State & Local Employment Law Developments: Q4 2021

The fourth quarter of 2021 continued the trend of increasing regulation of the workplace by state and local governments. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance. (Please note that developments related to issues such as minimum wage rates and COVID-19 are not included.)

California

For information regarding new California laws for 2022, please refer to our firm’s legal update on the subject.

Colorado

Paid Sick Leave Law Includes Smaller Employers: Effective January 1, 2022, Colorado’s Healthy Families and Workplaces Act (HFWA) requires employers with fewer than 16 employees to adhere to the same sick leave rules that larger employers began complying with in January 2021. Colorado employers of all sizes are now required to provide paid sick leave to their employees, accrued at one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours per year. An employee begins accruing paid sick leave when employment begins, may use paid sick leave as it is accrued, and may carry forward up to 48 hours of paid sick leave to the following year. An employer is not required to allow the employee to use more than 48 hours of paid sick leave in a year.

Connecticut

Paid Family and Medical Leave (PFML) Act: Effective January 1, 2022, the PFML Act amends the Connecticut Family and Medical Leave Act. Amendments of particular note include:

• The definition of an employer that the PFML applies to is reduced from an employer with 75 or more employees to an employer with one or more employees.
• An “eligible employee” is amended to mean an employee who has been employed at least 3 months immediately prior to the request for leave. This is a reduction from the previous length of twelve months, and the hours-worked requirement for employee eligibility has been eliminated.
• An eligible employee is allowed up to twelve weeks of leave in any 12-month period, with an additional two weeks for a serious health condition resulting in during pregnancy. This is an increase in allowed leave from the previous sixteen weeks in a 24-month period. Amendments are also included in the four method options to determine the 12-month period.
• The definition of a family member is amended to mean a spouse, sibling, son or daughter, grandparent, grandchild or parent, or an individual related to the employee by blood or affinity whose close association shows to be the equivalent of those family relationships. Further, the definition of grandparent or grandchild is broadened to be related by blood, marriage, adoption, or foster care and the definition of parent now includes a parent-in-law.
• Employees are allowed to retain at least two weeks of accrued paid leave rather than exhausting it during a family or medical leave.

Illinois

Kin Care Leave Law Amendment: Effective December 10, 2021, employees of an employer subject to Title II of the Railway Labor Act are no longer exempt from Employee Sick Leave Act (ESLA) coverage, making such employees eligible for kin care leave.

Victims’ Economic Security and Safety Act (VESSA): Amendments to VESSA that become effective January 1, 2022 make the following changes or additions:

• Employees are entitled to take leave if they or a covered family or household member are a victim of a crime of violence. This is in addition to the already-covered sexual, gender or domestic violence.
• The definition of a covered family or household member is expanded to include a party to a civil union, grandparent, child, grandchild, sibling or any son, daughter, other person related by blood or by present or previous marriage or civil union, other person who shares a relationship through a child, or any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee son or daughter, and persons jointly residing in the same household.
• The employee is now given the ability to determine which of the prescribed forms of documentation to provide to the employer for certification of the crime of violence against the employee or covered family or household member, and the employee is required to submit only one form of certification.
• All information provided to the employer pursuant to VESSA must be retained in the strictest confidence by the employer, except to the extent that disclosure is: (1) requested or consented to in writing by the employee; or (2) otherwise required by applicable federal or state law.

Chicago Domestic Worker Written Contract: Effective January 1, 2022, an employer of domestic workers is required to provide a written contract setting forth the wage and work schedule agreed upon between employer and employee. Upon the employee’s request, the written contract must be in the domestic worker’s primary language.

Personnel Record Review Act Amendments: Effective January 1, 2022, an individual may file a complaint or commence an action alleging an employer or former employer disclosed confidential disciplinary action. The complaint or private right of action must be initiated within three years after the date of the disclosure.

Association Discrimination: Effective January 1, 2022, discrimination based on disability is expanded to include discrimination against an individual because of the individual’s association with a person with a disability.

Illinois Noncompete and Nonsolicitation Agreement: For an overview of changes coming January 1, 2022 regarding noncompete and nonsolicitation agreements, please refer to our firm’s legal update on the subject.

