April 2021 West Virginia HR Legal Updates

West Virginia Enacts Worker Classification Legislation.

Update Applicable to:
All West Virginia employers.

What happened?
Passed on March 19, 2021, Governor Justice signed into law SB 272, which will go into effect on June 9, 2021.

What are the details?
The legislation provides standards for determining who is an employee and who is an independent contractor under certain West Virginia statutes.  The Act states, “clarity in a worker’s classification allows businesses to comply with applicable laws, provides workers with certainty as to their benefits and obligations, and minimizes unnecessary mistakes, litigation, risk, and legal exposure laws concerning worker’s compensation, … unemployment compensation, … Human Rights Act rights, and wage payment and collections.” The Act applies only to workers’ compensation, unemployment compensation benefits, Human Rights Act rights, and wage payment and collection provision of the West Virginia Code. The Act excludes on-demand drivers, which are governed by a different labor code.

The Act outlines specific standards for determining whether someone is an independent contractor.  Specifically, a person shall be classified as an independent contractor if there is a written contract between the principal and the individual that states the principal’s intent to engage the services of the person as an independent contractor and contains acknowledgments that the person understands: (1) they are providing services as an independent contractor; (2) they will not be treated as an employee; (3) they will not be provided either workers’ compensation or unemployment benefits; (4) they are obligated to pay all applicable federal and state income taxes and that no tax withholdings from payments will be made by the principal; and (5) they are responsible for the majority of the supplies and other variable expenses incurred in connection with the contracted services unless the expenses are for non-local travel, the contract specifically provides for reimbursement, or they are commonly reimbursed under industry practice.

The Act further requires that to be classified as an independent contractor the person must file or be contractually obligated to file an income tax return regarding the fees earned from the work, or the person provides their services through a business entity and directly controls the manner and means by which the work is to be accomplished and the person satisfies three or more of the following nine criteria:

  1. the person has control over the amount of time personally spent providing services;
  2. the person has control over where the services are performed;
  3. the person is not required to work exclusively for one principal;
  4. the person is free to exercise independent initiative in soliciting others to purchase their services;
  5. the person is free to hire employees or to contract with assistants to perform all or some of the work;
  6. the person cannot be required to perform additional services without a new or modified contract;
  7. the person obtains a license or other permission from the principal to utilize any workspace of the principal to perform the work;
  8. the principal has been subject to an employment audit by the IRS and the IRS has not reclassified the person to be an employee; or
  9. the person is responsible for maintaining and bearing all costs of any required business licenses, insurance, certification, or permits required to perform the work.

The Senate bill can be found here.

What do employers need to do?
West Virginia employers should consult with their employment attorney should they consider changing an employee’s status due to the passage of this bill. Otherwise, employers should review employee and contractor workplace practices and responsibilities to ensure they are in line with the state’s definition of the worker status. 

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West Virginia Passes COVID-19 Liability Shield

Update Applicable to:
All employers operating within West Virginia.

What happened?
On March 19, 2021, Governor Justice signed legislation enacting Senate Bill 277, the COVID-19 Jobs Protection Act (“the Act”).

What are the details?
The new law provides that there is “no claim against any person, essential business, business, entity, health care facility, health care provider, first responder, or volunteer for loss, damage, physical injury, or death arising from COVID-19, COVID-19 care, or impacted care.” Under the Act, “arising from COVID-19” also includes, “implementing policies and procedures designed to prevent or minimize the spread of COVID-19.” The Act also protects those who design, manufacture, label, sell, distribute, or donate defined products in response to COVID-19, and those who repurposed businesses to provide household disinfectants, cleaning supplies, and personal protective equipment in response to COVID-19.

The Act does not, however, protect from liability to a person who had knowledge of a defect in the product and “acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that the product would cause serious injury to others; or acted with actual malice.”  Any claim made under this exception must be brought within one year of the date of injury.

Senate Bill 277 can be found here.

What do employers need to do?
West Virginia employers should continue to follow the guidance of the applicable regulatory agencies to take advantage of the protection afforded by this legislation.

April 2021 Washington HR Legal Updates

Governor Updates Proclamation 20-46 Employer Responsibilities

Update Applicable to:
All employers operating within Washington State.

What happened?
Effective April 23, 2021, amendments will go into effect changing some of the responsibilities of employers concerning Proclamation 20-46, which provided additional protections for high-risk workers during the pandemic.

