Legislative Updates

A federal bill that would decriminalize cannabis use has been approved by the U.S. House of Representatives for the second time, but the bill's fate in the Senate is unclear. If signed into law, the act would resolve conflicts between federal and state law that cause confusion for employers—but state laws on medical and recreational marijuana use would still vary.

The Marijuana Opportunity Reinvestment and Expungement (MORE) Act, H.R. 3617, passed the House in a 220-204 vote on April 1 with all but two Democrats voting for the measure and all but three Republicans voting against it.

Marijuana is still listed as a Schedule I drug under the federal Controlled Substances Act, which means it is deemed to have a high potential for abuse and no medical value. The MORE Act would deschedule marijuana, remove criminal sanctions and provide some relief for past convictions.

What would the act mean for the workplace? States would still regulate cannabis and would not be required to legalize its use. Currently, 37 states have approved medical marijuana use, and 18 of those states and Washington, D.C., also have approved recreational use.

The Mental Health Parity and Addiction Equity Act (MHPAEA) became law in 2008 but wasn't "given teeth" until Congress passed the Consolidated Appropriations Act, 2021 (CAA, 2021), which requires employers to evaluate their compliance with the MHPAEA and ensure they provide equal coverage limits for mental health/substance use disorder benefits and medical/surgical benefits. Last April, the Department of Labor (DOL) issued guidance to help plan sponsors and administrators comply with the stepped-up compliance requirements.

Employers that sponsor physical health and mental health coverage are on notice that they can face DOL enforcement actions and be sued by employees if they fail to provide equal coverage for mental health issues.

Mental health parity rules are directed at both insurance carriers and employer-sponsored group health plans. Fully insured employer-sponsored plans, however, often rely on their insurance carriers and trust that their administration is appropriately following the rules. For self-funded plans, employers rely on third-party administrators (TPAs) and, if drug coverage is carved out, pharmacy benefits managers (PBMs).

To stay compliant, employers should ensure that mental and physical health coverage offered are equivalent. 

On March 29, the House overwhelmingly approved the bipartisan Securing a Strong Retirement Act by a vote of 414 to 5.

The bill, dubbed "SECURE Act 2.0," builds on the Setting Every Community Up for Retirement Enhancement (SECURE) Act, signed into law in December 2019 to improve retirement savings opportunities for workers.

The Senate is considering its own version of SECURE Act 2.0, the Retirement Security and Savings Act, which shares many similar provisions as the House bill. 

If the Senate passes a SECURE Act 2.0 measure, as is expected, both chambers would likely move to reconcile their separate versions.

Key retirement plan changes made by SECURE Act 2.0, as passed by the House, include:

• Automatic enrollment in retirement plans
• Increase in required minimum distribution age beginning date
• Enhancements to the age 50+ catch-up provisions
• Online lost and found for long-forgotten pension benefits
• Modified rules to allow SIMPLE IRAs to accept Roth contributions

CDC’s new COVID-19 Quarantine and Isolation calculator takes the stress out of deciding when, and for how long, people with COVID-19 and close contacts need to stay home, get tested, and wear a well-fitting mask.

The calculator provides important information about what precautions people with COVID-19 and their close contacts can take to protect loved ones and prevent COVID-19 in their communities.

This online, mobile-friendly calculator provides a simple, easy-to-use way to help people follow CDC’s Quarantine and Isolation guidance and get customized information that applies to their unique situation.

On March 22, the Occupational Safety and Health Administration (OSHA) reopened the comment period on its proposed final rule to protect health care workers from COVID-19, indicating that the department is considering relaxing some of the standards from what it initially recommended.

All but the record-keeping requirements of the ETS for health care workers—a standard that was introduced in June 2021—expired in December 2021. OSHA is now seeking to implement a final rule.

Individuals interested, may submit https://www.regulations.gov/docket/OSHA-2020-0004/commentswritten comments online by the deadline of April 22, 2022. OSHA will hold a virtual hearing regarding its interim final rule on April 27. If necessary, the hearing will continue on subsequent days, the agency said.

