September 2018 HR Regulatory Updates

by Camille Bradbury on September 14, 2018

This blog post covers timely federal and state legislative employment updates. Check out what you need to know and gain compliance tips to help you stay on top of HR, the right way. Click on the federal topics or state names below to catch up on the latest news.

FEDERAL Updates

STATE Updates

FEDERAL Updates

October 15 Deadline: Medicare Part D Coverage Notices

Due Date: October 15, 2018

Group health sponsors who offer prescription drug coverage are required to disclose when employees are eligible for Medicare prescription drug coverage. Employers are required to disclose annually whether their plan is creditable or non-creditable. The Credible Coverage Simplified Determination is provided by the Centers for Medicaid and Medicare Services (CMS) to help employers assess if their plan meets conditions for credible coverage. By disclosing this information, it helps eligible employees make an informed decision to switch their coverage to Medicare Part D during the enrollment period.

Give notice to Medicare-eligible individuals including retirees, active employees and their dependents, and anyone on Medicare-eligible COBRA, including their dependents. Give the notice before Medicare Part D enrollment period which runs from October 15-December 7, or:

  • If an individual requests
  • Before the effective date of coverage if a Medicare-eligible employee joins an employer’s plan
  • Prescription drug coverage ends or credible status changes

You can use the CMS Model Notice or your own.

USCIS Raises Premium Processing Fees

Effective Date: October 1, 2018

The U.S. Citizenship and Immigration Services is raising its premium processing fees for all I-129 (Non-immigrant worker) forms and I-140 (Immigrant Petition for Alien Worker) forms from $1,225 to $1,410. The new fee goes into effect on October 1, 2018. The increase in demand prompted the fee change, which hasn’t been raised since 2010.

Final Expiration Date for Updated FMLA Forms

Based on requirements for the Paperwork Reduction Act, the U.S. Department of Labor sends Family and Medical Leave Act (FMLA) forms to Office of Management and Budget (OMB) every 3 years for an audit. They are now finished with their review.

RECENT UPDATE: The following forms will expire on August 31, 2021.

  • FMLA Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)
  • FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
  • FMLA Notice of Eligibility and Rights & Responsibilities (WH-381)
  • FMLA Designation Notice (WH-382)
  • FMLA Certification of Qualifying Exigency for Military Family Leave (WH-384)
  • FMLA Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave (WH-385)
  • FMLA Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

Do You Have an Opinion About the Overtime Rule? 

The Wage and Hour Division is holding listening sessions to gather employers’ opinions on the white-collar exemption regulation, also known as the “Overtime Rule.” This rule would impact overtime pay requirements for executive, administrative, and other exempt employees.

If you would like to submit a comment or be part of the discussion, the sessions will be held at live events: September 7-24, 2018 in the following states: CO, GA, MO, RI, and WA. More details can be found at DOL: Overtime Listening.

U.S. Department of Labor’s New Wage and Hour Opinion Letters for FLSA & FMLA

The U.S. Department of Labor’s (DOL) Wage and Hour Division issues opinion letters which explain how a specific law applies to a real-life employment situation. The DOL recently issued several more opinion letters related to the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

The recent opinion letters address the following issues:

  • If organ donation is a serious medical condition under the FMLA.
  • Compensation when voluntarily attending benefit fairs and certain wellness activities.
  • Commissioned sales employee overtime exemptions.
  • “No-fault” attendance policies and roll-off of attendance points under the FMLA.

Have a question for the DOL? You can request for an opinion from the WHD here.

STATES

Maryland

Maryland Protects Victims from Retaliation and Requires Employers to Disclose
Effective Date: October 1, 2018

New requirements for sexual harassment in Maryland apply to all employers and prevent employers from retaliating against workers who disclose sexual harassment incidents. They also prohibit employers from including any provision in an employment agreement that waives worker’s rights in a future sexual harassment claim.

