SEPTEMBER 2020 LEGAL UPDATE

FUTURE COMPLIANCE DATES

November 2, 2020: Form 941 Due

Form 941, the employer’s quarterly tax return, is due November 2 for third quarter 2020. Click here to access the recently-revised Form 941. Credit for FFCRA-qualified paid sick leave wages and qualified paid family leave wages can be requested on this form. Employers may also opt to use Form 7200 to request an advance payment of the tax credits for qualified sick and qualified family leave wages and the employee retention credit that will be claimed on Form 941.

SEPTEMBER 30, 2020: VETS-4212 Report Due

The 2020 filing period for the VETS-4212 started on August 1, 2020 and is set to end on September 30, 2020. Unless the Veterans’ Employment & Training Service postpones the deadline, government contractors must submit a VETS-4212 Report no later than September 30. Click here for VETS-4212 reporting information, instructions, and VETS-4212 filing FAQs.

SEPTEMBER 30, 2020 (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, 2020.

OCTOBER 14, 2020: 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.

PRIOR TO ELECTION DAY: Voting Leave May Be Required

November 3, 2020 will be Election Day. While there are no federal laws requiring time off to vote, many states require employers to provide voting leave as well as notification postings well in advance of Election Day. Check below for state-by-state requirements. States not listed below do not require voting leave or posted notices.

FEDERAL COMPLIANCE UPDATES

DOL ISSUES REVISED FFCRA LEAVE RULES

Effective September 16, 2020, revised regulations issued by the U.S. Department of Labor (“DOL”) modify provisions of the Families First Coronavirus Response Act (“FFCRA”). The revisions were in response to an Aug. 3, 2020 decision issued by the U.S. District Court for the Southern District of New York, in which the court found certain provisions of the regulations to be invalid.

The revisions to the regulations are:

Employees are still only eligible to take FFCRA leave if work would otherwise be available to them. However, the new regulation states that the work availability requirement does not allow employers to claim lack of work in order to deny leave.
Employees are still required to get employer approval to take intermittent FFCRA leave, but they no longer need employer approval to take full-day leave to care for children whose schools are operating on an alternate day or other hybrid attendance schedule. The regulations state that this is not actually intermittent leave but rather a new leave occurrence each day the school is closed. If a partial day of leave is requested, that would be considered intermittent leave and therefore would require employer approval.
Employees are no longer required to provide documentation to substantiate the need for paid sick leave or expanded family and medical leave prior to taking leave, but rather must be given as soon as practicable.
Similarly, the new regulations clarify that advanced notice of a request for expanded family and medical leave is required as soon as practicable. If the leave is not foreseeable, the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.
The definition of who could be exempted as a health care provider from FFCRA leave rights has been revised to include those covered by the FMLA definition as well as other employees who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. Employers can exempt health care providers or emergency responders from the FFCRA leave for one reason but not others. For example, an employer may decide to exempt the applicable employees from leave for caring for a family member but chose to provide them paid sick leave in the case of their own COVID-19 illness.

In the revised rule, the DOL explains that the health care providers that an employer can elect to exempt from leave under the FFCRA include:

Doctors of medicine or osteopathy
Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors
Nurse practitioners, nurse-midwives, clinical social workers and physician assistants
Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts
Nurses, nurse assistants, medical technicians, and any other persons who directly provide:
- diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);
- preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);
- treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments); or
- other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).
Employees providing direct assistance to a person described above
Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment

The DOL revised regulations stated that employees who do not meet the definitions above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

The revised regulations as published in the Federal Register can be viewed at Revised Regulations of FFCRA.

HR Service has updated our model FFCRA policy to reflect the above changes. The update policy can be found in our COVID-19 toolkit.

EEOC UPDATES GUIDANCE RELATED TO COVID-19 TESTING

The Equal Employment Opportunity Commission (“EEOC”) recently updated its COVID-19 Guidance Page. The revised guidance advised that general testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. However, in order for an employer to test only one employee, the employer should have a reasonable objective belief that he/she might have the disease.

The EEOC guidance states that an employer can ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease, but should not phrase that question as one asking about family members. The ADA allows an employer to bar an employee from physical presence in the workplace if he or she refuses to have a temperature taken or refuses to answer questions about whether he or she has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.

Test and screening results must remain confidential, but an employer can notify others in the workplace that someone has COVID as long as they don’t identify the affected employee.

The EEOC also states that allowing telework now does not mean an employer must allow it when the pandemic ends. The EEOC guidance reads, “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.” However, the guidance also states, “The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not [an] employee with a disability could satisfactorily perform all essential functions while working remotely.”

