Workplace Compliance News & Resources
in Southern States
Below is a round-up of workplace safety news for states in the South that employers need to know to keep their business compliant.
Stay on top of safety and compliance the right way with this information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business. Wherever available, KPA products are updated with the latest government notices and posters for employers.
Alabama
Who: All Alabama employers that are required to withhold Alabama state tax from wages
When: Effective January 1, 2024
Effective January 1, 2024, employers must adhere to the new Department of Revenue tax exemptions for overtime payments under Ala. Admin. Code r. 810-3-72-.02. For the time period of January 1, 2024, through June 30, 2025, full-time hourly employees who physically work in excess of 40 hours a week are exempt from Alabama state income tax for overtime wages.
It is important to note that paid time off (PTO) and holiday pay are not hours worked and therefore are not included in the calculation of overtime wages. Employees excluded from tax relief for overtime wages include salaried employees and employees paid by other methods.
By January 31, 2024, employers must report to the Alabama Department of Revenue the number of full-time employees who received overtime pay in 2023 and the total amount of overtime wages paid to those employees in 2023. Thereafter, they must report the same information on a monthly or quarterly basis.
Employers must file the one-time 2023 Historical Data report through the My Alabama Taxes website. Bulk filers use Form A-3 and non-bulk filers use a separate process with a specified layout (see the link to the instructions provided in the Reporting Guidance FAQs). Employers will submit monthly/quarterly reports electronically through the Alabama Department of Revenue’s (ADOR) website with the corresponding Form A-6 (monthly) or Form A-1 (quarterly), or an approved equivalent report form.
How:
- Report the required payroll information for 2023 to the Alabama Department of Revenue by January 31, 2024.
- Submit monthly/quarterly reports to the ADOR during the designated period (January 2024 to June 2025).
- Ensure that your payroll personnel or providers have implemented the changes required by the law.
- Familiarize yourself with the Alabama Department of Revenue’s guidance on the law.
Additional Resources:
Who: Alabama employers
When: Effective immediately
Alabama’s concealed carry law went into effect on January 1, 2023, which allows residents to carry a concealed firearm or keep a firearm in their vehicle without a permit or undergoing a background check. The new law does not explicitly allow a person to open carry or bring a concealed firearm into their workplace. Similarly, private employers are not required to allow employees to carry concealed firearms into the workplace.
Section 13A-11-90 law, passed in 2013, has not changed. It states that employers cannot restrict or prohibit an employee from transporting or storing a lawfully possessed pistol, or ammunition for that pistol, in a motor vehicle that is parked or being operated in a public or private parking area. The vehicle must be operated or parked in a permitted location. A pistol kept in a motor vehicle should not be viewable. If the motor vehicle is unattended, the pistol must be locked in a compartment or permanently affixed structure, such as a toolbox.
Section 13A-11-90 also states that an employer may not restrict or prohibit an employee from transporting or storing a lawfully possessed hunting firearm under certain conditions. The same conditions apply as for the pistol, and if the firearm is for hunting, there are additional requirements. The employee must have a valid Alabama hunting license, the firearm must be kept unloaded while on the property, it must be the legal hunting season that applies to that firearm, the employee must never have been convicted of a crime, and the employee must have committed no workplace violence.
How:
- Review your policies and update as needed to comply with the law.
Additional Resources:
Who: Alabama employers with 50 or more employees
When: Effective immediately
What: Alabama passed SB 31, the Adoption Promotion Act, on April 15, 2022. Effective July 1, 2022, the law brings the state in alignment with the federal Family and Medical Leave Act (FMLA) that requires employers to provide 12 weeks of unpaid leave for new parents of biologic and adopted children. The leave is job-protected and runs concurrent with FMLA leave.
The law also requires employers that provide paid leave for parents who have live births to provide leave for adoptive parents. That leave must be the lesser of a) paid leave equivalent to what parents of biological children receive, or b) two weeks paid leave. Employers must also consider requests for additional family leave equally in cases of the birth of a biological child or the adoption of a child.
