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EEO-1 Pay Data Reporting Guidance Published

July 12 - Posted at 8:40 PM Tagged: , , , , ,
The Equal Employment Opportunity Commission (EEOC) released a sample form, instructions and FAQs to help employers submit employee pay data—due to the agency by Sept. 30—sorted by job category, race, ethnicity and sex.

Earlier this year, employers were required to submit EEO-1 Component 1 data that lists employees by job category, race, ethnicity and sex. Component 2 asks for employees’ hours worked and pay information from their W‑2 forms, broken down into the same categories.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file Component 1 of the EEO-1 form. However, only employers with at least 100 employees, including federal contractors, must file Component 2.

The EEOC’s website now provides information employers may need for filing Component 2 data, such as a sample form, an instruction booklet and FAQs for covered employers. The agency confirmed that the Component 2 online filing system will be available July 15, and additional instructions will come soon. The agency also will send login information to covered employers through the U.S. Postal Service and by e‑mail.

Collecting the Data

The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.

Under Component 2, employers must report wage information from Box 1 of the W‑2 forms and total hours worked for all employees, categorized by race, ethnicity and sex, within 12 proposed pay ranges.

“Employers may not use gross annual earnings instead of W-2 Box 1 earnings,” noted Kiosha Dickey, an attorney with Ogletree Deakins in Columbia, S.C., and Jay Patton, an attorney with Ogletree Deakins in Birmingham, Ala.

The report should show actual hours worked by nonexempt employees, an estimated 20 hours worked per week for part-time exempt employees, and 40 hours worked per week for full-time exempt employees.

As with Component 1 data, employers should select a pay period between Oct. 1 and Dec. 31 of the reporting year as the “workforce snapshot period” for Component 2 data, the agency guidance said.

“The only employees whose compensation and hours-worked data must be reported are those full- and part-time employees who were on the employer’s payroll during the workforce snapshot period,” Dickey and Patton explained.

Contentious Component

The federal government initially halted plans to collect pay data so it could review the appropriateness of the revised EEO-1 form under the Paperwork Reduction Act.

The worker advocacy groups that filed the lawsuit said the information would help them evaluate pay disparities and better serve their clients. Furthermore, requiring equal-pay data collection would “encourage companies to identify and correct pay disparities and allow the EEOC to more effectively and efficiently root out and address pay discrimination,” they argued.

Business groups, however, have opposed the requirement. “The EEOC’s pay-data collection rule creates another administrative burden for companies while raising questions about how the data will be used and analyzed,” said Brett Coburn, an attorney with Alston & Bird in Atlanta.

“Employers in today’s environment are acutely aware of the gender wage gap and recognize the importance of ensuring compliance with applicable federal and state requirements,” he said. “Without formal guidance on how the EEOC will assess and publish the data, the only certainty is that this new rule will create opportunities for litigation.”

Compliance Tips

Many feel that HR professionals can and should start preparing for expanded EEO-1 reporting now.

HR professionals should identify where employee pay and hour data are stored and begin gathering that information or figuring out how to extract it, he said.

Once all data is collected, employers should then tackle the task of filling out the actual form and may even want to check with vendors (i.e. HRIS or payroll vendors) to see if they can assist with the process.

Employers will report data through the Component 2 EEO-1 online filing system or by creating a data file and inputting their data in the appropriate fields in accordance with the data file specifications, but the data file specifications have not yet been released.

New Rule Will Let Employees Use HRAs to Buy Health Insurance in 2020

June 14 - Posted at 4:33 PM Tagged: , , , , , , , , , ,

Advocates claim a newly issued regulation could transform how employers pay for employee health care coverage.

On June 13, the U.S. Departments of Health and Human Services, Labor and the Treasury issued a final rule allowing employers of all sizes that do not offer a group coverage plan to fund a new kind of health reimbursement arrangement (HRA), known as an individual coverage HRA (ICHRA). The departments also posted FAQs on the new rule.

Starting Jan. 1, 2020, employees will be able to use employer-funded ICHRAs to buy individual-market insurance, including insurance purchased on the public exchanges formed under the Affordable Care Act (ACA).

Under IRS guidance from the Obama administration (IRS Notice 2013-54), employers were effectively prevented from offering stand-alone HRAs that allow employees to purchase coverage on the individual market.