DOL PROVIDES GUIDANCE ON TRACKING TELECOMMUTERS’ HOURS

The Department of Labor (“DOL”) recently issued Field Assistance Bulletin No. 2020-5 to remind employers of the importance of tracking of non-exempt telecommuters’ work hours. The guidance indicated that employers should have in place a reporting procedure for reporting unscheduled work time, as workers must be compensated for all reported work hours — even those not requested by the employer. The DOL stated that failure to compensate an employee for unreported hours that the employer did not know about, nor had reason to believe was being performed, does not violate the Fair Labor Standards Act.

The guidance clarified that employers do not have to sift through information-technology (IT) records to investigate whether employees are actually working, but can instead rely on time-keeping procedures and employees’ obligation to accurately report time. However, an employer can use IT records to ensure employees are submitting accurate time records. An example would be verifying that, if an employee is using e-mail after work hours, the time sheet / record reflects that as work time.

For additional details, see the full guidance here: Field Assistance Bulletin.

MAJOR PARTS OF DOL’S JOINT-EMPLOYER RULE STRUCK DOWN

In the case State of New York, et al. v. Scalia, a New York federal court has struck down key parts of the Department of Labor’s (“DOL”) joint employer test issued in January 2020 for determining joint employer status for purposes of the Fair Labor Standards Act (“FLSA”). The recent ruling voided the portion of DOL’s regulations that addressed vertical relationships, such as those involving staffing companies or subcontractors. The court, however, allowed the agency’s “horizontal” rule to stand, which regulates situations in which an employee has a relationship with two associated employers.

In January 2020, the DOL issued the first significant update to the joint-employer rule in more than 60 years. Under the revised rule, the DOL created a four-factor balancing joint employer test to determine whether businesses share liability for FLSA wage and hour violations. The test factors include whether a business:

Hires and fires employees.
Supervises and controls employees’ work schedules or conditions of employment to a substantial degree.
Determines employees’ rate and method of payment.
Maintains employment records.

While the DOL may appeal, the decision invalidates the January 2020 final rule unless / until a subsequent ruling is made.

NEW RULE EASES RESTRICTION ON BANKS TO HIRE PEOPLE WITH CRIMINAL RECORDS

Effect August 23, 2020, a new rule issued by the Federal Deposit Insurance Corporation (“FDIC”) limits the instances in which a bank must get written FDIC approval to hire employees convicted of certain felonies.

The Federal Deposit Insurance Act prohibits FDIC-insured banks from hiring any person who has been convicted of a crime involving “dishonesty, breach of trust, or money laundering,” unless they obtain consent from the FDIC. The new rule limits the instances in which a bank would have to get that written approval, including the following:

Excludes all offenses that have been expunged or sealed rather than only certain types of expungements.
Allows a person with two, rather than one, “de minimis” crimes to qualify for the de minimis exception.
Eliminates the five-year waiting period following a first de minimis conviction and establishes a three-year waiting period following a second de minimis conviction.
Increases the de minimis threshold for small-dollar, simple thefts from $500 to $1,000.

REMOTE FORM I-9 DOCUMENT REVIEW APPROVAL ONCE AGAIN EXTENDED

U.S. Immigration and Customs Enforcement (“ICE”) has once again extended the approval to remotely review an employee’s identity and employment authorization documents for Form I-9 but only when that employee will be working remotely. These provisions are now set to expire November 19, 2020, a 60-day extension as opposed to previous 30-day extensions.

Employers may first inspect Section 2 documents via video, fax, email, or other appropriate means. Once normal operations resume, employers must inspect documents in person and note “COVID-19” as the reason for the delay in the section’s “additional information” field, as well as “documents physically examined” with the date of inspection to that field or Section 3 as appropriate. Alternatively, the form also allows an employer to appoint a representative to review new hires’ documents. Examples of such a representative include a law firm, a vendor, a notary, or a local employee. Please note that some states or local jurisdictions may have specific restrictions for who is authorized to review the employee documentation.

Employers who make use of the exception must provide written documentation of their remote onboarding and telework policy for each employee. They must also conduct in-person verification within three business days of when the employer’s normal operations resume. This date may be different (earlier or later) from the date the government policy ends.

FORM I-9 FLEXIBILITY DUE TO EMPLOYMENT AUTHORIZATION DOCUMENT PRODUCTION DELAYS

Until December 1, 2020, employees may temporarily use Form I-797 Approval Notices in lieu of an employment authorization document as a Form I-9 List C #7 document to establish employment authorization. The employee also will have to produce an acceptable List B document to meet Form I-9 requirements. Current employees who require reverification can present this Form I-797 Approval Notice as proof of employment authorization under List C.

The Form I-797 Approval Notice presented for as a List C document must have been issued between December 1, 2019 and August 20, 2020.