Employees should provide at least 30 days’ notice when possible. Employees may take leave intermittently only if the employee and employer agree. If both employees work for the same employer, the employer must provide leave to only one of the employees. Employees must take the leave within the first 12 months of the birth or placement of the child.
Eligible employers are those with 50 or more employees. Eligible employees are those who have been employed by the employer for at least 12 months, worked at least 1,250 hours for that employer in the 12 months preceding the leave, and work at a worksite that has at least 50 employees.
How:
- Update your policies and procedures to comply with the law.
- Train HR personnel and managers who deal with leave requests on the new leave policies and procedures.
Additional Resources:
Who: Alabama employers and employees
When: Effective immediately
What: On November 5thth, 2021, Alabama Governor Kay Ivey signed SB9 into law, an act that bans employers from requiring vaccination as a condition of employment. Per the new act, employers with vaccine mandates are required to allow employees to submit an exemption form in lieu of receiving vaccination against COVID-19, citing medical reasons or sincerely held religious beliefs. The law expires on May 1, 2023.
Alabama employers are required to make exemption forms readily available to all employees along with directions for submitting the forms. The exemption form includes various exemptions that go beyond the federal religious and medical exemptions.
The specific medical exemptions for employees outlined in SB9 are as follows:
- The employee’s health care provider has recommended that the employee refuse a COVID-19 vaccination based on current health conditions.
- The employee has, in the past, suffered severe allergic reactions to the components of the COVID-19 vaccine.
- The employee has received antibodies or plasma as part of a COVID-19 treatment within the past 90 days.
- The employee has a bleeding disorder and is taking a blood thinner.
- The employee is immunocompromised such that receiving the COVID-19 vaccine would create a health risk.
- The employee has been diagnosed with COVID-19 within the past 12 days.
The Alabama Department of Labor has published Vaccination Exemption Guide Chapter 480-9-1-ER is to provide directions and resources for employees whose exemptions have been denied by their employer. The Alabama DOL has also launched a website including exemption forms, resources for employees, as well as an online portal to upload relevant documents.
Per the new law, employees who are terminated after refusing a vaccine mandate are allowed up to 7 days to file an appeal with the Alabama Department of Labor. Following the appeal, an administrative judge appointed by the Alabama Secretary of Labor will make a ruling within 30 days.
If the judge upholds the employer’s decision, the employee is allowed an additional 14 days to file an appeal with a court of competent jurisdiction.
Employers are required to fully compensate the employee during the 7-day period after the initial denial, as well as during the appeal process until an administrative judge or court issues a ruling within the employer’s favor.
How:
- Review your current policies and procedures and update them to comply with the new bill.
- Educate and inform your employees about state mandates and safety protocols.
- Familiarize yourself with federal vaccine mandates and OSHA standards for potential conflicts with this new law.
Additional Resources:
Vaccination Exemption Guide Chapter 480-9-1-ER
Alabama Vaccination Exemption Information Portal
Georgia
Who: Atlanta, Georgia employers
When: Effective immediately
The City Council of Atlanta, Georgia has passed an amendment to the city’s Anti-Discrimination Ordinance. The amended law protects individuals on the basis of criminal history status and gender expression in matters of employment, housing, and public accommodations.
Private employers in Atlanta are now prohibited from disqualifying an applicant or singling out employees based on their criminal conviction history without further individualized consideration—commonly known as a “fair chance” initiative. In cases where the criminal history is related to the position’s responsibilities, an employer must consider whether the person committed the offense or was only arrested for it; the nature and gravity of the offense; the length of time since the offense; and the nature of the job. Where state or federal mandates prohibit persons with certain criminal histories to fill certain positions (e.g., law enforcement), the local anti-discrimination law does not apply.
Atlanta has also banned discrimination based on gender expression.
Employers may not publish ads or notices that discriminate against persons based on gender expression or criminal conviction history, except when the criminal conviction history is a bona fide occupational qualification for employment.
