AUGUST 2021 LEGAL UPDATE

FUTURE COMPLIANCE DATES

NO LATER THAN SEPTEMBER 15, 2021: Notice of Expiration to AEIs of ARPA COBRA Premium Assistance

Under provisions of the American Rescue Plan Act (“ARPA”), COBRA administrators are required to provide Assistance Eligible Individuals (“AEIs”) with written notice of the date on which their COBRA subsidy will end. The notice must be provided no earlier than 45 days before the expiration date and no later than 15 days before that date.

AEIs whose premium subsidy will be ending on September 30, 2021 due to the expiration of the ARPA COBRA subsidy will need to be given a notice between August 16, 2021 and September 15, 2021. The notice is not required if an AEI’s subsidy ends as a result of becoming eligible for coverage under another group health plan or through Medicare rather than the expiration of the subsidy.

SEPTEMBER 5 – 11, 2021: Suicide Prevention Awareness Week

National Suicide Prevention Week is an annual week-long campaign in the United States to inform and engage health professionals and the general public about suicide prevention and warning signs of suicide. Resources include:

National Suicide Prevention Lifeline (800) 273.8255
HopeLine (877) 235-4525
Crisis Text Line 741741
Suicide.org (800) 784-2433
Suicide.org State-by-State Hotlines

SEPTEMBER 30, 2021: VETS-4212 Report Due

Government contractors must submit a VETS-4212 Report no later than September 30. Click here for VETS-4212 reporting information.

SEPTEMBER 30, 2021 (for calendar plan year): Summary Annual Report Due

Employers who offer a health insurance plan must distribute a Summary Annual Report (“SAR”) to plan participants within the later of nine months after end of plan year or two months after filing of Form 5500. For plans on a calendar plan year that did not receive an extension for Form 5500, that deadline is September 30, 2021. For calendar year plans that have filed for an extension using Form 5558, the SAR is due by December 15.

OCTOBER 14, 2021: Medicare Part D Notice

Employers who offer a group health plan with prescription drug coverage must provide notice prior to October 15 of each year to all plan participants who are Part-D eligible or are within three months of eligibility. Eligible individuals are plan participants — whether covered as active employees, retirees, COBRA recipients, disabled individuals, or as dependents — who are 65 or more years old, three months before turning age 65, and/or disabled. Note: If you provided participants with the all-in-one Employee Notification service provided by HR Service, this notice was included.

OCTOBER 25, 2021: Extended EEO-1 Deadline (Again)

The deadline to submit and certify 2019 and 2020 EEO-1 Component 1 Reports has been extended once again. The new filing deadline is now October 25, 2021.

PRIOR TO STATE PRIMARY ELECTION DAYS: Voting Leave May Be Required

While there are no federal laws requiring time off to vote, many states require employers to provide voting leave. Confirm your state’s upcoming election dates to prepare for voting leave and notifications, if needed.

FEDERAL COMPLIANCE UPDATES

FEDERAL GUIDANCE ISSUED ON EMPLOYER VACCINE POLICIES

The Department of Justice recently issued a Memorandum that stated that employers may require their employees to be vaccinated, even if subject to emergency use authorization from the U.S. Food and Drug Administration. (NOTE: The Pfizer vaccine received FDA approval on August 23, 2021 for ages 16 and up, and approval of the Moderna vaccine is expected in the coming weeks.) Employers who mandate vaccines must provide reasonable accommodations for religious and medical reasons, except where it would cause undue hardship.

The White House recently released a Fact Sheet that details new federal vaccination policies and vaccine incentives. It also urges private employers to follow the federal employee vaccine mandate model, under which all federal government employees and onsite contractors will be required to either attest to being fully vaccinated or will be required to wear a mask on the job, physically distance from all other employees and visitors, undergo weekly or twice-weekly testing, and be subject to restrictions on business travel.

The Fact Sheet also states that the federal government will offer small and medium-sized businesses expanded reimbursement for providing paid leave to employees to become vaccinated, including paid leave for vaccinating their children. It also called upon states and local governments to utilize resources provided under ARPA to incentivize vaccination by offering $100 to anyone who gets vaccinated.

