Employment Law Update November, 2020

November, 2020, was a busy month for employment law.  Here are some of the significant updates from Pennsylvania and across the United States to stay up to date:

COVID Continues to Dominate Employer Concerns Heading into the Holiday Season

In Pennsylvania and across the United States, COVID cases are spiking, triggering decisive action by both state and federal governments.

Nationally, OSHA has issued approximately $2.5 million in penalties for COVID-related violations through the beginning of November.  Although OSHA has not implemented any COVID-specific workplace standards, OSHA still has authority to enforce general workplace safety standards, including that employers maintain a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm”.  Citations have been issued for, among other things, failure to report injury, illness or fatality; failure to properly record an injury or illness; and failure to implement a written respiratory protection program.

In Pennsylvania, effective November, 20, 2020, Pennsylvanians visiting other states are required to have a negative COVID-19 test within 72 hours prior to their return to Pennsylvania, or to quarantine for 14 days upon return to Pennsylvania, pursuant to an Order of the Secretary of Health.  The Order does not apply to people who commute to and from another state for work, travel for medical reasons, travel that only passes through a state, or travel by military personnel.  Notably, the Order specifically says it is not directing businesses how to comply: “The commonwealth does not dictate how businesses should implement the testing or quarantine requirement”.  In order to protect the workforce’s health and to prevent a shortage of available employees, some employers have responded by providing notice to employees that all employees are required as a condition of their employment to comply with the Order.

New Guidance from EEOC May Help Religious Employers Defend Bias Claims

The U.S. Equal Employment Opportunity Commission has issued proposed religious bias guidance that will likely strengthen the defense of religious employers against workplace bias claims.  Among other things, the updated guidance endorses a more open definition for what groups qualify for the “ministerial exception”, potentially clearing the way for for-profit organizations to benefit from the defense instead of only non-profit organizations.  The proposed guidance also incorporates the U.S. Supreme Court’s recent decision expanding the “ministerial exception” beyond members of the clergy and ministers to lay people such as Catholic schoolteachers.

The guidance will be open for public comment until December 17, 2020.

Pennsylvania’s Commonwealth Court of Appeals Approves Unemployment Benefits for Fired Medical Marijuana User

The Commonwealth Court of Pennsylvania recently affirmed the ruling of the Pennsylvania Unemployment Board of Review that a medical marijuana user who was fired for a positive drug test was entitled to unemployment compensation.  Notably, the employer’s drug policy pertaining to prescription medications was ambiguous with respect to medical marijuana, and the employee complied with the policy but notifying his superiors of his prescription.  The Board and Appeals Court concluded that the employee made good-faith efforts to comply with the employer’s policy, and therefore could not be shown to have engaged in willful misconduct.

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.