Tuesday, January 9, 2024

New York’s Governor Vetoes New York Non-Compete Ban

By Ami Patel*

On June 20, 2023,the New York State Assembly voted in favor of Bill No. S03100, which would“[prohibit] non-compete agreements and certain restrictive covenants;[authorize] covered individuals to bring a civil action in a court of competent jurisdiction against any employer or persons alleged to have violated such a prohibition.” The bill then moved to Governor Kathy Hochul, who on December 22, 2023, declined to sign the legislation.

Bill No. S03100defined a non-compete agreement as, “any agreement, or clause contained in any agreement, between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment, after the conclusion of employment with the employer included as a party to the agreement.”

Further, Bill No.S03100 defined those covered individuals as, “any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that they are, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person.” This broad prohibition, if signed into law, would have voided any contract, to the extent a provision restrained a party from engaging in any kind of lawful profession, trade or business.

New York Governor Hochul could not agree with the legislature’s “one-size-fits-all” approach. Had New York signed this bill into law, it would become the fifth state to provide a complete prohibition on non-compete agreements, joining California, North Dakota, Oklahoma, and Minnesota.

While New York decided to protect employers' business interests in protecting confidential and proprietary information for the time being, the Federal Trade Commission continues to contemplate a nationwide ban on restrictive covenants with a decision expected in early 2024.

Recommendations Continuing Forward


Employers should continue to monitor proposed and existing legislation in the states within which they operate, as well as any federal legislation, to forecast any potential issues with their current non-compete and non-solicitation practices. Additionally, employers should assess their current non-compete agreements against any legislation already in place.

*If you have questions relating to the proposed bans of non-compete agreements, restrictive covenants, or any other labor and employment law issues, please contact Zashin & Rich’s Non-Compete/Trade Secret Practice Leader, Ami Patel (ajp@zrlaw.com) at (216) 696-4441.

Thursday, December 7, 2023

Seeing Through the Smoke: Ohio’s Legalization of Recreational Marijuana – Key Info for Companies (8-minute read)

By David P. Frantz & Sarah J. Moore*

Don’t roll out your Issue 2 game plan too quickly!

Action Item 1:

Ohio may pass implementation rules. ZR will provide updates – we welcome you to sign up at zashinandrich@zrlaw.com for our legal alerts so you have them hot off the net!

Training Points

Every supervisor, safety team member, and human resource employee interacting with employees should learn the basics about recreational marijuana to best understand its potential impact in the workplace.

Key facts to impart include:

#1: The Federal Government still classifies marijuana as an illegal Schedule I controlled substance. So, Ohio’s “legalization” of medical marijuana (MM) and now recreational marijuana (RM) does nothing to change the fact that use, possession, sale, transfer, or distribution remains illegal under federal law and can result in federal criminal charges.

#2: Marijuana has two primary types: Sativa (energizes with lower CBD and higher THC) and Indica (relaxes with higher levels CBD with equal or lower THC concentration). Cannabis hybrids typically contain increased THC percentage, with unique CBD-to-THC ratios. The cannabis industry now refers to “chemovars” aka “strains” of marijuana: Type I (high THC); Type 2 (THC/CBD combined); and Type 3 (high CBD). The key takeaway – behaviors will vary depending on the cannabis type consumed.

#3: Recreational marijuana (RM) comes in many different forms – hashish (for brewing or smoking), edibles, and topicals – and can be natural or synthetic. Also, THC concentration levels can vary considerably between RM products. So, managers need to be on the lookout for RM in varied forms, some of which may resemble well-known consumer products. For example, Stoney Patch RM edible packaging resembles Sour Patch candy products.

#4: The human body processes RM forms differently. The lungs absorb smoked or vaped RM directly into the bloodstream. The stomach and liver process RM edibles or drinks. So, when one ingests RM, the effects take longer to appear and have stronger effect than inhaling RM. The “delay” in feeling the effects of edibles may result in a person eating a higher THC concentration and can result in an overdose.

#5: One under the influence of RM (or MM) may exhibit symptoms such as: dizziness; loss of coordination; trouble thinking or problem solving; hallucinations; seizures; anxiety; red, bloodshot eyes; short-term memory issues; tiredness; or hostility.

#6: RM containing natural or synthetic THC can be addictive. One dependent on RM may experience withdrawal symptoms.


Action Item 2:

Provide RM basic training to your management employees as soon as practicable.

Policy Treatment

While Issue 2’s passage legalized RM, it did not require any Ohio employer to alter drug and alcohol policies. Since most Ohio employers had revised their policies after Ohio legalized MM in 2016, little likely needs to be done at this time. That said, companies should confirm to employees that current drug free workplace and drug and alcohol policies remain in full force and effect and that marijuana continues to be prohibited, under policies that prohibit it.


Action Item 3:

Review the company’s drug and alcohol policy to confirm it received updates after 2016 and continues to prohibit marijuana use, possession, transfer, distribution, or sale in the workplace and on work sites. Should revisions be necessary, contact legal counsel for support. Note: All DOT regulated employers, keep watch for DHHS oral fluid test option – Areas to Watch #1 below.

