JULY 2020 LEGAL UPDATE

JULY 2020 LEGAL UPDATE

FUTURE COMPLIANCE DATES 

JULY 31, 2020 (if on a calendar plan year): Form 5500 Due

Group plans with 100 or more participants must file Form 5500 annually, by the last day of the 7th month following the end of the plan year. Outside of a few exceptions, all group health plans subject to ERISA are required to file a form 5500 when they have 100+ participants at the beginning of the plan year. Most 401(k) plans, regardless of size, are required to file form 5500. For a list of exceptions and additional information, click here to visit the IRS 5500 Center. If an extension is obtained, forms are due by October 15, 2020.

JULY 31, 2020: PCORI Fee Due

July 31, 2020 is the deadline for payment of the Patient Centered Outcomes Research Institute (“PCORI”) fee. The amount of the PCORI fee is equal to the average number of lives covered during the policy year or plan year multiplied by the applicable dollar amount for the year. The fee is $2.45 per covered person for plan years ending between January 1, 2019 and September 30, 2019. The fee is $2.54 per covered person for plan years ending on or after October 1, 2019 and before January 1, 2020. Click here to access the form: IRS Form 720.

Note that PCORI fees for plans with effective dates starting on or after October 1, 2019 had been scheduled to expire. However, it has been announced that PCORI fees will now apply for the 2020-2029 fiscal years.

JULY 31, 2020: Form 941 Due

Form 941, the employer’s quarterly tax return, is due July 31 for second quarter April 2020 through June 2020. See article below regarding revised Form 941 and instructions.

SEPTEMBER 30, 2020: VETS-4212 Report Due

The 2020 filing period for the VETS-4212 is set to start on August 1, 2020 and 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.

Note: 2020 information has not yet been posted on the DOL website. Updates will be included in future Legal Updates as they become available.

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. State primary election days vary, and some state primary election dates (see calendar) have been postponed from the original date scheduled. Confirm your state’s primary election date to prepare for voting leave and notifications, if needed. Refer to our March Legal Update for state-specific requirements.

FEDERAL COMPLIANCE UPDATES

REVISED FORM 941 INCLUDES GUIDANCE FOR EMPLOYERS

The IRS has released a revised version of Form 941 for the second quarter of 2020, along with a revised set of accompanying instructions, to provide additional information to employers about claiming COVID-19-related employment tax benefits available under the Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security (CARES) Act.

FICA taxes are imposed on both employers and on employees’ wages at a rate of 6.2 percent for the Social Security Tax and 1.45 percent for the Medicare Tax. The CARES Act allows an employer to defer payments of the employer portion of the Social Security Tax. The deferral applies to deposits and payments of the employer’s share of Social Security tax that otherwise would be required to be made during the period beginning on March 27, 2020, and ending December 31, 2020. Half of the deferred taxes must be paid by December 31, 2021, and the other half must be paid by December 31, 2022. Click here to access the 941 Form and Instructions.

In circumstances where the amount of credits available using the Form 941 are insufficient to meet the employers actual FFCRA costs, employers have the option to submit a Form 7200 requesting advance credits. Click here to access the Form 7200 and Instructions.  

NEW PPP LOAN FORGIVENESS FORMS AVAILABLE

The U.S. Small Business Administration (“SBA”) and U.S. Treasury Department have issued new forms and guidelines regarding the Payroll Protection Program (“PPP”) and the Paycheck Protection Program Flexibility Act (“PPPFA”). The new resources include a revised loan forgiveness application, as well as a simplified form for borrowers that meet one of the following criteria:

  • They are self-employed and have no employees.
  • They did not reduce employee wages by more than 25 percent and did not reduce employee headcount or hours.
  • They experienced reductions in business activity as a result of health directives related to COVID-19 and did not reduce employee wages by more than 25 percent.

Both applications give employers the option of using funds in the original eight-week period, if their loan was made before June 5, or the extended 24-week period. 

For the standard PPP Loan Forgiveness Application, click here: PPP Forgiveness Application. For the simplified loan application, click here: PPP Forgiveness Application 3508EZ. For guidance from the SBA and Department of Treasury, click here: PPP Guidance.

FREE ONLINE PPP FORGIVENESS CALCULATOR AVAILABLE

The American Institute of Certified Public Accountants (“AICPA”) has created a free PPP Forgiveness Calculator put out by that is linked to all approved PPP lenders.

