October 2020 Wisconsin HR Legal Updates

New Separation Notice Required

What happened?
Pursuant to an emergency rule issued by the Department of Workforce development (DWD) employers, starting November 2, 2020, must notify any separated worker about the availability of unemployment insurance benefits.

What are the details?
The rule does not specify what type of separations qualify, so employers are recommended to give the notice to all separated workers. There is no direct monetary penalty for noncompliance, but a worker who does not receive the notice may backdate their unemployment insurance claim.

The DWD has provided suggested language to provide, found here.

What do employers need to do?
Wisconsin employers should use the suggested language provided to create a notice to provide to workers upon separation.

October 2020 Pennsylvania HR Legal Updates

Pennsylvania Increases White Collar Exemption Salary Threshold

What happened?
The Pennsylvania Department of Labor and Industry published its final rule to substantially increase the salary threshold for qualifying as an exempt Executive, Administrative, and Professional (EAP) employee under the Pennsylvania Minimum Wage Act.

What are the details?
The regulation increases the EAP salary threshold under Pennsylvania law to:

  • $684 per week ($35,568 annually) effective October 3, 2020;
  • $780 per week ($40,560 annually) effective October 3, 2021; and
  • $875 per week ($45,500 annually) effective October 3, 2022.

The regulation also includes other changes to the exemption, including new changes to the duties test and allowing employers to give up to 10% of the employee’s salary requirement as nondiscretionary bonuses, incentive, and commissions that are paid annually or more frequently. 

An article covering the final rule in more depth can be found here.

What do employers need to do?
Employers in Pennsylvania should consult their employment attorney if they think they may be out of compliance, to review their options. Otherwise, they should consult with their payroll specialist to look at their options to increase necessary worker wages to maintain existing exemption status on select employees.

October 2020 Ohio HR Legal Updates

Ohio Enacts Law Limiting Liability for COVID-19 Related Claims

What happened?
On September 14, 2020, Governor DeWine signed HB 606, which provides a liability shield for employers from state-level civil actions brought by customers, employees, or others “for damages for injury, death, or loss.”

What are the details?
HB 606, like other COVID-19 liability shield laws, does not provide absolute protection. If the plaintiff can establish that the exposure, transmission, or contraction was by reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the person against whom the action is brought against, they can proceed with the civil action.

The law provides that any new local and state laws will not provide any changes to tort laws related to COVID-19. Additionally, the law will protect healthcare providers as well from liability in tort actions.

An article going over the bill in more depth can be found here.

HB 606 can be found here.

What do employers need to do?
Ohio employers should review this law and their workplace policies with their employment attorney to determine what policies they may have to change to take full advantage of this laws protections.

October 2020 New York HR Legal Updates

New York Paid Family Leave Benefits to Increase

What happened?
Benefits for New York State’s Paid Family Medical leave policy will increase starting January 1, 2021.

What are the details?
Starting 2021, qualifying employees will be eligible for up to 12 weeks of job protected paid time off, up from the 10 weeks currently provided.

Employees may use the leave for the following reasons:

  • Bonding with a new child
  • Caring for a family member’s health condition
  • Assisting family with a military servicemember who is deployed overseas

Additionally, in the spring of 2020, the law was amended to cover COVID-related uses. Finally, the cap on the weekly benefit amount will be raised as well to 67% of their average weekly wage, up to $1,450.17.

An article covering these changes and going over New York Paid Family Leave generally can be found here.

What do employers need to do?
New York employers should start looking to update their paid family leave policies in their handbooks. Training may be needed for supervisors and management to ensure proper administration.

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New York Issues First Set of Guidance on Statewide Sick Leave Program

What happened?
New York state has updated its website to include guidance on the newly effective paid sick leave program. The guidance includes additional information and an official FAQ.

What are the details?
New York’s paid sick leave started accruing for employees on September 30, 2020. However, they are not eligible to use this paid sick leave until January 1, 2021. New York has finally updated their website to provide additional information to employers, who have up until now only had the legislation to go off of on how to proceed.

The information may be found on the state’s website here.

The very informative FAQ can be found here.

What do employers need to do?
It is highly encouraged for New York employers to review the above links. New York’s sick leave will impact every business operating within the state. Employers should contact their Client Relations Specialist if they would like to make the first steps to setting up a compliant paid sick leave plan.

October 2020 Missouri HR Legal Updates

Kansas City Passes CROWN ACT

What happened?
On October 1, 2020, the Kansas City, City Council has passed Ordinance No. 200837, also known as the Creating a Respectful and Open World for Natural Hair (CROWN) Act.

What are the details?
The CROWN Act modifies the definition of “Race” to include “traits historically associated with race including, but not limited to, hair texture and protective hairstyles.” This will protect employees with certain hairstyles from harassment and discrimination related to their hair.

Ordinance No. 200837 can be found here.

An article discussing this ordinance can be found here.

What do employers need to do?
Kansas City employers should review and update their workplace policies to reflect this new protected characteristic.

October 2020 Michigan HR Legal Updates

Michigan Supreme Court Strikes Down Governor’s Emergency Authority

What happened?
On October 2, 2020, the Michigan Supreme Court struck down the emergency powers that the governor had been using to issue emergency orders throughout the COVID-19 pandemic, nullifying over 100 COVID-related executive orders.

