September Updates

Form I-9 Remote Flexibility Policy Extended

On September 1, 2021, a day after the previous expiration date, the U.S. Department of Homeland Security (DHS) extended employers’ ability to continue to remotely verify work eligibility documents where all employees are remote. DHS cited the ongoing precautions related to COVID-19 in extending the policy until December 31, 2021.

 

Work Authorization Expansion for Conditional Green Cards

As of September 4, 2021, USCIS permits the receipt notice given to Conditional Permanent Residents for the Petition to Remove Conditions (Form I-751 or Form I-829) to be used as evidence of lawful work authorization status for 24 months from the issue date, instead of the typical 18 months. The expansion is said to accommodate lagging processing times. This applies to individuals with pending Petitions to Remove conditions on their Green Cards (with a two-year, rather than 10-year authorization). Employers should take care not to revalidate employment authorization documents until the time permitted by law.

 

Washington, D.C.: Ban on Non-Competes Postponed

As part of the Fiscal Year 2022 Budget Support Act, the Ban on Non-Compete Agreements Amendment Act of 2020 has been postponed. Specifically, the Act prohibits non-compete agreements entered into by any D.C. employee once the law is in effect. The Non-Compete Act’s effective date will be delayed until April 1, 2022, allowing employers more time to prepare. The Support Act is headed to Congress for the 30-day review period, and once signed by Mayor Muriel Bowser, the amendment to the Non-Compete Act will be implemented.

 

Duluth MN: Paid Sick and Safe Leave Ordinance Amended

Effective August 19, 2021, new amendments as described in File #21-023-O to Duluth, MN’s local earned sick and safe leave (ESSL) ordinance went into effect.  The amendments expand possible leave usage and implement changes to employer notice and enforcement provisions as follows:

• Employees may use ESSL to cover lost work hours from a place of employment closing due to public health reasons, such as a COVID-19 related closure;
• Employers who maintain an employee handbook must include within the handbook either (1) a copy of the company’s ESST policy or (2) any substantially equivalent paid leave benefit used to comply with ESST requirements;
• Employers have been required to display or distribute the city-provided (or a company-created equivalent) ESST poster to all employees. Employers may now comply with this requirement by providing new employees with a copy of the ESST or substantially equivalent paid leave policy; and
• The city is permitted to order employers to provide employees with written notice of any ESST ordinance violations and corrective action taken, among other types of legal or equitable relief.

 

Montana: FAQs Clarify Vaccine Passport Ban

Montana recently issued FAQs that provide some clarification to employers regarding HB 702, which makes an individual’s vaccination status a protected category under the Montana Human Rights Act. For example, employers may ask employees about vaccination status, offer incentives to become vaccinated voluntarily, and require masks to be worn in the workplace provided accommodations are made when required. Employers should update applicable policies and procedures for compliance.

 

New York: Wage Theft Claim Loopholes Closed

On August 20, 2021, the No Wage Theft Loophole Act (SB 858) went into effect. The bill was meant to close loopholes in New York Labor Law that have been created by the judiciary. For example, unlawful employer deductions were previously interpreted to only apply where an employer withholds all of an employee’s earnings; the Act aims to expand the recovery to partial withholdings, eliminating a perceived technicality. Additionally, language was added to wage theft laws expressly stating there is “no exception to liability” for the unauthorized failure to pay wages. Employers should review pay practices for compliance.

 

New York: HERO Act Now in Effect for COVID-19

On September 6, 2021, New York designated COVID-19 as a “highly contagious communicable disease” triggering additional requirements under the New York Health and Essential Rights (HERO) Act. Initially, employers were required to either adopt a model airborne infectious disease exposure prevention plan or create their own plan that meets the minimum established standards. Following the recent designation, employers must now make sure that their prevention plan is up to date, distribute it to employees in English and the employee’s primary language if other than English, post the plan in the workplace, and incorporate it into the employee handbook. Employers must also provide a verbal review of the plan and training to employees. The designation is currently effective until September 30, 2021, unless continued by the Commissioner of Health. Review the state’s HERO Act website for more information.

 

Pennsylvania: Employers Can be Sued under Medical Marijuana Act

On August 5, 2021, in Palmiter v. Commonwealth Health Sys., Inc., the Pennsylvania Superior Court stated that an employee can bring a private cause of action against an employer for claims under the Pennsylvania Medical Marijuana Act (MMA). Although the MMA prohibits employers from discriminating against individuals based on their medical marijuana user status, the MMA does not expressly say that employees can sue their employers for violations. Rather, the court said that a private right of action was implied by the prohibition against discrimination.

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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.

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