This month we’ve rounded up 6 changes from the federal government including increased I-9 fines and employer’s rights to discipline employee conduct. 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.
Federal Regulatory Changes
State Regulatory Changes
Federal Regulatory Changes
Who: For-profit and nonprofit employers
When: Effective July 8, 2020
What: The Supreme Court of the United States upheld a Trump administration rule that allows certain employers to opt out of the otherwise mandated birth control coverage. The coverage was implemented as part of the requirements for group health insurance plans under the Affordable Care Act. An employer’s objections must be based on religious or moral objections to female birth control.
How: If you are changing your coverage, update your HR manual and other group health insurance plan documents to reflect the change in coverage, and inform employees.
Who: Federal contractors and subcontractors
When: Approved May 8, 2020; must be implemented by August 4, 2020
What: The Office of Federal Contract Compliance Programs (OFFCP) released a revised Voluntary Self-Identification of Disability form. Section 503 of the Rehabilitation Act requires federal contractors and subcontractors to invite applicants and new hires to self-identify as disabled. Self-identification is voluntary.
The changes to the form include an expanded list of possible disabilities, removal of the reasonable accommodation notice, and instructions to check the “Yes, I have a Disability” box if the person has a history of a disability. In addition, it now states, “We are also required to measure our progress toward having at least 7% of our workforce be individuals with disabilities.”
- Replace the old form with the revised form in your applicant and new-hire processes.
Voluntary Self‐Identification of Disability Form CC-305 (in multiple languages)
Who: Private employers with 50 or more employees
When: Released July 16, 2020
What: The Department of Labor (DOL) released revised Family and Medical Leave Act forms related to notification and medical certification that workers may use when requesting leave. The DOL stated the forms are simpler to understand and use and are now electronically fillable, including the signature.
The revised form more clearly explains to health care providers what type of information is needed in order to report the necessary frequency and duration of leave. It also requires more specific information about the essential functions the employee cannot perform.
The DOL has also requested that employers report their challenges with FMLA administration and is asking for recommendations for improvements.
- If you use these forms (and not your own versions), replace the old forms with the revised electronic versions.
- Optional: Respond to the DOL request for information about employer challenges with FMLA administration.
Who: All employers
When: July 21, 2020
What: USCIS launched an updated website that includes more resources in Spanish and makes it easier to find information about citizenship and manage applications online. The agency stated that the updated site allows people to determine their immigration eligibility by answering just a few questions.
- Inform applicants who are not U.S. citizens that U.S. Citizenship and Immigration Services has updated its website to help users navigate the tools and resources more easily.
Who: All employers
When: Effective July 21, 2020
What: The NLRB ruled that employers may discipline employees who engage in offensive conduct during the course of a protected activity. Under the old rule, employees could use profane, abusive, or offensive speech while engaging in certain union-related activities protected by Section 7 of the National Labor Relations Act, if they believed it was an effective way to make their point.
Employers may now discipline or terminate employees who exhibit abusive, sexist, or racist behavior while engaged in a protected activity. Examples of such protected activities include picketing, talking with co-workers about working conditions, forming or joining a union or labor organization, collective bargaining, and refusing to work in unsafe conditions.
An employer that takes disciplinary action on the basis of this new ruling must meet the Wright Line burden of proof. If the General Counsel proves that the employee’s protected activity was a motivating factor in the discipline, the employer must then prove it would have taken the same action if the employee had exhibited the same behavior while not engaged in the protected activity.
The ruling acknowledges employers’ obligation to prevent hostile work environments and comply with anti-discrimination laws.
- Review and update your workplace conduct and anti-discrimination policies.
- Advise employees of those changes in policies and collect acknowledgment statements.
- Conduct training sessions for all employees and managers on your antidiscrimination and conduct policies.
- When the disciplinary action or termination is in response to abusive conduct in violation of company policies, clearly state that fact on the notice.
Who: All employers
When: Effective for penalties assessed after June 17, 2020 for violations that occurred after November 2, 2015
What: The Department of Homeland Security has increased the fines associated with Form I-9 penalties, in accordance with its annual inflation index.
The minimum fine for paperwork or technical violations increased from $230 to $234 per individual. The maximum fine increased from $2,292 to $2,332 per individual. The range of fines for knowingly hiring or continuing to employ an unauthorized worker (first offense) went from $573 to $4,586 to $583 to $4,667. Fines for subsequent offenses also increased.
- Adhere to I-9 and E-Verify requirements.
State Regulatory Updates
Who: All California employers
When: Effective September 1, 2020
What: California expanded its version of the so-called “red flag” law. Employers, coworkers, and teachers may now seek a restraining order against a dangerous person in order to temporarily take away that person’s firearms. A judge determines whether to grant or deny the request for the gun violence restraining order (GVRO).