Federal Drug-Testing Requirements All Remain in Full Force and Effect

#1: Transportation Industry: Passage of Issue 2 does not remove or alter drug testing regulations imposed by the federal government on the transportation industry. Department of Transportation (DOT) drug and alcohol testing programs and requirements must remain in full effect now and after implementation of Issue 2 on December 7, 2023, for all DOT agencies, including but not limited to the: Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA).

#2: Federal Workplaces and Non-Federal Workplaces with a Federal Contract or Federal Grant: The Federal Drug-Free Workplace Act of 1988 (DFWA) requires implementation of a Drug-Free Workplace Program in all federal workplaces and those non-federal workplaces holding a federal contract of $100,000 or greater or federal grant of any amount. Nothing in Issue 2 alters the DFWA drug testing requirements.

Areas to Watch

#1: Drug Testing Options: DOT published anew rule giving employers an option of utilizing an oral fluid test that took effect June 1, 2023. Companies cannot implement oral fluid testing until the Department of Health and Human Services (DHHS) certifies at least two laboratories (one as primary and the second as the split specimen laboratory).  On November 1, 2023, DHHS publish edits current list of HHS-Certified Laboratories, which stated that no oral fluid specimen certified laboratories exist to date (available here). Companies should remain poised to revisit their drug and alcohol testing policies once DHHS identifies at least two certified laboratories for oral fluid specimen testing. The oral fluid testing would provide a faster and less intrusive option to those employers covered by DOT regulations.

#2:  Workplace Accidents & Injuries: Reports vary on whether a direct link between RM(and/or MM) legalization and increased workplace accidents and injuries exists.

*Please contact ZR Team members David P. Frantz dpf@zrlaw.com and Sarah J. Moore sjm@zrlaw.com with any questions or issues you would like them to address.

Tuesday, June 28, 2022

Ohio Revises Workers’ Compensation Statute to Preclude Work-From-Home Injuries Absent Specific Factors

By Scott Coghlan*

The changed circumstances precipitated by the COVID-19 pandemic have resulted in a significant (and in some workplaces, dramatic) increase in employees who are working from home. There exists a good possibility that these working conditions will remain permanent for some employers and employees as employers now realize the economic and operational efficiencies generated by having employees from remotely and employees enjoy the work/life balance generated by working from home. Despite this developing trend, Ohio’s workers’ compensation laws have not to this point addressed coverage for employees who are injured while working from home. That omission in the law is about to change.

On June 24, 2022, Governor Mike DeWine signed House Bill 447 into law, and which will go into effect in 90 days (which we believe will be September 22). The bill precludes employees from receiving workers’ compensation benefits for injuries sustained while working from home unless certain factors are met. Ohio Revised Code §4123.01(C) defines an “Injury” broadly as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.” Prior to June 24, 2022, the statute excluded four categories of injuries from the statutory definition of “Injury” absent specific conditions being met. The four categories are (1) psychiatric conditions in the absence of a physical injury, (2) natural deterioration injuries, (3) injuries incurred in employer sponsored recreation or fitness activities and (4) aggravation of pre-existing conditions.

H.B. 447 revises R.C. §4123.01(C) to exclude work from home injuries from the statutory definition of “Injury” stating that “Injury” does not include:
(4) Injury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer, unless all of the following apply:

a. The employee’s injury or disability arises out of the employment.

b. The employee’s injury or disability was caused by a special hazard of the employee’s employment activity.

c. The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.
The phrase “arising out of” the employment used in subsection (a) refers to whether there is a causal connection between the employment and the injury. Factors to be considered are the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident and the benefits received by the employer from the employee being at the scene of the accident. This is a low bar to clear. If the employee is working from home, the injury is both proximate to the place of employment and providing a benefit to the employer.

When determining whether a work from home injury is compensable, the focus will be on determining whether the injury was caused by a special hazard of the employment and whether it was sustained in course of performing an activity for the exclusive benefit of the employer.

To demonstrate that a “special hazard” is present, the injured worker must demonstrate that: (1) but for the employment, the employee would not have been at the location where the injury occurred; and (2) the risk of injury is distinctive in nature or quantitatively greater than the risk common to the public. This is significant, because an employee does not have to demonstrate that an injury sustained on the employer’s premises resulted from a risk distinctive or greater than common to the public. Therefore, a slip and fall in a home office may not be compensable because the risk of falling at home is a risk common to the general public. In contrast, a slip and fall on the employer’s premises will be compensable in most circumstances.

The statutory definition of “Injury” requires the injury to be sustained “in the course of the employment.” This phrase refers to activities performed during the workday that are usually and reasonably incident to the work of the employer. For instance, an employee that is injured while on a break on the employer’s premises will generally have compensable claim, although not engaged in a specific work-related task. However, R.C. 4123.01(C)(4)(c) requires that the injury be sustained “in the course of an activity” undertaken by the employee for the exclusive benefit of the employer.” This indicates that the employee must be injured while performing a specific task in furtherance of the employer’s business rather than something incidental to the employment.

