The year 2021 continues the trend of increasing regulation of the workplace by state and local governments. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance. (Please note that developments specifically related to minimum wage rates and COVID-19 are not included.)
Pregnancy Discrimination Protections: This amendment takes effect 90 days after the end of the current legislative session, which is expected to fall in August 2021. The amendment specifies that discrimination based on pregnancy, childbirth or a related medical condition is unlawful sex-based discrimination. Additionally, employers must treat women affected by pregnancy, childbirth or related medical conditions in the same manner as other employees who are similar in their ability or inability to work.
For information regarding new California laws for 2021, please refer to our firm’s legal update on the subject.
Amended Wage Protection Rules: Beginning April 14, 2021, revisions apply to the parameters of employer requirements for public health emergency leave (PHEL) for employees. All Colorado employers are required to provide up to 80 hours of PHEL to full-time employees. Part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request, whichever is later.” Lastly, new employees hired during a public health emergency are also entitled to PHEL.
Chance to Compete Act: Effective September 1, 2021, all employers are prohibited from:
- advertising that a person with a criminal history may not apply for a position;
- stating on an employment application, including an electronic application, that a person with a criminal history may not apply for a position; or
- inquiring into, or requiring disclosure of, an applicant’s criminal history on an initial written or electronic application form.
Paid Family Medical Leave Act: Connecticut is in the process of implementing amendments to the Paid Family Medical Leave Act, which will become available beginning January 1, 2022. The amendments make several significant changes, including: eliminating the threshold of a minimum number of employees (previously 75); mandating 12 weeks of leave; expanding the range of circumstances for which an employee may take leave; and providing wage replacement for all employees who take leave. Paid leave will be funded by employee payroll deductions, which began January 1, 2021. The first-quarter payroll contribution ended on March 31, and April 30, 2021, is the deadline by which employers must submit the employee contributions to the Connecticut Paid Leave Authority.
Act Creating a Respectful and Open World for Natural Hair: Effective March 4, 2021, Connecticut amended its anti-discrimination statute to define “race” as being “inclusive of ethnic traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” “Protective hairstyles” is defined to include, but not be limited to, “wigs, headwraps and hairstyles such as individual braids, cornrows, locs, twists, Bantu knots, afros and afro puffs.” Significantly, the term “ethnic traits historically associated with race” is not limited to just hair texture and protective hairstyles.
For information regarding the recent significant amendments to three key Illinois employment laws, please refer to our firm’s legal update on the subject.
Paid Family and Medical Leave: Effective January 1, 2021, a covered individual may take leave for the following qualifying reasons:
- bonding with a newborn child, newly adopted child or newly placed foster child;
- a qualifying exigency related to a family member’s active duty or impending call or order to active duty in the U.S. armed forces;
- caring for a family member who is a covered servicemember; and
- the covered individual’s own serious health condition.
Beginning July 1, 2021, a covered individual may also take leave to care for a family member with a serious health condition.
Mandatory Occupational Safety Training: Effective January 1, 2021, certain construction workers are required to complete a specified safety course. Supervisors must take a 30-hour course, while workers must take a 10-hour course. The requirement applies to construction workers performing work on sites primarily used for exhibitions, conventions and trade shows. Employers must suspend or terminate any qualifying employee who fails to provide proof of having taken the required safety course within fifteen days of being hired by an employer, or the employer may face administrative fines. An employer must maintain and make available to the Division of Industrial Relations a record of all employees who have completed a course.
For information regarding New Jersey’s passage of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) on February 22, 2021, please refer to our firm’s legal update on the subject.
New York City Fair Work Practices Ordinance: Effective July 4, 2021, the ordinance is amended to include wrongful discharge protections for fast-food employees to prevent them from being fired without just cause or a bona fide economic reason. Additionally, in the event that an employer must lay off employees, it must discharge by inverse seniority (those hired last will be discharged first). Lastly, the amendment provides for arbitration of disagreements between fast-food employers and employees.
Workers’ Compensation Law and Injuries Linked to Recreational Marijuana Use: Effective August 1, 2021, workplace injury caused by the use of recreational marijuana is not a compensable injury.
Employment Discrimination Law Modification: Taking effect April 15, 2021, the Employment Law Uniformity Act contains the following modifications:
Age Discrimination Claims. The procedure for filing an age-discrimination claim will align with the same procedure for discrimination claims on the basis of any other protected characteristic.
Supervisor Liability. Individual supervisors, managers and other employees acting in the employer’s interest cannot be held personally liable for unlawful discriminatory employment practices unless the individual is also the employer.
Affirmative Defenses. In the event of a hostile work environment sexual-harassment claim in which the alleged hostile work environment was created by an employee’s supervisor, an employer can raise an affirmative defense by proving that: (1) the employer took reasonable care to prevent or promptly correct any sexually harassing behavior; and( 2) The employee alleging the hostile work environment unreasonably failed to take advantage of employer-provided preventive or corrective opportunities or to otherwise avoid harm.
