OCTOBER 2020 LEGAL UPDATE

FUTURE COMPLIANCE DATES

NOVEMBER 3, 2020: 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 the “State Compliance Updates” section below for any state requirements. Employers should review voting laws in the states where they have teleworkers.

NOVEMBER 11, 2019: Veterans’ Day

Employers in Iowa, Massachusetts, New Hampshire and Oregon may be required to provide eligible veterans with time off on Veterans Day. See details below in the respective state section. Employers in states where time off is not required may choose to implement a similar policy.

DECEMBER 31, 2019 (if on a calendar year plan): 125 POP & FSA Testing

Employers who offer a 125 Premium Only Plan or Flexible Spending Account must conduct nondiscrimination testing as of the last day of their plan year to ensure that benefits are available to all eligible employees under the same terms. A good practice is to test the plan after open enrollment is complete and again at the end of the plan year. Early testing allows for modifications in plan design should discrimination testing result in a fail.

FEDERAL COMPLIANCE UPDATES

CDC EXPANDS DEFINITION OF “CLOSE CONTACT”

On October 21, 2020, the CDC issued new guidance expanding the definition of a “close contact” from someone who has been within 6 feet of a COVID-19 positive person for 15 minutes or more to:

“Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes).”

The CDC guidance provides other factors to consider when defining close contact for the purpose of contact tracing:

proximity (closer distance likely increases exposure risk);
the duration of exposure (longer exposure time likely increases exposure risk);
whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding);
if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting); and
other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).

For additional details and other CDC definitions of key terms, see CDC Guidance.

WORK-RELATED COVID-19 DEATHS MUST BE REPORTED WITHIN 8 HOURS

According to OSHA guidance updated on September 30, 2020, employers must report a work-related COVID-19 employee death to OSHA within eight hours of learning about it. In order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to the virus at work.

The new guidance also stated that employers must report in-patient hospitalizations related to workplace exposure to OSHA if the hospitalization occurs within 24 hours of the exposure to the virus.

CLARIFICATION OF MEDICARE PART D NOTICE REQUIREMENTS

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 eligible for Medicare 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.

Plan sponsors may either use the federal Centers for Medicare & Medicaid Services (“CMS”) model notices found here or other notices that meet prescribed standards, including the Medicare Part D notice contained within the all-in-one Employee Notification service provided by HR Service.

Plan sponsors must also report the creditable coverage status of their prescription drug plan to the CMS annually no later than 60 days from the beginning of a plan year (contract year, renewal year), within 30 days after termination of a prescription drug plan, or within 30 days after any change in creditable coverage status. This status must be reported using the Online Disclosure to CMS Form.

CLARIFICATION ON SUMMARY ANNUAL REPORT REQUIREMENTS

Employers who are required to file a Form 5500 for their sponsored health 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 if a filing extension was granted.

The SAR is a summary of the Form 5500. It must be provided to each plan participant covered under the plan during the applicable plan year, including COBRA participants and terminated employees who were covered under the plan.

The SAR can be distributed via hand delivery, U.S. mail, or electronic delivery. Electronic delivery must meet the following Department of Labor rules:

Employers can electronically deliver the SAR to employees with “regular access” to electronic media at work if they accompany the SAR with a notice that briefly describes the document, how it can be accessed, a statement that employees have the right to request a paper copy, and an explanation of the procedure for updating the employee’s email address.
Employers cannot electronically deliver the SAR to individuals without regular access to electronic media at work unless the individual affirmatively consents to electronic distribution beforehand. Before obtaining consent, the employer must provide a statement of the types of documents that will be sent electronically, the individual’s right to withdraw consent and the procedure for doing so, the procedure for updating the individual’s email address, the individual’s right to obtain a paper copy, and a description of the necessary hardware and software requirements to access the SAR. Some employers include this consent in off-boarding or leave paperwork so that they can send terminated employees certain documents, including the SAR, electronically.

Employers who sponsor a group welfare plan generally must file Form 5500 and corresponding SAR if:

The plan is fully insured and had 100 or more participants on the first day of the plan year. (Dependents are not considered “participants” for this purpose unless they are covered because of a qualified medical child support order.)
The plan is self-funded and uses a trust, no matter how many participants it has.
The plan is self-funded and relies on the Section 125 plan exemption, if it had 100 or more participants on the first day of the plan year.

There are several exemptions to Form 5500 and SAR filing, including:

Church plans defined under ERISA Section 3(33).
Governmental plans, including tribal governmental plans.
Top hat plans which are unfunded or insured and benefit only a select group of management or highly compensated employees.
Small insured or unfunded welfare plans (A welfare plan with fewer than 100 participants at the beginning of the plan year is not required to file an annual report if the plan is fully insured, entirely unfunded, or a combination of both).

