May 2020 Employment Law and Regulations Update

Welcome back to the Reflexis Employment Law and Regulations Update! In this month’s article, we’ve included notable changes in United States regulations from May 2020 onward.

This list of new laws and regulations is not exhaustive, nor is it intended as legal advice. Reflexis strongly recommends you consult with your legal counsel regarding any substantive employment law and regulation changes that may affect your organization.

Readers should check for any newer developments on COVID-19 regulations at state and local levels.

Effective April 2, 2020 – December 31, 2020

Federal

Pursuant to the Emergency Paid Sick Leave Act (EPSLA) of the FFCRA, employers with fewer than 500 employees must provide eligible full-time employees up to 80 hours of paid sick leave and a pro-rated amount for part-time employees, if the employee is unable to work or telework because the employee is:

(1) subject to a Federal, State or local quarantine or isolation order; or

(2) advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; or

(3) experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or

(4) caring for an individual who is subject to a Federal, State or local quarantine or isolation order; or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; or

(5) caring for a son or daughter if the school or place of care is closed or the child care provider is unavailable due to COVID-19 precautions; or

(6) experiencing any other substantially similar condition specific by the US Department of Health and Human Services, the US Department of Treasury or the US Department of Labor.

If EPSLA is being taken for reasons (1), (2) or (3) above, then the employee is eligible to be paid the employee’s regular rate of pay, up to a cap of $511 a day and $5,110 in the aggregate. If EPSLA is being taken for reasons (4), (5) or (6), then the employee is eligible to be paid two-thirds of the employee’s regular rate of pay up to a cap of $200 a day and $2,000 in the aggregate.

Pursuant to the Emergency Family and Medical Leave Expansion Act (EFMLEA) of the Families First Coronavirus Response Act (FFCRA), any employee who has worked at least 30 calendar days for an employer with fewer than 500 employees will be entitled to up to 12 weeks of leave with the rights and protections in the federal Family and Medical Leave Act of 1993 (FMLA) if the employee is unable to work or telework resulting from the need to care for a son or daughter (under 18 years old) because the child’s school or place of care has closed or child care provider is unavailable, due to a public health emergency.

After the first 10 days of EFMLEA leave, the employee will be entitled to 2/3 of the employee’s regular rate of pay for the EFMLEA leave, up to a cap of $200 per day and $10,000 in the aggregate.

EFMLEA does not provide an additional 12 weeks of leave and should be counted as part of an employee’s FMLA leave entitlement.

CA – Emeryville

Predictability pay requirements of Fair Work Week Ordinance subject to following exceptions:

(1) Operations cannot begin or continue due to threats to Covered Employers, Employees or property, or when civil authorities recommend that work not begin or continue;

…

(3) Operations cannot begin or continue due to: acts of nature (including but not limited to flood, fire, explosion, earthquake, tidal wave, drought), war, civil unrest, strikes or other cause not within the Covered Employer’s control.

CA – San Francisco

San Francisco employers subject to the paid sick leave ordinance must allow employees to use accrued sick leave if:

• Public health officials or health-care providers require or recommend an employee isolate or quarantine to prevent the spread of disease.

• The employee falls within the definition of “vulnerable population” (a person at least 60 years old or who has a health condition).

• The employee’s work location temporarily ceases operations in response to a public health or other public official’s recommendation.

• The employee needs to care for a family member who is not sick but for whom public health officials require or recommend isolation or quarantine.

• The employee needs to provide care for a family member whose school, child-care provider, senior-care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Predictability pay requirements of Formula Retail Employee Rights Ordinance subject to following exceptions:

• Operations cannot begin or continue due to threats to employees or property;

…

• Operations cannot begin or continue due to an Act of God or other cause not within the employer’s control (such as an earthquake);

April 10, 2020 – end of current public health emergency

Colorado

Colorado Health Emergency Leave with Pay (HELP) Rules require employers in the following in leisure and hospitality, food services, retail establishments that sell groceries, food and beverage manufacturing, child care, education at all levels (including related services, including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility must provide employees who (a) have flu-like symptoms and (b) are being tested for COVID-19 or who are under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19, with up to four paid sick leave days, ending on the date that the employee receives a negative COVID-19 test result.

Failure to comply with this law will be treated as a failure to pay wages.