To comply with this regulation, review and revise your policies, contracts, and agreements regarding language that applies to sexual harassment. You’ll also need to review managers’ sexual harassment training to ensure supervisors understand the meaning of retaliation in the context of the disclosure. KPA’s “Preventing Sexual Harassment for Managers and Supervisors” online training has this covered.

Employers with 50+ employees must also report the number of sexual harassment incidents and settlements in two upcoming surveys conducted by the Maryland Commission on Civil Rights (MCCR) in 2020 and 2022. The deadline for filing this information will be July 1 of each of the applicable survey years. Up until then, you’ll need to track any harassment claims in a way that allows you to easily retrieve details in the future.

Massachusetts

Massachusetts Amends Ban-the-Box, Limits Employer Questions
Effective Date: October 13, 2018

Massachusetts’ current ban-the-box law prohibits employers from asking about an applicant’s criminal history on an employment application or asking candidates about the following types of criminal history:

  • An arrest where no conviction resulted.
  • First offense for misdemeanors related to drunkenness, traffic violations, and disturbing the peace.
  • Any misdemeanor conviction occurring 5+ years ago.

Going forward, after the written employment application, employers will be restricted from asking about the following types of information:

  • Any convicted misdemeanor that is 3+ years prior to the date of employment application. If the candidate has been convicted within the 3 years prior to filling out the application, then the employer is authorized to ask about the conviction.
  • Employers cannot ask candidates about expunged or sealed records.

What you can do now is ensure that all of your hiring managers know about the impending restrictions and, if you haven’t already, remove any questions related to criminal background history on your application forms and from interview questions.

The Massachusetts Noncompetition Agreement Act Seeks to Regulate in Favor of Employees
Effective Date: October 1, 2018

Noncompete agreements will have new restrictions in order to curb overuse by employers. Under the Massachusetts Noncompetition Agreement Act (“Noncompete Act”), employees who cannot enter such an agreement are:

  • Nonexempt (according to FLSA)
  • Minors
  • Part-time college or graduate students

The noncompete agreement must be:

  • Limited to 12 months, with some exceptions.
  • Presented during the offer stage for a new hire or 10 days earlier than the start date.
  • The employee needs to be informed of their right to legal counsel and both parties must sign and date the agreement.
  • For existing staff, any current agreement must be “fair and reasonable” for the agreement to stay valid.

Payment: Garden Leave
Garden leave is a British term that originated from “a worker who can’t work and can only spend time in the garden.” It refers to a worker who is on notice and still on payroll. The length of the noncompete agreement, following a termination, is the garden leave period. The state was originally going to require employers to pay the employee’s full salary during the agreement, but it has been reduced to 50% of the highest base salary that the employee earned two years before termination. Employers may also substitute “other mutually agreed upon considerations.” However, continued employment no longer qualifies as a “fair and reasonable” consideration. Amendments to existing agreements will have to include appropriate compensation.

If you have noncompete agreements that you would like to continue to use after October 1, 2018, know that you will have to prove why the agreement is in place and amend them to include the garden leave provision. These agreements also apply to independent contractors.

Nondisclosures that protect confidential information and prohibit former employees from recruiting staff or reaching out to clients are not included in this new law. This only applies to traditional noncompete agreements. Parties should be given seven days to revoke noncompete agreements included in a separation agreement or related to selling a business, such an agreement.

Considerations:

  • Multistate employers need to apply noncompete restrictions to all Massachusetts workers who have lived in the state for at least 30 days prior to termination.
  • Review your noncompete, confidentiality, and non-solicitation agreements with legal counsel.
  • Consider what compensation portion of your separation package could be substituted for garden leave.
  • Review onboarding procedures to comply with new timing and process requirements.
  • Edit your termination procedures.

New Jersey

New Jersey Medical Marijuana Doesn’t Impact Employers
Effective Date: Immediately

In a recent case, Cotto Jr. v. Ardagh Glass Packing, Inc., a federal New Jersey judge ruled that an employer did not discriminate against an employee when denying the employee’s request to waive a drug test as a reasonable accommodation. The worker received medical marijuana and Percocet to manage his pain treatment following a work-related injury. When he refused the drug test due to noncompliance, he was suspended. The worker claimed that this was disability discrimination under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) and the New Jersey Law Against Discrimination. The courts disagreed and granted the employer the right to drug test for marijuana use on the job.