Several states have also issued written guidance advising that private employers have the discretion to implement a vaccine mandate for their employees. In addition, a federal court recently upheld an employer-imposed vaccine mandate in Bridges v. Houston Methodist Hospital.

Employers who are deciding whether to impose a vaccine mandate, recommendation, or hybrid policy should consider:

Whether the employer can show the requirement is job-related and consistent with business necessity;
What accommodation obligations may exist for individuals who cannot receive the vaccine due to medical or religious reasons;
Consequences for refusal to comply;
Employee relations and morale considerations;
Whether and how the employer will confirm vaccination status and the coordination of related recordkeeping.
The entity’s overall risk tolerance, as legal challenges, could arise; and
Compliance with state and local requirements.

“LONG COVID” PROTECTIONS

The Department of Health and Human Services and the Department of Justice Disability Rights Section recently released Joint Guidance that explains that employees suffering long-term symptoms of COVID-19, known as “long COVID,” have protections and rights under the Americans with Disabilities Act (“ADA”). This announcement formally recognized that some infected by COVID-19 suffer long-term debilitating symptoms that include respiratory complications, fatigue, cognitive impairment, emotional and behavioral disorders, sleep disorders, fevers, and gastrointestinal symptoms which can persist for months. In some cases, new symptoms arise well after the time of infection or develop over time.

The White House also published a Fact Sheet that includes links to a community-based resources guide and a new Office of Disability Employment Policy website.

CDC UPDATES RECOMMENDATION FOR VACCINATED PEOPLE

The Centers for Disease Control and Prevention (CDC) recently issued updated Interim Public Health Recommendations for Fully Vaccinated People. Recent changes in the CDC guidance include:

Recommendation for fully vaccinated people to wear a mask in public indoor settings in areas of substantial or high transmission.
Suggestion that fully vaccinated people choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease, or not fully vaccinated.
Recommendation for fully vaccinated people who have come into close contact with someone with suspected or confirmed COVID-19 to be tested 3-5 days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.
Recommends for all teachers, staff, students, and visitors to schools, regardless of vaccination status, wear masks indoors.

OSHA UPDATES RECOMMENDATIONS BASED ON CDC GUIDANCE

The U.S. Occupational Safety and Health Administration (“OSHA”) updated its COVID workplace safety guidance entitled, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. OSHA’s latest update reflects the CDC mask and testing recommendations for fully vaccinated people issued on July 27, 2021.

OSHA’s guidance now includes the following recommendations, in addition to the CDC recommendations above.

Employers should provide paid time off for employees to get vaccinated and claim tax credits (for employers with fewer than 500 employees) to offset such paid leave through September 30, 2021.
Employers should consider adopting policies that require workers to get vaccinated or undergo regular COVID-19 testing and follow transmission-limiting requirements.
Employers should ensure that absence policies are non-punitive and eliminate or revise policies that encourage workers to come to work sick.
Employers should limit the number of unvaccinated or otherwise at-risk workers in one place at any given time by implementing telework, flexible work hours, flexible and remote meeting options, and staggered shifts.
Employers should erect transparent shields or other solid barriers to protect employees and others where physical distancing is not possible.
Employers should provide face coverings at no cost to workers who request them.

While these recommendations do not create legal obligations other than for those covered by OSHA’s COVID-19 Emergency Temporary Standard, employers can be cited for failure to provide safe working environments under the General Duty Clause.

GUIDANCE ON ACA AND CAA

The Departments of Labor, Health and Human Services, and Treasury recently issued responses to frequently asked questions (“FAQs”) regarding the implementation of certain provisions of the Affordable Care Act (“ACA”) and the Consolidated Appropriations Act, 2021 (“CAA”).

The FAQs address the following topics:

Transparency in Coverage Machine-Readable Files
Price Comparison Tools
Transparency in Plan or Insurance Identification Cards
Good Faith Estimate
Advanced Explanation of Benefits
Prohibition on Gag Clauses on Price and Quality Data
Protecting Patients and Improving the Accuracy of Provider Directory Information
Continuity of Care
Grandfathered Health Plans
Reporting on Pharmacy Benefits and Drug Costs

For details, see the ACA and CAA FAQs.

