Employment Law Lookout

ADA, FMLA and Medical Marijuana: How Do They Mix?

Posted in Workplace Policies and Processes

By: Lawrence P. Postol

Almost a majority of the states now allow medical marijuana, so questions are starting to pop up about how the use of medical marijuana affects an employee’s rights (and an employer’s responses) under other laws, and in particular, the Family Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”).

The FMLA allows qualified employees up to 12 weeks of unpaid leave for their own health condition or to care for a qualifying family member.  The ADA prohibits employers from discriminating against those who are disabled, and those associated with a disabled person. In addition, the ADA requires employers to provide reasonable accommodations to the disabled employee so the employee can perform the essential duties of their job.

While these two laws give employees certain rights, remember under federal law marijuana use remains illegal throughout the United States, even in those states where its use is legal under state law.

FMLA Quandary

So what if I am taking marijuana for a medical condition in a state where under state law my use is legal. What rights do I have under the FMLA and the ADA? Under the FMLA, leave is allowed for absences due to treatment of any serious medical condition, which includes essentially any chronic medical condition. The definition of a serious medical condition also includes any condition which incapacitates a person from work for over 3 consecutive days if they also need to see the medical provider twice for treatment, e.g., a bad cold. In other words, if I meet those qualifications, I can likely obtain FMLA leave. The fact that I might be using medical marijuana during my FMLA time off is irrelevant. Indeed, if my condition requires me to take time off from work to use medical marijuana, that time off would also be covered by the FMLA.

One can only imagine the possibilities that arise from this set of facts. Let’s say I have depression, and my psychiatrist has prescribed me to use medical marijuana as a treatment in a state where it is legal to do so. If the doctor directs that I use medical marijuana in the afternoon, say at 1:00 p.m., then I could take half the day off (unpaid of course) as FMLA time off. Now someone will try to be clever and say, what if he only wanted to take two hours off to light up, could that employee then return to work at 3:00 p.m.? Not likely. The employee would likely be impaired and an employer does not have to allow an impaired employee to work. Indeed, the employer could require a fitness for duty examination before taking the employee back to work.

What if the employer has a “zero tolerance” drug free workplace policy? Does the employer have to take the employee back when he/she tests positive for marijuana use after an FMLA covered absence to smoke marijuana as a medical treatment? Generally, an employer can enforce its drug-free workplace against off duty marijuana use, because marijuana use is still illegal under federal law. In other words, even if the employee is not high or impaired, if he/she tests positive for recent marijuana use, the employer likely could terminate the employee for failing to comply with that policy.

However, the employer’s actions would not be risk free. The employee could argue that the job termination was in retaliation for his taking FMLA leave, or an attempt to interfere with his/her use of FMLA leave. If a judge or jury believed that was the employer’s true motivation, those actions (interference and retaliation) are illegal under the FMLA, and the employee could be awarded damages, attorney fees, and reinstatement.

ADA – Drug Use Can’t Really Be Covered As A Disability – Can It???

And what about the ADA and marijuana use? Well the ADA provides that a person currently using illegal drugs is not a qualified individual with a disability and thus is not protected by the ADA. In addition, testing for illegal drug use is not considered a medical examination, so the ADA does not restrict when an employer can test for the use of illegal drugs. However, a question does arise when the state law allows the use of medical marijuana. Under the ADA, illegal drug use does NOT include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.” So does that exclusion include the use of medical marijuana when prescribed by a licensed health care professional, i.e., when a doctor prescribes medical marijuana when he is allowed to under his/her state law?

The reading of the ADA wording above — at first glance — would seem to indicate the answer is yes, that if a doctor prescribed the marijuana use, then it is excluded from the definition of illegal drug use. However, the word “other” makes the answer less clear, since it appears that Congress assumed that any prescription for a drug would also be legal under the Controlled Substances Act. While medical marijuana can be prescribed under some state laws, it is still probably illegal to do so under the Controlled Substances Act. When Congress enacted the ADA in 1990, no one had heard of medical marijuana, or at least Congress clearly was not thinking of it. Thus, Congress’ intent is not exactly crystal clear.

