Last session the New Hampshire Legislature enacted a new law designed to protect patients of health care facilities from the dangers associated with drug-use and drug-diverting by health care workers.  RSA 151:41, which was effective August 25, 2014, requires most health care facilities and  licensed providers to adopt a written drug testing policy which must also address the issue of diversion of controlled substances. This law affects facilities including hospitals, infirmaries or health centers of educational institutions, home health care providers, ambulatory surgery centers and many other medical facilities.

The stated purpose of the law is to establish procedures for the “protection, detection and resolution of controlled substance abuse, misuse and diversion.”  The policy adopted by the employer must apply to all employees, contractors and agents “who provide direct or hands-on care to clients.”

The appropriate policy will address:

• How the facility will educate workers regarding drug use;

• Procedures for monitoring, storing, distributing and procuring controlled substances;

• Procedures for voluntary self-referral by addicted employees and for reporting of abuse by co-workers;

• Procedures for drug testing, including, at a minimum, reasonable suspicion testing;

• Requirements for confidentiality and employee assistance;

• Procedures for investigating, reporting and resolving misuse and diversion concerns; and

• Consequences of violating the policy.

The Legislature did not provide a great deal of guidance concerning the meat of the policy, and employers, therefore, do have some flexibility in the type of policy they would like to adopt.  A medical provider must develop a policy “appropriate to its size, the nature of services provided and its particular setting.”  An infirmary at a college or university with just a few affected employees would likely adopt different policies and procedures than would a hospital with hundreds of employees providing direct care.

The law requires testing when there is reason to believe an employee is impaired, but policies may go further if the employer deems it reasonable.  For example, pre-employment or random drug testing may actually provide greater protection to patients, and testing of those who do not provide direct care may be important as well.

A drug test will identify a user of illegal drugs and controlled substances, and employers will need to decide the consequences of a positive test. Those options should be outlined in the employer’s policy, and employers should strive to be consistent in the application of discipline that results from policy infractions.  The statute is not specific about the potential penalties for a licensed provider’s failure to comply, but it certainly establishes a standard by which providers will be measured in terms of patient protection.

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By a margin of almost 20%, Massachusetts voters have approved a measure permitting all workers to earn up to 40 hours of sick time each year.  With this vote, Massachusetts has joined a small group of states (including Connecticut and California) and municipalities that allow for earned sick time for workers. Here’s what employers need to know about the new law. Continue Reading What You Need to Know about the New Massachusetts Earned Sick Time Law

With the November elections here, employers should take a moment to refresh their understanding on voting leave law in Massachusetts.  Specifically, in Massachusetts, an employer must provide an employee up to two hours off after the opening of the polls in the employee’s town or ward to vote if the employee requests it.

Chapter 149, Section 178, provides that:  “No owner, superintendent or overseer in any manufacturing, mechanical or mercantile establishment shall employ or permit to be employed therein any person entitled to vote at an election, during the period of two hours after the opening of the polls in the voting precinct, ward or town in which such person is entitled to vote, if he shall make application for leave of absence during such period.”

This is not a paid leave but requires an employer to provide those employed in manufacturing, mechanical or mercantile businesses with a leave for the two-hours after the opening of the polls in the employee’s voting precinct.  Again, the employee must request the leave, and the employer may request verification that the employee voted during such period.  No employee should be penalized or retaliated against for requesting time off to vote.  Further information is provided by the Massachusetts’ Attorney General.

At the same time NFL Commissioner Roger Goodell faces tough questions about Ray Rice, a new domestic violence law went into effect in Massachusetts.  Employers with 50 or more employees must now provide employees who are victims of domestic violence up to 15 days of leave in any 12-month period.  Governor Deval Patrick signed the law on August 8, 2014 and it became effective immediately so employers should not delay in taking steps to come into compliance.

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Leave is also allowed to employees if a family member is a victim of abusive behavior, including spouses, parents, step-parents, children, step-children, siblings, grandparents, and grandchildren.  The definition of family member also includes those in a “substantive” dating or engagement relationship and who live together, persons having a child in common regardless of whether they have ever married or lived together, or a guardian.

