APPLIES TO All Employers with 15+ Employees

EFFECTIVE May 12, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

The Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) each recently published guidance on the use of artificial intelligence (AI) in managing job applicants and employees. The EEOC enforces disability discrimination laws with respect to employers in the private sector and the federal government. The DOJ enforces disability discrimination laws with respect to state and local government employers. The obligation to avoid disability discrimination in employment applies to both public and private employers.

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APPLIES TO All Employers

EFFECTIVE May 23, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

Employer arbitration agreements are fairly common in today’s employment relationships with employees. In most federal circuit courts, if an employer delays enforcing an arbitration agreement when a claim is made, the arbitration agreement may not be enforced if the delay harmed the employee. In others, this requirement is not present. In Morgan v. Sundance, Inc., the U.S. Supreme Court sought to resolve the split among the circuit courts. Specifically, the Court stated that arbitration agreements must be interpreted like any other contract, and federal courts cannot create arbitration-specific rules of interpretation based on the FAA’s policy favoring arbitration.

There, an employee brought a class action wage and hour claim in federal court, despite having signed an arbitration agreement at the commencement of employment. The employer defended itself in litigation and waited eight months before seeking to enforce the arbitration agreement. The appellate court evaluated the claim based on the presence of harm to the employee and found none; the employee appealed.

Generally, there is no specific harm requirement under federal law addressing waiver. Courts historically implemented the requirement of harm based on the FAA’s policy favoring arbitration. Ultimately, the Supreme Court said that no such requirement is allowed. Courts cannot create new rules to favor arbitration over litigation. “The federal policy [under the FAA] is about treating arbitration contracts like all others, not about fostering arbitration.”

Action Items

1. Review enforcement of arbitration agreements with legal counsel.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

APPLIES TO All Employers covered by OSHA

EFFECTIVE April 12, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

On April 12, 2022, OSHA released a National Emphasis Program (NEP) on heat illness and injuries for both indoor and outdoor employees. OSHA NEPs are temporary programs that concentrate OSHA resources on specific workplace injuries and illnesses. This new NEP is effective until April 8, 2025, cancellation, or extension by OSHA.

 

When a new NEP is issued, employers should expect greater scrutiny on their workplace practices that combat the injury or illness on which the NEP is focused. The current NEP is designed to prevent heat-related injuries and illnesses, such as heat stroke, heat exhaustion, and falls or cuts that occur during or after heat exposure. Employers with outdoor workspaces in particularly hot areas of the country and employers with indoor workspaces near radiant heat sources, such as iron and steal mills, should expect to receive most of OSHA’s focus while the NEP is in place.

 

The NEP states how employers will be selected for inspections, including:

• Using NAICS codes of non-construction employers, found in Appendix A of the NEP.
• Conducting additional heat-related inspections while OSHA is conducting unrelated inspections, if the health official observes hazardous heat conditions or sees heat-related injuries or illnesses in an employer’s OSHA 300 or 301 reports.
• Expanding inspections where the heat index during the inspection is 80 degrees or higher.
• Coordinating with the Department of Labor’s Wage and Hour Division.
• Following-up after a prior OSHA inspection if an employer was given an other-than-serious recordkeeping violation for failing to record heat-related injuries or illnesses.

 

While the NEP explains OSHA’s new focus on heat-related injuries and illnesses, it unfortunately does not issue any standards employers must meet. To comply, employers must continue to meet OSHA’s General Duty Clause, which requires employers to provide a work environment free from recognized hazards.

Action Items

1. Review existing OSHA logs for heat-related injuries or illnesses.
2. Create a prevention program that addresses heat-related injuries and illnesses.
3. Assign appropriate personnel at each worksite to observe employees for heat-related injuries or illnesses.
4. Inspect job sites and review job duties or positions that could expose employees to extreme heat.
5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

APPLIES TO All Employers with Alabama Employees covered by FMLA

EFFECTIVE July 1, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

Alabama recently adopted the Adoption Promotion Act, which requires unpaid leaves of absence for birth and adoptive parents. Employers covered by the federal Family and Medical Leave Act are required to comply with the Act. Eligible employees are entitled to 12 weeks of unpaid leave, which runs concurrently with FMLA leave. The Act permits leave for:

• The birth and care of a child born to the employee during the first year after the child’s birth; or
• The care of a child placed with the employee in connection with adoption within one year of the placement of the child.

If an employee has already used their allotted FMLA leave, employers are not obligated to provide additional leave under the Act. Intermittent leave is only permitted upon agreement between the employer and employee. Requests for additional family leave due to the adoption of an ill or disabled child must be considered on the same basis as comparable cases of complications in childbirth.

Employers who provide paid leave to employees for birth and care of a child must also provide the lesser of either equivalent paid leave or two weeks paid leave to employees for care of a child placed with the employee for adoption. However, employers are only required to provide paid leave to one of two different eligible employees if both would be using the benefits.

When leave is foreseeable, the employee must provide their employer with at least 30 days’ notice before leave begins. If leave is not foreseeable, notice must be given as soon as practicable. Employers cannot penalize employees for taking leave.

Action Items

1. Review SB 31 here.
2. Have leave policies and practices updated for compliance.
3. Train appropriate personnel on requirements.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase