Fifty years after the Controlled Substances Act was passed and marijuana was deemed illegal under federal law, the legality of marijuana is finally being addressed by Congress, as the U.S. House of Representatives is scheduled to vote this month on a bill that seeks to end the federal law that prohibits marijuana use – a vote on the most comprehensive marijuana reform legislation in U.S. history that could have sweeping implications.
Specifically, the Marijuana Opportunity Reinvestment and Expungement Act (aka the “MORE Act”) intends to de-schedule cannabis from the list of Schedule I controlled substances under the Controlled Substances Act. The Act also intends to expunge many convictions, tax cannabis sales at 5%, invest in grant programs with a heavy focus on social equity, and provide cannabis businesses access to Small Business Administration loans.
The vote in the House arrives roughly a month after five states — New Jersey, Arizona, Montana, South Dakota and Mississippi — voted on Election Day to legalize recreational or medical cannabis. Cannabis is already legal, to some degree, in most U.S. states, and the support for reform is only increasing. Notably, every single marijuana reform measure placed on state ballots in 2020 passed, representing a continuation of the state-level reform movement that has consistently expanded in election after election. As we move into 2021, medical marijuana is now legal in 34 states and the District of Columbia and recreational marijuana is legal in 15 states and the District of Columbia. Staunch activism for marijuana reform also continues to grow in several other states where legislation is expected to be introduced within the next year, including New York, New Mexico, Rhode Island, Missouri, North Dakota, and Florida.
While the MORE Act is expected to pass the House with some bipartisan support, it remains unlikely that Continue reading →
As the U.S. is entering the third wave of COVID-19 as virus cases continue to rise nationwide, employers should not only be aware of their obligations under the federal Families First Coronavirus Response Act, but also recent state laws such as California’s COVID-19 Supplemental Paid Sick Leave and New York State’s COVID-19 Leave Law.
As we have discussed in a prior blog post, the Families First Coronavirus Response Act (FFCRA) requires private employers with 500 or fewer employees to provide paid sick leave generally when an employee is unable to work because the employee is experiencing COVID-19 symptoms or has a bona fide need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available. This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans. Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021. Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials. Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study. The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis. According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November. Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine. An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%. Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.
Can Employers Require Employees to Take the COVID-19 Vaccine?
As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated. Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data. Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.
In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended. Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers. Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).
OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.” In the healthcare industry, for example, mandatory vaccination programs for employees are common. Indeed, several states have laws that require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions). The CDC has long recommended that all healthcare workers get vaccinated, including all workers having direct and indirect patient care involvement and exposure.
While many companies are dealing with the more noticeable effects of the COVID-19 pandemic, wage and hour issues continue to be a concern as they could result in significant financial liability. As a result, it is important to be aware of these new pandemic-related wage and hour issues, including:
Tricky “off the clock” and other wage payment issues for teleworking employees;
Whether teleworking employees need to be paid for “commuting” time;
Whether on-site employees should be paid for health screening time and other safety protocols; and
Exempt/non-exempt issues resulting from employees performing multiple tasks on emergency bases.
At the same time, there are other important wage and hour issues that have changed significantly in 2020, including the new overtime rule, new classification guidance for independent contractors, and new joint employer guidance under the FLSA.
While many companies are dealing with the more noticeable effects of the COVID-19 pandemic, wage and hour issues continue to be a concern as they could result in significant financial liability. As a result, it is important to be aware of these new pandemic-related wage and hour issues, including:
Tricky “off the clock” and other wage payment issues for teleworking employees;
Whether teleworking employees need to be paid for “commuting” time;
Whether on-site employees should be paid for health screening time and other safety protocols; and
Exempt/non-exempt issues resulting from employees performing multiple tasks on emergency bases.
At the same time, there are other important wage and hour issues that have changed significantly in 2020, including the new overtime rule, new classification guidance for independent contractors, and new joint employer guidance under the FLSA.
We want to alert you to a significant COVID-19 development out of the CDC yesterday. Specifically, the CDC just announced a material revision to its definition of “Close Contact.” The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.
Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.
CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility. Here is the CDC’s public notice about the correctional facility analysis. The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.
