Employment Law Lookout

SCOTUS Rules on Pregnancy Accommodation Case

Posted in Absence Management & Reasonable Accommodation

By Camille Olson, Tracy Billows, Paul Kehoe and Ashley Laken

Earlier today in a 6-3 decision handed down in UPS v. Young, OPINION HERE the Supreme Court reversed a closely watched case which addressed whether denying pregnant workers accommodations was discriminatory under the Pregnancy Discrimination Act.  In a somewhat convoluted opinion, the Supreme Court provided some guidance, but nothing crystal clear, which leaves both employees and employers to wade through the sometime murky accommodation waters.

For a full analysis of the decision, see Seyfarth’s “One Minute Memo,”  HERE.

If you have further questions about the decision, please contact the authors, a member of the firm’s Absence Management and Accommodation Team, or your Seyfarth attorney.

Seyfarth Attorney Paul Kehoe’s Congressional Testimony on Wellness Plans

Posted in EEOC, Title III Access, Workplace Policies and Processes

As you may remember, our colleague Paul Kehoe has written recently about wellness plans on the Employment Law Lookout, here and here.

Today, Paul testified before Congress on this very topic. The hearing was scheduled to begin at 10:00 a.m. ET. More details on the hearing can be found here. Paul’s written testimony is available here.

We will keep you updated as to further developments on this topic, so be on the “Lookout” (the Employment Law kind!) soon both for analysis on the topic and any for subsequent updates on the law.

DOL’s “Survey of Working Women” to be Updated

Posted in Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

ELL postLast month, the U.S. Department of Labor, Women’s Bureau (WB), has issued a Proposed Information Collection Request (ICR) for a “Survey of Working Women.” 80 Fed. Reg. 10516 (February 26, 2015).

In its notice, the DOL notes that, not surprisingly, the labor force, employment opportunities, work environments, and the American family have changed substantially since 1994, when the WB published the results of its earlier Working Women Count! survey. The WB would like to conduct a new Survey of Working Women in order to identify “women’s current employment issues and challenges and how these issues and challenges relate to job and career decisions, particularly reasons for exiting the workforce.”

The WB is proposing to conduct a “quantitative survey,” that would collect information in order to identify employment issues and challenges currently facing women, including their perceptions on career choice and overall equity in the workplace, and also to explore the factors that contribute to women leaving and/or staying out of the workforce.

The original Working Women Count! report focused on compensation, work and family issues, and equal opportunity issues. For instance, the report concluded:

Solutions must come from many quarters. Positive change will require a cooperative effort, and the imaginations and talents of many individuals and organizations. Sixteen hundred partners joined the Women’s Bureau in this effort out of a shared concern and desire to understand what working women care about. Now each of us—government, business, unions, grass roots organizations and the media—has an important role to play. And we can each begin by discussing these issues with our own co-workers, our own community organizations, and our own families. We must build the consensus documented in this report into a national consensus for change.

The WB’s purposes, driving rationales, and conclusions may lead later to DOL rulemaking and policy initiatives.  Employers who wish to follow or even comment on this DOL project and process are invited to provide written comments to the ICR for a Survey of Working Women, which are due on April 27, 2015. We’ll be following it and will report back with new development.

Test Your Knowledge: Employee Handbook True/False Quiz

Posted in EEOC, NLRB, Workplace Policies and Processes

By: Tracy Billows

Although employers are not required by law to have employee handbooks, if an employer chooses to go down such a path, legal compliance and being current with latest trends is a must. A non-compliant employee handbook can be used in claims of discrimination, union grievances, and other employee-employer disputes. Does your employee handbook need to be updated? Test your knowledge of latest legal trends in employee handbooks.

True or False?

Employers should consider including a pregnancy accommodation policy in its handbook.

True. The Equal Employment Opportunity Commission issued Guidance in July, 2014 on pregnancy discrimination and related issues, including addressing accommodations of pregnant workers. Additionally, the issue of accommodating pregnant workers is on the U.S. Supreme Court’s agenda. A decision on this issue (Young v. UPS) is expected by the U.S. Supreme Court later this year. Regardless of the federal legal landscape, states and municipalities are passing pregnancy accommodation laws that require accommodation of pregnant workers, and in most cases provide greater rights and protections. Thus, employers need to review their employee handbooks for this issue.

True or False?

Non-union employers do not need to worry about the National Labor Relations Board guidance on Handbooks.

False. The National Labor Relations Act applies to all employers – union and non-union. The NLRB has been very active in challenging policies and handbooks of non-union employers, especially in the areas of Social Media, Employer Confidential Information and Rules of Conduct. All employers should be reviewing their handbooks in light of this guidance.

True or False?

