This month we’ve rounded up 3 updates from the federal government including increased Visa filing fees, tracking remote work, and employee use of opioids. Meanwhile, California changes the red flag law related to gun violence, while Colorado, New York, Illinois, and South Carolina make other HR-related regulatory changes.
Contact your local legal counsel for further guidance or if you believe there are any discrepancies.
Federal Regulatory Changes
State Regulatory Changes
Federal Regulatory Changes
Who: For-profit and nonprofit employers
Who: All employers
When: Effective October 2, 2020
What: The final rule issued by the U.S. Citizenship and Immigration Services on August 3, 2020 establishes new fees for the various classifications of employer-filed nonimmigrant visas, including:
- H-1B: $555
- L-1: $805
- O: $705
- TN: $695
- H-2A: $850
- H-2B: $715
- Form I-140: $555 (a decrease)
- Adjustment of Status: $2,270
The rule increases other fees as well, such as additional border security fees for employers that have a high proportion of H-1B and L-1–status employees. The additional border security fee applies to new and renewal applications.
The final rule includes important procedural changes as well. For example, instead of using Form I-129, Petition for Nonimmigrant Worker, the USCIS will create a different form for each different visa classification. Also, for employers who pay for premium processing, the time to process visa applications will increase from 15 calendar days to 15 business days.
- Determine which of the fee changes apply to your organization, and budget accordingly.
- Account for the increased processing time when making hiring decisions and scheduling workers to arrive on the job.
- Update your procedure manual and forms as necessary to account for the new forms, fees, and processing time.
Who: All employers
When: Released August 5, 2020
What: The Equal Employment Opportunity Commission (EEOC) released two new guidance documents for employees and health care providers. The topic is the protections offered under the Americans with Disabilities Act (ADA) in relation to employees’ opioid use. The guidance is not new law or legally binding; it provides clarity about existing requirements under the law.
For employers, the new guidance serves as a reminder of some key points:
- Illegal use of opioids is not protected under the ADA, and the employer may fire or take other adverse actions against the employee.
- Legal use of opioids is protected as a disability, including use of prescribed opioids and use as part of a treatment program.
- Employees who have recovered from opioid addiction are covered under the ADA.
Employers may be required to hold jobs for employees with this disability while they take leave to seek treatment. Employees can and should request accommodation, however, at any time—even before problems occur. Employers may suggest accommodation. Examples of accommodation include modified schedules or a temporary transfer to another position. An employer may request documentation from a health care provider as to the nature of the disability and need for accommodation. If the accommodation would involve significant difficulty or expense, an employer may claim an exemption due to undue hardship.
Employers never have to lower performance or production standards, eliminate key duties of the job, or pay for work not performed as part of reasonable accommodation. If the employee cannot perform the job safely or effectively, the employer may take adverse action. The employer must prove with objective evidence that the employee’s performance poses a significant safety risk.
The guidance document for health care providers details which documentation is most helpful when employers are evaluating whether an employee is a safety risk. It also advises them to be circumspect about the assessment of a safety risk, because it can justify a suspension or other adverse employment action against the employee. The risk level must be a “direct threat,” which translates to a significant risk of substantial harm to self or others that cannot be mitigated by a reasonable accommodation.
- Evaluate your existing documentation and determine if it is up to date with regard to employees who are using or have used opioids and their protection under the ADA. Update as necessary.
Who: All employers with remote workers
When: Released August 24, 2020
What: The U.S. Department of Labor (DOL) issued a bulletin to address employers’ responsibility to track and pay for employees’ telework or remote-work time. Under the Fair Standards Labor Act, employers must pay for work they know or have reason to believe is being performed. The rule applies even if that work was not scheduled or requested by the employer, and even if the employer has a rule against doing the work. The only time an employer is not required to pay for work is when it is unreported, and the employer did not know about it and had no reason to know about it.
Rather than investigating each worker to determine the hours worked outside of regularly scheduled or reported hours, the employer may establish a reasonable reporting procedure for non-scheduled work time. An employer is still liable for compensation for time worked but not reported when that employer prevents or discourages the employee from reporting it.
In most cases, employees may not waive their right to compensation for time worked.
- If you don’t already have one, create a timekeeping policy and procedure for employees to report unscheduled and scheduled work. Include the disciplinary consequences for violating the policy.
- Educate non-exempt employees and their supervisors about the related policy, procedures, and use of time-reporting systems.
