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Federal: ACA, Health Plans, and Reproductive Rights

The U.S. Department of Health & Human Services (HHS) press release from June 25, 2022, provides information about the right to access health care, have it covered by insurance or other health care coverage if available, where to go if someone doesn’t have coverage, and how to get more information.

Most health coverage—whether it’s public (Medicaid) or private (through the Affordable Care Act (ACA) Marketplace or an employer)—covers family planning counseling, birth control, and other preventive services at no cost to the individual. Under the ACA, most health plans are required to provide birth control and family planning counseling with no out-of-pocket costs. This includes:

  • Hormonal methods, like birth control pills and vaginal rings.
  • Implanted devices, like intrauterine devices (IUDs).
  • Emergency contraception, like Plan B and ella.
  • Barrier methods, like diaphragms and sponges.
  • Patient education and counseling.
  • Sterilization procedures.

Learn more about birth control coverage requirements for different types of health plans on HealthCare.gov (a federal government website managed by the U.S. Centers for Medicare & Medicaid Services).

Additionally, the right to access other preventive health services with no out-of-pocket costs is legally required under most health insurance plans. Most health insurance plans are required to cover women’s preventive health services, including:

  • Well-woman visits to screen health at any time, including a Pap smear, breast exam, and regular checkup.
  • Counseling and screening services.
  • Breast and cervical cancer screenings.
  • Prenatal care (care received while pregnant).
  • Breastfeeding services and supplies.
  • Interpersonal violence screening and counseling (for instance, sexual assault evidence collection exams).
  • HIV screening and STI counseling.

The HHS website ReproductiveRights.gov provides more information about legal rights and available federal resources.

Federal: IRS Increases Mileage Reimbursement Rate Starting July 1

The Internal Revenue Service (IRS) has announced that its optional standard mileage rate will increase to 62.5 cents per mile driven for business purposes. The increase takes effect on July 1, 2022.

Use of this rate is optional, though it is widely used by employers as a standard rate for calculating mileage reimbursement for employees who use their personal vehicle for business purposes. If your organization uses the IRS rate to calculate mileage reimbursement, be sure to update your systems to account for this change.

Federal: New FMLA Mental Health Resources

The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces the Family and Medical Leave Act (FMLA), which enables workers to take time off for mental health treatment for themselves or to care for family members. The WHD provides educational materials to assist in FMLA compliance along with the following new resources (released in May 2022) for workers, their advocates, employers, and their representatives:

The WHD website provides more information about the FMLA and other laws it enforces.

State Law Alerts

Connecticut: New notice requirements

New notice requirements go into effect on July 1, 2022, for Connecticut’s Family and Medical Leave Act (FMLA) and Paid Leave Act (PLA), which were expanded January 1, 2022.

Notice Requirement

  • The amended CT FMLA and PLA require employers to provide a written notice to employees (1) upon hire and (2) annually thereafter. The notice must outline:
  • Employees’ entitlement to job-protected leave under CT FMLA and the terms under which such leave may be used;
  • The opportunity to file a claim for paid leave under CT PLA;
  • Retaliation protections under CT FMLA and PLA; and
  • The right to file a complaint with the Labor Commissioner for any violation.

The CT Department of Labor and Paid Leave Authority provides a template notice that employers can use to satisfy this requirement. The notice requirement will go into effect on July 1, 2022.  See Sec.31-49q. The use of the template notice is optional. Employers may create their own forms; they must contain the information required by the regulations.

Limits on Employer-Required Meetings

Connecticut has expanded its law that generally protects employees from employment discrimination for exercising their First Amendment rights (e.g., freedom of speech) in two ways. First, the law now protects employees from being threatened with discipline or discharge for exercising their First Amendment rights even if the employer doesn’t follow through on the threat. Second, employers can’t require employees to attend meetings, view materials, or listen to speech if the main purpose of the meeting or communication is to express the employer’s religious or political opinion.

This law defines matters as “religious” if they relate to religious affiliation, religious practice, or the decision to join or support a religious organization or association. Matters are considered “political” if they relate to any of the following:

  • Elections for political office
  • Political parties
  • Proposals to change legislation or regulations
  • The decision to join or support any political party or political, civic, community, fraternal, or labor organization

The law will have the practical effect of prohibiting “captive audience meetings,” which are mandatory meetings where employers present their (usually negative) view on unionization.

