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Pennsylvania’s Medical Marijuana Act (the “Act”) legalized the use of medical marijuana as of April 2016. Initially, the Act permitted the use of medical marijuana to treat 17 serious medical conditions when certified as such by a properly credentialed healthcare provider. The list included conditions such as cancer, HIV/AIDS, Parkinson’s disease, neurodegenerative diseases, and terminal illnesses. Since 2016, however, the Act’s list of qualifying conditions has expanded and now covers 23 conditions, including anxiety.

At the time that the Act was amended to include anxiety as a covered condition, approximately 19 percent of U.S. adults had experienced anxiety disorders in the prior year. These numbers appear to be on the rise, likely due at least in part to the COVID-19 pandemic. In April 2020, the National Center for Health Statistics partnered with the Census Bureau to implement the Household Pulse Survey, a 20-minute online survey designed to assess the impact of the coronavirus pandemic on mental health. This survey reveals that between April 23, 2020 and July 21, 2020, nearly 32 percent of adults reported symptoms of anxiety disorder. As a benchmark for comparison, the CDC points out that the National Health Interview Survey indicated that only 8.2 percent of adults aged 18 and over reported symptoms of anxiety disorder between January and June of 2019.
Continue Reading Pennsylvania medical marijuana use on the rise in times of COVID-19

Last week, the Paycheck Protection Program Flexibility Act (PPPFA) was signed into law, becoming effective immediately. The PPPFA reforms the Paycheck Protection Program (PPP), which was passed under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and is intended to improve the terms of PPP loans obtained by small businesses to help cover payroll and other costs during the COVID-19 crisis. Certain aspects of the new law, however, may make it more difficult for some businesses to obtain full loan forgiveness.

Employers who received PPP loans after the CARES Act went into effect as of March 27, 2020, soon ran into challenges. For instance, many found that the eight-week period covered by the loan was not enough to provide the financial relief needed to stay afloat. This was particularly true for employers whose businesses were shut down as a result of state orders. Others faced unavoidable reductions to their loan forgiveness amount under the PPP’s reduction rules, based on an inability to return to pre-pandemic workforce numbers by the PPP’s June 30, 2020, deadline.
Continue Reading PPP Flexibility Act – Stretching forgiveness requirements to benefit employers

The Equal Employment Opportunity Commission (EEOC) updated and expanded a Technical Assistance Publication on May 5, 2020, and then again on May 7, 2020, focusing on employer obligations under the Americans with Disabilities Act (ADA) and related laws during the COVID-19 pandemic. The EEOC’s guidance comes as many states are reopening their economies and allowing businesses to admit employees back into the workplace.

The Question-and-Answer format of the updated publication reminds employers of their obligation to continue to provide reasonable accommodations in the workplace, even in the middle of a pandemic. Of particular interest to employers are situations where the worker is already known to have a medical condition that the Centers for Disease Control and Prevention (CDC) has flagged as putting the individual at higher risk for severe illness from COVID-19. The full CDC list is available here, and includes people with moderate to severe asthma, severe obesity, diabetes, and many other impairments. The EEOC’s position regarding the employer’s rights and obligations when returning such individuals to the workplace has two key parts.Continue Reading Returning to work during the COVID-19 pandemic: Employer’s rights and obligations to high-risk workers

On May 4, 2020, Pennsylvania Governor Tom Wolf issued a document titled “Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency” (the Business Guidance or the Guidance). The Business Guidance contains the latest requirements applicable to businesses during Pennsylvania’s Red, Yellow, Green phased reopening approach. These new requirements are directed at businesses already conducting in-person operations during the Red phase, and those businesses preparing to open in-person operations in counties designated in the Yellow phase. The governor’s Process to Reopen Pennsylvania has more information regarding Pennsylvania’s phased reopening approach. Briefly, in counties designated as Red phase, only businesses designated as life-sustaining or that otherwise obtained exemptions are permitted to lawfully operate. In counties designated as Yellow phase, some identified additional businesses may lawfully operate subject to certain requirements. A future Green phase would allow for all in-person business to reopen without special state requirements, subject to general adherence to guidelines in place at that time provided by health authorities such as the federal Centers for Disease Control and Prevention and the Pennsylvania Department of Health (DOH).
Continue Reading Pennsylvania’s governor issues additional requirements for businesses currently authorized to be open

This article supplements our earlier article about the April 15, 2020 worker safety order issued by the Pennsylvania Department of Health (DOH).  The order requires essential businesses in operation in Pennsylvania to implement new workplace requirements, including a mandate for all workers to wear masks.  DOH accompanied the order with a guidance, which was available shortly after issuance of the order.  Unlike the order, the recommendations in the guidance are not mandatory, and are in some ways broader than the requirements of the order.  The order became effective immediately upon its issuance, with enforcement scheduled to begin at 8:00 p.m. on April 19, 2020.

In the days after issuance of the order, various advocacy groups raised a variety of questions about the new requirements.  DOH has now responded with a publication it calls COVID-19 Workplace Safety Questions.  This document is in the nature of Frequently Asked Questions.  The information provided in the more than 50 FAQs is not organized into categories.  This article organizes some of the key points into four categories: masks; definition of “probable” case; temperature screening; and enforcement.Continue Reading Pennsylvania Health Department answers FAQs about worker safety order

On April 15, 2020, the Pennsylvania Department of Health issued an Order that mandates numerous workplace obligations on nearly all businesses permitted to maintain in-person operations in the Commonwealth.  The Order became effective immediately upon its issuance, with enforcement scheduled to begin at 8:00 p.m. on April 19, 2020.

