September 2024 E-Update

Click here to view entire E-Update as a PDF

The ADA Does Not Protect an Employee Who Failed a Drug Test Because of Hemp Use  The use of products containing cannabinoids (CBD) is quite prevalent, with many assuming that it is perfectly legal. What they do not realize, however, is that they can trigger positive drug tests – and that employers may be able to discipline them based on those results. For more, click here.

Federal Appellate Court Upholds NLRB’s Decision Prohibiting Non-Disparagement and Confidentiality Clauses in Severance Agreements  In 2023, the National Labor Relations Board issued a disturbing case applicable to all employers – union and non-union alike – asserting that severance agreements may not contain general non-disparagement or confidentiality clauses.  For more, click here.

Federal Appellate Court Upholds DOL’s Authority to Use Salary Test for Overtime Exemption.  The U.S. Court of Appeals for the Fifth Circuit upheld the authority of the U.S. Department of Labor to define the terms of the overtime exemption under the Fair Labor Standards Act, including the salary requirement.  For more, click here.

Remember that Temporary Conditions Can Still Be Disabilities Under the ADA.  Before the Americans with Disabilities Act was amended back in 2008, the clear rule was that conditions lasting less than 6 months were not considered disabilities. That changed, however, with the ADA Amendments Act – but many employers still (incorrectly) use the 6-month cut-off.  For more, click here.

An Employee Is Not Entitled to Remote Work in Lieu of FMLA to Care for a Child.  The Family and Medical Leave Act provides leave, and not other accommodations, to care for a child, as the U.S. Court of Appeals for the Second Circuit recently confirmed.  For more, click here.

Federal Agencies Partner to “Protect Workers” in Mergers and Acquisitions.  The U.S. Department of Labor, the National Labor Relations Board, the U.S. Department of Justice, and the Federal Trade Commission recently announced a joint “Memorandum of Understanding on Labor Issues in Merger Investigations” based on their shared “interest in protecting American workers and promoting fair competition in labor markets.”  For more, click here.

OSHA’s Proposed Heat Standard Now Open for Comment.   Over a month after announcing the issuance of the proposed heat stress rule, as we discussed in our July 2024 E-Update, the U.S. Department of Labor has finally opened the period to receive public comment.  For more, click here.

U.S. Department of Labor Announces New Tool for Compliant Use of AI. The DOL has partnered with the Partnership on Employment & Accessibility (PEAT) to create a new tool to assist employers in avoiding unintentional discrimination against persons with disabilities when using artificial intelligence in hiring and other decisions within the workplace. For more, click here.

With the upcoming election, we thought that it would be helpful to remind employers with employees in the mid-Atlantic about voting leave laws.  For more, click here.