What are the details?
Three primary changes will take effect at the end of this week – two of which provide looser rules for employers to follow, and another that adds additional administrative obligations for employers.

  • Employers will be permitted to require medical verification from any employee who is availing themselves of the protection of this proclamation, to determine if the employee is high-risk and if the employee can return to the workplace with additional accommodations in place. Employers should follow the same interactive process required by state and federal disability laws.
  • Employers may terminate employer-provided health coverage so long as they provide at least 14 days advanced written notice and the employee whose coverage is terminated is not eligible for coverage under the Family and Medical Leave Act (FMLA), a collective bargaining agreement, or other condition-specific to the employment relationship. However, employer-provided health coverage must remain effective through the end of the calendar month of the month in which the 14-day notice lapses.
  • Employers are required to provide at least 14 days advanced written notice explaining any accommodation changes.

An article providing information on the original requirements created by Proclamation 20-46 can be found here

Proclamation 20-46 itself can be found here.

What do employers need to do?
Employers with high-risk employees can update their workplace policies to reflect the new rules regarding the proclamation.

April 2021 Virginia HR Legal Updates

Virginia Passes Overtime Legislation

Update Applicable to:
All employers operating within Virginia.

What happened?
On March 30, 2021, Governor Northam signed into law the Virginia Overtime Wage Act (HB 2063).

What are the details?
For employees paid on an hourly basis, the regular rate will be the employee’s hourly rate in addition to other wages paid or allocated to that workweek, minus any applicable federal exclusions, divided by the total number of hours worked in that workweek. For Virginia employees paid on a salary or other regular basis, however, the regular rate will be calculated as “one-fortieth of all wages paid for that workweek.”  This new standard appears to preclude employers from paying non-exempt employees a fixed salary that covers straight-time wages for hours in excess of 40 hours in a workweek, or from utilizing the “fluctuating workweek” method of calculating overtime under the FLSA, and will require the use of a higher hourly rate for calculating overtime liability for non-exempt salaried employees in many situations. 

An article covering the ramifications of this calculation change, including an example, can be found here.

What do employers need to do?
Virginia employers should update their payroll practices, to ensure that they are paying employees, especially salaried non-exempt, the correct amount of overtime pay.

April 2021 Pennsylvania HR Legal Updates

Philadelphia Enacts 2021 Public Health Emergency Leave

Update Applicable to:
All employers operating within Philadelphia.

What happened?
On March 17, 2021, the Philadelphia City Council unanimously passed a bill amending the city’s previous Public Health Emergency Leave (PHEL) legislation. On March 29, 2021, Mayor Kenney signed the amendments into law, effective immediately.

What are the details?
The amendments provide eligible employees up to an additional 80 hours of 2021 PHEL between March 29, 2021, and one week following the official termination or suspension of the public health emergency.  Covered reasons for use of available PHEL have been expanded to include leave to receive and recover from COVID-19 vaccinations.

Notably, employers are required to provide covered employees with a notice of rights by April 13, 2021.  The traditional non-COVID-19 paid sick leave benefit under the Philadelphia Promoting Healthy Families and Workplaces ordinance is not generally affected by the 2021 PHEL amendments.  The 2021 PHEL amendments sunset upon expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic. 

Employees who work 40 or more hours per week are eligible for 80 hours of 2021 PHEL, unless the employer designates a higher amount.

Employees who work fewer than 40 hours in a week are eligible for an amount of 2021 PHEL equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period, whichever is greater, unless the employer designates a higher amount.  Employees whose schedules vary from week to week are eligible for an amount of 2021 PHEL equal to the average number of daily hours that the employee was scheduled over the past 90 days of work, including hours for which the employee took leave of any type, multiplied by 14. 

For purposes of 2021 PHEL, exempt employees are assumed to work 40 hours per week, unless their normal work-week is less than 40 hours, in which case they are eligible for an amount of leave based on that normal workweek.

An eligible employee may use 2021 PHEL when he or she is unable to work due to one or more of the following reasons:

  • To care for oneself or a family member when it has been determined by a public official or public health authority having jurisdiction, a health-care provider, or an employer, that the employee or family member’s presence on the job or in the community would jeopardize the health of others because of their exposure to COVID-19 or because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee or family member has been diagnosed with COVID-19;
  • To care for oneself or a family member diagnosed with or showing symptoms of COVID-19, or seeking a diagnosis, care, or treatment if experiencing symptoms of an illness related to COVID-19;
  • To care for a child whose school or place of care has been closed, or whose childcare provider is unavailable, due to precautions taken per the public health emergency response;
  • An employee’s need to obtain a COVID-19 vaccine; or
  • An employee’s need to recover from any injury, disability, illness, or condition related to such vaccination.