After December 1, 2020, the employer will need to re-verify employees who presented the Form I-797 Approval Notice as employment verification. These employees will need to present new evidence of employment authorization from either List A or List C.

UPDATED GUIDANCE ON FFCRA

Updated and additional guidance have been issued about rights and responsibilities under the Families First Coronavirus Response Act (“FFCRA”). Check these documents frequently, as they continue to be updated regularly.

FFCRA Q&A from DOL (updated to reflect revised regulations)
FFCRA Eligibility Tool for employees (Employer tool coming soon.)
FFCRA FAQ from IRS
DOL Additional Guidance
EEOC Guidance and EEOC Resources

STATE COMPLIANCE UPDATES

ALABAMA

Voting Leave Required

Employees are entitled to up to one hour of unpaid voting leave, if the polls are not open at least two hours before their regular shift or at least one hour after their regular shift. Employees must provide reasonable notice to be given this time off. The employer may specify the hours that the employee can take off.

ALASKA

Voting Leave Required

ARIZONA

Voting Leave Required

ARKANSAS

Voting Leave Required

Employers are required to schedule employees’ work schedules around poll hours on Election Day to enable employees to have sufficient time to vote.

CALIFORNIA

Employer Required to Notify Employees of Possible COVID-19 Exposure within One Day

Effective September 19, 2020, Assembly Bill 685 requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to COVID-19. Written notice must be provided to employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result. If applicable, such notice must also be provided to employees’ exclusive representative, which is a designated representative responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.

This notice may be provided via regular employee communication methods, such as direct delivery, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

AB 685 affirms that employers must also report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

AB 685 authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard, as well as authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with pre-citation requirements.

An employer may also need to notify the local public health department within 48 hours of COVID-19 cases if the number of cases meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health, providing the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information.

Statewide Supplemental Paid Sick Leave Mandated

Effective September 19, 2020, AB 1867 requires employers with more than 500 employees nationally and employers of healthcare providers and emergency responders previously exempted from the Families First Coronavirus Response Act (“FFCRA”) requirements to provide California employees with two weeks of supplemental paid sick leave for specified COVID-19 reasons.

The new law is intended to bridge the gap between the FFCRA and Executive Order No. N-51-20, which provided leave only to food-sector workers. AB 1867 also clarifies the definition of a “food facility” to include all sections of Health and Safety Code Section 113789. It also change the definition of eligible food sector worker so that a worker no longer must qualify as an essential critical infrastructure worker.

AB 1867 requires covered employers to provide full-time employees eighty hours of paid time off and part-time employees a proportionate time off if they are:

Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
Prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

AB 1867 clarifies that employers who had provided supplemental sick leave since the pandemic may take a credit for their previously provided supplemental sick leave if it is equivalent or exceeds AB 1867’s requirements.

The new law also requires a food sector worker working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed.

AB 1867 is set to expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Covered employers are required to display the applicable posting notice(s) in a conspicuous place that contains information about COVID-19 Supplemental Paid Sick Leave, available here: Supplemental Paid Sick Leave for Food Sector Workers and Supplemental Paid Sick Leave for Non-Food Sector Employees.The notice may be provided through electronic means to employees who do not report to the work site on a regular basis.

For additional details and clarification, see the California Labor Commissioner’s Frequently Asked Questions Page.

Amended Workers’ Compensation Benefits for Essential Workers Who Contract COVID-19

Signed and effective September 17, 2020, SB 1159 expands the definition of injury under the workers’ compensation system to include illness or death resulting from COVID-19. This bill replaces the now-expired May 2020 executive order that created a presumption that any COVID-19-related illness of an essential employee shall be presumed to arise out of and in the course of employment to award workers’ compensation benefits if certain conditions were met.

The new law applies to peace officers, firefighters, emergency medical services providers, and home health workers who contract COVID-19, as well as to certain health care employees who work at health facilities and either provide direct patient care or had contact with a patient within 14 days before a COVID-19 positive test. It also applies to all employees who contract COVID-19 from an employer that experiences and outbreak of COVID-19 cases at a particular work location. Outbreak is defined as 4 or more employees who tested positive within a 14-day period for employers with 5-100 employees and 4% of employees who tested positive within a 14-day period for employers with more than 100 employees.

Similar to the prior executive order, SB 1159 creates a disputable presumption that COVID-19 injuries arose out of and in the course of employment and are compensable. The bill also makes a claim relating to a COVID-19 illness presumptively compensable, after 30 days or 45 days, rather than 90 days.

San Diego Supplemental Paid Sick Leave

Assembly Bill 1837 is a new supplemental paid sick leave ordinance that applies to all employers in San Diego that are not considered a “covered employer” under the Families First Coronavirus Response Act (“FFCRA”), with some exceptions.

