U.S. DOL Releases Guidance on FMLA Leave and Mental Health

“On May 25, 2022, the U.S. Department of Labor announced that the Wage and Hour Division (WHD) published new Family and Medical Leave Act (FMLA) Guidance. The newly issued Fact Sheet #280 explains when eligible employees may take FMLA leave to address mental health conditions, and new Frequently Asked Questions (FAQs) offer explanations on how to address various scenarios that employers and employees could face in which use of job-protected leave available under the FMLA would be appropriate.”  Full Article

– Epstein Becker & Green PC

NLRB Releases Spring Rulemaking Agenda Forecasting Changes to Joint Employer Standard and Representation Election Procedures

“On June 21, 2022, the National Labor Relations Board (“NLRB”) released its rulemaking agenda for Spring 2022, indicating the Board is considering revisions to two significant and tumultuous topics pursuant to the rulemaking process: (1) the joint- employer standard under the National Labor Relations Act (“NLRA”), and (2) representation procedures, including those relating to blocking charges, voluntary recognition and bargaining relationships in the construction industry.”  Full Article

– Proskauer Rose LLP

Checking Applicant Backgrounds? Be Careful!

“Background checks are a great idea — unless you fail to do them correctly. Mistakes can be costly. One online retailer paid $5 million to settle a class action filed by 454,000 job applicants alleging violations of the Fair Credit Reporting Act (FCRA), a key federal law governing the conduct of background checks. The number of such lawsuits continues to rise: it doubled between 2009 and 2018, and every year since then has marked a new high. There were 5,406 FCRA lawsuits filed in 2021 alone and, based on the 1,500 filed in the first three months of 2022, this year there will be even more. Accordingly, now is the time to take a careful look at your company’s hiring documents and the way you screen potential employees.”  Full Article

– Akerman LLP

You Have Mail (Better Read It): District Court Finds EEOC 90-Day Deadline Starts When Email Received

“If a letter from the EEOC is in your virtual mailbox but you never open it, have you received it? Most of us are familiar with the requirement that a claimant who files an EEOC charge has 90 days to file a lawsuit after receiving what is usually required a “right-to-sue” letter from the agency. This is one of the deadlines that both plaintiff and defense counsel track on their calendars. But when is that notice officially “received” by the claimant — especially in these days of electronic correspondence? In Paniconi v. Abington Hospital-Jefferson Health, one Pennsylvania federal court decided to draw a hard line on when that date actually occurs.”  Full Article

– Bradley Arant Boult Cummings LLP

Metaverse in the Workplace: What Do Employers Need to Know

“Emerging technologies are creating a host of new legal issues for employers. The rise of the metaverse has been one of the most anticipated expansions over the last few years. The metaverse is a virtual world that allows users to interact with each other in simulated environments. The metaverse in the workplace has been expanding rapidly as businesses explore the use of virtual reality and augmented reality to improve workflows and communication.”  Full Article

– Brennan Manna Diamond LLC

Employee Talent Wars Gain Unprecedented Ammunition from Changing Antitrust Landscape

“The labor market has become more challenging for employers following COVID-19, and the need for well-trained, experienced employees far exceeds the supply. In addition to undermining investments in training and professional development, rampant departures are threatening the ability of employers to maintain confidential and proprietary information – including trade secrets. The legal landscape also is affecting the labor market, with enforcement of traditional non-compete agreements by employers becoming more difficult in recent years.”  Full Article

– Holland & Knight LLP

Biden Administration Signals Mental Health Parity Enforcement a Priority with Fiscal 2023 Budget

“The proposed budget reflects a substantial and sustained commitment to ramp up enforcement efforts, with specific funding for MHPAEA audit activity, including $275 million for the DOL over a 10-year period and $125 million for state grants to support their MHPAEA enforcement efforts.”  Full Article

– Akerman

Can Our DCAP Reimburse a ‘Hold-the-Spot’ Fee?

