U.S. embassies and consulates abroad recently suspended issuing any U.S. visas as a result of worldwide technical issues with State Department computer systems. These technical problems cause considerable delays to foreign nationals waiting for their visa to be issued prior to traveling to the United States. The suspension is global, and does not apply to any specific visa category or nationality.
Even In Colorado, Employees May Be Terminated for Medical Marijuana Use In Violation of Company Drug Policy
Posted in Employee Handbooks & Policies, Employment LitigationIn Coats v. Dish Network, LLC, the Supreme Court of Colorado upheld an employer’s decision to terminate the employment of a quadriplegic employee who worked as a customer service representative and who held a state-issued license to consume medical marijuana. Coats, who had been confined to a wheelchair since his teenage years, tested positive for marijuana during a random drug testing conducted by Dish Network, and although he disclosed that he held a state license to consume the drug, Dish Network terminated his employment for violating the company’s drug policy. Coats argued that the termination of his employment was unlawful, where Colorado law prohibits discriminatory personnel actions for lawful off-duty conduct pursuant to the state’s “lawful activities statute,” Colo. Rev. Stat. § 24-34-402.5. Continue Reading
Second Circuit Confirms That Providing “Effective” Reasonable Accommodation Sufficient Under ADA and NYS Law
Posted in Disability, Employment Discrimination Harassment & Retaliation, Employment LitigationIn Noll v. Int’l Bus. Machs. Corp., 13-cv-4096 (2d Cir May 21, 2015), the Second Circuit Court of Appeals addressed the extent to which, under the ADA and New York State law, an employee must be provided with the precise accommodation he or she requests and whether, if the employer offers a different type of accommodation, its failure to engage in a further interactive process suffices to establish a disability discrimination claim. In Noll, the Court found the employer (IBM) did not have a duty to provide the most effective accommodation, but rather simply an effective one, and, given that it offered a reasonable accommodation, did not have a duty to engage in a further interactive process. Continue Reading
OSHA Publishes Guide to Restroom Access for Transgender Workers
Posted in Workplace Safety & OSHAAll employees, including transgender employees, should have access to restrooms that correspond to their gender identity. That’s the takeaway from the Department of Labor’s Occupational Safety and Health Administration’s (“OSHA”) recently published guidance to employers on best practices regarding restroom access for transgender workers.
Court Addresses FMLA’s Overnight Stay Requirement
Posted in Medical & Other LeavesIn order to satisfy the Family and Medical Leave Act’s “overnight stay” requirement, an employee must be in the hospital “for a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge,” according to the federal Third Circuit Court of Appeals. The Court also noted, but did not rule, that at least eight hours would have been an appropriate amount of time under the circumstances to meet the “substantial period of time” requirement. Bonkowski v. Oberg Indus., Inc., No. 14-1239, 2015 WL 2444503 (3d Cir. May 22, 2015). Continue Reading
Supreme Court Rules Against Employer on Religious Accommodation Standard for Job Applicant
Posted in Employment Discrimination Harassment & RetaliationThe U.S. Supreme Court has held that to prevail in a Title VII disparate-treatment (i.e., intentional discrimination) claim, a job applicant need only show that his need for a religious accommodation was a motivating factor in the employer’s decision. An applicant does not need to show that the employer had knowledge of his need for the religious accommodation. EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (June 1, 2015). Continue Reading
DOL Issues New FMLA Forms
Posted in Genetic Information Nondiscrimination Act, Medical & Other LeavesThe Department of Labor has finally issued new FMLA forms. These forms (WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385, and WH-385V) may be accessed from the DOL’s website.
The prior FMLA forms expired well before the new ones were issued this past weekend. The new forms contain the Genetic Information Nondiscrimination Act (GINA) disclosure language that directs medical providers not to provide information about genetic tests, genetic services, or the manifestation of disease or disorder in the employee’s family members. Similar language now exists in other medical certification forms issued by the DOL as well.
The new forms are set to expire 5/31/2018.
Expanded Whistleblower Protections Impact Confidentiality Policies and Agreements
Posted in Employee Handbooks & Policies, Whistleblower & Retaliation ClaimsAll employers should review their confidentiality policies and agreements to ensure adequate protections for whistleblowers in the wake of recent actions by both the Securities and Exchange Commission (“SEC”) and the National Labor Relations Board (“NLRB”). Continue Reading
Employers Face Stricter Requirements when Hiring H-2B Workers
Posted in Immigration Planning & ComplianceIn response to recent litigation that created significant uncertainty around processing of applications for H-2B temporary foreign workers, the Department of Labor and Department of Homeland Security recently issued a federal regulation that changes the application process and assigns employers additional obligations in 2015. Continue Reading
EEOC Has a Limited Duty to Conciliate, Supreme Court Rules
Posted in Employment Discrimination Harassment & Retaliation, Employment Investigations & Audits, Employment LitigationBefore filing suit against an employer, the Equal Employment Opportunity Commission has a duty to notify the employer of the claim and give the employer an opportunity to discuss the matter. But the EEOC has no duty to engage in good faith negotiations with the employer, according to the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC (April 29, 2015). Continue Reading