There should be a carve out for the employment at will policy in any handbook that references the employer’s ability to change at any time any of the employer’s policies in the handbook.

True. It is best practice to include in any handbook a reference to an employer’s right to revise, modify or eliminate any policy at any time – except for the policy of at-will employment. An employer does not want to concede that a mere policy or handbook change can result in any changes to the at-will employment relationship that governs in most workplaces. It is important to maintain the at-will employment policy and relationship to prevent wrongful termination claims and breach of contract claims.

True or False?

We reviewed and revised our employee handbook in 2014 so we do not need to review again in 2015.

False. 2015 is shaping up to be a busy year in terms of employment law changes. The Department of Labor issued a final rule on same sex spouses and the Family Medical Leave Act.  Numerous states have paid sick leave laws taking effect in 2015. Pregnancy accommodation laws are continuing to be proposed and enacted. There are many other issues on the horizon and employers need to be paying attention to these developments.

How did you do? If you have any questions about this topic, please contact the author, who is also co-chair of Seyfarth’s Workplace Policies and Handbook Team, or your Seyfarth attorney.

Apple Watch – Everything Old Is New Again

Posted in EEOC, Privacy & Social Media, Wage & Hour Compliance, Workplace Policies and Processes

By: Erin Dougherty Foley

On Monday, Apple unveiled its new MacBook (which is as pretty as it is light and nimble), number of new health related apps called “ResearchKit” (that claim to be able to help diagnose and monitor the progress of diseases like diabetes and Parkinson’s) and the much anticipated Apple Watch.  The watch appears to work like an iPhone, letting you send and receive text messages, check music, use Uber, unlock your hotel room and pay for stuff – as well as make and receive phone calls.  (In fact, you have to have an iPhone to make the watch work.)  The watch also has a built in health conscious app that nudges you when you’ve been sitting for too long, tracks your steps and monitors other health factors.

While it appeared that they were still working out some of the kinks and they haven’t solved the problem of “how does a 45+ year old set of eyes see something quite that small without embarrassing your children by holding the phone that close to your face,” most of the live chats  and bloggers that we monitored during the launch seemed pretty impressed with what Apple was hawking.

Of course, then the lawyers have to weigh in.

The release of the Apple Watch and ResearchKit reinforce the need for employers to consider the impact wearable technology has on how their companies keep time records, track employee working time versus “off the clock” activities, and enforces existing EEO (anti-discrimination, harassment or retaliation) policies as well as how all of these technological advancements will interact with existing federal and state labor, employment and wage & hour laws.

There are so many exciting ways this emerging technology can be used in the work place: from new training opportunities, to innovative forms of employee collaboration; to tracking and monitoring employee performance and productivity.  But this technology also brings new issues related to maintaining confidential business information, employee personal health information, and data security issues; workplace safety and employee/employer expectations regarding privacy in the workplace.  Even forward thinking employers willing to embrace this new technology with open arms (or available wrist space) should take the time to review (and most likely update) their existing policies and procedures.

We’ll be monitoring the issues and questions that the latest Apple gadget(s) and other wearable technology pose to employers and keeping you up to date on all the latest gear.  If you have questions, feel free to contact the author, who is a member of Seyfarth’s Social Media Team or your Seyfarth lawyer.

The “Blacklisting” Executive Order: The Department of Labor’s Guidance To OMB For Final Review

Posted in Workplace Policies and Processes

By: Alexander J. Passantino, Paul H. Kehoe, and Lawrence Z. Lorber

On March 6, 2015, the Department of Labor submitted its final guidance pursuant to Executive Order 13673, titled Fair Pay and Safe Workplaces, to the White House’s Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) for review. Review by OIRA is the final step in the process prior to the publication of this guidance.

As you may recall, on July 31, 2014, President Obama signed the Executive Order requiring prospective federal contractors to disclose “any administrative merits decision, arbitral award or decision, or civil judgment” to the contracting agency under fourteen federal statutes, Executive Orders and all equivalent state labor laws addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections. In addition, the Executive Order directed (i) the Federal Acquisition Regulatory (FAR) Council to amend the Federal Acquisition Regulation to “identify considerations for determining whether serious, repeated, willful, or pervasive violations of labor laws… demonstrate a lack of integrity or business ethics” and (ii) the Secretary of Labor to develop guidance to assist agencies in determining whether labor law violations were issued for “serious, repeated, willful, or pervasive” violations. Finally, the Executive Order extended the Franken Amendment prohibiting companies with federal contracts over $1 million from maintaining mandatory arbitration agreements, despite the manifest legality of such agreements as determined by the Supreme Court.