Employers or their tax advisers can use the tool to fill out the PPP Forgiveness applications. The tool will produce the required government forms automatically.  Employers will be able to electronically sign the SBA Form 3508PPP Loan Forgiveness Calculation Form, or Form 3508EZ, and the documents will be saved into a downloadable file that can then be provided to PPP lenders.

To access the tool, click here: PPP Forgiveness Tool. For instructions and guidance on the tool, see the four-minute demo video AICPA created here: PPP Forgiveness Tool Demo Video.

Please let HR Service know if you need assistance with your PPP questions or loan forgiveness applications at: (833) 685-8400 x 1 or Solutions@hrserviceinc.com.

DOL RELEASES UPDATED COBRA MODEL NOTICES AND FAQS

The DOL has released updated COBRA model notices and answers to frequently asked questions. The updated model notices and FAQs can be found on the DOL’s COBRA Continuation Coverage webpage.

NEW FMLA FORMS

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) recently released revised optional forms that employers and workers can use when applying for and coordinating leave under the Family and Medical Leave Act (“FMLA”).

Updates to the forms include fewer questions that require written responses, replaced by responses that can be completed by checking a box. The revised forms also include electronic signature features so they can be completed and saved electronically. To download the updated forms and answers to frequently asked questions, see FMLA forms and FAQs.

WHD announced that it will publish a Request for Information (RFI) in the Federal Register seeking the public’s feedback on any specific challenges or best practices in the use or administration of FMLA leave.

RENEWED USE OF FORM 1099-NEC

The IRS has reinstated the use of a tax form not used since 1982 called the 1099-NEC. This form now requires employers to report non-employee compensation and federal and state income tax withholdings for those payments separately, instead of reporting them on Form 1099-MISC.

Payments that meet all four of the below criteria must now be reported on Form 1099-NEC

  1. Made to someone who is not your employee;
  2. For services in the course of your trade or business;
  3. Made to an individual, partnership, estate or in some cases, a corporation; and
  4. Payments to a payee total at least $600 in a calendar year. 

If an employer withheld federal income tax from an individual under backup withholding rules, even if less than $600, a Form 1099-NEC must be filed as well.  

Gross proceeds to an attorney and payments for merchandise and rental payments should still be reported on a Form 1099-MISC

The established deadline to mail the Form 1099-NEC and Form 1099-MISC is January 31, and they must be filed by January 31 and March 31 respectively. However, the IRS has provided an extension for tax year 2020 for the mailing of the Form 1099-MISC to recipients is February 16, 2021.  

For additional details and instructions, click here: Form 1099 instructions.

ENTRY OF NON-IMMIGRANT WORKERS SUSPENDED THROUGH END OF 2020

Effective June 24, 2020 though the end of 2020, the Proclamation Suspending Entry of Aliens who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak bans the issuance of H-1B, H-2B, L-1, and J-1 visas, as well as H-4 visas for spouses of H-1B holders. 

The Executive Order only applies to foreign nationals who are currently outside the US and who do not already have a valid non-immigrant visa stamp. Therefore, the order does not affect those foreign national workers and their spouses who are already in the U.S. in valid nonimmigrant visa status. The order includes an exemption for health care workers focused on treating and researching COVID-19 and those working in the nation’s food supply chain.

The order also extends through December 31st a ban on green cards that was enacted in April. 

ADDITIONAL GUIDANCE ISSUED ON RETIREMENT PLAN ADMINISTRATION

The IRS recently issued additional guidance in several Notices regarding applicable 401(k), 403(b), and IRA plans subject to changes under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Notice 2020-50

Through the end of 2020, the CARES Act allows a hardship withdrawal for participants in 401(k)-type plans or IRAs who are affected by COVID-19. Coronavirus-related distributions (“CRDs”) up to $100,000 are not subject to the 10 percent early-distribution penalty and may be repaid over three years.

Notice 2020-50 expands the eligibility categories for such withdrawals to include individuals who experience adverse financial consequences due to COVID-19 through a reduction in pay; having a job offer rescinded; having a start date for a job delayed; a spouse or a member of the individual’s household being quarantined, furloughed or laid off; having work hours reduced; being unable to work due to lack of child care, or the closing of a business they own and operate.

The Notice also provides sample language of an acceptable certification for employers and individuals to use for documentation and clarifies how to treat a CRD for tax purposes. 

