January 2022: Minimum Wage Rate Increases

Effective January 1, 2022, minimum wage rate increases will go into effect for a number of states, cities, and municipalities. These increases will be applicable to employers who have employees performing work in the affected areas. Click here to view the new minimum wage requirements,

To help manage this challenge, we are providing you with a rates-only update that details scheduled state and local level wage increases that will occur on January 1, 2022 (as well as additional increases taking place after January, but before July 2022) so employers can determine the minimum amount they must pay non-exempt, tipped, and certain exempt employees.

November 2021: Puerto Rico Issues New Executive Order Providing for New Vaccination Mandates

Update Applicable to:
All employers in Puerto Rico with 50 or more employees.

What happened?
On November 15, 2021, Governor Pierluisi issued Executive Order No. 2021-075 (EO 2021-075), which integrates prior COVID-19-related orders still in effect and, notably, includes vaccine/testing requirements for employers with 50 or more employees.

What are the details?

Taking effect immediately, employers must require their employees to provide:

  • Proof of vaccination
  • A negative test result at least every seven days; or
  • Certified proof of recovery within the last three months of COVID-19

Employers with less than 50 employees are not required to comply to the requirements above for now.

Employees who work for employers with 50 or more employees must provide proof that, by November 30, 2021, they have initiated the vaccination process. They must then certify to the employer that they have received the second dose of the vaccine if the type of vaccine that was administered requires it.

Employees will have until December 30, 2021, to complete the vaccination process.

Employees who do not provide proof of vaccination and who are not vaccinated must submit a COVID-19 negative test result at least every seven days or a positive COVID-19 result within the last three months and proof of recovery.

Employees who fail to comply with the mandatory vaccination requirements or provide the required results will not be allowed to be physically present in the work area. For such an employee, the employer can implement applicable pertinent measures, including allowing the employee to use the relevant leave of absence or unpaid leave, if applicable.

The Executive Order eliminates the religious and medical exemptions provided in prior executive orders. Further, employees who are not vaccinated (for any reason) must present a negative COVID-19 test results at least every seven days or submit certified proof of recovery within the last three months from COVID-19. Prior executive orders required test results on the first day of the workweek.

Failure to comply with the Executive Order may result in fines of up to $5,000, six months in jail, or both, at the discretion of a court.

For more information, please see the links below:

Puerto Rico Executive Orders Website

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What do employers need to do?
Employers should review the links and immediately make adjustments to their COVID-19 vaccination policies.

November 2021: New Tennessee Law Restricts Workplace Vaccine Requirements

Update Applicable to:
All employers in Tennessee.

What happened?
On November 12, 2021, Governor Lee signed Senate Bill 9014 (SB 9014) into law creating Title 14 of the Tennessee Code, prohibiting vaccination requirements, and allowing former employees to collect unemployment benefits.

What are the details?
Effective November 18, 2021, private employers who employ one or more employees within Tennessee, governmental entities, and schools are prohibited from requiring proof of COVID-19 vaccination or taking adverse action against an employee or applicant for refusing to provide proof of vaccination if the employee or applicant objects to vaccination for any reason.

Additionally, the new law– creating Title 14 of the Tennessee Code–provides that employees may collect unemployment benefits if they are separated from employment as a result of refusing to receive a COVID-19 vaccine. 

An employer may be sued if they violate Title 14. Title 14 creates a private right of action, allowing employees and members of the public to sue for injunctive relief, compensatory damages, and attorney’s fees if they believe they have been injured.

For more information, please see the links below:

House Bill 9077 (HB 9077)

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What do employers need to do?
Employers should review the links provided above and make adjustments to their COVID-19 vaccination policies.

November 2021: Florida Bans Vaccine Mandate

Update Applicable to:
All employers in Florida.

What happened?
On November 18, 2021, the Florida legislature passed House Bill 1-B (HB 1-B), banning private employers from mandating COVID-19 vaccines unless several exemptions are offered to employees.

What are the details?
Effective immediately, an employer must allow employees to opt-out of the vaccine mandate if the employee makes a statement for refusing the vaccine for the following reasons below:

  • Medical Reasons.
    This includes reasons of pregnancy or anticipated pregnancy. To receive a medical exemption, an employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee. While not addressed in the legislation, we suspect that this exemption will function similarly to those provided for disabilities under the Americans with Disabilities Act (ADA).
  • Religious Reasons.
    An employee must present a statement that they decline the vaccine because of a “sincerely held religious belief.” Although that term is undefined, it likely refers to sincerely held religious beliefs as understood under federal law.
  • COVID-19 “Immunity.”
    An employee must show “competent medical evidence” that they have immunity to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not state what “immunity” is but directs the Department of Health to establish a standard for determining that immunity.
  • Periodic Testing.
    An employee must provide a statement indicating that they will comply with the employer’s requirement to submit to regular testing. Although “regular testing” is not defined, the law directs the Department of Health to adopt emergency rules specifying requirements for frequency of testing. Importantly, any testing must be at no cost to the employee.
  • Agreement to use Personal Protective Equipment (PPE).
    An employee must present a statement that they agree to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when around others. “Personal protective equipment” is not defined. It is unclear whether the use of the term would implicate Occupational Safety and Health Administration (OSHA) regulations or Centers for Disease Control (CDC) guidance on “personal protective equipment.”