“Using an individual coverage HRA, employers will be able to provide their workers and their workers’ families with tax-preferred funds to pay all or a portion of the cost of coverage that workers purchase in the individual market,” said Joe Grogan, director of the White House Domestic Policy Council. “The departments estimate that once employers fully adjust to the new rules, roughly 800,000 employers will offer individual coverage HRAs to pay for insurance for more than 11 million employees and their family members, providing them with more options for selecting health insurance coverage that better meets their needs.”

The new rule “is primarily about increasing employer flexibility and worker choice of coverage,” said Brian Blase, special assistant to the president for health care policy. “We expect this rule to particularly benefit small employers and make it easier for them to compete with larger businesses by creating another option for financing worker health insurance coverage.”

The final rule is in response to the Trump administration’s October 2017 executive order on health care choice and competition, which resulted in an earlier final rule on association health plans that is now being challenged in the courts, and a final rule allowing low-cost short-term insurance that provides less coverage than a standard ACA plan.

New Types of HRAs

Existing HRAs are employer-funded accounts that employees can use to pay out-of-pocket health care expenses but may not use to pay insurance premiums. Unlike health savings accounts (HSAs), all HRAs, including the new ICHRA, are exclusively employer-funded, and, when employees leave the organization, their HRA funds go back to the employer. This differs from HSAs, which are employee-owned and portable when employees leave.

The proposed regulations keep the kinds of HRAs currently permitted (such as HRAs integrated with group health plans and retiree-only HRAs) and would recognize two new types of HRAs:

  • Individual coverage HRAs. Employers would be allowed to fund ICHRAs only for employees not offered a group health plan. 
  • Excepted-benefit HRAs. These would be limited to paying premiums for vision and dental coverage or similar benefits exempt from ACA and other legal requirements. These HRAs are only permitted if employees are offered coverage under a group health plan sponsored by the employer.

What ICHRAs Can Do

Under the new HRA rule:

  • Employers may either offer an ICHRA or a traditional group health plan but may not offer employees a choice between the two.
  • Employers can create classes of employees around certain employment distinctions, such as salaried workers versus hourly workers, full-time workers versus part-time workers, and workers in certain geographic areas, and then offer an ICHRA on a class by class basis.
  • Employers that offer an ICHRA must do so on the same terms for all employees in a class of employees, but they may increase the ICHRA amount for older workers and for workers with more dependents.
  • Employers can maintain their traditional group health plan for existing enrollees, with new hires offered only an ICHRA.

The rule also includes a disclosure provision to help ensure that employees understand the type of HRA being offered by their employer and how the ICHRA offer may make them ineligible for a premium tax credit or subsidy when buying an ACA exchange-based plan. To help satisfy the notice requirements, the IRS issued an Individual Coverage HRA Model Notice.

QSEHRAs and ICHRAs

Currently, qualified small-employer HRAs (QSEHRAs), created by Congress in December 2016, allow small businesses with fewer than 50 full-time employees to use pretax dollars to reimburse employees who buy nongroup health coverage. The new rule goes farther and:

  • Allows all employers, regardless of size, to pay premiums for individual policies through a premium-reimbursement ICHRA.
  • Clarifies that when employers fund an ICHRA or a QSEHRA paired with individual-market insurance, this will not cause the individual-market coverage to become part of an Employee Retirement Income Security Act (ERISA) plan if certain requirements are met (for instance, employers may not select or endorse a particular individual-market plan).
  • Creates a special enrollment period in the ACA’s individual market for those who gain access to an ICHRA or a QSEHRA to purchase individual-market health insurance coverage.

The legislation creating QSEHRAs set a maximum annual contribution limit with inflation-based adjustments. In 2019, annual employer contributions to QSEHRAs are capped at $5,150 for a single employee and $10,450 for an employee with a family.

The new rule, however, doesn’t cap contributions for ICHRAs.

As a result, employers with fewer than 50 full-time employees will have two choices—QSEHRAs or ICHRAs—with some regulatory differences between the two. For example:

  • QSEHRA participants who obtain health insurance from an ACA exchange and who are eligible for a tax credit/subsidy must report to the exchange that they are participants in a QSEHRA. The amount of the tax credit/subsidy is reduced by the available QSEHRA benefit.
  • ICHRA participants, however, will not be able to receive any premium tax credit/subsidy for exchange-based coverage.