GUIDANCE ON ARPA COBRA SUBSIDY

The IRS recently released IRS Notice 2021-46, which provides new guidance and clarifications regarding the COBRA premium subsidy in the American Rescue Plan Act (“ARPA”). This notice follows an earlier release of IRS FAQs in Notice 2021-31.

Notice 2021-46 provides background information about the COBRA premium assistance, addresses several questions with specific examples and exceptions provided, and provides technical guidance on claiming the tax credit in connection with the subsidy.

Plan sponsors and issuers may need to make amendments to their Form 941 filings if their previous interpretations of ARPA requirements resulted in incorrect filing.

The ARPA provides for a temporary 100% COBRA premium subsidy for individuals who elect COBRA continuation coverage due to a loss of coverage as a result of any involuntary or voluntary reduction in hours or involuntary termination of employment. The COBRA premium subsidy will expire on September 30, 2021, unless an extension is granted. HR Service will provide any updates as they become available.

GUIDANCE ON ARPA TAX CREDITS

The IRS recently updated its Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021 Guidance. Employers with fewer than 500 employees who voluntarily elected to extend ARPA benefits to their employees through Sept. 30, 2021 are eligible to receive federal tax credits.

GUIDANCE REGARDING PPP LOAN FORGIVENESS

The SBA has released a new portal to facilitate the online application process for forgiveness of Paycheck Protection Program (“PPP”) loans.

PPP loan borrowers of $150,000 or less can now use the portal to electronically submit a Form 3508s as an application for loan forgiveness. PPP loan borrowers of $150,000 or less can also rely on a COVID Revenue Reduction Score in lieu of the 25% revenue reduction requirement.

In the event of a loan review appeal, the loan deferment period will be extended until a final SBA loan review decision is made.

For additional details, see the Treasury Department’s PPP FAQs.

GUIDANCE REGARDING EMPLOYEE RETENTION CREDIT

The IRS recently released an advance version of Notice 2021-49 that provides guidance regarding the employee retention credit that was originally enacted by the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The employee retention credit provides a refundable payroll credit for eligible employers whose business was affected by the COVID-19 pandemic.

Notice 2021-49 includes guidance for employers that pay qualified wages after June 30, 2021, and before January 1, 2022, and provides additional guidance on miscellaneous issues that apply to the employee retention credit in both 2020 and 2021.

For additional information, see Notice 2021-49.

NEW STANDARD FOR ERISA BENEFIT PLANS

Effective for periods ending on or after December 15, 2021, the Statement on Auditing Standards No. 136 (“SAS 136”) is a new audit standard for employee benefit plans subject to ERISA that was issued by the American Institute of Certified Public Accountants (“AICPA”).

Under SAS 136, plan sponsors will be required to acknowledge responsibility for a plan’s administration in the audit engagement letter as well as to provide written representations regarding responsibilities to maintain a copy of the current plan document and amendments, to ensure that plan transactions are consistent with plan provisions, and to maintain sufficient participant records to determine the benefits due under the plan.

For additional details, see the text of SAS 136.

SAFE HARBOR NOTICE DEADLINE

No later than December 1, 2021 (at least 30 days before the beginning of the 2022 plan year), plan sponsors that include an automatic contribution arrangement or eligible automatic contribution arrangement or that avoid non-discrimination tests by utilizing the safe harbor requirements under Section 401(k)(12) or (13) of the Internal Revenue Code must send annual participant notices.

A qualified default investment alternative (QDIA) notice, often sent by a plan’s record-keeper, must also be sent to participants and beneficiaries at least 30 days before the beginning of the 2022 plan year.

IRS AMENDS 401(k) CORRECTION PROCEDURES

The IRS has made significant changes to the Employee Plans Compliance Resolution System (“EPCRS”), which allows employers that sponsor defined contribution plans or defined benefit pension plans to self-correct plan operational errors.

For information about changes to the EPCRS, see Revenue Procedure 2021-30.

DEFINED CONTRIBUTION BENEFIT STATEMENT CHANGES

Effective September 18, 2021, plan administrators of ERISA-covered defined contribution plans must update their benefit statements to display each participant’s account balance expressed as both a single-life annuity and a qualified joint and survivor annuity.

