COVID-19’s impact on workplace matters continues to broaden.  The National Labor Relations Board, which has jurisdiction over most private sector employers, announced on Thursday that all union elections within its purview are suspended for two weeks.  Importantly, the suspension applies to both in-person and mail-in voting.

The Board implemented the freeze due to concerns over its ability to conduct elections safely and effectively amidst the COVID-19 pandemic.  The NLRB recently closed five regional offices to date (Cleveland, New Orleans, Manhattan, Detroit, and Chicago) after workers at those branches may have been exposed to coronavirus.  The Board also closed its headquarters in Washington, D.C. after an employee there had contact with someone who has tested positive for COVID-19.

The Board has indicated that its freeze on elections may be extended, depending on how the COVID-19 situation develops over the next two weeks.  For now, any union elections under the NLRB’s jurisdiction that were set to take place between March 19 and April 2, 2020, will be postponed and no elections will be scheduled during that time frame.

If you have any questions about the effects of the NLRB’s temporary suspension of elections, contact any member of our Labor & Employment Group.

It has been a dizzying few weeks for anyone trying to keep up with the steady stream of government directives and related information involving COVID-19. The Families First Coronavirus Response Act (“Response Act”), Governor Wolf’s Orders and guidance from the CDC, OSHA and the EEOC have pushed employers and their counsel into overdrive. Many of us have no problem remembering the basic content of these directives, but may have trouble retaining dates and numerical aspects of specific requirements. It is for those “numerically challenged” readers that this cheat sheet has been prepared. We hope you find it helpful.

1 = Number of full business days that “non-life sustaining” businesses have to comply with the Governor’s Order to close shop. The Order was issued on March 19 and will take effect at 12:01 am on Saturday, March 21, 2020.  Today is the day that many Pennsylvania businesses are wrapping things up.

2 = When calculating the number of paid sick hours that a covered employer must provide to part-time employees, the employer must use the average number of hours worked by the employee over a two-week period. The Secretary of Labor has been directed to provide further guidance on this calculation (e.g. where scheduled hours fluctuate) within 15 days – by April 2, 2020.

6 = The CDC’s recommended distance (in feet) that employees should keep between each other, while also avoiding large gatherings and congregation settings (if the business is permitted to continue operations).

7 = Number of days following passage of the Response Act that the Secretary of Labor is to publish a Notice for employers to use that advises employees of their rights under the Act. The poster should be available online at www.dol.gov no later than March 25, 2020.

12 = Numbers of weeks of leave available to eligible employees under the Family and Medical Leave Act (FMLA) – each of which may now be taken on a paid basis for child care emergency issues if certain conditions are met (see “200″ below).

14 = Number of days of quarantine recommend by CDC for any household where one member is infected with Covid-19.

15 = Number of days after enactment that the Response Act takes effect. The Act was passed on March 18, 2020 was originally expected to take effect on April 2, 2020 – however, recent information suggests that the Act may now take effect sooner.

18 = Number of months that COBRA continuation health coverage is available to qualifying beneficiaries who lose coverage due to termination of employment or reduction of hours. The Pennsylvania “Mini-COBRA” law applies to smaller employers with 2-19 employees and provides coverage for up to 9 months.

20 = Number of seconds that CDC recommends that employees take to wash their hands with soap – or with use of a hand sanitizer containing at least 60%-95% alcohol.

26 = Number of weeks of unemployment compensation benefits typically available for employees who have been laid off.

30 = Number of days that an employee must have been employed by an employer to qualify for the new paid FMLA leave benefit for child care emergencies under the Response Act.

50 = Minimum number of employees that must be laid off in order to trigger the 60-day advance notice requirement under the federal Worker Adjustment and Retraining Notification Act. However, the notice may be delayed due to “unforeseeable business conditions” – and no notice is required for layoffs lasting less than six months in duration. Several states have enacted “Mini-WARN” laws with more stringent requirements – but Pennsylvania has not.

80 = Number of hours of paid sick leave that are available under the Response Act to full-time employees of covered employers for qualifying reasons relating to COVID-19, quarantines, care for individuals subject to quarantine and child care emergencies. This is in addition to the 12 weeks of paid FMLA leave available for child care emergencies discussed above.

