California’s CFRA Expansion Brings Increased Leave Rights

With the new year came a significant expansion of the California Family Rights Act (“CFRA”), which provides up to 12 weeks of unpaid, protected family and medical leave for certain employees. 

Under CFRA, specified employers are prohibited from refusing to grant certain leave requests by employees.  Employees granted a CFRA leave request must be guaranteed employment in the same or a comparable position upon termination of the leave.  CFRA also generally requires employers to maintain and pay for coverage under the employee’s group health plan for the duration of the leave at the level coverage would have been provided if the employee had continued working during the leave.

Under Senate Bill 1383, which went into effect January 1, 2021, private employers covered by CFRA now include any person who directly employs 5 or more employees.  Prior to this expansion, private employers covered by CFRA were only those with 50 or more employees. 

Qualifying Reasons For Leave

Qualified employees may be eligible for up to 12 workweeks of unpaid protected leave during any 12-month period:

1. for the birth of a child of the employee or placement of a child with an employee in connection with the adoption or foster care of the child by the employee;

2. for the employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee;

3. to care for certain family members who have a serious health condition;

4. due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Covered family members used to include a spouse, domestic partner, parent, minor child, or dependent adult.  Now covered family members also include a child (not just minor child), grandparent, grandchild, and sibling.  Child, as defined, includes a biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or person to whom the employee stands in loco parentis.  This definition now includes adult children.  Parent, as defined, includes a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.  A grandchild means a child of the employee’s child and a grandparent means a parent of the employee’s parent.  Sibling includes a person related to another person by blood, adoption, or affinity through a common legal or biological parent.

Given these expanded categories covered by CFRA, such leave may not always run concurrently with the Federal Family and Medical Leave Act (“FMLA”).  Employers will want to carefully track all leave requests to properly comply with both the CFRA and FMLA.

You may also recall that California recently expanded its baby-bonding leave to smaller employers.  Specifically, California’s 2018 New Parent Leave Act (“NPLA”), provided for 12 workweeks of unpaid protected baby-bonding leave for employees working at a worksite in which the employer employs at least 20 employees within 75 miles.  The protections of the NPLA are now included within CFRA, and the separate NPLA has been repealed.

Eligibility for Leave

CFRA still requires an employee to have at least 1,250 hours of service with the employer during the previous 12-month period in order to qualify for leave.

Significantly, employees no longer need to be among 50 employees within 75 miles to qualify for leave; there is now no geographic limitation to eligibility for CFRA leave, so long as the employer has 5 or more employees.

The CFRA expansion also eliminated the so-called “key employee” exception.  Specifically, there is no longer an exception from complying with CFRA for an employee who is a salaried employee and is among the highest paid 10% of the employer’s employees. 

Finally, there is no longer an ability to split the total leave among two parents when both parents of a child are employed by the same employer.  Now, the total amount of leave would need to be granted to each such parent.  Employers can no longer require parents split the leave in any way.

A Note About Pregnancy Leave

Although the CFRA expansion touches on leave for baby-bonding, the legislation specifies that existing pregnancy, childbirth, and related medical condition leave provisions are separate and distinct protections from CFRA protections.  By definition, use of CFRA leave to care for an employee’s own serious health condition does not include any leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

Small Employer Family Leave Mediation Pilot Program

Under Government Code Section 12945.21, the California Department of Fair Employment and Housing (“DFEH”), the state agency that enforces CFRA, is tasked with creating a small employer family leave mediation pilot program for employers with between 5 and 19 employees.  Under the pilot program, an employer may, within 30 days of receipt of a right-to-sue notice alleging a violation of CFRA, request all parties to participate in the DFEH’s dispute resolution division.  The DFEH is supposed to include in a right-to-sue notice information about the right to participate in the mediation pilot program.  If an employer or employee requests such mediation, the employee cannot file suit under CFRA until the mediation is complete.  An employee’s statute of limitations, including for all related claims not under CFRA, are tolled upon receipt of a request to participate in the DFEH’s dispute resolution division until mediation is complete.  Section 12945.21 remains in effect until January 1, 2024.

Next Steps for Employers

Now is a good time to revisit your handbooks, leave policies and training to make sure your company’s policies and procedures comply with the expanded CFRA requirements.  The DFEH has added updated facts sheets, required posters, and other leave-related information on its website.  We will also keep an eye on the CFRA regulations in effect.  Employers with questions about how to comply with the new requirements or how to navigate tricky leave questions are encouraged to consult with employment counsel.

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Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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Is Federal Marijuana Reform on the Horizon?