H.B. 447 should bring some clarity to employers struggling to determine whether an unwitnessed work from home injury is compensable. However, ambiguity still exists. For instance, the terms “employee’s home” and “work area” are not defined terms and may be subject to interpretation. Employers should require employees to identify the address or location of their “home” and the “work area” within the home that the job duties will be performed. Employers should also provide injury reporting training to its work-from-home employees and require a written injury report. The compensability of work-from-home injuries will be fact-specific, and employers will need to gather sufficient information to determine whether to certify or reject a claim.

*Scott Coghlan, chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about House Bill 447 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Wednesday, May 11, 2022

ZASHIN & RICH SCORES ANOTHER SHAREHOLDER FROM A NATIONAL LABOR & EMPLOYMENT BOUTIQUE — Natalie M. Stevens joins Zashin & Rich’s Employment & Labor Group

After snagging shareholder Sarah J. Moore from Fisher & Phillips a few months ago, Zashin & Rich has now hired shareholder Natalie M. Stevens from Ogletree Deakins. With the hiring of Stevens, Zashin & Rich continues its quest to build the most powerful, diverse and inclusive labor and employment boutique emanating from its Cleveland, Ohio headquarters.

Natalie Stevens has practiced employment law for almost two decades. She concentrates her practice on counseling employers on compliance with workplace laws and regulations. Natalie regularly litigates employment-related matters, including discrimination, accommodation and leave issues and non-compete violations. Natalie also defends unionized employers in grievance and arbitration matters. Co-Managing Partner, Stephen Zashin, stated: “This was a no-brainer. Natalie has an incredible reputation and represents some of the biggest and best employers. We knew that she would fit our diverse and energetic culture and provide an immediate impact on the depth and breadth of our national labor and employment practice.” According to Natalie, she joined Zashin & Rich because of “its strong labor and employment practice and incredible reputation in the business and legal community” and she “looks forward to continuing to provide excellent service to existing and new clients with the Zashin & Rich team!”

Zashin & Rich represents large publicly traded and privately held businesses, non-profit organizations, and public-sector entities. Zashin & Rich is one of the largest, if not the largest, labor and employment boutiques in Ohio and has offices in Cleveland and Columbus, Ohio. If you have any labor or employment law questions, please contact Natalie Stevens (nms@zrlaw.com) or Stephen Zashin (ssz@zrlaw.com) at (216) 696-4441.

Thursday, March 10, 2022

Employment Law Game Changer: Federal Law Invalidates Mandatory Arbitration of Sexual Assault and Sexual Harassment Claims Nationwide

By Sarah J. Moore & David P. Frantz*

On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the “Act”). The Act, which received bipartisan support in Congress, amended the Federal Arbitration Act and effectively nullified any pre-dispute arbitration agreement provisions that required arbitration of sexual assault and sexual harassment claims in lieu of proceeding in court. While the Act only covers (1) “sexual assault disputes,” defined as “a dispute involving a nonconsensual sexual act or sexual contact, . . . including when the victim lacks capacity to consent,” and (2) “sexual harassment disputes,” defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,” its potential impact on the overall effectiveness of arbitration agreements in the employment setting remains unclear.

Historical Preference by Employers for Mandated Arbitration

Employers have utilized mandatory arbitration agreements to minimize expenses and, potentially, overall legal exposure by requiring employees to resolve disputes through arbitration rather than litigating cases in court. Arbitration offers a shorter, less expensive process that by many studies yielded lower employee win rates as compared to court actions. Historically, Congress and the courts have treated arbitration as a favored means of dispute resolution, including in the employment context.

Employers Lose Right to Have Sexual Assault & Sexual Harassment Claims Solely Handled in Arbitration

Under the Act, a plaintiff retains an unfettered right to file a sexual assault or sexual harassment claim either in court or under a pre-dispute arbitration agreement. Further, a plaintiff may bring the claim individually or as a class action, even if class waiver provisions in a pre-dispute arbitration agreement would have demanded otherwise. Employers lose any ability to force these matters to arbitration – plain and simple.

Potential Impact on Enforceability of Pre-Dispute Arbitration Agreements on Future Claims

Determination of whether a dispute falls within the scope of the Act falls to courts and not to arbitrators, as does “the validity and enforceability of an agreement to which [the Act] applies.” This remains true even if the underlying arbitration agreement delegates authority to the arbitrator to determine whether a claim falls within the scope of the agreement or whether the agreement is enforceable. By effectively transferring all “gateway” issues of arbitrability to the courts and out of the purview of arbitrators, the Act creates a pathway to erode employers’ contractual rights.

Although Senator Joni Ernst (R-Iowa) stated in support of the Act, “my colleagues agreed with me that this bill should not be the catalyst for destroying pre-dispute arbitration agreements in all employment matters… [and] … [i]t should not be used as a mechanism to move employment claims that are unrelated to these important issues out of the current system,” it is highly unlikely the plaintiff’s bar will roll over and agree. When an employee sues an employer, it is rare to see only one legal claim asserted. Instead, a plaintiff will assert all employment claims known to exist. So, while the Act contemplates an exemption for only two categories of claims, it potentially opens the door for extracting all contemporaneously asserted claims out of mandatory arbitration and into the courts. How the Act impacts the viability of arbitration agreements in the employment arena moving forward remains unclear but will likely involve many hard-fought legal battles. Further, employers may now face multiple cases from the same employee at the same time – e.g., sexual harassment claims in court and other claims in arbitration.