So, we reach the classis lawyer answer – it’s depends! What we’re left with is — at least the possibility — that a medical marijuana user whose use is legal under state law, and is prescribed by a medical provider, might not lose his ADA protection. If that is so, and the medical marijuana use is to treat an ADA covered disability (which, by definition, includes most chronic conditions), then that opens lots of possibilities. For example, the ADA requires as a possible accommodation that employer policies be modified or exceptions allowed. Would that include an employer’s drug free workplace policy? Probably not, since the ADA explicitly states that employers can require that employees behave in conformity with the Drug-Free Workplace Act. However, the courts are only starting to deal with this can of worms, and it is not that far-fetched to realize that some court will find that the ADA gives some protection to medical marijuana users in states where the use is legal.

As if this is not complicated enough, many states have their own “mini” ADA and FMLA statutes, which largely copy the federal statues, but they are not always identical to the federal ADA and FMLA laws.  (For example, see the DOL’s link to State FMLA laws.)

It may well be that a state’s ADA or FMLA statute gives further protection to a medical marijuana user, since the state law may not refer to federal Control Substances Act.

Medical marijuana users should not jump for joy, because it is less than clear that they have any significant protection under the ADA or FMLA. Conversely, employers need to assess their risk before acting, because it might well be that the ADA and FMLA do extend some protection to medical marijuana users.

If you have questions about this topic, please contact the author, or your favorite Seyfarth Attorney.

DOT Partially Extends Compliance Date for HazCom and Labeling of Lithium Cells and Batteries

Posted in Environmental, Safety, & Toxic Tort

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

Upcoming 2-Part Webinar – Layoffs Without Liability: Advanced Strategies for Reducing Headcount

Posted in Uncategorized

Just a reminder that Seyfarth Shaw’s Energy Employment Law Group will be presenting a timely and interesting 2-Part webinar series on February 25th from 1 pm CT to 2 pm CT and March 4th from 1 pm CT to 2 pm CT. For further information, please see the event information below.

With oil prices having dropped dramatically, many energy companies are planning large-scale layoffs for the near-term. Seyfarth’s Energy Employment Law Group and RIF Best Practices Team will answer the tough questions employers face when planning group layoffs. This two-part webinar is intended for in-house counsel, HR professionals, and business professionals.

Day 1 – February 25, 2015 (Part I)

  • Considering alternatives to RIFs
  • Bullet-proofing the RIF process and selection criteria
  • Avoiding disparate impact claims

Day 2 – March 4, 2015 (Part II)

  • Minimizing WARN exposure
  • Developing enforceable severance agreements
  • “ERISA-fying” severance activity

There is no cost to attend this program, however, registration is required. You may Register Here

Wait…What Did He Say? (Or, What To Do When Your Employee’s Tweet Goes Viral)

Posted in Social Media, Workplace Policies and Processes

By: Erin Dougherty Foley

Picture this. You arrive at work only to be met by the employee who always seems to know everything about all that’s going on and that person hands you a copy of the “tweet” that another employee posted right before arriving at work this morning. The tweet reads: “Whoa, just ran someone over on my way into the office. Hope he’s OK.”

A few minutes later your local police department calls and asks to interview the employee. A few minutes after that—the President of your company storms in and says he’s gotten several calls from suppliers who heard about the incident and are demanding that something be done about it.

What to do? What to do?   First. Investigate.

What not to do?   Panic.

You call the employee in—and the employee sheepishly tells you that the tweet was a joke and that he had actually taken the train to work that day, and did not drive. Now what?

This actually happened at the end of last year. A British company learned that its employee had sent a fake tweet similar to the one above and fired him.

Some called the action excessive. Others felt that it was appropriate given the poor judgment of the employee (not to mention the fact that the tweet went viral and was retweeted over 150 times).

But let’s break this down a little bit and identify some things to consider in the event something similar happens (heaven forbid!).

  • Did it happen? Confirm with the local law enforcement as to whether an accident occurred. If your employee is lying to you – well that’s a significant factor to consider.
  • What did the employee say? Or rather, what was the subject of the tweet (or the blog post, or the Facebook Post, or the Instagram Picture, etc.)? Did the employee say something that otherwise violates some other company policy? (Did he publish a trade secret? Did he communicate financial information in violation of SEC rules? Did he say something harassing or discriminatory?). If yes to any of these, then there might be cause to discipline the employee (yes, up to and including termination).
  • Wait! Did the employee say something that might be considered “protected concerted activity?” (See our earlier blog post about what that means.)  If yes: call your legal department (or your favorite Seyfarth lawyer). As we’ve blogged about before, discipline for social media conduct is very high on the NLRB’s radar – perhaps better to fly under that radar for the time being.