100.4 = Threshold body temperature at which the CDC recommends that employees stay home from work (if the employer is open for business) until they are free of fever, signs of fever and any other symptoms (e.g. cough, shortness of breath) for at least 24 hours without use of fever reducing or other symptom-altering medications (e.g. cough suppressants).

153 – Number of “industry groups” that are deemed “life-sustaining” and are permitted to continue operating under Governor Wolf’s March 19, 2020 Order.

200 ($) = Maximum daily pay for employees eligible for paid FMLA leave to care for a child (under 18) whose school or child care arrangement has been closed due to a public health emergency. The daily pay is to be 2/3 of the employee’s wages (maximum of $200/day) and a total maximum benefit of $10,000. The same $200 daily maximum applies to paid sick days taken to care for “an individual” subject to quarantine or a child whose school has closed or whose child care arrangement is unavailable due to a public health emergency. A $511/day maximum applies to sick days taken due to an employee’s quarantine or isolation as directed by a government entity or a health care provider – or due to seeking a medical diagnosis for symptoms of COVID-19.

500 = Private employers having fewer than 500 employees are subject to the Response Act’s paid sick leave and paid FMLA requirements. Note that related companies with common management and ownership, centralized control of employee relations and interrelated operations will likely be aggregated for purposes of coverage under the expanded FMLA benefit requirement. Whether aggregation of such entities applies for purposes of coverage under the paid sick leave portion of the Response Act is not yet entirely clear.

This is not the first time that a deadly pandemic has hit the U.S. – but it is the first time employers have had to balance so many regulatory requirements during such a difficult time. We hope this quick overview of some of the numbers involved helps you keep the multitude of directives straight. If you have any questions regarding any of the items above or your strategy for navigating this challenging time, please contact any member of our Labor and Employment Law Practice Group.

As of 8:00 p.m. Thursday evening, March 19, 2020, all “non-life-sustaining” businesses throughout Pennsylvania must close its physical locations in response to the COVID-19 coronavirus outbreak, according to a new order issued by Gov. Tom Wolf.

The new mandate, which is a follow-up to the administration’s recommendation that all non-essential businesses suspend operations to help curb the spread of COVID-19 coronavirus last week, will include enforcement actions against businesses that do not comply with the order. Businesses that do not close physical locations by 12:01 a.m. on Saturday, March 21, 2020, could face citations, fines and license suspensions, as well as jeopardize forfeiture of current or future state grant or disaster relief funding.

The administration provided a list of businesses that may remain open and those that must close, which can be found here.

Under the new order, food establishments can continue to offer carry-out, delivery, and drive-through food and beverage service, including alcohol. In addition, the prohibition does not apply to “work from home” options, as long employees practice social distancing and other mitigation measures.

Earlier today, the governor announced the state would make available low-interest loans for small businesses and eligible nonprofits across the Commonwealth through the U.S. Small Business Administration (SBA). But the latest order to force the shutdown of physical locations of “non-life-sustaining” business is sure to have a significant impact on an already concerned business community.

For those businesses seeking guidance, please contact the McNees Labor and Employment Practice Group.

More information on what you can do to protect yourself and others can be found at www.health.pa.gov or check out the CDC’s coronavirus information page.

Special thanks to the McNees Strategic Solutions Group for contributing this post.

Yesterday, President Trump signed into law historic legislation that will have a significant impact on a many employers nation-wide.  The legislation, called the Families First Coronavirus Response Act, has many provisions.  We will focus this discussion on the workplace issues that most employers can expect to face.

Paid Sick Leave

The law includes the Emergency Paid Sick Leave Act.  This requires that employers with 500 or fewer employees provide paid sick leave to all employees for any of the following reasons:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • To obtain a medical diagnosis or care if experiencing the symptoms of COVID-19;
  • The employee is caring for an individual who is subject to an order as described in bullet point 1 or 2 above;
  • To care for a son or daughter under 18 years of age if the child’s school has been closed or the child care provider is not available due to COVID-19; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Full time employees will be eligible for up to 80 hours of paid sick time, and part time employees will be eligible for a number of hours equal to the number of hours that part time employee typically works over a two-week period. Employees will be permitted to use the emergency paid sick leave provided for before accessing other paid leave the employer has previously provided.  The amount of pay due under Emergency Sick Leave is dependent upon the reason for the sick leave.  If leave is for one the first three bullet points above, the payment is based on the employee’s regular rate of pay and is capped at $511 per day and $5,110 total.  If the need for leave is any other qualifying reason, payment is two-thirds the employee’s regular rate of pay, with a cap of $200 per day and a total of $2,000.

