July 2017 Legal Update

JULY 31, 2017: PCORI Fee Due for Self-Insured Plans
Employers who sponsor self-funded plans are responsible for submitting the Patient Centered Outcomes Research Institute (“PCORI”) fee and accompanying paperwork to the IRS no later than July 31, 2017.

The amount of the PCORI fee is equal to the average number of lives covered during the policy year or plan year multiplied by the applicable dollar amount for the year. PCORI fee for plan years ending on or after October 1, 2016 and before October 1, 2017 is $2.26 per each person covered. Click here for IRS FORM 720.

JULY 31, 2017: Form 5500 Due (if on calendar plan year)
Form 5500 are returns for employee benefit plans to satisfy annual reporting requirements under ERISA and the IRS. Group plans with 100 or more participants must file Form 5500 annually, by the last day of the seventh month following the end of the plan year. For plans on a calendar year, the deadline is July 31. For a list of exceptions and additional information, click here to visit the IRS 5500 Center.

Need Help Filing? For assistance creating and filing Health and Welfare Form 5500, call HR Service, Inc. at toll-free: (855) 447-3375 x 1. We also help with ACA Reporting, SPD Wraps, 125 POPs, HR compliance and more.

SEPTEMBER 30, 2017: VETS-4212 Report Due
The 2017 filing season for the VETS-4212 starts on August 1, 2017 and ends on September 30, 2017. Government contractors must submit a VETS-4212 Report no later than September 30. Click here for VETS-4212 reporting information.

FEDERAL COMPLIANCE UPDATES

UPDATE TO FORM I-9
United States Citizenship and Immigration Services (“USCIS”) has released a new Form I-9 for immediate use, which can be downloaded here: Updated Form I-9.

Changes to the form include:

• Changing of the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section and removal of “the end of” from the phrase “the first day of employment.”

• Addition of the Consular Report of Birth Abroad (Form FS-240) to List C.

• All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) combined into selection C#2 in List C.

• Renumbering of all List C documents except the Social Security card.

• The current I-9 dated 11/14/2016 can still be used through September 17, 2017. As of September18, 2017, employers must use the new form.

USCIS has also released a new employer I-9 handbook, available here: Form I-9 handbook.

STATE-BY-STATE COMPLIANCE

CALIFORNIA
More Protection for Transgender Individuals 
Effective July 1, 2017, new regulations have been approved by California’s Department of Fair Employment and Housing (“DFEH”) to expand protections available for people who identify as transgender as well as for gender identity and gender expression.

Employers must allow employees to use facilities that correspond with their gender identity or gender expression. Further, single-occupancy facilities under the employer’s control must be labeled with gender neutral terms.

Employers may not request an employee to disclose information related to sex, including gender, gender expression or gender identity, unless it is requested on a voluntary basis for recordkeeping purposes. Further, employers cannot inquire about or request documentation or proof of someone’s gender, gender expression, gender identity or sex.

The DFEH added another exception to a bona fide occupational qualifications (“BFOQ”) defense. Employers may no longer use a BFOQ defense to establish the fact that a person is transgender or gender nonconforming or that their sex assigned at birth is not the one required for the position.

Domestic Violence Posting Required
In our May 2017 Legal Update, it was announced that employers in California with 25 or more employees must provide specific information in writing to new employees upon hire and to other employees upon request of their rights to take leave related to domestic violence, sexual assault, or stalking.

The notice of rights is now available for download from the Labor Commissioner’s Office here: Notice in English and Notice in Spanish.

Barbering and Cosmetology Workplace Poster
Effective July 1, 2017, AB 2437 requires establishments licensed by the Board of Barbering and Cosmetology (“BBC”) to post a notice regarding workplace rights and wage and hour laws. The notice can be downloaded here: Notice.

CONNECTICUT
Enhanced Protections for Pregnant Employees
Effective October 1, 2017, “An Act Concerning Pregnant Women in the Workplace” amends the Connecticut Fair Employment Practices Act (the “CFEPA”) to modify existing protections and add new protections for pregnant employees.

The new act makes it unlawful for an employer to:

• Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy.

• Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment.

• Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship.

• Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy.

• Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment.

• Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave.

• Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The act also provides or broadens existing definitions for “pregnancy,” “reasonable accommodation,” and “undue hardship.” Under the new regulation,

• “Pregnancy” means pregnancy, childbirth or a related condition, including, but not limited to, lactation.

• “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for expressing breast milk.

• “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

The act also requires employers to provide employees with written notice “of the right to be free from discrimination in relation to pregnancy, childbirth and related conditions, including the right to a reasonable accommodation to the known limitations related to pregnancy . . . .”

FLORIDA
Medical Marijuana 
Effective upon signing on June 23, 2017, the Florida Medical Marijuana Legalization Initiative (SB 8-A) lists qualifying medical conditions for a patient to be eligible to receive marijuana or a marijuana delivery device.

The initiative does not limit the ability of an employer to establish, continue or enforce a drug-free workplace program or policy, nor does it require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.

For additional details, see the entire measure here: SB 8-A.

ILLINOIS
Chicago Paid Sick Leave Ordinance in Effect; Notice Required
Effective July 1, the Chicago Paid Sick Leave Ordinance requires employers within the geographic boundaries of Chicago and/or are subject to one or more of the city’s licensing requirements to allow covered employees to accrue up to 40 hours of paid sick leave over the course of one year at a rate of one hour of paid sick leave for every 40 hours worked. Covered employees are employees who work at least 80 hours in any 120-day period. Employees in the construction industry who are covered by a collective bargaining agreement are excluded from coverage.

Under the Chicago ordinance, paid sick leave may be used for:

• the illness or injury of a covered employee;

• the medical care, treatment, diagnosis, or preventative medical care of a covered employee;

• the illness or injury of a covered employee’s family member or to care for a family member receiving medical care, treatment, diagnosis, or preventative medical care;

• if a covered employee or his or her family member is a victim of domestic violence or a sex offense; or

• the covered employee’s place of business is closed due to a public health emergency, or he or she needs to care for a child whose school or place of care is closed due to a public health emergency.

The accrual of paid sick leave must be calculated in one-hour increments. Employers may bank paid sick leave for up to 180 days after the covered employee starts his or her employment. Employees must be allowed to carry over half of their unused paid sick leave not to exceed 20 hours. Exempt employees are assumed to work 40 hours a week, but if their normal workweek is less than 40 hours, then they will accrue sick leave based upon their normal workweek.

Employers may require up to seven days’ notice when the need for paid sick leave is reasonably foreseeable, and as soon as practicable when the need is not reasonably foreseeable. In the event a covered employee is absent for three or more consecutive work days, employers may require documentation to support the covered employee’s request for paid sick leave.

If an existing PTO policy meets the requirements of the new Ordinance, the employer is not required to provide additional paid sick leave.

Employers will be required to post a notice informing covered employees of their rights under the Paid Sick Leave Ordinance with their first paycheck after the effective date of the Chicago ordinance. The notice can be downloaded here: Paid Sick Leave Notice.

MISSOURI
Revised Human Rights Act
Effective August 28, 2017, an amendment (S.B. 43) to the Missouri Human Rights Act (“MHRA”) makes several key changes to the existing law.

The amendment eliminates the “contributing factor” standard in favor of the “motivating factor” standard. To prove unlawful discrimination, the plaintiff must show the employee’s protected classification actually played a role in the adverse employment action or decision and was a determinative influence on the adverse decision or action. The plaintiff also must prove the adverse action was the direct cause of the claimed damages.

In addition, the amendment:

• Excludes individuals from liability under the Missouri Human Rights Act

• Requires the Missouri Human Rights Commission to make jurisdictional findings in all its decisions

• Permits employers to raise the defense of untimely filing of a charge at any time during the administrative phase or at an appropriate time in litigation

• Caps damages to back pay and interest on back pay at:

1. $50,000 for employers with between 5 and 100 employees
2. $100,000 for employers with between 100 and 200 employees
3. $200,000 for employers with between 200 and 500 employees
4. $500,000 for employers with more than 500 employees

• Leaves attorney’s fees available to prevailing plaintiffs
• Creates the “Whistleblower’s Protection Act” to provide a cause of action for employers who discharge employees who:
• Report an unlawful act of the employer
• Refuse to carry out unlawful directives of the employer
• Engage in conduct otherwise protected by statute or regulation where the statute or regulation does not provide for a private cause of action

NEVADA
Nevada’s Non-Compete Law Amended
Effective June 3, 2017, Nevada’s non-compete law has been amended to include a new standard by which non-compete agreements are to be evaluated.

