Top 10 Laws and Regulations Affecting Employers in 2020 (Part II)

Top 10

6. Return of the individual mandate

A new law brings back the individual mandate requiring Californians at least to secure health insurance coverage or face tax penalties. This comes after the penalties for not abiding by the Affordable Care Act’s individual mandate were abolished by Congress in late 2017.

Starting in 2020, California residents will be required to have health insurance or pay excess taxes.

This will have an effect on any of your employees who have opted out of your group health plan as it may mean they are going without coverage, unless they have opted to be covered by their spouse’s plan.

If you have staff who didn’t enroll in your plan for 2020, they may have to wait until your group’s next open enrollment at the end of the year. That could force them to pay tax penalties, depending on how long they are without coverage in 2020.

7. New audit, X-Mod thresholds

The threshold for physical workers’ compensation audits for policies incepting on or after Jan. 1, 2020 will be $10,500 in annual premium, a drop from $13,000. This means that any employer with an annual workers’ comp premium of $10,500 or more will be subject to a physical audit at least once a year.

On top of that, the threshold for experience rating (to have an X-Mod) has also fallen ― to $9,700 in annual premium as of Jan. 1, from $10,000.

8. Harassment training deadline pushed back for some employers

As you should already be aware, any employer with five or more workers is required to conduct sexual harassment prevention training for their staff by the end of 2019 under a California law passed in 2018.

Due to concerns that many employers in the state may not be ready to comply, a new law extends the compliance deadline for some employers.

Under SB 778, all employees, both supervisory and non-supervisory, must be trained by Jan. 1, 2021, which extends the deadline by a year.

The original law, SB 1343, required all employers with five or more staff to conduct sexual harassment prevention training to their employees before Jan. 1, 2020 ― and every two years after that.

Here are the new rules:

  • If you trained your staff in 2019, you aren’t required to provide refresher training until two years from the time the employee was trained.
  • If you trained your employees in 2018, you can maintain the two-year cycle and still comply with the new January 1, 2021 deadline. For example, if you trained your staff in November 2018, you would not have to train them again until November 2020.
  • If you trained supervisors in 2017 under prior law, known as AB 1825, you should train those employees this year in order to maintain your two-year cycle.

9. Hairstyle discrimination

A new law makes it illegal for employers to discriminate against employees and job applicants based on their hairstyle if it is part of their racial makeup.

The CROWN Act (Create a Respectful and Open Workplace for Natural Hair), amends the state Education and Government Code to define race or ethnicity as “inclusive of traits historically associated with race, including, but not limited to hair texture and protective hairstyles like braids, locks and twists.”

This broader definition of race means that natural hair traits fall under the context of racial discrimination in housing, employment and school matters.

10. Reporting serious injuries

A new law broadens the scope of what will be classified as a serious illness or injury which regulations require employers to report to Cal/OSHA “immediately.”

The new rules being implemented by AB 1805 are designed to bring California’s rules more in line with Federal OSHA’s regulations for reporting. It will mean that some injuries that were not reportable before will be, such as:

  • Any inpatient hospitalization for treatment of a workplace injury or illness will need to be reported to Cal/OSHA.
  • For reporting purposes, an inpatient hospitalization must be required for something “other than medical observation or diagnostic testing.”
  • Employers will need to report any “amputation” to Cal/OSHA. This replaces the terminology “loss of member.” Even if the tip of a finger is cut off, it’s considered an amputation.

As of yet, there is no effective date for this new law, as enabling regulations have to be written ― a process that will start in 2020.

Top 10 Laws and Regulations for 2020

Top 10

The new decade is starting off with a massive swell of important new laws and regulations that will affect California businesses.

There are so many new laws and regulations that companies have to be on their toes especially at the start of 2020 to get their bearings. This is the first of a two-part entry looking at the top laws affecting businesses coming into the New Year.

  1. AB 5

Probably the most earth-shattering new law to hit the books in California is the highly controversial AB 5, which creates a new and more stringent test for determining who is an independent contractor or employee.