The law applies to Atlanta employers with 10 or more employees in matters of employment decisions. It applies to contractors in matters of employment, subcontracting, and union membership decisions. The amended law includes a provision for unlimited potential for recovery for aggrieved workers, if they file an action within two years of the alleged unlawful act.
How:
- Review your background check policies and procedures and update them as needed to comply with the law.
- When publishing job ads or notices with restrictions based on criminal conviction history, consult with an attorney to ensure compliance with local, state, and federal anti-discrimination laws.
Additional Resources:
Who: Georgia employers
When: Effective July 1, 2022
What: Georgia Governor Brian Kemp signed into law Act 809 and Act 823, both of which affect employers. Act 809 is effective July 1, 2022. It redefines “employment” for purposes of unemployment benefits. Act 823 was effective May 5, 2022. It precludes local governments from regulating private businesses’ employees’ schedules or work hours.
Under Act 809, the definition of “employment” changes to include any transaction where an individual performs services for wages. Any person who is employed is eligible for unemployment benefits. A person qualifies as an employee unless they are free from control when performing services and are customarily engaged in an independent trade, occupation, profession, or business. There are seven factors that determine whether a worker qualifies as an independent contractor rather than an employee:
- Can work for other companies or holds other employment while performing work for the company
- Is free to accept or reject work assignments without consequence
- Does not need to work a minimum number of hours or obtain a certain number of orders
- Can set their own work schedule
- Does not have someone overseeing them or giving instructions about the services to be performed
- Does not have territorial or geographic restrictions
- Is not required to perform, behave, or act in a certain manner related to the performance of services
Violators are subject to civil penalties based on the number of people improperly classified and how often persons are misclassified.
Act 823 prohibits local governments from enacting laws that apply to work hours, scheduling, and employee output when applied to private employers.
How:
- Update your worker classifications to comply with the law.
Additional Resources:
Kentucky
Who: Lexington, Kentucky employers
When: Effective July 1, 2023
On May 12, 2023, the Lexington, Kentucky, Mayor Linda Gorton signed Ordinance No. 49-2023, the Lexington CROWN Act, into law. CROWN stands for “Creating a Respectful and Open World for Natural Hair.” Lexington is the fourth city in Kentucky to pass such a law, which prohibits discrimination based on hair texture and style.
The Lexington CROWN Act applies to employment, public accommodations, and housing. The Act expands the definition of race, religion, and national origin to include hairstyle. The law protects natural hair texture, color, head coverings, and protective hairstyles, including braids, locs, twists, cornrows, Bantu Knots, and afros.
How:
- Update your employee handbooks and dress code, grooming, and EEO policies to comply with the law.
- Train HR personnel, managers, supervisors, and anyone who has hiring responsibilities on how to comply with the law.
Additional Resources:
Louisiana
Who: Louisiana employers with 20 or more employees
When: Effective immediately
Effective August 1, 2023, Louisiana Act No. 210 requires employers with 20 or more employees to provide up to one day per year of unpaid time off to employees to obtain genetic testing and cancer screening when it is medically necessary. Employees can choose to use accrued paid time off instead. Employees must give 15 days’ notice to employers. Employers can request documentation of the testing/screening but not inquire as to the results.
Medically necessary is defined as “within the community of their respective professional organizations to be the standard of care.” The services must be “reasonably necessary to diagnose, correct, cure, alleviate, or prevent the worsening of a condition or conditions that endanger life, cause suffering or pain, or have resulted or will result in a handicap, physical deformity, or malfunction, and those for which no equally effective and less costly course of treatment is available or suitable for the recipient.” Exempt services are cosmetic, experimental, and investigational surgery.
The Louisiana Workforce Commission will release an employee notice of the requirements.
How:
- Monitor for release of the employee notice poster and post it in the workplace.
- Review your current leave and discrimination policies and update them as needed to comply with the law.