Recommendations Moving Forward

Now that the Act is law, all employers with arbitration agreements should assess their current legal mitigation strategies to determine how to react to the new law with respect to entering into mandatory arbitration agreements with new hires and what to do with mandatory arbitration agreements already in place.

*If you have questions relating to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, arbitration agreements, or any other employment law issues, please contact Sarah Moore (sjm@zrlaw.com) or David Frantz (dpf@zrlaw.com) at (216) 696-4441.

Wednesday, January 26, 2022

EMPLOYMENT LAW QUARTERLY | Volume XXIV, Issue i

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The Sixth Circuit’s Epic Enforcement of Employment Arbitration Agreements with Class Action Waivers

By Stephen S. Zashin*

In Epic Systems Corp. v. Lewis, the U.S. Supreme Court made it unequivocally clear: arbitration is the favored means of handling employment disputes. See 138 S. Ct. 1612, 200 L.Ed.2d 889 (2018). In doing so, the Court held that arbitration agreements containing class action waivers do not violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act (“FAA”). Recently, the U.S. Court of Appeals for the Sixth Circuit reinforced that mandate. See Williams v. Dearborn Motors 1, LLC, No. 20-1351, 2021 U.S. App. LEXIS 26350 (6th Cir. Aug. 30, 2021).

In Williams, the Sixth Circuit relied on Epic in upholding the enforcement of an employer’s mandatory arbitration agreement requiring employees to waive their right to pursue claims on a class basis. Further, the Sixth Circuit held an employee could not premise a retaliation claim on his termination for refusing to sign the mandatory arbitration agreement.

The plaintiffs in Williams worked at a car dealership for several months when the dealership presented an arbitration agreement to all employees and required them to sign in order to continue employment. The arbitration agreement included a “class waiver” provision, which required employees to litigate all disputes with the dealership individually, rather than on class action basis. Additionally, the class waiver provision required employees to opt-out of class actions and waive all rights to any monetary recovery in any such action.

One of the plaintiffs refused to sign the arbitration agreement, and the dealership terminated his employment. The other plaintiff opposed the arbitration agreement, but ultimately signed and continued to work at the dealership. The plaintiffs then filed a lawsuit asserting discrimination claims and sought to represent a class of the dealership’s current and former employees whom the dealership required to sign the arbitration agreement as a condition of employment. One plaintiff also alleged the dealership unlawfully terminated him in retaliation for refusing to sign the arbitration agreement. The district court dismissed the class claims, along with the individual retaliation claim.

The plaintiffs appealed to the Sixth Circuit arguing that the arbitration agreement’s class waiver provision was unlawful and violated their rights under various antidiscrimination laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). Furthermore, the one plaintiff argued his termination for refusing to sign the arbitration agreement constituted unlawful retaliation under those laws. On appeal, the Sixth Circuit rejected the plaintiffs’ arguments.

Unlike the antidiscrimination laws at issue in Williams, the underlying claims in the Supreme Court’s Epic decision were wage and hour claims brought under the Fair Labor Standards Act. Nonetheless, the Williams Court found Epic’s holding applied in the antidiscrimination context. Recognizing the FAA’s broad mandate in favor of arbitration and prior decisions enforcing employment arbitration agreements with class action waivers, the Sixth Circuit noted, absent an “express statement [in the antidiscrimination laws] barring the use of class waivers, such policies are enforceable under the FAA with respect to employment discrimination claims.” Id. at *9. As Title VII, the ADA, and ADEA contain no such “express statement,” the court held “none of the civil rights laws that plaintiffs rely on supports the notion that a class waiver constitutes an unlawful employment practice, which plaintiffs assert is the basis for the class-based discrimination claims in the complaint.” Id. at *19. Accordingly, the Sixth Circuit upheld the dismissal of the class claims alleging discrimination.

The Sixth Circuit also affirmed the dismissal of the individual retaliation claim premised on the plaintiff’s termination for refusing to sign the arbitration agreement. In order to set forth a viable retaliation claim, the plaintiff must have engaged in “protected activity.” The Sixth Circuit found that, by refusing to sign the arbitration agreement, the plaintiff did not engage in any such activity. Rather, the court explained the plaintiff’s “opposition to the class waiver was based on his belief that it violated the procedural requirements under the [antidiscrimination laws] by depriving him of a method of litigation and type of remedy. The refusal to sign did not constitute protected activity because it was not based on a reasonable belief that he was opposing allegedly ‘discriminatory acts.’” Id. at *21. The court cautioned that the plaintiff may have had a viable retaliation claim if the arbitration agreement required him to waive substantive statutory rights under the antidiscrimination laws, e.g., the right to file a charge of discrimination with the Equal Employment Opportunity Commission. However, the dealership’s arbitration agreement, including its class waiver provision, did not interfere with the plaintiff’s substantive rights under the antidiscrimination laws. Accordingly, the court found his retaliation claim baseless and properly dismissed.

