Labor Law Updates for December – 2021

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.

This list is not inclusive of all legislative changes for employers across the U.S. Other changes may have been addressed in previous updates, which can be accessed online at: https://inspiringhr.com/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 upcoming state changes in this issue are as follows:

COLORADO

Paid Sick Leave Law expands to all employers – Effective January 1, 2022

The Colorado Healthy Families and Workplaces Act requires employers to provide at least 48 hours of paid sick and safe leave (“PSSL”) each year on either an accrual basis based on hours worked or frontloaded annually.

In 2021, the Act only applied to employers with 16 or more employees. The Act expands to employers with 1 to 15 employees on January 1, 2022.

We recommend that all employers review their existing PTO or paid sick time policies, or the absence of them, to ensure compliance with the expanded rules in 2022. See here for more details.

Exempt Salary Threshold increase – Effective January 1, 2022

In addition to qualifying for exemption due to the nature of their job duties, exempt employees in Colorado must earn at least $45,000 in 2022 in order to remain classified as such.  This is now significantly higher than the current federally required salary of $35,568, annually.

Employees in Colorado who now do not meet the state salary requirements must either be reclassified as non-exempt or have their salary adjusted accordingly.  The schedule for future salary increases can be found within the Colorado Overtime & Minimum Pay Standards (COMPS) order.

CONNECTICUT

Responsible and Equitable Regulation of Adult Use Cannabis – Effective July 1, 2022

Connecticut has become the 19th state to legalize recreational marijuana use by adults. Gov. Ned Lamont signed the Act Concerning Responsible and Equitable Regulation of Adult-use Cannabis on June 22 and the employer provisions go into effect on July 1, 2022.

CT will permit individuals 21 years of age and older to possess and use recreational cannabis. Individuals cannot possess more than 1.5 ounces on their person or more than 5 ounces in a locked container in their home or in a locked glove box or trunk of a motor vehicle.

Provisions Affecting Employers

Employers can maintain a drug-free workplace and implement policies prohibiting the possession, use, or other consumption of cannabis by an employee, subject to certain exceptions, including existing protections for qualified patients under the state’s medicinal marijuana law. Employers must put such policies in writing and make them available to employees and prospective employees.

Employers generally cannot discharge or take adverse action against an employee because the employee uses cannabis outside of the workplace unless an employer has a disseminated policy. There are certain exceptions. Further, employers should be mindful of Connecticut’s existing laws limiting drug testing of current employees.

Employers generally cannot discharge, refuse to hire or otherwise take adverse employment action against an employee or prospective employee based on the individual’s cannabis usage outside of the workplace before such employee or prospective employee became employed, unless doing so would cause an employer to violate a federal contract or lose federal funding.

Employers can still take appropriate employment action based on reasonable suspicion of an employee’s usage of cannabis while engaged in the performance of work or on call, or upon determining that an employee “manifests specific, articulable symptoms of drug impairment” while working or on call that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.

Employers can take adverse employment actions based on positive marijuana drug test results when there is reasonable suspicion (as described above) or after a pre-employment drug test or random drug test (only as permitted by existing CT law), when the employer has an established drug testing policy stating that a positive test result for marijuana may result in adverse employment action.

Certain employers can claim exemptions from some of the law’s employer prohibitions, including those in mining; utilities; construction; manufacturing; transportation or delivery; educational services; healthcare or social services; justice, public order and safety activities; and national security and international affairs.

The new law also provides carveouts for certain positions, which can be found at https://portal.ct.gov/cannabis/Knowledge-Base/Categories/Basic-Information-and-the-Law/Definitions?language=en_US.

MISSOURI

Victims Economic Safety and Security Act (VESSA) – Effective August 28, 2021

Missouri employers with at least 20 employees in the state must provide unpaid leave for employees who are victims of domestic or sexual violence, as defined by state statute, or have family or household members who are victims of such violence. Covered employers must also notify current employees of their right to leave under the law.

The new law, titled the Victims Economic Safety and Security Act (VESSA), provides employees with protected leave time to: seek abuse-related medical attention and counseling, or recover from abuse-related injuries (physical or psychological); obtain services from a victim services organization; participate in safety planning; temporarily or permanently relocate to a safer living space, or take other actions to increase the safety of the employee (or family or household member); and/or pursue legal remedies to ensure the health and safety of the employee (or family or household member), including preparing for civil and criminal actions resulting from the violence. Not only may employees take VESSA leave relating to their own experience with domestic or sexual violence, they may also take leave to deal with such abuse suffered by a “family or household member,” including individuals who reside in the same household as the employee, immediate family members by blood or marriage, and people who “share a relationship through a son or daughter.”

