Reversing itself, the Second Circuit held on Monday, February 26, that sexual orientation discrimination is discrimination “because of . . . sex” under Title VII in Zarda v. Altitude Express. The Second Circuit’s decision aligns it with the Seventh Circuit and places it squarely at odds with the Eleventh Circuit.
You may have seen the news that the City of Atlanta recently passed an ordinance decriminalizing the possession of less than one ounce of marijuana. Individuals found in possession of such small amounts of marijuana will now be fined $75 and face no jail time. Earlier this year, Georgia enacted a law expanding the qualifying medical conditions for which cannabis oil may be legally used. Now individuals with certain health conditions (including seizure disorders, Crohn’s disease, Multiple Sclerosis, Parkinson’s, Sickle Cell, cancer, Alzheimer’s, AIDS, Autism, and Tourette’s Syndrome) may possess twenty ounces of cannabis oil with up to a 5% THC level with doctor’s approval. While Georgia (and most of its Southeastern neighbors) remains far from legalizing marijuana for medicinal or recreational purposes, these two recent legal changes reflect a national trend towards marijuana that can create a problem for many employers.
Currently, 28 states and Washington D.C. have legalized marijuana for medical purposes and 8 states (Nevada, Colorado, California, Maine, Massachusetts, Oregon, and Washington) and Washington D.C. have legalized marijuana for recreational use. However, since marijuana remains a Schedule 1 controlled substance under the federal Controlled Substances Act, possession of marijuana is still illegal under federal law, prescription or not.
Courts have begun to address whether an employee’s use of medical marijuana can be a reasonable accommodation under the Americans with Disabilities Act and similar state laws. In 2015, the Colorado Supreme Court held that an employer did not commit disability discrimination when it terminated an employee for violating its drug policy (testing positive for marijuana) despite the employee’s doctor’s prescription for medical marijuana. The Court reasoned that because marijuana was still illegal under federal law, the employer did not discriminate based on disability by enforcing its drug policy. Similarly, the Washington Supreme Court held that an employer’s revocation of a job offer based on the applicant’s positive result for marijuana on a drug test was not wrongful despite the Washington State Medical Use of Marijuana Act. The Supreme Court of California has likewise held that the California Fair Employment and Housing Act does not require an employer to accommodate employees who used medical marijuana by ignoring positive drug test results for the drug that violate employer drug policies.
More recently, however, in July 2017, the Massachusetts Supreme Court held that an employer may have to ignore an employee’s drug test failure due to the use of marijuana to treat a qualified disability because it may be a reasonable accommodation under the state’s anti-disability discrimination law. In Barbuto v. Advantage Sales and Marketing LLC, the employee had Crohn’s disease and a physician provided her with written certification that allowed her to use marijuana for medicinal purposes. The employee did not use marijuana before or at work, but nonetheless tested positive for marijuana on the employer’s mandatory drug test. The Court held that employers in the state had a duty to engage in an interactive process to determine whether there are equally effective medical alternatives that would not violate a drug policy. If no alternative exists, the employer must demonstrate that allowing the employee’s use of medical marijuana (or the positive drug screen for the drug) would cause it an undue hardship, such as transportation employees subject to the DOT, federal contractors and recipients of federal grants, or other employers where allowing positive drug tests for marijuana would be a violation of the employer’s contractual or statutory obligations which would jeopardize the company’s ability to perform its business.
While the laws regarding marijuana (and especially its presence in the workplace through a positive drug test) is jurisdiction dependent there are a few general points for employers to consider. First, to the extent employers work with the federal government or have employees subject to federal regulations, marijuana use of any kind is still off-limits. It is also helpful for all employers to explicitly list marijuana as a drug covered by its drug use policies so that employees and applicants understand expectations. However, until the current conflicts between state (or local) and federal laws are resolved, employers need to keep apprised of news laws and interpretations of existing efforts to permit marijuana use, both medically and recreationally where they may have employees living and working.
A recent federal Appellate Court decision offers employers greater flexibility and decision making authority in considering job reassignments for qualified disabled employees. In EEOC v. St. Joseph’s Hospital, a case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama), an employee sought a job reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA). The employer allowed the employee thirty days to apply for vacant positions, but did not automatically grant her a new position. Rather the employer required the employee to compete for a new position pursuant to its best qualified applicant hiring policy – she would be given the job only if she was the best qualified applicant for the position. Continue Reading Are Disabled Employees Entitled to Be Reassigned to an Open Position?
The press has been filled with stories about the new Fair Labor Standards Act (FLSA) regulations which raise the minimum salary level required for employees to be exempt from overtime pay. Specifically, the new regulations — currently set to take effect on December 1, 2016 — raise the minimum salary level required for exempt employees under the executive, administrative and professional exemptions from $455 per week to $913 per week, or from roughly $23,660 annually to $47,456 annually. Often overlooked, however, is the fact that the new regulations also significantly affect the “highly compensated employee” (“HCE”) exemption, as well. Continue Reading Highly Compensated Employees and the New FLSA Regulations
The Eleventh Circuit Court of Appeals (which handles federal court appeals from Georgia, Florida and Alabama) recently issued a surprising and first of its kind decision holding that applicants may not bring a disparate impact claim under the Age Discrimination in Employment Act (“ADEA”). The ADEA prohibits employers from intentionally discriminating against employees 40 or older due to their age. Any such “disparate treatment” (another way of saying intentional discrimination) violates the ADEA. But the ADEA is also usually understood to also prohibit unintentional discrimination on the basis of employees’ age (over 40), such as a rule or policy or practice that while non-discriminatory on its face has the real, if unintended, effect of discriminating against older workers. This concept is known as “disparate impact” discrimination. As the ADEA (and most employment discrimination laws) applies to both employees and applicants for employment, most assume that the disparate impact theory of discrimination also applies to applicants as it does to employees. The Eleventh Circuit, however, said it does not. Continue Reading Can An Employer Legally (If Unintentionally) Screen Out Older Job Applicants?
Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers. Continue Reading Have You Gotten An Email from the EEOC?
Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits. Continue Reading Don’t Let An Employee Wellness Program Make You Sick
In recent days, New York and California took the first steps in addressing new demands for a “living wage,” with both states raising the minimum wage to $15 per hour. New York City and San Francisco also enacted monumental legislation regarding paid family leave. Continue Reading New York and California Lead the Way in Minimum Wage Increases and Paid Leave