Massachusetts

Retail Worker Overtime Rate Decrease: Effective January 1, 2022, Massachusetts retail employees who work on a Sunday or on a state holiday will be paid a holiday premium rate of 1.1 times their regular rate (this is a decrease from 1.2 times their regular rate). Premium pay is required only if the retailer employs more than seven workers, including the owner. It should be noted by employers that this change is part of an ongoing decrease in retail premium rate pay, and in 2023 retail premium pay on state holidays will be eliminated.

Paid Family and Medical Leave Program (PFML): The yearly updates to PFML contribution rates and benefit limits take place on January 1, 2022. As of that date, maximum benefit to eligible individuals is raised to $1,084.31, and the employer benefit contribution rate is decreased to .68% of eligible wages.

For an employer with 25 or more covered employees, the contribution is broken down as follows:

• Family leave contribution: Employer may withhold .12% of eligible wages
• Medical leave contribution: Employer may withhold .224% of eligible wages and is responsible for paying .336% of eligible wages directly

Employers with 24 or fewer employees have the same withholding guidelines, but are not responsible for directly paying .336% of eligible wages directly.

New York

Paid Family Leave Amendments: Effective January 1, 2022, a pair of amendments will affect New York State’s Paid Family Leave (PFL).

Amendment to Cap on Paid Family Leave Taken Intermittently: This revised regulation pertains to employees who work more than five days per week. The current calculation for the maximum days of PFL that an employee may take intermittently is to multiply by 12 the average number of days the employee works per week, and there is a 60-day cap per 52-week period. This amendment eliminates the 60-day cap, thus employees who work more than five days per week will be entitled to additional intermittent PFL.

Paid Family Leave Contribution Increase: While the employee contribution rate remains 0.511%, the annual cap will increase to $423.71. This is an increase from 2021’s annual cap of $385.34.

Paid Family Leave for Siblings: Effective January 1, 2023, for purposes of PFL, the term “family member” will include siblings. "Sibling" means a biological or adopted sibling, a half-sibling or stepsibling.

Expansion of Whistleblower Protections: Effective January 26, 2022, New York expands retaliation protections to those who report unlawful or dangerous business practices.

The definition of “employee” is expanded to include former employees or persons employed as independent contractors to carry out work in furtherance of an employer's business enterprise who are not themselves employers.

Retaliatory action by an employer against a whistleblower is expanded to include:

• Adverse employment actions or threats to take such adverse employment actions against an employee in the terms of conditions of employment including but not limited to discharge, suspension or demotion.
• Actions or threats to take such actions that would adversely impact a former employee's current or future employment.
• Threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member.

For the retaliatory protections to apply, the employee must have made a good faith effort to notify the employer by bringing the issue to the employer’s attention and giving the employer a reasonable opportunity to correct it. However, the amendment also provides several exceptions where this advance notification to the employer is not required of the employee. Exceptions apply if:

• There is an imminent and serious danger to the public health or safety.
• The employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy or practice.
• Such activity, policy or practice could reasonably be expected to lead to endangering the welfare of a minor.
• The employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person.
• The employee reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy or practice.

The amendment also provides for civil penalties and/or punitive damages assessed against the employer if the violation was willful, wanton, or malicious.

North Carolina

Charlotte, North Carolina Non-Discrimination Ordinance: Effective January 1, 2022, new employment protections make it unlawful for an employer of any size to discriminate against an individual in any employment matter based upon the individual’s race, color, gender, religion, national origin, ethnicity, age, familial status, sexual orientation, gender identity, gender expression, veteran status, pregnancy, natural hairstyle or disability. Exceptions to the ordinance include:

• A religious organization's requirement that employees adhere to its tenets as a condition of employment is not a discriminatory practice covered by the ordinance.
• An employee may express their sincerely held religious commitments in the workplace in a reasonable, nondisruptive and non-harassing way, unless the expression is in direct conflict with the essential business-related interests or the needs of the employer.

Washington

Earnings Requirement for Noncompete Agreements: Effective January 1, 2022, a noncompete agreement is enforceable only if the minimum employee earnings meet the requirements below:

• Employees must earn a minimum of $107,301.04 (increased from $101,390).
• Independent contractors a minimum of $268,252.59 (increased from $253,475).