Plans that are required to issue benefit statements each quarter must provide the initial benefit statement with lifetime income illustrations no later than June 30, 2022. All other plans must include these new lifetime illustrations beginning with the statements for the first plan year ending on or after September 19, 2021. Thereafter, these lifetime illustrations must be furnished annually.

For additional information, see the EBSA FAQs and the DOL’s Interim Final Rules.

PRO-FRANCHISE JOINT-EMPLOYMENT RULE RESCINDED

Effective September 28, 2021, the 2020 Final Rule — which limited the circumstances under which a franchisor and independent franchisees could be deemed joint employers of franchisees’ employees — will be rescinded.

The Fair Labor Standards Act (“FLSA”) requires employers to pay their non-exempt employees at least the federal minimum wage for every hour worked and overtime for every hour worked over 40 in a work week, among other things. The Labor Department has established that two or more entities may sometimes “jointly” employ a single employee under the FLSA. Each joint employer is jointly and severally liable for the employee’s wages. The Labor Department’s rescission of the 2020 Final Rule will make it more likely that a franchisor and franchisee could be deemed joint employers of the independent franchisee’s employees.

STATE COMPLIANCE UPDATES

CALIFORNIA

Mandated Vaccination for All Health Care Workers & State Employees

Effective August 5, 2021 with a deadline of September 30, 2021, a new California mandate requires all state employees, healthcare workers and those who work in high-risk congregate settings to show proof of full vaccination. Those who meet requirements for medical or religious exemption must get tested at least once per week and wear appropriate PPE.

Healthcare workers include employees of hospitals, nursing homes, dentists’ and doctors’ offices, and other healthcare settings. High-risk congregate settings include adult and senior residential facilities, homeless shelters, and jails.

Physical Postings May Also Be Emailed

Effective July 16, 2021, SB 657 allows employers who are required to post certain notices may also distribute that information via email.

San Francisco Clarifies Vaccination Mandate for High-Risk Jobs

On July 20, 2021, San Francisco revised its Safer Return Together Health Order that requires workers in certain high-risk settings to get vaccinated by September 15, 2021, unless they qualify for a religious or medical exemption. Then on August 12, 2021, the San Francisco Department of Public Health issued a revised order that mandates additional businesses to require all employees and patrons aged 12 and older to provide proof of full vaccination. These businesses include operators or hosts of establishments or events where food or drink is served indoors, including dining establishments, bars, clubs, theaters, and entertainment venues. It also includes gyms, recreation facilities, yoga studios, dance studios, and other fitness establishments where patrons engage in an exercise involving elevated breathing.

The deadline for impacted businesses to implement verification for patrons was August 20, 2021. The deadline to ascertain the vaccination status of all employees who routinely work onsite was also August 20, 2021, but employees have until October 13, 2021 to provide proof that they are fully vaccinated.

For additional details, see the Revised Order.

West Hollywood, California Adopts Comprehensive Hotel Worker Ordinance

West Hollywood has passed a new law that impacts hotel workers in the city. The new law:

requires panic buttons,
regulates workload,
provides for a right of recall based on seniority,
provides for job protection in the event of a change of ownership control, and
creates a city-certified “Public Housekeeping Training Organization” to provide training to hotel employees.

The right-to-recall provisions and change in control provisions become effective September 1, 2021. The personal security device provisions and the workload provisions become effective January 1, 2022. The Public Housekeeping Training provisions become effective July 1, 2022.

For additional details, see Ordinance 21-1159.

COLORADO

INFO #9 Amends Wage and Benefit Posting Requirements

Under the Colorado Department of Labor and Employment revised Interpretative Notice & Formal Opinion (“INFO”) #9, employers covered by the Colorado Equal Pay for Equal Work Act, Part 2 will now have to post wage and benefit information for all covered promotional opportunities and job openings (including remote jobs that can be performed anywhere), unless that work is specifically tied to a non-Colorado worksite.

For more details, see Interpretative Notice & Formal Opinion (INFO) #9.

CONNECTICUT

Minimum Wage Increase

Effective August 1, 2021, the minimum wage in Connecticut increased to $13.00. The maximum tip credit increased to $6.62 for service employees and to $4.77 for bartenders.

