November 2020 Washington HR Legal Updates

State Supreme Court Grants Overtime to Dairy Workers

What happened?
The Washington Supreme Court has ruled that dairy workers, specifically “milkers,” should be entitled to overtime pay rates.

What are the details?
Previously, in the state of Washington, there were many exemptions to the overtime provisions in the state minimum wage laws. The state Supreme Court ruled that it was in direct violation of the state constitution, namely, Article I, section 12, providing that “no law shall be passed granting to any citizen, class of citizens … privileges or immunities which upon the same terms shall not equally belong to all citizens.” With this in mind, the court decided that it is a fundamental “right of all Washington workers in dangerous industries to receive workplace health and safety protections.“ The court then claimed that the Washington legislature had no reasonable ground to favor agricultural employers and exclude agricultural employees from overtime laws.

While this ruling was specifically for dairy workers, the attacks made by the court are against all exemptions related to agricultural workers. With this in mind, the minority’s opinion in this case stated that the ruling essentially “farm workers will now be entitled to future overtime pay,” without qualification.

An article going over this case can be found here.

The Washington Supreme Court case ruling can be found here.

What do employers need to do?
Employers with agricultural employees within Washington State should consult with their employment attorneys immediately to evaluate their next steps. 

November 2020 South Dakota HR Legal Updates

South Dakota Voters Legalize Marijuana Usage

What happened?
South Dakota voters have voted in favor of Constitutional Amendment A and Measure 26, both relating to the use of marijuana.

What are the details?
Constitutional Amendment A allows for the recreational use of marijuana for adults over the age of 21. Notably, Measure 26 legalizes the use of medicinal marijuana. Measure 26 allows users of medicinal marijuana the same protections granted to patients prescribed prescription drugs with regard to employment and drug testing.

Measure 26 can be read here.

What do employers need to do?
Employers in South Dakota should review their pre-employment practices in order to accommodate the new protections granted to medicinal marijuana users.

November 2020 Pennsylvania Legal HR Updates

Pittsburgh and Allegheny County Pass CROWN Acts

What happened?
The City of Pittsburgh and Allegheny County have passed the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Acts.

What are the details?
The CROWN Acts prohibit discrimination based on any characteristic, texture, form, or manner of wearing an individual’s hair if such characteristic, form, or manner is commonly associated with a particular race, national origin, gender, gender identity or expression, sexual orientation, or religion. 

The Allegheny County CROWN Acts can be found here.

The City of Pittsburgh’s CROWN Acts can be found here.

What do employers need to do?
Employers within Allegheny County or the City of Pittsburgh should review their workplace dress code policies to ensure they are not discriminating against protected hairstyles. Managers may need to be trained on any changes in workplace policies. 

November 2020 Oregon HR Legal Updates

Oregon Voters Approve Psilocybin Usage and Minimize Penalties for Drug Possession

What happened?
Voters in Oregon have passed Measures 109 and 110.

What are the details?
Measure 109:
The Oregon Health Authority (OHA) will be responsible for establishing the program and creating regulations. OHA has a two-year period to develop the program. An Oregon Psilocybin Advisory Board (OPAB) will advise the OHA. Residents will be allowed to purchase, possess, and consume psilocybin at a psilocybin service center and under the supervision of a psilocybin service facilitator after undergoing a preparation session. Under Measure 109, the OHA determines who is eligible to be licensed as a facilitator, determine what qualifications, education, training, and exams are needed, and create a code of professional conduct for facilitators. OHA would set psilocybin dosage standards and labeling and packaging rules.

Currently Measure 109 does not address how this will impact workplace practices. Guidance is expected over the next two years before the measure goes fully into effect.

Measure 110:
While Measure 110 severely reduces the penalties for individuals found to be in possession of small amounts of certain drugs that were previously illegal, it also mandates establishment/funding of “addiction recovery centers” (centers) within each existing coordinated care organization service area by October 1, 2021. Centers provide drug users with triage, health assessments, treatment, and recovery services. To fund centers, the measure dedicates all marijuana tax revenue above $11,250,000 quarterly, legislative appropriations, and any savings from reductions in arrests, incarceration, and supervision resulting from the measure.