Fifty years after the Controlled Substances Act was passed and marijuana was deemed illegal under federal law, the legality of marijuana is finally being addressed by Congress, as the U.S. House of Representatives is scheduled to vote this month on a bill that seeks to end the federal law that prohibits marijuana use – a vote on the most comprehensive marijuana reform legislation in U.S. history that could have sweeping implications.

Specifically, the Marijuana Opportunity Reinvestment and Expungement Act (aka the “MORE Act”) intends to de-schedule cannabis from the list of Schedule I controlled substances under the Controlled Substances Act.  The Act also intends to expunge many convictions, tax cannabis sales at 5%, invest in grant programs with a heavy focus on social equity, and provide cannabis businesses access to Small Business Administration loans.

The vote in the House arrives roughly a month after five states — New Jersey, Arizona, Montana, South Dakota and Mississippi — voted on Election Day to legalize recreational or medical cannabis. Cannabis is already legal, to some degree, in most U.S. states, and the support for reform is only increasing.  Notably, every single marijuana reform measure placed on state ballots in 2020 passed, representing a continuation of the state-level reform movement that has consistently expanded in election after election.  As we move into 2021, medical marijuana is now legal in 34 states and the District of Columbia and recreational marijuana is legal in 15 states and the District of Columbia. Staunch activism for marijuana reform also continues to grow in several other states where legislation is expected to be introduced within the next year, including New York, New Mexico, Rhode Island, Missouri, North Dakota, and Florida.

While the MORE Act is expected to pass the House with some bipartisan support, it remains unlikely that Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.  This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.  Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.  Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.  Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.

In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  In the healthcare industry, for example, mandatory vaccination programs for employees are common.  Indeed, several states have laws that require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions).  The CDC has long recommended that all healthcare workers get vaccinated, including all workers having direct and indirect patient care involvement and exposure.

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What You Should Know About COVID-19, the Americans with Disabilities Act, and the Age Discrimination in Employment Act

As the U.S. enters month seven of the COVID-19 pandemic, employers continue to grapple with how to keep employees safe without violating the rights of employees protected by the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Centers for Disease Control and Prevention (“CDC”) has issued guidance to slow the spread of COVID-19 in the workplace encouraging employers to: (1) actively encourage sick employees to stay home; (2) conduct daily in person health checks such as temperature and symptom screenings; and (3) ensure that workers are able to follow social distancing guidelines as much as practicable and encouraging employees to wear face masks where social distancing is not possible. Employers should remain vigilant against enacting policies meant to keep employees safe but have a disparate impact on employees in a protected class.

The Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) prohibits employers with 15 or more employees from discriminating against job applicants and/or employees with disabilities. If a job applicant or employee has a disability and requests an accommodation, employers must engage in an interactive process and are required to provide a reasonable accommodation to the extent it does not cause the employer undue hardship.

In the context of COVID-19, employers may screen employees entering the workplace for COVID-19 symptoms consistent with CDC guidance. For example, an employer may: (1) ask questions about COVID-19 diagnosis or testing, COVID-19 symptoms, and exposure to anyone with COVID-19 (but employers should be sure the question is broad and does not ask employees about specific family members so as not to run afoul of the Genetic Information Nondiscrimination Act (“GINA”)); (2) take an employee’s temperature; and (3) administer COVID-19 viral tests (but not anti-body tests). If an employee is screened and has symptoms that the CDC has identified as consistent with COVID-19, the employer may – and indeed, should – exclude the employee from the workplace. It is also okay – and again, advisable – for an employer to send an employee home who reports feeling ill during the workday.

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D.C. Paid Family Leave Law Takes Effect

Effective today, July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event.DC Flag for Blog  Here, we review and highlight important aspects of DC’s Paid Family Leave law.  For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.

Covered Events and Applicable Leave Periods

The DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave. Continue reading

New City Ordinance Prevents Retaliation Against Employees Who Obey COVID-19 Governmental Orders – Yet Another Reason to Ensure Your Workplace Is Following All COVID-19 Recommendations

By: Mark M. Trapp and Aaron R. Gelb

Recently, the Chicago City Council approved for immediate implementation a new ordinance prohibiting employers from taking adverse action against an employee obeying orders related to COVID-19 issued by the Mayor of Chicago, Governor of Illinois or Chicago Department of Public Health. The ordinance also encompasses employees staying at home to minimize transmission or while experiencing symptoms of the virus.Picture1

The ordinance applies to “Covered Employees,” who perform at least two hours of work in a two-week period for an employer while physically present in the geographic boundaries of the City of Chicago.

