July Updates

2022 EEO-1 Reporting Delayed to Fall 2023

The Equal Employment Opportunity Commission (EEOC) has delayed opening the reporting period for EEO-1 Component 1 data to the fall of 2023. The EEOC’s website says they are currently completing a mandatory, three-year renewal of the EEO-1 Component 1 data collection by the Office of Management and Budget (OMB). Continue to look for updates on the status of the reporting period.

CMS Withdraws Vaccine Mandate

Effective August 4, 2023, the Centers for Medicare and Medicaid Services (CMS) will end its mandatory COVID-19 vaccination requirement for healthcare workers. A final rule published on June 5, 2023 unwinds several aspects of the interim rule released at the start of the public health emergency. Healthcare workers regulated by CMS will no longer have to be fully vaccinated against COVID-19. The final rule also removes COVID-19 testing requirements. However, healthcare providers must continue to educate and offer COVID-19 vaccinations to staff and residents. CMS also intends to promote COVID-19 vaccinations through quality reporting and value-based incentive programs. CMS-covered healthcare facilities should review and revise their vaccination and testing policies as necessary.

DOL Provides Additional Pregnant Workers Fairness Act Resources

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. The EEOC released additional resources for employees and employers including tips for workers to request accommodations, a “Know Your Rights” video series, and a revised “Know Your Rights” poster required to be posted in most workplaces. Previously released resources include a Q&A on “What You Should Know about the Pregnant Workers Fairness Act,” an infographic for employers, and an informational poster about the PWFA for healthcare providers’ offices. Employers should review and update their processes for providing reasonable accommodations to pregnant workers and distribute required postings.

NLRA Does Not Protect Employee Damage to Employer Property During Strikes

On June 1, 2023, in Glacier Northwest v. Teamsters, the United States Supreme Court stated that National Labor Relations Act (NLRA)  does not preempt “an employer’s state tort claim against a union for property damage that allegedly occurred because workers failed to take reasonable precautions to protect the employer’s property before going on strike.” There, striking workers abandoned trucks full of freshly poured concrete, causing the employer to incur costs to urgently and properly dispose of the concrete before it hardened in the trucks. The Court said that strikers may be liable for economic damage they cause to employer property if they fail to take reasonable precautions to avoid foreseeable and imminent danger. The NLRA does not protect affirmative steps taken to endanger an employer’s property.

New FMCSA Return-to-Duty Resource

A driver with a drug and alcohol program violation is prohibited from performing safety-sensitive functions, e.g., driving, for any DOT-regulated employer until the return-to-duty process is complete. Beginning November 18, 2024, as part of new Federal regulations, drivers with a “prohibited” status in FMCSA’s Drug and Alcohol Clearinghouse will be denied or lose their State-issued commercial driving privileges. FMCSA recently added a new visor card resource to the Clearinghouse Learning Center that outlines the RTD process that drivers with a “prohibited” Clearinghouse status must complete so they can get their status back to “not prohibited.”

California: Enforcement of CPRA Delayed

Enforcement of the California Privacy Rights Act (CPRA) regulations has been delayed until March 29, 2024. The regulations were set to be enforced beginning on July 1, 2023. The CPRA regulations detail how businesses must comply with the requirements of the California Consumer Privacy Act (CCPA) which creates specific rights for California consumers when it comes to the collection, processing, sharing, and sale of their personal information and sensitive personal information. The CPRA’s requirements also extend to the personal information of employees who are California residents. The California Chamber of Commerce sought to delay enforcement of the CPRA until one year after the final regulations were published, and a Sacramento Superior Court agreed by granting an injunction and delaying enforcement. While businesses now have an additional nine months to bring their practices into compliance, the regulations are quite complex. Businesses should use this time to identify how they collect and use personal information, how it is stored, and what they do with it.

California: COVID-19 Paid Sick Leave Relief Grant Program

Eligible California small businesses may now apply for a state program that awards $5,000 to $50,000 for costs incurred from California’s COVID-19 Supplemental Paid Sick Leave provided between January 1, 2022, and December 31, 2022. Employers should review eligibility restrictions and the list of documents required to apply for this program on the program’s website. Note that available funds are limited, so small businesses should timely review their eligibility to determine whether they are able to participate.

California: Updated Definition of COVID-19 “Outbreak”

On June 20, 2023, the California Department of Public Health (CDPH) updated its COVID-19 public health order and guidance, changing the definition of “outbreak” in non-health care settings to be “at least three COVID-19 cases within an exposed group during a seven-day period.” This new definition aligns with similar changes to the Council of State and Territorial Epidemiologists’ (CSTE) outbreak definition. Employers should update their Illness and Injury Prevention Programs as the new definition impacts testing, recordkeeping, and face covering requirements.

