Monthly Archives: February 2015

MEDICAL MARIJUANA AND THE WORKPLACE: THE STRAIGHT DOPE

Cheech:  “Hey man, how’s my driving?”

Chong:  “I think we’re parked, man.”

ARIZONA’S MEDICAL MARIJUANA ACT

In 2010, Arizona legalized the use of medical marijuana. The Arizona Medical Marijuana Act (the “Medical Marijuana Act”) severely limits employers in their workplace decisions based on employees’ authorized use of medical marijuana. It is perhaps the most pro-employee marijuana legislation in the nation. The legislation is a potential trap for Arizona employers with strong substance abuse policies and has caught many Arizona employers off-guard. Who would have thought that marijuana smoking employees would be granted more protection against termination than those who smoke conventional tobacco?

The Medical Marijuana Act prohibits employers from discriminating against medical marijuana cardholders as follows: “Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person” based upon the person’s status as a medical marijuana cardholder or a registered patient’s positive drug test for marijuana components or metabolites. In other words, subject to certain situations set forth in this newsletter, an Arizona employer may not fire a card holding employee solely on the basis of that employee’s positive marijuana drug test.

The Medical Marijuana Act, however, is not a license for card holding employees to show up to work while impaired. Under the law, “nothing prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana.” Employers must thus walk a fine line: they cannot fire employees solely for showing up to work with marijuana in their systems, but they can (and should) discipline or discharge employees who are “working while under the influence of marijuana.”

THE “SAFETY-SENSITIVE POSITION” EXCEPTION

Employers may lawfully refuse to place any employee who is using medications, including marijuana, in a “safety-sensitive position.” Employers must therefore determine which of their employees occupy safety-sensitive positions. Any employee occupying such a position can be removed from that position if any drug, including marijuana, could cause impairment or decrease the employee’s job performance or duties. The employer must have a “good faith belief” of such based on: drug or alcohol test results; warning labels or other instructions for the use of the drug; statements by the employee; medical certification from a physician or pharmacist; or information from reputable reference sources or other information the employer believes to be reliable. Among other options, an employer may reassign the employee to another position or place the employee on paid or unpaid leave.

“Safety-sensitive position” means any job reasonably designated by an employer as a safety-sensitive position or any job that includes tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others, including any of the following:

  • Operating a motor vehicle, other vehicle, equipment, machinery or power tools.
  • Repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage.
  • Performing duties in the residential or commercial premises of a customer or vendor.
  • Preparing or handling food or medicine.
  • Working in any occupation regulated under Arizona Revised Statutes Title 32 (generally medical, engineering, pharmacy, security).

IMPAIRED EMPLOYEES ARE NOT PROTECTED BY THE ACT

The Medical Marijuana Act is not a license to come to work stoned or otherwise impaired. “Impairment” means symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol, including diminished capacity for: speech, walking, standing, physical dexterity, agility, coordination, actions, movement; as well as an employee’s demeanor, appearance, clothing, body odor, irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident that results in serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.

Impairment can be determined by:  observed conduct, behavior or appearance;   information reported by a person believed to be reliable, including a report by a person who witnessed the use or possession of drugs or drug paraphernalia at work; written, electronic, or verbal statements; lawful video surveillance; records of government agencies, law enforcement agencies or courts; results of a test for the use of alcohol or drugs; or other information reasonably believed to be reliable or accurate.

CONCLUSION

The Medical Marijuana Act does not condone or permit impaired employees — whether the impairment is from marijuana, prescription pills, or other substances — to roam the workplace. The most significant challenge for employers is to determine whether a marijuana card holding employee who tests positive is actually “impaired” on the job, or is not impaired and simply using marijuana away from work — a use specifically authorized and protected by Arizona law. Employers should never look the other way when an employee tests positive for drugs. Such a practice exposes employers to significant costs and liability. Now, however, firing an employee solely for testing positive on a drug test can create its own liability. Employers must balance these competing concerns and make careful, reasoned, and supportable decisions.

For an interesting look at how mainstream views have changed, check out this trailer from the 1938 classic, “Reefer Madness.”