In addition to employees complying with governmental orders, the ordinance prohibits adverse action by an employer against any “covered employee” who, in compliance with the directive of a treating healthcare provider, remains at home while experiencing COVID-19 symptoms or obeys an isolation or quarantine order. The ordinance also Continue reading

March Update on How Employers Can Respond to COVID-19 with FAQs

By:  Kara M. Maciel and Beeta B. Lashkari

COVID

 

 

 

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

  • CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

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Time’s Up:  Illinois Employers Are On The Clock To Provide Sexual Harassment Training

Late last year, we summarized the many new employment laws with which Illinois employers would have to comply in 2020, including the requirement to provide sexual harassment training by the end of the year.  Now that 2020 is not so new anymore, employers should begin preparations to comply, so they are not left scrambling later this year.  This article will summarize the key points you need to know to stay compliant.

shutterstock_training

  • Does this law apply to me—what is the threshold for coverage?

One and done—in other words, if you have at least one employee, the law applies to your company and you must train that employee… presumably in a one-on-one session.

  • What must we cover in the training session(s)?

Presently, we know that employer-provided training must cover, at a minimum, the following topics:

  1. an explanation of sexual harassment consistent with the Illinois Human Rights Act (IHRA);
  2. examples of conduct that constitutes unlawful sexual harassment;
  3. a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  4. a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
  • Who must be trained and when?

The law went into effect on January 1, 2020, but employers have until the end of the year—December 31, 2020—to provide the required training to both employees and managers.  There is no exception Continue reading

2019 Year in Review and 2020 Forecast: Employment Law Updates in D.C., Maryland, and Virginia

Over the past year, there were a number of changes in the employment law landscape throughout the District of Columbia, Maryland, and Virginia.  To keep employers apprised of the latest developments in these jurisdictions, below is a recap some of the key laws that took effect or were enacted in 2019 and a forecast of potential changes on the horizon in 2020.

DISTRICT OF COLUMBIA

shutterstock_DCTipped Wage Workers Fairness Amendment Act of 2018 Not Fully Funded: The D.C. City Council enacted the Tipped Wage Workers Fairness Amendment Act in October 2018, which had the immediate impact of repealing Ballot Initiative 77 – a voter-approved ballot that eliminated the use of the tip credit in D.C.  Thus, employers with tipped employees are still permitted to take a tip credit toward meeting minimum hourly wage requirements.  But the Act also imposes certain training, reporting, and notice requirements for all employers of tipped employees – many of which have yet to take effect due to the lack of funding.

As explained in our previous blog article, the Act imposes certain training and notice requirements on all employers of tipped employees.  The date on which employers must implement sexual harassment prevention training and provide the requisite notice to tipped employees, however, has not yet been determined, as a majority of the Act’s requirements have not been approved through budget funding.  To date, the only provisions of the Act that are in effect, besides the repeal of Ballot Initiative 77, are related to employee and manager training on D.C.’s Minimum Wage Act Revision Act, certain notices to employees regarding their tips, and third-party payroll and wage reporting requirements (beginning Jan. 1, 2020).  Employers should monitor this law throughout 2020, as it will likely be funded sometime next year.

Employees Can Claim D.C. Paid Leave Act Benefits Beginning July 1, 2020: D.C.’s Universal Paid Leave Amendment Act of 2016 (“Paid Leave Act”) provides up to eight weeks of parental leave to bond with a new child, six weeks of family leave to care for an ill family member with a serious health condition, and two weeks of medical leave to care for one’s own serious health condition.  D.C. employees who take paid leave will be eligible to receive up to $1,000 per week, depending on their wage level.  The leave program is funded by a quarterly 0.62% payroll tax on businesses that  expected to generate a total of $250 million each year.

July 1, 2019 marked the date on which the District began collecting taxes from employers in preparation to administer paid leave benefits beginning on July 1, 2020.  Employers should ensure that they have the Paid Family Leave Notice posted in their workplace, along with other labor law posters, by February 1, 2020, and ensure that all new employees hired after February 1, 2020 are provided with an electronic or hard copy of the notice.  The proposed benefits regulations that contain instructions on how employees file for benefits are being finalized by the D.C. Department of Employment Services (“DOES”) and are expected to be rolled out in the next few months.  Employers should familiarize themselves with this rule and the anticipated regulations, especially if they have not paid the quarterly taxes that DOES began collecting six months ago.

For further details on the D.C. Paid Leave Act and employer obligations, please check out our prior blog post.

