Missouri

2022 was relatively quiet for Missouri employers, except for the buzz around recreational marijuana (forgive our pun). As explained in more detail below, the law does not limit Missouri employers from continuing to drug test and discipline employees who violate anti-use policies, with certain modifications for medicinal users. 2023 also brings a Missouri minimum wage rate hike, but we expect employees may still grumble, as this increase does not pace with inflation.

Recreational and Medical Marijuana

In November 2022, Missourians voted to amend the Missouri Constitution by legalizing recreational marijuana and modifying the existing medical marijuana law. The amendment, which went into effect December 8, 2022, does not provide any employment rights to users of recreational marijuana. Missouri employers can still prohibit and take an adverse employment action on the basis of recreational marijuana.

However, employers are now prohibited from discriminating against an employee with a medical marijuana card because he or she:

1. possesses a medical marijuana card;
2. lawfully uses marijuana off the employer’s premises during nonworking hours; or
3. tests positive for marijuana, unless the employee used, possessed, or was under the influence of marijuana while working.

The prohibitions against discrimination do not apply if compliance would cause the employer to lose a monetary or licensing-related benefit under federal law. The prohibitions also do not apply to positions in which the legal use of marijuana affects the ability to perform job-related employment responsibilities, affects the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to the person’s employment.

Employers can continue to prohibit employees from working under the influence of marijuana and using or possessing marijuana on the employer’s property or during work hours. Employers can also continue to drug-test employees for marijuana, but they must do so with caution so as to not violate the changes related to medical marijuana. Missouri employers should review and potentially revise their drug-testing policies and practices to comply with the new law.

Missouri Minimum Wage

For the fifth year in a row, Missouri starts the new year with a new minimum wage. Effective January 1, 2023, the minimum wage increases to $12, up from $11.15 in 2022. The Missouri Department of Labor and Industrial Relations’ new minimum wage poster is available here.

Illinois

Unlike Missouri, it was a busy year in Illinois with respect to new legislation and amendments to current laws affecting employee rights and employer obligations. As explained below, Illinois employers should plan to revise and amend employment policies regarding bereavement, rest and meal breaks, and EEO/anti-discrimination. Chicago-based employers also have expanded sexual harassment policy and training requirements in 2023.

Family Bereavement Leave Act

Effective January 1, 2023, the Child Bereavement Leave Act becomes the Family Bereavement Leave Act and expands the circumstances under which an employee can take bereavement leave. Now, an employee may use up to 10 workdays to attend the funeral, or alternative to a funeral, of a covered family member, to make arrangements necessitated by the death of a covered family member or to grieve the death of a covered family member. Covered family members include children, stepchildren, spouses, domestic partners, siblings, parents, parents-in-law, grandchildren, and grandparents and stepparents.

Bereavement leave may also be used for a miscarriage or pregnancy loss, an unsuccessful round of in vitro fertilization or a failed assisted reproductive technology procedure, a failed adoption match or an adoption that is not finalized because it is contested by another party, a failed surrogacy agreement, a diagnosis that negatively impacts pregnancy or fertility, or stillbirth. Importantly, employers that require employees to provide reasonable documentation supporting the need for bereavement leave for a fertility, pregnancy or adoption-related reason must use the form provided by the Illinois Department of Labor, which can be found here. In requesting reasonable documentation, employers cannot require employees to identify which category of event the leave fits.

As before, bereavement leave must be taken within 60 days after the date on which the employee receives notice of the qualifying event.

Crown Act

Effective January 1, 2023, the Create a Respectful and Open Workplace for Natural Hair (CROWN) Act (SB 3616) amends the definition of “race” under the Illinois Human Rights Act. Specifically, the amendment identifies that unlawful discrimination on the basis of race includes discrimination on the basis of traits associated with race, including hair texture and protective hairstyles such as braids, locks, and twists.

One Day Rest in Seven Act and Meal Breaks

On May 13, 2022, the One Day Rest in Seven Act was amended to require that employers give non-exempt employees 24 hours of rest in each consecutive seven-day period beginning January 1, 2023. Yet, while the Illinois Administrative Code provides that employees can voluntarily agree to work on the seventh day of the week, we recommend that the voluntary agreement to work the seventh day be clearly documented and signed by the employee. Employers can also request permits from the Illinois Department of Labor authorizing the employer to require employees to work on designated days of rest based on business necessity and economic viability.