The law applies to all employees regardless of how long they have been at the company or how many hours they work.  Leave may be taken for any of the following reasons:

  • To seek or obtain medical attention, counseling, victim services, or legal assistance;
  • To obtain a protective order from a court;
  • To appear in court or before a grand jury;
  • To meet with a district attorney or other law enforcement official;
  • To attend child custody proceedings;
  • To secure housing;  OR
  • To address other issues directly related to the abusive behavior against the employee or his or her family member.

Employers may require employees to provide advance notice for leave unless there is a threat of imminent danger to the health or safety of the employee or a covered family member. If advance notice is not possible, employees must notify the employer within three workdays that the leave was taken under the law.  Employees must exhaust accrued paid leave before taking any unpaid leave unless the employer waives this requirement.

The law allows employers to require employees to provide documentation supporting the leave within a reasonable time of the request.  An employee satisfies this documentation requirement by providing any one of the following:

  • A protective order, order of equitable relief or other documentation issued by a court;
  • A document under the letterhead of the court, provider or public agency which the employee attended for the purposes of acquiring assistance as it relates to the abusive behavior;
  • A police report or statement of a victim or witness provided to police;
  • Documentation that the perpetrator of the abusive behavior against the employee or family member of the employee has:  admitted to sufficient facts to support a finding of guilt of abusive behavior; or has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section;
  • Medical documentation of treatment as a result of the abusive behavior;
  • A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior;
  • A sworn statement, signed under the penalties of perjury, from the employee attesting that the employee has been the victim of abusive behavior or is the family member of a victim of abusive behavior.

Employers may not retaliate or interfere with an employee’s use of such leave, and the Massachusetts Attorney General will enforce the law.  It should be noted that this new law adds to the Victim/Witness of Crime law which provides leave to employees who have been a victim of a crime or have been subpoenaed to attend court as a witness.

All covered employers must notify employees of their rights and responsibilities under the law.  With an immediate effective date, employers should review all handbooks and policies and amend them accordingly.  Supervisors and managers should also be trained on how to handle such leave requests.

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Headlines about Ray Rice and the NFL remind us all that domestic violence does not stop at the door of an employee’s home.  It is a serious crime and one that has lasting impacts on those affected by it.  This post provides guidance and information on what employers should know about domestic violence.

Domestic violence can happen to anyone, regardless of age, gender, marital status, socio-economic status, sexual orientation, or ethnicity/race.  It is a pattern of coercive behavior by one person over another.  It may include physical or sexual violence, stalking, or verbal, psychological, or economic abuse.  NH law protects persons who are victims of domestic violence.  There are also stalking and harassment laws.

When dealing with victims of domestic violence, employers should be flexible in allowing time off from work for medical treatment or court appearances.  NH requires leave for victims of crimes under the Crime Victim Leave Act, RSA 275:61-65.  Under this law, a victim of a crime may leave work to attend court or other legal or investigative proceedings associated with the prosecution of the crime.  A victim is broadly defined and includes the immediate family of any victim who is a minor or who is incompetent or the immediate family of a homicide victim.  The Act applies to employers with 25 or more employees.

Other laws may also be implicated when it comes to employees who are victims of domestic violence, such as reasonable accommodations due to a disability under the Americans with Disabilities Act (ADA) or the New Hampshire Law Against Discrimination.   (see guidance from EEOC)   Leave or intermittent leave under the Family Medical Leave Act (FMLA) may also be required.  (see guidance from US Department of Labor)  Also know that employers have a general duty to provide employees with a safe work environment and should have practices and policies in place consistent with this obligation.

No workplace is immune from the potential for workplace violence.  To be effective, companies should have a domestic violence policy, must develop a safety plan, be aware of studies of violence and domestic violence, and implement comprehensive training and educational programs for both management and employees.  Companies, on a regular basis, can make efforts to educate employees and make them aware of domestic violence.  Companies can put up posters in break or lunch rooms to let employees know where they or someone they know can reach out and seek help.  Referral to an EAP program is also an option.

An appropriate policy should include a policy statement regarding the company’s stance on domestic violence and should offer employees resources to increase their awareness of domestic violence to further reduce the impacts on the workplace.  The policy should also include a statement that violence of any kind in the workplace will not be tolerated and can lead to immediate disciplinary action up to and including termination.   Additionally, requiring an employee to inform the company when he or she obtains a retraining order from a court allows an employer to take steps to keep everyone in the workplace safe.