Vaccines Mandated for Long-Term Care Facilities

Issued on August 6, 2021, a new executive order requires employees, volunteers, and contractors with physical access to patients or residents of long-term care facilities to be vaccinated with the COVID-19 vaccine no later than September 7, 2021. Impacted individuals must have received at least the first dose of a COVID-19 vaccine by the deadline and have an appointment scheduled to receive the second dose (if not a single-dose vaccine).

The Executive Order defines “Long-term care facility” to include:

Nursing homes;
Residential care homes;
Assisted living services agencies;
Intermediate care facilities for individuals with intellectual disabilities;
Managed residential communities; and
Chronic disease hospitals.

Long-term care facilities may no longer employ or contract for services individuals who do not meet the deadline without good cause or without an approved religious or medical exemption.

Long-term care facilities are required to verify the vaccination status of current and prospective employees, volunteers, and contractors with physical access to patients or residents; maintain documentation of vaccination or exemption of those individuals; and report compliance with the Executive Order in a form that will be directed by the Department of Public Health. Failure to comply with the Executive Order will result in a $20,000 per day fine.

Smoking Law Expanded

Effective October 1, 2021, Connecticut’s smoking laws will be amended to require each employer to prohibit smoking and the use of electronic nicotine and cannabis delivery systems and vapor products in any area of any business facility under its control. This is an expansion of current law that only applies to employers with five or more employees and does not apply to electronic nicotine or cannabis delivery products.

ILLINOIS

Discrimination Based on Work Authorization Status Prohibited

Effective August 2, 2021, the Illinois Human Rights Act was amended to prohibit discrimination and harassment based on “work authorization status,” the status of being a non-US citizen and authorized by the federal government to work in the United States. The amended law does not, however, require an employer to sponsor any employee to obtain work authorization status.

LOUISIANA

11-Factor Test for Independent Contractors Adopted

Effective August 1, 2021, a worker is presumed to be an independent contractor under the Louisiana Employment Security Law unless proven otherwise if the worker controls the performance, methods, or processes used to perform services and meets at least six of the following 11 criteria:

The individual or entity operates an independent business that provides services for or in connection with the contracting party;
The individual or entity represents the provided services as self-employment available to others, including through the use of a platform application to obtain work opportunities or as a lead generation service;
The individual or entity accepts responsibility for all tax liability associated with payments received from or through the contracting party;
The individual or entity is responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the legal performance of the services rendered by him as the contractor;
The individual or entity is not insured under the contracting party’s health insurance or workers’ compensation insurance coverage and is not covered for unemployment insurance benefits;
The individual or entity has the right to accept or decline requests for services by or through the contracting party and is able to perform services for or through other parties or can accept work from and perform work for other businesses and individuals besides the contracting party even if the individual voluntarily chooses not to exercise this right or is temporarily restricted from doing so;
The contracting party has the right to impose quality standards or a deadline for completion of services performed, or both, but the individual or entity determines the days worked and the time periods of work;
The individual or entity furnishes the major tools or items of equipment needed to perform the work;
The individual or entity is paid a fixed or contract rate for the work performed and the contracting party does not pay the individual or entity a salary or wages based on an hourly rate;
The individual or entity is responsible for the majority of expenses incurred in performing the services unless the expenses are reimbursed under an express provision of a written contract between the parties or the expenses reimbursed are commonly reimbursed under industry practice; and
The individual or entity can use assistants as deemed proper for the performance of the work and is directly responsible for supervision and compensation.

These criteria do not apply to a motor carrier under contract with an owner operator; any service excluded from the term employment; most public-sector services; and any service performed by an individual employed by a religious, charitable, educational or other organization if the service is excluded from employment as defined in the Federal Unemployment Act.

The penalty for employers that misclassify an employee as an independent contractor and fail to pay contributions was increased from $250 to $500 for a first offense. This penalty can be waived if the employer becomes compliant within 60 days after a citation. The penalty for a second offense is $1,000 per misclassified worker and increases to $2,500 for each subsequent violation.

MAINE

“Ban the Box” Law Passed

Effective October 18, 2021, Maine’s new “ban the box” law prohibits employers from seeking criminal history record information on an initial employment application form.

The new law also prohibits employers from stating on an application or advertisement that a person with a criminal history may not apply or will not be considered for a position or otherwise specifying prior to determining a person is qualified for the position that an individual with a criminal history will not be considered.