As we have written previously, this Executive Order and related regulatory actions place significant additional labor, employment, and social requirements on the federal procurement system. This guidance from the Department of Labor will purportedly define what “serious, repeated, willful, or pervasive” violations are, and add an additional layer of complexity and additional remedial responses for federal contractors during the procurement process. In addition to the Department of Labor Guidance, the FAR Council must issue new regulations incorporating the Executive Order’s requirements into the procurement system and the procurement agencies must appoint Labor Compliance Advisors to interact with the procurement personnel in each agency to interpret the Labor Department guidance and the FAR regulations. We will, of course, keep you updated on the status of the guidance and provide analysis once published.

A Proposed Fix For Wellness Plans

Posted in EEOC, Title III Access, Workplace Policies and Processes

By: Paul H. Kehoe

On March 2, 2015, U.S. Senate Committee on Health, Education, Labor & Pensions Chairman Lamar Alexander (R-Tenn.) and U.S. House of Representatives Education and the Workforce Committee Chairman John Kline (R-Minn.) introduced companion bills entitled “Preserving Employee Wellness Programs Act.” The legislation, found here, was cosponsored Sens. Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Tim Scott (R-S.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Rep. Tim Walberg (R-Mich.). These bills come on the heels of the Senate HELP Committee’s January 29, 2015 hearing on wellness programs and related EEOC enforcement. The legislation addresses several potential problems for both employers and employees under the Americans with Disabilities Act (“ADA”), as amended, and the Genetic Information Nondiscrimination Act (“GINA”).

First, the legislation would resolve the issue of whether an incentive or surcharge permitted (indeed, encouraged) under the Patient Protection and Affordable Care Act (“ACA”) is nonetheless impermissible under the ADA and GINA. Under the 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 reaching certain health outcomes in a wellness plan (and up to 50% for smoking cessation programs). Under the ADA, medical examinations (including biometric screening) are not permitted unless such inquiries are either job related and consistent with business necessity or voluntary.

As you may recall, the EEOC recently sued Honeywell International seeking a preliminary injunction to stop it from implementing its wellness plan, which required employees to undergo biometric testing to obtain financial incentives. The EEOC’s theory was that Honeywell’s incentives offered through its wellness program made participation non-voluntary under the ADA and GINA even if the incentives complied with the ACA and its implementing regulations. The legislation would essentially deem compliance with the ACA to be compliance with the ADA, and foreclose any argument that a compliant incentive or surcharge under the ACA could violate the ADA or GINA.

Second, the legislation provides that collecting information about a manifested disease or disorder of a family member would not be an unlawful acquisition of genetic information of the employee under GINA. The regulated community has, for years, raised concerns about EEOC investigations into incentives offered to employee spouses for completing health risk assessments where information related to manifested conditions is inquired about. The legislation would address that concern.

Finally, if enacted, the legislation would supersede any regulations promulgated by the EEOC on these issues in the coming months. It would eliminate confusion caused by the EEOC and allow employers to design compliant wellness programs to the extent authorized by Congress under the ACA. We will keep you updated on developments regarding wellness plans and the forthcoming EEOC proposed regulations which are expected in the near future.

A “Real Administrative Rat Mess” (or Takeaways from SCOTUS Oral Arguments in EEOC v. Abercrombie & Fitch)

Posted in EEOC, Workplace Arbitration

By: Dawn Reddy Solowey and Ariel Cudkowicz

On February 25, 2015, the U.S. Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., a closely-watched religious discrimination case that we’ve blogged about before.

The EEOC’s petition for certiorari framed the legal question this way: “Whether an employer can be liable under Title VII for refusing to hire an applicant or for discharging an employee based on a ‘religious observance and practice’ only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

In practical terms, the Court’s decision is expected to focus on what level of knowledge an employer must have that an employee or applicant’s religious practice may conflict with a job requirement, and from what source, before it has a duty to consider accommodation. Is it the employee’s burden to alert the employer, as the Tenth Circuit held below? Or is actual notice to the employer from any source (even if it is not the employee) sufficient? Or, as the EEOC contends, is even something less than the employer’s actual notice sufficient to trigger the duty to consider accommodations?

Takeaways for Employers and Employees

What did we learn from the oral argument? Three key takeaways: First, many of the justices seemed skeptical of the company’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate. Second, the justices seemed keen to explore precisely what level of notice, short of actual knowledge from the applicant, would be adequate. Third, the Court wrestled with the practicalities, namely how can the employer raise the issue with the applicant without engaging in the very stereotyping that the law prohibits?

10-Second Recap of the Facts

Seventeen year-old Samantha Elauf, who identifies herself as Muslim, and claimed to have worn a headscarf for years for religious reasons, applied for a sales floor position in an Abercrombie store in Tulsa, Oklahoma. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing to Abercrombie about the fact that she was Muslim. She did not bring up the subject of the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailer’s “Look Policy.” However, her interviewer testified that she assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons. There was evidence that the headscarf influenced Ms. Elauf’s interview scores, and in turn, the company’s decision not to hire her.