A plan is considered unfunded if the employer pays the entire cost of the plan from its general accounts. A plan with a trust is considered funded. If the employer pays the cost of the plan from general assets, then it is considered unfunded and essentially there is no trust. If the employer pays the cost of the plan from a specific account (in which plan participant contributions are segregated from general assets), then the plan is considered funded.

ACA DEADLINES PUSHED BACK

As it has for the past four years, the Internal Revenue Service has extended the original deadline for distributing ACA information reporting forms to employees. As a result, applicable employers must provide employees with a copy of their 1095-C reporting form or distribute or make available 1095-B reporting forms no later than March 2, 2021.

Organizations which had 50 or more full-time (including full-time equivalent) employees during 2019 must distribute 1095-C forms by this deadline. Organizations with fewer than 50 full-time employees that offered coverage that was self-funded or level-funded must make 1095-B forms available to participating employees by then as well. Since the federal individual health coverage mandate has been struck down, individuals will not need Forms 1095-B to prove minimal essential health coverage for 2020. (NOTE: This does not apply to those in California, Massachusetts, New Jersey, Rhode Island, Vermont, and Washington, D.C., where individual health coverage mandates have been issued on a state / district level.) The IRS has announced that an employer may, instead of distributing 2020 Forms 1095-B, post a notice on its website of the availability of the forms by request. Such a notice must be posted prominently on an accessible website, and the notice must include an email address and a physical address to which a request may be sent, as well as a telephone number to contact the employer with any questions. The Form 1095-B must be provided within 30 days of the date a request is received.

The deadlines for filing 1095 forms with the IRS are still March 1, 2021 for paper filing or March 31, 2021 for electronic filing. Employers that file 250 or more 1095 forms with the IRS must file the returns electronically.

Filers may request a 30-day extension by submitting Form 8809 (Application for Extension of Time to File Information Returns) before the relevant filing due date.

The IRS may impose penalties of up to $280 per form for failing to furnish an accurate Form 1095-C or 1095-B to an employee and up to $280 per form for failing to file an accurate form with the IRS. However, the IRS stated in Notice 2020-76 that it would not impose penalties for incomplete or inaccurate forms for the 2020 calendar year if the reporting entity can show that it made good-faith efforts to comply with the information-reporting requirements. The good-faith reporting relief applies only to incorrect or incomplete information reported on 1095-C or 1095-B forms, and not to a failure to furnish or file the forms on time.

NEW EXECUTIVE ORDER RE: RACE/SEX STEREOTYPING

The newly-signed Executive Order on Combatting Race and Sex Stereotyping prohibits federal contracts signed on or after November 22, 2020 from implementing any training that addresses any form of race/sex stereotyping or race/sex scapegoating or that implicates conscious or unconscious bias concepts. The following so-called “divisive” training concepts also are prohibited:

one race or sex is inherently superior to another race or sex;
the United States is fundamentally racist or sexist;
an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
an individual’s moral character is necessarily determined by his or her race or sex;
an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

Federal contractors must send a notice to be provided by the agency contracting officer to each labor union or representative of workers with whom they have a collective bargaining agreement or contract of understanding that they intend to comply with the executive order. They must also post copies of the notice in conspicuous places available to employees and applicants. In addition, contractors must include these provisions in subcontracts and purchase orders, unless exempted.

For additional details, see the full text of the Executive Order.

IRS GUIDANCE CLARIFIES EMPLOYERS’ SECURE ACT OBLIGATIONS

The IRS recently released Notice 2020-68 that answers questions about how employers should implement the Setting Every Community Up for Retirement Enhancement (“SECURE”) Act that was signed into law December 2019. The new guidance addresses required retirement plan eligibility for part-time employees as well as 401(k) withdrawals for birth or adoption.

Starting in 2024, part-time employees must be permitted to contribute to an employer’s 401(k) or similar plan if the employee works at least 500 hours for three consecutive years. The Act does not require employers to allow such eligible long-term part-time employees to participate in employer matching or profit-sharing contributions.

The SECURE Act allows exceptions to the 10 percent early withdrawal penalty for birth or adoption expenses. New parents can now withdraw up to $5,000 from a retirement account within a year of each child’s birth or adoption without tax penalty. The penalty-free distribution, which is still subject to income taxes, can be repaid to a retirement account.