If your hypothetical employee has not been self-eliminated yet – ask a couple of more questions:

  • Who is the employee? In other words, what role does this employee play within your organization? Does the employee regularly engage in social media as part of his or her job duties?
  • Did the employee identify herself as your employee in the social media account she uses? (Remember Justine Sacco, the media representative who tweeted an offensive statement before leaving for South African and was promptly sacked shortly after landing in South Africa?) As one article put it: “Her whole job revolved around communicating with reporters—which made her Twitter comment about Africa all the more shocking.”)

It’s appropriate to consider what role the employee plays within the organization when making any disciplinary decision. If it’s an employee who “should have known better,” it’s OK to factor that into your decision.

It’s probably not appropriate to consider the opinions of the media or general public (they always want to burn the witch don’t they?). It’s a closer call when it comes to your clients or customers; should it be a factor–sure, but probably shouldn’t be the only factor.

OK, let’s return to the scene of the crime – hold on – there was no crime. Remember, our hypothetical crime did not happen; the employee claimed it was a joke. So, now what? Well, go back to the drawing board, or in this case, your policies and procedures. Do you have a Code of Conduct? Do you have a social media policy? Do either of those identify conduct that this employee violated? (See our first discussion points above).

Is there anything wrong with terminating someone for simply exercising bad judgment? No, provided that the decision is not otherwise motivated by some other discriminatory intent or in response to some other protected activity (i.e., not retaliatory – see our blog post on that topic). Each situation (like any other disciplinary scenario) has to be considered both in the context of the individual events as well as how the company has reacted to other employee misconduct. Consistency is a key factor in fending off otherwise messy employee litigation.

Was the decision to terminate the British employee excessive? That’s probably one best left to the court of public opinion.

If you have questions about this topic, please contact the author, who is also a member of Seyfarth’s Social Media Team, or your Seyfarth attorney.

Four Years To Sue On SOX Claim Withdrawn From OSHA

Posted in OSHA Compliance

By Christopher F. Robertson and Craig B. Simonsen

The Fourth Circuit Court of Appeals recently ruled that a Sarbanes-Oxley Act (SOX) claim initially timely filed with OSHA and then withdrawn falls within 28 U.S.C. § 1658(a), the “catch-all limitations period,” which provides a four year limitations period.  Jones v. SouthPeak Interactive Corp. of Del., No. 13-2399 (4th Cir., 1/26/15).

In this case, SouthPeak Interactive Corp. (SouthPeak), a video game publishing company, fired its chief financial officer after she raised concerns about an alleged “misstatement” on one of the company’s filings with the Securities and Exchange Commission (SEC).  At trial, the jury found that the company and two of its senior officers violated the anti-retaliation provisions of SOX, and the district court awarded the chief financial officer more than half a million dollars in back pay and emotional distress damages.

In reaching the merits of the claim, the district court rejected SouthPeak’s argument that a two-year limitations period for private actions that involve “a claim of fraud” in violation of federal securities laws applied to complaints that have been timely filed with OSHA, but then withdrawn under the so-called “kickout” provision of SOX.  SOX’s kickout provision allows a claimant to withdraw an unresolved complaint from OSHA’s administrative process as a matter of right after 180 days.  In the SouthPeak case, the plaintiff timely filed the claim with OSHA, but then withdrew her claim and did not file in the district court until almost three years after her termination and over two years after withdrawal.

The Appellate Court found that the plaintiff’s SOX retaliation claim was subject to 28 U.S.C. § 1658(a), the catch-all limitations period, and because the plaintiff “brought her suit within that section’s four-year window, her claim is not barred.”

