SEPTEMBER 2021 LEGAL UPDATE

FUTURE COMPLIANCE DATES

OCTOBER 14, 2021: Medicare Part D Notice

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

OCTOBER 25, 2021: Extended EEO-1 Deadline

The deadline to submit and certify 2019 and 2020 EEO-1 Component 1 Reports is now October 25, 2021.

NOVEMBER 1, 2021: Form 941 Due

Form 941, the employer’s quarterly tax return, is due November 1 for the third quarter 2021. 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.

PRIOR TO ELECTION DAY: Voting Leave and Advanced Leave Notice May Be Required

Many jurisdictions across the county will hold elections on November 2, 2021. 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

NEW COVID-19 PLAN ANNOUNCED BY THE PRESIDENT

On September 9, 2021, President Biden announced a six-pronged COVID-19 plan that is expected to impact employers with 100+ employees, as well as employers who work in conjunction with federal contracts, healthcare employers who receive Medicare or Medicaid reimbursements, and school employers.

Highlighted provisions of the plan include:

OSHA is directed to issue an Emergency Temporary Standard (“ETS”) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis. The requirement will not go into effect until the ETS is published. No publication date has been announced at the time of this writing.
A new Executive Order will require certain employees who work on or in connection with certain government contracts be vaccinated by November 22, 2021, regardless of whether they work on a federal site.
Workers in most health care settings that receive Medicare or Medicaid reimbursement will be required to get COVID-19 vaccinations.
Staff of Head Start and Early Head Start programs, Department of Defense child and youth programs, and Bureau of Indian Education-operated schools will be required to get vaccinated. States are being asked to adopt vaccination requirements for all school employees.
OSHA is directed to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination.

1. The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites.

This topic was included in a webinar hosted on September 21, 2021 by HR Service, available for download here: https://attendee.gotowebinar.com/recording/6385558232185830408. The webinar covers information available at the time. Updates and additional information, including effective dates, will be distributed as it becomes available.

DELAYED REQUIREMENTS FOR TRANSPARENCY REQUIREMENTS FOR TRANSPARENCY IN COVERAGE AND NO SURPRISES ACT EXPLAINED IN DOL FAQ

The Departments of Labor, Health and Human Services, and Treasury recently jointly released answers to frequently asked questions regarding new health plan disclosure requirements of the Transparency in Coverage Final Rules (“TiCFR”), the No Surprises Act, and other provisions under the Consolidated Appropriations Act (“CAA”).

In the FAQ document, the departments announced that the agencies will postpone some deadlines and otherwise defer enforcement of most of the communication and reporting obligations. However, good faith compliance with the disclosure requirements is still required as of the effective dates, many of which are January 1, 2022. Further, the restrictions on charges, balance billing, and cost-sharing obligations addressed in the Interim Final Regulations are not postponed.

Delayed deadlines or enforcement include the following:

Enforcement of the CAA prescription drug benefits and cost reporting requirements, which require an initial report by December 27, 2021, and a second report on June 1, 2022, is being deferred pending the issuance of regulations or further guidance.
Enforcement of the obligation to make public machine-readable files disclosing in-network rates and out-of-network allowed amounts is deferred until July 1, 2022.
Enforcement of CAA price comparison requirements is deferred until Jan. 1, 2023.
HHS will issue regulations prior to January 1, 2022 regarding the requirement for plans beginning after January 1, 2022 to provide good faith estimates of expected charges to plan members. HHS is expected to delay the deadline to give providers and facilities a reasonable amount of time to comply with the new requirements.
HHS is investigating interim solutions regarding the requirement to provide advance EOBs to members, and the agency is expected to provide further guidance.
Enforcement of the requirement to report pharmacy benefit and drug costs is deferred for initial reports required by December 27, 2021 and June 1, 2022.
Enforcement has been delayed from January 1, 2022 to July 1, 2022 for the requirement for non-grandfathered group health plans and issuers offering non-grandfathered coverage to disclose on public website information regarding in-network provider rates for covered items and services, out-of-network allowed amounts, and billed charges for covered items and services. The date to disclose prices for prescription drugs is delayed until further rulemaking is issued.

For additional details, see the Joint Agency FAQs.

This topic was included in a webinar hosted on September 21, 2021 by HR Service, available for download here: https://attendee.gotowebinar.com/recording/6385558232185830408.