Interestingly, Measure 110 has created a rebuttable presumption for those who require licenses to work in the state of Oregon. The measure amends ORS 670.280 to create a “rebuttable presumption” that an applicant’s or licensee’s existing or prior conviction of a Class E violation “does not” render the person unfit to obtain or hold a license. Measure 110 also amends ORS 670.280 to create a “rebuttable presumption” that such a conviction also “is not related to the fitness and ability” of the applicant or licensee to engage in the activity for which the license is required.

These two measures do not interfere with an employer’s right to maintain drug free workplaces.

An article going over the changes of these two measure can be found here.

Measure 109 can be read here.

Measure 110 can be read here.

What do employers need to do?
Oregon employers should be aware of these changes and know that it does not impact their current ability to regulate controlled substances in the workplace.

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Oregon OSHA Issues COVID-19 Regulations

What happened?

Oregon OSHA’s Infectious Disease Rulemaking Advisory Committee has issued significant restrictions on multiple industries and requirements for employers with differences between employers of varying sizes.

What are the details?
There are four requirements that all employers, regardless of industry, will need to adhere to. The four requirements are:

  1. Exposure risk assessment
  2. Infection control plan
  3. Training
  4. COVID-19 infection notification process

The following page numbers will be referring to the pages of the Oregon OSHA document that was released to outline all of these rules, found here.

Exposure Risk Assessment:
Pg. 9. “(g) Exposure risk assessment. No later than December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment, without regard to the use of personal protective equipment, masks, face coverings, or face shields. If an employer has multiple facilities that are substantially similar, its assessment may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the assessment.”

Note: Oregon OSHA has provided a template for employers to fill out that will satisfy the requirement. An additional requirement for the client to keep in mind:

“Each employer with more than ten employees statewide (including temporary and part-time workers) or that is covered by (1)(c) of this rule (workplaces at exceptional risk) must record their COVID-19 exposure risk assessment in writing by documenting the following information:

(i) The name(s), job title(s), and contact information of the person(s)

who performed the exposure risk assessment;

(ii) The date the exposure risk assessment was completed;

(iii) The employee job classifications that were evaluated; and

(iv) A summary of the employer’s answers to each of the applicable

exposure risk assessment questions in this subsection.”

Infection Control Plan:
Pg. 11 “(h) Infection control plan. No later than December 7, 2020, all employers must establish and implement an infection control plan based on the risks identified in subsection (3)(g) that implements the controls identified in (3)(g)(C)(xiii) including, but not limited to, ventilation, staggered shifts, redesigning the workplace to accommodate physical distancing, reducing use of shared surfaces and tools, limiting the number of employees and other individuals in work areas, personal protective equipment, etc. If an employer has multiple facilities that are substantially similar, its infection control plan may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the plan. Employers may also rely upon materials developed by associations, licensing agencies, and franchisors to assist with compliance and provided that mechanisms for appropriate employee feedback and involvement are provided.”

Employers with 10 employees statewide will need to keep the control plan in writing and ensure that a copy is accessible to employees at their workplace.

The actual requirements of the Infection Control Plan are as follows:

“(i) A list of all job assignments or worker tasks requiring the use of personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;

(ii) The procedures the employer will use to ensure that there is an adequate supply of masks, face coverings, or face shields and personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;

(iii) A list and description of the specific hazard control measures that the employer installed, implemented, or developed to minimize employee exposure to COVID-19;

(iv) A description of the employer’s COVID-19 mask, face covering, and face shield requirements at the workplace, and the method of informing individuals entering the workplace where such source control is required;

(v) The procedures the employer will use to communicate with its employees and other employers in multi-employer worksites regarding an employee’s exposure to an individual known or suspected to be infected with COVID-19 to whom other workers may have been exposed. This includes the communication to individuals identified through COVID-19 contact tracing and general communication to the workplace at large; and

(vi) The procedures the employer will use to provide its workers with the initial employee information and training required by this rule.”

