Opioid Guidance, Lactation Breaks, and Liability Shields: Recent Employment News You Might Have Missed

Bradley Arant Boult Cummings LLP

Bradley Arant Boult Cummings LLP

In case you missed it, below are a few of the most recent employment law updates that may have gotten lost in the onslaught of the 24-hour news cycle.

EEOC Issues Opioid Accommodation Guidance

While employers have (rightfully) spent recent months navigating the COVID-19 pandemic, another epidemic has quietly continued. Opioid use in the United States has long been considered a public health crisis – and data shows that the stress and uncertainty of the COVID-19 pandemic is actually making the problem worse.

Many employers have to navigate the murky waters of employee opioid use by employees without a lot of guidance. Fortunately, last month, the EEOC released two technical assistance documents addressing opioids: one aimed at employees and the other at healthcare providers. While the first document is written to inform employees of their rights, the documents can provide a helpful roadmap to employers.

In short, use of illegal drugs is not a covered disability under the Americans with Disabilities Act (ADA). However, an employee is covered by the ADA’s non-discrimination provisions if the employee is:

  1. lawfully using opioids,
  2. in treatment for opioid addiction and receiving Medication Assisted Treatment (MAT), or
  3. has recovered from an addiction.

The key takeaway here is that if your employee’s opioid use is legal (and falls into one of the above categories), you should consider if the employee can do the job safely and effectively with or without a reasonable accommodation before taking any action to remove the employee from the position. Read the full Q&A from the EEOC here.

North Carolina Bans the Box for State Employers and Joins the Bandwagon

On August 18, 2020, North Carolina Gov. Roy Cooper signed Executive Order 158 to implement “ban the box” policies at state agencies. Among other things, the order requires that state agencies remove criminal history questions from employment applications and not ask questions about criminal history during hiring.

For private employers, the new law requires the N.C. Department of Administration to conduct a study on the feasibility of “implementing a fair chance hiring policy that would extend to businesses that contract with the state.” The order will be implemented November 1, 2020. North Carolina joins 35 states and over 150 cities that have at some level banned the box on criminal history questions.

What does this mean for you? Unless you are a state agency in North Carolina, not much… yet. But, if you do business with the state, keep your eye on any expansion of this program (in North Carolina or elsewhere) that may affect private employers who contract with state governments.

Georgia Passes Paid Lactation Breaks

We all know that the FLSA requires employers to provide unpaid lactation breaks to hourly employees in the first year following the birth of a new child. Georgia is taking this a step farther. Georgia House Bill 1090, also known as “Charlotte’s Law,” was signed by Georgia Gov. Brian Kemp on August 11, 2020. The new law requires employers to provide paid lactation breaks and private locations (that are not bathrooms) to employees to express breast milk. Before Charlotte’s Law, employers had to provide unpaid break time to these employees.

If you are in Georgia, start making plans for a “mothers’ room” (if your office does not already have one), and be sure that you are not forcing employees to take paid leave – or unpaid breaks – for pumping.

Tennessee Creates COVID-19 Shield

On Monday, August 17, 2020, Tennessee Gov. Bill Lee signed the Tennessee COVID-19 Recovery Act into law. The law protects businesses from COVID-19 related lawsuits brought by customers, the public, and/or employees. This means that employers are shielded from COVID-19 liability unless a claimant files a verified complaint, pleads specific facts that constitute gross negligence or willful misconduct, consults with a physician, and files a certificate of good faith. The law does not hinder employees from filing workers’ compensation claims or complaints about workplace safety (so OSHA complaints and investigations are still in play).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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