Personnel Concepts provides timely state regulatory activity and essential employment law information to its customers. Our research and regulatory monitoring team frequently tracks labor law developments from all 50 states. The following list of findings from this week’s state legislation research sweep addresses May 2021 regulatory activity in various states. Most importantly, as new information becomes available, Personnel Concepts will continue to provide regulatory updates to affected customers.
California’s Division of Occupational Safety and Health updated its COVID-19 Emergency Testing Standards Frequently Asked Questions (FAQ) post. As of May 5th, 2021, the FAQs now address Governor Gavin Newsom’s Executive Order N-84-20 and the new California Department of Public Health COVID-19 Public Health Recommendations for Fully Vaccinated Individuals. Among other things, the revisions establish that employers do not need to exclude fully vaccinated asymptomatic employees from the workplace if exposed to COVID-19.
According to JD Supra, the Illinois General Assembly announced on April 30th, 2021, that it is considering a bill (H.B. 117) that makes amendments to the Illinois Secure Choice Savings Program Act. The amendments include extending the requirement to offer employees retirement savings plan to employers with 5 to 24 employees. H.B. 117 was passed by the Illinois House of Representatives earlier this month and is currently pending in the state senate.
Currently, Illinois employers with 25 or more employees must participate in the Secure Choice Program or offer another qualifying retirement savings plan to employees. Affected employers need to have been in business for at least two years. H.B. 117 would lower the threshold to employers with five or more employees. If H.B. 117 becomes enacted into law, some Illinois employers would feel additional effects. For example, employers with five or more employees during the previous year, have been in business for at least two years, and do not offer another retirement savings plan would be required to participate in the Secure Choice Program.
On April 21st, 2021, New York State lawmakers approved the New York Health and Essential Rights Act, also known as the HERO Act (Act). The Act calls for fines levied against businesses that fail to adopt and enact new standards to protect workers from and stem the spread of coronavirus or other airborne diseases. Additionally, the law includes a robust anti-retaliation provision. That provision provides protections for workers that express concerns and file complaints against employers in violation of the Act. Governor Andrew Cuomo subsequently signed the HERO Act on May 6th, 2021.
A recent New Jersey appellate court decision addressing unemployment fund contributions will ease employers’ standards. Specifically, under New Jersey’s “ABC” test, which distinguishes independent contractors from employees, single-member limited liability companies (LLCs) can be considered independent contractors for unemployment fund contributions. In East Bay Drywall, LLC v. New Jersey Department of Labor and Workforce Development, the court determined the company was adequately defining independent contractors. That designation excused them from contributing to unemployment funds.
Additionally, in the New Jersey Supreme Court case Hager v. M&K Construction, the court affirmed that medical cannabis prescriptions are lawful under workers’ compensation. The complainant suffered back injuries on the job and used surgery and opiate prescriptions as treatment. Subsequently, after years of therapy and loss of drug efficacy, medical marijuana was a more effective treatment for the patient. His employer did not cover the cost based on the Federal Controlled Substances Act, which does not recognize cannabis as an acceptable form of treatment. However, the judge found that the employer was responsible for his prescription costs in both the initial case and appellate court.