The court also rejected SouthPeak’s argument that emotional distress damages aren’t available on successful SOX retaliation claims.  The Fourth Circuit noted that the statute expressly entitles a prevailing plaintiff to receive “all relief necessary to make [her] whole,” citing to 18 U.S.C. § 1514A(c)(1), which states that “an employee prevailing in any action under [the Act] shall be entitled to all relief necessary to make the employee whole.”  Two federal Circuit Courts as well as the Administrative Review Board of the Department of Labor had previously concluded that emotional distress damages are available. See Halliburton, Inc. v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014), and Lockheed Martin Corp. v. ARB, 717 F.3d 1121 (10th Cir. 2013); Kalkunte v. DVI Financial Svs., Inc., 2004-SOX-056, ARB Case Nos. 05-139 & 05-140 at * 15 (Feb. 27, 2009) (upholding an ALJ’s award of compensatory damages under SOX for “pain, suffering, mental anguish . . . and humiliation.”); Brown v. Lockheed Martin Corp., 2008-SOX-0049 (Jan. 15, 2010) (awarding complainant $75,000 in compensatory damages under SOX for depression and loss of self-esteem).

It important to note that the plaintiff here did file an administrative complaint within the time periods provided under SOX, and then withdrew the administrative complaint after 180 days, as permitted by SOX.  Nothing in the Fourth Circuit’s decision obviates the need for a plaintiff to initially file with OSHA within 180 days.  However, once the complaint is withdrawn, the Fourth Circuit has concluded that there is no immediate timeframe within which the claim must then be filed in federal court as long as it is filed within four years after the claim accrues.

Canadian Immigration – Navigating an Increasingly Strict Compliance Regime

Posted in Immigration

By: Pavan Dhillon

Canada, much like the United States, has adopted increasingly protectionist immigration policies that are intended to strengthen the Canadian economy by restricting both temporary resident and permanent residency applications. Employment and Social Development Canada (ESDC), Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) administer and adjudicate Canadian Immigration related applications and are responsible for undertaking enforcement action against non-compliant employers and individuals.

A major difference between United States and Canada’s Immigration reform efforts, is that Canadian agencies can adopt fundamental policy changes through Ministerial instructions.  Pursuant to Section 87.3 of the Immigration and Refugee Protection Act (IRPA), the Minister  can introduce sweeping reforms of immigration laws that affects “processing of applications” including establishing categories of applications and conditions that must be met. The Harper Government has relied heavily on this provision to fundamentally alter the Canadian immigration landscape. In particular, the liberal use of the ministerial instructions allow the government to use enormous discretion and can to a large degree bypass the checks and balances built into the democratic system. For instance, the ministerial instructions were used to institute a moratorium on parental sponsorships for a two year period.  The options to permanent residency in Canada is increasingly narrowing with the introduction of various ministerial instructions but the ministerial instructions have also been used liberally to implement a strict employer compliance regime.

In addition to outlining immigration related general offences and penalties, Canada has recently implemented significant compliance directives including increased inspections and abuse detection measures, increased information sharing between government agencies and increased enforcement measures including site visits and compliance reviews.

With heightened compliance initiatives, Citizenship and Immigration Canada has also provided unequivocal guidance affecting Human Resources (“HR”) professionals who may be at a risk of engaging in the unauthorized practice of providing immigration advice to their employees. The directive is also aimed to provide similar guidance to other professionals who may facilitate an immigration application such as educational agents, adoption agencies and live-in caregivers’ agents.

Specifically, pursuant to Section 91 of IRPA, only the following persons are permitted to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with Canadian immigration applications or proceedings under IRPA:

  • A lawyer who is a member in good standing of a law society of a province or
  • A notary who is a member in good standing of the Chambre des notaires du Québec;
  • Any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
  • A member in good standing of a body designated the IRPA regulations (ie. Immigration Consultants)

Any other individuals providing representation or advice may face harsh penalties for unauthorized representation, which is considered to be an immigration offence.  Pursuant to Section 91(9) of IRPA, unauthorized representatives may be liable, on conviction on indictment, to a fine to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both; or on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than six months, or to both.