PROPOSED RULE ON BROKER COMPENSATION TRANSPARENCY AND NO SURPRISES ACT FILED

The Department of Health and Human Services (“HHS”) has filed a proposed rule, “Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement,” that provides further information on how HHS will implement the upcoming broker compensation transparency requirements and surprise billing provisions of the Consolidated Appropriations Act.

The proposed rule provides guidance about broker compensation transparency for individual and short-term, limited-duration plans but not for the group market. In the proposed rule, HHS defines “direct compensation” as monetary amounts, including sales and base commissions, paid by an issuer that are attributable directly to the policy, certificate, or contract of insurance and that are paid to an agent or broker for the sale, placement, or renewal of individual health insurance coverage or short-term, limited-duration insurance. The agency defines “indirect compensation” as payments by an issuer attributable indirectly to a policy, certificate, or contract of insurance to agents, brokers, and other persons for items other than sales and base commission. Examples of indirect compensation include service fees, consulting fees, finders’ fees, profitability and persistency bonuses, awards, prizes, volume-based incentives, and non-monetary forms of compensation.

Under the proposed rule, issuers of individual health insurance or short-term limited-duration insurance must disclose to a potential or existing policyholder the amount of direct and indirect compensation and the commission schedule provided to an agent or broker associated with enrolling the policyholder.

The HHS rule would require issuers to provide required disclosures as part of an initial enrollment package or renewal notice, but would not require them on other documents that could be considered to confirm enrollment, such as explanations of benefits.

Health insurance issuers of individual health insurance coverage or short-term, limited-duration insurance will also be required to report direct or indirect compensation provided to an agent or broker associated with enrolling individuals on an annual basis to HHS prior to the beginning of open enrollment through an online portal.

For additional details, see the HHS Proposed Rule.

This topic was included in a webinar hosted on September 21, 2021 by HR Service, available for download here: https://attendee.gotowebinar.com/recording/6385558232185830408

NEW FMLA MODEL FORMS REPLACE EXPIRED FORMS

The Department of Labor has issued new model forms for employers to use for notice and certification compliance with the Family and Medical Leave Act (FMLA). The new forms are valid through June 30, 2023 and replace the forms that expired on August 31, 2021.

The model forms, as well as answers to frequently asked questions, are available here: FMLA Model Forms.

NEW INTERAGENCY INITIATIVES REGARDING HEAT HAZARDS IN THE WORKPLACE

The Departments of Labor, Health and Human Services, Homeland Security, and Agriculture; the Environmental Protection Agency; and the National Oceanic and Atmospheric Administration recently announced a set of actions to reduce heat-related illness in the workplace, protect public health, and support the economy.

The Department of Labor is launching a multi-prong initiative on occupational heat exposure to protect outdoor workers, including agricultural, construction, and delivery workers, as well as indoor workers, including those in warehouses, factories, and kitchens.

Other agency actions will provide cooling assistance to households; use schools as cooling centers; launch a heat resilience innovation challenge; address social vulnerabilities and disproportionate impacts; reduce urban heat through tree cover, and improve local preparedness through data-sharing.

For additional details on the initiatives, see the White House Fact Sheet.

SEC APPROVES NASDAQ’S BOARD DIVERSITY RULES

The Securities and Exchange Commission (“SEC”) recently approved the Nasdaq Stock Market’s proposed listing rules regarding board diversity. The approved rules will require Nasdaq-listed companies to have at least two diverse directors, including at least one self-identified female and at least one who self-identifies as an underrepresented minority or LGBTQ+, or explain why they do not.

No later than August 8, 2022, Nasdaq-listed companies must disclose the initial diversity matrix, either in its proxy statement or on its website. Companies then will be required to disclose self-identified board demographic data on an annual basis.

Companies will have a transition period to meet the new diversity rules. Companies in the Nasdaq Global Select Market or Nasdaq Global Market will be required to have one diverse director by August 7, 2023, and two diverse directors by August 6, 2025. Companies in the Nasdaq Capital Market will be required to have one diverse director by August 7, 2023, and two diverse directors by August 6, 2026. Companies with five of fewer directors will be required to have one diverse director by August 7, 2023.