“QSEHRAs have a special rule that allows employees to qualify for both their employer’s subsidy and the difference between that amount and any premium tax credit for which they’re eligible,” said John Barkett, director of policy affairs at consultancy Willis Towers Watson.

While the ability of employees to couple QSEHRAs with a premium tax credit is appealing, the downside is QSEHRA’s annual contribution limits, Barkett said. “QSEHRA’s are limited in their ability to fully subsidize coverage for older employees and employees with families, because employers could run through those caps fairly quickly,” he noted.

For older employees, the least expensive plan available on the individual market could easily cost $700 a month or $8,400 a year, Barkett pointed out, and “with a QSEHRA, an employer could only put in around $429 per month to stay under the $5,150 annual limit for self-only coverage.”

Similarly, for employees with many dependents, premiums could easily exceed the QSEHRA’s family coverage maximum of $10,450, whereas “all those dollars could be contributed pretax through an ICHRA,” Barkett said.

An Excepted-Benefit HRA

In addition to allowing ICHRAs, the final rule creates a new excepted-benefit HRA that lets employers that offer traditional group health plans provide an additional pretax $1,800 per year (indexed to inflation after 2020) to reimburse employees for certain qualified medical expenses, including premiums for vision, dental, and short-term, limited-duration insurance.

The new excepted-benefit HRAs can be used by employees whether or not they enroll in a traditional group health plan, and can be used to reimburse employees’ COBRA continuation coverage premiums and short-term insurance coverage plan premiums.

Safe Harbor Coming

With ICHRAs, employers still must satisfy the ACA’s affordability and minimum value requirements, just as they must do when offering a group health plan. However, “the IRS has signaled it will come out with a safe harbor that should make it straightforward for employers to determine whether their ICHRA offering would comply with ACA coverage requirements,” Barkett said.

Last year, the IRS issued Notice 2018-88, which outlined proposed safe harbor methods for determining whether individual coverage HRAs meet the ACA’s affordability threshold for employees, and which stated that ICHRAs that meet the affordability standard will be deemed to offer at least minimum value.

The IRS indicated that further rulemaking on these safe harbor methods is on its agenda for later this year.

PCORI Fee Due by July 31, 2019

June 06 - Posted at 2:00 PM Tagged: , , , ,

The Patient-Centered Outcomes Research Institute (PCORI) fee for 2018 is due by July 31, 2019. For groups whose plan year ended December 31, 2018 this will be the final PCORI payment they will have to make. Health plans whose plan year ended after December 31, 2018, but before October 1, 2019, will still have one final PCORI payment that will be due by July 31, 2020. 

The PCORI fee is imposed under the Affordable Care Act (ACA) on issuers of certain health insurance policies and self-insured health plan sponsors to help fund the research institute. The fee amount is based on the average number of covered lives under the policy or plan, and the total (along with the fee) must be reported annually on the second quarter IRS Form 720 (Quarterly Federal Excise Tax Return) and paid by July 31. The fee due July 31, 2019 is calculated as $2.45 per covered life. Plan sponsors must pay the PCORI fee by July 31 of the calendar year immediately following the calendar year in which the plan year ends.

For fully insured health plans, the insurance carrier files Form 720 and pays the PCORI fee. So, employers with fully insured health plans have no filing requirement (but will be charged by the carrier for the fee). Employers that sponsor self-insured health plans are responsible for filing Form 720 and paying their due PCORI fee. For self-insured plans with multiple employers, the named plan sponsor is generally required to file Form 720.

The fee may not be paid from plan assets, so it must be paid out of the sponsor’s general assets. According to the IRS, however, the fee is a tax-deductible business expense for employers with self-insured plans.

IRS Releases Proposed Form W-4 Redesign

June 04 - Posted at 2:48 PM Tagged: , ,
On Friday, May 31, 2019, the IRS released a new proposed design of the IRS Form W-4 to be used starting in 2020.  The goal is to make it easier for employees to calculate accurate withholdings under the 2017 Tax Cuts and Jobs Act.  Employees who already have completed a Form W-4 will not be required to submit a new Form W-4 simply due to the redesign.  However, once finalized, the new Form will be required for employees hired on or after January 1, 2020.  