Note: While it is not currently available, Oregon OSHA has stated that it will make samples of Infection Control Plans available to employers to assist them in completing the task.

Training:

Pg. 12.  “Employee information and training. No later than December 21, 2020, employers must provide workers with information and training regarding COVID-19. This information and training can be provided remotely or using computer-based models but must be provided in a manner and language understood by the affected workers. Employers must ensure that the training provides an opportunity for feedback from employees about the topics covered in the training, which must include at least the following elements:

(A) Physical distancing requirements as they apply to the employee’s workplace and job function(s);

(B) Mask, face covering, or face shield requirements as they apply to the employee’s workplace and job function(s);

(C) COVID-19 sanitation requirements as they apply to the employee’s workplace and job function(s);

(D) COVID-19 signs and symptom reporting procedures that apply to the employee’s workplace;

(E) COVID-19 infection notification process as required by this rule;

(F) Medical removal as required by this rule;

(G) The characteristics and methods of transmission of the SARS-CoV-2 virus

(H) The symptoms of the COVID-19 disease;

(I) The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus; and

(J) Safe and healthy work practices and control measures, including but not limited to, physical distancing, sanitation and disinfection practices.”

Note: Oregon OSHA will be providing training materials that can be used to complete the training requirements. Additionally, if the client has already provided training covering the above topics, they will not be required to administer it again, but they will need to provide training on any of the topics not covered by the previous training.

COVID-19 Infection Notification Process:
Employers will need to set up a process to notify employees that have had a work-related contract with an individual who has tested positive for COVID-19, as well as to notify affected employees that an individual who was present in the facility has confirmed COVID-19. The requirement has two parts:

(A) A mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that an individual with COVID-19 was present in the workplace while infectious or otherwise may have had work-related contact with its employee(s) while infectious; and

(B) This notification process must be established and implemented in accordance with all applicable federal and Oregon laws and regulations.

Note: Oregon OSHA has issued a model notice policy that employers may use. 

In addition to the above requirements, Oregon OSHA had issued additional requirements for the above requirements if the employer works with any of the following activities:

“(A) Direct patient care;

(B) Environmental decontamination services in a healthcare setting;

(C) Aerosol-generating healthcare or postmortem procedures;

(D) Direct client service in residential care or assisted living facilities;

(E) Emergency first responder activities;

(F) Personal care activities that involve very close contact with an individual, such as toileting or bathing; or

(G) Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual known or suspected to be infected with COVID-19”

Oregon OSHA also included industry specific regulations that can be found on the document linked above:

  1. Restaurants, Bars, Brewpubs, and Public Tasting Rooms at Breweries, Wineries, and Distilleries
  2. Retail Stores
  3. Outdoor/Indoor Markets
  4. Personal Services Providers
  5. Construction Operations
  6. Indoor and Outdoor Entertainment Facilities
  7. Outdoor Recreation Organizations
  8. Transit Agencies
  9. Collegiate, Semi-Professional, and Minor League Sports
  10. Professional and PAC-12 Sports
  11. Licensed Swimming Pools, Licensed Spa Pools, and Sports Courts Mandatory Workplace Guidance
  12. Fitness-Related Organizations
  13. K-12 Educational Institutions (Public or Private)
  14. Early Education Providers
  15. Institutions of Higher Education (Public or Private)
  16. Veterinary Clinics
  17. Fire Service and EMS
  18. Law Enforcement
  19. Jails and Custodial Institutions

The example Risk Exposure Assessment can be found here, at the bottom of the webpage under “Documents.”

The model notice policy can be found here.

Additional information, forms, and model notices will be posted here.

What do employers need to do?
All employers with employees in Oregon should review the above information and begin the process of completing the requirements, as some may take time and planning to complete.

November 2020 New York HR Legal Updates

New York Employers Required to Send Additional Warn Notices

What happened?
On November 11, 2020, Governor Cuomo signed into law Assembly Bill (AB) A10674a.