“Although the regulations do not specifically address hold-the-spot fees of the type your participant has asked about, an IRS official has informally commented that a hold-the-spot fee may qualify as an indirect expense if it must be paid to obtain care when the leave is over.”  Full Article

– Thomson Reuters / EBIA

Preventive Care May Be Free, But Follow-Up Diagnostic Tests Can Bring Big Bills

“Under the ACA, many preventive services — such as breast and colorectal cancer screening — are covered at no cost. But if a screening returns an abnormal result and a health care provider orders more testing to figure out what’s wrong, patients may be on the hook for hundreds or even thousands of dollars for diagnostic services.”  Full Article

– Kaiser Health News

TPA’s Administrative Activities and Handling of Plan-Related Funds Did Not Make It a Plan Fiduciary

“The Hi-Lex decision likely made many TPAs uneasy, so they will appreciate that this court has called the Sixth Circuit’s reasoning into question. Plans and TPAs will want to keep an eye on this case. The plan has appealed to the First Circuit, which may reach a different conclusion, potentially leading to a circuit split and consideration of the issue by the U.S. Supreme Court.”  Full Article

– Thomson Reuters / EBIA

CMS Imposes First Price Transparency Rule Penalties

“On June 7, 2022, CMS fined Northside Hospital Atlanta, in Atlanta, Ga., $883,180, and Northside Hospital Cherokee, in Canton, Ga., $214,320. CMS has stated that these fines are due to the hospitals’ failure to have a consumer-friendly, searchable list of standard charges posted in a prominent manner that clearly identified the location of the hospital. CMS further noted that the hospitals failed to include all required services in a machine-readable file, and services weren’t included in a single file, as required by the Rule.”  Full Article

– Husch Blackwell

When Will the Pandemic Be Over for Employer Health Plans?

“As of June 15, 2022: [1] The National Emergency will end on February 28, 2023; [2] The Public Health Emergency will end on October 12, 2022; and
[3] The HDHP/telehealth provision expires on December 31, 2022. HHS has indicated that they will give the public at least 60 days’ notice before the formal end to the Public Health Emergency.”  Full Article

– Foley & Lardner LLP

Employers: Take Steps Now to Prevent Workplace Violence and Protect Employees

“The rise in workplace violence, and violence in general, should prompt employers to consider what they can and should do to protect their employees, customers, and business. It is especially important to do so now, as more and more employers are requiring their employees to return to work in person following the pandemic.”  Full Article

– Akerman

‘That’s So Meta:’ Workplace Harassment Issues in a Virtual World

“With the advent of virtual reality (VR) games, increasing numbers of players can now interact online to play games in a digital environment called a “metaverse.” VR headsets allow the players to immerse themselves in the digital environment, divorced from the tangible, natural world. AR and VR technology is rapidly developing beyond the gaming applications to internal and external business applications.”  Full Article

– State Bar of Wisconsin

EEOC Issues Guidance Addressing How the Use of Artificial Intelligence in Employment Decisions Could Violate the ADA

“On May 12, 2022, the United States Equal Employment Opportunity Commission (“EEOC”) issued technical guidance addressing how an employer’s use of software, algorithmic decision- making tools and AI to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment could violate the Americans with Disabilities Act (“ADA”).”  Full Article

– Mintz Levin

Website Compliance with the ADA: Is Your Company Compliant With the Latest DOJ Guidance?

“While commercial businesses are typically aware of their responsibilities under the Americans with Disability Act (the “ADA” or the “Act”) relative to the maintenance of their physical office spaces and general corporate policies, some businesses have been the recipients of demand letters alleging violations of the ADA based on a purportedly non-compliant website. Financial institutions in particular, as well as other businesses that maintain significant operations through online customer portals, have been the primary focus of these efforts.”  Full Article

– Krieg Devault

Women Leaders Excel in Times of Crisis: Lessons Learned and a Call to Action

“U.S. The pandemic’s negative impact on women in the workforce is unlikely to reverse anytime soon. In the first year of the pandemic alone, 54 million women around the world left the workforce-almost 90% of whom exited the labor force completely. As reported recently in the Harvard Business Review, “[t]he participation rate for women in the global labor force is now under 47%, drastically lower than men at 72%.” Women are currently at their lowest labor force participation rates since 1977. As one commentator recently reported, women are quitting their jobs at a rate 22% higher than men.”  Full Article

– Robins Kaplan

Is “Tenure” a Euphemism for Age?

“The U.S. Court of Appeals for the Fifth Circuit nonetheless found that a manager’s stated refusal to hire “tenured employees” was not direct evidence of age discrimination in this particular case. As the Fifth Circuit explained, comments will constitute direct evidence of discrimination when they are 1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the complained
-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue. If these criteria are not met, such comments are considered “stray remarks” that will not, by themselves, support a claim of discrimination.”  Full Article

– Shawe Rosenthal