Employers who are exempted from the supplemental paid sick leave include:

Employers of emergency responders or a healthcare provider.
Employers that provide global delivery services.
Employers that were closed or not operating for a period of 14 or more consecutive calendar days due to a City of San Diego official’s emergency order because of COVID-19.
Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
Government Agency employers whose employees are working within the scope of their public service employment.

AB 1837 applies to employees of applicable employers who have been employed by the employer for the three months immediately preceding June 1, 2020 and who performed work within the geographical boundaries of the City of San Diego on or after June 1, 2020.

Eligible full-time employees are entitled to receive 80 hours of paid sick leave, and eligible part-time employees are entitled to a propionate number of hours based on their average hours worked. Like the FFCRA, the amount of leave paid to an employee shall not exceed $511 per day and a $5,110 in aggregate.

A covered employer’s obligation to provide 80 hours of leave under the ordinance is reduced for every hour an employer allowed an employee to take paid leave in an amount equal or greater than the requirements of the ordinance, not including previously accrued hours, on or after June 1, 2020, for any reason covered by the ordinance.

Employees may take leave for the following reasons:

The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
The employee has been advised by a healthcare provider to self-quarantine due to COVID-19;
The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
The employee is at least 65 years old and has a health condition such as heart disease which puts the employee at heightened risk of serious illness or death if exposed to COVID-19;
The employee needs to provide care for a family member or household member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19;
The employee needs to provide care for a family member or household member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine due to COVID-19 concerns;
The employee needs to provide care for a family member or household member whose senior care provider or whose school or child care provider has been closed or is otherwise unavailable in response to a public health order or other public official’s recommendation related to COVID-19.

The City of San Diego is expected to publish a notice to inform employees of their rights. Every covered employer must, within three days of the City publishing the notice, provide the notice to employees by way of posting or electronic communication.

Sonoma County Enacts Supplemental Paid Sick Leave for Employers over 500

Signed and effective on August 18, 2020, the Sonoma Ordinance is a paid sick leave ordinance enacted in Sonoma County that applies to companies with more than 500 employees either locally or nationally who are not covered under the Families First Coronavirus Response Act (“FFCRA”). The Sonoma Ordinance applies to employees of applicable employers who work more than two hours in the unincorporated areas of Sonoma County, not applying to Santa Rosa employees, which has passed its own ordinance.

Full-time employees eligible under the Sonoma Ordinance are entitled to receive 80 hours of paid sick leave, and eligible part-time employees are entitled to a propionate number of hours based on their average hours worked.

Similar to the FFCRA, employees may request leave for any of the following reasons:

The employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19;
The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
The employee needs to care for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine related to COVID-19, or is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
The employee needs time off work to provide care for an individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

Also similar to the FFCRA and other local ordinances, leave pay is capped at no more than $511, up from $200, per day and $5,110 for a two-week period, up from $2,000.

Unlike the FFCRA, the Sonoma Ordinance does not provide an exemption for health care workers and emergency responders. However, an employer may deny some or all requested leave if the employer makes a good faith determination that granting such leave would create a staffing shortfall.

The total number of hours of paid sick leave available under the Sonoma Ordinance is in addition to any other paid time off provided to employees. However, the ordinance contains an “offset” provision, which would allow an employer to use other benefits to satisfy its obligation under the Sonoma Ordinance. If an employee has at least 80 hours of accrued paid sick leave benefits or at least 160 hours of a combination of paid sick leave, vacation, and paid time off benefits as of August 18, 2020, the employer obligation to provide paid sick leave under the Sonoma Ordinance shall be deemed to be satisfied. If an employee’s accrued paid sick leave is less than 80 hours or if their accrued combined leave is less than 160 hours, an employer must provide enough leave under the Sonoma Ordinance to make up the difference.

Employers are mandated to provide notice to employees of their rights under the Sonoma Ordinance by posting a notice in English and Spanish in the workplace or any intranet or email.

Voting Leave and Notice Required

Employers are required to post a notice to employees ten days before a statewide election advising them of voting leave rights. A sample notice in English can be downloaded at no cost by clicking here: CA English Notice. Posting notices in nine other languages are available by clicking here: CA Notice (other languages).

If employees do not have sufficient non-working time to vote, they are entitled to up to two hours of paid voting leave at the beginning or end of their regular working shift (or another agreed upon time). An employee must provide notice at least two working days in advance of the election to be eligible for paid voting leave.

COLORADO

Voting Leave Required

CONNECTICUT

Minimum Wage Increased to $12 per hour on September 1

On September 1, 2020, the minimum wage rate in Connecticut increased to $12 per hour. The rate is scheduled to continue to increase by $1.00 per hour every eleven months, until reaching $15 per hour in June 2023. Thereafter, the minimum wage will be adjusted by the percent change in the federal Employment Cost Index for all civilian workers’ salaries and wages for the one-year period ending on June 30 of the previous year.