The Courts Below

The district court granted summary judgment for the EEOC. The Tenth Circuit not only reversed that judgment, but granted summary judgment to Abercrombie. The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement, because religion is an inherently individual matter, and he or she is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary. The court rejected the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice from any source that the applicant or employee has a religious belief that conflicts with a job requirement.

Oral Argument

Skepticism for Abercrombie’s Position

Abercrombie’s lawyer faced a tough crowd. Many of the justices appeared skeptical of Abercrombie’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate.

For example, Justice Breyer characterized the Tenth Circuit’s position this way: “Employer, unless you receive direct, explicit notice that what she wants to wear is based on religion and she wants an accommodation, unless you receive direct, explicit notice from her, you’re home free to do what you want.”

Justice Ginsburg suggested that the employer had superior knowledge of its work rules, asking, “How could [the applicant] ask for something when she didn’t know the employer had such a rule?”

And Justice Alito challenged the company’s counsel as to whether Abercrombie was “willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.”

Only Justice Scalia appeared to endorse the company’s position fully. Justice Scalia said that the Tenth Circuit’s rule “avoids all problems” by making clear that “if you want to sue me for denying you a job for a religious reason, the burden is on you to say, I’m wearing the headscarf for a religious reason.”

Exploration of What Level of Notice Suffices

Having seemed to discount the possibility that actual notice from the applicant was required, any of the justices’ questions explored precisely what level of notice would be adequate.

Even the Court’s more liberal justices pushed the EEOC to define what level of notice, short of actual notice, was adequate. Justice Kagan asked the EEOC’s counsel whether, if the rule were that the employer is on notice with “less than certainty, how much less than certainty is it?”

Justice Breyer appeared to endorse a rule that “if the employer believes, thinks, this woman is religious and needs an accommodation and he’s right,” that the employer would be obligated to explore an accommodation. Justice Breyer challenged Abercrombie’s position that such a rule was “unadministrable,” pointing out that many areas of the law turn on proof of a “belief.”

However, at one point, Justice Breyer said that he was “sort of interested – hardly a ringing endorsement – in Abercrombie’s counsel’s suggestion during argument that the employer’s knowledge would have to be, if not from the applicant, at least “traceable” to the applicant.

Practical Nuts & Bolts

The justices’ questions revealed a desire to enunciate a rule that would be practical to implement for both employers and applicants.

Abercrombie’s concern that the EEOC’s position would promote stereotyping seemed to resonate with at least some of the justices. Chief Justice Roberts challenged the EEOC that its solution “may promote stereotypes to a far greater degree than what you’re objecting to.”

Indeed, Abercrombie’s counsel argued that an employer faced with the EEOC’s rule could only protect itself by “training their managers to stereotype about possible religious beliefs because a judge or jury might later find that . . . an employer correctly understood, or must have correctly understood” that the applicant had a religious belief incompatible with a workplace rule.

The justices even tried out various scripts that an employer might use to broach the subject with an applicant.   Justice Sotomayor initially suggested, “So why can’t the employer just simply say, we have a Look Policy that doesn’t permit beards. Can you comply with that policy?” After some debate about whether a religious employee can comply with the policy, even if it makes the employee religiously uncomfortable, Justice Alito suggested a revised formulation: “Well, couldn’t the employer say, we have a policy [of] no beards . . . do you have any problem with that?” At least Justices Sotomayor and Ginsburg expressed support for such a rule during the course of the argument.

The justices make it sound easy, but the pitfalls for employers are many. The rule leaves the interviewer having to draw an on-the-spot inference from the way the employee looks — or possibly other markers, such as a last name — about the employee’s potential religion, and which workplace rules might cause a conflict. There is also the risk that an applicant will misinterpret a reference to religious attire or grooming as evidence of a discriminatory animus against the applicant’s religion.

Justice Breyer distilled the essence of Abercrombie’s argument this way: “There are millions of people who are practicing one religion or another where you get a clue of that from their name or maybe their dress or whatever it is. And whenever we have such a person applying, if she doesn’t say anything . . . and we don’t hire them . . . we’re going to get sued. . . [W]ithout that simple rule, tell us, we’re going to be in a real administrative rat mess getting sued left, right and center.” Abercrombie’s counsel agreed that this just about summed it up.


It is notoriously hard to infer from Supreme Court oral argument which way the Court will come down in its decision, but there was little in the argument to provide comfort to employers that the Court will affirm the Tenth Circuit’s decision. Watch this blog for coverage of the Court’s decision.

For more information regarding this topic, please contact the authors or your favorite Seyfarth attorney.

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.