In the past, the law applied only to police or a close family member of the dangerous person. Now it applies to people in a workplace or school, subject to certain conditions. Before requesting a GVRO, a coworker must obtain the employer’s permission and have had regular interactions with the person for at least one year.
- Consult your legal counsel to determine your duty to act and your potential liability for inaction.
- Create or revise a violence-prevention plan and a Workplace Critical Incident Protocol. Be sure your protocol addresses your processes and procedures related to gun violence restraining orders.
Who: All private employers that have an employee who works in Colorado
When: EPSL effective July 15, 2020; PSST effective January 1, 2021
What: The Colorado legislature passed Senate Bill 20-205, the Healthy Families and Workplaces Act (HFWA), which requires all private employers to offer three types of paid sick leave:
- COVID-19 emergency paid sick leave (CO-EPSL),
- Paid sick and safe time (PSST), and
- Public health emergency paid sick leave (PHEL).
Colorado’s EPSL law requires even large employers (500+ employees) to comply with the substance of the federal Emergency Paid Sick Leave Act (EPSLA). Employers with 499 or fewer employees are no longer allowed to exclude certain employees from the EPSLA. This law is in effect through December 31, 2020 and requires employers to provide up to 80 hours of paid sick leave under certain COVID-19–related circumstances.
Paid Sick and Safe Time (PSST) applies to employers with 16 or more employees beginning January 1, 2021. It applies to all employers beginning January 1, 2022. Employers must accrue at least one hour of PSST for every 30 hours an employee works, up to a maximum of 48 hours per year. Employers are to accrue sick time for exempt employees based on a 40-hour workweek, or their regular workweek if it is fewer than 40 hours. PSST applies to leave for illness of self or a family member; medical visits; services or time off related to domestic abuse, sexual assault, or harassment; or other circumstances related to a public health emergency or order. An employer may request documentation of a covered purpose if the employee takes leave for four or more consecutive work days.
Public Health Emergency Leave (PHEL) supplements PSST and applies in the event of a public health emergency declared by the governor or a federal, state, or local public health agency. Employees who normally work 40 or more hours a week must be able to take at least 80 hours of paid leave for any of the numerous emergency-related reasons stated in the bill. Those who work less than 40 hours per week must be able to take the number of hours scheduled to work in a 14-day period, or the average number of hours worked in a 14-day period. The leave requirement applies only once during an entire health emergency, including extensions of said emergency. The employee need not provide documentation for the leave.
Employers must start accruing sick leave for their employees when employment begins and let employees take it as it is accrued, or accrue all sick leave at the beginning of the year. Employers may not require employees to find someone to cover their absence in order to be granted leave. In addition, employers may not take any retaliatory actions against an employee for taking leave under the HFWA.
The paid sick leave requirements do not apply to independent contractors or employees subject to the federal Railroad Unemployment Insurance Act. Unionized employees may also be exempt depending on the effective date of their collective bargaining agreement and the terms of their negotiated sick leave.
- Determine whether your existing paid leave policies satisfy the HWFA’s requirements.
- Implement CO-EPSL–compliant policies and practices, or revise your existing policies and procedures.
- Develop PSST and PHEL policies as needed, and update your HR manual.
- Notify employees of the availability of paid sick leave and their rights under the new law.
- Retain records for two years for each employee who takes leave under the HFWA. The records must document hours worked, paid sick leave accrued, and paid sick leave used.
Who: All private employers
When: Effective July 15, 2020
What: The Colorado legislature passed House Bill 20-1415, Worker Rights Related to a Public Health Emergency, which protects employees and some independent contractors from retaliation if they—in good faith—raise health and safety concerns that are related to a public health emergency. The bill defines a public health emergency as a public health order issued by a state or local public health agency or a disaster emergency declared by the governor based on a public health concern.
Under the legislation, employers cannot ask a worker to sign a contract or agreement that would “limit or prevent the worker from disclosing information about workplace health and safety practices or hazards related to a public health emergency.” All such agreements are void.
The law also protects employees who want to wear their own personal protective equipment (PPE), if it complies with the rules stated in the bill. It must:
- Provide a higher level of protection than the employer-provided equipment;
- Be recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace; and
- Not render the worker incapable of performing the job or certain duties of the job.
To be covered under this protection, the employee must raise health and safety concerns related to the public health emergency to the employer, other workers, a government agency, or the public (when the employer controls the environment that is giving rise to the violation). If an employer retaliates, the affected employee must bring an action within two years. The employee is entitled to any number of remedies, including reinstatement and compensatory damages.
- Notify employees of their rights under the whistleblower law.
- Always document the rationale behind disciplining an employee.
