august 2018

It May Be Summer But There's Still ICE Outside Your Door

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had served 2,738 I-9 Notices of Inspection (NOIs) to U.S. businesses around the country from July 16-20, 2018, after serving 2450 during its initial service period earlier this year. If you don’t have your calculator out, that means that HSI has now issued almost 5200 NOIs since early October 2017. As if this isn’t concerning enough, HSI also has made 675 criminal and 984 administrative worksite-related arrests.

What does this mean? Clearly, ICE is taking its enforcement very seriously.

What should you do? Take it just as seriously.

Just so we understand all the numbers, fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2,236. Companies may also face additional fines, penalties and forfeitures. Government contractors may face debarment from federal contracts.

In its recent press release, HSI reminded employers about its “three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) to instill a culture of compliance and accountability.” There can be no question that this issue should be at the fore of all employers’ minds.

RLG Takeaway
How can you prepare? Email us for our RLG Cheat Sheet on I-9 compliance and managing a NOI.

When the Americans With Disabilities Act and Pregnancy Accommodations Intersect

A recent decision by the Sixth Circuit Court of Appeals is a good reminder for all employers that the ADA should always be considered when managing pregnancy-related leaves of absence.

In Hostettler v. College of Wooster, the College hired Hostettler to be an HR generalist. At the time, she was four months pregnant and the College decided to give her 12 weeks of FMLA-protected maternity leave – even though she was not yet entitled to such leave. At the conclusion of the leave, Hostettler was unable to return to work on a full-time basis due to severe postpartum depression and separation anxiety that rendered her unable to take care of herself, sleep, walk, and even talk.

Initially, the College allowed Hostettler to work a less than full-time schedule. However, at some point the College decided that they needed someone on a full-time basis. Because Hostettler could not work full time, her employment was terminated.

Hostettler sued claiming, among other claims, that the College violated the ADA by refusing to allow her to continue to work a modified schedule for a limited period of time. The lower court ruled in favor of the College, and Hostettler appealed to the Sixth Circuit.

RLG Takeaway
This case leaves us with a few things to consider:

Pregnancy-related conditions that limit an employee in some way will likely be considered “disabilities” under the ADA.
Evaluate pregnancy-related leaves and requests for a modified work schedule together.
Make sure to engage in (and document) the interactive process with an employee when a pregnancy-related condition is affecting the employee’s ability to do her job.
Review the essential functions of the job to determine if and why full-time work is essential to the job function before denying a request for a modified work schedule.

Just What We Suspected (and Knew) All Along: It's All About the Culture

A recent study by the National Academies of Sciences, Engineering, and Medicine outlines a comprehensive way of looking at sexual harassment within organizations and identifies the strongest predictor of such behavior. Not surprisingly, it has very little to do with individual perpetrators. In fact, just as suspected, the strongest predictor of sexual harassment is the culture of the company ― what the researchers call “organizational climate.” And, it starts at the top. In other words, the ethical and legal tone from the corporate office will set the stage for the corporate culture.

“If employees believe that their organization takes harassment seriously,” notes the study, “then harassment is less likely to happen. … [F]aith in fair treatment acts as a deterrent against bad actors and encourages workers to speak up about harassment ― [which is the] key to keeping bad behavior at bay.” One thing we know is that an organization that does not tolerate harassment or bullying is less likely to have harassment claims.

This report is a must read as it identifies and analyzes the policies, strategies and practices that appear to be the most successful in preventing and addressing sexual harassment in the workplace.

RLG Takeaway
Please email us if you are interested in complementary training on workplace culture, particularly with your C-Suite.

FMLA Forms Expired on July 31, 2018

The U.S. Department of Labor’s (“DOL”) model Family and Medical Leave Act (“FMLA”) notices and medical certification forms expired on July 31, 2018. However, the new model forms have not yet been released. The current FMLA forms were originally due to expire on May 31, 2018, but the expiration date was first extended to June 30, 2018 and then to July 31, 2018.

Every three years, the DOL must obtain approval for continued use of its forms from the Federal Office of Management and Budget (“OMB”). Once the OMB approves the new model FMLA forms, they will be valid through 2021. Employers can continue to use the current forms until the new ones are posted. Expiration dates are located at the top right corner of the model FMLA forms.

We will continue to monitor the DOL’s website and post any further developments on an extension of the current forms or issuance of new ones.

The Gift that is Finally Giving: The NLRB's Guidance Memorandum on Handbooks

On June 6, NLRB General Counsel Peter Robb issued a Guidance Memorandum summarizing how the Regional Offices would now interpret employer rules and policies when considering unfair labor practice charges of interference.