The SECURE Act also created a new small-business automatic enrollment tax credit of up to $500 per year to offset startup costs for new 401(k) plans and SIMPLE IRA plans that include auto-enrollment. The new credit applies to taxable years beginning in 2020 for a three-year credit period.

H-1B NON-IMMIGRANT VISA CLASSIFICATION AMENDED

Effective December 7, 2020, the Department of Homeland Security (“DHS”) interim final rule entitled Strengthening of the H-1B Nonimmigrant Visa Classification amends regulations governing prevailing wage computation and the definition of “specialty occupation” in the H-1B visa program.

Under the new rule, the required wage level for entry-level workers would rise to the 45th percentile of their profession’s category, from the current requirement of the 17th percentile. The requirement for the highest-skilled workers would rise to the 95th percentile, from the 67th percentile. When seeking to employ an H-1B worker or to hire a foreign worker under the EB-2 or EB-3 green card categories, employers will have to pay the workers the higher of the prevailing wage or the actual wage paid to other employees with similar experience and qualifications.

The new rule also narrows the definition of “specialty occupation,” disqualifying positions that permit any college degree or one of many possible degrees. DHS will now require a direct relationship between an applicant’s degree and the position duties.

In addition, the new rule shortens the term length for certain visa holders to one year.

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

Exemptions Expanded for Determining Independent Contractor Status

Effective September 4, 2020, AB 2257 makes significant changes to AB 5, which established the “ABC test” as the standard for the classification of independent contractors in January 1, 2020.

The new law expands exemptions under the ABC test used to determine classification of independent contractors to now include additional exceptions.

Business-to-Business exemption now also applies to a public agency or quasi-public corporation.
“Single-Engagement” Business-To-Business Exemption applies to individuals who provide services as a contractor at the location of a single-engagement event.
Referral Agency Exemption now applies to non-exclusive referral services including consulting, youth sports coaching, caddying, wedding or event planning and vendors, and interpreting services.
Professional Services Exemption now applies to content contributors, advisors, producers, narrators or cartographers for certain publications; specialized performers hired to teach a class for no more than a week; appraisers; registered professional foresters; and home inspectors. It also removes the submission cap for freelance writers, photographers and videographers, editors, translators, illustrators, and similar contractor roles and instead requires that businesses refrain from displacing existing employees with one of these types of contractors.
Music Industry & Performer Exemptions now include roles involved in creating, marketing, promoting or distributing sound recording or music if they receive royalties; most single-event performances, and with individual performances.
Miscellaneous Exemptions now apply to manufactured housing salespersons, certain individuals engaged by international exchange visitor programs, and competition judges including amateur umpires and refereed.
Broader Governmental Enforcement Powers to allow district attorneys to file an injunctive relief action against businesses suspected of misclassifying independent contractors.

Personal Protective Equipment for Health Care Employees

Signed on September 29, 2020, Assembly Bill 2537 requires both public and private general acute care hospitals to provide PPE to their employees who provide direct patient care or provide services directly supporting personal care.

Beginning April 1, 2021, these hospitals must maintain a 3-month supply of specified respirators, particulate filters or cartridges, surgical masks, isolation gowns, eye protection, and shoe coverings and to establish and implement effective written procedures for periodically determining the quantity and types of equipment used in its normal consumption.

“New Parent Leave Act” Temporary Amendments

Effective October 1, 2020, the New Parent Leave Act (“NPLA”) requires employers with five or more employees to provide up to 12 weeks of unpaid, job-protected leave to eligible employees to care for or to bond with a minor child within one year of birth, adoption or foster care placement. Eligible employees must have worked for the employer at least 12 months and worked 1,250 hours in the 12 months prior to leave.

The NPLA will be repealed and replaced by amendments to the California Family Rights Act effective January 1, 2021.

Underrepresented Groups Must Be Added to Corporate Boards

Signed on September 30, 2020, AB 979 mandates the appointment of directors who identify as Black, African-American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, Alaska Native, or gay, lesbian, bisexual or transgender to corporate boards of publicly-held domestic or foreign corporations with their principal executive offices in California.

By the end of the 2021 calendar year, such corporations must have:

at least one director from an underrepresented community on its board.
a minimum number of female directors on its board, based on the size of the board.

- If the corporation has six or more directors, it must have a minimum of three female directors.
- If the corporation has five directors, it must have a minimum of two female directors.
- If the corporation has four or fewer directors, it must have a minimum of one female director.

By the end of the 2022 calendar year, such corporations must comply with the following:

If the corporation has nine or more directors, it must have a minimum of three directors from underrepresented communities.
If the corporation has more than four but fewer than nine directors, it must have a minimum of two directors from underrepresented communities.
If the corporation has four or fewer directors, it must have a minimum of one director from an underrepresented community.