Notice 2020-51

Notice 2020-51 provides guidance on the waiver of 2020 required minimum distributions (RMDs) under the CARES Act, which suspended RMDs for defined contribution plans and IRAs for calendar year 2020. The notice includes a sample plan amendment that plan sponsors can adopt to implement the 2020 RMD waiver. It also addresses the extension of the 60-day deadline to August 31, 2020 to roll over funds to another qualified retirement plan as a result of RMDs already made in 2020 that were subsequently not required under the CARES Act. Lastly, it covers the transitional relief related to the change in the required beginning date for RMDs from age 70 1/2 to age 72.

Notice 2020-52

Notice 2020-52 provides guidance that clarifies for plan sponsors of 401(k) and 403(b) plans that a mid-year amendment which only reduced contributions to a highly compensated employee (“HCE”) is not a safe harbor contribution change. Such changes do require an updated safe harbor notice. 

A plan may be amended to reduce or suspend safe harbor contributions between March 13, 2020, and August 31, 2020 without requiring economic loss or language in the annual safe harbor notice allowing such a mid-year change. Such an amendment may also be made without 30 days’ advance notice, as long as the amendment is effective on a prospective basis and an updated safe harbor notice is provided no later than August 31, 2020. 

For additional details, see Notice 2020-50, Notice 2020-51 and Notice 2020-52.

HEALTH CARE NONDISCRIMINATION NOTICE REQUIREMENT REMOVED

Effective August 18, 2020, changes to the ACA’s Section 1557 end the requirement to issue health care nondiscrimination statements or taglines in all “significant communications” to patients and customers. Section 1557 provides protection to covered individuals so health coverage may not be denied, cancelled, limited or refused on the basis of race, color, national origin, sex, age, or disability. 

GUIDANCE ISSUED ON QUALIFIED SICK & FAMILY LEAVE WAGES REPORTING

The Treasury Department and the Internal Revenue Service recently released Notice 2020-54, which provides guidance to employers regarding the reporting of qualified sick leave and family leave wages paid to employees under the Families First Coronavirus Response Act (“FFCRA”) on Form W-2. In addition to including qualified leave wages in the amount of wages reported in Boxes 1, 3, and 5 of Form W-2, employers must also report the qualified family leave and sick leave wages either in Box 14 of Form W-2 or on a separate statement. 

Qualified family leave wages paid under the FFCRA to employees who were unable to work or telework due to school closures or unavailable childcare (up to ten weeks of pay) must be labeled as “emergency family leave wages” or similar language in Box 14 or on a separate statement.

Qualified sick leave wages paid to an employee who was subject to a quarantine or isolation order, advised by a healthcare provider to self-quarantine due to COVID-19 concerns, or seeking a diagnosis related to COVID-19 symptoms must be labeled as “sick leave wages subject to the $511 per day limit.” Qualified sick leave wages paid to care for a family member or the first two weeks of paid sick leave to care for a child due to school closures or unavailable childcare must be labeled as “sick leaves wages subject to the $200 per day limit.”

Employees who also have self-employment income will then use the information to complete Form 7202, Credits for Sick Leave and Family Leave for Certain Self-Employed Individuals.

For additional details and model notice language, see Notice 2020-54.

NEW VOLUNTARY SELF-IDENTIFICATION OF DISABILITY FORM

Effective August 4, 2020, a new Voluntary Self-Identification of Disability form is available for federal contractors to use for employees (at least once every five years), applicants, and new hires to self-identify as having a disability.

The new self-identification form is valid until May 31, 2023, and contractors have until August 4, 2020, to update their processes to incorporate this new version.

To download the revised form, click here: Self-Identification Form. For additional details, see Self-Identification FAQs.

OSHA ISSUES COVID-19 RELATED FAQS AND GUIDANCE

On July 2, 2020, OSHA published responses to Frequently Asked Questions regarding COVID-19. The FAQs provide links to a number of employer and employee resources related to workplace safety and health topics.

