Editor’s Note: The firm’s Annual Legislative Update will be held on September 14, 2021. Early registrations can be made by contacting Jessenia Narvaez at jessenianarvaez@robertnoonan.com.
Employment Laws in Connecticut’s Budget Implementer Bill
The Connecticut Senate closed its legislative session on June 9th with the passage of an 837-page budget implementer bill. Buried in it are a number of laws affecting Connecticut’s employers. Among them:
· Time Off to Vote. The bill requires employers, through June 30, 2024, to give an employee two hours of unpaid time off from his or her regularly-scheduled work on the day of a regular state election to vote and in special elections. The time off must occur during regular voting hours (i.e., from 6:00 a.m. to 8:00 p.m.), and the employee must make the request at least two working days before the election. Effective Date: Upon passage.
· Quarterly Reporting Requirements. Beginning in 2024, employers with 100 or more employees who are subject to the state’s unemployment law must include extensive data about each employee in their quarterly wage reports to DOL including:
1. Gender identity, age, race, ethnicity, veteran status, disability status, and highest education completed;
2. Home address and address of primary work site;
3. Occupational code under the Bureau of Labor Statistics standard occupational classification system;
4. Hours and days worked and salary or hourly wage; and
5. Employment start date in the current job title and, if applicable, employment end date.
The bill phases in these reporting requirements, based on the employer’s number of employees, beginning with the third quarter of 2024 for employers with 100 or more employees. Effective Date: July 1, 2021
· Paid FMLA Enforcement. Requires claims of employer FMLA violations at the administrative level to proceed like CHRO actions. Current law requires the commissioner to hold a hearing on these complaints, but the bill instead requires him or his designee to first investigate and make a finding about jurisdiction and whether a violation occurred. If the commissioner finds that a violation did not occur or that the commissioner lacks jurisdiction, the commissioner issues a release of jurisdiction, and the claimant has 90 days to file suit in court. Effective Date: Upon Passage.
· Prohibition Against Employee Discipline And Misinformation For Workers’ Compensation Claims. Current law prohibits employers from discharging or discriminating against an employee because the employee filed a workers’ compensation claim or exercised his or her rights under the workers’ compensation law. The bill expands this protection to also prohibit employers from (1) disciplining employees for filing a claim or exercising their rights and (2) deliberately misinforming or dissuading them from filing a claim for workers’ compensation benefits or, starting October 1, 2021, a claim for benefits from the Connecticut Essential Workers COVID-19 Assistance Program. Effective Date: Upon Passage
Special Session: Recreational Marijuana Legalized-Major Employment Provisions
In a very brief special session, a sweeping 300-page bill legalizing marijuana and creating a new set of rules for employers passed the legislature on June 17th. Upon the Governor’s signature the law will become effective on July 1, 2021.
Most of the new rules affecting employers will go into effect in a year (July 1, 2022). Among its provisions, the bill:
· Creates two sets of rules for employers, “exempt” and “non-exempt.” Exempt employers are those where stronger workplace restrictions in the use or possession of marijuana are permitted. They include manufacturers, construction, transportation, and law enforcement. Non-exempt will be governed by another set of less stringent rules. In both sets, rules for “employees” will also cover independent contractors.
· Employers will not be required to make accommodations for an employee to perform his or her job duties while under the influence of cannabis or allow employees to possess, use or consume cannabis while working or on the employer’s premises (except for possession of medical marijuana, which continues).
· Employers can implement a “no marijuana-accommodations” policy but that policy must be in writing and made available to all employees and job applicants when making an offer. Generally, having a policy will ultimately provide employers with more flexibility in making employment decisions related to employees and cannabis.
· Employers will still not be able discriminate against someone for their status as a qualifying patient using medical marijuana.
· But the bill will also bar an employer from holding against an employee the use of cannabis products before employment unless it would put the employer in violation of a federal contract or cause it to lose federal funding. There are some other exceptions as well.
· An employer can still take employment action against employees upon a “reasonable suspicion” of drug use on the job or if the employee manifests “specific, articulable symptoms of drug impairment.”
· If an applicant or an employee (who is not otherwise exempt from the rules) tests positive for marijuana before starting the job, it cannot be used as the basis to refuse to hire or to fire the employee unless certain conditions are established.
· Employees who are harmed by an employer will have the right to bring a lawsuit against the employer (again subject to various exclusions and exemptions).
United States Supreme Court: Affordable Care Act Survives (Again)
On Thursday, June 17th, the U.S. Supreme Court dismissed a challenge to the ACA brought by Texas and some Republican-led states. The suit argued that because the penalty for failing to have insurance was lowered to $0, the remainder of the law became unconstitutional. The Supreme Court dismissed the suit on jurisdictional grounds. The 7-2 ruling marks the third time the Supreme Court has rejected constitutional attacks on the ACA.