For organizations that do not currently have a policy addressing workplace violence prevention, more information is available through the Federal Government’s Office of Personnel Management, or for smaller businesses, through the U.S. Chamber’s Small Business Center.

Sample policies addressing domestic violence are available at the Corporate Alliance to End Partner Violence.  The NH Coalition & Crisis Management also has helpful information, which includes a list of crisis centers.  Information can also be found at the Department of Justice’s Violence Against Women division.

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On July 25, 2014, Governor Hassan signed a bill into law that strictly limits the use of electronic devices, such as smart phones, while driving.  The bill – HB 1360 – while intended as a public safety measure, will also affect how employers shape their cell phone or electronic device policies.

This new law prohibits New Hampshire drivers from using “any hand-held mobile electronic device capable of providing voice or data communication” while driving or while temporarily halted in traffic, at a stop sign or red light, or any other momentary delay.  “Use” is defined broadly, and includes calls, reading or composing text messages or emails, accessing the internet on a device, and inputting information into a GPS.  Drivers are still permitted to use their devices in emergencies or to call 911, and may use a Bluetooth or other hands-free function to send or receive information while driving, provided that the driver does not have to divert their attention from the road ahead.  The exception for hands-free devices only applies to adult drivers, as teens under the age of 18 are not permitted to use electronic devices while driving except to report emergencies.  The statute carries fines violations of the law, which increase in amount for each offense.  The law takes effect on July 1, 2015.

Employers should review and update their cell phone or electronic device policies to confirm the policies are in compliance with this change in the law.  An employer’s restriction on employees’ use of electronic devices while driving should be consistent with safety and require compliance with the law in the state of use.  Employers that do not currently have cell phone or electronic device use policies may consider such policies given this recent law and the trend across the country on similar legislation.

 

A growing number of states and cities are passing some form of so-called “ban the box” laws, which restrict an employer’s ability to ask candidates for employment about their criminal history during the initial stages of the application process.  These laws are not necessarily directed at employers’ use of criminal background checks as part of the employment screening process, but do reflect the negative nationwide perception of such screening techniques.

In 2010, Massachusetts became the second state to “ban the box” for both public and private employers.  In Massachusetts, the restriction bars employers from including the question on the initial written application form.  Employers may ask an applicant limited questions about his or her criminal history in an interview process.

New Jersey is now the latest state to enact “ban the box” legislation.  Just last week, Governor Christie signed a bill that prohibits employers from : (1) requiring an applicant to complete any employment application that makes any inquiries regarding the applicant’s criminal record; and/or (2) making any oral or written inquiry regarding an applicant’s criminal record during the “initial employment application process.”  The initial employment application process begins with the first inquiry from a prospective employee and ends after the conclusion of the employer’s first interview.  After that, the employer is still free to inquire about criminal history or require the applicant to satisfy a criminal background check before extending an offer of employment.

While these laws seem fair on their face, employers that require applicants to complete written job applications as part of the initial interview process will have to conduct a detailed review of these applications to ensure that there is no “box” to check relating to criminal history.  Likewise, employers subject to these laws will have to reevaluate their application process, including questions asked during initial interviews, to be sure that the subject of criminal records and history does not come up.  With states being added each year to the list, we will be monitoring the New Hampshire legislature for possible ban the box bills.

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Governor Maggie Hassan recently signed two bills into law that may have significant impacts on New Hampshire businesses.  The first, HB 1188 , which takes effect on January 1, 2015, prohibits employers from discharging, disciplining, or otherwise discriminating against an employee because he or she disclosed the amount of his or her wages, salaries, or paid benefits.

House Bill 1188 was proposed as a companion law to SB 207, known as the “Paycheck Fairness Act,” and the passing of HB 1188 was dependent on the passing of SB 207.  Because the Governor signed SB 207 a week prior to signing HB1188, both bills became law.

