Q: Are there any state laws employers should think about when implementing COVID-19 vaccine policies?

A: Yes, multiple states have passed or are considering laws related to COVID-19 vaccine policies.

Savvy employers tracking the latest guidance likely know the many sources of federal guidance pertaining to COVID-19 vaccines in the workplace. For instance, the Centers for Disease Control and Prevention (CDC) made headlines with its May 13 guidance loosening face mask and distancing restrictions for fully vaccinated individuals, as did the Equal Employment Opportunity Commission (EEOC) with its updated COVID-19 vaccine Q&As. Just recently, the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard for health care employers and updated guidance for employers in other sectors. As if that wasn’t enough, multiple states also have passed laws impacting employers looking to implement a COVID-19 vaccination program.

* Michael T. Byrne is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Are California employers required to rehire employees they laid off for reasons related to the COVID-19 pandemic?

A: Yes, but only if the employer falls within certain industries and establishes an open job position for which one of its laid-off employees is qualified. Under California’s Senate Bill No. 93 (SB 93), if a covered employer opens a job position and has previously laid off workers due to reasons related to the COVID-19 pandemic, the employer must first offer the position to eligible laid-off employees within five days of establishing the position.

* 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.

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.

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.

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.

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.”

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.

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.

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.