Other employment law changes have stayed in the shadow of new overtime pay rule.

Other employment law changes have stayed in the shadow of new overtime pay rule.

A federal judge's order has effectively delayed new federal rules to expand the number of workers eligible for overtime pay, which had been a front-and-center concern for employers for months.

But there are still other labor and employment law changes that demand employers' attention. Among some of the more interesting are potential legal pitfalls of providing fitness trackers to workers, the legality of mandatory post-accident drug testing and Ohio's new medical marijuana law.

‘Big Brother' at Work

On the face of it, giving a fitness tracker to an employee would seem like a low-risk proposition for businesses trying to promote good health in their workforce. Employees get to focus a bit more on exercise and even have some fun in team competitions that track who walks the most steps or loses the most weight. Businesses may see a boost in productivity and drop in absentee rates as employee health levels rise. They could also benefit from a drop in health insurance costs. But there are potential legal risks for employers that provide so-called fitness “wearables” to their workers, says Carrie Gutowski, an attorney at Isaac Wiles Burkholder & Teetor LLC in Columbus.

“It's very theoretical right now, and there's not a lot of case law out there,” she says, “but people are really interested in privacy concerns surrounding employers gathering health data (with wearables).”

For example, some wearable devices have GPS capability that allows employers to monitor the movements of their workers within the building or away from the office. That's probably permissible during the workday, Gutowski says, but a worker in California filed an invasion of privacy lawsuit over being tracked 24 hours a day.

“It's a little ‘Big Brother' to monitor what employees do at 10 at night if they're 8-to-5 workers,” she says, adding workers should be able to deactivate the devices when they go off the clock.

Employers should also be aware that providing fitness tracking devices to workers may give rise to a claim under the Americans with Disabilities Act. That could be the case if the health data that's collected reveals an employee has a previously undisclosed medical condition and the employer appears to make “an adverse employment decision” based on the perception of a disability.

“The best thing to do is make sure the data is collected anonymously and in aggregate,” says Gutowski, who also advises clients to hire a third-party company to store and manage that data. “Then you don't have to worry about anyone in your company misusing the information. Your managers don't need access to this data for you to reap the benefits of the (wellness) program and insurance discount.”

Gutowski also recommends that companies have a clear, written policy that spells out how the health data will be stored and used and who has access to it. Then they need to stick to the policy.

“If I was an employer,” she says, “I would be worried about the potential for abuse of the information–for a rogue manager to be tempted to use the data in a different way than intended.”

Better Safe than Sorry

Businesses that want to stay on the right side of the law with the Department of Labor's Occupational Safety and Health Administration need to be aware of some regulatory changes affecting post-accident drug testing and incentive programs for workplace safety.

To discourage employers from retaliating against workers for reporting injuries or illnesses, OSHA wants to put more teeth in its anti-retaliation provisions, says Bob Robenalt, an attorney with the Columbus office of Fisher Phillips LLP.

One of the changes stems from a 2016 OSHA decision that employers could violate federal law by automatically conducting post-accident drug testing of injured workers. The same goes for establishing incentive programs that reward employees for zero work-related injuries.

OSHA has said post-accident drug testing would deter reporting of injuries and illnesses by workers, but its stand is being challenged in federal court by the National Association of Manufacturers, Associated Builders and Contractors and other groups.

“That's the most controversial section in the law,” Robenalt says.

He also says OSHA has indicated that nothing in the rule will affect employers if the drug testing is appropriate under a state's drug-free workplace program or if there is a “reasonable possibility” that drug use contributed to an accident.

Robenalt recommends employers look closely at incentive programs that reward employees for maintaining an accident-free workplace. OSHA believes some of these programs discourage employees from reporting injuries because they and their coworkers would lose their safe-workplace bonuses.

OSHA has also issued new rules that require large employers or those in high-risk areas to electronically submit injury and illness data rather than using the logs filed in the past. In addition, the agency has sought the authority to cite an employer believed to have retaliated against a worker who reports an injury or illness. Previously the worker had to file a retaliation complaint before OSHA could act.

“It provides OSHA with more ammunition against these employers,” Robenalt says. “That is a pretty significant change in the law.”

Pot Law a Bit Hazy

Proponents of medical marijuana in Ohio have finally gotten their way with the legalization of pot to treat medical conditions, but employers in the state are wondering how the change will affect their drug-free workplace policies.

It can be a confusing issue because marijuana continues to be classified as an illegal drug at the federal level, says Brigid Heid, an attorney who chairs the Employment and Labor Practice Group at Carlile Patchen & Murphy LLP in Columbus.

“It's still illegal at the federal level even if a state passes a law to make it legal recreationally or for a medical purpose,” she says. “(That means) an employer still has the right to regulate employment and restrict the use of marijuana at work … I think many employees will think it's OK (to use medical marijuana) and then find out the hard way that it's still a violation of their employer's policy.”

That makes it incumbent upon employers and managers to explain that the company still does not permit marijuana use by its workers, so employees should “proceed with caution” with medical marijuana, Heid says.

In addition, businesses that don't have an overwhelming need to randomly test all employees for marijuana use—such as office workers who don't pose safety concerns—may want to look at dropping pot from their random testing program.

Employers have some time to think about it since Ohio regulators are still working out the particulars on establishing rules to license growers, regulate dispensaries, register patients and address other administrative matters. The rules don't have to be in place until September of 2017.

Passed by state legislators and signed into law by Gov. John Kasich in June, Ohio's law allows patients with any of 20-plus medical conditions to buy and use marijuana if recommended by a physician.

Heid's best advice on the issue is for employers to look at their drug-free workplace and drug-testing policies to see if they need clearer language so employees understand the risks of using marijuana under the new state law.

“It creates all sort of issues and questions we haven't had to grapple with yet in Ohio,” she adds.

Jeff Bell is a freelance writer.