The second bill, The Paycheck Fairness Act , prevents employers from discriminating between employees on the basis of sex by paying employees of one sex at a rate less than the rate paid to employees of the other sex for what the statute refers to as “equal work.”  Such work requires “equal skill, effort, and responsibility and is performed under similar working conditions” by both the employees of one sex and employees of the other sex.  The statute allows employers to pay employees of one sex at a lower rate than employees of a different sex if the decision is made pursuant to a seniority system, a merit or performance-based system, a system which measures earnings by quantity or quality of protection, based on the employee’s expertise, differentials in the employees’’ shifts, or factors such as education, training, or experience.  These exceptions give employers the necessary flexibility to make legitimate and reasonable pay decisions without having to look over their shoulders for discrimination claims.

Employers should review their anti-discrimination and retaliation policies and revise them accordingly to reflect this new form of discrimination.  Employers and human resources managers should also train their supervisory staff on how to implement the Paycheck Fairness Act and identify what jobs are considered “equal work.”  In addition, employers should review their pay scales and salary schedules to ensure that pay differentials and considerations for raises and bonuses are based on merit-based, seniority, or other acceptable systems as recognized in the statute.  Finally, with respect to the law on disciplining employees for disclosing the amount of their wages, employers should use caution when citing “insubordination” as a reason for terminating or disciplining their employees.  Specifically, if an employee complains about their pay, and in the course of verbalizing that complaint, discloses the amount of his or her wages, employers could face liability if that complaint was cited as the reason for the employee’s termination.

On June 30, 2014 the United States Supreme Court ruled in favor of Hobby Lobby in a controversial 5-4 decision regarding the Affordable Care Act provision mandating that insurance policies cover contraceptives without charge to the insured.  The Court ruled that Hobby Lobby, Inc. a corporation which owns a number of arts and crafts stores can refuse to provide health insurance coverage to employees for some forms of birth control.  The company, deemed to be a “closely held” corporation, is owned by a family of devout evangelical Christians who objected on religious grounds to providing health insurance which would pay for certain types of birth control, specifically intrauterine devices and morning-after pills.

The Supreme Court’s decision is limited to the requirement under the Affordable Care Act to provide contraceptives at no cost as one of a list of women’s preventative health services.

Justice Alito, writing for the majority,  stated that it is not necessarily the case that an insurance coverage mandate will be struck down if it conflicts with an employer’s religious beliefs.  This is a narrow decision which applies to companies which are “closely held” or “family-owned” and where the religious identity of the company is  strongly tied to the owner’s religious beliefs.   The court cautioned against concern that this decision would allow employers to opt out of covering other medical procedures like blood transfusions.

In addition to the controversial religious aspects of the decision its real significance may lie in the fact that this is the first time the Court has ruled that a for-profit business can hold religious beliefs.  The real struggle in the future is likely to be in determining what it takes to be a “closely held” business with sincerely held religious belief.  What determines a company’s status as closely held is a creature of state law, and some states do not define or even use that term.  What is clear is that this decision has moved the discussion from family owned businesses and the proverbial “Mom and Pop” operation to a large, profitable company.  The Court’s majority was convinced that the management of Hobby Lobby was concentrated in a small enough group of people with the same religious beliefs to support their refusal to provide the mandated coverage on religious grounds.  The question now is what the future implications of this decision might be, not only with respect to the ACA but in connection with other laws against which a religious objection might be lodged.

 

President Obama signed an Executive Order that prohibits discrimination based on sexual orientation and gender identity in federal hiring and for federal contractors and subcontractors.  The Order requires that the US Department of Labor issues regulations to implement the order within 90 days. This Order takes effect immediately as to the hiring and employment provisions affecting over 2.5 million Federal employees. Contracts entered into on or after the regulations are promulgated by the Department of Labor must comply with the Order. Federal contractors will be required to maintain and/or amend hiring and employment policies against discrimination based on sexual orientation and gender identity.

Currently, there is no federal law that prohibits discrimination based on sexual orientation and gender identity that applies to all employers with 15 or more employees. The Employment Non-Discrimination Act (“ENDA”) would extend existing federal law protections to LGBT employees and was approved by the Senate, but has stalled in the House of Representatives. 21 states (NH and MA included) and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation and 18 states (MA included) also prohibit discrimination based on gender identity.