Screening Employees for Marijuana in New York Goes Up in Smoke

Last month, Gov. Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA), which legalized adult (21 years of age and up) use and possession of up to three ounces of marijuana (or 24 grams of concentrated marijuana). This legalization spurs questions for employers: Are they allowed to prohibit the use of marijuana? Can they discipline for the use of marijuana? Can they drug test for marijuana? We’ve got the answers. Continue Reading

Schrödinger’s Cat? Ninth Circuit Disrupts Trucking Industry with Contractor Misclassification Ruling

Have you heard of Schrödinger’s cat? It’s not a real cat, like Felix or Brian Setzer. It’s a hypothetical, seemingly impossible cat that exists only in the world of quantum physics. Schrödinger’s cat refers to a thought experiment in which a cat in a box is simultaneously alive and dead, until you open the box and observe the cat. Then, stubborn as cats are, it will be only one or the other – and that’s when you realize you prefer dogs anyway.

In a ruling last week, the U.S. Court of Appeals for the Ninth Circuit tried to give the trucking industry Schrödinger’s cat.

The issue was whether California’s infamous ABC Test applies to the trucking industry. The answer now is both yes and no, depending on where you look. Continue Reading

Windy City Employers Take Note: New Chicago Ordinance Outlining Rights and Obligations Regarding COVID-19 Vaccines

Chicago recently passed an ordinance outlining employees’ rights and employers’ obligations in connection with getting a COVID-19 vaccine. Employers should be aware of these key provisions of the ordinance:

  • Regardless of whether an employer mandates vaccination, the employer cannot mandate that if any employee gets a vaccine, the vaccine must be administered during nonworking hours.
  • An employer cannot take adverse action against an employee who gets a vaccine during working hours.
  • If an employee wants to use any paid sick leave or PTO available to them to get a vaccine, the employer must allow the employee to use that time.
  • If an employer requires vaccination, the employer (1) must compensate the employee for the time taken to get the vaccine, up to four hours at the employee’s regular rate of pay, if the vaccine is administered during the employee’s normal working hours, and (2) cannot require that the employee use paid sick time or PTO to get vaccinated.

Continue Reading

Eleventh Circuit Holds Websites Are Not Places of Public Accommodation and Rejects Commonly Relied-Upon Nexus Standard

In a win for businesses, on April 7, 2021, the U.S. Court of Appeals for the Eleventh Circuit held in Juan Carlos Gil v. Winn-Dixie Stores, Inc., that websites are not “places of public accommodation” under the Americans with Disabilities Act (ADA) and rejected the “nexus” standard that has been adopted by several other federal circuits. This long-awaited decision follows a proliferation of website accessibility cases alleging that businesses have discriminated against disabled individuals in violation of the ADA by operating or maintaining websites that are not fully accessible to blind and visually impaired individuals.

The ADA prohibits discrimination against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. The term “place of public accommodation” is key. At issue in many of these website accessibility cases is whether a website is a place of public accommodation under the ADA. The Eleventh Circuit answered that question in the negative, relying on the fact that the statutory language in the ADA defining a “place of public accommodation” is unambiguous and clear. Specifically, the ADA lists 12 types of tangible, physical locations that constitute places of public accommodation, none of which are intangible places or spaces that are akin to websites. Continue Reading

UPDATED: COVID-19 Vaccine Paid Leave Law Encourages New Yorkers to Get Vaccinated

This article is a revised version of our March 18, 2021 publication.

Really … another new paid leave requirement from New York? Yes indeed. On Friday, March 12, 2021, Governor Cuomo signed a new law amending New York’s Labor Law and granting employees up to four hours of paid leave per COVID-19 vaccine injection. The law became effective immediately, and the new leave entitlement is currently set to expire on Dec. 31, 2022. The idea is to encourage New Yorkers to get vaccinated.

Under this new law, employees are now entitled to paid leave to obtain the COVID-19 vaccine for “a sufficient period of time, not to exceed four hours per vaccine injection.” For employees receiving vaccines that require two doses, this means that employers must grant up to eight hours of total leave for vaccination (up to four hours on two different occasions). For the newer vaccine that is administered in a single dose, an employee would only be entitled to one four-hour leave. The law does not place a cap on the number of times an employee may take paid leave for a COVID-19 vaccine injection before the law expires, so presumably, if booster shots will be required/recommended before the law expires, employees would be entitled to receive additional paid time off for that. Continue Reading

Only Two Weeks Remaining for Connecticut Employers to Meet Their Sexual Harassment Training Requirements

The Connecticut Commission on Human Rights and Opportunities (CHRO) recently extended the deadline for employers to complete sexual harassment training as required under the Time’s Up Act (the Act). Employers are not required to request this extension; it is a blanket extension to April 19, 2021*.