Irvine, CA: Hotel Worker Protections in Effect

As of May 21, 2023, certain aspects of Irvine’s Hotel Worker Protection Ordinance have gone into effect. Specifically, hotels must limit workloads for room attendants based on square footage, implement maximum room cleaning quotas based on hotel size, and comply with recordkeeping requirements. The Ordinance applies to all Irvine hotels, except for those with fewer than 45 guest rooms or who have obtained a hardship waiver from the City. Hotel employers should review the Ordinance and update procedures for compliance.

Florida: Safety in Private Spaces Act Affects Public Employers

As of July 1, 2023, Florida’s Safety in Private Spaces Act requires public employers to establish disciplinary procedures for employees who willfully enter restrooms or changing facilities in public buildings that differ from the gender category they were assigned at birth and refuse to depart when asked by administrative personnel. Employees will not be subject to criminal trespass charges for violating the Act. However, they will be subject to the new disciplinary procedures established by the public employer as a result of the Act. The Act does not impact private employers or other private businesses that open their doors to the public (like restaurants, hotels, or retail establishments). Public employers subject to the Act should review and revise their current disciplinary procedures to ensure compliance.

Hawaii: Enhanced Restrictions on Carrying Firearms

As of July 1, 2023, Hawaii has amended its firearms law to modify the restrictions on a person who may carry a firearm, which extend to the workplace. In addition to prohibiting firearms in several public places, the law provides that private entities, including employers, must provide express authorization to allow the public to carry firearms on their premises. The law also requires firearms to be secured inside unattended vehicles and provides certain exemptions for carrying a firearm in otherwise restricted areas. Employers should review and revise their current workplace security policies and procedures to ensure compliance with Hawaii’s enhanced restrictions on firearms.

Evanston, IL: Fair Workweek Ordinance

Effective September 1, 2023, the Evanston Fair Workweek Ordinance requires employers with more than 100 employees in the hospitality, food service, retail, warehouse services, building services, and manufacturing industries to provide a written good-faith estimate of work schedules at least 14 calendar days in advance and premium pay for any changes. Premium pay is one additional hour of pay at the employee’s regular rate of pay for the number of hours in the employee’s scheduled shift or four hours whenever hours are cancelled or reduced, whichever is less. One hour of predictability pay is required for all other changes and is calculated at the same rate. Covered employers also cannot hire new employees until after they have offered additional work hours and shifts to current employees. Employees will also be able to request certain work hours, work times, or locations of work, but employers have the right to accept or deny the request in writing within 3 days. Employers are also required to give employees at least 11 hours of rest between shifts unless written consent from the employee agrees to the scheduling of a shift that begins less than 11 hours after the previous shifts. Since the effective date is less than two months away, employers should review the requirements of the ordinance to begin implementing the changes now.

St. Paul, MN: Earned Sick and Safe Time Update

Amendments to St. Paul’s paid sick leave administrative rules took effect on June 24, 2023. The amendments now align with recent amendments to the Earned Sick and Safe Time (ESST) ordinance. Among the updates: 1) “independent contractor” has the same meaning as in the Labor and Industry Chapters of the Minnesota statutes; 2) “year” has been defined as a regular and consecutive 12-month period, either calendar, fiscal, reporting year, or based on the date employee commenced employment, as determined by an employer and clearly communicated, verbally or in writing, to each employee of that employer; 3) temporary workers are now covered by the law; 4) methods for accrual and treatment of carryover are now included in the administrative rules; 5) if a business is sold or acquired by another business, all accrued sick time is retained and used regardless of where the successor employer is headquartered; and 6) documentation may be requested where when an employee uses ESST for more than three consecutive days. Employers should revise their sick leave policies to reflect the updates.

Montana: Independent Contractor Status Determination

Effective October 1, 2023, SB 22 will amend Montana’s Workers’ Compensation Act to establish a rebuttable presumption that a person without an independent contractor exemption certificate is still an independent contractor when: (i) the person represents to a hiring entity or individual in writing that they have an independent contractor exemption certificate; (ii) the person provides the hiring entity or individual a forged or otherwise fraudulent independent contractor exemption certificate; or (iii) the person’s independent contractor exemption certificate expires while the person is working.

Montana: Increased Penalties for Failure to File W-2s

Effective May 22, 2023, SB 303 increased penalties for employers who fail to file a Form W-2 with the state Department of Revenue (DOR) from $5 to $50 for each failure and from $50 to $250 for the minimum penalty. The DOR will waive the employer’s first penalty for failing to file Form W-2 if the employer files the form within 30 days of the DOR’s late notice. Otherwise, the DOR will only waive the penalty if the employer submits the form within 15 calendar days of the due date of the form or demonstrates to the DOR that it had reasonable cause for the failure.