Expansion of Family and Medical Leave Act

The law also includes the Emergency Family and Medical Leave Expansion Act, which amends the existing Family and Medial Leave Act.  Unlike traditional FMLA that applies to employers with 50 or more employees, the new expansion provisions apply to employers with fewer than 500 employees. Likewise, despite traditional FMLA’s requirement that employees must be employed for a year and work 1,250 hours in the previous twelve months to be eligible, the expansion provision extends eligibility to all employees who have been employed for 30 days or more.  The following are the highlights of the expanded FMLA entitlements.

  • Eligible employees will be permitted to take paid FMLA leave for one qualifying event:
    • If the employee is unable to work (or telework) due to a need to care for a son or daughter under 18 years of age if the child’s school has been closed or the child care provider is not available due to a public health emergency.
  • The Act provides definitions for most of these key terms.
  • The first 10 days of the FMLA leave used for these purposes can be unpaid, but (as discussed in greater detail above) an employee may elect to use the Emergency Paid Sick Leave provided under the Act or other available paid leave during the initial 10 day period.
  • Eligible employees will receive two thirds of their regular rate of pay for the remaining 10 weeks, up to a maximum of $200/day and $10,000 total.
  • Healthcare benefits must continue during the leave of absence.

Employees will have job protection during this leave, but there are some exceptions to this requirement for small businesses.

In reading the Emergency FMLA Expansion Act and the Emergency Paid Sick Leave Act together, it appears that full time employees will be permitted to use two weeks of paid leave before being transitioned to the wage provided for under the Emergency FMLA Expansion Act.

The Families First Act provides for a tax credit program that appears to be intended to reimburse employers for 100 percent of the costs of the paid Sick Leave and Paid FMLA leave in the vast majority of cases.  Essentially, employers will receive a rebate or a refund of their federal wage taxes to cover these costs, but there are some limits.  For public sector employers, it is unclear how (or if) they will receive a refund of the costs.

In addition, the Families First Act contains provisions for the expansion of unemployment compensation benefits.  These provisions are designed to incentivize states to expand eligibility for UC benefits and eliminate any waiting period associated with the receipt of such benefits.  There are also specific provisions for extending benefits to employees and employers impacted by COVID-19.

The Act states that it will be effective no later than 15 days after the date of enactment, and there are some concerns that it will be made effective sooner.  There are also sunsetting provisions in the legislation as well, which make clear that these provisions are only through the end of the year.

The above represents only a summary of the historic legislation, and given the time and space limitations we have, we did not cover all of the details.  We will provide additional information moving forward.  McNees will also hold a webinar on Monday, March 23, 2020 targeted for employers with less than 500 employees.  We will post registration details in the near future.

In the meantime, we recommend that you consult with counsel to determine how the Families First Coronavirus Response Act will impact your workplace.  You may contact any member of the McNees Labor and Employment Group for guidance.

Coronavirus (COVID-19) has dramatically changed our daily lives, at least for now and the foreseeable future. What tomorrow (or the next hour) will bring is a bit uncertain.  In an effort to assist employers faced with unique challenges in the context of this pandemic, the Occupational Safety and Health Administration (OSHA) has issued a new Alert and Guidance addressing best practices for minimizing and managing workplace concerns and risks related to COVID-19.

OSHA’s Guidance stresses the importance of planning to “reduce the impact of COVID-19 outbreak conditions on businesses, workers, customers, and the public.”  Employers are encouraged to use the Guidance to “help identify risk levels in workplace settings and to determine any appropriate control measures to implement.”

