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January 2022: Updated Posting Requirements

(This section provides you with an overview of labor law postings for this month. Note: many of these are included in the federal/state labor law poster)

Federal or StateUpdated PostingMandatory or Recommended
 February 
FederalFair Labor Standards Act (FLSA) – Overtime Exemptions, Overtime, Joint EmploymentANTICIPATED
FederalMinimum WageANTICIPATED
FederalFamily Medical Leave ActANTICIPATED
 ANTICIPATED 
CaliforniaJob Health and SafetyANTICIPATED
CaliforniaOSHAANTICIPATED
IllinoisYou Have the Right to Be Free from Job Discrimination and Sexual HarassmentANTICIPATED
IllinoisEqual PayANTICIPATED
New JerseyWage TheftANTICIPATED
New JerseySafe ActANTICIPATED
New YorkDiscriminationANTICIPATED
New YorkFair EmploymentANTICIPATED
New YorkMinimum WageANTICIPATED
New YorkElectronic MonitoringANTICIPATED
Rhode IslandPay EquityANTICIPATED
VirginiaMinimum WageANTICIPATED
 January 2022 
AlaskaAlaska Wage and Hour ActMANDATORY
CaliforniaCalifornia Minimum WageMANDATORY
CaliforniaCalifornia Family Care and Medical Leave and Pregnancy Disability Leave (CFRA)MANDATORY
CaliforniaCalifornia Your Rights and Obligations as a Pregnant EmployeeMANDATORY
CaliforniaCalifornia Discrimination and HarassmentMANDATORY
San Mateo, CaliforniaMinimum WageMANDATORY
East Palo Alto, CaliforniaMinimum WageMANDATORY
El Cerrito, CaliforniaMinimum WageMANDATORY
West Hollywood, CaliforniaMinimum WageMANDATORY
Sunnyvale, CaliforniaMinimum WageMANDATORY
Santa Clara, CaliforniaMinimum WageMANDATORY
South San Francisco, CaliforniaMinimum WageMANDATORY
Sonoma, CaliforniaMinimum WageMANDATORY
Redwood City, CaliforniaMinimum WageMANDATORY
Oakland, CaliforniaMinimum WageMANDATORY
Los Altos, CaliforniaMinimum WageMANDATORY
Mountain View, CaliforniaMinimum WageMANDATORY
Half Moon Bay, CaliforniaMinimum WageMANDATORY
ColoradoOvertime and Minimum Pay Standards OrderMANDATORY
ColoradoPaid Leave and Whistleblowing and Protective EquipmentMANDATORY
ColoradoFair EmploymentMANDATORY
IllinoisIllinois Your Rights Under Illinois Employment LawsMANDATORY
IllinoisIllinois Victims’ Economic Security and Safety Act (VESSA)MANDATORY
New MexicoNew Mexico Minimum WageMANDATORY
VirginiaVirginia Minimum WageMANDATORY

New York Expands Application of Prevailing Wage Requirements

Update Applicable to:
All employers of construction contractors in the state of New York.

What happened?
On January 1, 2022, an expansion of the prevailing wage law in New York will become effective. The new law will significantly increase the universe of construction projects subject to general wage requirements.

What are the details?
Effective January 4, 2022, under the Budget Bill, S.7508-B A.9508-B, signed into law by former Governor Cuomo on April 3, 2020, workers must be paid prevailing wages on “covered projects,” which refer to “construction work done under a contract which is paid for in whole or in part out of public funds where the amount of all such public funds, when aggregated, is at least thirty percent of the total construction project costs” and “where such project costs are over five million.”