Nevada: Public Accommodations COVID-19 Leave Ends

As of May 17, 2023, the Public Accommodations COVID-19 leave ended. SB 441 repealed the legislation requiring a “public accommodation facility” (i.e., a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily, or weekly basis) to provide paid time off for employees experiencing COVID-19 symptoms or who had been exposed to COVID-19.

New Jersey: Required Registration for Employers Hiring Minors

Effective June 1, 2023, employers who hire minors in New Jersey must register themselves with the New Jersey Department of Labor and Workforce Development. The registration must include: 1) the name of the employer; 2) the email address of the employer; 3) the location of the business operations including where the minor will be working; 4) the number and names of minors whom the employer has hired or expects to hire; and 5) a certified statement that the employer is employing minors only in positions permitted by law in order to protect the health, safety, and well-being of minors. Any time there is a change to the position of a minor, the employer must update the registration.

New Jersey: Major Changes to Unemployment Compensation Law

Some major changes to New Jersey’s Unemployment Compensation Law (UCL) go into effect on July 31, 2023. First, employers will be required to notify the New Jersey Department of Labor and Workforce Development (NJDOL) each time an employer discharges an employee. The NJDOL will create a new form for employers to submit electronically that includes specific information that the NJDOL needs to make a benefit determination. Second, employers will need to send a copy of Form BC-10 to NJDOL. Previously, this form was only provided to separated employees. Third, deadlines related to the unemployment benefits process, including obtaining information from employers about the separation, have been shortened so there is additional pressure on employers to comply with the law’s requirements. Failing to provide the required separation information will lead to increased fines – a jump from $25 to $500 for every ten days of delay to provide information. An overpayment of unemployment benefits due to an employer’s failure to provide separation information also means the separated employee is not liable for the repayment. Employers should review the forms and their requirements prior to the effective date.

New York: Repeal of Healthcare Worker COVID-19 Vaccine Mandate

As of May 24, 2023, the New York State Department of Health (DOH) has begun the process to repeal the COVID-19 vaccine mandate for healthcare workers. With the end of the public health emergency, the DOH noted that the vaccine recommendations are evolving. It is now up to the Public Health and Planning Council (PHHPC) to approve the repeal. That approval is still pending from the PHHPC. In anticipation of the approval, the Department has stated that it will no longer cite providers for failing to comply with the vaccine requirement. Healthcare facilities are still permitted to individually implement their own internal policies regarding COVID-19 vaccination in compliance with applicable state and federal law. Employers should continue to monitor the Department’s website for updates so they can update their vaccine policies as required.

New York City, NY: Minimum Wage for App-Based Restaurant Delivery Workers

The New York City Department of Consumer and Worker Protection (DCWP) has set a minimum pay rate for app-based restaurant delivery workers. The pay rate will be $17.96 when it takes effect on July 12, 2023 and will increase to $19.96 when it is fully phased-in on April 1, 2025. The rate will also be adjusted annually for inflation. Apps can develop their own formulas (e.g., pay per trip or per hour worked) as long workers make the minimum pay rate of $19.96 on average. Additionally, apps that pay workers for all the time a worker is connected to the app must pay at least $17.96 per hour in 2023, which is approximately $0.30 per minute, not including tips. Apps that only pay for trip time must pay at least approximately $0.50 per minute of trip time in 2023, not including tips. The DCWP will be educating app-based restaurant delivery workers on the new pay rate and their rights under the law.

Oregon: Increase in Exempt Salary Threshold

Effective July 1, 2023, the minimum weekly salary level for exempt executive, administrative, and professional employees is $618.00 in the Portland area, $568.00 in nonrural counties, and $528.00 in rural counties. Employers should note that the Fair Labor Standards Act (FLSA) requires a minimum salary of $684 per week. Therefore, employers covered by the FLSA must pay $684 per week in order to maintain their overtime exemption.

Oregon: New Hire Reporting of Independent Contractors

SB 184 requires businesses to report independent contractors to the Oregon Department of Justice, Division of Child Support (ODCS) effective January 1, 2024. Within the first 20 days, a business must report the independent contractor if they are expected to perform services for the employer for more than 20 days or are rehired by the same employer and have not performed services for that employer in the past 60 days. Businesses must submit a copy of the independent contractor’s W-9, W-4, or other ODCS-approved equivalent form as long as it includes the employer’s name, address, federal tax ID number, and the independent contractor’s name, address, Social Security number, and the date of their first day of work.

