Fertility Benefits, Marijuana, Whistleblowers

Categories: Employee Benefits, Employment Compliance, Whistleblower Defense

What employers should know about key developments this week:

Federal Agencies Propose Fertility Benefit Expansion: The U.S. Departments of Labor, Health and Human Services, and the Treasury have issued a proposed rule to allow employers to provide fertility coverage as a limited excepted benefit, exempt from the Affordable Care Act and the Health Insurance Portability and Accountability Act’s portability requirements.
DOT Clarifies Medical Marijuana in Drug Tests: The U.S. Department of Transportation (DOT) has confirmed that a positive drug test for marijuana is disqualifying, regardless of whether the employee has a state medical marijuana license.
Massachusetts Court Upholds Whistleblower Protections: According to the Massachusetts Supreme Judicial Court, whistleblowers in the state are protected, even if they’re complicit in the violation.

Fertility Benefits, Medical Marijuana, and Whistleblower Protections
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July 1, 2026
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Transcript

[00:00:03] George Whipple: Welcome to Employment Law This Week. I’m George Whipple. Minimum wage increases take effect today, July 1, for employees in Alaska and Oregon. Health care and hospitality workers in California, and California employees in several cities will also see minimum wage hikes beginning today. Employers may soon have the option to increase employee access to fertility treatments, as several agencies have proposed expanding federal benefits.

[00:00:38] The Departments of Labor and the Treasury, together with the Department of Health and Human Services, have issued a proposed rule to allow employers to provide fertility coverage as a limited excepted benefit, exempt from ACA and HIPAA portability requirements. The benefit would cover diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions by a licensed or authorized medical professional.

[00:01:11] Under the proposed rule, employees would be able to opt for this coverage without enrolling in a group health plan. Comments on the proposed rule are open until July 13. Medical marijuana doesn't pass the test. Medical marijuana doesn't pass the test - The Justice Department’s reclassification of medical marijuana as a Schedule III drug earlier this year raised questions for many employers.

[00:01:38] The U.S. Department of Transportation has an answer for DOT-regulated employers: a positive drug test for marijuana is disqualifying, even if the employee has a state medical marijuana license. The guidance asserts that a rescheduling decision under the controlled substances act does not amend the regulation that governs testing.

[00:02:03] So, under federal law, a state medical marijuana card is still not a valid medical explanation for a positive test. Whistleblowers in Massachusetts are protected, even if they’re complicit in the violation - that’s according to the State Supreme Judicial Court. In this case, a community college failed to report allegations of sexual assault lodged by a student as required by the federal Clery Act.

[00:02:31] The plaintiff, who was in charge of campus security, initially failed to submit required reporting, but ultimately blew the whistle on his employer for encouraging the omission. The court ruled that the plaintiff’s subsequent termination could be deemed to violate the Massachusetts Whistleblower Act, regardless of the plaintiff's involvement in the violation.

[00:02:54] That’s it for this week. Thanks for watching. We’ll see you next time.

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