Update to Philly Drug Testing

Effective January 1, 2022, Phila. Code § 9-5500 now prohibits employers from requiring job applicants to submit to pre-employment drug tests for marijuana use. The ordinance makes it an unlawful employment practice for an employer, labor organization, or employment agency (or agent thereof) to require prospective employees to submit to testing for the presence of marijuana as a condition of employment, with a few exemptions: (i) police officers and other law enforcement positions; (ii) positions requiring a commercial driver’s license; (iii) positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals; and (iv) positions in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency.

DOL Wage Division And NLRB Sign Info-Sharing Pact

The U.S. Department of Labor’s Wage and Hour Division and the National Labor Relations Board entered an agreement to improve information sharing and investigative cooperation while enforcing labor and employment laws, the agencies announced Thursday.

NY Paid Family Leave No Longer Capped

Effective January 1, 2022, the NY Workers’ Compensation Board adopted new regulations for the NY Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.

The regulations initially capped intermittent PFL for employees who work an average 5+ days per week at 60 days. The amendments eliminate the 60-day cap, allowing for additional days of intermittent PFL for employees who work an average of more than five days per week. For example, an employee who works an average of 6 days per week will now be entitled to up to 72 days of intermittent PFL.

OSHA Ends Healthcare ETS

On December 27, OSHA announced it is allowing its ETS for healthcare facilities to sunset but that it would continue to work on a permanent standard for COVID-related hazards.  OSHA formally withdrew the non-recordkeeping portions of the ETS, but the recordkeeping requirements for employers covered under a separate rule which require them to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not would remain in effect.  In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours.

OSHA also reminded healthcare facilities that they continue to have an obligation to protect employees in the workplace under the general duty clause and that “continued adherence” to the terms of the ETS would be the simplest way comply with this obligation.  Although the provisions of the Healthcare ETS no longer have the force of law, best practices would suggest employers continue to implement their COVID-19 plan and other requirements set forth in the Healthcare ETS.

In addition, the FAQ’s for OSHA’s general duty COVID ETS specifically states that if the Healthcare ETS is no longer in effect while the general industry ETS is in effect, some employees working in those healthcare settings may become covered by the general duty ETS. As a reminder, the shot or test mandate covers employers with at least 100 employees and the Supreme Court is set to hear consolidated legal challenges to the general duty ETS on January 7, 2022. 

Written by: Gordon M. Berger, Partner 

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