differences between different types of facial coverings and when they are appropriate for use, as well as additional guidance on the continuing need for social distancing measures.  Employers can view the FAQ on OSHA’s webpage here.

Work Opportunity Tax Credit Can Be Used to Hire Underrepresented Workers

On April 29, 2020, the EEOC issued its first formal opinion letter in over 30 years cementing its position that employers can use the Work Opportunity Tax Credit (WOTC) for hiring individuals with disabilities, veterans, and other underrepresented workers without violating federal anti-discrimination laws. Specifically, employers can use Form 8850 to ask an applicant to check a box verifying that they fall into one of these categories if they are seeking the WOTC. While this is not a new notion, putting it into a formal opinion letter is new because now employers can rely upon it when defending against certain discrimination claims.

NLRB Allows Prohibition of Cell Phones in the Workplace For Legitimate Business Reasons

On May 20, 2020, in Cott Beverages, Inc., the National Labor Relations Board (NLRB) reviewed policies prohibiting cell phones in work areas due to safety concerns for food production. Although the Board determined that the rules may be potentially viewed as interfering with employee rights under Section 7 of the National Labor Relations Act (NLRA), there were legitimate business interests for the policies to ensure the integrity of the employer’s beverage production process, satisfy FDA requirements for food-production facilities, and reduce the risks of product contamination, slowed response times, and on-the-job accidents. Employers restricting cell phones in work areas should have policies reviewed by legal counsel to ensure compliance with NLRB rules.

California: Remaining Provisions of State Sanctuary Law Stands

On June 15, 2020, the U.S. Supreme Court declined to take up a case challenging California’s sanctuary laws. In April 2020, the 9^th Circuit Court of Appeal in U.S. v. California, stated in part that AB 450, which requires employers to alert employees before federal immigration inspections, neither burdened the federal government nor conflicted with federal activities. As a result, employer notice obligations remain in effect under the Act for receiving a federal Notice of Inspection of Form I-9s. Employers must post the Notice within 72 hours of receipt, and provide notice to applicable employees of the inspection results within 72 hours of receipt.

California: Lighting Requirements for Outdoor Agriculture in Effect

Effective July 1, 2020, employers are required to provide specified lighting across workspaces, rest areas, maintenance areas, and more to workers who are providing outdoor agricultural work before sunrise or after sunset.  Lighting intensity and height requirements vary depending on the area to be illuminated, so employers may need to review any existing illumination set-up and potentially provide new or additional lighting equipment.  Employers can view detailed information about the newly effective regulation on Cal/OSHA’s webpage here.

Long Beach, CA: City Issues Mandatory Worker Retention and Recall Orders

Effective June 22, 2020, Long Beach adopted the COVID-19 Worker Retention Ordinance and the COVID-19 Worker Recall Ordinance which provide legal protections to workers in the hotel and commercial property industries. Specifically, employees are protected in the case of business sale or transfer, and laid-off former employees get priority for rehire. Employees may bring a private action against employers for violations.

Colorado: Hairstyle Discrimination Prohibited

The “Creating a Respectful and Open World for Natural Hair Act of 2020,” also referred to as the “CROWN Act of 2020,” prohibits discrimination against an individual on the basis hair texture, type, or protective hairstyles commonly or historically associated with race.  Examples include braids, locks, afros, twists, and more.  The effective date of the CROWN Act is not yet clear due to COVID-related adjournment of the Colorado legislature.  The Act was originally intended to go into effect on August 5, 2020; however, a Colorado Supreme Court case is pending to determine the effect of the legislature adjournment, which typically determines the effective date of enacted bills.  In the interim, employers can view the bill here.

Illinois: New Amendments to School Activities Leave

Effective August 1, 2020, employees will be protected from termination for being absent due to taking school activities leave. The purpose of leave was also amended to include attending school conferences, behavioral meetings, or academic meetings, rather than the previous definition of “classroom activities.” Read the text of Public Act 101-0486 here.

Indiana: Microchip Implantation Restriction

Effective July 1, 2020, employers cannot require a candidate for employment, or a current employee, to have a device (e.g. microchip or RFID tag) implanted or incorporated into their body as (1) a condition of employment, (2) a condition of employment in a specific position, or (3) a condition to receive additional compensation or benefits.

Minneapolis, MN: Paid Sick Leave Approved by Court

On June 10, 2020, the Minnesota Supreme Court stated that the Minneapolis Sick and Safe Time Ordinance is not preempted by state law, and it applies to employers outside of Minneapolis who have eligible employees working within the city’s geographic boundaries. Employers should update paid sick leave policies immediately.

New Jersey: Mandatory Posting for Employee Misclassification Now Available

Earlier this year, New Jersey passed Assembly Bill 5843, which requires employers to post a notice of rights and responsibilities related to employee misclassification.  The New Jersey Department of Labor and Workforce Development has now made the required posting available in two sizes: 11×17 and 8.5×11 inches.  Employers must post this notice in a conspicuous location in the workplace.

Bernalillo County, NY: Wellness Act and PTO Provisions Extended to Oct 1, 2020

Formerly effective on July 1, 2020, Bernalillo County’s Employee Wellness Act has a new effective date of October 1, 2020.  The act requires covered employers to provide paid time off that employees can use for any reason, and covers employers who must apply for a Bernalillo County business registration with at least two employees and a physical premises within the County’s unincorporated limits.

Suffolk County, NY: Ban the Box Legislation Goes into Effect August 2020

Effective August 25, 2020, Suffolk County employers of fifteen or more employees will be prohibited from inquiring into applicants’ criminal history at any point during the “application process,” which covers the period from when an applicant first inquires about a position to the point when an employer accepts the application. Additionally, employers may not ask about criminal convictions prior to an initial job interview, and if no interview is conducted, the employer must inform the applicant if the business will conduct a background check prior to employment.

As is typical, some exceptions apply for jobs in which criminal history inquiries are authorized by applicable law, in certain industries (e.g., schools, service providers related to care or supervision of children, seniors, the disabled, public services, and more), or where convictions may bar employment in a position under state or federal law.

South Dakota: Discrimination Against Interns Prohibited

As of July 1, 2020, employers may not discriminate against interns on the basis of any protected category, including race, color, creed, religion, sex, ancestry, disability, or national origin. “Intern” is defined as “a student or trainee who works, sometimes without pay, at an organization, industry, trade, or occupation in order to gain work experience or earn academic credit.” Employers should have anti-discrimination policies updated to reflect the new protections.

Texas: Local Paid Sick Leave Ordinances Still in Limbo

On June 5, 2020, the Texas Supreme Court declined a petition submitted by the City of Austin to review a state appellate court decision that stated Austin’s citywide paid sick leave ordinance was unconstitutional.  In deciding not to review the case, the Court of Appeals’ decision to enjoin Austin’s paid sick leave ordinance remains in place.

Legal proceedings are still ongoing over injunctions placed on similar Dallas and San Antonio sick leave ordinances.  If the state Court of Appeals strikes down the injunction in San Antonio, the Texas Supreme Court may grant a petition for appeal due to a split of authority among appellate courts.  Meanwhile, in Dallas, it remains to be seen if the city will appeal its preliminary injunction.  Texas employers in these localities should be on the lookout for more news as developments occur.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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