The North Dakota Employer’s Blog: What passed and what failed? Highlights from the 2021 N.D. Legislative Session

by | Apr 28, 2021 | COVID-19, Employer Rights, Employment Law, The North Dakota Employer's Blog

The North Dakota Employer's Blog

On January 5, 2021, the North Dakota Legislature convened for its 67th Legislative Assembly.  Several employment-related bills reached the floor for debate, some of which passed and some of which failed.  Read on to find out more about the most notable employment-related bills from this year’s session and whether they are now part of North Dakota law.

Immunity from COVID-19 Lawsuits

Predictably, COVID-19 was a prime topic during this year’s Legislative Session, prompting a number of hotly contested issues.  One issue was whether, and to what extent, to provide immunity from COVID-19-related lawsuits.

The House of Representatives proposed a few different bills on this topic.  Several of them failed to pass, including House Bill (“HB”) 1376, HB 1301, and HB 1271.  One, however, managed to pass both chambers and was signed into law on April 20, 2021.  This bill—HB 1175—created a new chapter to the North Dakota Century Code, which protects any person from civil liability for an act or omission resulting in someone’s exposure or potential exposure to COVID-19, so long as the act or omission was in substantial compliance or consistent with federal or state statutes, regulations, or orders related to COVID-19 in effect at the time.  The bill further protects any person possessing, owning, or controlling a premises from civil liability for exposure to someone invited or permitted on the premises unless that person intentionally exposes another to COVID-19 or does so with actual malice.  The bill has a retroactive effective date of January 1, 2020.

Mandatory Vaccinations and Vaccination Requirements 

The House considered bills related to vaccinations in employment, as well.  HB 1301 proposed to prohibit employers (except health care facilities) from requiring an employee or prospective employee to receive an immunization as a condition of employment.  HB 1468 additionally proposed that any employer providing immunizations must provide employees information of the potential risks of the vaccination.  Both HB 1301 and HB 1468 failed to muster enough votes to pass the House.

Mask Requirements

Another widely debated topic spurred by COVID-19 was the required use of masks.  HB 1204 proposed an option for employees to “opt-out” of an employer mask mandate by providing the employer (1) a certificate from a licensed physician that the employee has a health condition threatened by the use of a face covering or (2) a signed certificate from the employee that the employee’s “religious, philosophical, or moral beliefs” are opposed to wearing a face covering.  The House failed to pass HB 1204.

Though no bills passed restricting an employer’s ability to require face coverings in the workplace, the Legislature did pass (over the Governor’s veto) HB 1323, limiting the state’s own ability to issue a statewide mask mandate.

Whistleblower Protection

In the wake of various COVID-19 issues being raised within the workplace, HB 1262 sought to amend North Dakota’s whistleblower act, N.D.C.C. § 34-01-20, by providing additional retaliation protection to employees, who (1) report to their employer, a governmental body, or a law enforcement official a concern of a government health or safety rule violation in the workplace or a significant workplace threat to health or safety related to a public health emergency, and who (2) voluntarily wear their own personal protective equipment, if it is recommended by health officials and does not prevent the employees from performing their job.  HB 1262 failed in the House.

Recreational Marijuana

The House sought to legalize recreational marijuana with HB 1420.  The bill originally contained language similar to North Dakota’s current medical marijuana statutes, allowing employers to maintain policies prohibiting the use, possession, or being under the influence of marijuana in the workplace and while working.  After HB 1420 passed the House, the Senate made substantial amendments to the bill, including providing more language related to employer’s ability to regulate marijuana in the workplace.  The bill, however, went up in smoke in the Senate and did not pass.

Minimum Wage Increase

The House attempted to raise the state minimum wage with HB 1341.  This bill proposed a steady increase in the state minimum wage to $15.00 per hour by the year 2027.  The bill died in the House.

Wage Compensation History Inquiries

HB 1434 sought to prohibit employers and their agents from requesting or seeking the compensation history of applicants and provide employees a civil remedy for employer violations.  HB 1434 failed to garner enough support to pass the House.

Local Paid Leave Requirements

In an attempt to avoid patchwork leave laws seen in other states, HB 1398 provides that no North Dakota political subdivision may adopt or enforce an ordinance requiring an employer to provide an employee paid family leave (such as leave to care for sick family members or parenting leave) that exceeds the requirements of state or federal law.  HB 1398 passed both chambers and was signed into law on March 16, 2021.

Bottom Line

The North Dakota Legislature considered several employment-related bills this session.  Though many did not pass, the few that passed provide North Dakota employers more protection, including against COVID-19-related lawsuits and against local ordinances imposing paid family leave requirements.  See you in 2023, North Dakota Legislature!

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