Navigating New Employer Compliance Requirements in 2021 and Beyond
Director of Compliance
New and amended employment laws seem to be constantly on the rise in the United States and Canada, and 2021 will be no different. Employers must stay current with these new regulations or possibly face substantial liability through employee lawsuits and agency charges. Here are brief descriptions of several new laws in the United States and Canada that recently took effect or will soon be in force:
California Family Rights Act (CFRA) Expansion
Effective January 1, 2021, California employers with as few as five employees (formerly 50 or more employees) are required to provide CFRA leave to eligible employees to care for additional family members with a serious health condition (i.e. grandparents, grandchildren and siblings); to care for a child with a serious health condition regardless of the child’s age (before the amendment the child had to be under 18 or an adult-dependent child); 12 weeks of baby-bonding leave for both parents, even if the parents work for the same employer; and leave for certain qualifying exigencies related to the active military duty of an employee’s spouse, domestic partner, child, or parent.
California Crime Victim Leave Expansion
California expanded job protections for employees missing work for reasons related to their status as crime and abuse victims. The legislation (AB 2992), which took effect January 1, 2021, revised two sections of the California Labor Code (230 and 230.1) that formerly granted leave to employees who were victims of domestic violence, sexual assault, and stalking. Now, employers are prohibited from discharging, discriminating, or retaliating against employees who are victims of any public offense constituting a misdemeanor or felony causing physical injury or mental injury and a threat of physical injury, or whose immediate family member dies as a direct result of a crime. The legislation, among other things, also loosened the kinds of certification employers may require to verify a victim’s need for scheduled leave, including a statement signed by the employee or an individual acting on the employee’s behalf, certifying that the absence is for a valid reason.
California Paid Family Leave
California expanded its Paid Family Leave program to include time off for employees to attend to a “qualifying exigency” related to an individual’s spouse, registered domestic partner, parent, or child who is an active duty member of the United States Armed Forces. The expansion was effective January 1, 2021.
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Massachusetts Paid Family and Medical Leave (PFML)
This new state-offered benefit for Massachusetts workers can, under certain circumstances, provide up to 26 weeks of paid leave for various medical or family reasons. PFML is funded through a Massachusetts tax, and most benefits are available beginning January 1, 2021. Employees may take leave to bond with a newborn, newly adopted child, or new foster child during the first 12 months after birth or placement; to care for a family member in the Armed Forces, National Guard or Reserves who developed or aggravated a serious health condition in the line of duty on active duty while deployed to a foreign country; to manage family affairs when a family member is on or has been called to active duty in a foreign county while in the Armed Forces, including the National Guard or Reserves; and to manage their own serious illness or injury. Finally, beginning July 1, 2021, PFML benefits will become available to care for a covered family member with a serious health condition.
New York State Paid (and Unpaid) Sick Leave
On September 30, 2020 (or on the employee’s hire date if hired after September 30), covered employees in New York State began accruing sick leave at a rate of one hour for every 30 hours worked. Employees can start using this accrued leave on January 1, 2021. The total amount of leave that can be accrued by employees, and whether it must be paid, varies by employer size (e.g. employers with fewer than five employees and a net income of less than one million in the previous tax year need only grant 40 hours of unpaid sick leave). Employees may use accrued leave for “sick” and “safe” reasons affecting themselves or a family member for whom they are giving care. As an alternative to employees accruing one hour for every 30 hours worked, employers may provide the full sick leave entitlement at the start of each calendar year.
Connecticut Paid Family and Medical Leave (PFML)
In 2019 the State of Connecticut enacted a PFML law creating a paid family and medical leave insurance program in Connecticut. Although benefits do not start under the law until 2022, in January 2021 employers must begin deductions from the pay of Connecticut employees to fund the program. When benefits begin, the leave may be used for events such as the employee’s or a family member’s serious health condition; to care for a child after birth, adoption, or foster care placement; to address qualifying military exigencies; to serve as an organ or bone marrow donor; and to attend to certain matters pertaining to family violence.
The pandemic will continue to complicate matters for employers as new and amended leave rights are created and U.S. and Canadian jurisdictions permanently or temporarily change current laws to cover public health emergencies.
Chicago Fair Workweek Ordinance
Employees covered by the Chicago Fair Workweek Ordinance will have a private right of action against employers for violating the ordinance starting January 1, 2021. Though the ordinance took effect July 1, 2020, including fines payable to the City of Chicago, the right to a private action under the ordinance was deferred until January 1. Before filing suit, however, employees must first exhaust their administrative remedies with the Chicago Department of Business Affairs and Consumer Protection. The ordinance, among other obligations, requires covered employers to furnish new hires with a good faith estimate of days and hours of work; to give notice of the work schedule to covered employees at least 10 days before the day the schedule begins ( increasing to 14 days on July 1, 2022); to compensate employees for schedule changes made after the date the schedule must be posted, known as predictability pay; and to provide premium pay if the employee works with fewer than 10 hours between shifts.
Employee Rest Periods in Alberta, Canada
Previously, employers in Alberta were required to furnish employees with 30 minutes of rest within, or immediately after, every block of five consecutive hours of work. New legal amendments that took effect in late 2020, however, have changed the rest period requirement in Alberta as follows: (1) employees are not entitled to a break if their shift is five hours or less; (2) employees are entitled to one 30-minute paid or unpaid break after the first five hours of work for shifts between five and 10 hours; (3) for shifts 10 hours or longer, an employee is entitled to two 30-minute breaks; and (4) if an employer and an employee agree, the rest breaks can be taken in two periods of at least 15 minutes.
Manitoba Unpaid Leave for Reservists
The Employment Standards Code in Manitoba permits military Reserve members to take unpaid leave from their employment for active duty and training. A recent amendment to the law, effective December 3, 2020, clarified when leave can be taken and reduced the minimum consecutive employment period required for leave from seven months to three months.
Canada Labour Code New Penalty System
Effective January 1, 2021, Bill C-44 subjects federally regulated employers to administrative penalties up to $250,000 for contravening certain provisions of Part II (Occupational Health and Safety) and Part III (Standard Hours, Wages, Vacations, and Holidays) of the Canada Labour Code. When a corporation violates a provision, liability for the penalty applies to those directing, authorizing, assenting to, acquiescing in, or participating in the violation.
Quebec Act Respecting Labour Standards
The Quebec National Assembly recently enacted “an Act mainly to improve the flexibility of the parental insurance plan in order to promote family-work balance” which makes changes to parental leave, paternity leave, maternity leave, and special maternity leave. The amendments took effect January 1, 2021.
Stay Up to Date with Changing Requirements
These are just a sampling of new laws in the United States and Canada. What these and other new regulations mean for employers is that they must now contend with additional complex and expensive compliance obligations. As the North American landscape continues to veer toward more employee protections, the spread of employee-friendly legislation will only accelerate, both in 2021 and beyond. Employers must be mindful to keep pace with these changes or risk liability and should consult legal counsel if additional information is needed about new or amended laws.
Register for our upcoming webinar on Wednesday, January 13th at 1:00PM EST | 10:00AM PST for an in-depth discussion on new and changing employment legislation and learn how you can prepare your workforce compliance for 2021.
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