Employment Law Updates

Part of the Patient Protection and Affordable Care Act (PPACA) involves preventive care and wellness. Prior to the PPACA, company wellness programs such as smoking cessation or weight loss programs have been limited by restrictions of the Americans with Disabilities Act and HIPPA. As guidance to the PPACA, the U.S. Department of Labor (DOL) has issued  concerning how employers can structure and operate their wellness programs. The programs can include incentive payments and premium discounts. Along with the proposed regulations, the DOL released a research paper, “,” which provides more information about wellness programs.

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The U.S. Department of Labor’s Wage and Hour Division has released an Employee Guide to the Family and Medical Leave Act (FMLA), a 16-page, plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides. Although the booklet is entitled “Employee Guide”, it contains some valuable basic information for employers. The Guide can be accessed on the Wage and Hour Division’s website: CLICK HERE.

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The Equal Employment Opportunity Commission (EEOC) has issued a new guidance concerning the use of criminal background checks in the employment application process. The EEOC has cautioned employers in the past about the use of criminal background checks to automatically disqualify employment applicants, because of its potential discriminatory impact on certain minority groups. The new guidance discourages blanket exclusions of applicants who have been convicted of crimes, and encourages the use of “individualized assessments” to determine whether the exclusion of an applicant because of a criminal record is job related and consistent with business necessity.

The Acting General Counsel of the National Labor Relations Board (NLRB) has issued a third report in its series on social media cases brought to the agency. The report, issued on May 30, 2012, covers seven cases involving employers’ social media policies governing the use of social media by employees. The NLRB found some of the policies to be unlawful, and cautioned that it believes

We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights. Under this rule, most private-sector employers would be required to display a poster in the workplace, plus post the notice on an employer’s Intranet if that is where they normally display workplace policies.

The Equal Employment Opportunity Commission has issued two revised guides concerning the rights of veterans with disabilities under the Americans with Disabilities Act. These revised guides reflect changes resulting from the ADA Amendments Act which makes it easier for veterans with service-connected disabilities to receive reasonable accommodations that will allow them to work. The revised guide for employers explains how legal protections for veterans with disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act and how employers can prevent disability discrimination. It also includes information for employers about the process of hiring veterans, including organizations that can assist employers in finding qualified veterans for jobs and determining accommodations in the hiring process.

We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights. NLRA-covered employers would have been required to display a poster in the workplace by November 14, 2011, plus post the notice on the employers’ Intranet if that is where they normally displays workplace policies. Most private-sector employers are covered by this new rule.

If your company has drivers of commercial motor vehicles (CMV), you should be aware of the final DOT rule which restricts the use of hand-held mobile phones by those drivers while driving the CMV’s. The rule goes into effect on January 3, 2012, and prohibits dialing a number and other hand-held uses of a cell phone, but allows certain hands-free uses. Details of the new rule can be found on the DOT website.

We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights. NLRA-covered employers would have been required to display a poster in the workplace by November 14, 2011, plus post the notice on the employers’ Intranet if that is where they normally displays workplace policies. Most private-sector employers are covered by this new rule.

The EEOC recently issued an opinion letter warning employers that retaining personal and occupational health information in a single electronic record runs the risk of violating the Americans with Disabilities Act (ADA) or the relatively new Genetic Information Nondiscrimination Act (GINA). Although employers have a right to obtain an employee’s health information under certain circumstances, those laws strictly limit the access to that information and the employer’s right to disseminate the information. For example, medical information that an employer might gather in connection with an employee’s FMLA leave request should not be made available to a workers’ compensation insurance carrier if the comp claim is unrelated to the medical condition underlying the FMLA leave request. Employers must be careful to segregate health information in separate files (paper or electronic) to avoid improper dissemination of the information.

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The Virginia General Assembly this session passed a law which has been signed by the Governor, requiring most state contractors to use the federal E-Verify program to check the immigration status of their employees. E-Verify is an Internet-based system that allows employers to check the eligibility of an employee to work in the United States. It combines databases of the Department of Homeland Security and the Social Security Administration.

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