Under the amended law, a non-compete agreement will be void and unenforceable in its entirety unless it is supported by valuable consideration; it does not impose a restraint that is greater than is required for the protection of the employer; it does not impose an undue hardship on the employee; and it imposes only those restrictions that are appropriate in light of the valuable consideration given in support of the agreement.

A non-compete cannot prohibit a former employee from providing service to a former customer or client if the former employee did not solicit the former customer or client; the customer or client voluntarily chooses to leave and seek services from the former employee; and the former employee otherwise is complying with the limitations in the non-compete agreement as to time, geographical area, and scope of activity being restrained, other than any limitation on providing services to a former customer or client who seeks the services of the former employee without any contact instigated by the former employee.

When an employee who is subject to a non-compete agreement is terminated due to a reduction in force, reorganization or similar type of restructuring, the employer may enforce the agreement only during the period in which the employer is paying the employee’s salary, benefits or equivalent compensation, including, without limitation, severance pay.

New Requirements for Nursing Mothers 
Effective July 1, 2017, Nevada Assembly Bill 113 requires most public and private employers in Nevada to provide a reasonable break time and a clean, private place for an employee who is a nursing mother to express breast milk.

Private employers with fewer than 50 employees are exempted if the requirements would impose an undue hardship on the employer. In addition, Nevada licensed contractors are exempted if the covered employee is performing work at a construction job site that is located at least 3 miles from the regular place of business.

Expanded Protections for Pregnant Workers
Effective October 1, 2017, the Nevada Pregnant Workers’ Fairness Act (S.B. 253) greatly expands the legal rights of pregnant workers of employers with 15 or more employees.

The new law makes it unlawful for an employer to refuse to provide a reasonable accommodation to a female employee or applicant for a condition relating to pregnancy, childbirth or a related medical condition or to take adverse action against or deny an employment opportunity to an otherwise qualified female employee or applicant due to a request for or the use of a reasonable accommodation.

The phrase “condition relating to pregnancy, childbirth or a related medical condition” specifically includes lactation and the need to express milk for a nursing child. “Related medical condition” is defined as “any medically recognized physical or mental condition related to the pregnancy, childbirth or recovery” from the same. The act states that this includes: mastitis or other lactation-related medical condition, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, as well as the loss or end of pregnancy and the subsequent recovery.

The Act requires the employer and employee to engage in a “good faith and interactive process” to determine an effective and reasonable accommodation. This process is triggered when a female employee or applicant requests an accommodation for a protected condition. The employer is permitted to require a statement from the employee’s physician concerning the specific accommodation recommended.

Employers who are contractors licensed under Chapter 624 of the Nevada Revised Statutes are not required to provide a place other than a restroom to express milk if the employee is performing work at a construction job site that is located more than three miles from its regular place of business. Contractors are also exempt from the prohibitions against requiring an employee whose work duties include manual labor to accept an accommodation or take leave from employment.

Effective immediately, covered employers are required to post a notice of these rights in a conspicuous place accessible to employees. The notice can be downloaded from here: Pregnancy Rights Notice.

In addition to having to post the notice, covered employers are also required to provide a copy of the notice to all new employees at the beginning of their employment and within 10 days after an employee notifies her immediate supervisor that she is pregnant.

NEW YORK                
Advanced Home Health Aide Law 
New York has enacted a law that establishes the advanced home health aide (“AHHA”) job designation. The new law defines an AHHA as a certified home health aide:

• who meets certain regulatory requirements (discussed below),

• is listed on the New York State Department of Health home care services worker registry, and who meets any other requirements established by the Commissioner of Health by regulation.

An AHHA is authorized to perform “advanced tasks” without violating the legal proscriptions against the unauthorized practice of nursing. The legislation’s broad description of minimum “advanced tasks” includes the administration of medications that are routine, pre-filled and otherwise relatively easy to administer. This would not include medications that require injections, other than insulin/diabetes care injections and other specified injections, sterile procedures, or central line maintenance.