The law broadens the definition of “public funds” from the traditional definition of direct public investment. “Paid for in whole or in part out of public funds” refers to money from the following sources:

  1. “The payment of money, by a public entity, or a third party acting on behalf of and for the benefit of a public entity, directly to or on behalf of the contractor, subcontractor, developer or owner that is not subject to repayment;”
  1. “The savings achieved from fees, rents, interest rates, or other loan costs, or insurance costs that are lower than market rate costs; savings from reduced taxes as a result of tax credits, tax abatements, tax exemptions or tax increment financing; savings from payments in lieu of taxes; and any other savings from reduced, waived, or forgiven costs that would have otherwise been at a higher or market rate but for the involvement of the public entity;”
  1. “Money loaned by the public entity that is to be repaid on a contingent basis; or”
  1. “Credits that are applied by the public entity against repayment of obligations to the public entity.”

Under the new law, the definition of “public entity” is broadened to include “the state,” “a local development corporation,” “a municipal corporation,” “an industrial development agency,” “any state, local or interstate or international authorities,” and “any trust created by any such entities.”

Additionally, the law imposes new responsibilities on owners and developers regarding prevailing wages. These responsibilities include (1) certifying under penalty of perjury that prevailing wages are required on the project; (2) retention of original payroll records after completion of the project, which will be subject to inspection by the Commissioner of Labor upon demand; and (3) compliance with the objectives and goals of the Minority- and Women-Owned Business Enterprises (MWBE) program pursuant to Executive Law Art. 15-A, and the Service-Disabled Veteran-Owned Businesses program pursuant to Executive Law Art. 17-B.

While the law requires payment of prevailing wage where “total project costs” exceed $5,000,000, it does not define “total project costs” or “construction project costs.” Therefore, there is some uncertainty as to which costs fall into this category and accordingly which projects are subject to the prevailing wage requirements.

For more information, please see the links below:

Budget Bill S.7508-B

Article

What do employers need to do?
Employers should review the links provided above and begin determining if relevant construction projects are subject to the new prevailing wage requirements, and if so, ensure they follow the guidelines for certified payroll records and retention of same.

New York HERO Act and Mask Mandate Extended

Update Applicable to:
All employers in the state of New York.

What happened?
In our previous communication, we informed you about New York Hero Act that was extended from December 13, 2021 to January 15, 2022. This is an update to that article.

What are the details?
On January 15, 2021, given the recent surge of COVID-19 cases in New York due to the Omicron variant, the New York Commissioner of Health has extended the designation once again through February 15, 2022. On or before February 15, the Commissioner will decide, based upon a review of the level of COVID-19 transmission at that time, whether to extend the designation further.

Employers must continue implementing their respective Disease Exposure Prevention Plan under the HERO Act, including daily health screenings and masking for workplaces where all individuals on-premises are not fully vaccinated, among other requirements.

Also, Governor Hochul declared that, through at least January 15, 2022, masks are required for employees, customers, and visitors in all indoor public places – including offices – unless the business or venue requires proof of vaccination to enter. On January 13, 2022, the Commissioner of Health issued a revised Determination on Indoor Masking, which extends this mask mandate through at least February 1, 2022.

For more information, please see the links below:

NY Hero Act Designation Extension

Indoor Masking Determination

Article

What do employers need to do?
Employers should review the links provided above, continue practicing the Disease Exposure Prevention Plan under the HERO Act, and continue to enforce the indoor mask mandate until February 14, 2022.

New York Passes Bill Requiring Employers to Notify Employees They Will Be Electronically Monitored

Update Applicable to:
All employers with a place(s) of businesses in the state of New York

What happened?
On November 8, 2021, New York Governor Kathy Hochul signed into law Senate Bill S2628 (SB S2628) which requires employers with places of business in the state to provide prior notice concerning the monitoring of employee telephone, email, or internet usage.

What are the details?
Effective May 7, 2022, employers are required to provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept telephone conversations or transmissions, email, or internet access or usage of or by an employee by any electronic device or system, including, but not limited to, the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic, or photo-optical systems. This likely includes videoconferencing platforms, such as Zoom or Teams.

The notice must be:

  • Provided in writing;
  • In an electronic record, or in another electronic form; and
  • Acknowledged by each employee either in writing or electronically.