The IRS expects to release a near-final draft of the 2020 Form W-4 in mid-to-late July to give employers and payroll processors the tools they need to update systems before the final version of the form is released in November.

We will keep you abreast once the finalized form is released by the IRS for use.

HSA Limits Announced for 2020

May 30 - Posted at 8:56 PM Tagged: , , , ,

Late May 2019, the Internal Revenue Service (IRS) announced the 2020 limits for contributions to Health Savings Accounts (HSAs) and limits for High Deductible Health Plans (HDHPs). These inflation adjustments are provided for under Internal Revenue Code Section 223.

For the 2020 calendar year, an HDHP is a health plan with an annual deductible that is not less than $1,400 for self-only coverage and $2,800 for family coverage. 2020 annual out-of-pocket expenses (deductibles, copayments and other amounts, excluding premiums) cannot exceed $6,900 for self-only coverage and $13,800 for family coverage.

For individuals with self-only coverage under an HDHP, the 2020 annual contribution limit to an HSA is $3,550 and for an individual with family coverage, the HSA contribution limit is $7,100.

No change was announced to the HSA catch-up contribution limit. If an individual is age 55 or older by the end of the calendar year, he or she can contribute an additional $1,000 to his or her HSA. If married and both spouses are age 55, each individual can contribute an additional $1,000 into his or her individual account.

For married couples that have family coverage where both spouses are over age 55, each spouse can take advantage of the $1,000 catch-up, but in order to get the full $9,100 contribution, they will need to use two accounts. The contribution cannot be maximized with only one account. One individual would contribute the family coverage maximum plus his or her individual catch-up, and the other would contribute the catch-up maximum to his or her individual account.

More Men Say They Are Uncomfortable Interacting with Women at Work

May 24 - Posted at 4:16 PM Tagged: , , ,

In a recent article released by SHRM,  it states in a recent survey of U.S. adults that 60% of male managers have admitted they are uncomfortable mentoring, working alone with or socializing with a female colleague in light of the #MeToo movement.

That’s an increase of 14 percentage points from last year when SurveyMonkey and LeanIn.org conducted a similar national online poll.

And another SurveyMonkey poll, conducted in March, found that senior men are 12 times more likely to hesitate to have a work dinner with a junior-level female colleague than with a junior-level male colleague and five times more likely to hesitate to travel on business with a junior-level woman.

But women need men’s support to advance in the workplace, according to LeanIn.org, the Sheryl Sandberg and Dave Goldberg Family Foundation.”If fewer men mentor women, fewer women will rise to leadership. As long as this imbalance of power remains, women and other marginalized groups are at greater risk of being overlooked, undermined, and harassed,” LeanIn.org says on its website.

A 2018 Women in the Workplace report from McKinsey & Co. noted that women receive less day-to-day support and less access to senior leaders than men, impeding their career growth. “Employees who interact regularly with senior leaders are more likely to ask for and receive promotions, stay at their companies, and aspire to be leaders,” the report authors wrote.

SHRM Online compiled the following articles from its archives and other respected sources on the importance of men supporting their female colleagues’ career growth. 

Wall Street Rule for the #MeToo Era: Avoid Women at All Cost 

No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings. In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?

Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.
(Bloomberg)  

A Chilling Effect of #MeToo in Academic Medicine 

The movement is scaring off male academics from mentoring women, according to commentary penned by six Canadian scientists—all women working in the fields of medical research and education.
Mentoring in medical circles is a big deal, with academic doctors having a “professional and moral obligation to mentor the next generation of medical professionals,” the commentary says.

Not doing so would have serious consequences on a woman’s career trajectory, said Sophie Soklaridis, the commentary’s lead author and a scientist at the Toronto-based Centre of Addiction and Mental Health. 

“When women are not on the radar, it limits their opportunities for these kinds of advancements.” 
(CBC News)  

Viewpoint: The Number of Men Who Are Uncomfortable Mentoring Women Is Growing 

#MeToo has shaken up the workplace. Good—it needed shaking up. A safer workplace for women is a better workplace for everyone. Still, we have a long way to go before the workplace is truly equal. To get there, we need men to support women’s careers. 