Although the law applies to employers of all sizes, the ban on religious meetings and communications doesn’t apply to religious organizations. The law also doesn’t apply to meetings or communications that are only for managers and supervisors or to those that are otherwise required by law, such as Connecticut’s mandatory sexual harassment prevention training.

Protection for Off-Duty Cannabis Use

Last year when Connecticut legalized recreational cannabis for those 21 or older, the law included employment protections, outlined below, which take effect this July 1. Connecticut already protected employees from being disciplined or discharged for using medical cannabis off duty, which remains unchanged.

General Protections

Employers can’t discipline or discharge a current employee for using cannabis outside of work unless they have a policy that meets all three of the criteria below. The policy must be:

  • In writing (paper or electronic),
  • Provided to employees before the policy takes effect, and
  • Provided to applicants when the employer offers them a job.

Employers can still prohibit employees from working under the influence of cannabis and can discipline and discharge employees if they have a reasonable suspicion that they used cannabis at or during work (or on call) or if the employee has “specific, articulable symptoms” of impairment while working (or on call) that negatively affect their job performance.

Employers can’t refuse to hire an applicant for using cannabis outside of work before they were hired (typically by testing positive on a pre-employment drug test) unless they would violate a federal contract or lose federal funding by hiring them.

The law carves out specific exemptions from these protections, which are detailed on the laws page.

Employers can’t prohibit employees who are medical cannabis patients from possessing cannabis at work—but can prohibit possession for everyone else as long as they comply with the criteria in the bullet points above.

Testing-Specific Protections

In addition to the above protections, employers can’t discipline or discharge employees (or applicants) for testing positive for the main inactive metabolite of cannabis, THC-COOH (referred to in the law as 11-nor-9-carboxy-delta-9-tetrahydrocannabinol), unless an exception applies. This is what labs generally test for in a urine sample, and it can remain in the body for weeks or even months after cannabis use. (Saliva testing screens for a different THC compound, though you should confirm with your lab.)

Employers can discipline an employee (or applicant) solely based on a positive THC-COOH test result if any of these exceptions apply:

  • The employer is exempt from the cannabis law (the full list is available on the laws page).
  • The position is exempt from the cannabis law (the full list is available on the laws page).
  • The employer would violate a federal contract or lose federal funding if they didn’t discipline them.
  • The employer reasonably suspects an employee used cannabis while working.
  • The employee has “specific, articulable symptoms” of impairment that negatively affect their job performance.
  • The pre-employment drug test was conducted after a conditional offer of employment, the employer’s policy specifically says that a positive drug test for THC-COOH may result in a refusal to hire the applicant, and the applicant isn’t a medical cannabis patient.
  • The drug test was random; the employer complies with the three policy criteria listed above; the policy specifically says that a positive drug test for THC-COOH may result in discipline; and the employee isn’t a medical cannabis patient.

Action Items

  • Given the complexities of this new law, employers who want to test for cannabis should work with an attorney to update their drug policy and testing protocols to ensure compliance.
  • Train supervisors on how to recognize and document reasonable suspicion of impairment in the workplace and the steps to take if an employee is under the influence of cannabis at work.

 

District of Columbia: PFL Tax Rate Reduction

The District of Columbia Paid Family Leave (PFL) tax rate is being reduced from 0.62 percent to 0.26 percent for the quarter beginning July 1, 2022, through September 30, 2022. The first PFL tax payment at the 0.26 percent rate is due October 31, 2022, for wages paid to covered employees between July 1 and September 30, 2022. Read more about DC PFL and the tax rate on the District’s website.

Florida: Limits Employers’ DEI Options

On July 1, 2022, a new law in Florida is scheduled to take effect that restricts employers’ ability to require diversity, equity, and inclusion (DEI) training. The law is currently being challenged in court, and we anticipate a drawn-out legal saga. It could be put on hold or struck down before or after the effective date—we’ll provide an update if that happens.