The affirmative defense is not available if the supervisor’s harassment resulted in a tangible employment action against the employee.
Procedural Changes. Previously, Ohio courts have held that the statute of limitations for bringing a discrimination claim was six years. Under this revision, an individual must file the charge or lawsuit within two years of the alleged discriminatory act. The individual must exhaust administrative remedies by filing a timely charge with the Ohio Civil Rights Commission (OCRC) and must obtain a notice of right to sue prior to filing an employment discrimination lawsuit, unless the individual is only seeking injunctive relief.
Payroll-Deduction IRA Plan: The target date for Oregon employers with four or fewer covered employees to enroll in the OregonSaves payroll-deduction IRA program has been extended to a target date of late 2021. After registering, an employer must enroll employees in the program, and withhold and remit payroll deductions to the state on their behalf.
Philadelphia Fair Criminal-Record Screening Standards: Effective April 1, 2021, the screening standards are amended to:
- apply to any person working for a private employer within the city, including independent contractors, transportation network company drivers, rideshare drivers and other gig-economy workers;
- apply throughout the employment process to existing employees as well as applicants;
- require that any criminal background checks mandated by state or federal law be conducted only after a conditional employment offer has been extended; and
- allow for liquidated damages up to $5,000.
Legalization of Recreational Marijuana: Effective July 1, 2021, the recreational use of marijuana by adults aged 21 and over is legal in South Dakota. Elements of the new initiative of interest to employers are that the law does not:
- require an employer to permit or accommodate the recreational use of marijuana;
- affect an employer’s ability to restrict an employee’s use of marijuana;
- limit the right of a person who occupies, owns or controls private property from prohibiting or otherwise regulating the recreational use of marijuana on or in that property; or
- limit the ability of the state or local government to prohibit or restrict any conduct otherwise permitted under the article within a building owned, leased or occupied by the state or local government.
The measure prohibits:
- the smoking of marijuana where smoking tobacco is prohibited under state law;
- the consumption of marijuana in a public place, other than in an area licensed by the Department of Revenue for consumption;
- being under the influence of or consuming marijuana while operating or being in physical control of any motor vehicle, train, aircraft, motorboat or other form of motorized transport; and
- the undertaking of any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice.
Legalization of Medical Cannabis: Also effective July 1, 2021, South Dakota residents who have a debilitating medical condition and are certified by a physician may use medical cannabis. Of particular interest to employers, the measure does not:
- require an employer to allow the ingestion of cannabis in any workplace;
- require an employer to allow an employee to work under the influence of cannabis; or
- prohibit an employer from disciplining an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.
Cybersecurity Affirmative Defense Act: Effective May 5, 2021, Utah becomes the second U.S. state to have enacted affirmative defenses to certain causes of action arising out of a breach of system security. Under the act, individuals, associations, corporations, partnerships and other business entities that create, maintain and reasonably comply with a written cybersecurity program that is “in place at the time of breach of system security,” have an affirmative defense to tort claims arising out of the alleged “fail[ure] to implement reasonable information security controls that resulted in the breach of system security.”
Disability Discrimination Protections: Effective July 1, 2021, the Virginia Human Rights Act is amended to add discrimination on the basis of disability as an unlawful employment practice. As a member of a protected class, disabled persons will be afforded the same protection from discriminatory practices as those already established regarding an individual’s race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, status as a veteran or national origin.
Further, it shall be an unlawful discriminatory practice for an employer to:
- refuse to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist such person in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer;
- take adverse action against an employee who requests or uses a reasonable accommodation pursuant to this section;
- deny employment or promotion opportunities to an otherwise qualified applicant or employee because such employer will be required to make reasonable accommodation for a person with a disability;
- require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability; or
- fail to engage in a timely, good-faith interactive process with an employee who has requested an accommodation pursuant to this section to determine if the requested accommodation is reasonable and, if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.
Finally, an employer shall post in a conspicuous location and include in any employee handbook information concerning an employee’s rights to reasonable accommodation for disabilities. Such information shall also be directly provided to: (1) new employees upon commencement of their employment, and (2) any employee within 10 days of such employee’s providing notice to the employer that such employee has a disability.
Creditor Garnishment: Effective July 1, 2021, amendments to Virginia’s creditor garnishment law instruct the maximum amount of an employee’s weekly earnings that may be withheld in Virginia for garnishment may not exceed the lesser of: (1) 25% of the employee’s disposable earnings for that week; or (2) the amount by which the employee’s disposable earnings for that week exceed 40 times the federal minimum wage or the Virginia state minimum wage in effect at the time the earnings are payable, whichever is greater.
Exceptions to the amendment include: an order of support for a person, a bankruptcy court order, or any debt due for state or federal tax.