We wish we could say that more men are stepping up for women. In fact, the opposite appears to be happening. This is disastrous. If they’re reluctant even to meet one-on-one with women, there’s no way women can get an equal shot at proving themselves. Instead, women will be overlooked and excluded, which is a terrible waste of talent, creativity, and productivity. It’s not good for business or for anyone. 
(Fortune)   

The Surprising Benefits When Men Mentor Women 

“There are benefits on both sides when men mentor women,” said David Smith, PhD., co-author of Athena Rising: How and Why Men Should Mentor Women (Routledge, 2018). “Women get more raises, they advance faster, and they stay in the organization longer. That’s not because men are better mentors, but because they have positions of influence and power. It’s a numbers game. Men get increased access to information, they build a more diverse and expansive network, and they tend to increase their interpersonal skills.”
(Inc.)  

Putting Humanity into HR Compliance: During #MeToo Movement, Replace Avoidance with Common Sense 

An unfortunate consequence of the #MeToo movement is that some male executives and managers say they now try to avoid female colleagues in the workplace. 

The closed-door meeting that bosses won’t have with their direct reports signals a lack of trust. The business meals that supervisors avoid sharing with lower-level employees result in lost opportunities for mentoring, coaching and developing stronger working relationships. Not traveling on the client visit or business trip impairs a mentee’s ability to build his or her network and gain valuable experience. 
(SHRM Online)  

Advice for Men Who Are Nervous About Mentoring Women 

Many senior male managers reportedly are responding to the #MeToo movement with a better-safe-than-sorry attitude and are pulling back from mentoring women. But if we want more women leaders, we need men in powerful positions to support their ascension. 

Here are five suggestion on how men should approach mentoring in today’s workplace. 
(Harvard Business Review)  

Tips for Managers 

Closing the gender leadership gap is an imperative for organizations that want to perform at the highest levels. Leveraging the full talents of the population provides a competitive advantage; companies with more women in leadership roles perform better, and employees on diverse and inclusive teams put in more effort, stay longer, and demonstrate more commitment. To change the numbers, gender bias and stereotypes have to be understood and counteracted. 
(LeanIn.Org)  

National Mentoring Resource Center 

The National Mentoring Resource Center provides a collection of mentoring handbooks, curricula, manuals, and other resources that practitioners can use to implement and further develop program practices. This growing collection of resources have all been reviewed by the National Mentoring Resource Center Research Board. Most items are directly available for download here or elsewhere online. 
(National Mentoring Resource Center)

An Employer Guide To Navigating Newly Revived No-Match Letters

May 09 - Posted at 3:00 PM Tagged: , , , , , , , , , ,

The Social Security Administration (SSA) recently resurrected its practice of issuing Employer Correction Request notices – also known as “no-match letters” – when it receives employee information from an employer that does not match its records. If you find yourself in receipt of such a letter, it is recommended that you take the following seven steps as well as considering consulting your legal counsel.

Step 1: Understand The Letter

The first and perhaps most obvious step is to read the letter carefully and understand what it says. Too often employers rush into action before taking the time to read and understand the no-match letter. 

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The ABCs Of CBD For Employers

May 03 - Posted at 3:00 PM Tagged: , , , , ,
An increasingly common series of questions employers have been asking of late relate to their employees’ use of CBD. Will use of CBD products impair employees? If an employee or applicant tests positive on a drug test and blames seemingly innocuous use of CBD, what should we do? Should it be permissible to allow use of CBD products in a zero-tolerance workplace?

Before diving into an analysis of these and similar questions, it’s important to get on the same page regarding the substance. Cannabidiol – or CBD – is a chemical found in marijuana and its close relative, hemp. Pure CBD does not contain tetrahydrocannabinol (THC), the psychoactive ingredient found in marijuana that produces a high. 

The most common CBD formulation started as oil, but CBD is also sold as an extract, a vaporized liquid, and an oil-based capsule. CBD-infused beverages are probably the most common CBD product, but use of CBD-based cosmetic and skincare products is surging in both retail stores and online.

Currently, the only CBD product approved by the Food and Drug Administration is a prescription oil called Epidiolex, approved to treat two types of epilepsy. Aside from Epidiolex, state laws on the use of CBD vary. While CBD is being studied as a treatment for a wide range of conditions, including Parkinson’s disease, schizophrenia, diabetes, multiple sclerosis, and anxiety, research supporting the drug’s benefits is still limited. However, the FDA recently announced hearings on the potential lawful use of CBD in cosmetics, food and supplements.