Additional Resources:
Who: Louisiana employers
When: Effective August 1, 2022
What: Governor John Bel Edwards signed HB 1083 into law on June 16, 2022. The law is effective August 1, 2022, and bans discrimination based on natural, protective, or cultural hairstyles, including but not limited to “afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance.”
The legislation is based on the CROWN Act, which was initiated in 2019 by Dove and the CROWN Coalition. CROWN stands for “Creating a Respectful and Open World for Natural Hair.” The law prohibits racial discrimination based on hairstyle in employment, education, public accommodations, and housing.
How:
- Update your dress code, and grooming, equal employment opportunity, anti-harassment, and anti-discrimination policies and procedures to comply with the law.
- Train HR personnel, managers, and supervisors on the law.
Additional Resources:
Who: Louisiana, Mississippi, and Texas employers and employees
When: Effective immediately.
What: On June 15, 2022, the Fifth Circuit issued a ruling declaring that COVID-19 does not fall under the natural disaster notice exception under the federal Workers’ Adjustment and Retraining Notification (WARN) Act. In the case, employees of a Texas oil company were terminated without any advance notice. The employees filed suit, and the trial court determined that the COVID-19 pandemic was a form of “natural disaster.”
The employees appealed, and the Fifth Circuit Court ruled that the definition of “natural disaster” only applies to the examples given in the text of the WARN statute (i.e., hydrological, geological, and meteorological events). The Fifth Circuit specifically reasoned that Congress was familiar with past pandemics when the WARN Act was passed and could have included words such as “disease” or “pandemic” in the examples listed if it wanted to do so.
How:
Review your current policies and procedures and update them to comply with the new ruling.
Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Mississippi
Who: Mississippi employers
When: Effective July 1, 2022
What: Mississippi Governor Tate Reeves signed the Mississippi Equal Pay for Equal Work Act into law on April 20, 2022. Effective July 1, 2022, employers are prohibited from paying one sex more than the opposite sex for work that requires equal skill, education, effort, and responsibility, and which is performed under similar working conditions.
The Mississippi Equal Pay for Equal Work Act, in large part, mirrors the Federal Equal Pay Act, including its exceptions to the rule. Pay differences between the sexes are not in violation of the law if they are based on:
- A seniority system;
- A merit system;
- A system that measures earnings by quality or quantity of production; or
- Any factor other than sex.
In Mississippi, “any factor other than sex” can include:
- Salary history;
- Continuity of employment history;
- Extent of competition with other employers for the employee’s services; and
- The extent to which the employee attempted to negotiate for higher wages.
How:
- Review your pay practices and policies to ensure compliance with the law.
Additional Resources:
Who: Mississippi employers
When: Effective immediately
What: On February 2, 2022, Mississippi Governor Tate Reeves signed into law the Mississippi Medical Cannabis Act, which legalizes the use of up to three ounces per month of medical marijuana. The law allows for the use of cannabis to treat a number of debilitating medical conditions, including cancer, post-traumatic stress disorder, and chronic pain. The law does not interfere with federal requirements or regulations, such as the U.S. Department of Transportation’s drug and alcohol testing regulations.
The law prohibits operating a motor vehicle while under the influence and disallows smoking and vaping medical cannabis in a public place or in a motor vehicle.
The law contains several provisions that protect employers:
- Employers do not have to permit the medical use of medical cannabis, modify any job or working condition, or accommodate those who use medical marijuana.
- Employers may refuse to hire a person who uses medical cannabis because of that person’s use of medical cannabis.
- Employers may take adverse employment action based on an individual’s use of medical cannabis, regardless of the person’s associated impairment or lack thereof.
- Employers may establish a drug-testing policy or choose to enforce an existing one.
- A person may not take legal action against an employer for taking adverse employment action against them based on their use of medical cannabis.
- Employers and their insurance carriers are not required to pay for medical cannabis or to reimburse an employee for the use of medical cannabis.
How:
- Revise workplace drug and alcohol testing policies as needed.
