FEDERAL UPDATES

DOT Drug Testing:  The Department of Transportation agencies announced their minimum random drug and alcohol testing rates for 2024, which are the same as 2023. Each agency sets its rates. For Federal Motor Carriers, the 2024 rates remain at 50% for random drug testing, and 10% for random alcohol testing. For the drug testing rate to decrease to 25%, the violation rate must be less than 1% but equal to or greater than 0.5% for two consecutive calendar years.

Secure 2.0 Incentives: The Secure 2.0 Act allows employers to provide de minimis incentives to employees who enroll in a 401(k) or 403(b) plan. The IRS just published a notice limiting those incentives to $250, and requiring that they be paid only to employees not already enrolled.

Independent Contractors:  The White House budget office formally approved the proposed DOL rule on independent contractor classification which was published in October. It now goes back to the DOL for final publication, and barring any further delays or court-ordered stays would take effect 60 days after publication. It would essentially return to the “economic realities” test from 2020 and is generally intended to make it more difficult to classify individuals as independent contractors. According to the DOL, the proposed rule will:

• Align the department’s approach with the courts’ FLSA interpretation and the economic reality test.
• Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA.
• Ensure that all factors are analyzed without assigning a predetermined weight to a particular factor or set of factors.
• Revert to the longstanding interpretation of the economic reality factors. These factors include the investment, control, and opportunity for profit or loss factors. The integral factor, which considers whether the work is integral to the employer’s business, is also included.
• Assist with the proper classification of employees and independent contractors under the FLSA.
• Rescind the 2021 Independent Contractor Rule.

Some states have their test, and most jurisdictions also have court decisions that may affect the analysis. When in doubt, employers should always consult with a local attorney to avoid the significant costs involved if employees are misclassified.

STATE/LOCAL UPDATES

California:

COVID-19: California employers are no longer required to post or send notices of workplace COVID-19 exposures (expired 12/31/23), and the rebuttable presumption that a COVID-19 illness qualifies for worker’s compensation has also expired. However, Cal/OSHA’s non-emergency regulation remains in effect until February 2025. It requires employers to send notices to employees/independent contractors who had “close contact” in the workplace. Also, if an employee is excluded from the workplace for COVID-19-related reasons (including “close contact” exposure), their employer must still provide information about COVID-19-related benefits to which they may be entitled.

Workplace Violence Prevention Plans. Cal/OSHA has been working on standards for workplace violence prevention since 2017. The California legislature lost patience this year and enacted SB 553 to push Cal/OSHA to finish them. Final standards are not required until 12/31/25, but enforcement for employers will begin on 7/1/24. Despite the mismatch in the dates, it is widely expected that Cal/OSHA will be under significant pressure to provide additional guidance this spring. In the meantime, the statute itself includes a basic outline that will allow employers to begin preparing by assigning responsibility for compliance, setting up recordkeeping, assessing risks, and building an initial response plan.

The standards will apply to all employers in CA other than those who qualify for limited exceptions:  health care (if already covered under a separate standard), remote employees working from a location of their choosing outside the control of their employer (i.e. working from home), and locations not open to the public where fewer than 10 employees work at any given time.

What we know now is that the plan must be in writing, and can be included as a standalone section in the IIPP or as a separate document. It must include the Identity of individuals responsible for implementing the plan and procedures for:

• Involving employees in developing and implementing the plan
• Coordinating with any other agency (such as a staffing agency)
• Accepting and responding to reports of workplace violence, and prohibiting retaliation for reporting
• Ensuring that employees comply with the plan
• Communication about how to report violent incidents or threats
• Response to reports or incidents
• Identifying and evaluating hazards
• Post-incident response and investigation
• Annual review, or after an incident
• Initial and annual training (and additional training when new or previously unrecognized hazards are identified, or when there are changes to the plan) that includes
  • The plan, and how to obtain a free copy
  • How to report hazards and incidents
  • Corrective measures
  • How to seek assistance to prevent or respond to violence
  • Strategies to avoid physical harm
  • Information about the violent incident log, and how to obtain a copy

Training records must be kept for at least 1 year.

Incident logs must also be kept and retained for 5 years, omit any personally identifiable information, and include:

• Date, time, and location of the incident
• Detailed description of the incident
• Who committed the violence
• Type of violence or threat, whether weapons were involved, and whether it was a sexual assault

In addition, there is a 5-year records retention requirement for documentation showing workplace violence hazard identification, evaluation, and correction, as well as investigations.

Colorado:

Paid Family and Medical Leave – After a year of collecting premiums, Colorado FAMLI benefits are now available!  Employers should have already posted the required poster (as of 1/1/23) and updated their handbooks.  They should also now make sure that they share the required program notice when an employee experiences an event that triggers eligibility.

Pay Transparency – Colorado recently amended and updated its pay transparency law and guidance, effective January 1, 2024.  The new CDLE guidance (with examples) is available here:  INFO #9A Transparency in Pay and Job Opportunities: The Colorado EPEWA Part 2 12.8.23.  Of particular note:

• Employers are also now required to include an application deadline in job postings, as well as information on how to apply. Application deadlines may be extended so long as the original deadline was in good faith and the posting is updated promptly.  Evergreen postings are permitted as long as the posting states that there is no deadline because the employer accepts applications on an ongoing basis.
• For positions with career progression, the employer must disclose the requirements for career progression to all eligible employees, and the requirements must not be subject to discretion. Promotion it cannot be based even partly on subjective factors such as performance, or rankings.

