February Legal Updates

INFINITI HR is happy to provide Monthly State Labor Law Updates as a service to our subscribers. These briefs provide a general description and are not meant to be all-inclusive of compliance requirements. This list is not inclusive of all legislative changes for employers across the U.S. Changes may have been addressed in previous updates, which can be accessed from our blog.

Employers are encouraged to work with their Inspiring HR Consultant before making policy changes to capture the full requirements of these laws.

Some of the notable recent and upcoming state changes in this issue are as follows:

ALABAMA

Alabama Adoption Promotion Act – Effective July 1, 2022

Alabama recently passed the Alabama Adoption Promotion Act, which requires covered employers who provide paid leave for the birth and care of a child born to an employee to also provide equivalent paid leave or two weeks paid leave (whichever is less) for the care of a child placed with an employee for adoption. Covered employers are also required to provide eligible employees with 12 weeks of unpaid family leave for birthed or adopted children. The adoption provision applies to the first year after the child’s placement.

Alabama Adoption Promotion Act Details

Covered Employers and Employees

The law applies to covered employers and eligible employees under the FMLA.

Paid Leave

Under the act, employers who already provide paid leave for the birth and care of a child born to an employee must also provide equivalent paid leave or two weeks’ paid leave (whichever is less) for children placed with employees for adoption during the first year after placement. If the employer does not provide paid parental leave, this law does not require a new policy to be enacted.

Leave may be taken intermittently only if the employer and employee agree.

When two adoptive parents of the same child work for one employer, the employer is required to provide the leave to only one of the parents.

Unpaid Leave

Covered employers are also required to provide eligible employees with 12 weeks of unpaid family leave for the birth or adoption of a child during the first year after the child’s birth or placement. This leave runs concurrently with FMLA.

Requests for additional family leave due to the adoption of an ill or disabled child must be considered on the same basis as cases of complication accompanying the birth of a child to an employee. However, employers are not required to provide leave beyond the employee’s FMLA covered leave.

Retaliation Prohibited

Covered employers are prohibited, as with the federal FMLA, to penalize eligible employees (e.g., through demotions, discipline, or termination) for exercising their right to take leave for the birth or adoption of a child within one year of the birth or placement.

Leave Notice Requirements

When the leave is foreseeable based on an expected placement of a child in connection with an adoption, the employee must provide at least 30 days’ notice of their intent to take the leave. If the date of placement requires leave to begin in less than 30 days, the employee must provide as much notice as is practical.

NEW JERSEY

New Jersey  Mini-WARN Act – Effective April 10, 2023

On April 10, 2023, all New Jersey employers who employ 100 or more total employees (full time and part time at all locations) must provide a least a 90-day advance notice to affected employees of a mass layoff, termination of operations or transfer of operations.

A mass layoff is defined as impacting at least 50 or more employees working at or reporting to an establishment in NJ. A mass layoff includes all impacted employees across multiple locations in NJ, not just in one location.

In addition to the notice requirement, employers are also required to provide one week of severance pay for each year of service with the Company. Severance must be provided to all affected employees regardless of their status or length of service. If an employer fails to provide a 90-day notice, they will be required to provide all affected employees with four weeks of severance for every year of service as a mandatory penalty.

NEW YORK

The New York Lawful Absence Law – Effective February 19, 2023

On February 19, 2023, all NY employers will be prohibited from disciplining employees for taking legally protected (under local, state or federal law) absences from work. The law specifically prohibits employers from assessing any demerit, occurrence or any other point or deduction from an allotted bank of time. Employers may have a policy that uses points to track attendance; however, the reason for leave or time off must be tracked and all absences that are protected may not be counted against the employee.

Protected absences include but are not limited to New York Paid Family Leave, New York Paid Sick Leave, New York Vaccine Leave, New York Paid COVID-19 Leave, New York City Safe and Sick Leave, the Family and Medical Leave Act, the Americans with Disabilities Act, Worker’s Compensation, jury duty leave, voting leave, domestic violence leave, and military leave.

Employers may not threaten, discipline, discriminate or retaliate against, or terminate an employee for taking protected absences.

Employers should update all leave policies in accordance with the law, communicate these changes to all employees and train managers and supervisors of the law.

NY Enhances Rights of Employees to Express Breast Milk in the Workplace – Effective June 7, 2023

NY has approved enhancements to existing law regarding the Rights of Mothers to Express Breast Milk in the Workplace. Enhancements include:

• The Rights of “Mothers” has been amended to “Employees.”
• Employers are required to provide a private designated room or location to allow an employee to pump/express breast milk.
  • This room/location may not be a restroom or toilet stall.
  • It must be private, well lit, shielded from view and free from intrusion of others in the workplace.
  • It must be clean, have a working surface, seating, water, electricity and refrigerator to store expressed breast milk.
• Employees are permitted to express breast milk throughout the workday as often as needed (previously limited to once every three hours).
• Employers are required to implement a written policy regarding these rights. This policy must be provided to employees upon hire, annually and upon the return to work following the birth of a child.
• Employers are prohibited from retaliating against an employee exercising their rights under this law.

Employers should do the following:

• Create and/or update Company policies in accordance with the enhancements to the law;
• Communicate the updated policies to all employees annually, and upon return from childbirth;
• Communicate the policy to all new hires upon hire and annually thereafter;
• Identify a private room/location that meets all requirements of the law, so you are prepared when an employee needs the space; and
• Train managers, supervisors, and any other employee management staff on the enhancements to the law.