Granted these harsh penalties will generally be reserved for those who engage in fraudulent activity, but there are nevertheless repercussions for HR professionals. CIC provided the following directive limiting the role of HR professionals in order to provide additional guidance for those stakeholders legitimately involved in an immigration application.  Specifically, HR professionals cannot:

  • Explain and/or advise an employee about his or her immigration options. This would include permanent residency and temporary resident applications (such as work permits and temporary resident visas) but, strictly interpreted, may also extend to business visitor applications
  • Guide an employee on how to select the best immigration stream
  • Complete and/or submit immigration forms on an employee’s behalf
  • Communicate with CIC and the CBSA on the employee’s behalf (except to provide ancillary translation services regarding an employee’s written or spoken submissions)
  • Represent an employee in an immigration application or proceeding
  • Advertise that the HR representative can provide immigration advice for consideration
  • Complete applications forms, such as work permits and visa applications, on behalf of workers recruited.

HR professionals can however perform the following limited tasks:

  • Direct an employee to the CIC website to find information on immigration programs, application forms, or authorized immigration representatives
  • Provide ancillary services such as  translation, travel arrangements and couriers
  • Advise international students on course selection or registration
  • Conduct job interviews (as well as conduct recruitment efforts)
  • Complete Labour Market Impact Assessment (LMIA) application forms on behalf of the employer

HR Professionals engaging in these prohibited activities are exposing not only their companies and employees but also themselves to liability and risk. licensed Canadian immigration attorneys or certified immigration consultants should be consulted prior to advising any employee about his or her immigration options.

If you have further questions regarding immigration, generally or Canadian laws, specifically, please contact the author, a member of Seyfarth’s Immigration Department or your Seyfarth attorney.

Federal Contractors Should Be Concerned About The OFCCP’s NPRM Revising its Sex Discrimination Guidelines

Posted in Workplace Policies and Processes

By: Paul KehoeMeredith  C.  BaileyLawrence Z. Lorber and Annette Tyman

On January 28, 2015, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced a Notice of Proposed Rulemaking (“NPRM”) to update its Sex Discrimination Guidelines (the “Guidelines”).  The NPRM will be published in the Federal Register on January 30, 2015, followed by a sixty-day comment period.

The proposed regulations modify the requirements for federal contractors to fulfill their obligations under Executive Order 11246.  The OFCCP had not substantively updated the Guidelines since 1970 despite forty-five years of changes in discrimination laws through legislation and court decisions.  While the proposed regulations seek to update requirements in accordance with “existing law and policy,” many of the provisions go beyond the parameters of current statutory and other legal obligations, including:

  • The adoption of the “implicit bias” theory of discrimination because “[r]esearch clearly demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place” despite the Supreme Court’s explicit rejection of the implicit bias theory in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54;
  • A new requirement that aligns with the EEOC’s controversial guidance that contractors must provide light duty to all pregnant employees regardless of whether an impairment substantially limits a major life activity even though the issue is pending before the Supreme Court in Young v. UPS;
  • A new requirement that contractors allow transgendered individuals to use the restroom of his or her choice (despite Congress’s decision not to enact Employment Nondiscrimination Act);
  • A prohibition on contractors imposing a shorter maximum amount of pregnancy leave as compared to the maximum time off allowed for other types of medical or short-term disability leave;
  • More robust protections regarding compensation discrimination (despite Congress’s decision not to enact the Paycheck Fairness Act), in addition to the current proposals regarding a new compensation form (link),  pending regulation regarding transparency and non-retaliation (link) and the new scheduling letter requiring substantial submission of compensation data.

This Administration continues to aggressively implement its agenda via Executive Orders and regulations in the face of its deadlock with Congress.  Contractors should take special note of these proposed regulations since aspects of these regulations would create substantial additional burdens.  Importantly, while the Guidelines that have been in place since 1970 operated as guidance to contractors, the proposed regulations, if finalized in their current form, would be binding on federal contractors and subcontractors.   There is a significant legal question as to whether OFCCP has the authority to transform “guidance” to the status of “regulation” and this question may fuel legal challenges.  There is also a legal question as to whether the agency has the authority to create requirements for federal contractors that may be at odds with the state of the law as defined by some courts.  Contractors should consider submitting comments to the proposed regulations to ensure that their views are heard during the rulemaking process. Comments must be received by March 31, 2015.