- Consistently enforce disciplinary consequences, up to and including termination, when employees fail to report all work time as required.
State Regulatory Updates
Who: All Connecticut employers with three or more employees
When: Effective June 29, 2020
What: The Connecticut Commission on Human Rights and Opportunities offered employers a 90-day extension of the deadline for providing mandatory employee sexual-harassment prevention training, but only to those who have a legitimate reason why COVID-19 prevented them from doing so. Since the training is free and available online, the reason cannot be related to cost or mobility. Examples include lack of access to the Internet or illness of the employee.
The extension applies to employees hired after October 1, 2019. The deadline for providing the training is six months after the date of hire, unless the employer applies for and receives the extension. Training for employees hired before October 1, 2019 must still be completed on or by October 1, 2020.
- Email your request for extension of the deadline by September 9, 2020 to [email protected]. Explain exactly how COVID-19 has prevented you from meeting the training requirement.
Who: All District of Columbia employers with one or more paid employees who are eligible to vote
When: Signed April 27, 2020; effective once funded
What: The District of Columbia amended its Election Code of 1955 with the Leave to Vote Amendment Act of 2020. Once the Act is funded, D.C. employers are required to provide their employees with at least two hours of paid leave to vote in person. The requirement applies to any election in any jurisdiction in which the employee is eligible to vote. Employers may not prohibit employees from voting, nor retaliate against them. Employers may not deduct pay or accrued leave for time taken to vote in person.
Employers may require employees to give notice—a reasonable length of time in advance—of their need to take time off to vote. Employers may specify the hours during which the employee may leave to vote or require them to vote during an early voting period rather than the day of the election.
- Review your policy on paid leave for in-person voting and update as needed to comply with the new law.
- Create a procedure for administering voting leave requests in a way that allows you to conduct business as smoothly as possible.
- Post and maintain a notice that explains employees’ rights under the Act.
Who: All Georgia employers with one or more employees
When: Effective August 5, 2020
What: The Georgia legislature passed House Bill 1090, which requires employers to provide “lactation breaks” to employees who desire to express breast milk at the worksite during working hours. Employers must provide a private location other than a restroom. Such breaks must be paid at the employee’s regular rate. Employers cannot require salaried employees to take paid leave for such breaks, nor reduce their pay.
Important differences from the federal law are that the Georgia law applies to all employees, breaks must be paid time, and there is no one-year time limit. The new law does not apply when the employee is working away from the worksite. Employers with less than 50 employees may claim an undue hardship exemption but should consult with legal counsel beforehand.
- Review your employee handbook and HR policies and update as necessary to comply with the new law.
- Create a training program for managers and supervisors about the new law.
- Decide on a private location for lactation breaks.
Who: All Illinois employers
When: Report due by October 31, 2020
What: The Illinois Human Rights Act enacted last year requires Illinois employers to submit their first annual report on sexual harassment and unlawful discrimination judgments to the Illinois Department of Human Rights by the end of October 2020. The report shows the number of final and non-appealable applies to all final adverse judgments or administrative rulings in an employee’s favor and against the employer in calendar year 2019.
Employers with no adverse judgments or administrative rulings that meet the requirements for reporting do not need to file a report. Reports for calendar year 2020 and subsequent years, reports are due on July 1 of the following year.
- Complete the form and email it to [email protected] by October 31, 2020.
Who: Maryland employers with 50 or more employees
When: Effective October 1, 2020
What: Maryland’s governor has decided to allow to go into effect Senate Bill 780, also known has the New Mini-WARN Law. Under the law, employers that implement a “reduction in operations” must give affected employees at least 60 days’ notice by way of a written notification. The law makes mandatory the same provision that was voluntary in the Economic Stabilization Act.
A “reduction of operations” is defined as 1) the relocation of part of the operation from one worksite to another existing or proposed site, or 2) the shutting down of a workplace, or 3) the shutting down of a portion of operations that, over any three-month period, reduces the number of employees by the greater of 25% of employees or 15 employees. Employees who work fewer than 20 hours per week on average and those who have worked less than six months in the preceding 12 months don’t count as it relates to this calculation.
Employers must notify all affected workers, their union representatives, the Maryland Workforce Development’s Dislocated Worker Unit, and all elected officials in the jurisdiction in which the reduction of operations will occur. The notice must include certain basic facts, including the name and address of the affected workplace; a supervisor’s name, telephone number, and email address; a statement of whether the reduction in operations is expected to be permanent or temporary and whether the workplace is expected to shut down; and the date the reduction in operations is expected to begin.
