Do You Hear That Sound? It’s The Paid Leave Train, And It’s Heading Straight for You

Most of us are very familiar with the Family and Medical Leave Act, which requires unpaid leave, a continuation of benefits, and reinstatement of employees who take off of work for various health and military-leave related reasons. 

Fortunately, the FMLA only applies to employers with fifty or more employees, and we currently have no comparable state law that would apply to smaller employers.  

That is probably going to change in the near future. 

This week, Maryland became the tenth state to recently pass a law requiring private employers to provide paid family and medical leave. Similar bills are currently pending in at least twenty-five other states, including Louisiana. 

Louisiana currently has no less than two Bills pending in the House and Senate that would require private employers to provide paid leave for sickness, and family and parental leave, and one that would require governmental employers to provide similar paid leave benefits. The Bills would variously apply to employers with at least five or twenty employees, and one would apply to state employees. (Senate Bill 289, House Bill 1003, and House Bill 945 respectively). Although employers do not need to take any concrete action in response to any of these Bills at this time, it would be a good idea to keep them on your radar. If any of these become law, they will present significant changes.

Department of Labor Issues Field Assistance Bulletin Showing Emphasis on Retaliation 

On March 10 the U.S. Department of Labor issued Field Assistance Bulletin No. 2022-02: Protecting Workers from Retaliation (“FAB”).

In the FAB, the DOL identified several actions that can constitute retaliation. This is significant because the FAB shows that the DOL intends to be very broad in its application of the retaliation provisions. 

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Proposed Bill Would Prohibit the Use of Non-Compete Agreements with Certain Physicians

Senator Jay Morris has proposed a Bill that will significantly limit the use of employment-related agreements that limit a primary care physician’s ability to practice medicine. Senate Bill 385 would prohibit the use of any employment contract or agreement to restrict the practice of medicine by a licensed primary care physician, except for certain limited situations.

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President Biden Signs Law Limiting Arbitration Agreements for Sexual Harassment

You may recall that a couple of weeks ago I sent out an update that the Senate had passed a bill that would severely limit the use of forced arbitration agreements and class action waivers covering allegations of sexual harassment.  Well, President Biden signed the Bill into law last Friday, the 3rd.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is now law.  The Act amends the Federal Arbitration Act by adding a new section:

[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

The Act allows employees to void portions of arbitration agreements requiring them to arbitrate sex assault/harassment claims

The Act does not affect agreements to arbitrate claims other than sex harassment/assault.

The Act applies to all claims arising after March 3, 2022, the day that it was signed by President Biden.

Bottom line: If you have agreements requiring your employees to submit issues to binding arbitration rather than suing you, the Act only applies to them to the extent that they require the arbitration of sexual harassment and sexual assault claims.  If you were thinking of implementing an arbitration agreement to avoid employment-related class actions, among other things, you can still do so – just not sex assault/harassment claims.

Call me directly if you want to discuss the ins and outs of employment arbitration agreements.  

The CDC Has Relaxed It’s Face Covering Recommendations, And This Should Matter to You

 As we discussed in prior updates, when OSHA withdrew its Emergency Temporary Rule requiring large employers to vaccinate or test their employees, it indicated that it was going to ensure that workplaces were COVID – safe by using the General Duty Clause.  The General Duty Clause requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  COVID is a recognized hazard that is causing or likely to cause death or serious physical harm. 

Continue reading “The CDC Has Relaxed It’s Face Covering Recommendations, And This Should Matter to You”

Congress Passes Ban on Arbitration Clauses for Sex Harassment and Sex Assault Claims – Bill Goes to Biden for Signature

The U.S. Senate joined the House of Representatives and passed H.R. 4445. This Act will give the claimant the ability to void any agreement requiring the arbitration of sexual harassment and sexual assault claims. The Act also voids any agreement containing a class action waiver of these types of claims. 

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Recent Federal Court Ruling on ADA Claim Emphasizes Importance of Engaging In and Documenting the Interactive Process

A federal court in Ohio recently denied summary judgment to an employer who refused to hire an applicant for a forklift driving position who used prescription opioid medication. The court determined that there were fact issues regarding whether the employer properly engaged in the interactive process and whether the applicant’s opioid use rendered him unsafe to perform the job.

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If The DOL Doesn’t Get You, The NLRB Will

The U.S. Department of Labor Wage and Hour Division and the National Labor Relations Board recently entered into a Memorandum of Understanding that does not bode well for employers. Under this Memorandum, the DOL and NLRB will share with each other any information and data that they discover during an investigation that they believe may show a violation of a law enforced by the other entity. For example, if an employee tells a DOL investigator that the employer’s “publicity policy” forbids employees from speaking ill of the employer on social media, the DOL investigator will refer the information to the NLRB for investigation as potential a Section 7 violation. 

The Memorandum goes even further: it also provides that when one agency “has reason to believe that there may be unlawful conduct that falls within the jurisdiction of the [other agency],” it will “advise the complainant/employee(s) that an opportunity may exist to file a charge with the [other agency].” 

So, not only will one agency tell the other that it needs to investigate you, but it will also tell the complainant that he should file another charge against you.

To better enforce this commitment, the DOL recently announced that it is hiring over 100 new investigators. 

This is all a part of President Biden’s stated pro-labor/pro-union mandate. If you are not sure if your policies and practices are in compliance with the NLRA and the FLSA, now is the time to make sure that they are and to implement any needed changes. Don’t wait until the DOL or NLRB are knocking on your door.

As always, don’t hesitate to call me directly if you have any questions or need assistance. 

Think Twice Before Requiring Your Employees to Pay for Their Own Covid Tests

Although OSHA’s COVID ETS does not specifically require employers to pay for the cost of weekly COVID tests, it does recognize that state or local laws may require an employer to do so. In all likelihood, Louisiana law does just that.

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