VACCINATION REQUIRED FOR FOREIGN NATIONALS’ MEDICAL EXAM

Effective October 1, 2021, foreign nationals applying for lawful permanent resident or green card status who are required to complete the I-693 medical examination form must be fully vaccinated against COVID-19.

U.S. Citizenship and Immigration Services (“USCIS”) will consider waivers based on religious beliefs or moral convictions or if the vaccine is:

Not age-appropriate
Contraindicated due to a medical condition
Not routinely available where the medical examiner practices
Limited in supply and would cause significant delay for the applicant to receive the vaccination

REMOTE FORM I-9 DOCUMENT REVIEW EXTENDED THROUGH DECEMBER 31

U.S. Immigration and Customs Enforcement (“ICE”) has once again extended the approval for remote review of an employee’s identity and employment authorization documents for Form I-9 when that employee will be working remotely. These provisions have been extended until at least December 31, 2021.

Once normal operations resume, employers must inspect documents in person and note “COVID-19” as the reason for the delay in the “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.

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

REMINDER: Health Care Workers Must be Vaccinated by September 30

All workers in California who provide services or work in facilities listed below must have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021.

General Acute Care Hospitals
Skilled Nursing Facilities (including Subacute Facilities)
Intermediate Care Facilities
Acute Psychiatric Hospitals
Adult Day Health Care Centers
Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
Ambulatory Surgery Centers
Chemical Dependency Recovery Hospitals
Clinics & Doctor Offices (including behavioral health, surgical)
Congregate Living Health Facilities
Dialysis Centers
Hospice Facilities
Pediatric Day Health and Respite Care Facilities
Residential Substance Use Treatment and Mental Health Treatment Facilities

“Workers” refer to all paid and unpaid individuals who work in indoor settings where care is provided to patients, or patients have access for any purpose. This includes workers serving in health care or other health care settings who have the potential for direct or indirect exposure to patients or SARS-CoV-2 airborne aerosols. Workers include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the health care facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).

Workers may be exempt from the vaccination requirements only upon providing the operator of the facility a declination form, signed by the individual stating either: (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine due to Qualifying Medical Reasons. To be eligible for a Qualified Medical Reasons exemption, the worker must also provide to their employer a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate).

If an operator of a covered facility deems a worker to have met the requirements of an exemption, the unvaccinated exempt worker must meet the following requirements when entering or working in such facility:

Test for COVID-19 with either PCR or antigen test that either has Emergency Use Authorization by the U.S. Food and Drug Administration or be operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services. Testing must occur twice weekly for unvaccinated exempt workers in acute health care and long-term care settings, and once weekly for such workers in other health care settings.
Wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH), such as an N95 filtering facepiece respirator, at all times while in the facility.

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

Vaccine Mandates for State Workers, Healthcare Industry, and Schools

No later than September 20, 2021, all state workers in Colorado must either be vaccinated or undergo twice-weekly testing.

No later than September 30, 2021, all employees, direct contractors, and support staff in licensed healthcare settings in Colorado must receive their first dose of the COVID-19 vaccine. They must be fully vaccinated no later than October 31, 2021.

Healthcare settings include acute treatment units, ambulatory surgical centers, assisted living residences, behavior health entities, birth centers, community clinics, community mental health clinics, community-integrated health care services agency, dialysis treatment clinics, freestanding emergency departments, home care agencies, home care placement agencies, hospices, hospitals, facilities for individuals with disabilities, and nursing homes. These covered entities must implement a policy adopting this mandate, which includes criteria for accepting or rejecting medical or religious exemptions and how the employer will implement testing and masking for unvaccinated individuals. Starting October 1, 2021, each facility must report its COVID-19 vaccination rate to the Board of Health on the 1^stand 15^thof each month.

No later than October 31, 2021, all state contractors and state contractor workers who physically enter a state facility must show proof of full vaccination. Unvaccinated workers may not enter a state facility but may be allowed to work remotely. A state facility is defined as any building or utility-owned, leased, or used by the state including schools, but excluding highways or publicly assisted housing projects.

Employers covered by the state vaccine mandate should closely monitor new Public Health Orders for requirements on both vaccines and masking on the state website.