NEW JERSEY

NJ – Independent Contractor Misclassifications – Effective January 1, 2022

On July 8, 2021, NJ signed a law which makes it easier for the state to identify employers who misclassify employees as independent contractors, as well as penalize employers for such misclassification.

The law authorizes the Commissioner of Labor and Workforce Development to impose penalties and administrative constraints on employers through litigation and expands the authority of the commissioner to issue stop-work orders for businesses found to be violating wage, benefit, and tax laws.  Significantly, workers affected by stop-work orders must be paid by their employer for the first ten (10) days of work lost because of the stop-work order.  If an employer fails to pay wages owed, the commissioner may assess a penalty of $5,000 per day for each day that the employer conducts business that is in violation of the stop-work order.

Additionally, the law permits the commissioner to file suit in New Jersey Superior Court and seek an immediate injunction to prevent ongoing violations of wage, benefit and tax laws.  If successful, the commission can recover reasonable attorneys’ fees, as well as litigation and investigation costs.  This law went into effect on July 8.

The law makes misclassifying employees as independent contractors to evade insurance premium payments a violation of the New Jersey Insurance Fraud Prevention Act (NJIFA). Employers who “purposely” or “knowingly” misclassify employees under the NJIFPA may be subject to penalties for fraud that include fines starting at $5,000 for the first violation, $10,000 for the second violation, and $15,000 for each subsequent violation.

TEXAS

TX Employment Law Changes – Effective September 1, 2021

The state of Texas has recently passed numerous laws impacting Texas-based businesses that that went into effect in September. Please see below for more details, and what all employers in Texas need to be aware of:

Medical Marijuana Use Expansion

Under prior law, marijuana could be prescribed only for a very limited number of medical conditions. The updated law now post-traumatic stress disorder and all forms of cancer to the list of qualifying conditions. It also doubles the amount of permissible THC in marijuana products from one-half percent to one percent.

This expansion of the law broadens the scope of eligible medical conditions. Texas employers should be prepared for a corresponding rise in accommodation requests from medical marijuana users.

Expansion of Sexual Harassment Protections

The Texas legislature has broadened the scope of protections afforded to victims of workplace sexual harassment in some notable ways.

• Employers of any size can be sued for sexual harassment in Texas, and the door has been opened to individual liability as well. Previously, it only covered those employers with 15 or more employees.
• The revised Texas Labor Code calls for liability if there is a claim of sexual harassment and the employer: 1) knows or should have known that the conduct was occurring; and 2) fails to take “immediate and appropriate corrective action.”
• Employees now have 300 days to file a claim with the EEOC or TWC (it was previously 180 days).

We recommend: While Texas law does not require anti-harassment training, we recommend workplace training for employers and managers to prohibit sexual harassment and other forms of discrimination and harassment in the workplace.

New Permitless Carry Law Requires New Signage

As of September 1, 2021, the Firearm Carry Act of 2021 allows most Texans over the age of 21 to carry holstered handguns without a permit and without training.

Be aware that this will require new signage under amendments to section 30.05 of the Texas Penal Code.

Broader Remedies for Employees Called to State Military Duty

Texas employers have long been prohibited from discharging an employee because the employee was called to active duty or training with the state military forces, and employers must grant reinstatement without loss of seniority, vacation time, or other benefits.

The new statutory amendment (SB 484) grants employees the right to hire a lawyer and file a civil lawsuit if they feel their rights under this law were not honored. It also generally affords them the same benefits and protections available under the federal Uniformed Services Employment and Reemployment Rights Act and under the Servicemembers Civil Relief Act.

For Hotel Based Employers Only:

Human Trafficking Prevention Law

Effective January 1, 2022, HB 390 will prohibit an operator of a commercial lodging establishment (defined as a hotel, motel, or similar businesses offering more than 10 rooms to the public for lodging) from disciplining, retaliating against, or otherwise discriminating against an employee for making a good faith report of a suspected act of human trafficking.

Commercial lodging establishments also must post appropriate signage and require all employees to complete an annual human trafficking and awareness program.

 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 decisions about policies.

Interested in other current employment trends? Click the link to view the recent blog: Address Talent Shortages by Being More Flexible or check back for more on human resources, payroll, insurance, and benefits.