Articles by Our Attorneys

December, 2020, closes out a long year that has seen a number of developments in the area of employment law.  Undoubtedly, the major headline heading into the New Year is that President Trump has signed the COVID-19 economic relief bill passed by Congress.  The following are a few notable takeaways from the new law:

• The sick leave available to employees through the Families First Coronavirus Response Act (FFCRA) is not extended. However, employers who voluntarily provide paid sick leave will be still receive a tax credit for doing so through March 2021.
• There is an additional allocation to the Paycheck Protection Program (PPP) of $284 billion. New loans under the extension are capped at $2 million, as opposed to $10 million under the previous program. Applicants must have no more than 300 employees, instead of up to 500 under the previous program, and must demonstrate at least a 25% drop in gross receipts from the fourth quarter of 2019 to the same period this year.  Also, PPP eligibility is expanded to include all nonprofits.
• Taxpayers are permitted to rollover unused amounts in their health and dependent care flexible spending arrangements from 2020 to 2021 and from 2021 to 2022. Employers are also permitted to allow employees to make a change mid-year in 2021 to contribution amounts.
• Two Coronavirus Aid, Relief and Economic Security Act (CARES Act) unemployment programs have been extended for 11 weeks. The provision provides $300 per week for workers receiving unemployment benefits through March 14, 2021.  The Pandemic Unemployment Assistance (PUA) program is extended, with expanded coverage for independent contractors and the self-employed.  The Pandemic Emergency Unemployment Compensation Program (PEUC) provides additional weeks of federally-funded unemployment benefits to individuals who exhaust their state benefits.  The provisions also increase the maximum number of weeks an individual may claim unemployment benefits through state unemployment plus the PEUC program, which is now up to 50 weeks.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

After a long and difficult year, several pharmaceutical companies have announced that COVID-19 vaccines are on the horizon.  This is welcome news for employers who have been struggling with myriad employment issues during the pandemic.  However, like everything with COVID-19, a vaccine raises its own legal questions.  Most notably, once the FDA formally approves a vaccine, can an employer mandate that its employees take it?

For most employees, the answer is probably “yes”.  There is ample precedent for employers mandating vaccines in certain fields, such as flu shots for healthcare workers in hospitals.  Indeed, the Occupational Safety and Health Administration (OSHA) in the past has said employers have the right to mandate vaccines.  Moreover, the EEOC has already issued guidance stating that COVID-19 meets the “direct threat” standard under the Americans with Disabilities Act (ADA).  This classification means the EEOC believes a significant risk of substantial harm is posed by having someone with COVID-19 or its symptoms present in the workplace.

That being said, at least two federal discrimination laws may provide some protection for employees who oppose taking a vaccine.  Under Title VII of the Civil Rights Act of 1964, a sincerely held religious belief against taking a vaccine could serve as the basis for a religious exemption. See December 5, 2012, EEOC Informal Discussion Letter: Title VII: Vaccination Policies and Reasonable Accommodation.  In addition, under the ADA, the employee could assert that they have some disability that prevents them from taking the vaccine, such as a sensitivity or allergy to something in the vaccine.  Even anxiety to taking a vaccine could conceivably constitute such a disability.

If an employer receives accommodation requests not to take the vaccine based upon religious beliefs or disability, an employer would be required to consider whether a reasonable accommodation can be granted.  In this case, this may mean a change in working hours to avoid contact with coworkers, remote work, or other social distancing.  Ultimately, the employer could decline the accommodation request if the accommodation for the particular employee poses an undue hardship on the company.

Of additional interest, for employers that mandate that employees receive a COVID-19 vaccine, if an employee suffered complications from the vaccine, he or she may be able to assert that the complications are illness or injuries caused by their employment.  This may mean that the complications arising from the vaccination are covered by workers’ compensation insurance.

Employers would be wise to gauge the expected response of their employees before putting in place a final policy on the subject.  Simply because an employer presumably can mandate that employees take a COVID-19 vaccine does not mean that the employer must do so.  For businesses in high risk fields, immediate employee vaccinations will be essential.  For others, however, a policy of “strong encouragement” and a reminder that “we are all in this together” may actually be better received by the workforce.  Ultimately, employers must continue to balance workplace safety with sensitivity to their employees during these trying times, which hopefully are nearing an end.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

The decision to pursue an action against your or your loved one’s medical care provider can be intimidating. Making this decision, while also dealing with the physical and emotional trauma of the consequences of suspected medical malpractice, can also be overwhelming.

What follows are some suggested steps to take prior to consulting with a medical malpractice lawyer. Preparing for this meeting will ease your anxiety and make the consult most effective.

First, prior to scheduling the meeting with your prospective attorney, assemble as many medical records as possible for review by that attorney prior to the meeting.

• Most medical records are now available electronically, and can be obtained by the patient through a Health Information Technology for Economic and Clinical Health Act (“HITECH”) request.
  • A simple keyword search using your internet search engine will yield multiple templates of a HITECH letter.
• Once you decide upon a reputable Pennsylvania medical malpractice lawyer with whom to meet, you should volunteer that you have obtained these records, which you should be able to share through a CD or thumb drive.

Second, prepare a chronology of events you believe are important to your potential claim. Be prepared to discuss with the attorney:

• Who do you believe rendered negligent medical care?
• Where and when did it happen?
• What do you believe happened?
• And what injury did you incur as a result?