Additional Resources:
Who: Louisiana, Mississippi, and Texas employers and employees
When: Effective immediately.
What: On June 15, 2022, the Fifth Circuit issued a ruling declaring that COVID-19 does not fall under the natural disaster notice exception under the federal Workers’ Adjustment and Retraining Notification (WARN) Act. In the case, employees of a Texas oil company were terminated without any advance notice. The employees filed suit, and the trial court determined that the COVID-19 pandemic was a form of “natural disaster.”
The employees appealed, and the Fifth Circuit Court ruled that the definition of “natural disaster” only applies to the examples given in the text of the WARN statute (i.e., hydrological, geological, and meteorological events). The Fifth Circuit specifically reasoned that Congress was familiar with past pandemics when the WARN Act was passed and could have included words such as “disease” or “pandemic” in the examples listed if it wanted to do so.
How:
- Review your current policies and procedures and update them to comply with the new ruling.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Who: Mississippi employers and employees
When: Effective immediately
What: On April 21, 2022, HB 1509 was passed into law, allowing public and private Mississippi employees to opt-out of receiving vaccination against COVID-19 if they so choose. The bill also prohibits public employers from taking disciplinary action against employees who refuse COVID-19 vaccination.
Per the bill, public employees are defined as those employed at state agencies, public officials, state institutions of higher learning, public colleges, and political subdivisions.
HB 1509 does not expressly prohibit disciplinary action to be taken against private employees, nor does it specifically limit a private employer’s right to terminate an employee for refusing a COVID-19 vaccine. However, per the bill, employees at private businesses and organizations can receive exemption from COVID-19 vaccination on the basis of sincerely held religious objections.
Mississippi health care facilities are exempt from this law during any period of time that compliance would result in a violation of regulations or guidance from the Centers of Medicare and Medicaid Services of the Centers for Disease Control and Prevention.
How:
- Review your current policies and procedures and update them to comply with the new bill.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Who: Mississippi employers
When: Effective immediately
What: On February 2, 2022, Mississippi Governor Tate Reeves signed into law the Mississippi Medical Cannabis Act, which legalizes the use of up to three ounces per month of medical marijuana. The law allows for the use of cannabis to treat a number of debilitating medical conditions, including cancer, post-traumatic stress disorder, and chronic pain. The law does not interfere with federal requirements or regulations, such as the U.S. Department of Transportation’s drug and alcohol testing regulations.
The law prohibits operating a motor vehicle while under the influence and disallows smoking and vaping medical cannabis in a public place or in a motor vehicle.
The law contains several provisions that protect employers:
- Employers do not have to permit the medical use of medical cannabis, modify any job or working condition, or accommodate those who use medical marijuana.
- Employers may refuse to hire a person who uses medical cannabis because of that person’s use of medical cannabis.
- Employers may take adverse employment action based on an individual’s use of medical cannabis, regardless of the person’s associated impairment or lack thereof.
- Employers may establish a drug-testing policy or choose to enforce an existing one.
- A person may not take legal action against an employer for taking adverse employment action against them based on their use of medical cannabis.
- Employers and their insurance carriers are not required to pay for medical cannabis or to reimburse an employee for the use of medical cannabis.
How:
- Revise workplace drug and alcohol testing policies as needed.
Additional Resources:
South Carolina
Who: South Carolina employers and employees
When: Effective immediately
What: On April 25, 2022, South Carolina Governor Henry McMaster signed HB 3126 into law, which prohibits public employers from requiring their employees to receive vaccination against COVID-19. Federal contractors are exempt from the new law.
Private employers are still permitted to require a COVID-19 vaccination mandate for their employees, but must broadly accept religious and medical exemptions. The law also allows for private employers to offer incentives to employees who elect to be vaccinated.
To claim a religious exemption, employees only need to provide employers with “a short, plain statement” indicating that the vaccination violates their deeply held religious beliefs. Medical exemptions can include proof of antibodies, the submission of an earlier positive COVID-19 test result, as well as pregnancy. The law does not state how long prior positive test results or antibody tests can exempt employees from an employer vaccine requirement.