Another Message To The EEOC On Wellness Plans: Targeting Incentives Is Inconsistent With The Affordable Care Act

Posted in EEOC

By Paul H. Kehoe

On January 29, 2015, the U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing on employer wellness plans. While bipartisan sentiment may be difficult to find in Washington, it is clear that both Republican and Democrat Senators view wellness plans favorably, recognize the crucial role that wellness plans play in lowering health care costs, and are concerned with the Equal Employment Opportunity Commission’s litigation challenging wellness plans, especially in the absence of an articulated policy by the EEOC.

The issue is fairly straightforward. Under the Affordable Care Act (“ACA”), and its implementing regulations issued by the Departments of Labor, Treasury and Health and Human Services, employers may offer financial incentives to employees up to 30% of their health care premiums for participating in and/or reaching certain health outcomes in a wellness plan (and up to 50% for smoking cessation programs). Read more here. Under the Americans With Disabilities Act (“ADA”), medical examinations and/inquiries (including biometric screening) are not permitted unless such inquiries are either job related and consistent with business necessity or voluntary.

Late last year, the EEOC filed litigation against Honeywell International seeking a preliminary injunction to stop it from implementing its wellness plan, which required employees to undergo biometric testing. Employees who chose not to participate forfeited a contribution to a health savings account of up to $1,500, were assessed a $500 surcharge, and were potentially subjected to a $1,000 nicotine surcharge. Ultimately, the EEOC’s theory was that Honeywell’s incentives offered through its wellness program made participation non-voluntary under the ADA even if the incentives complied with the ACA and its implementing regulations.  The EEOC lost the first round of motions in the case (here is our post on that litigation). Given the seemingly inconsistent position between the ACA, regulations issued by three Cabinet-level agencies, and the EEOC’s litigation position, some employers have limited their wellness programs and related incentives, or have even chosen not to offer them.

From both sides of the aisle, the tenor of the hearing was clear – Congress permitted incentives for wellness plans that now the EEOC is litigating against. Senator Alexander (R-TN) remarked (link here) that “EEOC is sending a confusing message to employers – reliance on Obamacare’s authorization of wellness programs does not mean you won’t be sued.” Ranking Member Murray (D-WA) said “[I]t has been exciting to see businesses nationwide to respond to incentives included in the [ACA].” In addition, Sen. Mikulski (D-MD) noted that she was “very frustrated to hear that we are now arguing over the EEOC giving regs and rules… [G]iven the uncertainty of the law, the wellness programs are going to pull back.”

These sentiments follow a clear articulation by the White House on December 3, 2014 that the EEOC’s position “could be inconsistent with what we know about wellness programs and the fact that we know that wellness programs are good for both employers and employees.”

Implications For Employers

The Senate HELP Committee clearly expects the EEOC to issue regulations on the issue. Indeed, such regulations have been included on the EEOC’s most recent Regulatory Agenda. However, all stakeholders like to ask for clarity unless the clarity they receive is not the clarity that they want. As such, when proposed regulations are published, it will be critical for employers interested in offering wellness plans to consider submitting comments to reflect their support of wellness plan incentives up to the limits authorized by Congress. We will keep you updated on any additional developments regarding wellness plans and forthcoming EEOC proposed regulations.

Readers can also find this post on our EEOC Countdown blog here.

Governor Rauner Rescinds Increase In Illinois Contractors’ Minimum Wage

Posted in Workplace Policies and Processes

By: Marc R. Jacobs

As we previously reported, during his final hours in office, former Governor Pat Quinn issued an executive order establishing a minimum wage of $10,00 per hour for all Illinois state government contracts. On January 16, Governor Bruce Rauner issued Executive Order 15-11, which rescinded the increase in the minimum wage and several other executive orders issued by former Governor Quinn during his final days in office.  The text of EO 15-11 is available at  https://www.illinois.gov/Government/ExecOrders/Pages/2015_7.aspx.  In Executive Order 15-11, Governor Rauner stated that the rescinded orders “were not wholly motivated by serving the public interest.

Hence, the minimum wage for Illinois government contractors remains the same as that applicable to Illinois employers generally (currently $8.25 per hour).

