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Question Corner (August 2019)
August 29, 2019
Parsons Behle & Latimer Legal Briefings


Q. Does the Americans with Disabilities Act (ADA) require us to provide refrigeration for employees in the designated lactation room?

A. While such an accommodation might be considered as a good business practice to retain parenting employees, the ADA does not require that refrigeration be provided. In fact, the ADA does not include any specific requirements to accommodate nursing employees in the workplace. Instead, it is the Fair Labor Standards Act that provides federal protection, requiring reasonable break times in a dedicated place other than a bathroom to express the milk.  

Utah state law provides protections and requirements similar to those provided under the FLSA but does so using language similar to that used in the ADA, which conceivably could result in greater requirements than those imposed under the FLSA. The Utah Antidiscrimination Act requires employers of 15 or more employees to provide reasonable accommodations for an employee related to pregnancy, childbirth, breastfeeding, or related conditions, if requested by the employee, unless the employer demonstrates that the accommodation would create an undue hardship on its operations. Reasonable accommodations can take many forms, such as providing a private room for employees to express breast milk or providing more frequent rest breaks and possibly providing refrigerated storage (which is not required under the FLSA). The Act also requires employers to include in an employee handbook or to post in a conspicuous place, written notice of an employee’s rights to reasonable accommodations for pregnancy, childbirth, breastfeeding or related conditions. The Utah Nursing Mothers in the Workplace statute imposes more extensive protections and requirements on public employers.

Q. We want to transition exclusively to paperless pay stubs for our employees. Is there any legal requirement preventing us from doing so?

A. Federal, Idaho and Utah state law do not prevent you from transitioning to paperless pay stubs. Keep in mind, however, that under Utah law, an employee may refuse to have wages electronically deposited if the employer's federal employment tax deposits are less than $250,000, or less than two-thirds of its employees have their wages deposited by electronic transfer, in which case, paperless pay stubs may be pointless.

Q. How should we handle a pre-employment drug test that comes back positive for THC because of CBD oil prescribed to treat Lupus?

A. In Idaho, CBD is legal under current law only if it contains zero THC. Any use of a medical product with THC is still illegal in Idaho, regardless of the underlying condition it is being used to treat. You may still base an adverse employment action on a positive THC test in Idaho despite the ever-changing legal landscape for marijuana in neighboring states. However, depending on the employee’s explanation, your company’s drug policies and to what extent the employee’s position is safety-sensitive, you may want to agree to allow a split specimen to be sent to another laboratory for testing to confirm the positive testing.

Similar considerations apply under Utah law. Utah law allows for CBD containing less than 0.3 percent THC.

Q. Last month, our board of trustees approved a three-percent company-wide salary increase, retroactive to April 1, 2019. Should an employee resigning at the beginning of this month receive the increase since he was an active employee when it was approved? It won't process payroll until after his last day. We also have some employees who resigned between April 1, and when the increase was approved. Should they receive the retroactive increase as well?

A. The Fair Labor Standards Act (FLSA) does not prohibit your board from setting limits on the salary increase, such as who is excluded from the retroactive application. Often, organizational employment policies may already address this issue, putting employees on notice that upon notice of resignation, they may not qualify for further additional benefits or perks.

Jason R. Mau is an employment and labor attorney in the Boise office of Parsons Behle & Latimer.  He can be reached by calling (208)-562-4898 or by sending an email to jmau@parsonsbehle.com.

Mark A. Wagner is an employment and labor attorney in Salt Lake City office of Parsons Behle & Latimer.  He can be reached by calling (801) 532-1234 or by sending an email to mwagner@parsonsbehle.com.