New Jersey

Employees who are eligible for New Jersey Sick Leave may use such leave if the employee is: (1) told to self-quarantine due to COVID-19, (2) unable to work because of a workplace closure or the closure of a child’s school by order of a public official because of COVID-19, or (3) are caring for a relative who has COVID-19 or symptoms of COVID-19. Employees may be eligible for Family Leave Insurance (FLI) if they are caring for a family member who is confirmed to have COVID-19 or has symptoms of the virus.

New York

Emergency Paid Sick Leave. Employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by NY state, the department of health, local board of health or any governmental entity to issue such order due to COVIE-19, will be entitled to:

• Unpaid leave for the entire time of such order, if they are employed by an employer with 10 or fewer employees as of January 1, 2020.
• At least 5 days of paid sick leave and unpaid leave, if they are employed by an employer with either (1) (a) 10 or fewer employees as of January 1, 2020 and (b) had a net income of greater than $1 Million in the prior tax year; or (2) between 11 and 99 employees as of January 1, 2020.
• At least 14 days of paid sick leave and unpaid leave, if they are employed by an employer with 100 or more employee as of January 1, 2020.

Employees who are asymptomatic or have not yet been diagnosed with any medical condition and are physically able to work remotely or through other similar means are not eligible for Emergency Paid Sick Leave.

Employees who traveled to a CDC Level 2 or Level 3 country for reasons other than work and were aware of the CDC warning prior to travel, are not eligible for Emergency Paid Sick Leave. Eligible employees may also receive paid leave and benefits under applicable disability and family leave laws.

NY – New York City

Predictability pay requirements of the Fair Workweek Law do not apply if a business closes due to declaration of public health emergency.

Oregon

Predictability pay requirements of Senate Bill 828 subject to following exceptions:

• an employee’s work shift or on-call shift cannot begin or continue due to threats to employees or property or due to the recommendation of a public official;
• operations cannot being or continue due to a natural disaster or a similar cause not within the employer’s control, including when the natural disaster or similar cause physically affects the work site.

PA – Philadelphia

Expansion of Promoting Healthy Families and Workplace Act. All full-time and part-time employees who work 40 hours in a year are eligible to use accrued sick time for:

• Diagnosis, care or treatment of an existing health condition;
• Preventative care; or
• Issues related to the employee being a victim of domestic violence, sexual assault or stalking.

WA – Seattle

Predictability pay requirements of Secure Scheduling Ordinance are subject to the following exceptions:

• Operations cannot begin or continue due to threats to employees or property, or due to the recommendation of a public official that work cannot begin or continue;
• Operations cannot begin or continue due to natural disaster or other cause not within the employer’s control pursuant to rules issued by the Director

Changes in schedule not reasonably necessary to comply with

Governor Inslee’s March 15, 2020 order are still subject to predictability pay requirements. Grocery stores that can begin or continue operations while adhering to the March 15 order must comply with predictability pay requirements.

Effective May 20, 2020

New Jersey

In addition to deductions from wages, employers with 10 or more employee must include the following information in pay statements:

• Gross wages;
• Net wages;
• Rate of pay; and
• Number of hours worked during the pay period, if relevant in calculating wages.

Temporary Disability Insurance makes leaves for organ and bone marrow donation job-protected.

New Mexico

Employers with 4 or more employees must provide reasonable accommodations in connection with an employee’s pregnancy, childbirth or related conditions. Reasonable accommodations may include modifying or adapting the employee’s work environment, work schedule, work rules or job responsibilities, including providing additional break times. Accommodations that create an undue hardship on the employer are not required.

Effective June 11, 2020

Washington

Paid Family and Medical Leave Act amended to correct technicalities and clarified that employers may allow employees using PFML to receive “supplemental benefit payments” (employer-provided paid vacation, sick time, paid parental leave, or any other paid time off) if the employee so chooses, but may not require an employee to use such time.

Effective June 17, 2020

New Jersey

Temporary Disability Insurance benefits are available to an employee who is able to return to work on a reduced basis, if the employee was totally unable to perform duties of employment due to disability and was receiving full TDI benefits for at least 7 consecutive days before claiming partial TDI benefits. The amount of partial benefits will be equal to the amount of full TDI benefits less any amounts the employee received from working.  The maximum duration of partial TDI benefits is 8 weeks, unless the NJ Division of Temporary Disability and Family Leave grants an extension, provided the total duration of partial TDI benefits shall not exceed 12 weeks.