Minimum Wage Increase in 2020: Under D.C.’s Fair Shot Minimum Wage Amendment Act of 2016, the minimum wage in the District of Columbia increased from $13.25 per hour to $14.00 per hour on July 1, 2019, and the base minimum wage for tipped employees increased from $3.89 per hour to $4.45 per hour.  The law also provides for a progressive increase to $15.00 per hour on July 1, 2020, and a base increase of $5.00 per hour for tipped employees.

Drug Testing/Marijuana Updates Expected in 2020: The D.C. City Council is considering two bills that would eliminate drug testing employees for marijuana.  Possession of marijuana and its recreational use is legal in D.C., and many employees have a valid prescription for medicinal marijuana.  However, under current law, employees can still be disciplined at work if they test positive for marijuana.

The Prohibition of Marijuana Testing Act of 2019 proposes to eliminate marijuana testing as a condition of employment unless required by law.  The second bill, the Medical Marijuana Program Patient Protection Amendment Act of 2019, would prohibit discriminating against D.C. government employees who are enrolled in the medical marijuana program, and would do away with marijuana testing on such employees who have a valid prescription under the program.  This rule was already rolled out as emergency legislation in June 2019 but only went into effect for 90 days.  Although neither of these laws are final, and private sector employers have not been impacted by these proposals yet, it is certainly something to keep a close eye on.  Many states across the country have already, or are beginning to, incorporate employee protections in marijuana legislation, which significantly alters traditional employer policies, procedures, and practices related to drugs and drug testing policies.

MARYLAND

shutterstock_MarylandLaw Regarding Noncompete and Conflict of Interest Clauses Imposed Restrictions on Employment Agreements: A new Maryland law that went into effect on October 1, 2019 prohibits employers from including noncompete or conflict of interest clauses in any employment contract with an employee earning $15 or less per hour or $31,200 or less annually.  Such provisions are considered void as against public policy.  However, the bill specifically provides that employers may still prohibit such employees from taking client lists or other proprietary client-related information.  Employers should carefully review their employment agreements with employees who are considered lower wage earners and revise them, as necessary, to ensure that company interests are protected while still complying with the law.

Workplace Harassment Amendment Expanded Scope of Liability for Employers: On October 1, 2019, under HB 679/SB 872, several changes to Maryland’s anti-discrimination law went into effect, which vastly expanded the scope of liability for employers under State law.  For instance, the definition of “employee” was expanded to include independent contractors; the definition of “employer” was revised to increase the scope of liability for cases of harassment from any employer with 15 or more employee to any employer with a single employee; and a definition of harassment was specifically provided in the statute.  Additionally, the time period for filing a complaint of harassment with the local human rights commission was expanded from six months to two (2) years, and the time period for filing a lawsuit alleging harassment in violation of the state anti-discrimination law was expanded from two (2) years to three (3) years.  Employers should be wary of these changes to Maryland’s discrimination laws, as it certainly expands the risk of employer liability in Maryland and makes Maryland courts a more attractive forum to pursue such claims.

Equal Pay Law Penalties Increased: Penalties for Maryland’s Equal Pay for Equal Work law increased on October 1, 2019.  Employers found to have violated the law two (2) or more than three (3) times within a three-year period may be assessed a penalty equal to 10% of the damages owed by the employers, which are paid into the General Fund of the State of Maryland.

Organ Donation Leave: Under the HB 1284, which took effect on Oct. 1, 2019, employers with 15 or more employees are required to provide eligible employees (employed for at least 12 months and at least 1,250 hours during the previous 12 months) up to 60 business days of unpaid leave in any 12-month period to serve as an organ donor, and up to 30 business days of unpaid leave in any 12-month period to serve as a bone marrow donor.  Employers should consider adding a new provision to their leave policies in their Employee Handbooks and pay particularly close attention to any requests from employees for time off to donate an organ or bone marrow.  Notably, such organ donor leave does not run concurrently with leave taken pursuant to the Family and Medical Leave Act.

Ban the Box Legislation Vetoed by Governor Hogan: Legislation passed by the Maryland General Assembly prohibiting employers with 15 or more employees from asking about an applicant’s criminal record prior to the first in-person interview was vetoed by Governor Larry Hogan in May 2019.  Note, however, that there are several local ban-the-box laws throughout Maryland, including those enacted by Baltimore City, Prince George’s County, and Montgomery County – all of which provide greater restrictions on employers than what was proposed under the proposed bill.