The mandate requires employers to post in the workplace, or if the workforce is mostly remote, the employer may distribute the notice via electronic means. Employers are also required to provide the notice to all employees, as of April 13, 2021.

The required posting/notice can be found here.

An article providing additional details about this paid leave can be found here.

What do employers need to do?
Employers operating within Philadelphia should update their workplace policies to reflect the changes to the PHEL program.

April 2021 Oregon HR Legal Updates

Oregon Starts COVID-19 Wage Supplement Program

Update Applicable to:
All Oregon Employees.

What happened?
As part of the $200 million of Coronavirus Aid, Relief, and Economic Security Act (CARES) Act funds authorized on July 14, 2020, Oregon has recently started its Quarantine Time Loss Program to help employees working for smaller businesses.

What are the details?
Employees that are required to quarantine as a result of exposure to, or exhibiting symptoms of COVID-19, are eligible to apply for payments from the State of Oregon. The state offers a program in which employees may apply for up to $120 a day to cover up to 10 working days, for employees who do not qualify for any other form of paid leave related to COVID-19. To be fully eligible employees must fit the following criteria:

  • Work in Oregon and required to file an Oregon personal income tax return.
  • Directed to quarantine by a local or tribal public health authority or health-care provider because of exposure to someone infected or have COVID-19-related symptoms and are seeking a medical diagnosis.
  • Not able to work (including telework) because you need to quarantine or isolate.
  • Do not expect to earn more than $60,000 individually or $120,000 jointly in 2020.
  • Your employer does not provide COVID-19-related paid sick leave or you have exhausted your available COVID-19-related paid sick leave.
  • Are not applying for unemployment insurance benefits for the time off due to quarantine or isolation.
  • Are not applying for workers’ compensation benefits for the time off due to quarantine or isolation or experiencing COVID-19 symptoms.
  • Are not seeking or using benefits from similar COVID-19 quarantine relief programs in Oregon or another state.
  • Are not applying for or receiving other forms of paid leave from your employer during your quarantine or isolation, such as banked sick leave or vacation leave.
  • Are not laid off or furloughed by your employer.
  • Must have notified your employer that you need to quarantine or isolate.
  • Can claim only one quarantine period.
  • You are not self-employed.
  • You are not part of the gig economy (Lyft, Uber, DoorDash, Grubhub, Instacart, etc.)
  • You are not being paid off the record—this means your employer is not reporting your income to the state and often employers who pay off the record pay in cash.

Employees who wish to learn more or want to apply for the program can do so by following this link.

What do employers need to do?
Employers do not need to take any action. However, this is a great resource for employees while it lasts, and it may be beneficial for employers to let employees know of the program.

April 2021 North Dakota HR Legal Updates

North Dakota Bans Paid Family Leave Ordinances

Update Applicable to:
N/A.

What happened?
On March 16, 2021, North Dakota passed a bill banning all Paid Family Leave ordinances that might be created by any political subdivisions in the state.

What are the details?
The Bill, House Bill 1398, states:

“A political subdivision may not adopt or enforce an ordinance that requires an employer to provide to an employee paid family leave that exceeds the requirements of federal or state laws and rules.”

The bill can be found here.

What do employers need to do?
No action is required.

April 2021 New York HR Legal Updates

New York Updates Health Care Personnel COVID-19 Guidance

Update Applicable to:
New York employers operating within the healthcare industry.

What happened?
On April 1, 2021, the New York Department of Health (NY DOH) issued an update to its prior guidance for health care personnel on returning to work following COVID-19 exposure.

What are the details?
The information contained in the updated guidance supersedes any other previous guidance related to fully vaccinated, asymptomatic healthcare personnel (healthcare employees) returning to work after exposure to COVID-19 or travel. Per the update, all healthcare facilities are expected to know which of their staff has been vaccinated. Any vaccinated staff who did not receive the vaccine through their workplace must inform the facility of their vaccination status through the same process the facility uses to maintain information on annual influenza immunizations and tuberculosis tests.