The amendments also affect meal break requirements. Currently, employers must provide non-exempt employees who work a 7.5-hour shift with a 20-minute meal break that occurs no later than five hours after the start of the shift. Beginning January 1, employers must provide another 20-minute meal break for each additional 4.5-hour period an employee works. In other words, an employee must be scheduled to work 15 hours to be eligible for a second meal period.

The amendment increased penalties for violations up to $500 per offense for employers with 25 or more employees, and damages must be paid to affected employees with that same dollar amount ceiling per offense. Note, though, that employees must bring any claims with the Illinois Department of Labor; they do not have a right to make a claim of a violation in court.

Finally, employers must also display the “Your Rights Under Illinois Employment Laws” poster with these amendments at the start of the new year.

Pay Data Reporting

Beginning January 1, 2023, private employers with 100 or more employees must comply with specific pay data reporting requirements. Specifically, employers must submit a statement of equal pay compliance, their EEO-1, a list of employees with their total wages, and a $150 application fee to the Illinois Department of Labor (IL DOL). Employers must obtain an equal pay registration certificate by March 24, 2024.

On January 24, 2022, the IL DOL announced it would communicate directly with covered businesses when it is time for them to apply for the certificate. According to IDOL, each covered business will receive no less than 120 days’ advance notice of their deadline. Because the IL DOL is randomly selecting covered businesses to which it sends notices, some may not receive their notice of their assigned registration date until late 2023 to meet the final deadline in March 2024.

Any employer that is a covered business should, if it has not already, register with the IL DOL by providing the contact information of key personnel members to ensure that future communications and notices will be received. The IL DOL is requesting the names and email addresses of three key business personnel from every covered business.

You can find more information regarding the requirements for the Equal Pay Compliance Statement here.

Chicago Sexual Harassment Training

In mid-2022, the Chicago City Council adopted an ordinance adding several sexual harassment prevention requirements for employers including written policy, notice, training and recordkeeping requirements.

Effective July 1, 2022, all employers in Chicago must have a written policy prohibiting sexual harassment that includes:

• A statement that sexual harassment is illegal in the city of Chicago;
• The following definition of sexual harassment: “any (i) unwelcome sexual advances or unwelcome conduct of a sexual nature; or (ii) requests for sexual favors or conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or (2) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment; or (iii) sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position”;
• A requirement that all employees participate in anti-sexual harassment prevention training annually;
• Examples of prohibited conduct that constitutes sexual harassment;
• Details on how an employee can report an allegation of sexual harassment, including, as appropriate, instructions on how to make a confidential report, with an internal complaint form, to a manager, employer’s corporate headquarters or human resources department, or other internal reporting mechanism;
• Information on legal services, including governmental agencies, that are available to employees who may be victims of sexual harassment; and
• A statement that retaliation for reporting sexual harassment is illegal in the city of Chicago.

The written policy must be made available in the employee’s primary language within the first calendar week of their employment.

Additionally, Chicago employers must have their employees participate in the following trainings annually:

1. One hour of sexual harassment prevention training for all employees;
2. two hours of anti-sexual harassment prevention training for all supervisors/managers; and
3. one hour of bystander training for all employees. Bystander intervention training teaches strategies on how onlookers can involve themselves directly and indirectly in harassment incidents to help those being targeted.

Chicago employers also must retain written records of the policies and trainings given to each employee, as well as other records necessary to show compliance with the ordinance. The records must be retained for at least five years or for the duration of any claim, civil action, or investigation pending pursuant to the ordinance, whichever is longer.

Finally, Chicago employers must conspicuously display, in at least one location where employees commonly gather, posters designed by the Chicago Commission on Human Rights discussing prohibitions on sexual harassment. Employers must display at least one poster in English and one in Spanish. The posters can be found here.

If you have questions or would like to discuss any of the issues outlined here, please contact an attorney in Greensfelder’s Employment & Labor Practice Group.

Read our recap and forecast of federal employment law changes here.