Known as the “ABC test,” the standard requires companies to prove that people working for them as independent contractors are:

A) Free from the company’s control when they’re on the job;
B) Doing work that falls outside the company’s normal business; and
C) Operating an independent business or trade beyond the job for which they were hired.

With this in mind, legal experts recommend that employers:

  • Perform a worker classification audit, and especially review all contracts with personnel.
  • Notify any state agencies about corrections and changes to a worker’s status.
  • Discuss with legal counsel whether they should now also include them as employees for the purposes of payroll taxes, workers’ compensation insurance, federal income tax withholding, and FICA payment and withholding.

2. Wildfire safety regulations

Cal/OSHA has issued emergency regulations that require employers of outdoor workers to take protective measures, including providing respiratory equipment, when air quality is significantly affected by wildfires.

The regulations require that employers take action when the Air Quality Index (AQI) for particulate matter 2.5 is more than 150, which is considered in the “unhealthy” range.

All California employers with “a worker who is outdoors for more than an hour cumulative over the course of their shift” would be required to comply with these regulations:

  • Checking the AQI.
  • Creating a system of communications when the AQI is in the unhealthy range.
  • Training outdoor workers in the safety regulation, how to report problems and how to properly don and use a respirator.
  • Providing workers with protection that could include respirators, changing work schedules, moving them to a safe location, and more.

3. Arbitration agreements

Starting Jan. 1, the state will bar almost all employee arbitration agreements, under AB 51.

The new law bars employers from requiring applicants, employees and independent contractors to sign mandatory arbitration agreements and waive rights to filing lawsuits if they lodge a complaint for various forms of discrimination, harassment, wage and hour issues, and more.

But on Dec. 6, a coalition of businesses groups filed a suit to overturn the law on the grounds that it is preempted by the Federal Arbitration Act and should be declared invalid.

AB 51 applies to contracts entered into, modified or extended on or after Jan. 1, 2020. If you require new employees to sign arbitration agreements, you could be at risk of violating the new law.

4. Federal overtime rules

New federal overtime regulations have finally been introduced for non-exempt workers after years of wrangling over the issue.

Under the new rule, employers will be required to pay overtime to certain salaried workers who make less than to $684 per week ― or $35,568 per year ― up from the current threshold of $455, or $23,660 in annual salary.

5. Consumer privacy

Starting Jan. 1, 2020, under the state’s California Consumer Protection Act, businesses that are custodians of personal data of California consumers will be required to put in certain safeguards to protect that information and inform website users how their personal data may be used.

The law applies to firms with $25 million or more in annual revenues or those that sell personal information as part of their business. The CCPA requires that businesses must explain to consumers their rights under the act at the time their personal information is collected.

IT security professionals advise you to:

  • Review your current processes to see if they need to be updated or recreated.
  • Document all uses of the data and map where personal (consumer) data is stored and transmitted.
  • Put systems in place to respond to a request from a consumer for the data you are storing on them.
  • Update your website homepage with a clear and conspicuous link titled “Do Not Sell My Personal Information,” which allows the consumer to opt out.
  • Improve your cybersecurity systems to better protect consumer data.
  • Train your employees on how to respond to consumers and how to handle consumer information.

In our next post, we will highlight the next five laws and regulations you need to be aware of for your business.

More Firms Being Sued for Discrimination over Medical Marijuana

medical marijuana

More and more companies are being sued for discrimination by job applicants who have legally been prescribed medical marijuana, after they failed pre-employment drug screenings or because of their use of the substance.

The issue of medical marijuana is difficult in terms of the employment picture, especially now that 33 states and the District of Columbia have legalized its use. Of those states, 16 provide workplace protections, either through their own law or case law since their medical marijuana laws were enacted.

To confuse the issue further, marijuana is still illegal under federal statutes, putting employers in a difficult position when they are deciding whether to hire someone who uses it for medicinal purposes.

Courts are increasingly siding with workers and job applicants who are using medical marijuana when they sue employers for discrimination. Most recently, in November 2019, the Court of Common Pleas of Lackawanna Count in Scranton, PA ruled that while the state’s medical marijuana law does not explicitly permit a private right of action by an employee who is allegedly discriminated against because of medical marijuana use, it does so implicitly.