Winter Storm Juno: Helping Employers Anticipate Wage & Hour and Workplace Safety Concerns

Posted in OSHA Compliance, Wage & Hour Compliance, Workplace Policies and Processes

By: Alexander J. PassantinoRichard L. AlfredLoren GesinskyMeagan Noel Newman and James L. Curtis

As the Northeast braces for Winter Storm Juno, Seyfarth Shaw has prepared the following guidance to help employers navigate wage & hour issues arising from potential closures, as well as workplace safety issues related to severe winter weather.

Wage and Hour Issues for Weather-Related Closings

As Juno prepares to pummel the Northeast with snow, employers should prepare for any weather-related closures of their offices, factories, or other facilities.  The effect of a weather-related closure on compensation requirements varies for different types of employees and also varies by state.

Exempt Employees

Most employees who are exempt from federal overtime requirements and paid on a salary basis are not subject to reductions to their weekly salaries because of a closure.  Even if an exempt employee misses a full day of work, the employer may not reduce the employee’s weekly salary (unless the employee misses an entire work week).  An employer that improperly reduces an employee’s salary might lose or jeopardize the ability to treat the employee as exempt from overtime pay requirements — potentially a very costly mistake.

Even though employers will almost certainly have to pay exempt employees their full salaries regardless of storm-related closures, employers do have the right to charge exempt employees for vacation or PTO for any work that they miss.  Employees who do not have enough accrued vacation or PTO to cover the closure, however, must still be paid their full weekly salaries.

The legal rules for paying exempt employees apply in all states.  Of course, in deciding whether to charge employees with vacation or PTO, employers may also want to consider non-legal factors such as employee morale and the organization’s finances.

Non-Exempt Employees

For non-exempt employees, federal law requires only that employers pay employees for the hours they actually work.


In assessing pay requirements for all employees, employers should keep in mind that, even if an office or other facility is closed, some employees might work remotely.  Work performed remotely generally must be paid to the same extent as work performed on an employer’s premises — even if the employer did not request that the work be performed.  Non-exempt employees working remotely must generally be paid at their usual hourly rate (and subject to the usual requirements for overtime pay).

Reporting Pay

Certain Northeastern states have additional requirements that apply to hourly employees who report to work when a facility is closed or not operating at full capacity.  For example:

Connecticut has a reporting pay requirement that applies to employees in the “Mercantile trade.”  Employees in that industry must be paid four hours at their regular rate of pay, if they actually report for work.  The “Mercantile trade” is defined as the wholesale or retail selling of commodities and any operation supplemental or incidental thereto.  A two-hour guarantee is in place for the restaurant and hotel industries, if the employee was not “given adequate notice the day before” that she should not report for work.

Massachusetts mandates reporting pay for non-exempt employees of at least three hours at the statutory minimum wage ($9.00) if they are scheduled to work more than three hours on a given day and actually report for work.  Employees scheduled for less than three hours need only be paid for their scheduled hours.

New Hampshire requires reporting pay for non-exempt employees who actually report for work of at least two hours at their regular rate.

New Jersey requires reporting pay for non-exempt employees who actually report for work of at least one hour at their applicable wage rate (unless, prior to this report to work, the employer already made available to the employee the minimum number of hours of work agreed upon for the week).

New York requires “call-in pay” for non-exempt employees of at least four hours, or the number of hours in the regularly scheduled shift (whichever is less) at the basic minimum hourly wage ($8.75) for employees who actually report for work.  A 2009 New York Department of Labor opinion letter, however, interpreted the reporting-pay obligation as not applying if “the amount paid to an employee for the workweek exceeds the minimum and overtime rate for the number of hours worked and the minimum wage rate for any call-in pay owed.”  Employees working in the hospitality industry may be subject to different requirements.

Rhode Island requires an employer to pay an employee who reports for duty at the beginning of a work shift (where the employer offers no work for him to perform) not less than three (3) times the employee’s regular hourly rate of pay.
Washington, D.C., requires reporting pay of at least four hours at the statutory minimum wage ($9.50) for non-exempt employees who actually report for work if they are scheduled to work for at least four hours.  Employees scheduled for less than four hours need only be paid for their scheduled hours.

Some of the reporting pay requirements noted above may be waived if the employer makes a good faith effort to provide employees with reasonable advance notice that they should not to report to work.  Employers that foresee that their facilities will be closed should give employees who are scheduled to work as much notice as possible for both practical and wage/hour compliance reasons.