Third, prepare a list of names and addresses of the healthcare professionals and institutions involved in the treatment at issue in the potential claim.

Finally, assemble and maintain as many of the original documents (including payment of expenses by insurance, explanation of benefit forms, patient safety letters) associated with the procedure as possible.

The attorney will now be in a much better position, after obtaining additional details at your consult, to assess your potential matter and provide you with timely advice as to the merits of a potential claim.

In the context of divorce, Pennsylvania is an equitable NOT community property state. Whereas, courts in community property states attempt to distribute things 50/50 to the best of their ability, courts in equitable distribution states are not similarly constrained. The courts are more concerned with doing what is fair and 50/50 is not always fair.

When dividing the marital estate (assets acquired during the marriage) different facts in each case will determine how much each spouse gets—i.e. length of the marriage, the age and health of the parties, the economic circumstances of each person at the time the division of the assets will go into effect, etc.

In some cases 50/50 is in fact fair. However, in some cases 70/30 in one spouses favor is fair. The factors listed above and many more determine what is fair in each case. Additionally, these factors may allow for each asset to be divided a different percentage. This means while equity in the house may be divided 50/50, the retirement accounts may be divided 46/54.

Parties can either reach an agreement as to how the estate should be divided or, at the requests of the parties, the courts can determine how assets should be divided.

This may seem like a lot, but determining how to divide the marital estate is only one piece of the puzzle. Equally important is determining what actually is marital and eligible for distribution.

This past week, Pennsylvania’s Governor voiced his support for legalizing recreational use of marijuana, touting it as a potential source of tax revenue to boost the struggling economy during the COVID-19 pandemic. This should come as no surprise given that many states have recently relaxed marijuana restrictions. Indeed, legalization of recreational use is on the ballot this November in neighboring New Jersey (along with several other states), which would add to the list of 11 states, along with Washington D.C., that already permit it.

Despite the foregoing, marijuana remains illegal under federal law. This has led to confusion regarding an employer’s right to prohibit marijuana use, drug test, or discipline an employee who tests positive. Here are a few simple tips about employee marijuana use in Pennsylvania.

Stay up to date

First, be informed of the current state of the law. In Pennsylvania, a person with an approved “serious medical condition” who is a Pennsylvania resident and is certified by a doctor may participate in the medical marijuana program.  Pennsylvania has a list of 23 conditions for which individuals can use medical marijuana. Anxiety disorder was recently added to the list of approved conditions (which otherwise mostly consist of rarer medical conditions like ALS, epilepsy and MS). Accordingly, the prevalence of medical marijuana use is likely to rise in the near future. Notably, Pennsylvania law expressly states that employers may not discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee based solely on an employee’s status as a certified medical marijuana patient. Therefore, regardless of marijuana’s status under federal law, an employer could find itself facing a lawsuit if it discriminates against a certified medical marijuana patient.

Employment screening for marijuana is still lawful

Second, the fact that Pennsylvania law protects a person’s status as a medical marijuana patient does not mean that an employer cannot take any measures relating to marijuana use. Marijuana is still illegal under the federal Controlled Substance Act and employers can still require drug screens for marijuana use. This includes pre-employment screening, testing based on reasonable suspicion, periodic and random testing, and post-incident testing.  If an employee tests positive for marijuana, an employer may demand proof that the individual is a certified patient. If an employee is not a certified patient, an employer may treat the situation just like the unlawful use of any other controlled substance, and use a positive test as a basis to discipline or terminate the employee, or deny employment altogether.

Specific workplace rules can apply to certified medical marijuana users

Third, for those individuals who are certified patients, restrictions may be put in place that limit certain work activities. Employers can prohibit employees who are actively treating with marijuana from performing high-risk activities like handling chemicals, high-voltage electricity and mining.  In fact, an employer may prohibit a certified patient from performing any task that the employer deems “life threatening” while under the influence of marijuana, and this prohibition does not constitute an “adverse employment action” under Pennsylvania discrimination law, even if it results in financial harm to the employee. Employers are also not required under Pennsylvania law to make any accommodation of the use of medical marijuana on the premises.

The bottom line

The bottom line is that Pennsylvania law still gives employers latitude about how to treat marijuana use by employees, as long as employers do not violate the specific legal protections enacted for medical marijuana patients. As the legal landscape continues to evolve, employers will need to review their policies to stay compliant with the law as well as to promote health and safety in the workplace.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

When dividing the assets during a divorce it is important to determine if an asset or liability is (1) marital or (2) non-marital. This is incredibly important because it determines what property is subject to division and what property is the “separate property” of each party.

Generally marital property—property acquired during the course of the parties’ marriage—is subject to equitable distribution. In some instances, property acquired during the marriage—i.e. an inheritance—is itself not subject to equitable distribution. However, any increase or decrease in value of that asset during the course of the marriage will be subject to equitable distribution.

On the other hand, non-marital property is property protected from equitable distribution and will not be subject to division. Property can be non-marital for a variety of reasons. Property acquired before the marriage, protected by a prenuptial or postnuptial agreement, acquired after separation or in certain exceptions are considered non-marital. However, this protection is not absolute. A non-marital asset commingled with marital assets can lose its protected status and become part of the property eligible for equitable distribution.

Not all assets owned by the parties at the end of a marriage are subject to division during a divorce and not all assets once considered non-marital remain so.