Wearable Technology and Discrimination
Excerpt from the EEOC:
– A new fact sheet titled “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” released [on Thursday] by the U.S. Equal Employment Opportunity Commission (EEOC) addresses use of wearable technologies in the nation’s workplaces. These technologies can be used to track various physical factors, such as an employee’s location, heart rate, electrical brain activity, or fatigue.
The new fact sheet reminds employers that employment discrimination laws apply to the collection and use of information from wearables. It also addresses the need for employers to provide reasonable accommodations related to wearables.
Employer-mandated wearables, such as watches, rings, glasses, or helmets which collect information about a worker’s health and biometric data may be conducting a “medical examination” as defined by the Americans with Disabilities Act (ADA). If the wearables require employees to provide health information (including in the setting up of the device), the employer may be making “disability-related inquiries.” The ADA limits the use of medical examinations or disability-related inquiries by employers and also requires employers to safeguard medical records.
EEOC on PWFA
Excerpt from the EEOC:
The U.S. Equal Employment Opportunity Commission (EEOC) released new information for health care providers to help their patients obtain pregnancy and childbirth-related accommodations in the workplace under the Pregnant Workers Fairness Act(PWFA).
The PWFA is a new federal law enforced by the EEOC requiring employers to make reasonable accommodations to a qualified employee or applicant’s known physical or mental conditions affected by, related to, or arising out of pregnancy, childbirth, or related medical conditions. A reasonable accommodation is a change in the workplace enabling an applicant or employee to apply for a job, perform their job, or enjoy access to the same benefits and privileges as other employees, such as breaks to drink water or eat, or time off for medical appointments.
Providers may play a key role in helping patients obtain accommodations at work by informing their patients about the PWFA, suggesting appropriate potential accommodations, and providing supporting documentation, if necessary.
If a patient is seeking an accommodation under the PWFA, employers may, but are not required to, seek supporting documents from health care providers in certain situations. The new resource explains the type of documentation that will most likely support the patient’s request.
The new resource includes examples of possible reasonable accommodations, including extra or longer breaks to eat, drink, or use the restroom, changing equipment or workstations such as providing a stool to sit on, changing a uniform or dress code or providing safety equipment that fits, temporary reassignment, light duty or help with lifting, telework, and leave. The resource also provides links to additional helpful resources.
To learn more about the PWFA, visit the EEOC’s “What You Should Know” page and More Resources About the PWFA | U.S. Equal Employment Opportunity Commission; for more information on pregnancy discrimination, visit https://www.eeoc.gov/pregnancy-discrimination.
ACA Trans Health Policy
The Fifth Circuit reversed a Texas court decision that invalidated a federal agency interpretation of the Affordable Care Act's provision on nondiscrimination in healthcare, keeping intact federal policy that prohibits insurers from discriminating against individuals seeking treatment for gender dysphoria.
Tip Credit Rule is No More
In light of the Fifth Circuit’s ruling, the US DOL has decided to withdraw the tip credit rule (a/k/a “80/20 rule”). Summary:
- The rule stated that work which directly supports tip-producing work may only be considered part of an employee’s tipped occupation if that work is not performed for a “substantial amount of time.” Substantial is defined as either exceeding 20% of the worker’s hours during the workweek or performed for a continuous period exceeding 30 minutes.
- US DOL’s withdrawal of the rule is to be published in the Federal Register on December 17. This will reinstate the regulatory text as it existed prior to the rule’s 2021 effective date.
- The Fifth Circuit Court of Appeals vacated the rule in August, holding that it violated the Administrative Procedure Act and applied the FLSA’s tip credit in a manner inconsistent with the text of the law.
- The 2020 rule said employers could take a tip credit for the time a tipped employee spent performing related, non-tipped duties, as long as those duties were performed contemporaneously with, or for a reasonable time immediately before or after, tipped duties.
DHS Permanently Increases Automatic Extension For Certain EAD Renewals
From my immigration partner, Sanford Posner:
The Immigration Service has decided to continue their program of auto-extending EAD work authorization for eligible applicants who file a timely extension request. The Immigration Service made the decision to auto-extend work permission for 540 days. The list of categories for the extension of work permission includes those in the following categories: TPS, Refugees & Asylees, C9 Adjustment of Status, and the spouses of other non-immigrant work categories
No Prive Right of Action for NJ Cannabis Law
New Jersey law does not allow workers to challenge employment actions taken based on marijuana use, a split Third Circuit panel ruled Monday, refusing to revive a worker's lawsuit claiming the employer rescinded a job offer because of a positive drug test.
In interpreting the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), U.S. Circuit Judge Peter J. Phipps wrote, quoting a November 2020 appropriations committee report "At most, the legislative history states that 'an employer would not be permitted to refuse to hire or employ a person, or discharge or take any adverse action against an employee because that person or employee does or does not use cannabis items”.
"But that statement addresses the private rights conferred by CREAMMA; it does not announce a legislative intention to provide a private remedy for their violation," Judge Phipps added, saying the lack of a remedy suggests lawmakers did not intend for a remedy to be available.
FTC Asks Court To Revive Noncompete Ban
The Federal Trade Commission told the Fifth Circuit on Thursday the agency is authorized to make rules like the one that would ban enforcement of most employee noncompetes, arguing that the Texas district court took a "cramped view" of the agency's authority to promulgate rules that define unfair competition methods.
NY Law Reminder
Effective 1/1/25:
- Employers must provide to 20 hours of paid prenatal leave to pregnant employees during any 52-week period, including for an employee to receive “health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.” This leave is in addition to any other leave offered.
- NY Workers’ Compensation Law now allows workers to file claims for mental injury based on work-related stress.
- The employee-side contribution under the NY Paid Family Leave increases from .373% to .388% and the maximum weekly benefit amount will increase from $1,151.16/week to $1,177.32 /week.
Some New Laws Effective 1/1/25 (handbook update alert!)
WA: SB5793 Paid sick leave may be used when an employee’s child's school or place of care has been closed for health-related reasons or public emergency. It also expands the definition of family member.
PA: HB1633 (The Fair Contracting for Health Care Practitioners Act) bans certain covenants, including patient nonsolicitation provisions, between an employer and health care practitioner if the covenant is for more than one year or the health care practitioner was “dismissed by the employer.”
NY: AB A08805C requires New York employers provide up to 20 hours of paid leave for pregnant employees to attend prenatal medical appointments and procedures.
NH: HB 1336 Prohibits employers who receive public funds from prohibiting employees from storing a firearm in their personal vehicle while entering or exiting the employer’s property or in a locked vehicle parked on the employer’s property. Prohibits all employers from (1) requiring an employee to disclose whether they are storing a firearm or ammunition in their vehicle; or (2) searching an employee's vehicle for a firearm or ammunition. Limits employer liability for economic loss, injury, or death involving a firearm or ammunition stored in compliance with the new law.
KY: SB 47 allows employers to establish policies and procedures to limit the use of cannabis in the workplace, including a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
IL: SB 508 adds protections for individuals flagged by an employment eligibility verification system, including federal E-Verify, as having identification discrepancies. Prohibits an employer from imposing work authorization verification or re-verification requirements greater than those required by federal law and requires an employer to provide certain notices to employees.
IL: SB 3310 Increases the statute of limitations for filing a discrimination or harassment complaint under the Illinois Human Rights Act from 300 days to two years after the civil rights violation was allegedly committed.
DE: SB 1 (The Healthy Delaware Families Act) previously created a statewide paid family and medical leave insurance program funded through employer and employee contributions. Beginning January 1, 2025, employers participating in the state plan must remit employer and employee contributions to the state.