Sacramento County Passes Worker Safety and Supplemental Paid Sick Leave Ordinance

Effective October 1, 2020 through December 31, 2020, the Sacramento County Worker Protection, Health and Safety Act of 2020, which applies only to businesses located in the unincorporated areas of Sacramento County, requires employers to implement specified protocols and practices in the workplace as well as to provide supplemental paid sick leave.

Applicable businesses are required to establish and follow specified cleaning and disinfection protocols; establish protocols if a worksite is exposed to a person with a probable or confirmed case of COVID-19; provide employees with regular access to handwashing, hand sanitizer, and disinfectant supplies; provide face-coverings for employees; and establish physical distancing protocols for the workplace, including the use of face coverings.

The ordinance also requires employers within the unincorporated areas of the County that have 500 or more employees nationally to provide full-time employees working in the unincorporated areas of the County with 80 hours of paid sick leave. Applicable part-time employees are entitled to receive paid time off equal to their average number of hours worked over a two-week period.

The sick leave may be used for the following reasons:

The employee is subject to quarantine or isolation under a federal, state, or local order, or is caring for a family member who is quarantined or isolated, due to COVID-19;
The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised;
The employee chooses to take off work because the employee is over the age of 65 or is vulnerable due to a compromised immune system;
The employee is off work because the employer’s work location temporarily ceased operations due to a public health order or other public health official’s recommendation;
The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or,
The employee is caring for a minor child because the child’s school or daycare is closed due to COVID-19.

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

Unemployment Insurance Notice Required

Effective October 30, 2020, employers must provide a notice to employees upon separation from employment that informs them of the availability of unemployment insurance.

The notice must include the following:

A statement that unemployment insurance benefits are available to unemployed workers who meet the eligibility requirements of Colorado law;
Contact information to file a claim;
Information the individual will need to file a claim; and
Contact information to inquire about the status of a claim after it is filed.

The Colorado Department of Labor and Employment Notice to Workers includes unemployment rights information along with additional information about other employee rights.

Voting Leave Required

DISTRICT OF COLUMBIA

Voting Leave and Notice Required

D.C. employees are 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 measure also allows D.C. employers to offer eligible employees two hours of paid voting leave to vote elsewhere, such as in Maryland or Virginia.

The DC Board of Elections has developed a model notice for employers to post in a conspicuous place to advise employees of voting leave rights. The sample notice can be downloaded at no cost by clicking here: Time Off to Vote Notice.

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. Hawaii voters vote primarily by mail, which may limit the need for voting leave.

ILLINOIS

Sexual Harassment Prevention Training Required by December 31

No later than December 31, 2020 and every year thereafter, Illinois employers, regardless of size, must provide sexual harassment prevention training to all employees. Because employers are liable for harassment by non-employees performing services for the employer under contract, the Illinois Department of Human Rights (“IDHR”) strongly advises that employers also provide sexual harassment prevention training to contractors and consultants.

The IDHR has published a free harassment prevention training program here:IDHR Training. Employers can instead choose to implement their own sexual harassment prevention training program, as long as the training meets the minimum training requirements of the IDHR.

In addition, the IDHR requires a supplemental training program for sexual harassment prevention tailored to the restaurant and bar industries. Minimum supplemental training standards can be found here: Supplemental Training Standards for Restaurants & Bars.

Employers should document 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.

For additional information, see answers to frequently-asked questions about the training here: FAQs.

Voting Leave Required

IOWA

Veterans Day Off Requirement and Notice 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

Voting Leave Required

MASSACHUSETTS

Paid Leave for Veterans Day Activities

Under the “HOME Act,” an Act Relative to Housing, Operations, Military Service, and Enrichment, employers in Massachusetts with 50 or more employees are required 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.

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.

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 MEXICO

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

Tip Credit Eliminated for All Except Hospitality Workers

Effective December 31, 2020, under the Miscellaneous Industries and Occupations Wage Order, New York employers will no longer be permitted to pay most tipped employees a rate below the minimum wage and take a “credit” for tips received to satisfy the state minimum wage requirements. Most tipped employees will be permitted to receive the full minimum wage directly from the employer and retain all tips. The Order provides an exception for restaurant and hotel employees covered by the Hospitality Industry Wage Order¸ whose rate can include a tip credit.