NY Paid Family Leave Amendments – Effective January 1, 2023

Effective January 1, 2023, the NY Paid Family Leave (NYPFL) law was amended to include siblings in the definition of family members. Siblings are defined as biological, adopted, half-siblings and stepsiblings.

The NYPFL has increased the maximum weekly benefit paid to employees who take leave. The new weekly maximum is $1,131.08. In addition, the NYPFL has reduced the wage deduction for employee contributions towards leave. The new rate is 0.455% with an annual maximum of $399.43.

Employers should do the following:

• Create and/or update your NYPFL policy to include siblings as family members;
• Notify managers, supervisors and any other employee management staff of this change.

Paid COVID Vaccination Leave – Extended to December 31, 2023

New York State has extended its paid vaccination leave law through December 31, 2023.

All NY employers are required to provide employees with a sufficient period of time off to receive the COVID-19 vaccination. Employees are eligible for up to four hours of paid time off for each dose or booster. Employees will be paid their regular rate of pay and this leave will not be charged or deducted from any other paid time off the Company provides or the employee may be eligible for.

New York State Wage Transparency Law – Effective September 17, 2023

The law will require employers with four or more employees to disclose for all posted positions the actual salary, the minimum and maximum starting salary, or hourly wage. For commission-only positions, a general statement that compensation will be based on commission may satisfy the disclosure requirement. The law requirement includes posting for any “job, promotion, or transfer opportunity that can or will be performed, at least in part, within the State of New York.” The job posting must also include a job description if one exists. If a job description does not exist, the employer is not required to create one.

Employers will be required to keep records of the compensation history and ranges and job descriptions, if applicable, for each job, promotion or transfer opportunity.

New York City Automated Employment Decision Tools Law – Effective April 14, 2023

Starting April 14, 2023, all NYC employers who use automated employment decision tools (AEDT), tests, or software programs to identify, select, evaluate, or recruit candidates or employees must hire a third-party to audit these tools to determine if they create disparate impact based on race, ethnicity, or sex. The AEDT law is intended to protect employees and applicants from potential biases and discriminatory actions that may result from using such tools.

Technology covered as AEDT includes “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”

In addition, employers are required to notify all candidates and employees they will be assessed at least 10 business days prior to using the AEDT tool, as well as what job qualifications and characteristics are being assessed and what type of data is being collected. Candidates and employees may choose to opt out of the assessment and/or request an alternative assessment method. The tools used must be audited annually and the results of the audit must be made available publicly on the employer’s website.

If an employer is currently using AEDT tools, tests, and/or software, they must ensure their process is audited by a third party prior to the effective date of the law or within 12 months of using these tools. Also, employers must notify all applicants and employees who are subject to the assessment(s) that they will be assessed, what job qualifications and characteristics will be assessed, and that they are able to opt out of the assessment or request an alternative method of assessment.

PENNSYLVANIA

Pennsylvania Human Relations (PHRA) Amendments – Effective February 8, 2023

The Pennsylvania Human Relations Act (PHRA) has redefined race, gender and religious creed under the Act. These changes became effective on February 8, 2023.

Definitions

Race now includes:

• ancestry, national origin or ethnic characteristics;
• interracial marriage or association;
• Hispanic national origin or ancestry;
• traits historically associated with race, including hair texture, protective hairstyles (such as braids, locks, and twists); and
• any other national origin or ancestry “as specified by a complainant in a complaint.”

Sex  now includes:

• pregnancy, childbirth and related medical conditions;
• breastfeeding;
• sex assigned at birth;
• gender identity and gender expression;
• affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality; and
• differences of sex development, variations of sex characteristics or any other intersex characteristics.

Religious creed now includes:

• all aspects of religious observance and practice, as well as belief.

Employers should update all company policies in accordance with the law amendments, communicate the policy changes to all employees and new hire and train managers and other staff on the updated policies.

WASHINGTON, DC

New DC Poster required – Effective November 1, 2022

The poster supporting DC’s Paid Family Leave program has been updated. Employers should post the updated notice where all employees will see it.

Phaseout of Tip credit delayed – Effective May 1, 2023

We previously announced the phase out of the tip credit for tipped workers in Washington, DC would begin as of January 1, 2023. On January 17, 2023, the DC Council approved delaying the $6.00 minimum wage for tipped workers to May 1, 2023. The new phase in schedule is:

May 1, 2023: $6.00 per hour

July 1, 2023: $8.00 per hour

July 1, 2024: $10.00 per hour

July 1, 2025: $12.00 per hour

July 1, 2026: $14.00 per hour

July 1, 2027: $16.10 per hour

WASHINGTON STATE

Paid Family & Medical Leave– Effective January 1, 2023

To keep pace with more people using the Paid Family & Medical Leave program, the Paid Family & Medical Leave premium rate will increase as follows:

• The total premium rate will be 0.8%.
• Employers will pay 27.24% of the total premium and employees will pay 72.76%.

Pay Range Disclosure– Effective January 1, 2023

Finally, beginning January 1, 2023, Washington employers with at least 15 employees must include the wage scale or salary range and a general description of all benefits and other compensation being offered when posting job openings.

Interested in other current employment trends? Click the link to view the recent blog: Why Modern Leaders are Caretakers at Work or check back for more on human resources, payroll, insurance, and benefits.

This article does not constitute legal advice, and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making policy decisions.