There have been similar rulings in federal and state courts, including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey and Rhode Island. Legal experts say the Pennsylvania case and the others have opened the door for people in other states filing similar actions.

More and more courts have therefore been willing to treat workers who use medical marijuana in the same way as those who have to take other prescription drugs.

Litigation pathways

There are two avenues for litigation for workers who use medical marijuana, if their employers take adverse actions against them:

  • Discrimination — Claiming medical marijuana as a “reasonable accommodation” for someone’s disability under the Americans with Disabilities Act (or a comparable state law), and that the employer should accommodate the worker’s use. Courts have usually drawn the line at using at work to define reasonable accommodation. In other words, it would not be discrimination if an employer bars medical marijuana-using employees from using at work, but it would if they bar them from using during non-working hours.
  • Protection from adverse actions — This could include firing, demotions or similar actions against someone who uses medical marijuana off the clock and does not come to work impaired.

What you can do

Experts recommend that employers make an effort to engage in an interactive process with workers in states where medical marijuana has been legalized.

They recommend engaging any workers who have been prescribed medical marijuana in the interactive process, as prescribed by the ADA. Through this process, the employer can see if they have an underlying disability that requires accommodation.

One of the key considerations for employers is that the reasonable accommodation should affect a worker’s ability to safely perform their job.

If you are in a state whose laws protect medical marijuana users from adverse employment actions, you should review your policies and workplace rules to make sure they are in line with the law.

In addition, since other states have been starting to side with workers in discrimination cases, if you are in a state with legalized medical marijuana, you may want to conduct the same internal review.

If you do conduct drug testing, you should consider which positions you want to test for. Many employers have started only testing for positions that are safety-sensitive, such as those that include operating heavy machinery.

Beware of Parking Lot Hazards at the Holidays

parking hazard

During the busy holiday season, there are many distractions that make parking lots a fairly dangerous place to be.

The combination of early sunset, increased traffic and pedestrians, scam artists, vandals and thieves, and people in a rush, can sometimes be a deadly combination. Just a momentary distraction or lapse in judgment can lead to tragedy.

Parking lot accidents can also turn into a liability for your company or result in an employee being injured and filing a workers’ comp claim.

Fourteen percent of all collisions in the U.S. each year happen in parking lots, and can result in costly insurance claims for vehicle damage. Even worse, it one of your employees strike and injure a visitor, the costs are even higher in terms of both dollars and emotional distress.

Disseminate these basic tips to your employees to help keep everyone safe during the especially busy holiday season:

  • Check your surroundings before you get in your car
  • Backing up is dangerous. Be certain that nothing and no one is behind you before backing out of your parking space
  • Keep your foot off of the gas as you back up, and be ready to break in an instant
  • Look in every direction before pulling into a spot, or backing out of one
  • Don’t text and drive
  • Slow down and pay close attention to speed limits
  • Be careful of pedestrians who may dart in and out between parked cars
  • Park only in areas that are well-lit
  • Keep your car windows closed and your doors locked
  • Watch for cars that may cut diagonally through the parking lot

If you own a building with a parking lot you can also have some liability.

Generally, the owner of the parking lot (whether it is a person, a business, or a property management company) has a reasonable duty to take care that people don’t get hurt on their property. This means that they have to take certain precautions to make that parking lot as safe as possible.

If there are cracks or uneven areas in the pavement, the owner needs to warn people of the danger or repair any hazards that could cause a person to slip and fall. If the parking lot becomes icy, the owner has a responsibility to make it as safe as possible, perhaps by clearing the snow and putting down salt or ice melt.

The takeaway

By training your employees on parking lot and winter driving safety as well as your keeping your parking lot free of hazards you can greatly reduce the chances of an accident and injury happening.

And it goes without saying that you should have commercial general liability (CGL) insurance, which protects you and your business from claims of injury, property damage and negligence related to your business activities.

One of the most essential parts of a CGL policy is premises liability coverage. This portion of your commercial general liability policy offers bodily injury and property damage coverage related to the ownership or maintenance of business premises.