This law will be enforced by the Department of Legal Affairs in the Attorney General’s office. Employees can file complaints that an exemption was not offered or was improperly applied or denied, which will then be investigated.

If the Department finds that an employee was improperly terminated and the employer does not restore the employee to their position with back pay, then the Department may fine the employer up to $50,000, depending on employer size and other factors. Employees who are wrongfully terminated may also be entitled to unemployment benefits.

For more information, please see the links below:

House Bill (HB 1-B)

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What do employers need to do?
Employers should review the links provided above and make adjustments to their COVID-19 vaccination policies.

November 2021: Colorado’s Department of Labor and Employment Issues New Rules for Paid Sick Leave In 2022

Update Applicable to:
All employers in Colorado.

What happened?
On November 10, 2021, the Colorado Department of Labor and Employment (CDLE) has adopted new Paid Sick Leave (PSL) rules for employees per 7 CCR 1103-7.

What are the details?
Effective January 1, 2022, employers will be required to provide PSL for all employees, accrued at one hour of PSL for every 30 hours worked, up to a maximum of 48 hours. If the employee does not use all the hours accrued, it will be carried forward to and may be used in a subsequent year, except that an employer is not required to allow the employee to use more than 48 hours of PSL in a year.

Employees may use accrued PSL to be absent from work for the following purposes:

  • The employee has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
  • The employee needs to care for a family member who has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
  • The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to be absent from work for purposes related to such crime; or
  • A public official has ordered the closure of the school or place of care of the employee’s child or of the employee’s place of business due to a public health emergency, necessitating the employee’s absence from work.

In addition to the paid sick leave accrued by an employee, the act requires an employer, regardless of size, to provide its employees an additional amount of paid sick leave during a Public Health Emergency (PHE) in an amount based on the number of hours the employee works.

The PHE leave is to be made immediately available, up to 80 hours or a 14-day average, and can only be used once during the entire PHE. Just as PSL, there is no cash value.

Per CDLE on PHE: Colorado’s 80-hour COVID-19-related leave continues if a COVID-19-related emergency remains “declared by a federal, state, or local public health agency,” and the federal COVID-19 emergency is ongoing.

The latest declaration extends through January 16, 2022.

The Healthy Families and Workplaces Act (HFWA) continues the right to COVID-19-related leave “until four weeks after” all applicable public health emergencies end or are suspended. For Colorado, this means the earliest end date is February 13, 2022.

The new rules also clarify that per HFWA’s recordkeeping requirements, employers must maintain and provide, upon an employee’s request, the current amount of paid leave the employee (1) has available and (2) has already used during the year, including paid sick and safe leave and any supplemental public health emergency leave. In other words, employers need to keep detailed records of the type of leave each employee has available and has used.

For more information, please see the links below:

7 CCR 1103-7

Senate Bill 20-205

Colorado Adopted Rules to be Effective in 2022

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What do employers need to do?
Employers should review the links above, prepare to adjust their PSL policies, and keep detailed records of all types of leave each employee has available and used.

November 2021: West Hollywood California to Implement Citywide Minimum Wage and New Paid and Unpaid Leave Requirements

Update Applicable to:
All employers in West Hollywood, California.

What happened?
On November 15, 2021, the city council of West Hollywood passed Ordinance No. 21-1168 that implemented an increase in the minimum wage and new leave requirements for employees in the city.

What are the details?
Effective January 1, 2022, the minimum wage in West Hollywood will be increasing twice a year until July 1, 2023.

Below is a table showing what the wage increases will look like until July 1, 2023.

1/1/20227/1/20221/1/20237/1/2023
Hotel Employers$17.64$18.31*No change$18.77*
Employers with 50 Employees or more$15.50$16.50$17.50$18.77*
Employers with Less than 50 Employees$15.00$16.00$17.00$18.77*
*This is an estimate. The actual wage will be determined by the cost-of-living adjustment for that year.

For paid leave, the ordinance requires a hybrid leave that both full and part-time employees are provided paid time off for sick leave, vacation, or personal necessity. Employees must be eligible to use accrued paid time off after the first six months of employment or consistent with company policies, whichever is sooner.

Full-time employees, defined as working at least 40 hours a week or as defined by the employer, shall be provided 96 compensated hours.  Full-time employees shall accrue at least 96 compensated time off hours per year.

A part-time employee, defined as an employee who works less than 40 hours per week, shall accrue compensated time off in increments proportional to that accrued by someone who works 40 hours in a week.

