March 2018 HR Regulatory Updates

by Jill Schaefer on March 8, 2018

FEDERAL UPDATES

Supreme Court Defines Whistleblower Under Dodd-Frank Act
Late last month in Digital Realty Trust, Inc. v. Somers, the U.S. Supreme Court unanimously held that the Dodd-Frank Act only protects an individual if he/she reports securities law violations to the U.S. Securities & Exchange Commission (SEC).

The Dodd-Frank Act arose out of the 2010 financial crisis and created financial incentives and retaliation protection for reporting securities law violations.


New ERISA Disability Claims Procedure Starts April 1, 2018
Effective April 1, 2018, employees will gain new protections under the Employee Retirement Income Security Act when dealing with plan fiduciaries and insurance providers who deny their claims for disability benefits.

You or your plan provider will need to update your retirement plan documents, summary plan descriptions, and policies and procedures for employee benefit plans subject to ERISA that provide any disability benefits.


EEOC Acknowledges Client Site Reporting Confusion for EEO-1 Reports
The U.S. Equal Employment Opportunity Commission (EEOC) updated its EEO-1 report instructions on how employees working at client sites are supposed to be noted. However, it has resulted in some confusion. Some employers reported the address of client sites for employees, while other employers rolled those employees up to a non-client site employer address.

The EEOC released a statement saying that employers would not be considered “non-compliant” if they chose one site reporting tactic over another.

The EEOC is looking into how to better address client site reporting. We’ll update you when new clarification comes out.


DACA Renewals Continue
The U.S. Supreme Court declined to review a federal district court decision involving Deferred Action for Childhood Arrivals (DACA). As a result, the government must continue to process DACA application renewals. New applications are still in contention. Further legislation is still in the hands of Congress.


Employers on Their Own for Immigration Applications & Petitions

Effective March 17, 2018, the U.S. Citizenship and Immigration Services (USCIS) will no longer accept power of attorney signatures on immigration applications and petitions. Instead, employers will have to sign associated documents themselves.

This mandate will be in effect for this year’s H-1B cap season, which begins April 2. It also means you will need to allow extra time for an authorized employee to sign paperwork and return it to an outside attorney or law firm for filing.

You’ll also want to be careful how you sign the documents. USCIS won’t accept signatures created by a typewriter, word processor, stamp, auto-pen or similar devices. They also may reject a form outright instead of offering employers the chance to correct it.


IRS Changes Fees for Plan Sponsors
The IRS announced new 2018 fees for retirement plan sponsors that use the Voluntary Correction Program (VCP).

For plans with assets ofVCP Filing Fee
$500,000 or less$1,500
$500,000 - 10 million$3,000
$10 million+$3,500


STATE UPDATES

MASSACHUSETTS

Pregnant Workers Fairness Act Begins 4/1/18
On April 1, 2018, Massachusetts Pregnant Workers Fairness Act goes into effect for employers with 6+ employees.

Highlights

  • Employers can’t document accommodations for the employee to use the restroom more often, different seating, lifting restrictions or a private space that isn’t a bathroom to express milk. You may ask for documentation for other accommodation requests.
  • Requires employers to reasonably accommodate all pregnant employees/applicants.
  • Employers must engage in an interactive process with employees/applicants to determine reasonable accommodations that would allow them to perform the essential duties of their jobs.

3 Notices
Under the Act, three notices are required.

1. Employers must provide a written notice to employees by April 1. This can be achieved through your handbook, a poster, brochure, or another written communication.

  1. Employers must also provide a notice to newly-hired employees at the time of hire.
  2. Within 10 days of an employee notifying an employer about her pregnancy, employers must provide a notice.

MAINE

Limits Marijuana Testing Actions
With Maine’s recreational marijuana legalization that went into effect February 1, 2018, you may not have realized that employers cannot reject applicants or fire employees solely because they used marijuana or test positive for it on a drug screen.

Using marijuana for recreational or medicinal purposes are both legal in the state. As such, The new law suggests that employers should accommodate employees’ marijuana use so long as it’s done outside of work.

Maine employers can prohibit employees from bringing marijuana to work and using it there. Maine companies contracted by the federal government, commercial motor vehicle drivers, and those in safety-sensitive positions must still comply with federally mandated marijuana drug tests.

Given the discrepancy between federal and state law, it is not yet known how adverse action cases for marijuana use will hold up in court.

MICHIGAN

Medical Marijuana & Terminations
Medical use of marijuana has been legal in Michigan since 2008 under the Michigan Medical Marijuana Act. However, nuances and new legal interpretations of the law are still coming to light.

In Braska v. Challenge Manufacturing Co., the Michigan Court of Appeals recently ruled that employees with a valid medical marijuana card may be able to collect unemployment if employers terminate them after they test positive for marijuana.

The court upheld that employers can still test employees for drugs in accordance with employers’ established drug-testing programs regardless of whether they have a medical marijuana card. Although drug testing is subject to collective bargaining, union employees can still be tested for marijuana too.

An employee who fails a drug test may also be disciplined or fired for violating a drug-free workplace policy even if they have a marijuana card.

