Employment Law Updates

Employers who provide health insurance coverage for their employees should be aware of the Medicare Secondary Payer (MSP) rules that are often misunderstood.  The MSP rules are designed to shift costs from the Medicare program to private sources of payment (such as employer-sponsored group health plans) in certain situations. The MSP provisions govern the coordination of benefits rules for determining when an employer-sponsored group health plan will pay primary or secondary to Medicare.

Employers often receive subpoenas to produce an employee’s personnel records.  These subpoenas are frequently issued in cases involving divorce, custody or support disputes or personal injury cases, but are used in many other types of disputes.  Employers must be careful, however, because the federal HIPAA law and Virginia Code § 32.1-127.1:03 place restrictions on the dissemination of health or medical records. 

Beware of inadvertently creating FMLA eligibility when none exists! The Family and Medical Leave Act (FMLA) generally provides 12 weeks of protected leave benefits only to certain larger employers.  It only covers employers with 50 or more employees, but there are additional limitations. 

Under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for qualified employees with disabilities. Although recovering drug addicts do have some protections under the ADA, it does not protect illegal drug use. Marijuana remains an illegal drug under federal law, with no exceptions for medicinal use, so its use is not protected under the Act.  Federal courts have generally ruled that the ADA does not require a medical marijuana accommodation.

The Fair Credit Reporting Act (FCRA) requires employers to give a Summary of Rights form to job applicants and employees who have had adverse action taken against them such as not being hired, being disciplined, or being fired based on a background check.  The Bureau of Consumer Financial Protection has issued a revised model summary of rights disclosure notice which must be used effective September 21, 2018. The form is entitled "A Summary of Your Rights Under the Fair Credit Reporting Act" and has been updated to include information about security freezes and fraud alerts, resulting from a federal law passed in May 2018 in response to high-profile data breaches.

Under the Americans with Disabilities Act (ADA), the use of service animals could be considered a reasonable accommodation for a disability. Service animals are usually dogs, but can be other species of animals.

In a case involving The Boeing Company, the National Labor Relations Board (NLRB) overruled one of its prior decisions concerning whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

Among other things, the NLRA protects employees' rights to discuss the terms and conditions of their employment. For example, employees are protected if they discuss their wages with each other.  Under the NLRB’s former standard, a workplace rule was found to be in violation if the rule would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.

The new federal tax law creates a temporary business tax credit for eligible employers who provide paid family and medical leave to their employees. This credit applies to tax years 2018 and 2019, and is calculated based on a percentage of the amount paid to the employees, ranging from 12.5% up to 25%. Even if an employer has fewer than 50 employees and is not required to offer leave under FMLA, the new law allows those smaller employers to qualify for the credit.

Whether a worker is entitled to certain benefits or is covered by a particular law depends on the worker’s classification as an employee or independent contractor.  Government agencies such as the U.S. Department of Labor, EEOC, IRS and National Labor Relations Board (NLRB) do not all use the same test to determine that classification.  In a January 25, 2019 decision, the NLRB changed the test it had been using since 2014.

Until now, in Virginia only government employees had a right to access information in their personnel records. A new Virginia law will now require employers in the private sector to provide current or former employees with copies of certain employment-related documents upon request.

As a general rule, employers may not require employees or job applicants to take a polygraph (lie detector) test. The federal Polygraph Protection Act severely restricts the use of polygraph tests with employees or applicants. The Act prohibits most employers from requiring, suggesting, requesting or causing an employee or applicant to submit to a polygraph test, and further bars employers from requesting, using, referring to or inquiring about the results of any prior such test. In addition, the Act prohibits employers from terminating, disciplining or discriminating against an employee or applicant for refusing to take a polygraph test or for related actions.

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