FEDERAL UPDATES 

Religious Accommodations:  Under Title VII of the Civil Rights Act employers are required to reasonably accommodate an employee’s sincerely held religious beliefs, practices or observances unless it would create an undue hardship on the business.  For more than 40 years the standard for undue hardship has been that the accommodation would cause more than a de minimus cost or burden to the business.  In a unanimous decision yesterday the Supreme Court overturned that standard, and held that the cost or burden must be “substantial” based on the overall context of an employer’s business.  Because it a court case rather than a statute, the change is effective immediately.   

Employers should check their handbooks to determine whether the religious accommodation policy should be updated.  In most cases handbooks will just reference undue hardship, so may not require any formal changes.  However, employers should still reconsider how they handle religious accommodation requests, and make sure that the people involved with those requests adhere to the new standard.  Employers should also be prepared for an increase in litigation when accommodations are denied. 

EEO-1 Filing:  The EEOC just posted a notice on its website that that the filing deadline for EEO-1 reports, previously listed as mid-July, has been delayed to “Fall” of 2023.   

I-9 Verification:  The ability to remotely verify I-9 documentation due the pandemic terminates July 31.  For employees hired under that flexibility before July 31, employers have until August 30 to physically verify their documents in person, and update the I-9 forms and E-verify (if applicable).  Employers should be well underway reviewing their I-9 files, flagging any documentation that requires an update, reviewing the USCIS guidance on how to correctly update I-9 forms form/E-verify files, and either arranging for employees to show up in person with their documents, or developing a process for authorized representatives to assist. 

 

STATE/LOCAL UPDATES 

California:  

Covid Outbreaks:  The California Department of Public Health just relaxed the definition of a Covid-19 “outbreak” that triggers employer obligations under the Cal/OSHA Covid regulations.  Previously, the standard was three or more employees in an exposed group testing positive for COVID-19 within a 14-day period. As of June 2023 that standard has changed to three positive COVID-19 cases within a 7-day period.  Employers should review and update their Covid monitoring and reporting processes to reflect his new definition. 

Colorado:   

Paid Sick Leave.  Effective August 7, 2023 several new qualifying reasons for sick leave go into effect, including:  

• attending a funeral or memorial service, or handling the financial and legal matters arising from the death of a family member. 

• caring for a family member whose school or place of care is closed as a result of inclement weather, loss of power, loss of heating, loss of water or other unexpected events. 

• evacuating a home as a result of inclement weather, loss of power, loss of heating, loss of water or other unexpected events. 

Connecticut:  Connecticut’s paid sick leave law is narrower than most, and only applies to “service workers” working for employers with 50+ Connecticut employees.  For those covered employers, effective October 1, 2023 the reasons employees can use paid sick leave will be expanded to include absences for a “mental health wellness day”, and for “safe” leave if they or their child are a victim of domestic abuse or assault. 

New York:  

WARN Act Amendments:  The NY DOL’s amendments to the state mini-WARN Act took effect June 21, 2023, including: 

• Expanding the definition of a covered employer to count employees who work remotely but are based out of the NY worksite. 

• Additional disclosures in the notice to the NY Commissioner or Labor: 

• business addresses and email addresses for the employer’s and employees’ agents; 

• the personal telephone numbers, personal email addresses (if known), work locations, part-time/full-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation for each affected employee; 

• the total number of full-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site; and 

• the total number of part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site. 

• Additional relevant information in the notice to affected employees (if known at the time of disclosure), such as information on severance packages or financial incentives if the employee remains and works until the effective date of the layoff, available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration. 

• Revisions to the Sale of Business provisions  

• Minor changes to the NY WARN exceptions and process.  

Clean Slate Act (pending):  The legislature passed the Clean Slate Act, and if the Governor signs it New York will then develop a process to automatically seal most criminal convictions once a person is released from incarceration and completes a waiting period with no new criminal charges.  It would be effective one year after the Governor’s signature.  Convictions for misdemeanor charges and driving while impaired would be automatically sealed after three years, and felony convictions would be automatically sealed after eight years.  Some serious crimes such as sex crimes, murder, kidnapping etc. would not be eligible.  There are some exceptions where sealed records could be accessed when hiring employees working with vulnerable populations.   

Equal Opportunity Reporting (pending):  If signed by the Governor, a new law (effective in two years) would require employers who file an EEO-1 report (generally those with 100+ employees and certain federal contractors with 50+ employees) to file a copy with the NY Secretary of State.  The data would then be published on the State website.   

Model Lactation Policy:  New York’s lactation accommodation law went into effect June 7, 2023.  The Department of Labor published a model policy and additional guidance to assist with compliance.  The model policy complies with the statutory requirements that employers notify employees of their rights, specifies how to submit requests, and requires an employer to respond within five business days.  Employers are required to either adopt the model policy or prepare one that meets or exceeds the statutory requirements, and should be assessing their lactation rooms and accommodations to ensure compliance.  They should also be aware that unlike the one year limitation under the federal law, New York requires accommodation for up to three years. 

Washington:   

Heat Protection:  For the past two summers, L&I has issued temporary heat protection regulations for outdoor workers.  This week it expanded those rules, and made them permanent.  They are effective July 17, 2023 and are in effect year-round.  Highlights include: 

• Lowering the temperature that triggers many requirements to 80 degrees 

• Requiring specific actions, including ensuring that sufficient water and shade are available to workers 

• Allowing for cool-down periods as needed 

• Close observation and mandatory cool-down periods of 10 minutes every 2 hours when over 90 degrees, and 15 minutes every hour when over 100 degrees. 

• Acclimatization requirements for new workers, or workers returning after an absence  

• Reviewing and updating outdoor heat exposure safety programs, and providing necessary training and materials 

 

WA Cares:   Reminder that all employers are required to deduct Washington Cares (Long Term Care) contributions beginning July 1, and should be preparing to include them with their next quarterly report to ESD.  Failure to make the proper deductions will require the employer to make the necessary contributions – it cannot be retroactively deducted from paychecks or demanded from employees.   

 

ESD is currently backlogged with exemption requests.  Any request received before July 1 will have an effective date of July 1, 2023 regardless of when it is actually approved.  Employers should deduct the premiums until the exemption letter is issued, and then may be required to refund it to the employee before quarterly reporting is due.  Any request received after July 1 will have an effective date beginning in the quarter following the date of approval, so deductions should continue for the remainder of the existing quarter.  Exemption letters previously granted based on existing private insurance are valid indefinitely (for now). 

 

 

If you’d like to speak to an 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.