OSHA also recently issued guidance on returning to work that includes nine areas that reopening plans should address:

  • Hazard assessment, or looking for when, where and how workers are likely to be exposed to the coronavirus on the job.
  • Hygiene, including hand hygiene, respiratory etiquette, and cleaning and disinfection.
  • Social distancing or looking for ways to maintain distance between people at work, using 6 feet as a rule of thumb.
  • Identification and isolation of sick employees.
  • Policies for returning to work after illness or exposure.
  • Controls, including engineering and administrative controls, safe work practices, and personal protective equipment selected as a result of an employer’s hazard assessment.
  • Workplace flexibilities around telework and sick leave.
  • Training on the signs, symptoms and risk factors associated with COVID-19 and how to prevent its spread.
  • Anti-retaliation policies that ensure that no adverse action is taken against an employee who raises workplace safety and health concerns.

REMOTE FORM I-9 DOCUMENT REVIEW APPROVAL 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 August 19, 2020.

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.

Employers who make use of the exception must provide written documentation of their remote onboarding and telework policy for each employee.

DOL ISSUES ADDITIONAL GUIDANCE ON COVID-19 TESTING COVERAGE

The Department of Labor (“DOL”) recently released guidance that clarifies the COVID-19 testing coverage requirements of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

The guidance includes information about the distinction between “diagnostic” COVID-19 tests and “screening” tests taken for return-to-work or public health purposes. Answers to frequently asked questions (FAQs) also address notice requirements, telehealth coverage, and the interaction of COVID-19 emergency relief with existing benefits laws. For additional details, see DOL Guidance.

RELIGIOUS-SCHOOL EXEMPTION EXPANDED

In the case Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court expanded the ministerial exception of a religious organization when they ruled that two elementary school teachers at religious schools could not pursue their claims of age and disability discrimination.

The ruling was based on the court’s decision that employees such as teachers who hold important positions cannot sue their employers because of the First Amendment’s freedom of religion clauses. Attorneys note that the ruling does not necessarily mean that all teachers at religious schools are covered by the ministerial exception. The court instead looked at what an employee does and was less focused on his or her title.

SUPREME COURT UPHOLDS ACA CONTRACEPTIVE OPT-OUT EXPANSIONS

In the cases Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania, the U.S. Supreme Court has ruled that the Trump administration had the authority to expand employers’ ability to claim an exemption from the Affordable Care Act (ACA)’s contraceptive mandate on the basis of either moral convictions or religious beliefs.

The ACA mandate originally included exemptions for religious employers and accommodation for certain other closely-held corporations with religious objections to providing contraceptive care for employees. In November 2018, the Trump administration’s Health Resources and Services Administration issued final regulations making the employer exemption available to additional employers based on sincerely held religious beliefs and moral objections.

STLDI Rule Upheld

The U.S. Court of Appeals for the District of Columbia Circuit recently upheld the final regulations that increased the availability of short term, limited duration insurance (“STLDI”). The regulations extended the period for which STLDI may be offered to 12 months, allowing it to be renewed twice for a total duration of up to three years.

GUIDANCE ON FFCRA LEAVE DUE TO SUMMER CAMP CLOSURES

Under the FFCRA, employees who work for companies with fewer than 500 employees are entitled to take up to 12 weeks of paid leave at 2/3 of their rate of pay when they are unable to work or telework due to the need to care for a child whose school or place of care is closed due to COVID-19 restrictions. The Department of Labor has provided guidance that clarifies that FFCRA leave also applies when an employee is unable to work because they need to care for a child who otherwise would be attending summer camp or a similar place of care. The leave is limited to a total of 12 weeks, even if school or summer care program closures extend beyond 12 weeks.

Employees requesting leave to care for a child based on the closure of a summer camp or similar summer program must provide the name of the camp or program that would have been the place of care had it not been closed, the name of the child, and a statement that no other suitable person is available to provide care.

For additional details, see Field Assistance Bulletin 2020-4.

UPDATES REGARDING PPP, FFCRA AND CARES ACT

In previous Legal Updates, we provided an overview of the provisions of the Payroll Protection Program (“PPP”) and Paycheck Protection Program Flexibility Act (“PPPFA”), Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. Since then, various federal agencies have released documents that provide additional information and clarifications. Check these documents frequently, as they continue to be updated regularly.

STATE COMPLIANCE UPDATES

Note: State and local ordinances are changing rapidly, particularly in regards to COVID-19. Since this Legal Update is distributed on a monthly basis, also consult your state’s health department website, labor department website, and other relevant resources frequently for the most up-to-date information.

CALIFORNIA

“Red Flag” Law Expanded to Broaden Who Can Apply for GVRO

Effective September 1, 2020, provisions of Assembly Bill 61 expands California’s existing “red flag law,” which allows certain entities and/or individuals to obtain gun violence restraining orders (“GVRO”) to remove firearms from an individual deemed by the courts to be a threat to themselves or others.

