From Flexible Leave to Marijuana Testing New State Laws on the Books

Employment Law
 

States have recently enacted new employment-related laws on issues ranging from flexible leave to marijuana testing.

  • Maine. In Maine, employees will soon be allowed to use mandated paid leave for any reason, pursuant to An Act Authorizing Earned Employee Leave. Set to take effect on January 1, 2021, the law requires employers in the state with at least 10 employees who work more than 120 hours in a calendar year (other than seasonal workers) to provide one hour of paid leave for every 40 hours an employee works.

    Employees can earn up to 40 hours of paid leave on an annual basis and begin accruing earned paid leave on the first date of employment, with eligibility to use the leave starting after 120 days of work.

    While workers are required to provide “reasonable notice” of the intent to take leave (absent an emergency), they may do so for any reason. The new law does not define the term “reasonable notice” but does provide that the “use of leave must be scheduled to prevent undue hardship on the employer.”

    Employees on paid leave cannot lose any accrued employee benefits and must be paid the same base rate of pay earned prior to taking leave.

    Violations of the law can subject employers to penalties of up to $1,000 per violation, with implementation and enforcement by the Maine Department of Labor.
  • Virginia. Beginning July 1, 2019, employers in Virginia must provide copies of employment records to employees upon written request.

    The amended statute reads: “Every employer shall, upon receipt of a written request from a current or former employee or employee’s attorney, furnish a copy of all records or papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer.”

    Virginia Code section 8.01-413(B) mandates that the records must be provided within 30 days of receiving the written request. If that time period cannot be met, the employer must provide written notice of the delay and produce the records within 30 days of that notice.

    The records can be produced in hard copy or electronic format, and employers may charge a reasonable fee for copies of either.

    Employers who fail to comply with a written request for records could face a subpoena and possible monetary damages, including court costs and attorney’s fees.

    The statute contains one exception. An employer will not be required to produce the record if it includes a written statement by the employee’s treating physician or clinical psychologist that in his or her professional opinion, furnishing the records or allowing the employee to review the records would reasonably endanger the life or physical safety of the employee or another person. Employers must still produce the records within the 30-day window, however, but only to the employee’s authorized insurer or attorney—not the employee.
  • Nevada. Becoming the first state to ban employers from refusing to hire an applicant based on a positive marijuana test, Nevada Governor Steve Sisolak signed AB 132 into law earlier this month.

    As of January 1, 2020, “[i]t is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.”

    The new law does feature exceptions for firefighters; emergency medical technicians; employees who operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests; or, in the determination of the employer, employees who could adversely affect the safety of others.

    “As our legal cannabis industry continues to flourish, it’s important to ensure that the door of economic opportunity remains open for all Nevadans,” Governor Sisolak said in a statement.

To read the Maine law, click here.

To read Virginia’s new law, click here.

To read the Nevada law, click here.

Why it matters: Employers in the various states should prepare themselves for compliance with the new laws, which expand protections for workers with regard to paid leave, record requests and marijuana use. The passage of Nevada’s first-of-its-kind prohibition on refusing to hire applicants who test positive for marijuana could be followed by other jurisdictions where the drug has been legalized.