Independent contractors and other third parties providing employers with goods or services must also be excluded from that employer’s vaccine mandate.
This law is currently expected to sunset on December 31, 2023.
How:
- Review your current policies and procedures and update them to comply with the new law.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Tennessee
Who: Tennessee private employers with 35 or more employees
When: Effective January 1, 2023
Governor Bill Lee signed HB 1853 into law in May 2022, which amends the Tennessee Lawful Employment Act (TLEA), effective January 1, 2023. Private employers with 35 or more employees must now use E-Verify and maintain E-Verify case results. Previously, only employers with 50 or more employees were required to use E-Verify, which is the federal system that helps employers validate documentation provided by new hires to establish lawful employment eligibility.
Workers under the same federal employer identification number are counted as employees whether or not they are physically located in Tennessee. Employers with fewer than 35 employees do not have to use E-Verify.
The amended law also contains these provisions:
- E-Verify can protect employers against claims of wrongful or retaliatory discharge or discrimination in cases where E-Verify determines that an employee is not authorized to work in the United States and the employer was unaware.
- If an employer discharges an employee based on the fact that they are not authorized to work in the U.S., that individual cannot bring a state cause of action based on alleged discrimination based on national origin.
- The office of employment verification is prepared to help employers that do not have Internet access enroll in E-Verify and can conduct E-Verify checks on their behalf.
How:
- Periodically audit your employment verification records to ensure they are complete.
Additional Resources:
Who: Tennessee employers
When: Effective immediately
On April 20, 2022, Governor Bill Lee signed an employee rights law, which went into effect immediately, that requires employers to give veterans unpaid leave for Veterans Day. The rule applies to all employers with one or more employees. Employees who are veterans are entitled to one unpaid day of leave on Veterans Day if they provide proof of status as a veteran and give their employer at least one month’s written notice of intent to take the leave.
A veteran is defined as a former member of the U.S. armed forces or a former or current member of a Reserve or a Tennessee National Guard unit called into active military service of the U.S. Proof may consist of a DD Form 214 or comparable documentation.
There are limited exceptions to the law that would allow employers to deny the requested leave:
- If the veteran’s absence would impact public health or safety, or
- If the time off would cause significant economic or operational disruption for the employer.
Independent contractors are not entitled to the benefit.
How:
- Update your policies, procedures, and handbooks to comply with the law.
- Educate managers and HR personnel about the new leave requirements.
Additional Resources:
Who: Tennessee employers
When: Effective immediately
What: On May 27, 2022, Tennessee Governor Bill Lee signed SB 136 into law. It becomes effective July 1, 2022, and bans discrimination based on hair texture or hairstyle. The legislation is based on the CROWN Act, which was initiated in 2019 by Dove and the CROWN Coalition. CROWN stands for “Creating a Respectful and Open World for Natural Hair.”
How:
- Update your dress code, and grooming, equal employment opportunity, anti-harassment, and anti-discrimination policies and procedures to comply with the law.
- Train HR personnel, managers, and supervisors on the law.
Additional Resources:
Who: Tennessee employers and employees
When: Effective immediately
What: On March 11, 2022, the Tennessee state government passed SB 1823, which provided additional legal protections for employees who object to receiving a vaccination against COVID-19. Per the new bill, medical and religious exemptions must be provided to employees if an employer mandates COVID-19 vaccination as a condition of continued employment.
Under the bill, vaccination exemptions can be provided to employees if:
- The employee provides a valid reason for a medical exemption supported by a statement that has been signed and dated by a licensed healthcare provider, or
- The employee states that they hold a religious belief that prevents them from complying with the policy.
Employers must provide a response to requests for an employee exemption within two business days and are prohibited from denying a request without a written explanation. The law also prohibits employers from discharging, threatening to discharge, or reducing the compensation of employees who request exemptions.