An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine. Continue reading →
Employers must consider an array of federal, state, and local laws when implementing background checks. Notably, the Fair Credit Reporting Act (FCRA) imposes strict disclosure and authorization requirements that employers must follow prior to obtaining any background check on an applicant or employee, as well as procedural requirements before employers may take an adverse employment action based on the results of the background check. Additionally, various states and municipalities impose restrictions on an employer’s ability to conduct background checks, including when employers may ask applicants about their criminal history and what types of convictions may be considered.
With relatively little fanfare, the State of Maryland recently enacted a law requiring hotels and other places of lodging (with at least 4 guestrooms) to provide beds of certain heights in accessible guestrooms for individuals with disabilities. Of note, providing beds of specified heights in accessible guestrooms is not required by the Americans with Disabilities Act.
This law, titled an “Act for Lodging Establishments – Accessible Rooms for Individuals with Disabilities – Bed Height,” requires each accessible guestroom in a Maryland hotel or other place of lodging to be furnished with a bed that measures at least 20 inches but not more than 23 inches from the floor to the top of the mattress, and has at least a 7-inch vertical clearance under the bed for lift access. Average bed heights tend to be 25 inches or more, while the average seat height of many wheelchairs is 19 inches. So, these new bed height requirements will certainly require some changes.
The new bed height requirements must be met by the following dates:
25% of the beds in accessible guestrooms must meet these requirements by December 31, 2021;
50% of the beds in accessible guestrooms must meet these requirements by December 31, 2022;
75% of the beds in accessible guestrooms must meet these requirements by December 31, 2023; and
100% of the beds in accessible guestrooms must meet these requirements by December 31, 2024.
While hotels and other places of lodging in Maryland continue to try and regroup and adapt in the wake of the pandemic, this is yet another thing that they will have to keep in mind, and another cost they will need to incur. While 25% of the beds in accessible guestrooms do not need to meet these new requirements until the end of next year, this is not something that can be done overnight. So, hotels should begin implementing plans for these new beds in the coming months in order to ensure that the applicable deadlines can be met. Indeed, to the extent that accessible guestrooms are vacant already due to the pandemic and the necessary work can be done safely in accordance with CDC, OSHA, and other applicable guidelines, this might be an ideal time for Maryland hotels to make the necessary changes to avoid disruption, and ensure compliance with the new law.
A recent opinion from a Nevada federal district court serves as a good reminder to those litigating withdrawal liability assessments of the rather mundane issue of burden of proof. Namely, that an assessment of withdrawal liability is presumed correct unless the employer proves otherwise.
The case, Nevada Resort Association — International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 720 Pension Trust v. JB Viva Vegas LP, (D. Nev. 2:19-cv-00499), dealt with the so-called “entertainment industry exception” to withdrawal liability for work performed in the entertainment industry. Section 4203(c)(1) of ERISA provides that in the entertainment industry, a complete withdrawal occurs only if an employer ceases to have an obligation to contribute under a plan, but nevertheless performs previously covered work in the jurisdiction of the plan anytime within five years after its obligation to contribute to the fund ceased.
In September of 2016 the Las Vegas producer of the musical “Jersey Boys” shut down its long-running show. In assessing the producer withdrawal liability, the pension fund determined that the entertainment industry exemption did not apply because, although it had once been, the fund was no longer a fund in the entertainment industry due to the fact that many of the contributing employers’ employees performed work in the convention industry, rather than the entertainment industry. The producer challenged this determination in arbitration.
Employers must consider an array of federal, state, and local laws when implementing background checks. Notably, the Fair Credit Reporting Act (FCRA) imposes strict disclosure and authorization requirements that employers must follow prior to obtaining any background check on an applicant or employee, as well as procedural requirements before employers may take an adverse employment action based on the results of the background check. Additionally, various states and municipalities impose restrictions on an employer’s ability to conduct background checks, including when employers may ask applicants about their criminal history and what types of convictions may be considered.
Fifty years after the Controlled Substances Act was passed and marijuana was deemed illegal under federal law, the legality of marijuana is finally being addressed by Congress, as the U.S. House of Representatives is scheduled to vote this month on a bill that seeks to end the federal law that prohibits marijuana use – a vote on the most comprehensive marijuana reform legislation in U.S. history that could have sweeping implications.