After the employee reaches the maximum accrued time off, the employer shall provide a cash payment once every 30 days for accrued compensated time off over the maximum. An employer may give an employee the option of cashing out any portion of the accrued compensated time off under the maximum, but the employer may not require the employee to cash out any accrued time off.

For unpaid leave, the new ordinance requires employers must permit full-time employees to take at least 90 additional hours per year of uncompensated time to be used for sick leave for the illness of the employee, or a member of the employee’s immediate family, when the employee has exhausted their compensated time off for the year.


For more information, please see the links below:

Ordinance No. 21-1168

Summary

Council Meeting

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What do employers need to do?

Employers should review the links provided above and prepare to make changes to their payroll system to abide by the city’s new law.

November 2021 Federal Update

OSHA Begins Process of Creating Standard to Protect Workers from Hazardous Heat (WORK IN PROGRESS)

Update Applicable to:
All businesses with indoor and outdoor worksites.

What happened?
On October 27, 2021, the Occupational Safety and Health Administration (OSHA) published a notice that will begin the process to consider a heat-specific workplace rule for indoor and outdoor worksites with possible heat-hazards.

What are the details?
The notice, titled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” is the beginning of an enhanced effort to publish a new enforcement initiative to prioritize heat-related inspections and interventions at worksites.

The enforcement initiative applies to indoor and outdoor worksites where potential heat-related hazards exist, such as construction operations, and prioritizes heat-related interventions and inspections of work activities on days when the heat index exceeds 80 degrees Fahrenheit.

On these “heat priority days,” the enforcement initiative directs OSHA Area Offices to increase enforcement efforts for specific industries, including construction. The initiative provides enforcement guidance to OSHA Area Offices, including:

  • Prioritizing inspections of heat-related complaints, referrals, and employer-reported illnesses;
  • Instructing compliance officers to be vigilant during job site visits of circumstances where employees may be performing work in hot conditions such as in direct sunlight; and
  • Expanding the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates that such hazards may be present.

For more information, please see the links below:

OSHA’s Public Notice

OSHA National News Release

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November 2021: New Jersey Employers Now Required to Give Job Preference to Certain Employees

Update Applicable to:

All employers in New Jersey.

What happened?

On September 24, 2021, Governor Murphy signed Assembly Bill 2617 (AB2617) amending New Jersey’s Workers’ Compensation Act.

What are the details?

Effective immediately, the bill amends New Jersey’s Workers’ Compensation Act to require employers with 50 or more employees to provide a hiring preference. This will be to employees following a work-related injury, who have reached maximum medical improvement but are unable to return to the positions where they were previously employed.

For more information, please see the links below:

AB 2617

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What do employers need to do?

Employers should review the bill and their applicable policies for injured employees to comply with the bill.

November 2021: Montana Minimum Wage Increasing in 2022

Update Applicable to:

All employers in Montana.

What happened?

Minimum wage in the state of Montana will be increasing by 5.25% on January 1, 2022.

What are the details?

Effective January 1, 2022, minimum wage will be increasing from $8.75/hour to $9.20/hour per Montana’s statute, §39-3-409, which requires the minimum wage be adjusted annually based on changes in inflation as measured by the Consumer Price index all Urban Consumers (CPI-U).

For more information, please see the links below:

Montana §39-3-409

2022 Minimum Wage Calculation

Consumer Price Index

2022 Montana Wage and Hour Poster

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What do employers need to do?

Employers should review the links above, prepare to update their payroll processing system, and post the new Wage and Hour poster in a conspicuous area.

November 2021: California Passes “Silenced No More Act”

Update Applicable to:

All employers in California.

What happened?

On October 7, 2021, Governor Newsom signed Senate Bill 331 (SB-331) that builds on previous legislation, Senate Bill 820 (SB-820).

What are the details?

Effective January 1, 2022, Non-Disclosure Agreements (NDAs) are now prohibited for all alleged claims of workplace harassment, discrimination, or retaliation, including those based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.

SB-311 makes several other key changes as well:

  1. Right to Consult an Attorney: An employer offering a current or former employee a settlement agreement related to the employee’s employment shall notify the employee that the employee has a right to consult an attorney.

  2. Five-Day Period to Consider Agreement: An employer must provide the employee five business days to consider the agreement, though an employee may sign the agreement prior to the end of this time period, as long as the employee’s decision to accept such shortening of time is “knowing and voluntary and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.”

  3. Non-Disparagement Provisions: Employers may continue to use non-disparagement provisions as a condition of employment or in settlement agreements. However, a non-disparagement provision that restricts an employee’s ability to disclose information related to conditions in the workplace must include the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

  4. Exemptions: SB-331 does not apply where a “negotiated settlement agreement” that resolves an underlying claim that has been filed by an employee in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process, provided that “the employee is given notice and opportunity to retain an attorney or is represented by an attorney.” Thus, there are still instances where employers can utilize NDAs in settlement agreements.

For more information, please see the links below:

Senate Bill No. 331

Senate Bill No. 820

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What do employers need to do?

Employers should update their employment settlement agreement forms to comply with the new law.