What are the details?
Effective immediately AB A1067a requires employers to send out WARN triggered notices to additional governmental agencies. The new agencies are as follows:

  • The chief elected official of the unit or units of local government and the school district or districts in which the WARN even will occur; and
  • Each locality that provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment where the WARN event is occurring.

The regulation currently does not provide what exactly needs to be included in the notices sent to these local governmental bodies. Until, if ever, the regulations are updated with information regarding the content of the notices, employers have been advised to simply send notices that provide the same information that would be required for a federal WARN notice.

An article covering this new regulation can be found here.

What do employers need to do?
Employers with medium to large amounts of employees within New York State should review the above information and update their WARN practices accordingly.

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REMINDER: New York and New York City Paid Sick Leave Laws Effective January 1, 2021

What happened?
Both New York State and New York City will have paid sick leave laws going into effect on January 1, 2021.

What are the details?
New York State will be implementing its new statewide paid sick leave program. New York City will be implementing its amendments that will cause the city-wide paid sick leave program to mirror almost exactly, the New York State paid sick leave program.

An article covering New York States paid sick leave program can be found here.

An article covering New York City’s paid sick leave amendments can be found here.

What do employers need to do?
New York employers should remember to update their workplace practice ahead of time to stay in compliance upon the effective date of these laws.

November 2020 New Jersey Legal HR Updates

New Jersey Governor Signs Executive Order 192

What happened?
Governor Murphy signed Executive Order (EO) 192 on October 29, 2020 with an effective date on November 5, 2020.

What are the details?
EO 192 includes many different new requirements for New Jersey employers. EO 192 will apply to every business, non-profit, and governmental or educational entity. The order mainly focuses on new requirements for employers that require or permit employees to work at the physical workplace. Specifically, the requirements touch on the following subjects:

  • Physical distancing
  • Face masks or coverings
    • Includes language permitting employers to deny access to the workplace to individuals who will not wear a face mask or covering
  • Availability of sanitization materials
  • Employee hygiene requirements
  • Workplace sanitization
  • Routine employee health checks
  • Notification requirements for COVID-19 exposures in the workplace

Some employees are exempt from the requirements listed in EO 192 if they interfere with the discharge of their operational duties. These employees are: first responders, emergency management personnel, emergency dispatchers, healthcare personnel, court personnel, law enforcement, corrections personnel, hazardous material responders, transit workers, child protection personnel, child welfare personnel, housing or shelter personnel, military employees, and governmental employees engaged in emergency response activities.

Additionally, the order requires that the New Jersey Department of Labor and Workforce Development produce compliance and safety training for employers and employees through its programs, as well as provide notices or other informational materials to inform workers of their rights and employers of their obligations.

An article going in more detail on the requirements of the executive order can be found here.

The EO can be found here.

What do employers need to do?
New Jersey employers should review the requirements above and update their workplace policies as needed to remain in compliance.

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Governor Murphy Signs Industry-Specific COVID-19 Restrictions

What happened?
In response to a recent COVID-19 surge, New Jersey Governor Murphy issued Executive Order (EO) 194, which impacts food and beverage establishments, scholastic and youth sports, and personal care services.

What are the details?
Of the impacted industries, the food and beverage industry were given the majority of the new restrictions. Specifically, those working in these industries will need to drastically reduce their seating capacity, by either spacing out tables by the minimum six feet apart in all directions, or by erecting barriers between tables, per guidance from the New Jersey Department of Health. Indoor operations must cease between the hours of 10:00 p.m. to 5:00 a.m., every day. Additionally, indoor bar areas are now prohibited for establishments to use. However, the order does expand the definition of outdoor seating area to now also include enclosed outdoor areas, provided that they meet certain requirements like ventilation and cleaning requirements.

Youth sports will be restricted by disallowing out-of-state travel for any activities and indoor sports venues are not to be used. These restrictions do not apply to collegiate or professional sports activities.

Personal care facilities will need to limit occupancy of any indoor premises to 2% of the maximum stated capacity. Some impacted businesses include cosmetology shops, barber shops, beauty salons, hair braiding shops, nail salons, electrology facilities, spas, day spas, massage parlors, tanning salons, and tattoo parlors.