In contrast to the abundance of misinformation and confusion on this topic, OSHA’s COVID-19 Guidance provides clear and meaningful information regarding symptoms, how the virus spreads, the impact of a workplace outbreak, and most important steps employers can take to reduce risk of employee exposure.  In addition to recommendations applicable to all workers, the Guidance usefully provides recommended control measures specific to low exposure risk jobs, medium exposure risk jobs and high exposure risk jobs.

OSHA’s COVID-19  Guidance is a helpful resource that should be a part of every employer’s planning efforts. If you have any questions regarding your compliance with the Act, please do not hesitate to contact McNees’ Labor and Employment Group.

Federal government contractors will need to be aware of the Fair Chance Act, a recently enacted statute that is scheduled to go into effect on December 20, 2021.  The Act is a “ban-the-box” law that prohibits covered employers from inquiring about an applicant’s criminal history in the early stages of the hiring process.  The Act prohibits the federal government and federal contractors from requesting criminal history information until job applicant is made a conditional offer of employment.

The purpose of the law is to give individuals with prior criminal convictions a better opportunity at obtaining employment by deferring inquiry into their criminal history.

The Act implements a progressive disciplinary policy for violators of its prohibitions.  A federal contractor’s first violation will result in a warning.  Any subsequent violations could result in the suspension of payments owed under the relevant government contract.  Likewise, an individual making a hiring decision for a federal agency who violates the Act will receive a warning that is filed in the employee’s official personnel record file.  Subsequent violations could lead to suspensions and civil penalties.

There are exceptions to the Act.  For example, if the position is related to law enforcement and national security duties, requires access to classified information, or requires a criminal history investigation pursuant to law, then a pre-offer criminal history inquiry is permitted.

Ban-the-box laws affect many parts of the hiring and employment process.  Federal contractors and federal agencies should review and revise their hiring practices, application forms, policies, and procedures to ensure compliance.  If you have any questions regarding your compliance with the Act, please do not hesitate to contact McNees’ Labor and Employment Group.

According to the Centers for Disease Control and Prevention (CDC), the Coronavirus, or COVID-19 as it has been named, is a respiratory illness that can spread from person to person.  COVID-19 is a novel coronavirus that was first identified in late 2019 during an investigation into an outbreak in Wuhan, China.  Cases of coronavirus have passed 100,000 globally, with a significant number of reported and confirmed cases in the US. The most common symptoms of the virus are fever, tiredness, dry cough, aches and pains, nasal congestion, runny nose, sore throat or diarrhea.

All employers need to consider how best to limit the impact of COVID-19 on their business and protect their employees.  The CDC has published Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), which include the following guidance.

  • Emphasize staying home when sick. Require sick employees to stay home until free of fever, signs of a fever, and any other symptoms for at least 24 hours without use of fever-reducing or other symptom suppressing medicines.
  • Separate sick employees. The CDC recommends that employees who appear to have flu-like symptoms upon arrival to work or become sick during the day should be separated from other employees and sent home immediately.
  • Emphasize Measures to Prevent Spread. Encourage good respiratory etiquette (covering your mouth and nose with your elbow when you cough or sneeze) and hand hygiene by all employees – place posters on proper hygiene around the workplace, provide tissues and no-touch disposal receptacles; instruct employees on effective hand sanitation; and ensure adequate supplies of alcohol-based hand sanitizer.
  • Perform routine environmental cleaning.
  • Consider limiting all non-essential business travel and using Skype or web-based meetings as an alternative.
  • Monitor and plan for increased employee absence due to illness of the employee or their family members, or potential exposure or school closings.
  • Review available occupational health resources on a regular basis. Closely monitor daily updates from public health officials as up-to-date information is key due to the rapidly evolving situation.  The main sources of information can be found at eeoc.gov, www.cdc.gov, and www.osha.gov.

The continued spread of this virus internationally and in the US has created a number of practical and legal issues for employers to consider, including the following:

What can employers do to limit the likelihood of exposure to the virus?

Employers may choose to limit work-related travel and restrict visitors to the workplace, and they may require that employees who exhibit flu-like symptoms stay at home or go home if they have reported to work.  Additionally, if an employee has been out of the office due to an illness or quarantine, an employer can require that the employee provide a doctor’s note certifying their fitness to return to work, or other verification that he or she has been symptom free for at least 24 hours.