Exceptions include instances in which federal or state law, regulation, or rule mandates that a criminal conviction disqualifies an applicant from a position, imposes an obligation on an employer not to hire an applicant who has been convicted of a certain type of offense, or requires that an employer conduct a criminal history record check.

Tip Minimums Increased

Effective October 18, 2021, LD 1489 increases the amount of tips an employee must receive to be considered a service employee from $30 per month to $175 per month.

Maine Human Rights Act Amended

Effective October 18, 2021, the Maine Human Rights Act will be amended to prohibit employment discrimination on the basis of an individual’s familial status or gender identity as well as to clarify an employer’s obligations regarding the employment of individuals with a physical or mental disability.

In addition, new amendments also prohibit discrimination against individuals who have sought and received an order of protection under the state’s domestic violence law.

Emergency Responder Leave Law Amended

Effective October 18, 2021, H.B. 93 will be amended to clarify that an emergency medical services person may also be designated as essential.

Under the amended law, an employee who is claiming the status as a firefighter or emergency medical services person must present the policy of the fire department or emergency medical service provider to the employer within 30 days of claiming that status.

Juneteenth Established as a Paid State Holiday

LD 183 designates Juneteenth as a paid state holiday on which all non-essential state offices including courts must be closed. The first official Juneteenth holiday in Maine will occur on June 19, 2022.

MARYLAND

Whistleblower Awards Program Enacted

Effective October 1, 2021, H.B. 804 allows for whistleblower incentives and award payments for the reporting of tax violations.

For additional details, see H.B. 804 text.

MINNESOTA

Duluth Amends Paid Sick and Safe Leave Ordinance

Effective August 19, 2021, File # 21-023-O expands the covered uses of leave under Duluth’s Earned Sick and Safe Time (“ESST”) Ordinance and amends employer notice and enforcement provisions.

Under the new law, employees are able to use leave when they lose work hours when their place of employment closes for public health reasons as well as for an illness, an injury, a health condition, preventive medical care, and for reasons connected to domestic abuse, sexual assault, or stalking.

Employers must make available to employees the ESST policy and notice unless they already provide a substantially equivalent paid leave benefit.

For more information, see the ESST page.

MONTANA

FAQs Issued Regarding Prohibition of Mandated Vaccination

The Montana Department of Labor & Industry has released answers to several frequently-asked questions clarifying Montana House Bill 702, which prohibits employers from mandating the current COVID-19 vaccines and recognizes an individual’s vaccination status as a protected category under the Montana Human Rights Act.

The FAQs clarify that nothing in the law prohibits employers from asking about vaccination status or whether an individual has an immunity passport. A person is not, however, required to respond to such inquiries and may not be discriminated against for not responding.

Employers are allowed to offer incentives to employees to become vaccinated voluntarily, as long as the nature of the incentive is not discriminatory and not so substantial “as to be coercive.”

The FAQs clarify that employers may request or require that everyone on their premises wear masks, regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions, and disabilities that preclude receiving the vaccine.

The restrictions under Montana House Bill 702 are based on “any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials,” so they presumable will end if/when the U.S. Food and Drug Administration fully approves the COVID-19 vaccinations.

See the entire document here: HB 702 FAQs.

Child Labor Exemption Established for Student Employees

Effective October 1, 2021, the Montana Child Labor Standards Act will be amended to establish an exemption from child labor law restrictions for student employees if the student is under the direct and close supervision of a qualified and experienced person with experience in the occupation in which the minor is employed and if safety instruction is provided.

The new law also repeals the requirement for apprentices and students to be employed under a written agreement providing that work is “intermittent and for short periods of time.”

Independent Contractor Certifications Amended

Effective October 1, 2021, Montana’s workers’ compensation law and unemployment insurance law will be amended in regard to independent contractors. Under the amended laws, someone who falsely claimed to have an independent contractor certification will not be automatically considered to be an employee solely based on not actually having an independent contractor exemption certificate.

The burden of proof that an independent contractor is certified is on the independent contractor rather than the employer.

NEBRASKA

Service Animals Law Amended

Effective August 28, 2021, Nevada’s law related to the use of service animals was amended to protect the right of a person with a disability to be accompanied by a service animal specially trained for that purpose.