Sexual Harassment Deadline Extended to January 1, 2021

Originally set for October 1, 2020, the deadline for Connecticut employers to provide sexual harassment training to all current supervisors has been delayed until January 1, 2021.

The deadlines for employers with at least three employees to provide sexual harassment training to all employees – not just supervisors — has also been pushed to January 1, 2021.

Employees hired after January 1, 2020 must receive training within six months of hire by employers with 3 or more employees, and within six months of when any employee assumes new supervisory duties.

Training resources and a required posting notice can be downloaded here: CHRO Portal.

DISTRICT OF COLUMBIA

Voting Leave and Notice to Be Required

Pending government funding of the Leave to Vote Amendment Act, employees will be entitled to up to two hours of paid voting leave. The employer may specify the hours that the employee can take off, including during early voting periods.

The DC Board of Elections is expected to develop a model notice for employers to post in a conspicuous place. A link will be provided in upcoming Legal Updates as soon as it becomes available.

GEORGIA

New Law Now Mandates Lactation Breaks

Effective August 5, 2020, HB 1090 requires employers to provide reasonable paid break time to working mothers who need to express breast milk at their worksite during working hours. Prior Georgia law encouraged but did not require employers to provide such lactation breaks. The law also requires that working mothers be provided a location other than a restroom where they can express milk in private.

The lactation breaks must be paid at the employee’s regular rate. Employers cannot require salaried employees to use paid leave for such breaks or reduce their salary as a result of such breaks.

The new law applies to all employers with one or more employees in Georgia.

Voting Leave Required

HAWAII

Voting Leave Required

Unless an employee has at least two consecutive hours in which to vote (excluding any lunch or rest periods), the employee is entitled to up to two hours of paid voting leave. An employer may require a voter’s receipt as proof of voting by the employee. If an employer can verify that the employee took leave and failed to vote, the employer may make appropriate deductions from wages.

ILLINOIS

Harassment and Discrimination Rulings Must Be Reported by October 31

The Illinois Human Rights Act, enacted in 2019, requires Illinois employers to report to the Illinois Department of Human Rights (“IDHR”) all final and non-appealable judgments that find sexual harassment or unlawful discrimination against the employer in the preceding calendar year. Employers must submit this first annual report no later than October 31, 2020. Subsequent year reports must be submitted by July 1 of each year.

To submit a disclosure, employers must send completed Form IDHR 2-108 via email to IDHR.WEBMAIL@Illinois.gov. If an employer had no adverse judgments or administrative rulings in favor of employees in the prior year, it does not need to submit a report.

Voting Leave Required

IOWA

Veterans Day Off Law Reminder

Iowa employers are required to provide holiday time off on Veterans Day for employees who are veterans, if the employee would normally be required to work that day. House File 2197 gives employers the discretion of providing the time off as either paid or unpaid. Eligible employees must provide at least one month’s prior written notice of his or her intent to take time off for Veteran’s Day and must also provide the employer with a federal certificate or other federal document showing proof of veteran status.

At least ten days prior to Veterans Day, the employer must notify the employee whether the leave will be paid or unpaid. If providing time off for Veterans Day for all the employees who request it would cause undue operational disruption, the employer may deny the time off to the minimum number of employees needed for the employer to protect maintain minimum operational capacity.

Voting Leave Required

Unless an employee has at least three consecutive non-working hours in which to vote during poll hours, the employee is entitled to up to three hours of paid voting leave. The employer may specify the hours that the employee can take off. An employee must provide a written notice of request in advance of Election Day to be entitled to this voting leave.

KANSAS

Voting Leave Required

KENTUCKY

Voting Leave Required

Unless an employee has at least four consecutive non-working hours in which to vote during poll hours, the employee is entitled to up to four hours of unpaid voting leave. No proof of voting is required, but an employee who takes time off and does not vote may be subject to disciplinary action. The employer may specify the hours that the employee can take off. An employee must provide a notice of request in advance of Election Day to be entitled to this voting leave.

MARYLAND

Maryland Enacts Mini-WARN Law

Effective October 1, 2020, amendments to Maryland’s Economic Stabilization Act require applicable employers who are implementing a “reduction in operations” must provide 60 days of advance written notice to employees as well as continuation of health, pension, severance and other benefits to affected employees.

Reduction in operations under the law means closure of all or a portion of operations affecting as few as 15 employees, as well as relocations of operations.

Maryland Amends Equal Pay Act

Effective October 1, 2020, HB123 requires employers, upon request, to provide a wage range for the position to which the applicant has applied. “Wage range” is not defined, and the law does not explain what steps employers need to take to comply with the law if they do not have pre-determined wage ranges for every job classification.

