* Sean M. Craig is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Does Philadelphia have any laws regulating drug testing for marijuana? 

A: Philadelphia recently passed an ordinance that prohibits employers from requiring “a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.” The ordinance will take effect on January 1, 2022, and applies to any person doing business in the city who employs one or more employees.

The ordinance does not prohibit pre-employment testing of certain types of employees, including police and other law enforcement positions, any position requiring a commercial driver’s license, and any position that requires the supervision or care of children, medical patients, disabled people, and other vulnerable persons. Also, there are exceptions from the pre-employment testing prohibition, for instance, where drug testing would otherwise be required by applicable law, including a federal or state statute or regulation; where the federal government requires testing as a condition of the receipt of a contract or grant; or where testing is pursuant to a valid collective bargaining agreement. Continue Reading New Philadelphia Ordinance Prohibits Pre-Employment Marijuana Testing

Q: I heard that companies entering into commercial contracts in Pennsylvania can no longer restrict each other from hiring their employees. Is that true?

A: On April 29, the Supreme Court of Pennsylvania held in Pittsburgh Logistics Systems, Inc. v. Beemac Trucking LLC, et. al. that a no-hire provision (commonly referred to as a “no-poach” provision) in a service contract between two business entities was unenforceable as an impermissible restraint of trade because it was overbroad and created a likelihood of harm to nonparties to the contract (i.e., affected employees and the general public). This decision comes at a time where there has been considerable concern that no-poach agreements violate federal and state antitrust laws. In this case, however, the Court did not conclude that all no-hire provisions found in commercial contracts are void as a matter of state law. Continue Reading Pennsylvania Supreme Court Voids No-Hire Provision in Service Contract Between Two Employers

Q: Do Trump-era FLSA regulations governing independent contractor classification and joint employer status (still) apply?

A: The U.S. Department of Labor (USDOL) announced its decision to reverse a Trump-era rule governing the employee/independent contractor distinction under the Fair Labor Standards Act (FLSA) that was scheduled to go into effect on March 8. The decision comes on the heels of another recent announcement by the Biden administration that requested public comment about its intention to rescind the Trump-era regulations governing joint employment under the FLSA, which went into effect in March 2020. Both reversals have significant implications for whether a company is considered an employer under the FLSA and thus subject to minimum wage, overtime, and recordkeeping requirements under the statute. Continue Reading Biden Administration Eliminates Key Trump-Era Regulations for Employment Relationships Under FLSA

Q: Is medical marijuana an expense reimbursable by the employer?

A: For New Jersey employers, the answer is likely yes. Weednews reports that as of January 9, New Jersey and 34 other states have legalized marijuana for medical use, although it remains a Schedule 1 controlled substance at the federal level. As a result, patients have had to pay out of pocket for medical marijuana, as insurers contend that covering the cost would violate the federal prohibition on marijuana under the Controlled Substances Act (CSA). Recently however, the New Jersey Supreme Court unanimously affirmed the ruling in Hager v. M&K Construction, 462 N.J. Super. 146 (App. Div.), that an employee injured in the workplace is eligible to have medical marijuana costs reimbursed by his/her employer under New Jersey’s state workers’ compensation laws. Continue Reading New Jersey: Medical Marijuana Costs Reimbursable in Workers’ Compensation Scenario

This article was originally published by the EACCNY. It is republished here with permission.

Authors
Jessica Rothenberg, Associate, Troutman Pepper
Dr. Tobias Polloczek, Partner, CMS Hasche Sigle
Dr. Justus Redeker, Partner, CMS Hasche Sigle

As COVID-19 vaccination roll-outs become more widespread in the United States and the European Union, employers should proactively consider the impact of vaccinations on return to work policies and practices. The extent to which employers are allowed to dictate vaccination policies varies by country, and the practical approaches employers are taking also varies by country. This article discusses key aspects of the legal landscape for workplace vaccination policies in the U.S. and the EU,[1] as well as important practical considerations. For more details on the legal situation regarding vaccination and testing in the individual EU member states, please also see the recently published “CMS Expert Guide to Vaccination and Testing for Employers.” Continue Reading COVID-19 Vaccination in the EU and the U.S.: The Employer Perspective

Q: It is no secret that Trump and Biden have starkly different views on immigration laws and policies. Now that President Biden is in charge, how have things changed? What impact has there been on employers and their employees in the U.S. under employer-sponsored visas?