In order to provide greater distancing and limit potential exposure, employers may want to consider flexible work policies, such as work from home, flexible work hours, or staggered shifts.  If telecommuting will be permitted, businesses should ensure that information technology systems are sufficient to permit increased usage of remote access.

Employers can require employees who have traveled to key affected areas, for personal or business reasons, to stay home for a certain period of time (up to 14 days).

How does the Americans with Disabilities Act (ADA) affect an employer’s Coronavirus preparation and response?

The ADA prohibits discrimination in the workplace against employees and applicants with disabilities and requires employers to provide reasonable accommodations when necessary.  The ADA also limits the type of medically related inquiries that an employer can ask of an applicant or employee, and imposes strict confidentiality requirements relating to any medical information that is obtained.  A medical inquiry or examination during employment is permissible only if it is job-related and consistent with business necessity.  If an employer has a reasonable belief based on objective evidence that an employee will pose a direct threat to other employees due to a medical condition, then medical inquiries concerning that condition will be job-related and consistent with business necessity.  According to the Equal Employment Opportunity Commission (EEOC), taking an employee’s temperature to determine if he or she has a fever is an example of a medical inquiry.

The EEOC has issued Guidance on Pandemic Preparedness in the workplace that offers some helpful guidelines for employers, which can be found at https://www.eeoc.gov/facts/pandemic_flu.html. According to the EEOC Guidance, whether the Coronavirus will rise to the level of a “direct threat” under the ADA will depend on it if reaches pandemic levels versus current epidemic levels and the severity of the illness/risk.  Employers who are considering temperature scans or other medical inquiries should consult with labor and employment counsel to ensure that the medical inquiry is permitted under the ADA.

It is also important to emphasize that employers are required under the ADA to keep all medical information received from or about an employee confidential.

How should employers pay employees who are ill or quarantined as a result of the Coronavirus?

Employers may require an employee who needs time off work due to symptoms or potential exposure to the virus to use available paid time off, such as sick leave or vacation.  If paid time off benefits are exhausted, the law does not generally require employees to be paid when not working.  However, before making any salary deduction from an employee who is exempt from the overtime requirements of the Fair Labor Standards Act, employers should ensure that the exempt employee performed no work in the workweek, or that the deduction is otherwise permissible.

The CDC also recommends that employers consider whether current leave and attendance policies are flexible enough to allow employees who have symptoms or have potentially been exposed to the virus, but cannot work from home, to take time off from work.

What other steps should employers take to prepare?

Employers should be ready to implement strategies to protect their employees from COVID-19 while ensuring business continuity.  This is accomplished by developing and implementing a Business Continuity and Disaster Recovery Plan to maintain operations without interruption of vital business functions.  Key issues for employers to consider include:

  • How many absences can the organization handle before business operations are interrupted?
  • How will the business continue to operate during an interruption?
  • What changes can be made to keep the business operating effectively?

Employers should consider establishing a critical incident response team to manage this plan once implemented.  Finally, frequent communication with employees will be necessary to assure them that the business has a plan to keep them safe and keep the business running

If you require support in creating your preparedness plan, or in addressing any specific circumstances that may arise, please do not hesitate to contact any member of the McNees Labor and Employment Group.

Join us on Thursday, March 12, 2020 from 12:00 – 1:00 p.m. for a webinar on Coronavirus Preparedness in the Workplace. Register here.

If your business operates in Maryland, you need to be aware of SB 839, a law that took effect February 29, 2020.  SB 839 prohibits employers with 15 or more full-time employees from asking job applicants about their criminal history prior to the first in-person interview.  Specifically, the law precludes employers from asking applicants whether they have a criminal record or have been accused of a crime.   As a result, employers may no longer ask applicants about their criminal history on a job application or during a phone interview.

SB 839 defines employment as “any work for pay and any form of vocational or educational training, with or without pay.”  This includes “contractual, temporary, seasonal, or contingent work” and work assigned through a temporary or other employment agency.