A section of the new law authorizes RNs to assign and supervise the advanced tasks and includes additional requirements. Before assigning an advanced task, the RN must complete a nursing assessment and provide the AHHA written, individual-specific instructions for performing the task, as well as criteria to identify, report and respond to problems.

The regulations apply to certified home health agencies, licensed home care services agencies, hospices, and enhanced assisted living residences.

The significant sections of the legislation are effective 18 months from the date of signing, December 6, 2016.

OREGON
Equal Pay Act Signed 
Oregon’s Equal Pay Act (H.B. 2005) will restrict questions on salary history prior to a job offer. The law goes into effect on the 91st day from the end of the 2017 regular legislative session, which adjourned on July 10, 2017. However, employers cannot be sued for violating the pay history provisions until January 1, 2019.

The new law is intended to prevent employers from paying employees performing comparable work at different rates of pay based on race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. Employers will be able to inquire only about a job applicant’s salary history after making a job offer that includes a compensation amount.

The law does allow different compensation levels if the difference is based on a bona fide factor such as seniority, merit and production-related systems, as well as workplace locations, travel needs, education, training and/or experience.

The law includes a defense for employers if they are able to show that, within three years before the date the employee filed a legal action, the employer (1) completed an equal pay analysis of its pay practices in good faith that was reasonable in detail and scope in light of the employer’s size; and (2) eliminated wage differentials for the plaintiff and made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff.

TENNESSEE
New Drug Test Reporting Requirements on Healthcare Employers
Effective July 1, 2017, a new law imposes reporting requirements on healthcare practitioner (“HCP”) employers. Under the new reporting law, HCP employers must report HCP employees with positive drug test results or those who refuse to submit to a work-related drug test to the appropriate HCP board, the Tennessee Department of Health and the applicable licensing board.

HCP’s will have three business days from the time of notification of a confirmed test result to either present a lawful prescription for the drug or a valid medical reason for using a drug to their employer or report to the state’s substance abuse peer assistance or treatment program.

If HCP’s fail to report to, participate in and comply with the applicable peer assistance or treatment program, the program must report the HCP’s violation of the law to the appropriate HCP board.

TEXAS
Texting While Driving Banned
Effective June 6, 2017, H.R. 62 enacted a statewide ban on texting while driving. The new law prohibits drivers from reading, writing or sending electronic messages unless the vehicle is stopped. It does not, however, prohibit dialing a number to call someone, setting a GPS device, listening to music or even surfing on the Internet.

Exceptions to the ban include drivers using a hands-free device including voice-operated technology; reporting illegal activity or contacting emergency services; reading a text that the person reasonably believed concerned an emergency; and relaying information to a dispatcher or digital network as part of the driver’s job. The law would also not apply to drivers of authorized emergency or law enforcement vehicles acting in an official capacity.

Amendments to the new law are already being considered that would nullify tougher cellphone regulations that are currently in place in about 40 Texas cities including Austin, San Antonio and El Paso. Updates will be provided as they become available.

While this law applies to individuals, OSHA has made it clear that it is an employer’s responsibility to have a clear and enforced policy against texting while driving for business purposes.

WASHINGTON
Texting While Driving Now Primary Offense 
Effective July 23, 2017, a new law makes use of a mobile phone while driving a primary offense in Washington. While this law applies to individuals, OSHA has made it clear that it is an employer’s responsibility to have a clear and enforced policy against texting while driving for business purposes.

The law exempts drivers using a mobile phone to contact emergency services; transit system employees relaying time-sensitive communication to dispatch services; commercial motor vehicle drivers who use a mobile phone within the scope of employment; and drivers operating an authorized emergency vehicle.

“Healthy Starts Act” Provides New Protections for Pregnant Workers
Effective July 23, 2017, the “Healthy Starts Act” makes it an unfair business practice for any employer with 15 or more employees to:

• Fail or refuse to make reasonable accommodation for an employee for pregnancy, unless the employer can demonstrate that doing so would impose an undue hardship on the employer’s program, enterprise, or business;

• Take adverse action against an employee who requests, declines, or uses an accommodation under this section that affects the terms, conditions, or privileges of employment;

• Deny employment opportunities to an otherwise qualified employee if such denial is based on the employer’s need to make reasonable accommodation required by this section;