States and local jurisdictions are enacting laws impacting employers at a rapid pace. In January, we identified several employment trends to watch in 2019. With a lot of legislative activity taking place in the first half of this year, now is a good time to reflect on these trends and to assess how evolving rules will impact your business. Below are recent developments in four major employment areas: sexual harassment prevention, overtime, paid leave, and marijuana laws.
Sexual Harassment Training & Policies:
So far this year, several states have enacted laws addressing sexual harassment training and/or policies.
· Connecticut. Effective October 1, 2019, employers with three or more employees must provide at least two hours of sexual harassment training to all employees and supervisors. Smaller employers must provide at least two hours of sexual harassment training to all supervisors. Note: Connecticut already requires employers with 50 or more employees to provide training to supervisors.
· Illinois (pending governor’s signature). Beginning January 1, 2020, every employer with employees working in Illinois must provide annual sexual harassment prevention training. Bars and restaurants must also provide industry-specific training and adopt a written policy that meets certain requirements.
· New York (pending governor’s signature). Employers must provide a new notice to employees at the time of hire and at every annual harassment prevention training. The notice must contain the employer’s sexual harassment prevention policy and information from the training program. Note: New York already requires all employers to adopt a sexual harassment policy and training program that meets certain requirements.
· Oregon. Effective October 1, 2020, the state will require employers to adopt a written policy for reducing and preventing discrimination, sexual harassment, and sexual assault.
· Washington. Hotel, motel, retail, and security guard entities, as well as property service contractors, must adopt a policy against harassment and provide sexual harassment training. Hotels and motels with 60 or more rooms must meet the requirements by January 1, 2020. All other covered employers must meet the requirements by January 1, 2021.
On March 7, 2019, the U.S. Department of Labor (DOL) released a proposed rule that would increase the minimum salary required to qualify for exemption from overtime for administrative, professional, executive, and highly compensated employees. The DOL is currently reviewing public comments before issuing a final rule.
On June 4, 2019, the state of Washington released a proposed rule that would incrementally increase the minimum salary required for exemption under state law to 2.5 times the minimum wage by 2026.
Meanwhile, Pennsylvania is still considering a 2018 proposed rule that would increase the minimum salary required for exemption under state rules to $610 per week (then $766 per week one year later and $921 per week one year after that). The minimum salary requirement would be subject to adjustment every three years thereafter.
These proposed changes will not take effect until after final rules are published.
Family and Medical Leave:
States continue to enact family and medical leave laws and introduce paid leave programs. In 2019, these include:
· California: Effective July 1, 2020, the maximum duration of paid family leave benefits will increase from six weeks to eight weeks. In California, the paid family leave program provides wage-replacement benefits to employees who take time off from work to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner; or to bond with a new child entering the family through birth, adoption, or foster care placement.
· Connecticut. Effective January 1, 2022, the state will expand its family and medical leave law to cover all private sector employers, ease eligibility rules, change the amount of leave available, and create a program that will provide wage-replacement benefits to employees who take leave for covered reasons.
· New Jersey. The state expanded the New Jersey Family Leave Act (NJFLA), the New Jersey Security and Financial Empowerment (NJ SAFE) Act, and the New Jersey Temporary Benefits Disability Law (NJTDBL).
· Oregon (pending governor’s signature). Effective January 1, 2023, the state will give more employees the right to family and medical leave and provide eligible employees with wage-replacement benefits.
The list of jurisdictions requiring employers to provide paid sick leave to employees has grown to 11 states and more than 20 cities and counties. The city of Dallas, Texas has a paid sick leave ordinance that takes effect on August 1, 2019, for employers with six or more employees. These requirements will take effect on August 1, 2021 for employers with 5 or fewer employees. San Antonio has a similar ordinance that was supposed to take effect at the same time, but the effective date has been delayed until December 1, 2019.
There have also been recently passed laws that require employers to provide all-purpose leave, rather than just sick leave. For example, effective January 1, 2021, Maine will require employers with more than 10 employees to provide their employees with paid time off that can be used for any reason. Nevada has a similar law that will apply to employers with 50 or more employees and will take effect January 1, 2020.
The list of jurisdictions that permit medical marijuana has grown to 33 states and the District of Columbia. Eleven states and the District of Columbia also permit the use of recreational marijuana. None of these laws require employers to allow employees to use, possess, or be impaired by marijuana during work hours or in the workplace. However, some states have employment protections for employees who use marijuana outside of work. In 2019, we have seen several new laws that address protections for legal off-duty use.
· Illinois. Under existing state law, employers are prohibited from taking adverse action against an individual because they use “lawful products” off company premises during nonworking hours. The law was amended to clarify lawful products as products that are lawful under state law, which will include recreational marijuana beginning January 1, 2020. Note: The state already has employment protections for medical marijuana users.
· Nevada. Effective January 1, 2020, the state will generally prohibit employers from refusing to hire a prospective employee because they submitted to a drug test and the results indicate the presence of marijuana.
· New Jersey. Effective July 2, 2019, the state prohibits employers from taking any adverse employment action against an employee based solely on the employee’s status as a registered medical marijuana patient. If an employer has a drug testing policy and an applicant or employee tests positive for marijuana, they must be offered an opportunity to present a legitimate medical explanation for the positive test result or request a retest.
· New Mexico. Effective June 14, 2019, employers are generally prohibited from taking adverse employment action against an applicant or employee based on conduct allowed under the Lynn and Erin Compassionate Use Act (LECUA), which permits the use of medical marijuana for the treatment of certain medical conditions.
· New York City. Effective May 10, 2020, the city will generally prohibit employers from requiring a prospective employee to submit to drug testing for marijuana.
· Oklahoma. Effective August 21, 2019, the state is amending and clarifying protections for medical marijuana licensees, including the addition of an exception for safety-sensitive positions.
This continues to be an evolving area of employment law, with court cases regularly testing the scope of protections for applicants and employees. Check your state law and work closely with legal counsel to determine your rights and responsibilities.
These are just a few of the legislative trends affecting employers to date in 2019. Make sure you understand all the laws that apply to your employees and regularly review workplace forms, policies, practices, and training to ensure compliance.