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EMPLOYMENT LAW UPDATE

New rules for wellness programs & marijuana legal in more places

By Mike O’Brien bio

Employment law continues to change rapidly with a change in federal government administration and the continuing pandemic. As manager of a medical office, it’s just one more thing to keep up with. Here are a few recent developments.

 New rules coming for employer wellness programs

On Jan. 7, 2021, the EEOC issued proposed rules related to what incentives employers can offer as part of wellness programs. The new rules come in response to a decision of the U.S. District Court for the District of Columbia that vacated a portion of the EEOC’s previous ADA and GINA regulations. HIPAA allows employers to offer incentives up to 30 percent of the total cost of health insurance to encourage participation in certain types of wellness programs. However, the ADA requires that employee participation in a wellness program that includes medical questions and exams be “voluntary.” Because the ADA and GINA do not define “voluntary,” the new rules propose that, in order to comply with the ADA and GINA, employers may offer no more than a de minimis incentive to encourage participation in wellness programs—with the exception of certain wellness programs that would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations. The public has 60 calendar days from Jan. 7 to submit comments to the EEOC related to the new rules.  See the proposed rules here and here, and see the announcement here.

 The FFCRA has expired . . . sort of

The U.S. Department of Labor’s Wage and Hour Division (WHD) announced additional guidance about protections and relief offered by the Families First Coronavirus Response Act (FFCRA). The FFCRA’s paid sick leave and expanded family and medical leave requirements expired on Dec. 31, 2020.

The Consolidated Appropriations Act (CAA) (2021) extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021.  However, the CAA did not extend employees’ entitlement to FFCRA leave beyond Dec. 31, 2020. So, while employers may voluntarily provide paid sick leave and expanded family and medical leave (and receive tax credits) to employees under the FFCRA through March 2021, as of Dec. 31, 2020, employers are no longer legally required to provide such leave. See the announcement here and the guidance here.

Compensability of travel time between work and telework

On Dec. 31, 2020, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued an opinion letter regarding the compensability of travel time when employees “telework for part of the day and work at the office for part of the day, with sufficient time to perform certain personal tasks in between.” The DOL stated that, where an employer “is not requiring the employee to travel as part of her work,” but instead the employee is “traveling of her own volition for her own purposes during her off-duty time,” the travel time is “off duty” and not compensable. In other words, whether or not travel time between telework and onsite work is compensable depends on whether the employee “has sufficient time in between her telework and office work periods to use effectively for her own purposes.” See the Opinion Letter here.

More states legalize marijuana

Marijuana legalization was on the ballot in five states in the most recent election, and in all five states, it won. In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters approved recreational use. Mississippi legalized medical marijuana. In South Dakota, voters approved both recreational and medical use. Although all marijuana use is still illegal under federal law, 35 states now will allow medical use, and 15 of those states and Washington, D.C. also allow recreational use. The legalization trend doesn’t appear to be reversing course any time soon, so employers should consider revisiting their internal policies and seeking the advice of counsel with any questions or concerns.

Biden nominates Boston mayor for Labor Secretary

President-elect Joe Biden has nominated Marty Walsh, the mayor of Boston, to be the next secretary of the Labor Department. According to the Biden-Harris transition team, Walsh will “usher in a new era of worker power.” While mayor, Walsh has created the “learn and earn” job apprenticeship program and the Office of Financial Empowerment. He is the vice chair of the Cities of Opportunity Task Force at the United States Conference of Mayors and has focused on income inequality. Before becoming mayor, Walsh served in the Massachusetts House of Representatives, where he focused on job creation and worker protections, and defending mental health and civil rights. As head of the Building and Construction Trades Council from 2011 to 2013, he created a program called Building Pathways that has become a model for increasing diversity in the workplace and providing career opportunities for women and people of color. If confirmed, Walsh will face a wide range of issues in the Department of Labor. His past experience might indicate what his priorities and predilections will be in tackling those issues.

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