Employment Arbitration Bill Passed in House

On February 7, 2022, the U.S. House of Representatives passed a bipartisan bill (“Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”), which would prohibit “mandatory arbitration” in sexual assault and harassment cases arising or accruing on or after the date of enactment.  This bill also invalidates joint, class, or collective action waivers pertaining to sexual assault and harassment claims.  If signed into law, employers will have to remove these clauses from their arbitration and/or employment agreements and, if a claim arises, litigate these types of cases before a jury in state or federal court. There is a similar bill pending in the Senate.

DHS Looking Permanent Remote I-9 Verification

On Mary 20, 2020, DHS announced that employers with remote employees due to the pandemic could inspect the form I-9 documents virtually and comply with the physical inspection requirement within three days of an employee returning to the workplace. DHS recommended methods such as fax, video-link or email.

But, with some workers not having home access to fax machines or computers with scanning capability, employers and employees starting use smartphones, relying on video calls and scanning apps to comply.

The remote rule is set to expire on April 30th, but could be extended or a permanent remote option may be put in place.

House Passes Bill Barring Sexual Harassment Arbitration

The House on Monday passed a bipartisan bill that would block employers from making workers arbitrate sexual harassment and assault claims. The Senate is expected to pass its own version soon.

Now is a good time for you to have your arbitration agreements reviewed!

CA Adds More Paid COVID Leave For Workers

California’s legislature on Monday passed a bill that would again give workers COVID-related time off. The bill applies to employers with 26 or more employees and covers time taken off between Jan. 1 and Sept. 30. Workers can use 40 hours of paid leave for a variety of COVID-related reasons, including COVID symptoms, vaccine appointments, or caring for a family member with COVID or a child whose school or place of care is closed due to COVID.

MS Passes Medical Marijuana Law

The “Mississippi Medical Cannabis Act” permits the use of medical cannabis to treat certain debilitating medical. The law was February 2, 2022.

These type of laws always pose questions for employers (and their drug testing policies). Fortunately:

  1. Employers are not required to permit or accommodate the medical use of medical cannabis, or to modify any job or working conditions or any employee who engages in the medical use of cannabis, or seeks to engage in the medical use of cannabis;
  2. Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment as a result, in whole or in part, of that individual’s medical use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis;
  3. Employers are not prohibited from establishing or enforcing a drug testing policy;
  4. Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.
  5. The law does not interfere with, impair or impede any federal requirements or regulations such as the U.S. Department of Transportation’s drug and alcohol testing regulations;
  6. The law does not permit, authorize or establish an individual’s right to commence or undertake any legal action against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis;
  7. Employers and their workers’ compensation carriers are not required to pay for or to reimburse an individual for the costs associated with the medical use of cannabis;
  8. The law does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code Section 71-3-201 et seq.;
  9. The law does not affect, alter or otherwise impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code Sections 71-3-7 and 71-3-121;
  10. The law does not authorize an individual to act with negligence, gross negligence, recklessness, in breach of any applicable professional or occupational standard of care, or to effect an intentional wrong, as a result, in whole or in part, of that individual’s medical use of medical cannabis;
  11. The law prohibits smoking and vaping medical cannabis in a public place or in a motor vehicle;
  12. The law prohibits operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motor boat or other conveyance in a manner that would violate state or federal law as a result, in whole or in part, of that individual’s medical use of medical cannabis; and,
  13. The law does not create a private right of action by an employee against an employer.

Written by: Gordon M. Berger, Partner

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