What’s The Difference Between CBD And THC?
The technical explanation regarding the difference between CBD and THC centers around the fact that all cannabinoids – both CBD and THC – interact with specific targets on cells in the body, the CB1 and CB2 receptors. CB1 receptors are found mainly in the brain and are important for learning, coordination, sleep, pain, brain development, and other functions; CB2 receptors are found mostly in the immune system.

CBD has very little effect on both CB1 and CB2 receptors. This is probably why it does not make people high and is not mind-altering; in fact it may even blunt some of THC’s psychotropic effects. Most marijuana grown for recreational use is very low in CBD content, and high in THC. As Medical News Today explained, “CBD is an entirely different compound from THC, and its effects are very complex. It is not psychoactive, meaning it does not produce a ‘high’ or change a person’s state of mind.”

CBD And Impairment
While you should consult with your medical advisor on specific situations, you generally should not be concerned about your workers becoming impaired from CBD use. A 2015 NIH – National Institute on Drug Abuse (NIDA) paper explained why CBD should not impair employees: Different cannabinoids can have very different biological effects; CBD, for example, does not make people high and is not intoxicating. And, there is reason to believe it may have a range of uses in medicine, including in the treatment of seizures and other neurological disorders.

However, that’s not to say that CBD will never present a problem for you. Much about the substance is still unknown, as stated in a 2015 National Institute of Health analysis: “Marijuana has over 500 chemicals in total, including the 100 or so cannabinoids, so we will still be learning about this plant for years to come.”

A particular problem stems from the fact that your workers might not know exactly what else is in the CBD product they are using. Most CBD products are sold as supplements and are not regulated by the FDA, meaning they could also have various other substances mixed in. For example, is Delta 9-tetrahydrocannabinol (THC), the metabolite that makes one high, present? What else could be added to the mix?

A recent study of 84 CBD products bought online showed that more than a quarter of the products contained less CBD than labeled, but that THC was found in 18 products. Research published in The Journal of the American Medical Association revealed that 43 percent of CBD oils tested had more THC in them than labeled.

Positive Drug Tests
This means that one of your workers or applicants might think they are staying on the right side of the law when using a CBD product, but could inadvertently ingest substances that violate your valid drug policies. Barry Sample, the Director of Science and Technology for the drug testing laboratory Quest Diagnostics, recently observed that the government is not ensuring the level of THC remains low because CBD oil is not regulated in the United States. Therefore, he said, “if somebody is using a CBD oil that contains residual THC in it, they very likely could test positive on a urine drug test. Not because of the CBD itself – but because of a contaminant that is in that oil.”

While CBD itself would not report positive for marijuana or marijuana metabolite, if the CBD product used by your employee or applicant contains THC at a sufficiently high concentration, it is possible, depending on usage patterns, that the use of these products could cause a positive urine drug test result for marijuana metabolites. For example, in some states, CBD may contain up to 5% THC.

So what should you do if an applicant or employee tests positive and claims they only used CBD? Unless an employee is using the sole FDA-approved medical product, Epidiolex, a confirmed positive for THC means that the employee has probably ingested THC – even though they may have assumed that a CDB product would not result in a positive test or lead to any sort of impairment. The burden would then be on the employee to prove that they did not ingest THC, and you would need to consider how to respond to such a positive test on a case-by-case basis.

Use At The Workplace
Because the FDA does not regulate CBD products other than Epidiolex, an employee has no guarantee that their supposedly pure CBD product does not contain THC. You should educate employees about this problem and explain that even if they advise you in advance that they are using a CBD product that is not supposed to impair them or create a safety threat, you will have to take action if they later test positive for THC.

Generally, it takes more of a food or drink containing THC to impair an employee or to result in a positive test, but there are no guarantees. Similarly, CBD creams, oils, and cosmetics containing THC would be less likely to result in a positive test result; the research on these products may be too sparse for an employee to risk their employment.