The new law broadens the classes of individuals who may apply for a GVRO to include employers, coworkers and teachers — subject to certain conditions. Existing law only authorizes immediate family members, roommates, or law enforcement to petition the court for a GVRO.

CalSavers Deadline Extended

The deadline for employers to offer a qualified retirement plan or register to participate with CalSavers has been moved back due to COVID-19. For employers with more than 100 employees, the deadline has been extended from June 30, 2020 to September 30, 2020. For employers with between 51 and 100 employees, the deadline is June 30, 2021. For employers with between 5 and 50 employees, the deadline is June 30, 2022.

CONNECTICUT

Harassment Training Required by October 1

Originally enacted in June 2019, Connecticut’s Time’s Up Act requires all Connecticut employers – regardless of size – to provide sexual harassment training to supervisors. Employers with at least three employees must also provide the training to all other employees.

No later than October 1, 2020, all employers in Connecticut will have to provide sexual harassment training to all supervisors. Thereafter, the training must be provided within six months of assignment of supervisory duties. Employers with at least three employees must also provide training to all other employees by October 1, 2020. Thereafter, training must be provided within six months of hire.

The Commission on Human Rights and Opportunities (“CHRO”) has developed an online training and education video available to employers at no cost, available here: Training Video.

Under current law, employers with at least three employees must post a notice – available here: CT Sexual Harassment is Illegal poster. Under the new law, employers must also provide a copy of that information no later than three months after the employee’s start date. Employers may send the information to each employee by email to employees’ company-provided email accounts or employees’ personal email addresses with a subject line that includes the words “Sexual Harassment Policy” or similar words. Employers may instead post the information on the employer’s web site and provide employees with the link to the website by email, text message, or in writing.

For additional information including Spanish-language poster, answers to frequently-asked questions, written materials and more, see CHRO Sexual Harassment Prevention Resources.

ILLINOIS

Model Training Program Now Available for Prevention of Sexual Harassment

The Illinois Human Rights Act (“IHRA”) requires Illinois employers to provide annual sexual harassment prevention training to all employees no later than December 31, 2020 and at least once each year starting in 2021. Because employers are liable for harassment by non-employees performing services for the employer under contract, it is recommended that employers also provide sexual harassment prevention training to contractors and consultants.

The required training must include an explanation of sexual harassment; examples of unlawful conduct; a summary of relevant federal and state statutes and remedies available under the statutes; and a summary of employer responsibilities for preventing, investigating, and correcting sexual harassment.

The Illinois Department of Human Rights (IDHR) has released a model training program that meets all of the requirements. Employers can choose to use the IDHR’s model program or to implement their own sexual harassment prevention training program, provided the training meets the standards.

Documentation of completed training should include the names of employees trained, date(s) of training, sign-in worksheets, copies of certificates of participation, copies of all written or recorded training materials, and the name of the training provider.

In addition, the IHRA requires a supplemental training program for sexual harassment prevention tailored to the restaurant and bar industries. The IDHR has not yet released this supplemental model training. Links to that training will be provided in future Legal Updates once available.

Chicago Paid Sick Leave Ordinance Amended

Effective July 1, 2020, amendments to Chicago’s Paid Sick Leave Ordinance (“PSLO”) expand the scope of employers and employees covered by the law. 

An employer is now defined as a person who gainfully employs at least one employee. The definition no longer includes the requirement that the employer maintain a business facility within the geographic boundaries of the City of Chicago or is subject to one or more licensing requirements.

The definition of a covered employee still includes the requirement that the employee, in any particular two-week period, perform at least two hours of work for an employer while physically present within the geographic boundaries of the city. This includes compensable time spent traveling in the city, such as for deliveries, sales calls, and travel related to other business activity.  That definition includes an outside salesman, a member of a religious corporation or organization, a student attending and employed by an accredited Illinois college or university, a motor carrier regulated by the U.S. Secretary of Transportation or the State of Illinois, and all domestic workers including those employed by employers with fewer than four employees.

Covered employers are required to provide a notice to employees either in the form of an 11×17-inch paper posting or email or other internal communication channels. Download the notice here: Posting Notice. That same notice must also be provided annually with a covered employee’s first paycheck issued on or after July 1, printed on 8.5 x 11-inch paper. This requirement is waived if the employee has elected direct deposit.