Connecticut:

Workers’ Compensation/PTSD (eff. 1/1/24) – The state significantly expanded the availability of up to 52 weeks of workers’ compensation benefits for post-traumatic stress injuries sustained while working.  Qualifying events include:

• Viewing a deceased minor;
• Witnessing the death of a person or an incident involving the death of a person;
• Witnessing an injury to a person who subsequently dies before or upon admission to the hospital as a result of that injury;
• Treating and/or carrying an injured person who subsequently dies before or upon admission to a hospital as a result of that injury;
• Witnessing an injury that results in the loss of a vital body part or vital body function that results in permanent disfigurement of the victim.

Unemployment Benefits/Severance Pay – As part of the reforms enacted in 2021, effective 1/1/24 individuals will no longer be able to receive severance pay and unemployment compensation at the same time. It is still unclear whether lump sum severance pay will be counted only in the week it is paid, or will be spread over the period it is intended to represent.  Employers may want to work with their attorneys before presenting a severance agreement that includes severance pay.

Nevada: The state’s COVID-19 Vaccination Leave law expired at the end of 2023.

New York:

Noncompete Agreements: The Governor officially vetoed the legislature’s bill imposing a blanket ban on noncompete agreements, ending speculation about a negotiated amendment.  There is a strong likelihood that a new version will be introduced in the 2024 legislature that will address the Governor’s concerns and will likely include a minimum salary threshold to protect lower wage earners.

NYC Paid Sick Leave: The New York City Council just passed legislation allowing employees working in NYC to directly file lawsuits for violations of the City’s Earned Safe and Sick Time Act.  Successful plaintiffs can recover compensatory damages, injunctive and declaratory relief, and attorney’s fees, and there is a 2-year statute of limitations.  This is in addition to any enforcement by the NYC Department of Consumer and Worker Protection.  If approved by the Mayor, it would be effective 60 days after approval.  Now is a great time to review handbooks and sick leave policies and procedures to ensure compliance with the current NYC sick leave law, including the most recent amendments enacted this fall.

COVID-19: The NYS COVID-19 Vaccination Leave law expired at the end of 2023 (NYC expired 11/1/22). However, the 2020 New York COVID-19 leave law did not include an end or sunset date and is therefore still in effect.  The law provides paid, job-protected leave for employees up to three times in total (not per year) since January 1, 2020, in addition to any other leave rights.  Employees who have already used all three leave allotments over the past three years are no longer eligible for separate COVID-19 leave but may be able to take time off under NY Paid Sick Leave, or combined Paid Family Leave/disability.

Employees who have not used all three COVID-19 leave entitlements may still be eligible if they are required to quarantine (or otherwise need to stay home) due to COVID-19 and cannot perform work for their employer.  As a refresher, the terms of the 2020 law include:

Documentation: To qualify for paid leave, employees must technically be subject to a “mandatory or precautionary order of quarantine or isolation issued by the state of New York, the Department of Health, the local board of health, or any government entity duly authorized to issue such order due to COVID-19”.  In practice, only orders of isolation can be obtained at this point, and only require a self-attested affirmation of a positive Covid test, so this requirement is generally satisfied by a letter from a healthcare provider stating that an individual must isolate due to a positive Covid test, or just a lab-confirmed positive Covid test.

Amount of leave: The amount of paid leave that an employer must provide is based on the employer’s headcount as of January 1, 2020:

• 1-10 employees and a net annual income of $1 million or less must provide unpaid leave for the duration of any quarantine/isolation.
• 1-10 employees and net annual income of over $1 million must provide 5 days of separate paid leave.
• 11-99 employees must provide 5 days of separate paid leave.
• 100+ employees must provide 14 days of separate paid leave.

Pennsylvania:

Criminal Background Checks – effective 2/12/24 HB 689 will expand available expungement of certain criminal records and will provide employers with immunity for negligent hiring when related to expunged criminal records or an applicant’s voluntary disclosure of expunged criminal history information. It does not change existing law that requires employers to use only job-related misdemeanor and felony convictions when making hiring decisions.

Philadelphia- Covid-19: The city’s Covid-19 paid leave ordinance expired at the end of 2023.

Texas: Earlier this year Texas amended Texas Labor Code Chapter 104A to require all employers to post a notice in English and Spanish related to reporting instances of workplace violence or suspicious activity.  It must be posted in a conspicuous place convenient to all employees, and electronically for remote employees.  The Texas Workforce Commission has now published a model notice on its website Posters for the Workplace – Texas Workforce Commission

If you’d like to speak to an Asure HR expert about your business, connect with us.

Asure Software provides this information for general information purposes only.  We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice.  This information may not be accurate or complete as it relates to a particular company or situation, and does not reflect all developments or laws in all jurisdictions.