Even if not immediately applicable to businesses that have temporarily suspended operations or have been operating in a remote environment, such businesses nevertheless should heed the Order because the new requirements could remain in place when the Commonwealth turns to “reopening” all Pennsylvania businesses.Continue Reading Latest challenge for essential businesses in Pennsylvania: Immediate compliance with new workplace requirements mandated by the Department of Health

Effective 8 p.m. on April 1, 2020, the Commonwealth of Pennsylvania is under a stay at home order due to the COVID-19 pandemic. Pennsylvania’s stay-at-home order, which encompasses all counties throughout the Commonwealth, prohibits individuals from leaving their place of residence except as needed to access, support, or provide life-sustaining business, emergency or government services. The order is currently slated to remain in effect through April 30, 2020.

This order comes on the heels of Governor Tom Wolf’s March 23, 2020 order, which initially provided for such restrictions in only seven of Pennsylvania’s 67 counties. Over the course of the following week, the original order was amended six times to eventually encompass 33 counties, yet was still limited to areas where community spread was assumed. Now, as the number of confirmed COVID-19 cases throughout Pennsylvania climbs to nearly 6,000, and the number of cases nationally rapidly approaches 200,000, Pennsylvania’s stay-at-home order reaches every county in the Commonwealth.Continue Reading “Staying at home means you must stay home”: Pennsylvania’s governor issues state wide stay-at-home order

On March 27, 2020, the Equal Employment Opportunity Commission (EEOC) posted a pre-recorded webinar called “Ask the EEOC” on its website. The purpose of the webinar was to answer COVID-19 workplace questions arising under the federal employment discrimination laws the EEOC enforces.  Prior to recording the webinar, and in an effort to ensure that the information provided was relevant to common COVID-19 workplace concerns, the EEOC welcomed public submission of questions. The EEOC reported that “almost 500” questions were submitted. Reed Smith submitted 21 questions, all of which had subparts, designed to gain insight on practical questions likely to be of interest to our employer client base. In the 42-minute webinar, 22 questions were answered by three EEOC representatives: Carol Miaskoff, Associate Legal Counsel of EEOC; Sharon Rennert, Senior Attorney Advisor for ADA and GINA; and Jeanne Goldberg, Acting Assistant Legal Counsel for ADA and GINA.

For the most part, the ground covered during the webinar is familiar to compliance-minded employers generally aware of their EEO obligations. A few questions posed and answered by the EEOC generated useful practical guidance. But one simply worded and powerful question – Is COVID-19 a disability under the ADA? – prompted a surprising “that is unclear at this time” answer from the EEOC.

For purposes of this summary, we selected the five questions posed and answered by the EEOC that we believe are of most interest to employers. Those five are Questions 2, 4, 8, 16, and 21. For each of the five, we provide below the question as posed by the EEOC, a summary of its answer during the webinar, and our commentary.Continue Reading “Ask the EEOC” whether COVID-19 is a disability: Its answer may surprise you

On January 12, 2020, the U.S. Department of Labor (DOL) issued its final rule updating and revising its interpretation of joint employer status under the Fair Labor Standards Act (FLSA). The new rule simplifies the FLSA joint employer analysis with a four-factor test for determining whether workers are jointly employed by associated businesses or persons. The DOL’s changes are the first meaningful revisions since the department’s interpretive regulation was issued 60 years ago. According to the department, the purpose of the rule is “to promote certainty for employer and employees, reduce litigation, promote greater uniformity among court decisions and encourage innovation in the economy.” Although application of this final rule is limited to FLSA wage and hour issues, the National Labor Relations Board and the Equal Employment Opportunity Commission are expected to similarly revisit the joint employer analysis in their respective contexts.

History

The new DOL rule replaces an interpretation that had broadened liability for joint employment under the FLSA. In 2016, former head of the Wage and Hour Division David Weil issued guidance that increased scrutiny of situations in which multiple companies might employ workers jointly. In 2017, the DOL rescinded Weil’s interpretation and in April 2019, provided a “Notice of Proposed Rule Making” relating to the joint employer test.   The final rule adopted on January 12, 2020, makes certain changes to and clarifications of the April 2019 proposed version. The rule takes effect on March 16, 2020.Continue Reading DOL makes historic, pro-business changes to FLSA joint employer test

As technology continues to rapidly evolve, so do hiring and recruiting practices. A number of start-up companies have emerged in recent years offering employers the ability to use artificial intelligence (AI) to screen job candidates and determine their employability. These AI-driven recruiting practices, such as those that use facial and voice recognition technologies, are touted as a means of lowering recruiting costs and eliminating bias in the hiring process. But there is growing concern that the use of AI may threaten a job candidate’s privacy and might result in the inadvertent perpetuation of discriminatory hiring practices.

These concerns and others were raised in a recent complaint filed with the Federal Trade Commission (FTC), urging an investigation into one such company’s business practices. The complaint was filed by the Electronic Privacy Information Center (EPIC), a public interest watchdog located in Washington, D.C. EPIC’s complaint challenges the AI-driven recruiting solutions developed and sold by a company called HireVue, which currently has more than 700 corporate customers that use its technology as part of their hiring process.
Continue Reading Tech industry watchdog challenges AI-driven recruiting practices