A Word of Caution
Employers still need to tread lightly on this matter. It’s not a green light to fire employees. You still need to follow proper documentation protocols as you could be opening your organization up to discrimination, retaliation, or defamation claims if you announce that an employee failed a drug test and the test result turns out to be a false positive.

MARYLAND

Sick Leave Law Now in Effect
Governor Larry Hogan’s veto to block the Maryland Healthy Working Families Act failed. The state legislature overrode the veto and had attempted to delay implementation of the Act but was not successful. So, this law officially went into effect on February 11, 2018, as we described in our February 2018 HR Regulatory Updates.

Maryland employers with 15+ employees are now required to provide paid sick leave for full-time, part-time, seasonal, or temporary workers.

The following reasons are acceptable uses for paid sick leave under the law:

  • An employee or a family member’s physical or mental health needs
  • Preventative medical care for the employee or a family member
  • Maternity or paternity leave
  • To obtain relief in response to a domestic or sexual assault of the employee or a family member


MISSOURI

Kansas City Bans the Box
The Kansas City Council approved the Criminal Records in Employment ordinance that prohibits Kansas City employers with 6+ employees from inquiring about an applicant’s criminal history until after the applicant has been interviewed. This will go into effect on June 9, 2018.

After you complete your interview and before you offer the job, you are allowed to complete a criminal history inquiry. However, you can’t use an applicant’s criminal background as the sole basis for your hiring decision.

Action Items

  • Revise your job applications, interview questions, and policies and procedures, and your employment offers.
  • Remember: you can’t look into applicants’ criminal history until after you’ve interviewed them.
  • Implement new compliance guidelines and documentation.


NEW JERSEY

Opportunity to Compete
New Jersey’s former Governor Chris Christie signed an amendment to the state’s ban the box or Opportunity to Compete Act which has been in effect since 2015. The amendment, which is effective immediately, expands on the law.

Highlights

  • Under the amendment, it is clear that employers cannot make online or online application inquiries about criminal records.
  • Employers cannot have their hiring or screening process include questions or information concerning an applicant’s expunged criminal history.

NEW YORK CITY, NEW YORK

New Accommodation Law
In New York City, employees will have more rights when they initiate accommodation requests relating to disability, religion, pregnancy or childbirth (including related medical conditions), domestic violence, sex offenses, or stalking.

Employers will be required to engage in cooperative dialogue with individuals who may be entitled to reasonable accommodations. In addition, employers must provide employees or applicants with final written decisions.

In other words, you can’t reject employees’ or applicants’ requests for reasonable accommodation without first engaging in a cooperative dialogue.

Cooperative dialogue, as defined under the law, refers to the process through which an employer and a person, who may be entitled to an accommodation under the law, engage in good faith in a written or oral dialogue concerning the person’s accommodation needs, including alternatives to the requested accommodation, and the difficulties that any potential accommodations may pose for the employer.

This amendment to the New York City Human Rights Law goes into effect July 18, 2018. In the meantime, review your organization’s reasonable accommodation policies to ensure they are compliant.

TEXAS

Austin Approves Paid Sick Leave
The City of Austin joined the growing list of locations in the U.S. to enact mandatory paid sick leave. The ordinance applies to all full- and part-time employees, including season workers. It will go into effect on October 1, 2018, for employers with 5+ employees.

Highlights:

  • Employees who work within Austin city limits and log at least 80 hours per calendar year are eligible to earn paid sick leave.
  • Employers must provide 1 hour of leave for every 30 hours employees work up to 64 hours per year. If you have less than 16 employees, 48 hours paid sick leave is the max. Employees can carry over their accrued sick leave, up to the capped amounts listed above.
  • Employees can use their sick leave as soon as it accrues. It can be taken for the employee’s or his/her family’s physical or mental health care as well as for the legal and health repercussions of domestic violence.
  • Employers can enact a 60-day probation period for new hires before sick leave can be used.
  • Posting a notice about the sick-leave entitlement will be required. In addition, employers need to talk about employees’ rights to sick leave in their handbooks.
  • Retaliating against employees who use their sick leave is prohibited.

VERMONT

Pot Legalized
Lawmakers in Vermont have made it legal for state residents to possess and grow marijuana for personal recreational use. The law goes into effect on July 1, 2018. However, because marijuana is still a prohibited schedule I drug under federal law, Vermont employers do not have to tolerate possession and marijuana use in the workplace.

Unlike other states, Vermont’s law specifically has wording allowing employers to:

  • Forbid the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace.
  • Prohibit the use of marijuana in the workplace.
  • Discipline or terminate an employee who violates a policy that restricts or prohibits the use of marijuana by employees.
  • Prohibit the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s property.

Keep in mind that Vermont still has stricter drug screening laws. Unless required by federal law or there is reasonable suspicion, Vermont employers aren’t allowed to conduct random drug tests. Pre-employment screening is allowed, and employers can still rescind job offers based on the drug test results.

Vermont also has a separate medical marijuana law.

Unless you’re hiring for safety-sensitive positions, you may decide not to test most applicants for marijuana since it may be harder for you to find candidates who test negative for a state-legalized drug.

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Jill SchaeferMarch 2018 HR Regulatory Updates