Opioid Guidance, Lactation Breaks, and Liability Shields: Recent Employment News You Might Have MissedIn case you missed it, below are a few of the most recent employment law updates that may have gotten lost in the onslaught of the 24-hour news cycle.

EEOC Issues Opioid Accommodation Guidance

While employers have (rightfully) spent recent months navigating the COVID-19 pandemic, another epidemic has quietly continued. Opioid use in the United States has long been considered a public health crisis – and data shows that the stress and uncertainty of the COVID-19 pandemic is actually making the problem worse.

Many employers have to navigate the murky waters of employee opioid use by employees without a lot of guidance. Fortunately, last month, the EEOC released two technical assistance documents addressing opioids: one aimed at employees and the other at healthcare providers. While the first document is written to inform employees of their rights, the documents can provide a helpful roadmap to employers.

In short, use of illegal drugs is not a covered disability under the Americans with Disabilities Act (ADA). However, an employee is covered by the ADA’s non-discrimination provisions if the employee is:

  1. lawfully using opioids,
  2. in treatment for opioid addiction and receiving Medication Assisted Treatment (MAT), or
  3. has recovered from an addiction.

The key takeaway here is that if your employee’s opioid use is legal (and falls into one of the above categories), you should consider if the employee can do the job safely and effectively with or without a reasonable accommodation before taking any action to remove the employee from the position. Read the full Q&A from the EEOC here.

North Carolina Bans the Box for State Employers and Joins the Bandwagon

On August 18, 2020, North Carolina Gov. Roy Cooper signed Executive Order 158 to implement “ban the box” policies at state agencies. Among other things, the order requires that state agencies remove criminal history questions from employment applications and not ask questions about criminal history during hiring.

For private employers, the new law requires the N.C. Department of Administration to conduct a study on the feasibility of “implementing a fair chance hiring policy that would extend to businesses that contract with the state.” The order will be implemented November 1, 2020. North Carolina joins 35 states and over 150 cities that have at some level banned the box on criminal history questions.

What does this mean for you? Unless you are a state agency in North Carolina, not much… yet. But, if you do business with the state, keep your eye on any expansion of this program (in North Carolina or elsewhere) that may affect private employers who contract with state governments.

Georgia Passes Paid Lactation Breaks

We all know that the FLSA requires employers to provide unpaid lactation breaks to hourly employees in the first year following the birth of a new child. Georgia is taking this a step farther. Georgia House Bill 1090, also known as “Charlotte’s Law,” was signed by Georgia Gov. Brian Kemp on August 11, 2020. The new law requires employers to provide paid lactation breaks and private locations (that are not bathrooms) to employees to express breast milk. Before Charlotte’s Law, employers had to provide unpaid break time to these employees.

If you are in Georgia, start making plans for a “mothers’ room” (if your office does not already have one), and be sure that you are not forcing employees to take paid leave – or unpaid breaks – for pumping.

Tennessee Creates COVID-19 Shield

On Monday, August 17, 2020, Tennessee Gov. Bill Lee signed the Tennessee COVID-19 Recovery Act into law. The law protects businesses from COVID-19 related lawsuits brought by customers, the public, and/or employees. This means that employers are shielded from COVID-19 liability unless a claimant files a verified complaint, pleads specific facts that constitute gross negligence or willful misconduct, consults with a physician, and files a certificate of good faith. The law does not hinder employees from filing workers’ compensation claims or complaints about workplace safety (so OSHA complaints and investigations are still in play).

Stay Updated

Obviously, these stories are not all the employment law updates that may have flown under your radar recently. Make sure to sign up to receive Bradley’s blog content and newsletter alerts to stay up to date on recent developments, especially when you are tired of drinking from the news cycle fire hose.

OSHA Is Issuing Citations for COVID-19 Infections from the SpringSince the beginning of the COVID-19 crisis, we have been talking about things to do to keep your employees safe and what laws apply in that arena. Recently, OSHA started handing out fines to companies for employee outbreaks across the country, from New Jersey to Colorado to Louisiana to South Dakota.

