2021 Mid-Year Workplace Compliance Check for Employers
Director of Compliance
There never seems to be a shortage of new employment laws for employers to contend with in the United States and Canada—and 2021 is no different. Although companies often watch for newly passed employment laws in January when many take effect, employers must be on guard for new regulations year-round since legislation can be enacted at any time.
Below is a 2021 mid-year look at recently passed employment laws in Canada and the United States that organizations should know about to stay compliant:
Massachusetts COVID-19 Emergency Paid Sick Leave (EPSL)
Massachusetts employees are entitled to up to 40 hours of EPSL for several COVID-19-related reasons from May 28 until September 30, 2021 or until the exhaustion of EPSL program funds (whichever comes first). Employees may use EPSL intermittently and cannot be forced by their employers to take other available paid leaves before using EPSL.
British Columbia Paid Sick Leave
Effective May 20, 2021 through December 31, 2021, the British Columbia government amended the Employment Standards Act to provide employees with three days of paid sick leave if they are unable to work for reasons related to COVID-19. The reasons for leave include being diagnosed with COVID-19, being in quarantine or isolation as required by law, and/or being directed to stay home by their employer due to exposure related risks. The amendment also grants permanent paid sick leave to ill or injured workers starting January 1, 2022. Additional details regarding permanent paid sick leave, including the amount of leave available, will be forthcoming from the British Columbia government over the next few months.
The Virginia Overtime Wage Act (VOWA)
Starting July 1, 2021, Virginia employers are subject to new state overtime pay obligations. As with the federal Fair Labor Standards Act (FLSA), VOWA requires employers to pay one and one half times an employee’s regular rate of pay for work hours exceeding 40 in a workweek. VOWA departs from the FLSA, however, on how the regular rate is calculated depending on whether employees are paid hourly or by salary. For hourly employees, the regular rate of pay is the hourly rate plus any other non-overtime wages paid or allocated for the workweek—minus FLSA exclusion—divided by the number of hours worked in the workweek. For salaried employees or employees paid regularly in some other way, the regular rate under VOWA is one-fortieth (0.025) of all wages paid for the workweek. VOWA’s other departures from the FLSA include a longer statute of limitations to file claims and the damages recoverable.
Virginia Disability Discrimination Protections
Effective July 1, 2021, Virginia expanded its Human Rights Act to prohibit disability discrimination. With this expansion, employers must make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, including providing leave to employees, unless the accommodation would impose undue hardship on the employer. The law also prohibits employers from requiring workers to take leave if another reasonable accommodation is available.
New Mexico Paid Sick Leave (PSL)
Private employers in New Mexico will soon be required to provide PSL. Beginning July 1, 2022, employers must permit employees to accrue one hour of PSL for every 30 hours worked or grant 64 hours of PSL to workers on January 1 of each year (or a prorated amount for employees hired after January 1). Employees may use up to 64 hours of PSL per 12-month period for their own health condition, to care for a family member’s health condition, meetings at their child’s school or place of care related to the child’s health or disability, and for reasons related to domestic abuse, sexual assault, and stalking. PSL must be paid at the employee’s regular hourly rate.
Nova Scotia COVID-19 Paid Sick Leave Program
Nova Scotia implemented a COVID-19 paid sick leave program that began May 26, 2021 and ends July 31, 2021 (unless extended). Eligible employees may qualify for up to four paid sick days if they need time off because they are waiting to receive a COVID-19 lab test, getting a COVID-19 lab test, self-isolating while awaiting test results, or being vaccinated. Under the program, employers pay employees for the work time they miss and then apply for reimbursement. The payment amount is calculated based on the employee’s rate of pay up to a maximum of $20 per hour or $160 a day (the maximum payment per employee is $640).
Oklahoma Uniformed Services Employment and Reemployment Rights Act
On April 21, 2021, the Oklahoma Uniformed Services Employment and Reemployment Rights Act (“Act”) was enacted. The Act prohibits employers from discriminating against employees or prospective employees based on their membership or service in state military forces. The Act also provides that employees whose absence from work is necessitated by state military service are entitled to reemployment when their service ends if they gave notice of their intent to return to work, were not cumulatively absent for more than 5 years, and submitted a reemployment application to their employer.
Pennsylvania Living Donor Protection Act Leave
Starting June 26, 2021, Pennsylvania employers were mandated to grant time off to employees for organ and tissue donation surgery, including necessary preparation and recovery. Employees are eligible for leave if they meet the following federal Family and Medical Leave Act (FMLA) eligibility criteria: (1) work for an employer covered by the FMLA, (2) work 1,250 hours during the 12 months before the start of leave, (3) work at a location where 50 or more employees are employed within 75 miles of the site, and (4) have worked for the employer for 12 months. The leave also applies to eligible employees who need time off to care for a spouse, child, or parent making or receiving an organ or tissue donation.
Maine Family Medical Leave
On June 14, 2021, Maine amended its Family Medical Leave Act to permit covered employees to take leave to care for a grandchild or a domestic partner’s grandchild with a serious health condition. Formerly, the law only allowed workers to take leave to care for a seriously ill child, domestic partner’s child, parent, spouse, domestic partner, or sibling. The amendment takes effect 90 days after the end of Maine’s present legislative session.
Canadian Vaccine Leaves
Several provinces including Alberta, British Columbia, Manitoba, and Saskatchewan have enacted temporary paid leaves for employees to receive a COVID-19 vaccine. Generally, these leaves are for three hours per vaccination or request.
Bereavement Leave Under the Canada Labour Code
The Canada Labour Code (Code) defines the rights and responsibilities of workers and employers in federally regulated workplaces in Canada. Examples of federally regulated workplaces include air transportation, banks, certain railways and shipping, radio/television broadcasting, Crown Corporations, grain elevators, telecommunications, and other industries. On June 29, 2021 an amendment to Code, Bill C-220, received Royal Assent. Bill C-220 will extend by five unpaid days the period of bereavement leave to which an employee is entitled. The Bill also expands eligibility for bereavement leave to employees who, at the time the family member dies, are on compassionate care leave or leave related to critical illness regarding the deceased person.
This is only a partial list of new employment laws in the United States and Canada. Employers must constantly be on alert for new legislation affecting their employees because failing to do so risks substantial liability. And remember, staying compliant with ever-changing federal, state, and provincial employment regulations is not easy. If you are unsure if a new law applies to your organization or if there is something about it you do not understand, please consult legal counsel.
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