An article covering these restrictions can be found here.

The Executive Order can be found here.

What do employers need to do?
New Jersey businesses operating in the impacted industries should update their workplace practices to reflect the new requirements.

November 2020 Massachusetts HR Legal Updates

New COVID-19 Regulations for Businesses

What happened?
On November 2, 2020, Governor Baker signed several COVID-19 related measures restricting the actions of businesses in the state.

What are the details?
The orders center on five main points: (1) a Stay-At-Home Advisory, (2) Early Closure of Businesses and Activities, (3) Face Covering Order, (4) Gatherings Orders, and (5) Sector-Specific Guidelines.

The Stay-At-Home Advisory directs residents to stay at home except for a few select activities, like grocery shopping and satisfying medical needs.

The Early Closure of Businesses and Activities order limits how long businesses may remain open. The order requires certain businesses to close at 9:30 p.m. To be specific:

  • In-person dining at restaurants must stop at 9:30 p.m., but takeout and delivery may continue for food and non-alcoholic beverages.
  • Liquor stores and other retail establishments that sell alcohol must stop alcohol sales at 9:30 p.m. but may continue to sell other products. In general, the service and sale of alcohol is prohibited during the restricted hours. This prohibition applies to all retailers, restaurants, private clubs, catering halls, events, casinos, and delivery services licensed to sell alcohol.
  • Adult-use marijuana sales, not including medical marijuana sales.
  • Indoor and outdoor events.
  • Theaters and movie theaters, including drive-in movie theaters, and both outdoor and indoor performance venues.
  • Close contact personal services, such as hair and nail salons.
  • Gyms, fitness centers, and health clubs.

The Face Covering Order creates new requirements for when people must wear face coverings, essentially everywhere public. Should a customer refuse to remove their mask due to a medical reason, businesses my not request documentation proving the condition. However, employers may ask for that documentation when an employee makes the same claims.

The Gathering Order will be restricting indoor gatherings to 10 people for private residences, and 25 people for outdoor gatherings. All gatherings must be end and disperse by 9:30 p.m.

The Sector-Specific Guidelines specifically target the following sectors: retail businesses, theaters and performance venues, close contact personal services, and arcades and other indoor or outdoor games and recreation businesses.

A detailed article going over these orders in more detail can be found here.

What do employers need to do?
Massachusetts employers should review the above changes and make any needed changes to workplace policy to stay in compliance.

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REMINDER: MA Paid Family and Medical Leave Effective January 1, 2021

What happened?
The statewide Massachusetts Paid Family and Medical Leave (PFML) program will be fully effective January 1, 2021.

What are the details?
Effective January 1, 2021, employees will be able to apply to use the PFML that has been funded through payroll deductions.

An article covering this change can be found here.

What do employers need to do?
While employers should already be in compliance with the state ran program, they may need to review with their administrative staff to ensure everyone understands the requirements and times when the new leave may be used.

November 2020 Maine HR Legal Updates

REMINDER: Upcoming Maine Earned Paid Leave Effective January 1, 2021

What happened?
The Maine Department of Labor (DOL) has issued the final rules for the mandatory paid leave created when Governor Mills signed the Act Authorizing Earned Employee Leave in May 2019.

What are the details?
Private employers with more than 10 employees working in Maine in the usual and regular course of business for more than 120 days in the calendar year. A covered employee can include full-time, part-time, and per-diem employees. Domestic workers making over $1,000 a year will also qualify for this paid leave.

The law will not cover seasonal employees, independent contractors, and employees working fewer than 120 days in any calendar year. Employees covered by a collective bargaining agreement during the period between January 1, 2021 and the expiration date of the agreement are excluded.