Employers must maintain documentation related to paid leave for no less than five years, including whether an employee is tipped, non-tipped, or performs duties of both. There are additional recordkeeping requirements for tipped employees.

The Business Affairs and Consumer Protection agency has also published answers to frequently-asked questions related to the PLSO, available here: PSLO FAQs.

LOUISIANA

Access to Medical Marijuana Expanded

Effective August 1, 2020, an amendment to Louisiana’s medical marijuana law allows any licensed physician in Louisiana to prescribe medical marijuana “for therapeutic use to any patient clinically diagnosed as suffering from a debilitating medical condition.” This substantially expands eligibility beyond the previous specified list of illnesses and conditions.

Two additional laws regarding medical marijuana also go into effect August 1, 2020. House Bill 418 provides immunity from prosecution to any licensed facility that has patients in its care using medical marijuana and to physicians who prescribe medical marijuana to their patients. House Bill 211 facilitates the provision of financial services to state-licensed cannabis businesses and prohibits penalizing state banks and credit unions who provide such financial services.

Non-Compete Law Expanded

Effective August 1, 2020, Louisiana’s non-compete agreement law is expanded to now apply to cover partnerships, franchises, corporations and limited liability corporations. In addition, a person who signs a non-compete agreement can be restricted from engaging in a similar business within a specific area and for a specified period of time.

MINNESOTA

Minnesota Supreme Court Upholds Minneapolis Sick and Safe Ordinance

In the court case Minnesota Chamber of Commerce, et al. v. City of Minneapolis, the Minnesota Supreme Court upheld the Minneapolis Sick and Safe Time Ordinance. In the ruling, the state Supreme Court found that state law does not preempt the Ordinance and that it can apply to employers who are located outside of the City. 

NEW JERSEY

New Misclassification Posting Required

Employers who operate in New Jersey must display a posting from the New Jersey Department of Labor and Workforce Development regarding the misclassification of independent contractors. The notice can be downloaded at no cost here: NJ Notice.

NEW YORK

State-Wide Paid Sick Leave Law Enacted

Effective September 30, 2020, a new state-wide paid sick leave law requires employers with any employees in New York to provide paid sick leave based on the company size. This is separate from the more recent Covid-19 related New York State Quarantine Leave Law. Employers with 100 or more employees must provide 56 hours of paid sick leave per calendar year. Employers with at least five but fewer than 100 employees must provide 40 hours of paid sick leave. Employers with fewer than 5 employees and a net income of less than $1 million must provide at least 40 hours of unpaid time. Employers with existing sick leave or time off policies that provide employees with leave that meets or exceeds the requirements of the new law are not required to provide additional sick time.

Headcount is determined based on a calendar year, but the law does not specifically address whether multistate employers should count employees outside of New York in determining an employer’s size.

While accrual of the new paid sick leave begins September 1, employers are not obligated to allow use of sick leave until January 1, 2021. Unused sick leave must be carried over to the next calendar year, but the employer may limit the amount of sick leave that may be used in a calendar year to 40 hours for employers with fewer than 100 employees and to 56 hours for employers with 100 or more employees. Employers are not required to pay an employee for unused sick leave upon their separation of employment.

Upon request, employers must provide a summary of the amount of sick leave accrued and used by the employee within three business days of the request. Employers must maintain records regarding the amount of sick leave provided to employees for at least six years.

Human Rights Law Statute of Limitations Period Extended

Effective August 12, 2020, the statute of limitations to file a complaint of sexual harassment under the New York State Human Rights Law (“NYSHRL”) is extended to three years. Discrimination and other types of harassment claims under the NYSHRL continue to be subject to a one-year statute of limitations.

Safety-Sensitive Exception for Pre-employment Marijuana Tests Clarified

Effective July 24, 2020, a final rule issued by the New York City Commission on Human Rights adds exceptions to the general prohibition on pre-employment testing for marijuana or tetrahydrocannabinols (THC). The rule establishes that certain types of positions are deemed to significantly impact the health or safety of employees or members of the public and are, therefore, exempt from the prohibition on drug testing. Such safety-sensitive positions include those requiring an employee to:

  • Work on an active construction site regularly or within one week of beginning employment;
  • Operate heavy machinery regularly; or
  • Operate a motor vehicle on most work shifts.

