On May 13, 2022, the Miles & Stockbridge Labour, Employment, Benefits & Immigration practice group presented its twentieth annual Hot Topics in Employment Law Seminar to clients across Maryland and beyond. Topics covered included remote work; tax matters, FMLA, and federal and state vacation laws; and the myriad of issues raised daily with HR professionals, including coronavirus and mental health issues, and more. Here are some highlights:
Hidden Dangers of Remote Working
MegManchester discussed the potential tax implications of remote employees working in other states, including employee income tax withholding requirements, unemployment tax requirements, and tax nexus issues that Employers need to consider when it comes to remote working relationships with employees. Employers should be aware of the potential issues and pitfalls and discuss the various potential employer tax implications that could arise from a remote workforce before approving any remote work policies or specific terms of employment. remote work.
Kathleen Ponton explained that many states have very different wage laws that all need to be considered for remote workers. A few states even require employers to pay for business expenses necessary for remote work, including computers, internet access, and cell phone bills. Generally, employers do not have to pay the full cost, but a reasonable portion. It is recommended that employers consider the elements that employees must use and ensure that they are included in a remote work agreement.
Kirsten Eriksson examined the growing trend of states requiring paid family leave and paid sick leave. Most paid family leave programs are state-sponsored and state-operated, which is akin to unemployment. Often, programs require registering with the state and contributing to state contribution programs. For paid sick leave, be aware that carryover and accrual requirements vary by state, and in most states part-time employees may also be eligible for leave.
Lately, Soufen Zhang covered immigration compliance issues, including H-1B compliance issues related to remote work. Changes in work location may increase the going salary for an H-1B holder and require filing an amended petition with USCIS. Employers are recommended to assess the potential immigration implications before making a decision on any request for a change of workplace.
Emerging federal and state issues
Kirsten Eriksson discussed the impact of using AI for recruitment, as it can help screen candidate resumes and analyze video interviews. However, algorithms are not necessarily free from bias and employers need to be very careful to ensure that the use of AI does not negatively impact protected groups. The EEOC recently released guidance on the risks that AI could discriminate against employees with disabilities. Additionally, a few states have enacted laws to address this issue. For example, under Maryland law, employers are prohibited from using facial recognition technology during pre-employment interviews without the candidate’s consent. We recommend that you check state law to determine what the requirements are where your employees are located.
Sasha Hodge-Wren examined the state’s growing trend to decriminalize or legalize marijuana. Thirty-seven states and DC have legalized medical marijuana and 18 states have legalized it for recreational use. What does this mean for employers? Not much impact. Employers should be aware of all state exceptions for medical use with proper documentation, establish policies for operating/working under the influence, and check no box laws in their jurisdiction. Sasha also covered the growing trend for the state to limit the use of non-compete agreements with low-wage workers and the growing trend to prohibit the use of NDAs or non-disparagement provisions in employment contracts. work based on allegations of sexual harassment.
Rebecca Leaf presented on the law ending forced arbitration of sexual assault and sexual harassment. Under the new federal law, which amends federal arbitration law, employees cannot be compelled to arbitrate sexual assault or harassment claims that arise after March 3, 2022, nor can they be prevented from bringing such claims. claims as class actions, even if they have already executed pre-litigation agreements or waivers to that effect. The law, however, does not prohibit the adjudication of discrimination claims based on sex or harassment claims based on other protected classes. Next, Rebecca outlined the NLRB General Counsel’s ambitious, worker-friendly agenda and discussed some of the highly anticipated rulings and rulemaking that we expect the Democratic majority board to release in the coming months. These expected changes to the NLRB will impact how employers do business in unionized and non-unionized workplaces.
COVID-19 Update: The Current Landscape and Considerations for Employers
Stephanie Baron and Elisabeth room provided an update on the legal environment facing employers in relation to COVID-19. After discussing the litigation landscape and the type of claims employers have faced over the past two years, they provided an update on current state laws requiring paid COVID leave and reviewed the requirements to accommodate employees with or fearing COVID-19. Stephanie and Beth also covered the pros and cons of vaccination mandates and factors employers should consider when deciding whether or not to mandate vaccinations, including the need for religious and/or medical accommodations.
Mental health in the workplace
Suzzanne Decker and Veronique Jackson discussed concerns around mental illness in the workplace and suggested some do’s and don’ts when communicating with employees about mental health issues. They also shared recommended best practices and recent case law regarding engaging in the interactive process, what is considered an essential job function and therefore needs to be accommodated, and when it is appropriate to request a fitness for duty review. . They also discussed nuances related to alcoholism and drug addiction, which are also recognized as mental disorders under the Americans with Disabilities Act.
To finish, Paolo Pasicolan reviewed the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”), which prohibits health plans from limiting mental health benefit coverage more strictly than others physical health benefits. The MHPAEA applies to financial requirements (eg, copayments and deductibles), quantitative processing limits (eg, visit limits), and non-quantitative or “NQTL” processing limits (eg, medical management statements/medical necessity requirements). If the Employee Benefits Security Administration finds a violation, the plan has 45 days to correct it, and violators will be named in a published report and monetary penalties will apply. Audits are expected in 2022 and employers need to be prepared. What should you do? Ask questions if you’re unsure about compliance, ask your admin about NQTL benchmarking, review your benchmarking using the DOL’s self-compliance tool, ensure your plan document reflects the terms outlined in the NQTL and make sure your service agreements cover the NQTL analysis.
For more information and to access the presentation material, please visit the location of the event.
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