The new law also prohibits employers from relying on wage history in screening applicants or in determining wages; from seeking an applicant’s wage history orally, in writing, or through a current or former employer; and from retaliating against or refusing to interview or hire an applicant because the applicant did not provide wage history or requested the position’s wage range.

After making an initial offer of employment that includes compensation rate, an employer may use wage history, if voluntarily provided by the applicant, to support a wage offer that is higher than the initial wage offered by the employer.

Also effective October 1, 2020, HB 14 prohibits employers from taking any adverse employment action against an employee for wage-related discussions.

Under HB 14, an employer may not prohibit an employee from inquiring about, discussing, or disclosing the wages of the employee or another employee or from requesting that the employer provide a reason why the employee’s wages are a condition of employment. Employers are also prohibited from requiring an employee to sign a waiver or any other document with the intention to deny the employee the right to disclose or discuss the employee’s wages and from taking any adverse employment action against an employee for inquiring about wages, disclosing the employee’s own wages, discussing another employee’s wages if those wages have been disclosed voluntarily, asking the employer to provide a reason for the employee’s wages, or aiding or encouraging another employee’s exercise of rights under this section.

Voting Leave Required

Use of Facial Recognition Technology Prohibited

Effective October 1, 2020, HB 1202 prohibits the use of facial recognition technology during the job interview process without applicant consent through a signed waiver. The waiver must be written in plain language and contain the applicant’s name, the date of the interview, that the applicant consents to the use of facial recognition during the interview, and that the applicant consented to the waiver.

Prohibition against Hairstyle Discrimination

Effective October 1, 2020, HB 1444/SB 531 amends the Maryland Fair Employment Practices Act to expand the protection against race discrimination to include traits historically associated with race such as hair texture, afro hairstyles, and protective hairstyles including braids, twists and locks.

The law applies to employers in Maryland with 15 or more employees.

MASSACHUSETTS

Voting Leave Required

Employees in manufacturing, mechanical, or retail industries are entitled to up to two hours of unpaid voting leave unless they have at least two consecutive hours of non-working time before the opening of the polls. Eligible employees must provide a notice of request in advance of Election Day to be entitled to this voting leave.

Paid Leave for Veterans Day Activities

“The HOME Act,” an Act Relative to Housing, Operations, Military Service, and Enrichment, requires employers with 50 or more employees to grant a paid leave to qualifying veterans to participate in a Veterans Day exercise, parade, or service as long as reasonable notice is provided. Previous legislation requires all employers to provide paid or unpaid leave to qualified veterans to participate in a Veterans Day and Memorial Day exercises, parades, or services.

MINNESOTA

Voting Leave Required

Employees are entitled to paid voting leave for the time necessary to appear at their designated polling place, cast a ballot, and return to work.

MISSISSIPPI

Voting Leave Required

Employees are entitled to unpaid voting leave for the time necessary to appear at their designated polling place, cast a ballot, and return to work.

MISSOURI

Voting Leave Required

NEBRASKA

Voting Leave Required

Unless an employee has at least two consecutive hours in which to vote (either between the opening of the polls and the beginning of the employee’s shift or between the end of the regular shift and the closing of the polls), the employee is entitled to up to two hours of paid voting leave. If the polls are open before or after an employee’s work shift for fewer than two consecutive hours, then the employee is only entitled to an amount of time off that, when added to the time that the polls are open before or after work, totals two consecutive hours. Employers may decide when the voting leave is taken. In order to be paid for the leave, an employee must submit a request before the day of the election.

NEVADA

Voting Leave Required

If it is impracticable for an employee who is a registered voter to vote before or after work, the employee is entitled to paid voting leave. Employees who work two miles or less from a polling place may take up to one hour of paid voting leave. Employees who work two to ten miles from a polling place may take up to two hours of paid voting leave. Employees who work ten miles or more from a polling place may take up to three hours of paid voting leave. Employers may decide when the voting leave is taken. In order to be paid for the leave, an employee must submit a request before the day of the election.

NEW HAMPSHIRE

Veterans Day Off Law Reminder

Private employers in New Hampshire are required to permit honorably discharged veterans of the United States armed forces to take the day off on Veterans Day, even when the employer does not recognize the holiday. The employee must follow employer’s procedure for requesting time off in advance.

NEW JERSEY

Workers’ Comp Coverage Presumed for Essential Workers Who Contract COVID-19

Signed and effective September 14, 2020, essential workers who contract COVID-19 will be presumed to have done so at work unless there is demonstrable proof to the contrary, and will be entitled to workers compensation coverage and benefits for their illness. The law is retroactive to March 9, so essential workers who contracted COVID-19 during the past six months and used paid time off for COVID-19 absences during that time period may seek to recoup that time and receive workers’ compensation payments instead. Those essential workers who used emergency paid sick leave under the Families First Coronavirus Response Act (“FFCRA”) may now seek to cover those absences with workers compensation and therefore have FFCRA leave available if needed for future covered reasons.