Employers should review their drug and alcohol policies to ensure compliance with state statute. Consider consulting an attorney before taking disciplinary action.

New Jersey Paid Sick Leave Law Takes Effect End of October
Effective Date: October 29, 2018

The state of New Jersey passed its own version of the Paid Sick Leave Act voiding all local ordinances that have recently adopted their own paid sick leave laws.

Covered employers/employees:
For all employers, regardless of size, you must provide coverage to most employees, both part-time and full-time employees, working in the state for compensation. Unlike the NJ SAFE Act, there is no requirement for hours worked to be eligible for paid leave. This act excludes contract construction workers, per diem healthcare workers, government workers, and employees covered under collective bargaining.

Requirements of the New Jersey Paid Sick Leave Act:

  • Accrual: After 120 days of employment, for every 30 hours of work, employees can accrue 1 hour of paid leave; not to exceed 40 hours for the year. Employees must be paid their normal rate of pay when they take leave.
  • Current PTO Policy: Employers can keep their own PTO policy if it amounts to an accrual equal or greater to the state law (1 hour accrued for every 30 hours worked) and the policy must ensure employees can take time off for the reasons listed in Paid Sick Leave Act.
  • Carryover: Employers don’t have to allow more than 40 hours to carry over to the next benefit year, defined as 12 consecutive months. You are only required to provide 40 hours of PTO a year. Employers using the accrual method may allow employees to carry over hours or pay them for unused time at the end of the benefit year. If employees are paid out, they are required to receive their PTO on an annual basis instead of accrual for the next benefit year.
  • Foreseeable notice: Employees are required to give at least a seven-day notice to take the time off.
  • Unforeseeable notice: Employee must give notice as soon as practicable and make a reasonable effort to take time off when it least disrupts employer’s operations.
  • Recordkeeping: Employers must document PTO, specifically for the purposes of sick leave. This information must be made available, for up to five years, for the Department of Labor and Workforce Development.
  • Action: Post a notice of employee rights in the workplace when it is released by the Commissioner and provide a written copy to existing employees within 30 days of release. Provide the notice to all new hires after existing employees.

Eligible leave reasons can include:

  • Prevention, diagnosis, treatment, and care of a mental or physical illness.
  • To take care of a “family member” for one of the reasons above or caring for family member who is a victim of domestic or sexual violence. A family member is defined broadly to include extended family members and relationships similar to those of family bonds.
  • Public emergency closures and health emergencies causing childcare to be disrupted, etc.
  • School-related conference.

Employers are prohibited from retaliating against employees who take paid sick leave. Employers that violate this act will face financial penalties.

Unless there is an internal agreement stating otherwise, employees are not entitled to be paid out for unused accrued sick leave upon separation. However, if an employee is reinstated within 6 months, their previous PTO must be made available to them.

Considerations

  • Review your existing sick, vacation, or sick day policies to ensure they meet the act’s requirements.
  • Decide whether you are going to use the accrual method or provide employees the hours up front.
  • Review your recordkeeping practices to ensure you are tracking employees’ PTO and specifically tracking the hours they take for sick days.
  • Provide the display notice for existing employees by October 29, 2018, and make it available for all new hires. It’s recommended to post this notice in a high traffic area at your place of business.
  • Be on the lookout for the employee rights document from the state as there isn’t a set date for its release. Once it is available, it will need to be provided to new and existing employees and displayed.