A: There are several key changes for employers to note:

Revocation of Trump’s “Buy American Hire American” (BAHA) Executive Order

Since former President Trump signed the BAHA executive order on April 18, 2017, it became the backbone of many of the immigration-related policies passed during his time in the Oval Office, including: (1) rescission of U.S. Citizenship & Immigration Services (USCIS)’s deference policy that made it less burdensome to obtain approvals on extension filings that were previously reviewed and approved; (2) issuance of an H-1B Third-Party Worksite Memorandum, which heightened the scrutiny on IT consultants and other similar consulting professionals who had to be stationed at the customer’s worksite; and (3) increased enforcement efforts related to H-1B and L-1 employer site visits. This also led to an increase in the number of “requests for evidence” issued by USCIS, which, in turn, led to an increase in denials overall. Continue Reading Changes to the Immigration Landscape in the First 100 Days of the Biden Administration

Q: Are employers required to pay wages to employees who are absent due to military service, similar to how they would be paid for jury duty or to attend a funeral?

A: At least for employers in Illinois, Indiana and Wisconsin, employees who need time off for military leave may be entitled to paid leave commensurate with the employer’s other paid leave policies.  In a recent decision issued by the U.S. Court of Appeals for the Seventh Circuit, White v. United Airlines, Inc., the Court held that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to provide paid military leave for employees if the employer also provides “comparable” paid leave for other, nonmilitary time away from work, such as for jury service or sick leave. Continue Reading Seventh Circuit Decision Could Expand Employer Leave Obligations Under USERRA

Q: Has the Department of Labor (DOL) issued guidance on the COBRA premium subsidy?

A: On March 25, we reported on the 100% federally funded COBRA premium subsidy included in the American Rescue Plan Act (ARPA), noting the need for additional guidance on a number of issues. See “COVID-19 Resource Guide for Human Resources Professionals: 100% Federally Funded COBRA is Almost Here — What You Need to Know.” In response to questions from stakeholders, the Department of Labor (DOL) issued FAQs on April 7, providing much needed guidance on the COBRA premium subsidy. While the FAQs provide employers with some clarity on the implementation and administration of the COBRA premium subsidy, additional guidance is still needed. Continue Reading DOL Issues Guidance on Federally Funded COBRA Premium Subsidy — FAQs and Model Notices Provide Clarification for Employers

Q: Has the Centers for Disease Control and Prevention (CDC) issued any guidance on workplace COVID-19 vaccination programs?

A: Yes. The CDC released guidance for employers in mid-March. Although the CDC recognizes the limited supply of COVID-19 vaccines, it encourages employers to develop policies and share messages with employees to promote confidence in the vaccine, so employees will choose to get vaccinated when vaccines become more widely available. The CDC guidance addresses a variety of issues including: Continue Reading CDC Issues Guidance on Workplace Vaccination Programs

Q: Have there been any court rulings on whether companies can limit employees from wearing Black Lives Matter and other social justice attire to work?

A: Yes. During this pandemic and the political and social unrest underlying the Black Lives Matter (BLM) movement, many employees have come to work wearing BLM masks and other attire. Some companies initially banned all BLM attire on the grounds that it could alienate prospective customers with differing opinions, lead to misunderstandings, and incite workplace violence. However, they later changed their decision in light of public backlash. Others continued to ban BLM masks and other attire by relying on companywide dress code policies that prohibit employees from wearing masks and clothing with any visible slogans or messages unrelated to the company. These workplace policies recently came under fire when a group of employees filed a class-action lawsuit against a grocery chain, alleging unlawful discrimination and retaliation for wearing BLM attire.

Specifically, the workers alleged that the employer rarely enforced its dress code policy and that it did not prohibit workers in the past from wearing clothing with messaging unrelated to the company, such as Pride pins or apparel supporting LGBTQ+ workers and even a SpongeBob SquarePants mask. According to the workers, the employer selectively enforced its policy to target and suppress BLM messaging, and, thus, discriminated against Black employees and others associating with and advocating for Black employees in violation of Title VII of the 1964 Civil Rights Act. The workers also alleged they were retaliated against for continuing to wear BLM apparel and protesting the dress code policy. Continue Reading Federal District Court Found That Employer Did Not Violate Title VII in Prohibiting Black Lives Matter Attire