Effective July 1, 2020

California

The maximum duration of Paid Family Leave benefits increases from 6 weeks to 8 weeks.

Illinois – Chicago

Fair Workweek Ordinance requires any employer with at least 100 employees globally (or 250 employees and 30 locations for a restaurant) in Building Services, Healthcare, Hotels, Manufacturing, Restaurants, Retail, and Warehouse Services, must provide the following to employees if they make less than $26/hour or $50,000/year:

(a) An initial, good faith estimate in writing, prior to or at the start of employment, of the employee’s expected work schedule for the first 90 days of employment. The employee may request a change in the expected work schedule, and the Employer must notify the employee of its decision about the request within 3 days of the request.

(b) No later than 10 days (from July 1, 2020 to June 30, 2022) or 14 days (after July 1, 2022) before the first day of any new schedule, employees must be notified of their shifts and any on-call shifts.

The employer must provide predictability pay of: (i)1 hour at the employee’s regular rate of pay for each shift where the employer: (A) adds hours of work, (B) changes the date or time of a work shift with no loss of hours, or (C) with more than 24 hours’ notice, cancels or subtract hours from a regular or on-call shift; and (ii) no less than 50% of the employee’s regular rate of pay for any scheduled hours employee does not work because the employer, with less than 24 hours’ notice, subtracts hours from a regular or on-call shift or cancels a regular or on-call shift, including while the employee is working on a shift.

Predictability pay requirements of The Fair Workweek Ordinance subject to following exceptions:

• threats to Employers, Covered Employees, or property, or when civil authorities recommend that work not begin or continue;
• acts of nature (including, but not limited to, flood, earthquake, tornado, or blizzard);
• war, civil unrest, strikes, threats to public safety or pandemic.

Paid Sick Leave ordinance applies to all employers with at least one “covered employee,” regardless of having a business facility in Chicago or being subject to at least one business license in Chicago. A “covered employee” is an employee who performs at least 80 hours of work for an employer within any 120-day period, and performs at least two hours of work in a particular 2-week period while physically present within the geographic boundaries of Chicago. Excepted from the ordinance are the following:

• An outside salesperson (regularly engaged in making sales or obtaining orders or contracts for services where most of such duties are performed away from the employer’s place of business);
• A member of a religious corporation or organization;
• A student at, and employed by, an accredited Illinois college or university;
• Motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois; and
• Certain camp counselors employed at a day camp.

New Jersey

Maximum amount of Family Leave Insurance benefits increases from 6 weeks to 12 weeks for any FLI leave that commences after July 1, 2020

New Mexico – Bernalillo County

The Employee Wellness Act entitles employees to accrue a minimum of one hour of earned time off for every 32 hours worked, up to a cap of 24 hours of earned paid time off in a year. The cap increases to 40 hours on July 1, 2021, and to 56 hours on July 1, 2022. Accrual commences on the employee’s 90^th day of employment, or immediately for employees who have already been employed for 90 days with the employer. Exempt employees will be deemed to have worked 40 hours in each work week for purposes of earned paid time off accrual.

Unused accrued earned paid time shall be carried over to the following year, up to the annual accrual cap.

Earned paid time may be used for any use, but cannot be used until the employee has worked 56 hours in the applicable earned paid time benefit year.

Employers are required to provide notice about earned paid time to the employee upon commencement of employment and are prohibited from retaliating against an employee for using earned paid time or for having alleged in good faith a violation of the ordinance.

New York

Tip credits for miscellaneous industries and occupations, including wash attendants, nail salon workers, tow truck drivers, dog groomers, wedding planners, tour guides, valet parking attendants, hairdressers, aestheticians, golf and tennis instructors and door-persons, but excluding hospitality workers, begin to be eliminated, with an initial decrease by 50% and complete elimination on December 31, 2020

Oregon

Predictive Scheduling law requires notice of schedules 14 days in advance (change from notice 7 days in advance).

Tennessee

Amendments to the TN Employment Security Law require that:

• The application for a seasonal employer determination must be made on forms prescribed by the Department of Employment Security and must be received between September 1 and October 31 each year;
• A seasonal employer conspicuously display on its premises the seasonal employer determination; and

Prior to the beginning of each active seasonal period, a seasonal employer provide seasonal workers with written notice that their seasonal wages are potentially excludable for unemployment benefits purposes.