Under the law, employers with 15 or more employees are prohibited from requiring their employees to attend a training, instruction, or activity that promotes any of these concepts:

  • A person is inherently racist, sexist, or oppressive (whether consciously or unconsciously) because of their race, color, sex, or national origin.
  • A person’s moral character or status as either privileged or oppressed is necessarily determined by their race, color, sex, or national origin.
  • Members of one race, color, sex, or national origin can’t and shouldn’t try to treat others without respect to race, color, sex, or national origin (aka being “colorblind”).
  • A person bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions committed in the past by other members of their race, color, sex, or national origin.
  • A person is responsible for or should be discriminated against because of actions committed in the past by other members of their race, color, sex, or national origin.
  • A person should be discriminated against to achieve diversity, equity, or inclusion.
  • The ideas of merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist or were created by members of one race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
  • Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.

Action Items

If you’re in Florida and want to continue (or start!) DEI training, here are some ideas to consider:

  • Make any DEI training voluntary and don’t consider attendance as a factor in promotions or other employment decisions or benefits.
  • Ensure that required trainings don’t endorse any of the above concepts. The law allows trainings that present these concepts objectively—without endorsing them.
  • If you think that these subjects may come up at trainings or other events where attendance is mandatory (such as all-company meetings), consider working with an attorney on a general disclaimer that the company doesn’t endorse any of these concepts. Note that you don’t need to disown or discourage these views, just not endorse them at mandatory events.

Georgia: Updated Separation Notice

On July 16, 2021, the Georgia Department of Labor updated its Separation Notice (Form DOL-800) that employers are required to complete for each worker who is separated—regardless of the reason why—except when mass separation Form DOL-402 and Form DOL-402A notices are filed.

The federal Coronavirus Aid, Relief and Economic Security (CARES) Continued Assistance Act of 2020 requires employers to notify each individual of the availability of unemployment insurance at separation. Form DOL-800 was revised to contain more information about potential unemployment benefit eligibility and filing a claim. This updated notice must be used immediately and previous versions discarded.

Hawaii: Employee Privacy and Tracking Apps + Analysis

On July 6, 2021, Hawaii Governor David Ige signed legislation (HB 1253) prohibiting employers from:

  • Requiring that applicants or employees download a mobile application to their personal communication device (i.e., cell phone or tablet) that tracks their location or discloses their personal information as a condition of employment or continued employment; or
  • Terminating, discharging, or discriminating against an applicant or employee because they won’t download the app or they oppose the employer when it violates the law (file a complaint, testify, etc.).

However, employees can voluntarily consent to download the app. Employers can also require their employees to carry or use an employer-owned communication device that enables the employee’s location to be tracked.

The law took effect on July 6, 2021.

Analysis

Hawaii now prohibits employers from requiring an employee to download an application (app) on their personal cell phone (or tablet, laptop, etc.) that allows their location to be tracked or their personal information revealed. This is not limited to apps specifically intended for employee tracking—the legislation was inspired by apps created to help trace the spread of COVID-19.

However, this law doesn’t prevent employers from requiring employees to download these types of apps if the company owns the cell phone (or other device) or reimburses the employee for its cost.

Employers can’t terminate or discriminate against an employee who refuses to download an app of this nature or who files a complaint, testifies, or participates in a proceeding related to this law.

Practical Application

While the law seems straightforward, it doesn’t define “personal information,” which could lead to arguments from employees that any number of apps will reveal information they consider personal (such as their browsing history). Employers who need employees to have certain apps on their cell phones or tablets should either provide those devices or reimburse employees for their cost. Even if the company provides or pays for the phone or tablet, our general recommendation for employers who want to track where their employees are is to only do so during work hours, if the company has a legitimate business reason, and if the company applies tracking requirements consistently to similarly situated employees.

Louisiana: Hair Discrimination Prohibited

Effective August 1, 2022, it is unlawful employment discrimination for an employer to discriminate in any employment terms or conditions (hiring, termination, pay, benefits, training, etc.) based on an individual’s natural, protective, or cultural hairstyle, which includes afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance.

(HB 1083 signed by governor June 16, 2022)

New Mexico: Adopting Sick Leave Regulations 

The New Mexico Department of Workforce Solutions has adopted regulations for the new sick leave law taking effect on July 1, 2022. These are the highlights.