5 Important Takeaways
The five most important things you should keep in mind regarding CBD use and the workplace:
  1. While CBD itself should not contain amounts of THC, to test positive, the CDB supplement used by your worker may actually contain THC, which does impair workers and would violate most drug and alcohol policies.
  2. Individually evaluate each situation of CBD use that comes to your attention. Discuss with your testing provider whether CBD will show up under the drug panel tested if no THC is present. Consult with your labor and employment counsel if you end up considering taking (or not taking) action against an employee or applicant because of CBD use.
  3. In your drug education efforts, explain to employees that almost all CBD products are not regulated by the FDA and they have no meaningful guarantee of what’s in the supplement. In other words, those using CBD products need to know they are using them at their own risk – if THC turns out to be present, they will violate employer policies.
  4. Under a Department of Transportation-mandated interpretation, a positive test for THC will not be excused by the fact that the product was a CBD product or described as medical marijuana.
  5. Finally, three states’ courts have held that their state’s medical marijuana laws require an employer to engage in an accommodation analysis of whether their medical marijuana user should be accommodated. It’s not clear how CBD product use would be treated; you should consult with your employment attorney before taking action in these locations.

FMLA Qualifying Leave Must Be Under the FMLA

May 02 - Posted at 2:00 PM Tagged: , , , , , ,

Employers cannot permit employees to use PTO or other paid leave prior to using unpaid FMLA leave for an FMLA qualifying condition, according to a new Department of Labor Opinion Letter. The Opinion Letter also provides that employers cannot designate more than 12 weeks of leave per year as FMLA (or 26 weeks per year if leave qualifies as FMLA military caregiver leave). 

FMLA-Qualifying Leave Must Run Concurrently With Paid Leave Policies

Under the FMLA, covered employers must provide eligible employees up to 12 weeks of unpaid, job and benefit-protected leave per year for qualifying medical or family reasons (or up to 26 weeks per year for qualifying military caregiver leave). The Opinion Letter addresses the situation where an employee anticipates a leave of absence for an FMLA-qualifying reason and the employee wants to take off more than the 12 weeks allotted under the FMLA by using other available paid leave policies (such as vacation, sick pay, PTO, etc.) at their disposal. Under this scenario, the employee notifies the employer that he or she plans to exhaust an available paid leave policy first for an FMLA-qualifying reason, and then after that time has run out, he or she desires to take the 12 weeks of FMLA leave.
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EEOC Instructs Employers of New Sept 30th Deadline for Reporting Pay Data

April 25 - Posted at 2:01 PM Tagged: , ,
A federal judge announced on April 25th that mid-size and large employers will now have until September 30, 2019 to provide 2018 pay data to the EEOC, instead of the previous deadline of May 31st.

U.S. District Judge Tanya Chutkan accepted the agency’s proposal to make employers submit their 2018 pay data this fall in a bench ruling and also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road.

Judge Chutkan said she accepted the agency’s proposed due date “even though the court harbors its own doubts” about why it would take so long to collect pay data.

The judge gave the agency until April 29 to put a statement on its website informing employers of her decision and until May 3 to decide which second-year dataset (2017 or 2019) to collect. The agency must also give the court a compliance update on May 3 and provide further updates every 21 days after that and must take “all necessary steps” to meet the Sept. 30 deadline, she said.

Judge Chutkan’s decision Thursday ends weeks of stakeholder debate about when to set the filing deadline following her early March ruling reinstating the data collection, which the Obama administration adopted to root out gender- and race-based pay gaps. The form supplements the agency’s long-running collection of employers’ demographic data. Both components apply to all employers with 100 or more employees and federal contractors with 50 or more employees.

The Trump administration rolled back the pay data component in 2017, citing its paperwork burden on employers, among other things. The National Women’s Law Center and the Labor Council for Latin American Advancement challenged this rescission as unfair and poorly reasoned in November 2017 and won summary judgment last month, days before the EEOC started accepting employers’ demographic data for 2018.

The ruling apparently blindsided the EEOC, which said earlier this month it did not have the infrastructure to accept and secure employers’ pay data, but could set a Sept. 30 deadline if it hired a contractor.

Business groups, including the U.S. Chamber of Commerce, likewise claimed to have been taken unaware by the collection’s reinstatement, saying member employers have not kept data in a form transmissible to the EEOC and would need at least 18 months to complete the survey.

Judge Chutkan chided the EEOC for its lack of preparation at a hearing last week on when to set the deadline, saying she did not understand why the agency had not restored a page on its website telling employers how to submit their pay data. She said Thursday it was clear the EEOC never crafted a contingency plan in the event that the plaintiffs won and that the administration’s actions before and since her March order “indicate that the government is not committed to a prompt collection of Component 2 information.”
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