NEVADA

Deadline for Filing Discrimination Complaints

Effective upon passage, AB 222 limits the timeframe that anti-discrimination claims can be brought to within 180 days of the date of the claimed discriminatory act or within 90 days after the issuance of a right-to-sue notice.

Labor Commissioner Authority and Wage Definition

Effective July 1, 2021, SB 245 states that employers who fail to pay the wages, compensation, or salary due to an employee in a timely manner may be sued within two years after the failure to pay. The new law defines “wages” to include amounts owed to a discharged employee or to an employee who resigns due to untimely payment to the employee.

NEW HAMPSHIRE

Voluntary Subsidized Paid Leave Program

Effective July 1, 2021, the Granite State Paid Family Leave Plan is a voluntary program that provides New Hampshire workers with 60 percent wage replacement for up to six weeks of work per year if they take time off for qualified personal health or family reasons.

Employers with 50 or more employees may opt into the program and receive tax credits for providing the subsidized leave. Participating employers must provide for payroll deductions and continuation of health insurance coverage during leave.

Employees of companies who do not participate in the program can opt in to the Granite State Paid Family Leave Plan through the individual pool, and their employers would be required to send the employee-paid premiums to the state.

The leave could be used for:

The birth of a child or caring for a newborn child for the first year;
For newly adopted or fostered children within the first year;
Care for an employee’s spouse, child, or parent with a serious health condition;
Care for a spouse, child, or parent who is in the military;
A personal serious health condition that is independent of employment, if the employer does not offer short-term disability insurance.

The subsidized paid leave must be offered by January 1, 2023.

NEW JERSEY

New Jersey Health Care Workers Must be Vaccinated or Get Tested Weekly

Effective September 7, 2021, all employees of New Jersey medical centers and other high-risk healthcare facilities must receive the COVID-19 vaccine or be subject to COVID-19 testing at least once per week.

The types of impacted facilities include:

Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals, including specialty hospitals, and ambulatory surgical centers
Long-term care facilities, including the State Veterans Homes
Intermediate care facilities, including the state developmental centers
Residential detox, short term and long term residential substance abuse disorder treatment facilities
Clinic-based settings like ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and Opioid Treatment Programs
Community-based healthcare settings including Program of All-inclusive Care for the Elderly, and pediatric and adult medical daycare programs
Licensed home health agencies and registered health care service firms operating within the State
State and county correctional facilities
Secure care facilities operated by the Juvenile Justice Commission
Licensed community residences for individuals with intellectual and developmental disabilities (IDD) and traumatic brain injury (TBI)
Licensed community residences for adults with mental illness; and
Certified day programs for individuals with IDD and TBI

In advance of September 7, impacted health care facilities must ascertain the vaccination status of all employees and create a plan for regular testing for those not vaccinated.

In its announcement, the state also made clear that the testing option provided under the new rule does not supersede any employer’s existing policy requiring vaccination as a condition of employment.

For additional details, see NJ COVID-10 Information Hub FAQ.

NEW MEXICO

Bernalillo County Increases PTO Limits

Effective October 1, 2021, Bernalillo County’s Employee Wellness Act requires employers with 11 or more employees to provide eligible employees with at least 44 hours of earned paid time off (“PTO”) to be used for any reason. This is an increase from 28 hours in 2020.

NEW YORK

New York City Mandates Retirement Coverage

Effective August 11, 2021, private employers located in New York City with at least five employees and who do not offer a retirement plan are required to enroll eligible employees in a payroll deduction IRA program established under the law. Employees must be at least 21 and work at least 20 hours a week to be eligible.

The default employee contribution rate is 5%, but employees may opt-out or adjust the rate, up to an annual IRA maximum of $6,000 (or $7,000 for those age 50 or above). Employers are not required to make a contribution.

New York City Mandates Vaccines or Weekly Testing for Public Employees

Public healthcare employees, teachers, police officers, and other municipal workers in New York City are required to show proof of COVID-19 vaccination or submit to weekly testing. Mayor De Blasio has also urged private employers to require their workers to get vaccinated.