There are exceptions to SB 839.  For example, an employer may ask about an employee’s criminal history if the employer is required to or is authorized by another applicable federal or state law.  Additionally, prohibition on seeking criminal history information early in the application stage does not apply to employers that provide programs, services, or direct care to minors or vulnerable adults.

The Commissioner of Labor and Industry is authorized to enforce SB 839.  If an employer violates SB 839, the Commissioner will issue an order compelling compliance.  The Commissioner may assess a civil penalty of up to $300.00 for each subsequent violation.

It is important to note that the Act does not preempt local governments from enacting more restrictive ban-the-box ordinances.  For example, Baltimore City maintains an ordinance that prohibits an employer from asking about an applicant’s criminal history until after the employer makes a conditional offer of employment.  This ordinance is more restrictive than the new statewide law.

There are other notable differences between Maryland’s ban-the-box law and the local ordinances, such as the number of employees required to trigger SB 839.  If you operate in multiple counties in Maryland, make sure you are aware of these requirements.

All employers operating in Maryland should take the opportunity to audit, and if necessary, revise their hiring practices, application forms, and policies to ensure compliance with Maryland’s statewide and local ban-the-box laws. If you have any questions regarding your company’s compliance with Maryland’s ban-the-box laws, please do not hesitate to contact McNees Wallace & Nurick’s Labor and Employment Group.

Lately, products containing CBD (from beer to skin cream to oils that can be diffused and vaped) seem to be all the rage.  Why are CBD products suddenly turning up everywhere (your local Sheetz convenience store for example)?  Blame it on the Farm Bill!  The Agricultural Improvement Act of 2018 (otherwise known as the U.S. Farm Bill), removed hemp from the definition of marijuana under the Controlled Substances Act.  As a result, hemp is no longer a controlled substance and, because CBD (which stands for cannabidiol) can be derived from hemp, CBD is arguably legal.

So what is the problem?  Why are people who are using CBD products still testing positive for “marijuana” and why should employers be concerned?

CBD is a chemical compound found in the Cannabis family of plants.  Notably, Cannabis has two main species – the hemp plant and the marijuana plant.  CBD is not believed to have psychoactive properties.  In other words, cannabidiol will not get you high.  The other primary chemical compound found in Cannabis plants is THC (tetrahydrocannabinol).

THC does have psychoactive properties and is known as the compound that causes the “high.” THC is also the compound that is evaluated for drug testing purposes.  One of the main differences between hemp and marijuana is the concentration of CBD vs. THC that each contains.  Hemp, by definition (as noted in the Farm Bill), contains 0.3% or less of THC.  Marijuana, can have THC concentrations of up to 20%.  CBD can be and is derived from both plant species, but for purposes of technical legality, only hemp-derived CBD is legal under the Farm Bill.  To obtain marijuana-derived CBD, in states where marijuana is not legal, an individual would require certification to use medicinal marijuana.

With that mini-science lesson out of the way, what does all of this mean for employers?

Certain CBD products – oils for example – are marketed and sold as dietary supplements that can combat a variety of ailments, for example anxiety and insomnia.  The FDA does not regulate the safety and purity of dietary supplements.  Accordingly, there is no governmental organization confirming that the CBD product contains (or rather only contains) the ingredients contained on the label.  Relative to employer drug testing concerns, there is no governmental organization checking that CBD supplements are actually derived from hemp and do not contain more than 0.3% THC.  Thus, there is a risk that the CBD supplement is not what it says it is and an employee who is “only using CBD,” may nonetheless test positive for marijuana on a drug test.  Indeed, several lawsuits have been filed against CBD manufacturers arguing that products marketed as containing only CBD and being THC free, have resulted in employees failing employer required drug tests.

Accordingly, employees using, or claiming to use, “only CBD” has created a haze of uncertainty for employers and how such claims, which typically follow a positive drug screen, should be handled.

For purposes of employees regulated by the U.S. Department of Transportation (i.e. school bus drivers and truck drivers), the answer is clear.  Last month, the DOT issued a “CBD Notice” stating plainly

The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason.  Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

In issuing this Notice, the DOT referenced cautionary statements issued by the FDA:

The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.”  The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.