Employees will begin accruing paid leave upon hire. They will not be able to use the paid leave until 120 days after their employment date. Employers may frontload the 40 hours required at the beginning of the plan year or on the employee’s anniversary date as long as the employee receives no less earned paid leave than he or she would have earned under an accrual method. If an employer frontloads hours to an employee’s balance and the employee quits, the employer may deduct the number of hours they would not have earned on an accrual plan from the employee’s balance. Otherwise the employees will accrue at a rate of one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours a year. Employees may carryover their balance from one year to the next, but employers may cap this amount to 40 hours. Employers only need to pay out existing balances of paid leave if the company has a policy setting a precedent of doing that for other accrued leaves. If not, the company can choose not to. If an employee is no longer employed with an employer who does not cash out their balance and returns to work for that employer within one year, the employer must reinstate their previous balance.

Paid leave will be paid at the employee’s base pay rate. Calculating the base rate of pay requires dividing total earnings for the week prior to the leave by the number of hours worked. Note that this has the potential for employees to take leave at an increased rate should they receive a bonus or commission in the week prior to their leave. Employees working in the service industry that typically receives tips will have the state’s minimum wage be considered their base pay rate.

Employers may require employees to provide up to four weeks’ notice of their intent to utilize their earned paid leave. In emergency situations, employees must give notice in a “reasonable” amount of time. Employees may use paid leave in increments as small as one hour. Employers may allow smaller units of time if they wish. In instances of leave being used for more than three days for sick time, employers may require a doctor’s note or other documentation.

The required workplace poster can be found here.

The Act’s full text can be found here.

An FAQ provided by Maine’s DOL can be found here.

What do employers need to do?
Maine employers should begin adjusting their workplace policies to accommodate the new leave requirement. Training should be prepared for administrative staff and management to know how to handle and administer this paid leave.

November 2020 Georgia HR Legal Updates

Atlanta COVID-19 Facemask Notice Posting Requirement

What happened?
The City of Atlanta has issued further facemask requirements, now requiring additional signage to be posted by businesses to opt-out of enforcement of facemask mandates on their premises by Atlanta police, as well as send an email notice to the police department.

What are the details?
Issued in late October, the most recent requirements for Atlanta employers include a new worksite posting, and an email requirement.

Employers who wish to opt-out of the City of Atlanta’s Local Option Face Covering requirement will need to post a clearly legible sign in a two-inch or larger font at all public entrances stating the following:

This location does not consent to enforcement of any local face covering requirement upon this property.”

Additionally, employers will need to notify the Atlanta Police Department stating their refusal to consent to enforcement of Atlanta’s Local Option Face Covering Requirement by either emailing a notice to MaskOptOut@AtlantaGa.Gov or sending a written notice to Atlanta Police Department, 226 Peachtree Street SW, Atlanta, Georgia 30303.

Employers should note that Georgia already has posting requirements for COVID-19. The Georgia COVID-19 Pandemic Business Safety Act provides a litigation shield for businesses operating inside the state of Georgia. Employers who do not sell tickets to enter their establishment must, to be protected by this litigation shield, have the following text in at least one-inch Arial font place apart from any other text at all points of entry to their property that states:

Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

An article covering these changes can be found here.

What do employers need to do?
Atlanta employers should review the above requirements and ensure they have the required notices posted at their workplaces, if they wish to opt-out of local mask requirements.

November 2020 Florida HR Legal Updates

Florida Voters Pass Minimum Wage Increases

What happened?
Voters in Florida passed Amendment 2, which will increase the state’s minimum wage over the next several years until it eventually hits $15 an hour.

What are the details?
Amendment 2 will increase Florida’s minimum wage to $10.00 effective September 30, 2021. The minimum wage of Florida will still increase from $8.56 per hour to $8.65 per hour, effective January 1, 2021. After the minimum wage hits $10.00, the minimum wage will climb by $1.00, until it reaches $15.00 an hour on September 30, 2026. At that time, Agency for Workforce Innovation will regain control of managing minimum wage increases. The Florida minimum wage applies to any employees who are covered by the federal minimum wage.

Employers who must pay their employee’s the Florida minimum wage must also post a notice of the state minimum wage.

The notice’s may be found here.

Amendment 2’s full text may be found here.

An article going over Amendment 2 in more detail can found here.

What do employers need to do?
Employers in Florida should keep this increase in mind and contact their Payroll specialist if they have any questions.