The U.S. House of Representatives recently passed a measure that would protect employees from discrimination based on natural hair and hairstyles associated with race and national origin. 

The Creating a Respectful and Open World for Natural Hair (CROWN) Act—HR 2116—passed the House in a 235-to-189 vote on March 18.

The proposed legislation would prohibit employers from firing, refusing to hire or otherwise discriminating against workers based on "hair texture or hairstyle, if that hair texture or that hairstyle is commonly associated with a particular race or national origin."

This would be the first piece of federal legislation addressing appearance discrimination as it specifically relates to a worker's protected characteristic—in this case, race.

Employers should note that some states already protect workers based on natural hair and hairstyle. California became the first state to pass a CROWN Act in 2019, and more states and cities followed suit.

The U.S. House of Representatives has approved a bill that would prohibit employers from enforcing arbitration agreements that workers sign before disputes arise. However, the Democrat-backed measure may face resistance in the Senate because Republican lawmakers have raised concerns about the bill's reach.

The action comes on the heels of a new law banning such agreements for sexual-harassment claims, but the proposed legislation is much more expansive.

Notably, the Senate declined to pass the bill in 2019, and many business groups, including the Society for Human Resource Management (SHRM), oppose H.R. 963.

If enacted, the FAIR Act would invalidate pre-dispute arbitration agreements and joint-action waivers for employment, consumer, antitrust and civil rights disputes.

If the FAIR Act is ultimately signed into law, it would take effect immediately and "apply with respect to any dispute or claim that arises or accrues on or after such date," according to the bill. The law would not apply to arbitration provisions in collective bargaining agreements between employers and labor unions. 

Employers should note that the new law banning pre-dispute agreements to arbitrate sexual-harassment claims, H.R. 4445, already took effect.

The U.S. Equal Employment Opportunity Commission (EEOC) today released a technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” explaining discrimination against employees and job seekers with family caregiving responsibilities.

The technical assistance provides pandemic-related examples of discrimination against caregivers. For example, it would be illegal if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s healthcare costs would increase. It also would be unlawful for an employer to refuse to promote a woman based on assumptions that, because she was female, she would focus primarily on caring for her children while they quarantined or attended school remotely.  

Additionally, the technical assistance document addresses situations in which caregivers may encounter illegal harassment, retaliation, or discrimination based on pregnancy, gender, association with someone who has a disability, or other bases protected by EEOC-enforced laws. 

In addition to this new technical assistance document and related “What You Should Know” updates, the EEOC also released a short video explaining caregiver discrimination in English and Spanish. More information about caregiver discrimination is available in the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document.

The U.S. Supreme Court today blocked the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. But it allowed the federal government to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.

The first decision criticized OSHA's rule as a "blunt instrument" that "draws no distinctions based on industry or risk of exposure to COVID-19." It also called the rule a "significant encroachment into the lives—and health—of a vast number of employees." The Occupational Safety and Health Act does not plainly authorize the rule, the court stated.

In the second decision, the court noted that "health care workers around the country are ordinarily required to be vaccinated for diseases." 

While the U.S. Supreme Court has not yet issued a decision on whether or not to enforce it, the Iowa Division of Labor stated it will not.

“As a state plan state, the Iowa Division of Labor is charged with protecting the health and safety of those in the workplace and has the authority to enforce workplace safety and health standards for Iowa businesses,” explained Iowa Labor Commissioner Rod Roberts. “Iowa doesn’t have a standard requiring the Covid-19 vaccine or testing. But after closely reviewing the federal OSHA Vaccine Mandate, Iowa has determined it will not adopt the federal standard. Iowa has concluded that it is not necessary because Iowa’s existing standards are at least as effective as the federal standard change.”

With Commissioner Roberts’ decision, Iowa employers and their employees are not required to comply with the federal OSHA Vaccine Mandate.