The law applies to health care workers, public safety workers, and other essential employees. Health care workers include individuals employed by a health care facility, which is defined to include a facility providing any type of patient care. Public safety workers include any member, employee, or officer of a paid, partially paid, or volunteer fire or police department, force, company or district, a Community Emergency Response Team, a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic, or advanced medical technician. Other “essential workers” covered under the statute are those who are deemed essential by the Governor and those who work in positions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies needed for essential business operations.

Any benefits paid under the new law will not count toward an employer’s experience rating for workers’ compensation insurance premiums.

NEW MEXICO

New Mexico Employers Must Report COVID-19 Cases within Four Hours

Effective until December 3, 2020, employers in New Mexico must now contact the New Mexico Environment Department (NMED) within four hours of learning that an employee has tested positive for COVID-19. Cases must be reported via phone at 505-476-8700, via fax at 505-476-8734, or via email at NMENV-OSHA@state.nm.us.

After reporting a coronavirus-positive employee, employers can expect to be contacted by the NMED as part of its rapid response program. The agency will work with each reporting company to determine the level of response required.

Voting Leave Required

Unless an employee has at least two hours in which to vote before the opening of the polls or at least three hours before the closing of the polls, the employee is entitled to up to two hours of paid voting leave. Employers may decide when the voting leave is taken.

NEW YORK

Voting Leave and Notice Required

Unless an employee has at least four consecutive hours in which to vote (either between the opening of the polls and the beginning of the employee’s shift or between the end of the regular shift and the closing of the polls), the employee is entitled to up to two hours of paid voting leave. Employers may decide when the voting leave is taken. The employee must notify the employer of the need for time off at least two but not more than ten working days prior to the election.

Employers must post a conspicuous notice of employee rights at least ten days before Election Day. The notice can be downloaded at no cost here: Voting Notice to Employees.

NORTH DAKOTA

Voting Leave Encouraged

Employers are encouraged to give employees time off to vote when their regular work schedule conflicts with the times polls are open. The voting leave is not required to be paid.

OHIO

Voting Leave Required

Employees are entitled to a “reasonable time” of paid voting leave. The voting leave is paid only for exempt employees.

OKLAHOMA

Voting Leave Required

Unless an employee has at least three consecutive hours in which to vote (either between the opening of the polls and the beginning of the employee’s shift or between the end of the regular shift and the closing of the polls), the employee is entitled to up to two hours of paid voting leave. If the employee is at such a distance from the voting place that more than two hours are required, then the employee shall be allowed a sufficient time in which to cast a ballot. Employers may decide when the voting leave is taken. The employee must provide written or verbal notice one day before the election and must provide proof of voting. In lieu of voting leave, the employer may change the work hours to allow three hours before the beginning of work (or after the work hours) for the employee to cast a vote.

OREGON

Workplace Fairness Act Policy Requires Implementation and Distribution of Anti-Discrimination Policy

No later than October 1, 2020, Oregon employers must implement an expanded anti-discrimination policy under the Workplace Fairness Act. The new law applies to all businesses with at least one employee in Oregon. The Oregon Bureau of Labor and Industries (“BOLI”) recently published a model policy that addresses the requirements of the law, which includes a defined complaint process and designated primary and alternate persons to receive complaints. The model policy is available here: Template policy.

The new policy must be distributed to all current employees by October 1, 2020 and to all future new hires. It also must be given to any employee who discloses information regarding prohibited discrimination or harassment.

The BOLI has published answers to frequently-asked questions, available here: Employer and Employee FAQs.

Veterans Day Off Law Reminder

Employers in Oregon must give employees who are veterans time off for Veterans Day under Senate Bill 1.

Under the law, businesses must provide paid or unpaid time off for Veterans Day if the employee would otherwise be required to work on that day and the employee provides (a) at least three weeks’ notice that he or she intends to take time off for Veterans Day and (b) documents showing that he or she is a veteran as defined by Oregon statute.

To take leave under the law, the veteran must have served on active duty in the armed forces for at least six months and received an honorable discharge. If the individual served in a reserve or National Guard unit, the employee is not qualified for leave unless he or she was deployed or served on active duty for at least six months.

The company must notify the employee, at least 14 days before Veterans Day, whether he or she will receive time off for Veterans Day and whether the time off will be paid or unpaid. If the employer determines that providing time off on this holiday would cause significant economic or operational disruption or undue hardship, the employer is not required to comply with the law.