New York

New York Sexual Harassment Training, Effective This Month
Effective Date: October 9, 2018

As reported last month, employers must have a written sexual harassment policy and implement sexual harassment training by October 2018. State agencies have provided a sexual harassment training model that employers can use, or you can use an outside vendor’s if it meets these requirements:

  • Must be given to all (paid and unpaid) interns, employees, contractors, or anyone conducting business with the employer.
  • Includes an explanation of sexual harassment with examples.
  • Outlines that managers and supervisors are required to report complaints to a designated person under this policy.
  • Provides a tutorial of administrative and legislative laws surrounding sexual harassment and explains how to file complaints.
    • Note: Investigations must be completed within 30 days. If an employee refuses to file a complaint, the employer must document the oral conversation.

Documentation for Investigations:
The state requires employers to document the steps of the investigation. These investigations must include:

  • A list of all documents reviewed for the claim and all relevant documents.
  • List of witnesses and all interviewed including a detailed summary of their statements.
  • Prior incidences reported or unreported.
  • A timeline of events.
  • The final conclusion with any corrective actions taken.
  • Employers must notify the final determination to the claimant.

Effective October 9, 2018 employers must conduct training. The written policy must be given to employees and include the same requirements as the training along with several specific statements related to employees’ rights and enforcement, non-retaliation for disclosures, and consequences given if an incident occurs.

Additional Resources:

After September 12, 2018, all the model notices will be updated. Employers must complete new sexual harassment training by January 1, 2019.

NYC Requires Employers to Talk Out Reasonable Accommodations Issues
Effective Date: October 15, 2018

The New York City Human Rights Law (NYCHRL) will require employers to have a written or oral “cooperative dialogue” with employees requesting a reasonable accommodation. The NYCHRL rule on reasonable accommodation applies to:

  • Religious needs
  • Pregnancy-related needs
  • Domestic violence
  • Sexual assault or stalking

Reasonable accommodations can come in the form of requests from the employee or from a close source. If the accommodation seems reasonable, employers should have a discussion with the employee about how to best support them. This amendment addresses the components of that conversation. Your discussion should address:

  • The requested need
  • Options and alternative solutions to meet the need
  • The costs for the employer and the impact that the reasonable accommodation may have on the business

Employers must participate in this process and engage in a timely written or oral conversation with the employee. After this takes place, you must notify the employee in writing about whether you are approving or denying their request. Consequences of noncompliance include fines of $125,000 for each offense and $250,000 per offense if willful intent to violate this clause is found.

Considerations:

  • Review your reasonable accommodation policies.
  • Create a process for employees to submit reasonable accommodation requests.

Train hiring managers and supervisors to understand the process of cooperative dialogue and recordkeeping/documentation requirements. Remember: Your response about accommodations must be documented.

Texas

Austin Paid Sick Leave Ordinance Challenged by Texas State Law
Austin’s Paid Sick Leave Act had an October 1 effective date, but it has temporarily been put on hold. The State of Texas argues that Texas employers may have workers in many different cities making local ordinances hard to manage and maintain. Depending on the decision of this case, San Antonio’s paid sick leave ordinance will most likely follow suit.

Washington

Washington State Guides Employers on Accommodating Pregnancy
The Healthy Starts Act was designed to help employers understand the needs of pregnant women and aims to clarify what accommodations they need to consider. This Act is more of a guide rather than any new regulations placed on employers. The Act gets specific on the definition of “reasonable accommodation:”

  1. Restroom breaks may need to be longer in duration or more frequent.
  2. If the employee stands during their workday, they must be offered an option to sit.
  3. Modify your food and drink policy.
  4. Lifting limited to 17 lbs. or less.
  5. Scheduling flexibility for doctor’s visits.
  6. Option to switch positions for less strenuous work.
  7. Moving to part-time work or a modified work schedule.
  8. Individual requests.

You can require a medical note for 4-7, but for 1-3, you’re required to provide these provisions for employees without documentation from them. Employers must also comply with pregnancy accommodations unless it would cause undue hardship for employers to provide the accommodation. Any retaliation or against an employee or denying of employment because of pregnancy is a prohibited practice. Washington employers should review this guide and ensure you’re following these practices.

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Camille BradburySeptember 2018 HR Regulatory Updates