Asymptomatic health care employees who have had “exposure to” or been in “contact” with a confirmed or suspected case of COVID-19 (as defined in the updated guidance), may return to work after completing a 10-day quarantine without testing if no symptoms have been reported during the quarantine period, provided these conditions are met:

  • Health care employees must continue daily symptom monitoring through day 14;
  • Health care employees must be counseled to continue strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene, the use of face masks or other appropriate respiratory protection face coverings, and the use of eye protection;
  • Health care employees must be advised that if any symptoms develop, they should immediately self-isolate and contact the local public health authority and/or their supervisor to report this change in clinical status and determine if they should seek testing.
  • Health care employees exposed to COVID-19 who are working in nursing homes or adult care facilities certified as Enhanced Assisted Living Residences (EALR) or licensed as Assisted Living Programs (ALP) who complete the 10-day quarantine cannot return to their workplace (must furlough) through the 14th day after exposure unless they meet the vaccination or recent SARS-CoV-2 recovery criteria below.

There are further guidelines that may be read in the provided article for the following circumstances:

  • Asymptomatic Health Care Personnel Exposed to COVID-19 Who Are Recovered From SARS-CoV-2
  • Guidelines for Asymptomatic Health Care Personnel and Travel

An article providing a detailed breakdown of the guidelines can be found here.

The guidelines can be found here.

What do employers need to do? New York employers should update their workplace policies as needed to reflect the changes permitted by the state.

April 2021 New Mexico HR Legal Updates

New Mexico Passes Recreational Marijuana

Update Applicable to:
All employers operating within New Mexico.

What happened?
On April 12, 2021, New Mexico Governor Lujan Grisham signed into law the legalization of the use and possession of recreational cannabis.

What are the details?
By and large, workplace policies will be unchanged. The legislation that was passed does not impact employer’s ability to maintain drug-free workplaces. Employers may still prohibit employees from being in possession of “intoxicating substances” at work or during work hours. 

An employer may continue to adopt and implement a written “zero tolerance” policy regarding the use of cannabis products, and such a policy may permit employers to discipline or terminate the employment of an employee based on a positive drug test that indicates any amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite. Note that this allowance for “zero tolerance” policies does not specifically include applicants.

An article review of the bill can be found here.

The bill can be found here.

What do employers need to do?
Employers may adjust their workplace policies as they wish, the bill does not require employers to change current practices, assuming they are compliant with existing medical marijuana laws in the state.

April 2021 Louisiana HR Legal Updates

New EIC Notice Released

Update Applicable to:
All Louisiana employers with 20 or more employees.

What happened?
Louisiana has released the new 2021 Earned Income Credit Notice (EIC).

What are the details?
Louisiana employers with 20 or more employers will need to post the EIC poster in their workplace and provide it to any new hires.

The legislation creating this requirement can be found here.

The new poster can be found here.

What do employers need to do?
Louisiana employers should display the notice in the workplace where they display their other required workplace posters and distribute the new notice to all new hires for the year.

April 2021 Kentucky HR Legal Updates

Kentucky Passes Liability Shield Legislation

Update Applicable to:
All Kentucky employers.

What happened?
On April 11, 2021, Senate Bill 5 went into effect, due to the inaction of Governor Beshear.

What are the details?
Senate Bill 5 does not provide protections for businesses or individuals that act in a malicious or grossly negligent manner, or intentionally ignore executive orders or guidelines relating to a declared emergency. This provides an additional incentive for businesses and individuals to follow federal and state guidelines and recommendations pertaining to COVID-19, such as guidelines from the Centers for Disease Control and Prevention – doing so will help shield your business from potential liability. Senate Bill 5 also provides that, to the extent a claim for personal injury is made against a business or individual for injuries arising from a declared emergency, such claim must be filed within one year after the injury is first discovered.

Senate Bill 5 also protects essential businesses and individuals from liability, absent willful, gross negligence, or intentional misconduct, from any death of or injury to an individual or damage to property resulting from an act or omission related to the provision of an essential service. Such protection would be afforded during the period from when an emergency is declared until one year after the emergency declaration is withdrawn, revoked, or lapses.

It is worth noting that Senate Bill 5 does not provide protection to employers from injury claims made by their employees. Meaning that workers’ compensation is unaffected by the bill.

Senate Bill 5 can be read here.

What do employers need to do?
Employers should continue following COVID-19-related guidance from local and federal regulators to take advantage of this legislation.