The recent COVID-19 citations rely on the Occupational Safety and Health Act’s general duty clause:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

DOL’s news releases do not provide much detail on the alleged violations, merely that the companies failed to protect the employees from the coronavirus. It appears that most are related to events from Spring 2020.

What Does This Mean to You?

It is a pandemic and employees are going to get sick, but there are still things you can do to protect your employees and your company.

  • If OSHA has issued specific guidance for your industry, follow it.
  • If there is no specific guidance, look to the general guidance on proactive measures you can take to protect workers, such as social distancing or, when that is not available, using physical barriers, face shields, and face coverings. Keep in mind that this guidance can change, so stay up to date.
  • Put up signs that remind employees to social distance and wear face coverings.
  • Enforce your safety measures. Just like you would not let an employee work without a hard hat or safety glasses, you cannot let an employee work without a face covering.

Don’t forget to maintain injury and illness logs, and make them available as required.

Don’t End Up in Detention: Guidance on Leave for Employees with School-Age KidsIt’s September, which for most means the beginning of fall and the start of a new school year. This school year not only looks different than those in the past, but it has also added to the stress and uncertainty facing families as parents attempt to balance work and family in this COVID-19 world. School also looks different depending on where you live – schools are starting the year with either traditional in-person learning, remote-only learning, or a hybrid of the two. Most school districts offering traditional in-person instruction also provide parents the option to choose remote learning. As parents attempt to navigate the new school year, employers should remain mindful of their obligations to provide paid leave under the Families First Coronavirus Response Act (FFCRA).

As a refresher, the FFCRA offers up to 12 weeks of paid expanded family and medical leave at two-thirds of the employee’s regular rate of pay for an employee, (who has been employed for at least 30 calendar days) that is unable to work due to a need to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. The Department of Labor (DOL) recently released additional FAQs offering insight on how employers should administer leave under the FFCRA in response to three common scenarios:  parents who choose remote learning, schools that open remotely but may open for in-person attendance in the future, and a hybrid model where in-person learning is only available part of the time.

  1. Parents Who Choose Remote Learning (FAQ # 99)
    Where in-person school is available, but a family has opted for virtual learning, the DOL has stated that employees are not eligible for FFCRA leave because the school is not “closed” due to COVID-19 reasons. Rather, the parent has chosen to forego the availability of in-person attendance for remote learning. Even if a parent chooses remote learning, however, FFCRA paid sick leave may still be available if the child is under a quarantine order or has been advised to self-isolate by a healthcare provider.
  1. Schools That Open Virtually But May Open Traditionally Later (FAQ # 100)
    This FAQ applies to school systems who have made the decision to kick off the school year with 100% remote learning, but who have stated that they will continue to evaluate local conditions and make a decision regarding in-person attendance at a later date. While the school remains closed for in-person attendance, employees are eligible for paid leave under the FFCRA.
  1. Hybrid Model (FAQ # 98)
    For the majority of hybrid school models, the school is open each day for in-person attendance. Students alternate days, however, between receiving in-person instruction versus remote instruction. Generally, students are only allowed to attend in-person on their allotted days.

The DOL’s recent guidance states that an employee is eligible to take paid leave under the FFCRA on the days when his or her child is not permitted to attend school in person and must participate in remote learning (so long as the prior requirements are met, i.e., as long as the leave is needed to actually care for the child during those days and only if no other suitable person is available). Under applicable DOL guidance, the school is effectively “closed” to the employee’s child on the days when remote learning is the only available option. In other words, this FAQ indicates that employees are eligible for intermittent paid leave for the days when their children must participate in remote learning.

While this FAQ appears fairly simple to implement, there is uncertainty as to how it affects prior DOL guidance stating that intermittent FFCRA leave also requires employer consent.  Employers should stay tuned for additional information and guidance on this issue.