- Consider allowing employees to wear their own PPE if it complies with the legislation.
- If necessary, update your policies and HR manual regarding PPE.
Illinois Department of Human Rights Releases FAQ Related to Reporting Discrimination and Harassment Judgments
Who: All Illinois employers
When: Effective July 15, 2020
What: Illinois released new guidance applicable to the employer reporting required under Public Act 101-0221. The Act requires employers with at least one adverse judgment or administrative ruling to report to the Illinois Department of Human Rights (IDHR) the total number of final, non-appealable judgments or rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination.
The guidance clarifies that the first reporting period is January 1, 2019 to December 31, 2019 and that the deadline for reporting is October 31, 2020. For 2021 and beyond, the reporting deadline for the previous calendar year is July 1.
Employers with no adverse judgments or administrative rulings are not required to report to the IDHR. Employers that do have to report should use the form on the IDHR website and email it to the IDHR by the deadline.
- If you are required to report, download the form from the IDHR website, complete it, and email it to IDHR.firstname.lastname@example.org by October 31, 2020.
Who: All New York state employers
When: Effective January 1, 2021
What: The state legislature passed an amendment to the New York Labor Law. All employers must now provide sick leave, though smaller employers are exempted from paid sick leave. This new leave is in addition to the state’s emergency COVID-19-related sick leave. The amount of sick leave to be provided is tied to the employer’s size. The requirements below are per year, per employee.
- Four or fewer employees: 40 hours of unpaid sick leave-
- Four or fewer employees and net income in excess of $1 million: 40 hours of paid sick leave
- Five to 99 employees: 40 hours of paid sick leave
- 100 or more employees: 56 hours of paid sick leave
Employers must accrue one hour of sick leave for every 30 hours an employee works, or frontload the sick leave at the beginning of the year. Employees can take sick leave for self or family member illness; medical-care visits; and services or time off related to domestic abuse, sexual assault, or harassment. Unused sick leave carries over to the next calendar year, but employers can limit use of sick leave to 40 hours or 56 hours, as applicable to the size of employer.
Paid sick leave will start to accrue for New York employees starting on September 30, 2020. Employees will not be able to use this paid sick leave until January 1, 2021. Employees are not required to disclose confidential information regarding their requests for sick leave.
- Update your sick leave policy in accordance with the new requirements and revise your HR manual.
- Notify employees of availability of paid sick leave.
- Document each employee’s sick leave taken and keep your records for at least six years.
Who: Covered New York City employers
When: Effective July 24, 2020
What: The New York City Commission on Human Rights clarified the exceptions to the rule banning THC testing as a condition of employment. In the original rule, exceptions to the ban were made for applicants for positions that significantly impacted the health or safety of employees or the public.
The final rule and clarification that applicants fall under the exception (and therefore may be tested for THC as a condition of employment) if impairment means the employee cannot take adequate care on the job such that it would pose an immediate risk of death or serious physical harm to the employee or other people. Applicants may also be tested for THC if the position requires:
- Regular work on an active construction site, or within one week of employment;
- Regular operation of heavy machinery;
- Regular work on or near power or gas utility lines;
- Operation of a motor vehicle on most work shifts; or
- Work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment.
These exceptions are in addition to those listed in the original ruling, such as law enforcement positions and any job that requires a commercial driver’s license.
- Determine whether any position at issue (i.e., one you intend to do THC testing for) meets the Commission’s new definition.
- Review your existing drug testing and substance abuse policies and determine how you will address any applicant or employee who tests positive for THC. Update your HR manual as necessary.
- If needed, work with your drug testing vendors and Medical Review Officers to ensure that certain job applicants are not tested for THC, or that such test results are not reported to you.
Who: All South Carolina employers covered under the Human Affairs Law
When: Effective June 25, 2020; employers must comply by August 24, 2020
What: The Act requires all covered employers to permit employees reasonable opportunities to express milk in a private place other than a toilet stall. The Act protects employees and applicants who have medical needs arising from lactation or related medical conditions.
An employer should provide reasonable accommodations to an employee once she has asked for an accommodation, unless providing an accommodation would be an undue hardship on the employer. Reasonable accommodation includes provision of a private place other than a toilet stall to express milk and a reasonable amount of unpaid break time.
An aggrieved employee may file a charge of discrimination with South Carolina Human Affairs Commission (SCHAC) in the event an employer takes adverse action against the employee for requesting or using reasonable unpaid break time, or paid break time or mealtime, to express breast milk.
- Review your policies and procedures related to lactating employees and revise your HR manual as needed.
- Provide training to your supervisors and managers on how to respond to accommodation requests or to address breast-feeding needs. –
- Notify employees of their rights under the Act by August 24, 2020.