What are the details?
Governor Whitmer had been relying on the Emergency Powers of the Governor Act of 1945 to issue emergency executive orders after the limited duration provided by the Emergency Management Act of 1976 had ended. The state’s Supreme Court found the Emergency Powers of the Governor Act of 1945 to be an unconstitutional delegation of power by the legislative branch to the administrative branch. With the previous regulations now nullified, other regulatory agencies have stepped up to help fill in some spots left by the old orders. For example, Michigan Occupational Safety and Health Administration (MIOSHA) has issued workplace interim orders to keep some workplace standards in place.

The interim enforcement plan can be found here.

An article going over the changes can be found here.

What do employers need to do?
Michigan employers should stay vigilant on new orders being given out by regulatory agencies.

Michigan Health Agency Issues Several Orders

What happened?
The Michigan Department of Health and Human Services (MDHHS) has issued several health-related orders.

What are the details?
The MDHHS issued five orders between October 6 and October 9, 2020. These orders touch on things such as:

  • Face mask requirements,
  • Defining close contact,
  • Defining “employee” for use in health-related orders,
  • Defining gatherings,
  • Defining the symptoms of COVID-19,
  • Creates limitations on gatherings in stores, libraries, and museums,
  • Restricts gather sizes for sporting events, and
  • Restricts gathering sizes for non-tribal casinos.

The orders also create protections for workers, for example, gatherings of employees in the workplace is banned for several situations. Another order creates requirements for food service establishments specifically. Finally, the orders contain guidelines for employees who are in quarantine to follow.

A more in-depth breakdown of the orders can found here.

A full list of the epidemic orders issued by the MDHHS can be found here.

The MDHHS has produced an infographic about the orders, available here. They have also produced a fact sheet, found here.

What do employers need to do?
Michigan employers should keep up to date on pandemic orders issued by the MDHHS, as they will be likely impacting workplace operations.

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MIOSHA Issues Emergency Rules to Fill Gap Left by Nullified Governor’s Orders

What happened?
The MIOSHA has issued emergency health and safety rules aimed at controlling, preventing, and mitigating the spread of COVID-19.

What are the details?
In the wake of the state Supreme Court striking down the governor’s authority to issue emergency orders, nullifying over 100 executive orders related to COVID-19, MIOSHA has issued several health-related orders in an effort to protect employees.

The orders touch on many subjects including:

  • Exposure Determination
  • COVID-19 Preparedness and Response Plan
  • Basic Infectious Disease Prevention Measures
  • Health Surveillance
  • Workplace Controls
  • Personal Protective Equipment
  • Industry Specific Requirements
  • Training Requirements for All Employers
  • Recordkeeping Requirements for All Employers

The majority of these orders are simply a reproduction of the previous executive orders. Employers who did not make changes to workplace conduct since the outcome of the state’s Supreme Court ruling will likely need to make minimal, if any, changes to be brought up to speed with MIOSHA’s expectations. The orders will sunset, unless extended, in six months (April 14, 2021).

An article going more in depth with MIOSHA’s orders can be found here.

What do employers need to do?
Michigan employers should review the orders issued by MIOSHA contained in the above article to ensure they are in compliance.

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Michigan Grants Business and Worker Protections Related to COVID-19

What happened?
On October 22, 2020, Governor Whitmer signed multiple bills that protect Michigan employers that are in compliance with COVID-related laws, including agency orders, and protect workers who do not report to work because they were exposed to, display symptoms of, or tested positive for COVID-19.

What are the details?
Namely, three impactful bills were passed: HB 6030, HB 6031, and HB 6032.

HB 6030 provides businesses that are complying with federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 immunity from any COVID-related claims. Specifically, claims including tort claims or cause of action claims related in any way to the exposure or potential exposure to COVID-19.

HB 6031 provides protections to businesses that are covered by HB 6030, but instead of protection against claims from employees, it will provide protection from MIOSHA’s State Plan relating to COVID-19 exposure or illness.

HB 6032 will instead provide protections to employees. The law specifically protects employees who do not report to work under the following circumstances:

  1. An employee who has tested positive or displays principal symptoms of COVID-19 shall not report to work until the following are met:
    1. If the employee has a fever, 24 hours since the fever has stopped without use of fever-reducing medication;
    1. 10 days have passed since the first symptom appeared or the date of a COVID-19 positive test result; and
    1. The employee’s principal symptoms of COVID-19 have improved.
  2. An employee who has close contact with an individual who has tested positive for or who displays the principal symptoms of COVID-19 shall not report to work until the following are met:
    1. 14 days have passed since the employee’s last close contact with the individual; or
    1. The individual with whom the employee had close contact is medically determined to not have had COVID-19 at the time of the close contact.

Additionally, HB 6032 prohibits employers from retaliating against workers for complying with the above. HB 6032 also allows aggrieved workers to bring a private cause of action in circuit court for injunctive relief and monetary damages and requires a court to award a plaintiff who prevails in such an action damages of not less than $5,000. However, the above protections do not apply to employees displaying COVID-19 symptoms who fail to make reasonable efforts to schedule a COVID-19 test within three days after a request from their employer.