So, for DOT regulated drug testing, the answer is clear – CBD is not a get out of jail free card.  Regardless of the alleged reason for the positive test, a positive test for marijuana will be a positive test for marijuana.  Employees in DOT regulated positions should act accordingly.

But what about non-DOT regulated employees?  The answer is not as clear, but there are a few common sense principles that employers can use to address and hopefully diffuse this issue.  First, as we’ve discussed in prior blog posts, employees who are certified under state law to use medical marijuana have certain protections (protection against discrimination, for example).  As a result, many employers have modified their drug testing policies to include exceptions that apply to employees who are certified to use medical marijuana.  Because an employee who is using an over the counter CBD supplement likely is not certified to use medical marijuana, that employee would not be protected by the state medical marijuana act.  Accordingly, employers may want to include a notation in their drug testing policies that the term “medical marijuana” refers only to marijuana that is obtained in accordance with a state medical marijuana program.

Second, employers should remember that employees don’t know what they don’t know.  If an employee does not realize that using CBD oil that he obtained online could jeopardize his employment, he is going to be quite upset when he tests positive for marijuana and is fired.  Accordingly, employees should be advised that there is a risk to using CBD products, that drug testing facilities will not consider alleged CBD use as a legitimate medical reason for a positive drug test and that, if an employee tests positive and does not have a medical marijuana card, the company may treat the positive test as a violation of the drug testing policy.

Finally, employees who question an employer for implementing the above-referenced practices could be directed to the FDA issued guidance on CBD products.

We’ve said it before, and we’ll say it again, if you have not revised your drug testing policy to address the issues created by medical marijuana and CBD, there is no time like the present.  Should you need assistance with your policy revision or with crafting appropriate notices to your employees, do not hesitate to contact any member of the McNees Labor and Employment Group.

On February 26, 2020, the National Labor Relations Board issued a final rule governing joint-employer status under the National Labor Relations Act.  The final rule restores the test that the Board had applied for several decades prior to the 2015 Obama-era decision in Browning-Ferris.  The final rule also provides more clear guidance on the issue, which should be a welcome change for those seeking avoid a joint employer finding in this often shifting and murky area of the law.

The 2015 Browning-Ferris decision issued by the Obama Board vastly expanded the situations in which a franchisor or a source employer could be deemed a joint employer with its franchisee or with a user of a contingent workforce. In Browning-Ferris, the Board held that a joint-employer relationship may be found if two or more entities “are both employers within the meaning of common law, and if they share or codetermine those matters governing the essential terms and conditions of employment,” such as wages, hours, work assignments, and control over the number of workers and scheduling.  The Board further found that a joint employer is not required to exercise its authority to control the terms and conditions of employment, and recognized that control may be “reserved, direct and indirect.”

In December of 2017, the Trump Board decided Hy-Brand Industrial Contractors, and announced that it would return to the prior standard that required proof of a joint employer’s actual exercise of control over essential employment terms, rather than merely having reserved the right to exercise control.

However, in late February 2018, the Board issued an order vacating Hy-Brand based on a determination by the Board’s Ethics Official that one of the three Members who participated in the decision should have recused himself. With that disqualification no Board quorum existed and the decision as set aside.

Then, in September of 2018, the Board issued a notice of proposed rulemaking regarding the standard for determining joint employer status. According to its Annual Performance and Accountability Report, the Board received nearly 29,000 comments on the proposed rules.  After processing those comments, on February 26, 2020, the Board issued its final regulations.  A fact sheet summarizing the final rule is available here.

As the fact sheet indicates, “a business is a joint employer of another employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment.”   Sounds similar, right?  The Board went on to clarify the list of essential terms and conditions of employment as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.  Critically, to be a joint employer, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment.  No longer is indirect and contractually reserved but never exercised control alone enough to find joint-employer status.  The final rule also defines many of the key terms used in the joint employer test.

The final rule certainly offers helpful guidance, and should result in fewer joint employer findings.  The joint employer question is critical for a number of reasons, including exposure to liability under the Act, issues related to unfair labor practice charges, collective bargaining and more.  In recent history, the Board has addressed the joint employer standard in a number of ways, but hopefully, the final regulations, which offer substantial clarity, will really be final, at least for a while.