Severe Winter Weather Brings Workplace Safety Concerns

In the wake of winter storms thousands of businesses, schools and government offices face the challenge of cleaning up significant ice and snowfall and trying to return to operation. For many of these employers, the unusual days ahead may require special attention to workplace safety issues. Storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks or volunteer to undertake certain responsibilities that are not within their regular job duties. In the hurry to get our communities up and moving again, many unfamiliar hazards can be easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness.

Additionally, winter weather creates a variety of hazards that can significantly impact everyday tasks and work activities. These hazards include slippery roads/surfaces, strong winds and environmental cold.

Cleanup Often Involves Unfamiliar Tasks and Hazards

Cleanup and recovery work presents a wide range of hazards that must be addressed by employers. Given that these hazards are unlikely to be the type regularly present in work environments, employers must pay special attention to winter storm cleanup activities and plan accordingly. Many of the hazards at issue can be minimized by knowledge, safe work practices and personal protective equipment. Before allowing or instructing employees to begin cleanup after a winter storm, each worksite and activity needs to be assessed to ensure the safety and health of employees.

Hazard Assessment and Protective Measures

The hazards posed by winter storm cleanup and recovery work may include illness from exposure to the elements and/or cold stress, downed electrical wires, carbon monoxide and electrical hazards from portable generators, fall and “struck-by” hazards from ice, heavy snow, falling trees or working at heights, hazards posed by being caught in unprotected excavations or confined spaces, lacerations, musculoskeletal injuries, and being struck by traffic or heavy equipment.

Protective measures should involve:

  •   Evaluating every work area for all hazards.
  •   Heeding all warnings and alerts from emergency management officials.
  •   Consulting with local emergency management and utilities.
  •   Task-specific hazard exposure monitoring where necessary.
  •   Engineering or work practice controls to mitigate hazards.
  •   Supplying and requiring appropriate personal protective equipment.
  •   Assuming all power lines are live.
  •   Using portable generators and other cleanup equipment correctly.
  •   Using proper precautions in traffic work zones.

No winter storm cleanup activity should be permitted where the hazards are unknown and cannot be properly addressed. When in doubt, do not permit employees to take on cleanup responsibilities and enlist the aid of qualified contractors.

Cold Stress

Even where there has not been significant snow fall or ice accumulation, environmental cold has the potential to adversely affect any employee exposed to extreme cold air temperatures and potentially puts them at risk of cold stress. According to OSHA, “as wind speed increases, it causes the cold air temperature to feel even colder, increasing the risk of cold stress to exposed workers, especially those working outdoors, such as recreational workers, snow cleanup crews, construction workers, police officers and firefighters. Other workers who may be affected by exposure to environmental cold conditions include those in transit, baggage handlers, water transportation, landscaping services, and support activities for oil and gas operations.”

Although there is no federal OSHA standard that covers working in cold environments, under the Occupational Safety and Health Act (OSH Act) of 1970, employers have a duty to protect workers from recognized hazards that are causing or likely to cause death or serious physical harm in the workplace. OSHA views cold stress as one such hazard.

Employers should be aware of the risk factors for cold stress and train their supervisors and employees accordingly.  They are:

  • Wetness/dampness, dressing improperly, and exhaustion.
  • Predisposing health conditions such as hypertension, hypothyroidism, and diabetes.
  • Poor physical conditioning.

OSHA also advises that a cold stress training program should include the following:

  • How to recognize the environmental and workplace conditions that can lead to cold stress.
  • The symptoms of cold stress, how to prevent cold stress, and what to do to help those who are affected.
  • How to select proper clothing for cold, wet, and windy conditions.

Employers should:

  • Monitor workers physical condition.
  • Schedule frequent short breaks in warm dry areas, to allow the body to warm up.
  • Schedule work during the warmest part of the day.
  • Use the buddy system (work in pairs).
  • Provide warm, sweet beverages. Avoid drinks with alcohol.
  • Provide engineering controls such as radiant heaters.

All outdoor work requires proper preparation, especially in severe winter weather conditions. Employers who regularly have employees working outside should take special care during and following extreme weather to ensure that all tasks and worksites are evaluated for hazards, and that the appropriate training and protective measures are in place.