Medical marijuana: Deal or no deal in a drug-free workplace?

Boardrooms and courtrooms are getting fired up about whether doctor-prescribed marijuana has a place in corporate America. So far, the answer is “no.”

In cases where employees have challenged the boundaries surrounding the use of medical marijuana, the courts have sided with the employers. Although medical marijuana is legal as a prescription painkiller in 14 states, it is illegal under federal law. Plus, there’s the bigger issue of employees coming to work impaired and posing a safety risk.

This position is getting a rise out of medical marijuana advocacy groups, however. They view an employee’s marijuana-based treatment as a private medical matter, and any adverse action against the employee as discrimination.

Several lawsuits are still pending, so the issue is far from being settled. In the meantime, employers operating in states where medical marijuana is legal would be wise to monitor future court rulings and, if necessary, tailor their drug policies accordingly.

Get the facts on legal drug testing, and reinforce your company’s drug-free position with eye-catching posters and drug-screening tests.

New FMLA ruling permits child-care leave for same-sex domestic partners

On Tuesday, June 22, the Department of Labor (DOL) issued a new interpretation of the Family and Medical Leave Act (FMLA) clarifying that employees are entitled to FMLA leave to care for the child of a same-sex partner (for the child's serious health condition, or to bond with a newborn or newly adopted child). The announcement is not a revision to the FMLA, but a new interpretation of the existing law which has always recognized rights of employees acting "in loco parentis" to a child. In short, an employee may now claim "in loco parentis" status if he/she "intends to assume the responsibilities of a parent with regard to a child" and provides "either day-to-day care or financial support for the child."

For the first time, the DOL has stated that this includes children of a same-sex partner even where there is no biological or legal relationship.

Because of this ruling, as many as 100,000 children in 50,000 families will now have access to a second parent’s time for dedicated care. ( As the online article states: “The ruling provides important support for legally vulnerable families at particularly stressful times for families.”

There is no word yet if this new interpretation will impact the mandatory FMLA labor law poster or related HR forms, but we will continue to monitor the situation closely. At this point, it looks like the poster or forms will not be updated because "in loco parentis" has always been included - it's just the underlying definition of that term that has changed. In the meantime, however, you can count on G.Neil to provide expert guidance on the new interpretation, and what it means for your workforce.

Supreme Court: Search of work-issued pager acceptable

In a mid-December 2009 blog post, I talked about a case involving an employee in an Ontario, CA, police department who sent sexually explicit text messages on a work pager. After first warning the employee about the number of texts being sent each month, the employer dug a little deeper and reviewed the actual content of the texts. This set off a heated privacy debate that elevated to the Supreme Court.

Our nation’s highest court recently heard arguments and delivered a unanimous ruling: The police department did not violate the constitutional privacy rights of the employee when it audited his text messages on a city-issued pager.

While Justice Anthony M. Kennedy shared that the court was uneasy fashioning comprehensive legal rules, based on the pace of technological and cultural change, he offered practical insight:

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.” New York Times

Although the Supreme Court’s decision did not address the privacy rights of people employed by private companies, I think it’s safe to say employers have firm legal footing for issuing a policy prohibiting personal use of company equipment – and for prying if they have a legitimate, work-related purpose for doing so.

Reminder: June 21 is NLRA posting deadline for federal contractors

On May 20, 2010, the U.S. Department of Labor (DOL) issued a final rule regarding how non-exempt federal contractors and subcontractors will notify employees of their rights under the National Labor Relations Act (NLRA). The new posting requirement is in response to President Obama’s Executive Order 13496, Notification of Employee Rights Under Federal Labor Laws, issued in January 2009.

Obama’s Executive Order revokes former President Bush’s Executive Order 13201, Notification of Employee Rights Concerning Payment of Union Dues or Fees, that required federal contractors and subcontractors to post notices (commonly known as “Beck” notices) informing employees of their rights to refrain from joining a union.

While some of the language the DOL proposed in August 2009 has changed, the new, broader notice remains focused on pro-union rights for employees. The posting also provides contact information for the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA.

Time to get into compliance!

Federal contractors with prime contracts over $100,000 and subcontracts over $10,000 must properly display the NLRA poster by the June 21, 2010, deadline. This means displaying the poster conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity. Ensure mandatory posting compliance with G.Neil’s NLRA Poster.