New York Paid Sick Leave Law Takes Effect

Effective September 30, 2020, S.B. 7506 (Part J) provides for sick and safe leave for New York employees. Employers with 100 or more employees must provide up to 56 hours of paid sick leave per year, and employers with fewer than 100 employees must provide up to 40 hours of paid sick leave per year. Employers with fewer than four employees and a net income of less than $1 million are allowed to instead provide up to 40 hours of unpaid sick leave.

Employees accrue one hour of sick leave for every 30 hours worked, up the applicable maximum. Accruals must begin September 30, 2020 or when employment begins, whichever is later. Employees may not begin using accrued sick leave until January 1, 2021.

New York City Paid Sick Leave Law Amended

Also effective September 30, 2020, New York City’s Earned Safe and Sick Time Act was amended to align with the statewide paid sick leave law.

Amendments include:

More employers are required to provide paid safe and sick time;
Increases the amount of safe and sick time that may be accrued and carried over by employees of employers with 100 or more employees;
Eliminates the special provisions for domestic workers;
Eliminates the hours-worked employee eligibility requirement and the waiting period for using leave;
Includes domestic violence as a qualifying reason for taking leave;
Requires employers to pay for costs an employee incurs to obtain documentation supporting the need for leave;
Requires employers to post a notice of rights (previously, was permissible but not required);
Requires employers to provide an employee’s accrued, used and available safe and sick time amounts to the employee each pay period;
Changes to retaliation protections; and
Changes to enforcement and penalty provisions.

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

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.

PENNSYLVANIA

New Salary Threshold for Overtime Exemptions

Effective October 3, 2020, the Pennsylvania Department of Labor & Industry has increased the minimum salary threshold to qualify for the overtime exemption. Employees in Pennsylvania must now earn at least $684 per week or $35,568 annually to qualify for an exemption, as well as meet the duty qualifications.

Threshold amounts will continue to increase over the next three years and then every three years thereafter. For additional information about these new rules click here: PA Overtime Rule.

Tax Returns Extensions

The Pennsylvania Department of Revenue has extended the due dates for many Pennsylvania individual and business tax returns. These extensions, however, do not extend any payment deadlines and only apply to taxpayers who requested an extension prior to the initially extended due date.

In order to apply for an extension, taxpayers must first pay the tax liability. If the payment is made electronically via the Revenue e-Services Center, the extension request can be submitted electronically as well. If payment is made by check, Form 276 must be submitted.

Philadelphia Workers Now Entitled to Public Health Emergency Leave

Philadelphia has amended its Promoting Health Families and Workplaces Ordinance to provide two weeks of paid emergency public health leave (“PHEL”) to Philadelphia workers not already eligible for paid leave under the Families First Coronavirus Response Act (“FFCRA”) or equivalent leave.

PHEL provides emergency paid sick leave under the same circumstances and for the same reasons as federal under the FFCRA, but with the following differences.

There are no exemptions for health care workers.
The amount of leave for full-time workers is the greater of 80 hours or an amount equal to their average hours worked over a 14-day period, capped at 112 hours. Those working fewer than 40 hours are entitled to an amount of leave equal to the amount of hours they work on average in a 14-day period.
Companies cannot get a payroll tax credit for PHEL to leave the way they do for leave under the FFCRA.

A “hiring entity” is defined as any employer, individual, partnership, association, corporation, business trust, or a combination thereof that pays a wage for the services of a covered individual, whether compensation is paid directly or indirectly.

“Covered individuals” is defined as those who perform work in Philadelphia for at least 40 hours a year for one or more “hiring entities,” and include employees, domestic workers, individuals providing services under the participant-directed and agency homecare model, individuals working for food delivery companies, individuals working for transportation network companies, and certain health care professionals.

The law considers workers to be covered individuals unless the hiring entity can show:

The individual is free from the control and direction of the hiring entity in connection with the performance of the labor or services;
The individual performs labor or services that are outside the usual course of the hiring entity’s business; and
The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the labor or services performed.

Employees covered by collective bargaining agreements are eligible unless there is an explicit waiver.

Covered individuals may use all or a portion of PHEL at any time during a public health emergency and for one month following the end of the emergency. Employees may cash out PHEL if they are laid off as the result of a public health emergency. If not cashed out, employees who are rehired within six months are entitled to the same amount of PHEL upon rehire that they were entitled to on the day they were laid off.

Applicable employers must notify workers of their rights under the new law. For onsite workers, employers must post a notice in a conspicuous location. For virtual workforces, the notice can be sent electronically or posted on an accessible web-based platform. The city has not yet published the required notice.

PUERTO RICO

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

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. An employee requesting leave must provide notice before Election Day.

WYOMING

Voting Leave Required