Calculations for Irregular Schedules 

The regulations clarify how many hours an employee is entitled to use when they have an irregular schedule:

  • An employee who works fluctuating hours from week to week is entitled to the average number of hours they worked in the previous two weeks.
  • An employee who works a per diem schedule is entitled to the hours they were scheduled to work or the hours they would have worked if they hadn’t used paid sick leave.
  • An employee who works a shift based on the employer’s need with no set duration is entitled to the number of hours the employer used a replacement employee for the same shift or, if that’s not possible to determine, the number of hours the employee worked when they most recently worked the same shift.

Carryover 

Although the law says that unused sick leave must be carried over from year to year, the regulations say that employers can cap carryover at 64 hours. Given the discrepancy, the risk-averse approach would be to allow unused hours to carry over but then set a use cap of 64 hours per year.

Employee Notice

Under the law, employees must make a reasonable effort to provide the employer with advance notice of the need for leave if the leave is foreseeable. The regulations clarify that leave is foreseeable if the employee knew they’d need leave at least seven days in advance.

Employer Notice

The regulations require that employers provide employees with a written year-to-date summary of their accrued and used paid sick leave at least quarterly. Note that the state already requires that employers report all “benefits earned” on paystubs, and this includes sick leave. So, you can either include all of the required sick leave information on each paystub or include only accrual data on paystubs while also supplying each employee with a quarterly report that covers both year-to-date accrual and usage. This can be done electronically and is likely something your payroll provider can assist you with.

Employee Documentation

Employers that require reasonable documentation to verify that an employee used leave for a covered purpose must allow employees at least 14 days after they return to work to provide it. Employers can only require documentation for absences of two or more consecutive workdays.

Action Items

  • Update your sick leave policy if any of the information above conflicts with your current policy
  • Ensure that employees receive the necessary written summary regarding their sick leave benefits at least quarterly
  • If you’d like to read (or just word search) the regulations in full, they can be found here.

Ohio Amends Overtime Law

Ohio recently amended its overtime law, effective July 6, 2022, to include certain provisions from federal wage and hour law, namely the main aspects of the “Portal to Portal Act” (PPA).

The PPA, as now written into Ohio law, doesn’t require employers to pay overtime for activities that are “preliminary or postliminary” to an employee’s principal activity (for example, laundering their uniform or showering at the end of the workday for their own convenience). However, Ohio adds two exceptions to this rule for its state overtime law.

Ohio: Exceptions

First, employees must be paid overtime where the employee performs these types of activities during their regular workday or work hours. Second, employees must also be paid overtime for activities that are performed at “the specific direction of the employer.” The statute provides no guidance on what qualifies as “specific direction,” and this will likely be a question in future litigation.

Action Items

If you employ non-exempt employees who undertake “preliminary and postliminary” activities, we recommend contacting an attorney to help you decide if, when, and how those activities should be tracked and paid.

Rhode Island: Employers Prohibited from Collecting Tips from Tipped Employees

Effective June 28, 2022, employers are prohibited from receiving any portion of tips given by customers to their tipped employees. When tips are charged on a credit card and the employer must pay the credit card company a percentage, however, the employer may deduct that percentage from the employee’s tips and must notify the employee of the deduction.

Additionally, the new law allows non-tipped employees to participate in a tip pool when the employer pays the full minimum wage.

Vermont: Expanding Crime Victim Leave

Vermont has amended its crime victim leave law, which applies to employers of all sizes. An employee who is an alleged victim of a crime or delinquent act is now entitled to take leave to attend a related criminal proceeding that they are required or have the right to attend. (Previously the law did not explicitly cover alleged victims, just victims.)

Employees can also take leave if their family member is an alleged victim and:

  • Is a minor
  • Has been found to be incompetent
  • Was killed because of a crime, or
  • Was hurt physically or emotionally as a direct result of a violent crime (such as domestic assault, stalking, or human trafficking)

Employees may not take leave if they are the alleged offender.

Action Item

Update your crime victim leave policy to ensure that it covers the expansions to the law.

Virginia: Changes to Overtime Law to Align with FLSA

There’s good news for employers in Virginia—the state is once again for lovers of the Fair Labor Standards Act (FLSA). You may recall that there were confusing changes to the state’s overtime laws that took effect last July. Those changes affected overtime calculations and use of the fluctuating workweek for salaried non-exempt employees and muddied the waters with respect to some overtime exemptions. Thankfully, beginning July 1, 2022, Virginia’s overtime law will again align with the federal FLSA.

Jami Beckwith
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