Denver Vaccine Mandate

No later than September 30, 2020, all Denver city employees as well as private-sector workers in certain “high-risk” settings such as hospitals, clinical settings, nursing homes, homeless shelters, correctional facilities, childcare settings, and schools must be fully vaccinated.

The vaccine mandate also requires covered employers to create a written mandatory vaccine policy that allows for exemptions for religious objections or medical disabilities.

Voting Leave Required

CONNECTICUT

Voting Leave Required

Employees are entitled to up to two hours of unpaid voting leave to vote in regular state elections. In the case of a special election for U.S. Senator, U.S. Representative, state senator, or state representative, the new requirement to provide time off applies only to employees who are already registered to vote.

Employees must request unpaid time off at least two working days in advance.

DISTRICT OF COLUMBIA

DC FMLA Definition of “Employee” Amended

Effective October 1, 2021, the definition of an employee under the District of Columbia Family and Medical Leave Act (DC FMLA) is amended to apply to an individual who has been employed by the same employer for at least 12 consecutive or nonconsecutive months and has worked at least 1,000 hours for the employer during the 12-month period preceding the date on which the period of family or medical leave is to begin.

For COVID-19 leave reasons, an employee includes someone who was employed by the employer for at least 30 days prior to the leave request.

FLORIDA

New Hire Reporting Required for Independent Contractors

Effective October 1, 2021, employers are required to submit new hire reports for independent contractors who have been paid $600 or more per calendar year for services provided.

The report must be filed within 20 days after the date of the first payment made to the independent contractor or the date on which the contract was entered into, whichever is earlier.

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

Voting Leave Required

IOWA

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.

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.

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

MAINE

Wage Overpayment Limitations Amended

Effective October 18, 2021, HB 446 amends limits regarding wage overpayments made in error. Under the new law, the maximum amount an employer may deduct from the pay of an employee to recover an overpayment without the employee’s written permission is reduced from 10% to 5%. In addition, paid leave is added to the types of compensation that are excluded from the definition of overcompensation, and an employer may not recoup more than the amount of the overcompensation paid to an employee in the three years before the date the employer discovered the overpayment.

MARYLAND

Baltimore Bans Private Use of Facial Recognition Technology

A new Baltimore ordinance prohibits the use of facial recognition technology by city residents, businesses, and city government with the exception of city police department until December 2022. The new law prohibits an individual or entity from obtaining, retaining, or using facial surveillance system or any information obtained from a facial surveillance system within the boundaries of Baltimore city.

Voting Leave Required

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

Victims Economic Safety and Security Act Provides for Leave; Requires Posting

Effective October 27, 2021, the Victims’ Economic Safety and Security Act (“VESSA”) requires covered employers to provide unpaid leave and accommodations to employees who are victims of domestic or sexual violence or have a family or household member who is a victim of such violence. VESSA applies to all employers in Missouri with at least 20 employees, and the amount of unpaid leave available depends on the size of the employer.

Employers with 20 to 49 employees must provide up to one workweek of unpaid time per 12-month period. Employers with 50 or more employees must provide up to two workweeks of unpaid time per 12-month period. The leave can be taken all at once or intermittently.

Covered employers must also provide reasonable safety accommodations such as adjustments to job structure, modified scheduled, leave, safety procedures, and assistance in documenting domestic violence, unless the accommodation poses an undue hardship.

Eligible employees may take unpaid leave from work under VESSA to:

Seek medical attention for, or recover from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee’s family or household member;
Obtain services from a victim services organization for the employee or the employee’s family or household member;
Obtain psychological or other counseling for the employee or the employee’s family or household member;
Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or the employee’s family or household member from future domestic or sexual violence or to ensure economic security; or
Seek legal assistance or remedies to ensure the health and safety of the employee or the employee’s family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence.

Employees seeking leave under VESSA must provide their employers with at least 48 hours advance notice of the intention to take leave unless giving notice is not practicable. Upon the employer’s request for certification, an employee must provide certification that the employee or the employee’s family member is a victim of domestic or sexual violence and that the leave is for one of the qualifying reasons for leave under VESSA.

VESSA requires covered employers to notify all existing employees of their rights under the new law no later than October 27, 2021, and all new employees upon hire.

The required posting notice is available here: VESSA Notice.