The General Counsel’s Memorandum provides examples of rules and policies that are lawful and directs Regional Offices to stop interpreting ambiguous policies and rules against the interest of the drafting employer. Rather, the Memorandum provides that Regional Offices should evaluate whether a policy “would be” interpreted as prohibiting and thus interfering with Section 7 activity, instead of the former standard, which found that a rule or policy would be unlawful if it “could be” interpreted as interfering.

What does that mean in real terms? That employers can now reinstitute policies and rules which require safe, civil and productive workplaces. It also means that policies will be reviewed under one of three new categories: (1) those that are generally lawful; (2) those that warrant individualized scrutiny; and (3) those that are plainly unlawful. Employers will want to evaluate their policies by these standards – which are extensive and outlined in the Memorandum.

RLG Takeaway
If you’ve updated your handbook in the last year, you should be fine. However, if it’s been more than a year, or if you are in multiple states, you likely need a quick handbook review. Please let us know if you would like a quote to update your handbook. If you would like our RLG Cheat Sheet on the three categories addressed in the NLRB Guidance Memorandum, please email us.

Who Isn't Confused About Medical Marijuana (or Recreational Marijuana) in the Workplace?

Almost every week I get a question on medical marijuana. Currently, 29 states and the District of Columbia have legalized marijuana for medicinal use (and nine have legalized it for recreational use). Yet, marijuana remains illegal under the federal Controlled Substances Act (“CSA”).

Of course, there’s a natural tension between the federal law and state laws – leaving employers confused what they can prohibit, whether they have to provide “reasonable accommodations” to medical marijuana cardholders, and whether they should even test for marijuana at all.

Medical marijuana isn’t like other prescription drugs. For example, physicians are not allowed to prescribe marijuana, they merely can recommend its use. Why are semantics so important here? Because under the CSA, Schedule I drugs cannot be prescribed by anyone. Period. They can only be recommended. While prescription drugs do merit protection under the ADA, medical marijuana is not a prescription medicine. It is an illegal substance, in the same category as heroin, LSD, and ecstasy. Meaning, there is no valid medical purpose. That doesn’t change if a doctor recommends it instead of prescribing it.

As well, the ADA limits the prescription drug exemption to “uses authorized by the Controlled Substances Act…” Does the CSA permit marijuana use? Prescribed, recommended, or any other way? The answer is no. This was made clear mid-2016 when the Drug Enforcement Agency declined petitions to reschedule marijuana. Chuck Rosenberg, DEA Acting Administrator, stated that it will remain Schedule I because it “does not have a currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.” Thus, medical marijuana recommendations are not authorized under the CSA.

To make matters even more confusing, some states, like New York, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada have laws that contain explicit anti-discrimination provisions protecting employees who are medical marijuana cardholders. This puts even more pressure on employers to make the right decision when an employee tests positive.

In Pennsylvania, the medical marijuana law prohibits employers from terminating, refusing to hire, or otherwise discriminating or retaliating against an employee solely because of the employee’s certification to use medical marijuana. However, the Pennsylvania statute is silent about an employer’s obligation to make an accommodation of the use of medical marijuana on the property or premises of a place of employment.

In 2017, a Massachusetts court determined that while prohibiting marijuana use at work may still be enforced, employers are not required to permit on-site use of medical marijuana. However, Massachusetts employers may need to provide a “reasonable accommodation” for an employee’s medical marijuana use limited to off-site, off-hours usage.

There are exceptions, however, even in these states that have legalized marijuana. For example, private employers may implement zero-tolerance and drug-free workplace policies, with the law recognizing the importance of allowing employers to impose and enforce rules that ensure workplace safety.

As it stands now, medical marijuana users are not protected by the ADA. However, marijuana legalization proponents are looking to change that, starting with state-level litigation, and ending with a change to federal laws. On a federal level, legislation has been in Congress, which proposes the removal of medical marijuana as a Schedule I substance. On the state level, employers risk litigation from employees who want their medical marijuana allowed in the workplace and covered by workplace insurance policies. Employers should seek legal advice with a positive marijuana test when it is for medicinal purposes.

RLG Takeaway
What should HR do?

Understand the state law you are operating under;
Assess your testing policy as it relates to marijuana;
Analyze whether you want to test at the pre-employment stage or for reasonable suspicion;
Be consistent in your treatment of employees during this process;
Consider that you may need to engage in the interactive process if there is a positive test result – based on use for medicinal purposes; and
Always analyze whether a reasonable accommodation is warranted.

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.