In sum, the Sixth Circuit’s Williams decision reinforces the mandate in favor of arbitration as a means to resolve employment disputes, including discrimination claims, and employers’ rights to include class action waivers in their arbitration agreements and to terminate employees who refuse to sign them. Employers should consult with counsel to discuss implementing arbitration agreements with their workforce or revising existing agreements to include class action waivers.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor & Employment Law, has successfully litigated class arbitration issues in state and federal courts including successfully arguing a class action arbitration issue before the Ohio Supreme Court. If you have questions relating arbitration agreements or any other employment law issues, please contact Stephen at ssz@zrlaw.com or (216) 696-4441.

Employers May Utilize Wellness Programs to Encourage Employees to Get a COVID-19 Vaccine

By Brittany A. Mallow*

The U.S. Department of Labor, U.S. Department of Health and Human Services (“HHS”), and the U.S. Treasury (collectively, the “Government”) recently issued FAQs (available here) to clarify how employers may encourage employees to get vaccinated using incentives/surcharges through the employer’s group health plan. Essentially, a group health plan may offer participants a premium discount for receiving a COVID-19 vaccination if the discount complies with the final wellness program regulations.

HIPAA Compliance


Generally, employers may not charge different premiums under their health plans based on the health factors of their employees. However, the Government advised that HIPAA permits exceptions for both vaccination surcharges and incentives, provided that a plan complies with the requirements for “activity-only” wellness programs. These requirements include:
  • The total amount of non-tobacco-related incentives/surcharges may not exceed 30 percent of the cost of coverage under the health plan;
  • Employers must provide a reasonable alternative to avoid the surcharge if it is medically inadvisable for an individual to receive the COVID-19 vaccine;
  • Individuals must have the opportunity to qualify for the reward (or avoid the penalty) at least once per year;
  • The full reward under the activity-only wellness program must be available to all similarly situated individuals; and,
  • The program must be reasonably designed to promote health or prevent disease.

30 Percent Rule


As established under HIPAA, employers may encourage participation in certain types of wellness programs by offering incentives of up to 30 percent of the total cost of an employee’s health insurance premiums for self-only coverage. Therefore, any surcharge imposed on an unvaccinated worker cannot exceed more than 30 percent of the total cost of their health insurance premiums for self-only coverage when combined with any existing surcharge.

Many employers have existing wellness programs and may not have much wiggle room to add additional incentives/surcharges and remain under the 30 percent cap.

Reasonable Alternative


The Government advised that a “reasonable alternative” to a surcharge may require an attestation that the individual will follow the Centers for Disease Control and Prevention’s (“CDC”) masking guidelines for unvaccinated individuals. Additionally, an employer is permitted to require a doctor’s note related to whether the vaccine is medically inadvisable.

ACA Affordability Rules


The FAQs also confirm that employers should disregard vaccination incentives when determining compliance with the Affordable Care Act’s (“ACA”) affordability rules, but employers should include vaccination surcharges in the premium cost when performing affordability calculations. For example, if a COVID-19 vaccination wellness program reduces an employee’s individual premium contribution by ten percent, employers should disregard the reduction for purposes of determining whether the offer of that coverage is affordable in assessing liability for the employer’s shared responsibility payment. However, if a surcharge increases an unvaccinated employee’s individual premium contribution for coverage by ten percent, employers should include the surcharge when assessing affordability.

Employers wishing to impose a surcharge should rerun ACA affordability calculations to ensure compliance with affordability rules. However, employers considering utilizing the incentive approach should not face ACA affordability concerns, as their plans presumably already satisfied the requirements.

Eligibility/Coverage


The FAQs make clear that plan sponsors cannot condition eligibility for benefits on vaccination status. Thus, employers cannot deny unvaccinated health plan participants benefits or eligibility for coverage. Although there is an exception to the general prohibition on discrimination based on a health factor for wellness programs that meet federal standards, this exception is available only for premium discounts or rebates, or modifications of otherwise applicable cost-sharing mechanisms, and not for denying eligibility for benefits or coverage based on a health factor.

EEOC’s Lack of Guidance


The Government cautioned that compliance with their regulations is not determinative of compliance with the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), as the U.S. Equal Employment Opportunity Commission (“EEOC”) enforces those laws.

The EEOC has remained silent on how wellness plans can comply with the ADA and GINA. Despite the EEOC’s silence, it is comforting to note that no court has ever determined that a wellness plan that complies with the Government’s regulations violates either the ADA or GINA. Additionally, the EEOC regulations governing the applicability of the ADA to wellness programs defer to HIPAA when it comes to health-contingent wellness programs, and the EEOC has not provided any reason to believe that would change for COVID-19 vaccine incentives.

