News & Analysis

Drug tests, marijuana use, and the EEOC

Employers are beginning to comprehend how the widespread availability of medical marijuana will affect the workplace. Newly garbed with medical justification, more workers are claiming a "right" to use marijuana at work. Employers, confronted with a note from the ever-more- aptly-named "Dr. Feelgood" authorizing employees' use of the drug, are often stymied. A number of recent cases are certain to add to the problems.

Mixed response to the human trafficking regulations

On January 29, 2015, the Federal Acquisition Regulatory Council (FAR Council) issued final regulations amending the Federal Acquisition Regulation (FAR) to strengthen protections in federal contracts against human trafficking. Effective March 2, these regulations implement the mandates from Executive Order 13627, titled "Strengthening Protections Against Trafficking in Persons in Federal Contracts," which was issued by President Barack Obama on September 25, 2012.

Court blocks immigration executive action—what's the impact on employers?

On February 16, 2015, the U.S. District Court for the Southern District of Texas granted a preliminary injunction halting the U.S. Department of Homeland Security's (DHS) implementation of portions of the president's immigration executive action outlined on November 20, 2014. As you may recall, I cautioned in our December issue that "whether the president's recent series of immigration-related executive actions will survive potential legal challenges and congressional action remains to be seen" (see "What does the immigration executive action mean for employers?" on pg. 1 of that issue). The injunction, sought by 26 states, temporarily halts the implementation of expanded Deferred Action for Childhood Arrivals (DACA) and the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), but it is far from the final word on the subject.

President's budget reflects administration's labor and employment priorities

On February 2, President Barack Obama submitted to Congress his budget request for fiscal year (FY) 2016, which begins on October 1, 2015. Here are the highlights of the administration's requests for the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB).

Appealing notices of employee eligibility for exchange subsidies

The Affordable Care Act (ACA) requires health insurance exchanges (also known as "marketplaces") to notify employers if any of their employees purchase coverage through an exchange and qualify for a subsidy. The exchange notices are part of the exchanges' verification process regarding eligibility for premium subsidies. It appears that the exchange notices will be sent to employers at the addresses provided by their employees on their exchange applications. The U.S. Department of Health and Human Services (HHS) has stated that for efficiency reasons, exchanges can either send the exchange notices on an employee-by-employee basis as subsidy eligibility determinations are made or provide notices to employers for groups of employees.

New proposed sex discrimination rule for federal contractors

The U.S. Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP) proposed an expansive new sex discrimination regulation in late January 2015 that touches on many topics, including compensation discrimination, caregiver discrimination, best practices for preventing harassment, and childcare leave. It would also require, among other things, a prohibition on gender-specific terms for jobs and workplace accommodations for women affected by pregnancy, childbirth, and related medical conditions similar to accommodations provided to employees with disabilities or occupational injuries. Despite the U.S. Supreme Court not having yet decided the pregnancy accommodation issue that is currently before it, the OFCCP has moved forward with a proposed regulation addressing the issue.

In a fact sheet providing an overview of the proposed rule, the agency pointed out that the current "Sex Discrimination Guidelines" have not been updated since 1970, and as a result of the dramatic change in laws and women's participation in the workforce since 1970, existing regulations may create confusion for contractors about their legal obligations. In addition, the agency remarked that "significant and pervasive workplace discrimination" and other barriers for women continue to persist.

Employer denies FMLA leave based on certification 'technicality'

The purpose of the Family and Medical Leave Act (FMLA) is to allow an employee to manage a serious health condition (his own, a spouse's, or a family member's) without fear of losing his job. An employer cannot interfere with an employee's FMLA rights or take action that appears to be penalizing the employee for exercising those rights.

Listing only one reason for discharge doesn't equal retaliation

Often, an employer has more than one valid reason to discharge an employee (e.g., poor job performance coupled with attendance problems, insubordination, or failure to follow proper procedures). When you have more than one possible reason to terminate an employee, you must carefully identify and document the grounds for your decision. And once you make the termination decision, you must articulate your stated reasons consistently.

Supreme Court says federal regs not 'law' under whistleblower statute

It's generally safe to assume that most of us support the protection of whistleblowers. After all, if a business or government entity engages in illegal activity, endangers public safety, or wastes public resources, most of us would prefer to know—or have the appropriate officials know so the problem can be resolved. Even if the whistleblower discloses information that is confidential or otherwise protected, we still typically believe it is best to have those details come to light.

Agency Action

EEOC launches antiharassment task force. New Equal Employment Opportunity Commission (EEOC) Chair Jenny R. Yang announced in January that she is establishing a task force to convene experts from the employer community, workers advocates, HR experts, academics, and others in an effort to identify effective strategies to prevent and remedy harassment in the workplace. Harassment is alleged in approximately 30 percent of all charges filed with the EEOC, according to an agency statement.