One size doesn't fit all: Paid leave benefits vary by industry, occupation and wages

A report by the U.S. Bureau of Labor Statistics (BLS) revealed some interesting findings about paid sick leave benefits, including:

• Access to paid sick leave for private industry employees varied by occupation, ranging from 42% for service workers to 84% for management, professional and related occupations

• 81% of employees earning wages in the highest 25% wage distribution bracket had access to paid sick leave, compared to 33% for employees in the lowest 25% backet

• In private industry, employee received an average of eight days of paid sick leave after one year of service (with small establishments offering an average of six days and large establishments, 11 days)

• The cost of sick leave per employee hour worked in state and local government was $0.81, compared to $0.23 an hour in private industry

• Higher-paying occupations typically incur higher sick leave costs, averaging $0.53 per employee hour worked in management, professional and related occupations, compared to $0.08 for service occupations

As an employer, you are not required by law to provide paid leave benefits for your employees. But to attract and hold on to workers, most employers offer some sort of paid sick leave in their benefit package.

How do your paid sick leave benefits compare to national averages? Are you doing enough with this particular employee perk? To learn more, check out the entire Program Perspectives: On Paid Sick Leave.

House-approved National Defense Authorization Act could lead to FMLA posting change

On May 28, 2010, the House approved the National Defense Authorization Act (NDAA) for Fiscal Year 2011 (H.R. 5136.) The bill authorizes a $726 billion military budget that will, according to House Armed Services Committee Chairman Ike Skelton, “strengthen our national security, provide our men and women in uniform with the tools they need to do their jobs, and take care of our service members and their families.”

Included in the bill is an amendment (H.AMDT.656) that would allow the spouse, children and parents of a deployed member of the Armed Forces to take at least two weeks of unpaid leave from their job, even if they’re not covered under the Family and Medical Leave Act (FMLA).

Check back here for future updates on the NDAA and specifically, any posting changes resulting from this amendment. Poster Guard® Compliance Protection guarantees posting compliance with automatic replacements every time a mandatory law changes.

What's up with downsizing?

The recession-battered economy has experts wondering what’s next for the job market. Are companies stabilizing – and can employees rest easier that their jobs will still be there tomorrow? Well, that depends on who you talk to.

According to a recent online poll by Right Management, half of the 426 senior HR executives who responded expect their organizations to restructure in the next six months. One in five executives anticipates a change in leadership.

Other changes the HR professionals foresee in the near future include:

Acquisition or merger – 13%
New product launch – 10%
New technology – 6%

While not all of these changes mean job cuts for employees who live in fear of the dreaded “pink slip,” they certainly don’t point to smooth sailing in the coming months, either.

“Although the economy shows certain signs of improvement, it seems likely that more corporate upheaval is ahead,” says Michael Haid, senior vice president of global solutions at Right Management. “The current atmosphere remains unsteady and anxiety is still widespread.”

At the same time, however, employees are much more tuned into what’s happening around them. Their radar is up, and they’re not na├»ve about how quickly things can change in corporate America.

“Employees are surely listening carefully to what their top management is saying, how the company is performing and the kind of announcements being made,” says Haid.

New posting requirement now in effect for federal contractors and subcontractors

On May 20, 2010, the U.S. Department of Labor (DOL) issued its final rule regarding how federal contractors and subcontractors will notify employees of their rights under federal labor laws. This was in response to President Obama’s Executive Order 13496 in early 2009, requiring federal contractors to post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA).

The new notice replaces the “Beck notice” posting requirement under the Bush administration. While some of the language the DOL proposed in August 2009 has changed, the notice remains focused on pro-union rights for employees, including:

=> The right to organize a union to negotiate wages, hours and other working conditions
=> The right to discuss union terms and conditions with coworkers
=> The right to take action with coworkers to improve working conditions, such as raising work-related complaints with you, the employer, or a government agency

Ensure mandatory posting compliance by the June 21, 2010, deadline with the NLRA Poster.


Automatic health care enrollment kicks in for large employers

Under the Patient Protection and Affordable Care Act, employers with more than 200 full-time employees must automatically enroll new employees in one of their health benefit plans and continue the enrollment of current employees.

Keep in mind, however, that the automatic enrollment provision needs to include ample notice – and a chance for an employee to opt out of the coverage and choose another option (or opt out altogether). Automatic enrollment may be subject to a legal waiting period, too.

Like with auto-enrollment in 401(k)-type plans, this change is expected to increase participation in employer-sponsored health care plans and ensure coverage for more Americans.

Check back here for future updates on this and other health care reform requirements.

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