Best Practices

  1. Re-calculate incentive limits to ensure that the incentive, taken together with all other non-tobacco incentives, does not exceed the 30% HIPAA incentive limit.
  2. Establish ways to earn incentives for reasonable alternatives/accommodations for those who cannot get vaccinated due to a medical reason, disability, or a religious exemption.
  3. Ensure affordability standards are met under the ACA.
  4. Notification rules: Open enrollment periods are either underway, closed, or about to commence for most employers; thus, it may not be logistically possible to implement a vaccine incentive/surcharge program for commencement in the near future. However, if an employer chooses to modify the group health plan by implementing a wellness program mid-year, it must communicate the modification to employees at least 60 days in advance.
*Brittany A. Mallow practices in all areas of labor and employment law. If you have questions utilizing wellness programs to encourage COVID-19 vaccinations or any other employment law issues, please contact Brittany at bam@zrlaw.com or (216) 696-4441.

Scripture vs. Shots – How Employers Should Respond to Religious Objections to COVID-19 Vaccine Mandates

By Katie McLaughlin*

In the wake of COVID-19 vaccine mandates, an increasing number of employees have claimed religious exemptions. How should employers respond when their employees object to vaccine mandates on religious grounds?

Religious Discrimination Under Title VII


Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of religion and requires employers to provide “reasonable accommodations" to employees’ “sincerely held” religious beliefs, practices, or observances. Title VII defines religion broadly – protected religious beliefs need not be formally recognized. However, employees’ objections cannot be based solely on social, political, or personal preferences or nonreligious concerns about the possible effects of the vaccine. Employers must distinguish between political objections that happen to be religious and objections that are religious at their core.

Most major organized religions do not openly oppose vaccines. For example, Pope Francis stated he believes that everyone has an ethical duty to get vaccinated. In fact, only two religions formally oppose vaccination – Christian Scientists and the Dutch Reformed Church. However, the U.S. Equal Employment Opportunity Commission (“EEOC”) stated that a religious group’s acceptance or nonacceptance of a belief is not determinative under Title VII. Employers must not lose sight of this statement from the EEOC and should not deny religious accommodations requests based solely on religious doctrine or statements from religious leaders like Pope Francis. The below considerations apply to not only employees who oppose the vaccine altogether on religious grounds, but also employees who wish to wait until an alternative version or specific brand of the COVID-19 vaccine is available.

“Sincerely Held” Religious Beliefs


If an employee raises a religious objection, an employer should generally assume the objection is based on a sincerely held belief. Employers can only question an employee’s belief if they have an objective basis to do so. The EEOC identified four factors that can create doubt as to the sincerity of an employee’s religious belief:
  • Whether the employee has acted in a way inconsistent with the claimed belief;
  • Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;
  • Whether the timing of the request is questionable (for example, the request follows closely after the same employee’s request for the same benefit for different reasons); and
  • Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.
If an employer has an objective basis, it can ask the employee to discuss their beliefs, describe how the employee follows them, provide written materials about the tenets of their faith, and/or request statements from others who have observed the employee discussing or practicing those beliefs. A religious leader may provide an exemption letter to bolster the employee’s claim, but it is not required. Additionally, an employer should not assume that an employee’s belief is not sincere because it deviates from the commonly followed tenets of the employee’s religion or the employee adheres to some common practices but not others. Although prior inconsistent conduct is relevant to the question of sincerity, an employee’s beliefs may change over time. An employee’s newly adopted or inconsistently observed practice may nevertheless be sincerely held.

Employers should use caution when questioning employee beliefs. For example, in EEOC v. Consol Energy, Inc., the U.S. Court of Appeals for the Fourth Circuit held that an employee was entitled to nearly $600,000 in damages because his employer failed to accommodate his religious concerns regarding a biometric hand scanner.

Reasonable Accommodations


If an employee’s religious belief is sincerely held, Title VII requires employers to provide the employee reasonable accommodations. For employees who refuse to get the COVID-19 vaccine due to a sincerely held religious belief, reasonable accommodations include mask wearing, remote work, social distancing, etc. Much will depend on the specific circumstances. Employers must ensure that the accommodation is legitimate and non-retaliatory. However, employers do not have to accommodate an employee’s religious beliefs if doing so would impose an “undue hardship” on the employer’s legitimate business interests. The EEOC identified six factors employers can consider in denying a religious accommodation as unduly burdensome:
  • The accommodation is too costly;
  • The accommodation would decrease workplace efficiency;
  • The accommodation infringes on the rights of other employees;
  • The accommodation requires other employees to do more than their share of hazardous or burdensome work;
  • The accommodation conflicts with another law or regulation; and
  • The accommodation compromises workplace safety.
Employers should rely on objective information, and not on speculative hardships that may arise as a result of a religious accommodation. Common relevant considerations during the COVID-19 pandemic may include whether the employee works indoors or outdoors, works in a solitary or group setting, or has close contact with other employees or members of the public who are medically vulnerable. The number of fully vaccinated employees, how many employees and nonemployees physically enter the workplace, and current CDC recommendations are also relevant. If more than one reasonable accommodation could eliminate a religious conflict, an employer should consider the employee’s preferences but is not obligated to provide the reasonable accommodation preferred by the employee.

If an employer is faced with requests from multiple employees for religious accommodations, the determination of whether a particular proposed accommodation imposes an undue hardship depends on its specific factual context. If an employer grants one employee a religious accommodation related to the vaccine, it is not required to grant the requests of all employees who seek a religious accommodation for the vaccine. Additionally, the cumulative cost or burden on the employer is relevant when multiple employees seek similar accommodations. However, employers should keep in mind that a mere assumption that many more employees might seek a religious accommodation in the future is not evidence of undue hardship.