This bill does not provide any further protections for employers that claim an undue hardship caused by exempting an employee from being vaccinated.
Employers found to be in violation of this law may be punishable by a civil penalty of $10,000.
How:
- Review your current policies and procedures and update them to comply with the new bill.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
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Virginia
Who: Virginia employers
When: Effective July 1, 2023
On March 21, 2023, Virginia Governor Glenn Youngkin signed SB 1040 into law, which becomes effective July 1, 2023. The law prohibits employers from using an employee’s Social Security Number or any derivative of it on the employee’s identification, badge, access card, or any similar card or badge.
The Commissioner of the Virginia Department of Labor and Industry may seek injunctive relief and assess civil penalties of up to $100 per violation.
How:
- Review your policies and practices and revise as needed to comply with the law.
Additional Resources:
Who: Virginia employers
When: Effective July 1, 2023
On March 26, 2023, Virginia Governor Glenn Youngkin signed HB 1895 into law, which amends the “nondisclosure or confidentiality agreement provisions regarding sexual assault; condition of employment” under VA. Code § 40.1-28.01. Existing law prohibits employers from requiring as a condition of employment nondisclosure and confidentiality agreements relating to claims of sexual assault. The amended law adds nondisparagement provisions to the list of prohibited provisions. It also expands the bans from claims of sexual assault to claims of sexual assault and claims of sexual harassment.
Virginia law defines sexual harassment as any “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
The law is not applicable to post-termination or severance agreements.
How:
- Update your confidentiality and nondisclosure agreements to comply with the law.
Additional Resources:
Who: Virginia employers with more than 50 employees
When: Effective July 1, 2023
Virginia Governor Glenn Youngkin signed SB 1086 into law on April 12, 2023, which becomes effective July 1, 2023. The law requires employers with more than 50 employees (including state employers) to provide unpaid, job-protected organ and bone marrow donation leave (VA Donor Leave) to employees. To be eligible for the leave, employees must have worked 1,250 hours with the same employer within the last 12 months.
In a 12-month period, eligible employees can qualify for up to 60 days of leave for organ donation and up to 30 days for bone marrow donation. Employees must provide written verification by a physician that the employee is an organ or bone marrow donor and that there is a medical necessity for the donation. Employers are required to restore an employee’s position or equivalent upon return from the protected leave.
Employees may not take federal Family and Medical Leave Act (FMLA) leave concurrently with VA Donor Leave.
Employers are prohibited from retaliating against employees who exert their rights to take the leave and from treating the leave as a break in continuous service for purposes of salary adjustments, sick leave, vacation or paid time off, annual leave, seniority, and other benefits. The Virginia Commissioner of Labor may assess fines of up to $1,000 for the first violation, $2,500 for a second violation, and $5,000 for each additional violation.
How:
- Provide a Virginia Donor Leave Notice to employees. Monitor for the release of the notice.
- Update your policies and employee handbooks to comply with the law.
- Train supervisors and managers on the law.
Additional Resources:
Who: Virginia employers
When: Effective January 1, 2023
On April 11, 2022, Governor Glenn Youngkin signed three bills into law, which amend the Virginia Consumer Data Protection Act (VCDPA), effective January 1, 2023.
HB 714 and SB 534 end the Consumer Privacy Fund and dictate that all civil penalties, expenses, and attorney’s fees collected pursuant to the law be paid into the state treasury and credited to the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.
HB 714 and SB 534 redefine “nonprofit organization” to include any political organization, as defined by the amendment, that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. Nonprofits that meet the new definition do not have to comply with the VCDPA.
HB 381 adds an exemption to the obligation to delete a consumer’s personal data that the data controller obtained from a source other than the consumer. The data controller is considered in compliance with the law if they 1) retain a record of the request for deletion and the minimum data necessary to ensure that the data remains deleted or 2) opt the consumer out of processing the data except for purposes exempted by the VCDPA.
How:
- Ensure compliance with the Virginia Consumer Data Protection by reviewing your data-collection and processing obligations.
Additional Resources:
Who: Virginia employers
When: Effective July 1, 2022
What: On April 11, 2022, Virginia Governor Glenn Youngkin signed HB 1173 into law, which returns Virginia to overtime standards that align with the Fair Labor Standards Act (FLSA), effective July 1, 2022. The law replaces certain provisions of the Virginia Overtime Wage Act (VOWA), which became effective July 1, 2021. The law now allows employers to use the fluctuating workweek method of calculating overtime, and traditional overtime exemptions now apply.
The new law returns the state to a two-year statute of limitations unless a claimant can demonstrate the employer’s actions were willful. Employees may bring a case in federal court or state court, where they can bring the case under state or federal law, or both. A claimant can recover liquidated damages equal to the amount of unpaid overtime wages; this law eliminates the treble damages provision. Employers can defend against a claim for liquidated damages by demonstrating that it acted in good faith, as before VOWA was passed.
How:
- Revise your overtime pay policies and practices to comply with the law.
Additional Resources:
Who: Virginia employers and employees
When: Effective immediately
What: On March 23, 2022, the Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to rescind the COVID-19 Emergency Standards for Virginia’s workplaces. The vote comes a month after Governor Glenn Youngkin issued Executive Order 6, which directed the board to determine if the permanent workplace safety standard was still required in Virginia.
The now-rescinded safety standards directed Virginia employers to:
- Provide employees with COVID-19 prevention tools, training, information, and resources.
- Require social distancing and respiratory protection for employees.
- Report outbreaks of two or more positive COVID-19 tests to the Virginia Department of Health and the Virginia Department of Labor.
- Screen employees for COVID-19 and assess hazard levels of job tasks.
- Clean and disinfect common areas and work equipment.
- Prepare a COVID-19 response plan in the case of an outbreak.
- Establish work requirements for employees who test positive for COVID-19 or experience symptoms of COVID-19.
Following the revocation of Virginia’s workplace safety standard, the Virginia Department of Labor and Industry has issued new general guidance for employers to mitigate the risk of COVID-19 to workers.
The new guidance directs employers to:
- Facilitate employee vaccination against COVID-19.
- Require workers and employees who test positive for COVID-19 to stay home from work.
- Encourage workers and employees who experience COVID-19 symptoms to stay home from work and seek guidance from their physician.
- Provide workers with face coverings or surgical masks.
- Encourage sanitary work habits such as frequent hand washing.
- Educate workers on workplace COVID-19 policies and procedures.
- Operate and maintain ventilation systems in accordance with manufacturers’ specifications.
- Record and report workplace COVID-19 infections and deaths which are mandatory under the Virginia Occupational Safety and Health Programs.
- Follow other applicable mandatory VOSH standards.
The new guidance also contains legal protections for both those who choose to wear a mask and those who chose not to wear a mask while at their workplace.
How:
- Review your current policies and procedures and update them to comply with the new guidance.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Virginia DOL Guidance for Employers to Mitigate the Risk of COVID-19 to Workers
West Virginia
Who: West Virginia employers
When: Effective June 9, 2022
What: West Virginia’s SB 245 becomes effective on June 9, 2022. It amends Sections 21-5-3 and 21-5-4 of the Wage Payment and Collection Act. Under existing law, employers are allowed to use payroll cards to pay employees’ wages only as long as the employer and employee agree to use that payment method.
Under the amended law, employers may unilaterally choose to pay employee wages through a payroll card, subject to these stipulations:
- Employers must provide notice in writing of any applicable fees associated with the payroll card.
- Employees must be able to make at least one withdrawal or transfer per pay period without a fee or cost.
- Employees must be able to make unlimited in-network withdrawals or transfers without a fee or cost.
- Employers must give employees the option to be paid by electronic transfer (direct deposit) instead.
How:
- Ensure your payroll card policies comply with the new law.
Additional Resources:
