By Jay Inman
During the 2021 legislative session, the Kentucky General Assembly approved multiple bills that impact human resources practitioners, and most of these bills became new laws, whether by decision of Governor Andy Beshear or by overturn of his veto. For human resources professionals employed by Kentucky businesses and colleagues in neighboring states whose employers do business in Kentucky or have remote employees in the Commonwealth, these new laws should be examined carefully. In an effort to assist, this short article provides an overview of several new laws.
Unemployment Contributions
First, House Bill 1, made law by overturning the Governor’s veto, provides in relevant part that, for employers, interest and penalties on unpaid unemployment insurance contributions “shall not accrue, shall not be charged against an employer, shall not be considered due and owing, and shall not be collected by the Labor Cabinet through December 31, 2021.” This new law provides at least some financial relief for Kentucky businesses, and for human resources practitioners handling unemployment matters, the law impacts how to calculate amounts owed.
Benefits for Adoptive Parents
House Bill 210, signed into law by the Governor, requires Kentucky employers to offer parents adopting a child under the age of ten (10) the same leave policies that the employers provide to birth parents. The broad language of the law has significant potential reach, for example: “If an employer provides paid leave or any other benefits to employees who are birth parents following the birth of a child, it shall also provide the same type, amount, and duration of paid leave and other benefits to employees following the adoption of a child.” Many employers offer such leave policies for birth parents but have not yet examined their existing policies to determine compliance with the new law. Depending on what review determines, the new law may require prompt policy revisions, including notice to employees about new benefits available.
Workplace Safety Standards
Next, House Bill 475, made law by overturning a veto, bars the Kentucky Occupational Safety and Health Standards Board or the Secretary of the Kentucky Labor Cabinet from “adopt[ing] or promulgat[ing] any occupational safety and health administrative regulation that is more stringent than the corresponding federal provision enforced by the United States Department of Labor under the Occupational Safety and Health Act of 1970.” Among other impacts, this new law provides for a simpler set of workplace safety requirements for Kentucky employers, who will now be able to look to the federal requirements for the strictest standards in any safety context in the Commonwealth.
Limited COVID-19-related Immunity for Businesses
Senate Bill 5, which the Governor permitted to become law without his signature, provides protection for Kentucky business premises owners and essential service providers during the COVID-19 pandemic. As to premises owners, the new law sets out that, where owners follow government orders or guidelines and permit individuals to come onto their premises during a designated COVID-19 emergency, the owners do not have any duty “to protect from or warn about any risk related to or caused by COVID-19” and further do not “assume responsibility, or incur liability, for any alleged injury, loss, or damage to persons or property arising from a COVID-19 claim.” As to essential services providers – an explicit list of which is included in the law – these employers gain some immunity for claims arising out of COVID-19 during any period of time specified as a COVID-19 emergency by the government. Importantly, the new law states that it offers no protection for employers who act in a grossly negligent manner or commit wanton, willful, malicious or intentional misconduct. Human resources professionals aware of this new law can assist their employers in evaluating complaints and knowing when to involve counsel.
Immunization Exemptions
Last, Senate Bill 8, permitted to become law without signature, creates exemptions from mandatory immunizations for individuals who object based on religious beliefs or opinion of healthcare provider regarding health risk. While few employers have made the COVID-19 vaccine mandatory at this time, often due to the emergency-use authorization underpinning available vaccines currently, this new law reminds human resources professionals to evaluate exemption requests carefully and that those requests may come on religious or health-related grounds.
While the above-referenced bills became new laws, many other employment-related bills failed without legislative approval, but it is worth briefly noting several of them because, at a minimum, they show what legislators have proposed as a direction for the future, should support grow. Senate Bill 13 proposed creating a prevailing wage (just a few short years after prevailing wage was repealed), Senate Bill 98 recommended protecting employees who decline immunizations from adverse employment actions resulting from that decision, Senate Bill 258 proffered language that would remove protection for smokers from the Kentucky Civil Rights Act, Senate Bill 284 proposed setting a minimum wage for essential workers, and Senate Bill 285 recommended establishing mandatory paid parental leave, for example.
As these new laws, and others, come into effect, no doubt questions will develop about implementation, impact, effect, and compliance. Human resources professionals should continue to rely on their solid background in employment principles, plus look at legal counsel when necessary, to make careful judgment calls on legal issues. As a follow-up to 2020, this year has brought its own share of challenges and opportunities and paying careful attention and doing due diligence point a steady path to the future.
JAY INMAN is a Shareholder in Littler Mendelson’s Kentucky office, where he provides solutions for employers of all sizes navigating today’s complex business world. Jay’s practice includes advice and counsel for employers making decisions about employment-related issues, policies, and procedures, and he also represents employers in administrative matters and litigation in state and federal courts, including trials and appeals. Jay serves as a go-to for clients and colleagues on drafting and enforcement of arbitration agreements, investigations in the workplace, and complex and appellate litigation.