Finally, employers have the right to discontinue a previously granted accommodation if it is no longer being used for religious purposes and/or the accommodation poses an undue hardship on their operations due to changed circumstances. However, employers should discuss their concerns with employees before revoking accommodations and consider alternative accommodations that do not impose an undue hardship.

Takeaways


Before imposing vaccine mandates, employers should develop a system for considering and responding to religious objections. Employers should use caution when questioning an employee’s religious beliefs. So as to avoid inconsistent treatment, employers should strongly consider using a form attestation to be completed by the employee that identifies the employee’s belief system and the belief, practice, or observance that prohibits the employee from getting the COVID-19 vaccine. Employers should consult with counsel when drafting such attestations.

*Katie McLaughlin practices in all areas of labor and employment law. If you have questions regarding COVID-19’s continued impact on the workplace or other employment matters, please contact Katie at kem@zrlaw.com or (216) 696-4441.

Weeded Out: Pennsylvania Court Greenlights Employee Claims for Discipline Based Upon Status as a Certified Medical Marijuana User

By Jessi L. Ziska*

Pennsylvania’s Medical Marijuana Act (“MMA”) prohibits employers from discharging, refusing to hire, or otherwise discriminating or retaliating against an employee based upon their status as a certified medical marijuana user. However, as the MMA does not expressly include a private right of action, it remained unclear whether Pennsylvania employees have a right to bring a lawsuit alleging a violation of the MMA. Last August, a state appellate court answered that question in the affirmative. See Palmiter v. Scranton Quincy Clinic Co., LLC, No. 498 MDA 2020, 2021 PA Super 159 (Pa. Super. Ct. 2021). Accordingly, Pennsylvania employers must exercise caution as they may face private lawsuits for making employment decisions based upon an employee’s or applicant’s status as a certified medical marijuana user.

Background


The plaintiff in Palmiter worked as a medical assistant and submitted to a drug test after a new company acquired the hospital where she worked. In connection with the drug test, the employee notified the laboratory that she had a medical marijuana prescription and provided a copy of her legal certification. Nonetheless, her new employer informed her of her termination on account of her drug test. The employee then sued her employer arguing, in part, that her termination violated the MMA and public policy. The trial court overruled the employer’s objections to this claim, and the employer appealed the trial court’s decision.

Superior Court Decision


The Pennsylvania Superior Court affirmed the decision of the trial court, holding individual employees can maintain private causes of action against their employer under the MMA and public policy. In reaching its decision, the court reviewed the language of the MMA along with similar state medical marijuana laws across the country to find that “an implied private cause of action” existed under the MMA. In doing so, the court held the state legislature’s intent in enacting the MMA sought to protect employee-patients certified to use medical marijuana from employers who would penalize employees for availing themselves of the benefits provided under the MMA.

Impact on Pennsylvania Employers


Under the Palmiter Court’s holding, Pennsylvania employers can face private lawsuits for disciplining, terminating, or otherwise discriminating against an employee or job applicant based on the individual’s status as a certified user of medical marijuana. However, the MMA does not require employers to accommodate medical marijuana use in the workplace and allows employers the right “to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.” See 35 P.S. § 10231.2103(b)(2). Accordingly, before taking an adverse action, Pennsylvania employers should ensure that they have adequate evidence to show the adverse action is not merely premised upon the individual’s status as a certified medical marijuana user.

What About Ohio?


Compared to Pennsylvania’s MMA, Ohio’s medical marijuana law is more employer friendly. For example, under Ohio law:
  • Employers do not have to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
  • Employers may refuse to hire, discharge, discipline, or otherwise take an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana; and
  • Employers can establish and enforce a drug testing policy, drug-free workplace policy, or zero-tolerance policy.
See R.C. § 3796.28(A)(1)-(3).

Given that medical marijuana laws vary by state, employers should review state medical marijuana laws and consult with counsel prior to making employment decisions based upon an employee’s status as a medical marijuana user.

*Jessi L. Ziska practices in all areas of labor and employment law. If you have questions about employment issues relating to medical marijuana or any other employment law matters, please contact Jessi at jlz@zrlaw.com or (216) 696-4441.

New Year, New Minimum Wages: States Increase Minimum Wage for 2022

By Jzinae N. Jackson*

On January 1, 2022, several states, including Ohio, increased their minimum wage. Ohio’s minimum wage increased from $8.80 to $9.30 for non-tipped employees and from $4.40 to $4.65 for tipped employees. In 2022, Ohio’s minimum wage law applies to employers with gross revenue of $342,000 or more. Employers whose gross revenue is below that threshold are only subject to the federal minimum wage of $7.25 per hour for non-tipped employees and $2.13 for tipped employees. Additionally, for minors aged fifteen years or younger, Ohio employers are only required to pay the federal minimum wage.

