State & Local Employment Law Developments: Q1 2022

The first quarter of 2022 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

California Amends Record Retention Period and Statute of Limitations Under FEHA: Effective January 1, 2022, California employers must retain applications and certain employment records for four years — up from two years — under the Fair Employment and Housing Act (FEHA). When an individual files a complaint with the Department of Fair Employment and Housing (DFEH), the statute of limitations for civil actions alleging unlawful discrimination, harassment or retaliation is tolled until DFEH files a lawsuit, or one year after DFEH issues notification that it has closed the investigation.

California Consumer Privacy Act (CCPA) Extends Employee Data Exemption: While the exemption of employee data from the CCPA is extended to January 1, 2023, employers must continue to provide notice of collection of personal information.

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

Colorado

Amendments to Colorado WARNING Rules: Amendments to the Colorado Whistleblower, Anti-Retaliation, Non-Interference and Notice-Giving Rules (WARNING Rules) prohibiting retaliation and interference with employee rights under the Agricultural Labor Rights and Responsibilities Act took effect on March 2, 2022. Find details about these amendments and other new laws in our firm’s recent Colorado-specific legal update.

Illinois

Illinois’s Pay Data Reporting Requirement: Illinois’s new pay data reporting requirement took effect on March 24, 2022. Please refer to our firm’s recent legal update for more detailed information.

Mississippi

Medical Cannabis Act:  Effective February 2, 2022, the Mississippi Medical Cannabis Act (MMCA) authorizes the use of medical cannabis by certain individuals pursuant to specific qualifying standards. Most relevant to employers, the MMCA does not:

• Require any employer to permit, accommodate, or allow the medical use of medical cannabis, or to modify any job or working conditions of any employee who engages in the medical use of medical cannabis or who for any reason seeks to engage in the medical use of medical cannabis.
• Prohibit or limit the ability of any employer from establishing or enforcing a drug-testing policy
• Prohibit an employer from disciplining an employee for ingesting medical cannabis in the workplace or for working while under the influence of medical cannabis.
• Prohibit any employer from refusing to hire or taking an adverse employment action against an individual as a result of that individual's medical use of medical cannabis, regardless of the individual's impairment or lack of impairment resulting from the medical use of medical cannabis.
• Interfere with any federal restrictions or requirements on employment or contracting, including, but not limited to, regulations adopted by the United States Department of Transportation.

Additionally, the MMCA specifically states that nothing in it will be construed as to create a private right of action by an employee against an employer.

New Jersey

Employee Notice of Tracking Devices in Vehicles: Approved to become effective April 19, 2022, an employer who makes use of a tracking device in a vehicle used by an employee must provide written notice to the employee. Employers who are in violation of this face civil fines of $1,000 for the first violation and $2,500 for each subsequent violation.

Workers’ Compensation Coverage to Include Parking Lots:  Effective January 10, 2022, the New Jersey workers’ compensation law is amended so that if an employer provides or designates a parking area for use by an employee, then employment commences when an employee arrives at the parking area prior to reporting for work and terminates when an employee leaves the parking area at the end of a work period. If the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.

South Dakota

Prohibited Conduct Under Medical Cannabis Law: Effective July 1, 2022, amendments related to the medical use of cannabis dictate that an employer is not:

• Required to allow the ingestion, possession, transfer, display, or transportation of cannabis in any workplace.
• Required to allow any employee to work while under the influence of cannabis.
• Prohibited from establishing and enforcing a drug free workplace policy that may include a drug testing program that complies with state and federal law and acting with respect to an applicant or employee under the policy.

Washington

Employee Assistance Program Confidentiality: With an implementation date of June 9, 2022, this act deems it unlawful for an employer to obtain individually identifiable information regarding an employee's participation in an employee assistance program (EAP). Individually identifiable information gathered in the process of conducting an employee assistance program must be kept confidential. There are various exceptions provided to these prohibitions.

Additionally, an employee's participation or nonparticipation in an EAP must not be a factor in a decision affecting an employee's job security, promotional opportunities, corrective or disciplinary action or other employment rights.

Washington Care Fund Deductions Delay: While employer deductions to fund the Washington Care Fund were to have been implemented on January 1, 2022, new bills passed on January 26, 2022 pushed the premium assessment start date to July 1, 2023. Employers are required to fully refund employees for any premiums collected within 120 days of the date of collection. If an employer already remitted collected premiums to the Employment Security Department (ESD), the ESD will refund the employer within 120 days of the date they were collected, and the employer must then refund the employees.

Additional changes include requisites determining when the employment security department is to deem a person to be a qualified individual, add exemptions for additional types of employees, extend partial benefits to individuals nearing retirement and delay other implementation dates surrounding these areas.

Employment and Independent Contractor Agreement Limitations:  Effective March 24, 2022, the “Silenced No More Act” renders void and unenforceable any provision in an agreement by an employer and an employee (or contractor) not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee (or contractor) reasonably believed to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation or sexual assault. An employer in violation is liable in a civil cause of action for damages of $10,000 as well as reasonable attorneys' fees and costs.

Notable for employers, the Act does not prohibit:

• Enforcement of a provision in any agreement that prohibits the disclosure of the amount paid in settlement of a claim.
• Employer protection of trade secrets, proprietary information or confidential information that does not involve illegal acts.