Texas: Amended TCHRA Prohibits Hairstyle Discrimination

Effective September 1, 2023, Texas’s CROWN Act will amend the definition of racial discrimination under the Texas Commission on Human Rights Act (TCHRA) to include discrimination based on hair textures or protective hairstyles commonly or historically associated with race. The TCHRA applies to employers with 15 or more employees, and “protective hairstyles” has been defined to include braids, twists, and locks. Employers should review and update their workplace polices to account for this expanded definition.

Washington: Production Quota Protections for Warehouse Employees

Effective July 1, 2024, HB 1762 targets warehouse distribution centers and provides protections to warehouse workers subject to production quotas. A warehouse distribution center is defined using the North American Industry Classification System (NAICS) codes and applies to employers that hire at least 100 workers in a single location or 1,000 warehouse workers in Washington state in total. Warehouse staffing agencies are also covered. Employers who use production quotas in these facilities to require workers to perform at a specific speed, to complete a specific number of tasks, handle or produce a quantified amount of material within a certain time period, or categorize their time between performing tasks and not performing tasks must consider specific factors when setting a quota. These factors include: 1) time for rest breaks; 2) reasonable time to travel to designated locations for rest breaks; 3) reasonable time to travel to on-site designated meal break locations; 4) time to use the restroom, including travel time to the restroom; 5) time to perform any other activities required by the employer that are not covered by the quota; and 6) time to take any action necessary to maintain health and safety standards.

Employers must provide warehouse workers with written notice and a description of the productivity goals, the consequences of failing to meet those goals, and any incentives or bonus programs associated with meeting or exceeding the quota. The notice must be in plain language and in the employee’s preferred language. Employees also have the right to request: a written description of each quota to which the employee is subject; a copy of the employee’s own personal work speed data for the prior six months; and a copy of the prior six months of aggregated work speed data for similar employees at the same warehouse distribution center. Employees are also protected from adverse actions after they request records, complain to the employer about the quotas, or file a claim. The law has additional requirements beyond these few major points. Employers should begin reviewing their policies and practices now in addition to creating a recordkeeping system to comply with the extensive requirements.

Washington: Military Spouses Can Terminate Employment Contracts

Effective July 23, 2023, HB 1009 permits military spouses to terminate employment contracts. The law’s goal is to help military spouses who face employment challenges due to changes in the location of their spouse’s deployment. The law allows the spouse of a service member to terminate an employment contract without penalty if the service member received orders for a permanent change of duty station. In order to take advantage of this law, the military spouse must provide the employer with written notification of the termination and proof of the orders.

Washington: Required Reporting of Lump-Sum Payments for Child Support

Effective July 23, 2023, HB 1262 requires employers to report lump-sum payments for child support purposes. A lump-sum is income exclusive of periodic recurring payments of earnings on regular paydays or reimbursement of expenses. Examples include, but are not limited to, bonuses, commissions, merit increase, and severance pay. Employers must withhold the amount stated in an income withholding order unless a portion of the lump-sum payment is disposable earnings. An employer that receives an income withholding order that includes a provision for payment toward child support arrears must notify the Washington Division of Child Support (DCS) or the U.S. Office of Child Support Services before making any lump-sum payment of more than $500. DCS will respond to the employer within 14 calendar days and either allow some or all of the lump-sum payment to be distributed or provide an amended or supplemental income withholding order specifying the amount of the lump-sum payment to be remitted to DCS. Employers should update their payroll processes to reflect the new requirements.

Washington: Amendments to FFML and Cares Fund Quarterly Reporting Requirements

Washington updated its quarterly reporting requirements for both Paid Family and Medical Leave and the Washington Cares Fund programs. Effective July 1, 2023, if an employer has no paid wages to report for a calendar quarter, then a report of “no payroll” must be filed. This continues for a maximum of eight consecutive calendar quarters unless the employer notifies the ESD sooner that they do not have any employees to report at that time and in the foreseeable future. The quarterly reports also have to include employees’ date of birth. Employers should update their payroll and reporting processes should reflect the new requirements.

West Virginia: Distracted Driving Prohibitions Are Expanded

As of June 9, 2023, the Electronically Distracted Driving Act expands West Virginia’s prohibitions on driving while using a wireless communication device or stand-alone electronic device. These include, but are not limited to, cellular phones, portable telephones, text messaging devices, personal digital assistants, stand-alone computers (e.g., tablets, laptops, or netbook computers), GPS receivers, or other substantially similar portable wireless devices that are used to initiate or receive communication, information, or other data. Drivers must exercise due care in operating motor vehicles and, with limited exceptions, may not engage in certain specified actions involving these electronic devices that may distract them from the safe operation of the vehicle. To the extent that employees are required to drive for work or are provided with an employer-provided vehicle, employers should review and update their workplace safety policies and procedures to ensure compliance with West Virginia’s expanded prohibitions on distracted driving.

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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. © 2023 ManagEase