While most states have not yet scheduled minimum wage increases beyond 2022, several states, such as California, Delaware, Florida, Illinois, Maryland, Virginia, and others have scheduled increases over the next few years, with the end goal of $15.00 per hour. Additionally, minimum wage increases in some states will not take effect until later in 2022. For example, Oregon’s and Nevada’s increases become effective on July 1, 2022. Employers should also recognize that some municipalities have higher minimum wages than the state minimum wage.

The following table lists all 2022 minimum wage increases by state (unless otherwise noted, all increases are effective January 1, 2022):


State

Standard

Tipped

Arizona

$12.80

$9.80

California

$15.00 for employers with 26 or more employees.

 

$14.00 for employers with 25 or less employees.

$15.00 for employers with 26 or more employees.

 

$14.00 for employers with 25 or less employees.

Colorado

$12.56

$9.54

Connecticut

(effective July 1, 2022)

$14.00

$7.62 for service employees

 

$5.77 for bartenders

Delaware

$10.50

$2.23

Florida

(effective Sept. 30, 2022)

$11.00

 

$7.98

 

Illinois

$12.00

$7.20

Maine

$12.75

$6.38

Maryland

$12.50 for employers with 15 or more employees.

 

$12.20 for employers with 14 or less employees.

$3.63

Massachusetts

$14.25

$6.15

Michigan

$9.87

$3.75

Minnesota

$10.33 for employers earning $500,000 or more annually.

 

$8.42 for employers earning less than $500,000 annually.

$10.33 for employers earning $500,000 or more annually.

 

$8.42 for employers earning less than $500,000 annually.

Missouri

$11.15

$5.575 (tipped employees must be paid half the state minimum wage rate)

Montana

$9.20

$9.20 for employers earning more than $110,000 annually.

 

$4.00 for employers earning $110,000 or less annually.

Nevada

(effective July 1, 2022)

$9.50 for employers offering health benefits.

 

$10.50 for employers not offering health benefits.

$9.50 for employers offering health benefits.

 

$10.50 for employers not offering health benefits.

New Jersey

$13.00 for employers with 6 or more employees.

 

$11.90 for seasonal employees and employers with 5 or less employees.

 

$10.90 for agricultural employees.

$5.13

New Mexico

$11.50

$2.80

New York

(effective Dec. 31, 2021)

$13.20

 

$15.00 for fast food employees.

$8.35

Ohio

$9.30 for employers earning $342,000 or more annually.

 

$7.25 for employers earning less than $342,000.

$4.65

Oregon (effective July 1, 2022)

$13.50

 

$13.50

 

Rhode Island

$12.25

$8.36

South Dakota

$9.95

$4.975 (tipped employees must be paid half the state minimum wage rate)

Vermont

$12.55

$6.28

Virginia

$11.00

$2.13

Washington

$14.49

$14.49


*Jzinae N. Jackson regularly advises clients on labor and employment matters, including state and federal wage and hour law compliance. If you have questions about minimum wage laws or labor and employment matters more generally, please contact Jzinae at jnj@zrlaw.com or (216) 696-4441.



Z&R SHORTS


Please join Z&R in welcoming Katie McLaughlin and Brittany Mallow to its Employment and Labor Groups


Katie McLaughlin’s practice encompasses all areas of labor and employment law. Katie graduated cum laude from Cleveland-Marshall College of Law, where she served as Editor-in-Chief of the Cleveland State Law Review. As a law student, Katie participated in Cleveland-Marshall’s Civil Litigation Clinic, where she advised clients on unemployment claims and landlord-tenant disputes. Prior to law school, Katie worked as an insurance underwriter.

Brittany Mallow represents both public and private sector employers in all aspects of labor and employment law. Brittany graduated, cum laude, with her J.D. from Cleveland-Marshall College of Law, where she was a Cleveland-Marshall Law Justice Scholar and Cleveland-Marshall Law Alumni Association Life Member Scholar. Brittany also earned her M.B.A. from Cleveland State University. During law school, Brittany served as Vice Chair of the Moot Court Team and Treasurer of the International Law Society. As a Member of the Moot Court Team, Brittany competed in several national moot court competitions, winning Best Petitioner’s Brief and advancing to the final four at the Herbert Wechsler National Moot Court Competition. Brittany also gained valuable legal experience while serving the Cleveland community as a student in the Community Advocacy Law Clinic at Cleveland-Marshall.

Please join Z&R in congratulating its attorneys for the following achievements:


CONGRATULATIONS


Super Lawyers List | 2022
George Crisci, Jon Dileno, Jonathan Downes, Michele Jakubs, Amy Keating, Drew Piersall, Christopher Reynolds, Jonathan Rich, Richard Stahl, Patrick Watts, Jeffrey Wedel, Andrew Zashin, Stephen Zashin

Rising Stars List | 2022
David Frantz, Kyleigh Weinfurtner

Best Lawyers | 2022
George Crisci, Jon Dileno, Jonathan Downes, Amy Keating, Drew Piersall, Christopher Reynolds, Jonathan Rich, Richard Stahl, Jeffrey Wedel, Kyleigh Weinfurtner, Andrew Zashin, Stephen Zashin

Best Lawyers Top Listed Firm | 2022
First-Tier Rankings in Ohio for 7 years