The law requires that employees acknowledge receipt of the notice, “either in writing or electronically.” Employers should consider retaining written or electronic records of the notification to and acknowledgment by each employee who is subject to electronic monitoring.

Electronic monitoring “solely for the purpose of computer system maintenance and/or protection” does not trigger S2628’s notice requirements.

Employers must also post a notice of electronic monitoring in a conspicuous place that is readily available for viewing by its employees who are subject to electronic monitoring.

If the employer fails to abide, the law provides for the imposition of civil penalties for violations of its requirements. Employers found to be in violation of the law are subject to civil penalties ranging from up to $500 for a first offense and up to $3,000 for a third offense and for each subsequent offense. The Office of the New York State Attorney General will enforce the law.

For more information, please see the links below:

SB S2628

Article 1Article 2

What do employers need to do?
Employers should review the links above, begin implementing notices to newly hired employees regarding electronic monitoring and hang posters regarding electronic monitoring in a conspicuous setting.

New Orleans Reinstates Mask Mandate

Update Applicable to:
All employers in the city of New Orleans, Louisiana

What happened?
Mayor Latoya Cantrell has ordered that the mask mandate be reinstated in the city of New Orleans, Louisiana.

What are the details?
Effective January 12, 2022, all businesses and workplaces in New Orleans must require that all individuals over the age of two who do not have breathing complications wear masks “when in indoor spaces outside the household unless actively eating or drinking.”

This mandate is part of the city’s reopening guidelines, which also require people to show proof of vaccination or negative COVID-19 test results before entering certain indoor establishments.

Employers with operations in the city must provide workers with easy access to soap and water or sanitizer for hand cleaning in the workplace. The guidelines also state that employees who are not fully vaccinated should maintain social distancing of six feet or more when sharing the same space. Companies are obligated to clean common areas of the workplace throughout the workday.

For more information, please see the links below:

New Orleans COVID-19 Guidelines

Article

What do employers need to do?
Employers should review the links provided above and make changes or reinstate their masking policy to stay in compliance with the new order.

District of Columbia COVID-19 Paid Leave Extended

Update Applicable to:
All employers with 20 or more employees in the District of Columbia

What happened?
On December 22, 2021, D.C. Mayor Muriel Bowser signed temporary legislation extending COVID-19 Paid Leave.

What are the details?
On November 18, 2021, Mayor Bowser signed the COVID Vaccination Leave Emergency Act of 2021, D.C. Act 24-209, D.C. Code § 32-502.01, which amended the Original COVID-19 Leave provision and created a new COVID-19 Leave to take effect November 5, 2021 (New COVID-19 Leave).

On December 22, 2021, Mayor Bowser also signed the COVID Vaccination Leave TemporaryAct of 2021. This guidance is confined to the New COVID-19 Leave, which began on November 5, 2021.

Although published in the D.C. Register, the temporary legislation is in a 30-day congressional review period under the District of Columbia Home Rule Act. The anticipated effective date is February 18, 2022. Once approved by Congress, the temporary legislation will expire after 225 days (October 1, 2022). The 225 days will allow sufficient time for permanent legislation to be enacted.

Key Provisions of the New COVID-19 Leave:

  1. Starting November 5, 2021, an employee who has worked for 30 days for an employer with 20 or more employees in the District of Columbia may use up to 16 weeks of New COVID-19 Leave (D.C. Code § 32-502.01, the version approved November 18, 2021) for one of the following reasons:
    • Positive Test Result: If the employee tested positive for COVID-19 or is caring for a family member or individual with whom the employee shares a household who has tested positive for COVID-19 and must quarantine pursuant to Department of Health guidelines.
    • Isolation or Quarantine: If the employee has a recommendation from a healthcare provider or a directive from an employer that the employee isolates or quarantines due to COVID-19, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19.
    • Care for Other: If the employee must care for a family member or an individual with whom the employee shares a household, who is isolating or quarantining pursuant to Department of Health guidance, the recommendation of a healthcare provider, or the order or policy of the family member’s or individual’s school or childcare provider.
    • Childcare Closure: If the employee must care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee due to COVID-19.
  1. Certification: An employer may request reasonable certification of the need, such as:
    • Dated test result
    • Healthcare provider signed and dated statement
    • Copy of Department of Health guidance and documentation demonstrating need to comply
    • Copy of childcare facility policy or written statement from the facility.
  1. Advance Notice: An employee must provide advance notice where possible, or otherwise as soon as possible after a need to take leave arises.
  1. Unpaid Leave: New COVID-19 Leave is unpaid, but an employee may use accrued paid leave, which counts against the 16-week entitlement.
  1. Penalties: A violation of COVID-19 leave provisions could result in a fine of $1,000 per offense, as well as damages outlined in D.C. Code § 32-509.
  1. Effective Dates: New COVID-19 Leave is available starting November 5, 2021.

For more information, please see the links below:

Legislation B24-0405

District of Columbia Article

COVID-19 Leave Poster

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and ensure their current COVID-19 policies are aligned with the New COVID-19 Leave.

California Releases Notice Regarding Prevailing Wage

Update Applicable to:
All employers in the state of California.

What happened?
On December 23, 2021, the California Department of Industrial Relations released a notice regarding the prevailing wage rates in 2022.

What are the details?
Effective January 1, 2022, the minimum wage in California increased to $15.00 per hour, and each employer is required to pay at least the California minimum wage for the basic hourly rate in all cases where the published prevailing wage rate is below the California minimum wage. Any and all employer payments required by these determinations must also be paid.

For more information, please see the links below:

Prevailing Wage Notice

Prevailing Wage FAQs

What do employers need to do?
Employers should review the links provided above and verify their payroll to ensure they are in compliance with the new law.

CAL/OSHA Does Not Adopt Federal ETS, But Provides Additional Guidance

Update Applicable to:
All employers in the state of California

What happened?
On January 20, 2022, the Cal/OSHA Standards Board announced they would not consider the proposal to adopt the federal ETS, also known as a Horcher proposal.

What are the details?
The Cal/OSHA Standards Board previously considered adopting the federal ETS at its November 18, 2021 meeting. The Board delayed that proposal when the Fifth Circuit Court of Appeal reaffirmed its initial stay of the federal ETS.

While the adoption of the federal ETS is on the back burner for now, employers still need to be familiar with the amendments to the Cal/OSHA COVID-19 Emergency Temporary Standard (Cal/OSHA ETS), which went into effect on January 14, 2022, and expires on April 14, 2022.

To assist employers in complying with the amended Cal/OSHA ETS, Cal/OSHA has updated their guidance, which is linked below:

For more information, please see the link below:

Article

What do employers need to do?
Employers should review the links provided above by our source, Jackson Lewis, and refresh themselves with the Cal/OSHA ETS.

Vensure highly encourages employers to reach out to their local health departments for any specific guidelines or regulations that may be applicable to their state or county.

January 2022 Federal HR Updates

2022 OSHA Penalty Amounts

What happened?
The Department of Labor (DOL) has released its 2022 inflation-adjusted civil monetary penalties that may be assessed on employers for violations of a wide range of federal laws, including the Occupational Safety and Health Act (OSH Act). The increased amounts apply to civil penalties that are assessed on or after January 15, 2022.

What are the details?

Violation Type20212022
Posting requirementUp to $13,653 for each violationUp to $14,502 for each violation
Other-than-serious violationUp to $13,653 for each violationUp to $14,502 for each violation
Serious violationUp to $13,653 for each violationUp to $14,502 for each violation
Willful violationBetween $9,753 and $136,532 per violationBetween $10,360 and $145,027 per violation
Uncorrected violationUp to $13,563 per day until the violation is correctedUp to $14,502 per day until the violation is corrected

What do employers need to do?
Employers should become familiar with the new penalty amounts and review their safety protocols to ensure compliance.

January 2022 Mid-Month #2 Federal HR Updates

Supreme Court Votes to Stay OSHA ETS, Reinstates Vaccine Mandate for Healthcare Workers

Update Applicable to:
All employers with 100 or more employees, and all employers with Medicare and Medicaid-certified employees

What happened?
On January 13, 2022, the Supreme Court of the United States (SCOTUS) stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) but allowed the Centers for Medicare and Medicaid Services (CMS) to enforce their vaccine mandate.

What are the details?
OSHA ETS
On November 5, 2021, OSHA first issued the ETS requiring all employers with 100 or more employees to adopt either a mandatory COVID-19 vaccination policy or a policy requiring regular COVID-19 testing and face coverings for unvaccinated employees. The ETS was met by several legal challenges. Only a day after the ETS’s official publication, the Fifth Circuit Court of Appeals stayed enforcement, and a three-judge panel of the Fifth Circuit affirmed the initial stay on November 12, 2021.

After the Fifth Circuit issued the initial stay, the nationwide legal challenges were consolidated before the Sixth Circuit Court of Appeals. On December 17, 2021, the Sixth Circuit lifted the stay of enforcement. Several parties sought emergency relief from the U.S. Supreme Court, arguing that the ETS exceeded OSHA’s statutory authority and was otherwise unlawful.

In a 6-3 vote, the Supreme Court found that the applicants were likely to succeed on the merits of their claim that the Secretary of Labor (acting through OSHA) lacked authority to impose the ETS’s mandate, and it granted the stay.

CMS Vaccine Mandate
Along with granting the stay, in a 5-4 per curiam decision, SCOTUS permitted the CMS to enforce its interim final rule requiring many Medicare- and Medicaid-certified providers’ and suppliers’ staff to receive the COVID-19 vaccine.

Under the rule’s planned timeline, employees had to receive the first dose of a two-dose or a one-dose of a COVID-19 vaccine prior to providing any care, treatment, or other services by December 6, 2021, and the necessary vaccinations to be fully vaccinated — either two doses of Pfizer-BioNTech or Moderna, or one dose of Johnson & Johnson by January 4, 2022.

The regulation provides for exemptions based on recognized medical conditions or religious beliefs. However, there is no weekly testing exception for unvaccinated workers.

Also, the CMS issued a press release following the January 13, 2022 ruling confirming that the decision “does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted.” Those deadlines are:

By January 27, 2022, the CMS will expect covered facilities to have developed and implemented policies and procedures to ensure that all staff are vaccinated for COVID-19 and that 100% of staff have received at least one dose of the vaccination (or have a pending request for, or have been granted a qualifying exemption, or have been identified as being entitled to a temporary delay as recommended by the Centers for Disease Control and Prevention (CDC)).

By February 26, 2022, those facilities must also ensure that 100% of staff have received the necessary doses to complete their vaccine series, have been granted a qualifying exemption, or identified as being entitled to a temporary delay as recommended by the CDC.

As of January 14, 2022, the CMS issued an updated guidance to State Survey Agency directors providing 30 days (by February 13, 2022) for facilities to demonstrate that staff had their first vaccine doses and 60 days (by March 15, 2022) for facilities to demonstrate that staff are fully vaccinated in the 24 states subject to the injunctions lifted in the Supreme Court opinion. This extension applies only to surveyors in the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming.

Texas remains subject to an injunction, while all other U.S. states retain their current timelines (including fully vaccinated staff by February 28, 2022).

For more information, please see the links below:

SCOTUS Order

CMS Press Release

CMS Covid-19 Vaccine Policy and Guidance

OSHA Article 1OSHA Article 2

CMS Article 1CMS Article 2CMS Article 3

What do employers need to do?
Employers should review the links provided above to see what is applicable to them and what they may need to do in order to keep the workplace safe amidst the current global pandemic and be compliant with local, state, and federal guidelines.

Vensure also encourages employers to reach out to their local health departments for more information and guidance on any ETS or mandate put in place in their location.