NORTH CAROLINA

State Healthcare Facilities Mandate Vaccine, Private Facilities May Follow Suit

The North Carolina Department of Health Human Services has mandated that all employees of any state-run healthcare facility will need to be fully vaccinated and provide proof of a coronavirus vaccine by the end of September.

Private healthcare facilities and providers in North Carolina may but are not required to follow suit.

NORTH DAKOTA

Injuries Linked to Recreational Marijuana Excluded from Workers’ Compensation

Effective August 1, 2021, North Dakota’s workers’ compensation law is amended to specify that an injury caused by the use of recreational marijuana is not a compensable injury. If a post-accident drug test shows a level of marijuana sufficient to cause impairment, then that creates a rebuttable presumption that the workplace injury resulted from the recreational marijuana use.

OREGON

Mandated Vaccines or Weekly Testing for Health Care Employees

On August 4, 2021, the Oregon Health Authority was mandated by the governor to create a rule requiring healthcare workers to show they have been vaccinated for COVID-19 by September 30, 2021 or undergo weekly testing.

The new rule applies to all personnel in health care settings who have direct or indirect contact with patients or infectious materials, including those at in-home care, out-patient facilities, and long-term care facilities.

Healthcare employers will be required to pay for the weekly testing, as health plans only cover testing if it is medically required.

PENNSYLVANIA

Salary Threshold Increase for Overtime Exemptions Repealed

The increase to the minimum salary threshold for overtime exemption that was scheduled to take effect on October 3, 2020 has been repealed.

Mandatory Security Checks Compensable

A recent Pennsylvania Supreme Court ruling involving Amazon warehouse employees established that the time employees spent on an employer’s premises waiting for and undergoing mandatory security screenings is always compensable as hours worked, regardless of the amount of time spent.

Employment Protections Extended to Additional National Guard Members

Effective August 29, 2021, the employment protections of the Pennsylvania Military Leave of Absence Act that apply to Pennsylvania National Guard members also apply to members of a National Guard or reserve component from another state.

Philadelphia Businesses Must Require Masks or Proof of Vaccination

Effective August 11, 2021, the City of Philadelphia requires all indoor businesses in the city to either require masks for employees and customers or verify that everyone is fully vaccinated. For businesses that do not require proof of vaccination, all customers and employees must wear masks, regardless of vaccination status. Businesses that do require all employees and patrons to be vaccinated are exempted from the mask requirement.

Masks will also be required in public areas, all city buildings, and in unseated outdoor gatherings of 1,000 or more people. For additional details, see the City of Philadelphia Announcement.

In addition, the City of Philadelphia requires that healthcare workers and those at colleges and universities in the city must be fully vaccinated by October 15, 2021, unless they have an approved religious or medical exemption. For additional details, see the Emergency Regulation.

PUERTO RICO

Expanded Employment Protections for Medical Cannabis Patients

Effective July 29, 2021, Act No. 15-2021 expands employment protections to employees who are registered and licensed medical cannabis patients.

Under Act 15-2021, no employer may discriminate against an authorized medical cannabis patient regarding recruitment, hiring, termination, or other employment conditions. However, these protections are invalidated if the employer can reliably establish:

The use of medical cannabis represents a real threat of harm or danger to people or property;
The use of medical cannabis by the registered and authorized patient interferes with their performance and essential job functions;
The use of medical cannabis by the registered and authorized patient exposes the employer to the loss of any license, permit or certification related to any federal law, regulation, program or fund; or
The registered and authorized patient ingests or possesses medical cannabis in the workplace and/or during working hours without written authorization from the employer.

The act also protects employers from being denied or penalized regarding contracts, licenses, permits, or benefits under the laws of Puerto Rico for employing authorized medical cannabis patients.

SOUTH CAROLINA

Weapons on Worksite Can Still Be Prohibited despite New Open Carry Law

Effective August 15, 2021, South Carolina’s Open Carry with Training Act allows individuals with a valid South Carolina concealable weapon permit (“CWP”) to carry a concealable weapon openly or concealed. However, the new law does not change the right of employers to allow or not allow firearms in the workplace.

Employers who choose to prohibit employees, vendors, contractors, visitors, and other guests from carrying weapons in the workplace must post signage at each entrance of a building that complies with a specific image, size, font, and other requirements.