SOUTH CAROLINA

Lactation Support Act Enacted

Effective June 25, 2020, the South Carolina Lactation Support Act requires employers to provide employees reasonable unpaid break time, or paid break time or mealtime, to express breast milk. If possible, the break time should run concurrently with any break time already provided, and the employee must make reasonable efforts to minimize disruption to the employer’s operations. The Act does not require an employer to provide break time if doing so would create an undue hardship on the operations of the employer.

Under the Act, employers must also make reasonable efforts to provide a room or other location (other than a toilet stall) in close proximity to the work area for an employee to express milk in privacy. They are not, however, required to construct a permanent, dedicated space for expressing milk.

In addition, employers are required to post the notice provided on the South Carolina Human Affairs Commission (“SCHAC”) website, available here: SCHAC Posting. Additional information can be found on the SCHAC website, linked here: SCHAC website.

Federal laws require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth.” However, the federal law only requires that employers provide breaks to non-exempt employees, as defined by the FLSA, to express milk; exempt employees are not entitled to such breaks. The South Carolina Lactation Support Act fills the gap between exempt and non-exempt employees, providing protection for all employees who seek to express breast milk while at work.

TENNESSEE

Tennessee Pregnant Workers Fairness Act

Effective October 1, 2020, Tennessee Pregnant Workers Fairness Act (Senate Bill 2520) requires every employer with at least 15 employees to make a reasonable accommodation for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions, unless such accommodation would impose an undue hardship on business operations.

Under the new law, no covered employee can be required to take leave because of medical needs arising from pregnancy, childbirth, or related medical conditions if another reasonable accommodation would be possible. Further, an employer may not take any adverse action against the employee for requesting or using a reasonable accommodation under these circumstances, including, but not limited to, counting an absence related to pregnancy under a no-fault attendance policy.

If medical certifications are required of other employees needing an accommodation, then the employer may require an employee with a pregnancy or childbirth-related medical condition to also provide certification from a healthcare professional to support any request for accommodation.

Conversely, the law also states that it does not provide protections greater than those afforded to other employees who might require reasonable accommodation.

VIRGINIA

New State OSHA Standard for COVID-19

Effective upon publication at the end of July, a new standard that addresses COVID-19 in workplaces applies to most private employers in Virginia as well as all state and local employees.

Virginia Occupational Safety and Health (VOSH), the state’s version of the Occupational Safety and Health Administration (OSHA), will enforce a standard that mandates and, in some instances, exceeds guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and OSHA. Virginia is a “State Plan” state that operates its own occupational safety and health program under an OSHA grant.

The standard includes provisions that require employers to:

  • Provide flexible sick leave policies, telework and staggered shifts when feasible;
  • Provide both handwashing stations and hand sanitizer when feasible;
  • Assess risk levels of employers and suppliers before entry;
  • Notify the Virginia Department of Health of positive COVID-19 tests;
  • Notify VOSH of three or more positive COVID-19 tests within a two-week period;
  • Assess hazard levels of all job tasks;
  • Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
  • Prepare infectious disease preparedness and response plans within 60 days;
  • Post or present agency-prepared COVID-19 information to all employees;
  • Maintain air handling systems in accordance with manufacturers’ instructions and American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers standards; and
  • Provisions of CDC and OSHA guidance.

Private and public institutions of higher education with re-opening plans certified by the State Council of Higher Education in Virginia and public school divisions that submit re-opening plans to the Virginia Department of Education are exempted from the new standards.

The emergency standard is set to expire within six months or upon expiration of the Governor’s State of Emergency or the enactment of a permanent standard.

New Pay Transparency Law Enacted

Effective July 1, 2020, a new pay transparency law prohibits employers from discharging or taking any other retaliatory action against an employee for discussing wages or compensation with another employee.

Employees are protected when they inquire about, discuss or disclose information about their own or any other employee’s wages, or when they file a complaint with the Department of Labor alleging a violation of this law.

The new law does not apply to employees who have access to confidential compensation information as part of their essential job functions who disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless that disclosure is in response to a formal complaint or charge; made in connection with an investigation, proceeding, hearing or action; or is consistent with a legal duty to disclose the information.

Requiring Marijuana Possession Disclosure Now Prohibited

Effective July 1, 2020, a new Virginia law prohibits employers from requiring job applicants to disclose information related to past criminal charges for simple marijuana possession of up to one ounce of marijuana.

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