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Foster Swift Employment, Labor & Benefits Quarterly
Fall 2010
Due to several recent changes in employment law, we highly recommend that all employers update their employee handbooks as soon as possible.
Federal Law Updates
Recent changes in federal law include the passage of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), that went into effect in November 2009. Under GINA, employers are prohibited from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions, or privileges of employment.
Second, under an amendment to the Fair Labor Standards Act (FLSA) included in the health care reform law enacted in March 2010, employers must now provide reasonable unpaid breaks and a private space to nursing mothers to express milk for up to one year following the birth of their child.
Further, on January 28, 2008, President Bush signed into law the National Defense Authorization Act, which included two major amendments to the Family Medical Leave Act (FMLA), expanding the benefits of the FMLA to assist military members and their families. This law was further expanded by President Obama in 2010. Employers subject to the FMLA should have an employment attorney review all FMLA policies and procedures.
State Law Updates
Employers should be aware that Michigan passed the Michigan Marihuana Act. ("Marihuana" is an alternative spelling used in the Act.) Because the Act is so new, there is very little interpretive guidance; so our advice to employers, at least currently, is that medical marijuana be treated as a prescription drug. If the employee’s performance is impaired, the situation should be handled the same as if an employee’s performance is affected by any prescribed drug. Note that an employer can still prohibit medical marijuana use in the workplace. All substance abuse policies should be updated to ensure compliance and enforcement under this law.
Finally, effective May 1, 2010, the state banned smoking in all public places, including places of employment. We recommend that employee handbooks include a carefully crafted policy that (1) explains the smoking ban that may be imposed for violators; and (2) provides notice that employees who smoke in violation of the law will be subject to discipline, up to and including discharge.