If the employer determines that — due to operational disruption — it cannot provide time off to veterans who request it, the employer must allow the workers to take a single day off within one year of that holiday in order to honor the employee’s military service.

PUERTO RICO

Workplace Bullying Law Adopted

Signed and effective August 7, 2020, House Bill 306 prohibits workplace bullying and provides remedies greater than those under local anti-discrimination statutes.

Under the new law, employers must prohibit all forms of harassment and bullying in the workplace and establish methods to address and investigate internal allegations. In general, the new law broadly defines prohibited conduct as malicious conduct that is unwanted, repetitive and abusive, arbitrary, unreasonable or capricious, not related to legitimate business interests, and that infringes on constitutionally protected rights, such as the protection against attacks to the employee’s reputation or private life, among others. The prohibited conduct can be verbal, written, or physical. Some of the examples provided include disregarding, in a humiliating way, an employee’s work-related opinions or ideas or imposing multiple disciplinary actions that are determined to be reckless.

House Bill 306 also provides that the immunity for workplace injuries will not apply when it is determined that the condition suffered by the employee was prompted by a pattern of workplace harassment.

Opposing or participating in investigations related to workplace bullying are considered protected activity under the new law.

Additional Adoption Leave for Working Mothers under Working Mothers Act Amendment

On August 8, 2020, the Working Mothers Act was amended to extend paid adoption leave benefits to five weeks for female employees adopting minors 6 years old or older, effective from the date the child is received in the family. This amendment does not change the existing eight weeks of paid adoption leave for mothers adopting a child 5 years old or younger who are not enrolled in school. Employees must provide 30 days’ notice to their employer of their leave request and intention to adopt a minor, as well as their return to work plans.

New Civil Code Goes into Effect in November

Effective November 28, 2020, Puerto Rico’s new civil code modifies terminology in order to make the law code more current and accessible, as well as incorporates legal decisions and opinions issued by both the Puerto Rico and U.S. Supreme Courts. The new Civil Code covers legal relations, family institutions, property rights, obligations, contracts, and estate rights.

Voting Leave

Election Day is a legal holiday in Puerto Rico, so most employees have the day off from work. Employers who are open on Election Day must establish shifts to allow employees to go to the polls between 8 a.m. and 3 p.m.

SOUTH DAKOTA

Voting Leave Required

TENNESSEE

Voting Leave Required

TEXAS

Voting Leave Required

UTAH

Voting Leave Required

WASHINGTON

Food Production Workers Entitled to COVID-19-Related Paid Leave

Effective August 18 through November 13, 2020, Proclamation 20-67 – also known as the Washington COVID-19 Food Production Workers Paid Leave Program, requires food production employers that operate orchards, fields, dairies, fruit- and vegetable-packing warehouses, meat and seafood processors and packers, certain farm labor contractors, and other specified industries to provide its workers with paid leave for certain qualifying events.

Washington-based seasonal, migrant, and temporary foreign workers who are lawfully present in the United States to perform agricultural labor or services of a temporary or seasonal nature would be eligible for the leave. Employer’s immediate family members and workers who are subject to and provided leave under the federal Families First Coronavirus Response Act are exempted from the Proclamation.

Applicable workers are eligible to use paid leave for the following reasons:

Subject to a federal, state or local quarantine or isolation order related to COVID-19.
Advised by a healthcare official or provider to self-quarantine or self-isolate due to concerns related to — or a positive diagnosis of — COVID-19.
Prohibited from working due to health concerns related to the potential transmission of COVID-19.
Experiencing COVID-19 symptoms and seeking a medical diagnosis.

Full-time workers are entitled to receive up to 80 hours of paid leave for a qualifying reason. Employers must substitute this paid leave with any other paid sick leave provided (such as Washington statutory paid sick leave) if that leave is immediately and similarly available. Part-time workers are entitled to receive paid leave equal to the hours they are normally scheduled to work during the preceding two-week period. If workers work a variable number of hours, employers must provide them 14 times the average number of hours the worker worked each day in the period preceding the date of paid leave.

Each hour of the paid leave must be compensated at a rate of $430 for 40 hours, up to a maximum of $860 for 80 hours.

Employers may not retaliate against or take adverse employment actions against a worker or employee for exercising or seeking to exercise rights under the proclamation.

WEST VIRGINIA

Voting Leave Required

Employers in essential government, health, transportation, and communication services and in production, manufacturing, and processing facilities may change the employee’s schedule so that time off does not adversely impact essential operations.

WISCONSIN

Voting Leave Required

Employees are entitled to up to three hours of unpaid voting leave. Employers may decide when the voting leave is taken. Employee requesting leave must provide notice before Election Day.

WYOMING

Voting Leave Required

SEPTEMBER 2020 LEGAL UPDATE

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