October 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:

CALIFORNIA

2022 Supplemental Sick Leave Extension – Effective October 1, 2022 

COVID-19 related Supplemental Sick Leave (SPSL) has been extended through December 31, 2022, for employers with 26 or more employees.  Employees are not eligible for an additional allotment of time, but may continue their remaining balances for reasons and under the parameters outlined in the FAQs through the end of the year.  An updated poster should be displayed in the workplace and/or sent to any remote employees working in California. SPSL was previously set to expire for affected employers on September 30, 2022.

Maryland

Reasonable Accommodation Updates – Effective October 1, 2022

Under Maryland House Bill 78, all employers must make accommodations for all applicants in the job selection process, regardless if the applicant is qualified for the position.

Retirement Plan Requirements & MarylandSaves– Effective September 15, 2022  

All employers with automated payroll are required to offer a retirement plan unless they have been in business for less than two years. Employers are not required to match employee contributions and if a plan is already in place, can certify they are already in compliance. Employers without a plan can now enroll in MD Saves, a state-run low-cost retirement plan.

Expanded Harassment Definition – Effective October 1, 2022 

The definition of harassment has been amended to remove references to severe and pervasive conduct. The revised definition includes offensive behaviors if they are a term or condition of an individual’s employment; if the conduct is part of employment decisions; or if the conduct creates an environment a reasonable person would perceive as abusive or hostile.

State Paid Leave Benefit – Effective January 1, 2025

Maryland passed the Time to Care Act of 2022, establishing a state-paid leave benefit to run concurrently with Federal Family and Medical Leave Act (FMLA) leave. Once in effect, employees will have the option to request payment for part of their FMLA leave. If the employer is not subject to FMLA, employees will be eligible for paid benefits if they have worked 680 hours over the 12 months prior to the leave request.

FOURTH CIRCUIT STATES – MD, NC, SC, VA & WA

Gender Dysphoria Must Be Accommodated Under The ADA – Effective August 2022

In August, the U.S. Court of Appeals for the Fourth Circuit issued a landmark decision, Williams v. Kincaid, finding that the Americans with Disabilities Act (ADA) and the Rehabilitation Act protect individuals with gender dysphoria. This decision is the first decision by a federal appellate court on this issue.

The Fourth Circuit’s decision potentially has broad implications for employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Under this decision, employees experiencing gender dysphoria are entitled to the protections of the ADA, including reasonable accommodation. Accommodation requests for gender dysphoria could conceivably arise for restroom usage, employer-provided housing, task and shift assignments, and leaves of absence for medical treatment. In addition, employees are protected from discrimination, harassment, and retaliation on the basis of gender dysphoria under the ADA. Therefore, employers should ensure that employees with gender identity disorders are offered accommodations.

Washington, DC

Non-compete ban – Effective October 1, 2022

Washington, DC updated its restrictions around non-competes. Changes do not impact agreements signed before the effective date for the following changes:

• Employers in the television, radio, cable, satellite, or broadcasting industries are banned from requiring non-compete agreements, except for sales representatives
• Employers are only allowed to require and enforce non-competes with employees making $150,000 or more per year, for a period of one year after employment separation
• If in the medical field, employers are allowed to require and enforce non-competes with employees making $250,000 or more per year, for a period of two years after employment separation

Tipped Workers – November 2022 Ballot Initiative and General Reminders

For DC employers with tipped employees, doing away with the tip credit over a five-year period is on the ballot in November under Initiative 82. Employers claiming the tip credit must comply with the Tipped Workers Fairness Amendment Act of 2018 by:

• Adopting a sexual harassment policy
• Posting the DC Office of Human Resources sexual harassment fact sheet
• Certify using the DC OHR portal the policy and fact sheet are disseminated to employees
• Arrange for sexual harassment training using a certified provider
  • To employees: within 90 days of new hire and every two years thereafter
  • To supervisors, managers, and owners: every two years
• Certify training is complete through the portal
• Report summary information about harassment complaints received each year

FEDERAL CHANGES

EEOC New Mandatory Poster – Effective Immediately

The EEOC has replaced the “EEO Is the Law” poster with an updated “Know Your Rights” poster. Currently, the poster is available in English and Spanish — other languages will be available later. Print and post the 8.5” x 11” PDF pages to replace the previous “EEO is the Law” poster at each workplace or jobsite, and/or email electronic copies to your remote workforce.

Posters should be placed in a conspicuous workplace location where notices to applicants and employees are customarily posted. In addition to physically posting the notice, employers are encouraged to digitally post the notice on their web sites in a conspicuous location. The Americans with Disabilities Act (ADA) requires that notices of Federal laws prohibiting job discrimination be made available in a location that is accessible to both applicants and employees with disabilities that limit mobility.

DHS Extends Form I-9 Requirement Flexibility for Remote Workers – Effective Immediately

The Department of Homeland Security (DHS) has extended flexibility in completing I-9 forms for remote employees to July 31, 2023.

This means that employees hired between April 1, 2021 and July 31, 2023, who work exclusively in a remote setting, are temporarily exempt from the physical document inspection requirements by the employer when filling in Section 2 of the I-9 form.

Visit the US Customs and Immigration Service site here for more information on how to obtain, remotely inspect, update and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

Employers are encouraged (but not yet required) to begin in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and whose eligibility documents were remotely inspected.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act – Effective March 3, 2022

The name of this Act tells you what you need to know:

• ​The Act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees may choose to either arbitrate these claims or pursue them in court, regardless of any contractual agreements with their employers.
• The Act applies to all claims reported after March 3, 2022, regardless of the date the arbitration agreement was signed. The Act does not affect claims that arose before March 3, 2022.
• The Act does not affect otherwise valid arbitration agreements for claims that are not related sexual assault and sexual harassment.
• Future litigation is anticipated over the scope and interpretation of this law.

If you utilize arbitration agreements, we recommend consulting with an employment law attorney regarding any changes needed as a result of this Act.

Federal Contractors – Functional AAP Plan – Effective September 21, 2022

For government contractor clients, particularly those with a Functional Affirmative Action Plan in place or interested in setting one up: there is a new agency Directive outlining how to request a new agreement or extending an existing agreement. Impacted contractors can find out more about the new directive here.

Interested in other current employment trends? Click the link to view the recent blog: What is Quiet Quitting and What to Do About it 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.