The Act, which went into effect on Oct. 1, 2019, established new rules and requirements for sexual harassment training. Previously, only employers with 50 or more employees were required to provide sexual harassment training to supervisory employees. Under the new requirements, employers with three or more employees were required to provide all employees hired on or after Oct. 1, 2019, with two hours of training within six months of their hire date, and existing employees with two hours of training by Oct. 1, 2020. The latter deadline has been extended several times due to the COVID-19 pandemic, most recently to April 19, 2021. In addition, employers with less than three employees (including individuals employed by a spouse, parent or child) were required to provide two hours of training to new supervisory employees within six months of their hire and two hours of training to existing supervisory employees by Oct. 1, 2020; the latter deadline was also extended to April 19, 2021, due to the COVID-19 pandemic. To the extent an employee has already received training after Oct. 1, 2018, that employee will not be required to receive training again by the new deadline. However, employers must provide supplemental training not less than every 10 years. The CHRO has developed training, available on its website, for use by employers.

Given the blanket extension, Connecticut employers should make sure they comply with these training requirements by the April 19, 2021* deadline, whether by using the CHRO training materials, developing an internal training program or engaging outside counsel to provide the training.

*The CHRO recently extended the April 19, 2021 deadline to May 20, 2021.

Taking Tips? Department of Labor Announces Timing for Tipped Employee Final Rule Implementation

The U.S. Department of Labor (DOL) this week announced the timing for implementation of its much-awaited Final Rule controlling which employees can participate in a mandatory tip pool and changes to the “80/20” rule. The Final Rule, which revises the Fair Labor Standards Act’s (FLSA) tip regulations and implements an earlier statutory amendment concerning the tip credit and mandatory tip pools, has faced a cloud of uncertainty since its publication on Dec. 30, 2020, as a result of the change in administrations. The DOL proposed to bifurcate implementation of its Final Rule concerning compensation for tipped employees, allowing certain provisions of the Final Rule to take effect on April 30, 2021, while delaying and revising other provisions, subject to public comment.

The DOL’s latest announcement, issued on March 23, 2021, resolves some of this uncertainty, outlines new changes for employers beginning next month and provides interested stakeholders with an opportunity to submit public comments regarding portions of the Final Rule that remain under review. Continue Reading

Illinois Enacts New Background Check Requirements

Background check compliance has been a technical minefield for years. Federal, state and local requirements differ, meaning that multistate employers have a lot to keep track of.

Illinois just planted a new landmine.

Amendments to the Illinois Human Rights Act impose new requirements on employers conducting background checks in Illinois. Governor Pritzker signed the bill into law March 23, 2021, and it takes effect immediately. The new requirements fall into three categories.

First, before taking any adverse action based in whole or in part on criminal history, specific factors must be considered. Continue Reading

New Decade, Same Rules: Noncompetes in Texas 10 Years After Marsh USA Inc. v. Cook

Under Texas law, to establish an enforceable covenant not to compete, the first question is often whether the covenant is supported by adequate consideration. Unlike many states, in Texas, an employer cannot pay for a restrictive covenant (which includes both noncompetes and customer non-solicitation restrictions). In other words, in Texas, a raise, bonus or severance payment is typically not sufficient consideration to support a restrictive covenant. Some thought Texas might move in the direction of allowing payments to act as sufficient consideration when the Texas Supreme Court issued its 2011 decision in Marsh USA Inc. v. Cook. However, the cases that have followed have not moved Texas law any closer to finding pure payments to be adequate consideration for restrictive covenants.

Under Texas Business and Commerce Code § 15.50(a), a covenant not to compete is only enforceable (1) if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made, and (2) to the extent that it contains limitations as to time, geographical area and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the employer’s goodwill or other business interest. Although litigants often fiercely debate the second prong – the reasonableness of the restrictions – employers must also ensure their restrictive covenants satisfy the first threshold requirement: that such covenants be supported by adequate consideration. Continue Reading

Employers May Need to Update Their Severance
Agreement Templates by April 1

Acronyms make us do things. AWOL makes us go looking for someone, BOGO makes us buy two of something we didn’t need one of, and NSFW makes us cover our screen and hope no one has already walked by.

The new COVID-19 relief bill requires acronym-based action too. ARPA made changes to COBRA, so employers will need to edit their template severance agreements ASAP. Here’s what that means, FYI.

Under the American Rescue Plan Act (ARPA), involuntarily separated employees will receive a 100% subsidy to cover their Consolidated Omnibus Budget Reconciliation Act (COBRA) premiums from April 1 through Sept. 30, 2021. Employers will pay the full cost of the premiums, then obtain reimbursement through payroll tax credits. Continue Reading