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

Notice of DETR Services Required

Effective October 1, 2021, AB 307 requires Nevada employers to post a new notice being released by the Department of Employment, Training and Rehabilitation (“DETR”) regarding its job training services or employment programs. For additional details and links, see the DETR Notice.

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

Marijuana Law Takes Effect

Effective August 19, 2021, initial rules implementing the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act mandate that employers may not take adverse action based solely on a positive marijuana drug test result but rather only on reason to believe that an individual is impaired while at work.

In order to determine whether an individual is impaired at work, the statute requires an employer to both obtain the opinion of a Certified Workplace Impairment Recognition Expert to determine and to test using scientifically valid testing methods.

While the Act that legalized the use of recreational marijuana for adults age 21 and older went into effect in February 2021, employment provisions of the act were not put into effect until the adoption of the initial rules.

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

Vaccination Mandate Expanded for Health Care Workers

Effective August 26, 2021, new emergency regulations institute a broad vaccine mandate for many types of health care providers beyond general hospitals and long-term care facilities.

The emergency regulations apply to all individuals employed by or otherwise affiliated with the following types of health care providers licensed by the state:

General hospitals and nursing homes
Diagnostic and treatment centers, including community health centers and other federally qualified health centers, dental clinics and dispensaries, midwifery birth centers, and rehabilitation clinics
Certified home health agencies, long-term home health care programs, acquired immune deficiency syndrome home care programs, licensed home care service agencies, and limited licensed home care service agencies
Home and in-patient hospices
Adult care facilities

Employees in general hospitals and nursing homes must receive their first COVID-19 vaccine dose by September 27, 2021. Employees in all other covered categories must receive their first dose by October 7, 2021. Employees must then become fully vaccinated within the timeline recommended for the vaccination they received.

Employees may request a medical exemption with a certification from a licensed physician or certified nurse practitioner documenting that the COVID-19 vaccine is detrimental to their health based upon a pre-existing condition. However, the emergency regulations do not allow for any religious exemptions to the vaccination mandate.

Employers are required to provide up to four hours of paid leave for an employee to receive a COVID-19 vaccine injection.

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

Tax Debt Garnishment Notices Authorized

Effective November 1, 2021, the Oklahoma Tax Commission (“OTC”) may garnish an employee’s accrued earnings to satisfy a tax debt by serving an administrative wage garnishment notice on their employer by mail or delivery by an OTC field agent.

Once served such a notice, the employer must withhold the amount due within seven days after the end of each pay period. If the employee’s employment ends before the full amount due has been withheld, the employer must immediately notify the OTC in writing.

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 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.

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

VIRGINIA

Emergency Standards Amended

Effective September 8, 2021, amendments to Virginia’s emergency regulations issued in June 2020 removed prior classifications of workplaces as “Very High,” “High,” “Medium,” or “Low” risk and instead made one set of rules applicable to all workplaces. The amendment also imposes expanded rules for healthcare facilities and other “higher risk” workplaces.

Significant changes to the original emergency regulations include the following:

All employers must have a COVID-19 policy in place that tracks the requirements of the Virginia Standard.
Employers are required to assess the workplace for hazards that could expose employees to COVID-19 and must inform employees of methods to self-monitor for symptoms.
Employers are allowed to require employees to provide their vaccination status, and either by attestation or by providing proof.
Employers must remove anyone with confirmed or suspected COVID-19 from the workplace, regardless of vaccination status.
Employees who are removed from the workplace due to suspected COVID-19 must obtain a COVID-19 PCR test. If the test is negative, employees may return to work immediately. If positive, then the employee must stay out of work and quarantine per the CDC guidelines. Employees who refuse to take a PCR test must be kept out of the workplace until they pass the CDC “time-based” test applicable to either vaccinated or unvaccinated employees.
An employee’s COVID-19 positive diagnosis is a confidential medical record and should not be shared with anyone who does not need to know, without the employee’s consent. However, within 24 hours of learning of an employee’s positive COVID-19 diagnosis, the employer is obligated to inform anyone who was in direct and prolonged contact with the individual that they may have been exposed to someone who was diagnosed with COVID-19 and should monitor symptoms or test. The employer also must notify the building or facility owner that there was a positive case in the workplace.
Employers with two or more positive cases in the same workplace within a 14-day period must file an online report with the Virginia Department of Health (“VDH”) and DOLI, available through the VDH website, within 24 hours of the discovery of the second diagnosed case. Additional cases in the same period must also be reported.
Employers must follow guidance from the VDH, the CDC’s “Isolation Guidance,” and the CDC’s “Return to Work Healthcare Guidance,” regarding return-to-work requirements.
Employers must provide face coverings or surgical masks that cover the nose and mouth to be worn while indoors by all unvaccinated employees, fully vaccinated employees only in CDC-designated areas of substantial or high community transmission, or otherwise at-risk employees. The only exceptions to the masking requirement are:
- when the employee is alone in a room,
- when the employee is actively eating or drinking (as long as unvaccinated people stay at least 6 feet away from any other person while doing so),
- when it is important to see someone’s mouth,
- when the employee has a medical condition or disability or sincerely held religious belief that precludes them from wearing a mask, in which case the employer would have to engage in a good-faith interactive process to find an accommodation that comports with the employee’s limitations, but still protects the health and safety of the employee and others, or
- when the employer can demonstrate that the use of a facemask would pose a work hazard.
Employers must ensure that employees who are not fully vaccinated or who are otherwise at-risk observe physical distancing while on the job and during paid breaks on the employer’s property. Employers must display signs and visual cues to promote physical distancing and decrease worksite density to enable distancing.
Unless the employer can control and ensure adequate social distancing in breakrooms and common areas, those areas should be closed to unvaccinated personnel. Further, the employer must limit occupancy of the room to ensure that unvaccinated personnel can maintain adequate social distancing.
Employers must also post notices requiring unvaccinated employees to observe physical distancing, wash their hands, and clean any shared surfaces that they used. The employer must ensure that handwashing facilities or hand sanitizer is available to employees.
Employers must clean common areas and shared tools of employment at least once a shift.
Unvaccinated employees, or fully vaccinated employees in areas of high or substantial community transmission, should avoid shared work vehicles if possible. If sharing a vehicle is unavoidable and physical distancing cannot be maintained, unvaccinated employees and vaccinated employees in high or substantial transmission areas must wear a mask or face covering, and adequate ventilation should be maintained in the vehicle.
Employers must continue to comply with any VOSH sanitation standards applicable to that employer’s particular industry.
In places accessed by an employee with suspected or confirmed COVID-19, employers must clean and disinfect the employee’s work area prior to allowing other employees to access that area if less than 24 hours has passed since the diagnosed employee was in the space. If more than 24 hours has passed, then simply cleaning is enough. If more than 3 days have passed since the person with COVID-19 was in the work area, then no additional cleaning is required.

The amendment contains additional rules that apply to manufacturing facilities, meat and poultry processing facilities, high-volume retail and grocery businesses, transit, seafood processing facilities, correctional facilities, and other detention centers.

In addition, all healthcare settings and high-risk industries with 11 or more employees must have completed a workplace hazard assessment and Infectious Disease Preparedness and Response Plan. Employees working in healthcare settings and any unvaccinated employees in high-risk industries with 11 or more employees must receive training on the plan.

For additional details, see the entire text of the Amended Emergency Standards.

WASHINGTON

Long-Term Care Payroll Tax Withholding to Begin January 1

Effective January 1, 2022, Washington employers must begin withholding a 0.58 percent payroll tax from all employee wages, with no cap on the amount. The withholding is for long-term care services. The taxes must then be remitted to the state on a quarterly basis.
No later than November 1, 2021, employees over the age of 18 may opt-out of the withholding if they prove that they have purchased private long-term care insurance. In addition, self-employed individuals and independent contractors may also opt-out.

Long-term care services funded by the new payroll tax will be available after January 1, 2025. Qualified employees can receive up to $100 per day for approved long-term care services and support for one year. There will be a maximum lifetime amount of $36,500, but that amount will be adjusted annually.

Approved services include nursing facilities, assisted living facilities or adult family homes, home healthcare, wheelchair ramps, emergency alert devices, Meals on Wheels, transportation, caregiver support, memory care, and other related services.

To be qualified, employees must have either paid premiums under the program for a total of 10 years without interruption of five or more consecutive years, or for three of the last six years from the date of the application for benefits. They must have also worked at least 500 hours during each of the timeframes.

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. Employees requesting leave must provide notice before Election Day.

WYOMING

Voting Leave Required