To enforce the law, the Maryland Secretary of Labor may compel compliance and assess a civil penalty of up to $10,000 for each day the employer is out of compliance.
- If you are contemplating a reduction in operations, consult with legal counsel to ensure you will be in compliance with the law.
- Update your HR and operating policies and procedures as necessary to account for the required notifications in case of a reduction of operations.
Who: All employers
When: Effective October 1, 2020
What: The State of Maryland enacted House Bill 123, which amends the existing Equal Pay for Equal Work law. The bill states that employers may not ask applicants or their current or former employers—orally or in writing—for their compensation history. Even if it is provided voluntarily, employers may not use such information to screen applicants, make a hiring decision, or determine wages.
If the employer makes a job offer and the applicant voluntarily provides wage history, the employer may rely on that information, but only to make a compensation offer that is higher than the original offer. An additional restriction is that the higher offer may not create a pay differential that is based on sex or gender identity.
The new law also requires employers to provide, upon request, the wage range for the job the candidate has applied for.
The Equal Pay for Equal Work law, and this amendment, are focused on the prevention of discriminatory hiring practices. The amendment guides employers to make compensation decisions based on job duties and the applicant’s experience rather than previous salary history. Companies that violate the provisions of this amendment are subject to a letter compelling compliance upon the first violation, a civil penalty of up to $300 per applicant for a second violation, and a civil penalty of up to $600 per applicant for each subsequent violation.
- Eliminate questions pertaining to wage history from your written application, oral screening and interview processes, and background- and reference-check processes.
- Write a policy that addresses the new requirements.
- Do not include wage history in your determination of wages for a position, unless that position falls under an exception.
- Create a manager training program that addresses the new requirements.
- Establish a wage range for each position.
Who: All Maryland employers
When: Effective October 1, 2020
What: Maryland’s General Assembly amended the state antidiscrimination law to include certain traits associated with race, including but not limited to hair texture, afro hairstyles, and protective hairstyles. The bill specifically names twists, braids, and locks. Such hairstyles are now a protected characteristic in terms of employment, public accommodations, and housing.
- Review your policies and standards about dress code and appearance and update as necessary.
- Create a training program for HR professionals, managers, and supervisors to educate them about the new policies and the potential for bias in hiring and other employee-management practices.
Who: All New Jersey employers
When: Effective August 18, 2020
What: A case regarding a corporation’s arbitration clause for employees finally made its way through the appellate courts. The state’s Supreme Court affirmed that Pfizer, Inc. clearly and unambiguously communicated to its employees its requirement for their assent to its “Mutual Arbitration and Class Waiver Agreement” as a condition of continued employment. The case allows continued employment to stand in as the employee’s assent to the arbitration agreement. Further, employers may send the arbitration agreement to the employee via embedded links in an email sent to the employee’s work email address.
The case helps to establish a series of steps for New Jersey employers to effectively and legally communicating their arbitration agreement to employees. Those steps include clear and unambiguous language stated up front and repeatedly, an FAQ page, and distribution of the agreement through embedded links in email. Though continued employment is allowed to stand in for assent, consider requiring a signature on the agreement in order to make agreement explicit rather than implicit. –
- If you require employees to assent to an arbitration agreement as a condition of continued employment, communicate from the beginning that they are waiving their rights to litigation. Be extremely clear which rights they are waiving what arbitration means, and how litigation differs from arbitration. Consider creating an FAQ page.
- Decide whether you will require a signed agreement or allow continued employment to be sufficient in terms of assent to the agreement.
Who: All Virginia employers with five or more employees
When: Notifications due by October 29, 2020
What: In July, Virginia enacted Senate Bill 712, which amends the Virginia Human Rights Act and requires employers to provide reasonable accommodation related to pregnancy, childbirth, or related medical conditions. Employers must provide certain notifications to employees no later than October 29, 2020. Notification must address 1) the prohibition against unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions and 2) an employee’s rights to reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions.
By October 29, 2020:
- Provide employees with an updated employee handbook that includes your revised policy for accommodation under the law.
- Post a notice regarding employees’ rights under the law.
- Give notice of their rights under the law to new employees upon hire and within 10 days to current employees who give notice of pregnancy.