HB 6030 can be found here.

HB 6031 can be found here.

HB 6032 can be found here.

What do employers need to do?
Michigan employers should consult their employment attorney to ensure they are in compliance with all current applicable laws to them, so they may enjoy the benefits of the protections provided to them.

October 2020 Massachusetts HR Legal Updates

Paid Family Medical Leave Upcoming Effective Date

What happened?
Beginning January 1, 2021 employees will be able to apply for Paid Family Medical Leave (PFML). The administrative body needs employers to submit (if they have not already) their leave administrator’s contact information by October 31, 2020.

What are the details?
Employees have been paying into the PFML program for almost two years now, via payroll deductions administered by employers. Starting January 1, 2021, they will be able to start using this program. Employers should ensure that their leave administrator contact information is up to date. This information is required by October 31, 2020. The Department of Family and Medical Leave (DFML) provided the following steps to follow for employers:

  1. Find the email from DFML with the subject line: Action Required: Submit Your Leave Administrator Contact Information.
  2. If you can’t find the email, you may want to check with the person in your company that submits taxes to the MA Department of Revenue, as it was sent to them.
  3. Visit https://www.mass.gov/forms/leave-administrator-contact-information by October 31, 2020, and enter the employer-specific verification code that was provided in the email when prompted.
  4. Enter your preferred contact information for leave notifications.

What do employers need to do?
Massachusetts employers should review the steps listed above to ensure they have their correct contact information listed for the Department. More steps will be sent out by the Department once the system goes live on December 2, 2020.

October 2020 Maryland HR Legal Updates

Montgomery County Lowers Standard for Proving Harassment in the Workplace

What happened?
On October 6, 2020, the County Council for Montgomery County, Maryland voted to significantly revise its human rights law as it relates to workplace harassment.

What are the details?
Bill 14-20 was signed into law on October 16, 2020. The bill amendments would change the existing “severe or pervasive” standard that normally applies under federal law. Instead the text now will read: “ a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.” Additionally, the victim will need to also prove one of the following criteria:

  • That “submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment”
  • “submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual” or
  • “The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile.”

Bill 14-20 will be effective January 15, 2021.

Bill 14-20 can be read here.

What do employers need to do?
Maryland employers should look to update their anti-harassment and workplace bullying policies.

October 2020 Illinois HR Legal Updates

Illinois Requires All Employers to Provide Sexual Harassment Prevention Training

What happened?
Effective this year, the Illinois Human Rights Act (IHRA) requires that all Illinois employers, regardless of size, provide annual sexual harassment prevention training to all employees. Employers must also report negative outcome cases involving unlawful discrimination, harassment, and/or retaliation.

What are the details?
With a lack of guidance related to COVID-19, employers must assume the rules created by the IHRA will continue as planned. All Illinois employers will need to provide annual sexual harassment prevention training to all employees by December 31, 2020. The training must contain the following subject matter:

  • An explanation of sexual harassment consistent with the IHRA;
  • Examples of unlawful conduct that constitutes sexual harassment;
  • A summary of federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of the employer’s responsibilities for the prevention, investigation, and corrective measures of sexual harassment.

Additionally, employers must, by October 31, 2020, report and adverse judgements or administrative rulings involving unlawful discrimination, harassment, and/or retaliation, to the Illinois Department of Human Rights (IDHR). The report will encompass cases from January 1, 2019 to December 31, 2019. Employers are not required to report settlements. The IDHR may, however, request a report showing the number of settlements in the preceding five years, or less. Information reported to the IDHR must not include the names of the alleged victims of harassment or discrimination. Employers will need to send in another report by July 1, 2021, to encompass information from January 1, 2020 through December 31, 2020.

An article covering the IDHR rules can be found here.

What do employers need to do?
Employers should provide training on the relevant topics to their employees before December 31, 2020 and submit the required report, mentioned above, by October 31, 2020.

October 2020 Hawaii HR Legal Updates

Hawaii Strengthens Ban-the-Box Measures

What happened?
On September 15, 2020, the governor of Hawaii signed into law Act 051 (20), creating new rules regarding potential employees’ criminal history.

What are the details?
Act 051 (20) will reduce the effective window that employers may consider a potential employees criminal record. Previously, the Ban-the-Box measure would allow employers to consider any criminal history within 10 years, both misdemeanors and felonies. The new rules differentiate between misdemeanors and felonies. The window for misdemeanors is now five years and the window for felonies is seven years. If a prospective employee has a criminal record outside of the five or seven-year window, an employer cannot consider these crimes when considering the applicant for hiring. However, there are still some exemptions to hiring to this rule, for example, Department of Education employees.

Additionally, employers may only consider the criminal history of an employee after they applicant has received a conditional job offer. The employer may still deny the potential employee if the criminal history is reasonably related to the job.

An article going over these changes can be found here.

Act 051 (20) can be found here.

What do employers need to do?
Hawaii employers should review their hiring practices. It is recommended that employers consult with their employment attorneys before turning down potential employees, solely based on their criminal history.