Washington

The salary threshold to be considered “exempt” from WA state overtime requirements increases from $250 per week to $675 per week (which is equal to $35,100 on an annual basis).  Because the federal “salary basis” amount is higher than the WA state salary threshold amount, the federal law will trump the WA state amount initially.  The WA state salary threshold is slated to exceed the federal “salary basis” amount in 2021.

The job duties to qualify as “exempt” from WA state overtime requirements will also be aligned with the job duties for exempt employees under the federal law.

Washington D.C.

Paid Family Leave benefits become available to eligible workers.

Effective July 4, 2020

OH – Toledo

Pay Equity Act prohibits employers located within Toledo and have 15 or more employees within Toledo from making any inquiry into salary history of job applicants, and must provide a pay scale for the position if an applicant who has received a conditional job offer of employment makes a reasonable request for a pay scale.

Effective August 1, 2020

Illinois

In an amendment to the School Visitation Rights Act, employers must grant employees up to a total of 8 hours during any school year, and up to 4 hours of which may be taken on any given day, to attend school conferences, behavioral meetings, or academic meetings related to the employee’s child if the conference or meeting cannot be scheduled during nonwork hours.

Effective September 30, 2020

New York

Employees will be entitled to accrue sick leave at a rate of 1 hour for every 30 hours worked, up to the following caps:

• Employees who work for employers with (a) fewer than 5 employees in a calendar year and (b) annual net income of less than $1 Million, accrue up to 40 hours of unpaid sick leave in each calendar year.
• Employees who work for employers with (a) fewer than 5 employees in a calendar year and (b) annual net income of greater than $1 Million accrue up to 40 hours of paid sick leave in each calendar year.
• Employees who work for employers with 5 or more employees, but less than 100 employees, up to 40 hours of paid sick leave in each calendar year.
• Employees who work for employers with 100 or more employees, accrue up to 56 hours of paid sick leave in each calendar year.

Employers can provide the annual cap amounts as a lump sum at the beginning of a calendar year, rather than keeping track of accruals throughout the year.

Up to 40 hours of accrued time must be permitted to be carried over from one year to the next. Accrued but unused time does not need to be paid out upon termination of employment.

Accruals begin on September 30, 2020, and accrued time can be used by employee starting on January 1, 2021.

Effective January 1, 2021

California

Paid Family Leave will also be available for employees for who need to take time off due to a “qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.”

Connecticut

Employers are required to start collecting payroll deductions for paid family and medical leave benefits.  Amounts to be withheld are likely to change before January 1, 2021, as rules and regulations for CPFML are being developed.

Massachusetts

Sunday and holiday premium pay rate decreases to 1.2 times the employee’s regular hourly rate of pay.

Eligible employees may receive Paid Family and Medical Leave benefits.

Maine

Employers with at least 10 employees who work more than 120 hours in a calendar year are required to allow employees to earn up to 40 hours of paid leave time annually, at a rate of 1 hour of paid leave for every 40 hours worked. Employees being accruing paid leave upon commencement of employment, and are allowed to use accrued paid leave after 120 days of employment. During the leave, the employee must be paid the same base rate they were receiving prior to the leave and receive the same benefits provided to employees taking other types of paid leave.

This does not apply to seasonal employees or employees subject to a collective bargaining agreement.

New York

Employees may begin using accrued sick time.

PA – Philadelphia

The Philadelphia Fair Workweek ordinance requires notice of work schedules to employees 14 days in advance of their scheduled work (change from 10 days’ advance notice).

To learn more, stay tuned for the update in May! Visit www.reflexisinc.com for more information on how Reflexis can help you increase compliance rates and stay on top of new labor laws and regulations.

Effective March 15, 2021

PA – Pittsburgh

Paid Sick Days’ Act requires employers with 14 or fewer employees to allow full-time and part-time employees who work in Pittsburgh 35 or more hours in a year to accrue 1 hour of paid sick leave for every 35 hours worked, up to a maximum of 24 hours in a year. Employees must be allowed to carryover up to 24 hours of accrued paid sick leave from one calendar year to the next. Employers are not required to pay out any accrued, but unused, paid sick leave upon terminating an employee or upon the employee’s resignation. The Paid Sick Days’ Act does not apply to seasonal employees who are notified in writing upon hire that they will work no more than 16 weeks during the calendar year.

To learn more, stay tuned for the update in June! Visit www.reflexisinc.com for more information on how Reflexis can help you increase compliance rates and stay on top of new labor laws and regulations.