Minimum Wage Increase in 2020: Beginning on Jan. 1, 2020, the minimum wage in Maryland will increase from $10.10 per hour to $11.00 per hour.  Please note, however, that employers in Montgomery County, MD and Prince George’s County, MD are subject to separate, higher minimum wage rates, which may also vary depending on the size of the employer.

Maryland OSHA Still Has Not Adopted the E-Recordkeeping Rule: Maryland OSHA (“MOSH”) is the only state-plan safety and health agency in the country that has not adopted federal OSHA’s e-Recordkeeping Rule, which was promulgated back in May 2016.  Under the revised federal rule issued in January 2019, which MOSH is required to adopt, establishments with 250 or more employees and establishments with 20 or more employees in high hazard industries are required to submit their 300A data by March 2nd of every year through federal OSHA’s Injury Tracking Application.  Covered establishments should closely monitor this rule and be prepared to submit their 300A data, as it is will likely be finalized prior to the upcoming March 2, 2020 data submission deadline.

VIRGINIA

shutterstock_Virginia (1)Repeal of Jim Crow-era Minimum Wage Exemptions: HB 2473 was enacted in March 2019 in an effort to modernize Virginia’s minimum wage law and to repeal certain Jim Crow-era provisions that endorsed wage discrimination against African Americans.  The legislation rescinded exemptions that allowed employers to pay less than the minimum wage to newsboys, shoeshine boys, ushers, doormen, concession stand attendants, cashiers in theaters, and babysitters who work 10 hours or more per week.

Written Wage Statements Now Required in Virginia: Beginning on January 1, 2020, Virginia employers (with the exception of agricultural employers) must provide paystubs to employees on each regularly scheduled payday.  Virginia Code § 40.1-20 was amended in April 2019 to require employers to provide a written statement by pay stub or online, which must include the following:

  1. The name and address of the employer;
  2. The number of hours the employee worked during the pay period;
  3. The employee’s rate of pay;
  4. The gross wages earned by the employee during the pay period; and
  5. The amount and purpose of any deductions.

Given that the current law only requires employers to provide a written statement of employees’ gross wages and any deductions upon request, this may be a significant change for many employers.  It is prudent to take steps to ensure that accurate pay stubs are provided beginning on January 1, 2020.  Employers that already issue pay stubs should review their current payroll systems to verify that all of the code’s requirements, as listed above, are included in employee pay stubs.

Bi-Partisan Bill Limiting Non-Compete Agreements Not Put Up for Vote: A proposed bill that prohibits employers from entering into, enforcing, or threatening to enforce non-compete agreements with low-wage workers passed the Senate and House Commerce and Labor Committee.  But the General Assembly did not put this bill up for a vote in the House during the last legislative session.  Virginia employers should pay close attention to this bill moving forward, as it has bi-partisan support and other states have have continued to enact similar provisions, including Maryland.

Efforts to Increase Minimum Wage Fall Short: At least four bills were introduced in the General Assembly in 2019 to raise Virginia’s minimum wage, which is currently set at the federal floor of $7.25 an hour.  Most of these bills were left in committee.  One bill that did pass the Senate Commerce and Labor Committee would have mandated annual increases to the hourly minimum wage, raising it to $8 this year and reaching a final rate of $11.25 in 2022.  Another bill that would have increased the minimum wage to $10 this year, $13 next year, and $15 by 2021 made it through committee but was then struck down by a Senate vote of 21-19.  While none of these bills managed to increase the state minimum wage, efforts to increase the state minimum wage will certainly be an agenda item during the next legislative session.  Given the narrow split on the issue, it is only a matter of time before Virginia’s minimum wage increases.

Marijuana Legislation at the Forefront of Issues for 2020: Currently, marijuana is strictly prohibited in Virginia and previous marijuana legislation efforts in the General Assembly have failed.  However, with the advent of the November 2019 elections and democrats now controlling both the House of Delegates and the Senate, it appears that marijuana legislation is on the horizon.

Delegate Lee Carter pre-filed a bill (HB 87) for the 2020 legislative session that would decriminalize marijuana and allow adults 21 and older to possess and purchase cannabis from licensed retailers.  Additionally, the bill would impose a 10 percent tax to fund veteran initiatives, transportation, and local municipalities.  The bill also contains specific prohibited employment practices, which appear to limit an employer’s ability to discipline employees for use of marijuana outside of the workplace.  Finally, Democratic Attorney General Mark Herring recently held a “Cannabis Summit” in Richmond to discuss decriminalizing marijuana and comprehensive marijuana reform, which includes recreational legalization.  This topic is gaining significant attention heading into 2020, so employers should pay close attention to the bill pre-filed with Virginia General Assembly.