 

 

 

LEAVES OF ABSENCE: WHAT EVERY EMPLOYER AND HR PROFESSIONAL NEED TO KNOW

When and under what circumstances to allow ill or disabled employees to take leaves of absence sometimes bedevils business owners and human resource professionals. However, with knowledge and planning, dealing with employee absences can be relatively straightforward and simple. This edition of the HR Law Insider addresses the most common situations that arise and how to deal with them.

THE MOST COMMON TYPES OF LEAVE: EMPLOYEES WITH MENTAL OR PHYSICAL PROBLEMS

Below are five common examples of employee problems that trigger leave of absence requests. Here’s how to deal with them:

(1) Broken arm, flu, or similar temporary injury or illness: typically, employers allow leave or sick time for employees to deal with broken bones, the flu, and similar maladies. There is no legal requirement to allow such leave or time off. HOWEVER, once an employer does allow such leave, it should apply its policy consistently and in accordance with its employee handbook. This will eliminate the potential for viable discrimination claims based on alleged unfair treatment.

I have defended (and sometimes prosecuted) numerous discrimination claims involving, among other groups, minority, pregnant, and older workers. The inconsistent application of a leave policy — for example, allowing a 25 year old white male leave, while denying leave to a similarly situated older minority worker — is a common trigger for such claims.  To defend this type of discrimination claim, a company must come forward with a bona fide business reason as to why it seemingly favored one employee over another — why it allowed one worker to take a leave while it fired the other for not coming to work.

(2) Mental disorder, such as OCD, depression, or bipolar disorder: a serious mental disorder may require an employer with 15 or more employees to make a reasonable accommodation for the employee under the Americans with Disabilities Act (ADA). A reasonable accommodation might include the granting of a leave of absence.

(3) Chronically bad back, cancer, or other chronic physical disability: an employee with a chronically bad, cancer, or other serious physical disability may have the same rights to leave as the employee with a serious mental disorder. Each situation must be evaluated carefully and on its own merits (or lack thereof). Part of the evaluation may include obtaining information from the employee’s health care provider to verify the employee’s condition and, later, to determine whether the employee is fit to return to work.

(4) Pregnancy: as strange as it sounds, in the eyes of the law a “normal” pregnancy is viewed the same as a broken arm or the flu for purposes of granting leave requests. For example, if a male employee with a broken arm is provided with four weeks’ leave, but a pregnant employee is subsequently denied leave because the employer says it “doesn’t give time off,” the latter could credibly argue that the employer has violated the Pregnancy Discrimination Act (PDA). The PDA prohibits discrimination against pregnant employees and provides that such employees shall be treated no worse than other “injured” employees that have been provided leave during an injury.

A pregnancy with serious complications may trigger application of the ADA and/or FMLA as well as the PDA. If applicable, the FMLA would require the employer to provide leave of up to 12 weeks, while the ADA might require a leave of absence or other accommodation to allow the employee to continue employment.

(5) Spouse or child of employee has serious illness: For employers with over 50 employees, an employee with  a family member with a serious physical or mental problem may trigger a leave requirement of up to 12 weeks under the Family Medical Leave Act (FMLA).

IMPORTANT NOTE: Many employers fail to consider that their particular city, county, and/or municipality may also have a law(s) concerning mandatory leave. This is the exception to the rule — most do not. However, businesses should always ask counsel whether their local jurisdiction requires employee leave separate and apart from any federal or state requirements.

Understand, there are any number of employee issues that may trigger discretionary or mandatory leaves of absence. When in doubt, be consistent. Equally important, contact legal counsel if there is any concern about, or potential for, a discrimination lawsuit or other claim.

“GO TO” LIST OF TYPES OF LEAVE

The next time your business faces a potential leave of absence issue, review the following list to see if any of the following may apply:

     MANDATORY TYPES OF LEAVE

  • FMLA
  • ADA
  • PDA (see example above)
  • Military
  • Jury duty
  • Voting
  • Possible religious accommodation
  • Crime victims (under certain circumstances)

     DISCRETIONARY TYPES OF LEAVE

  • Vacation/PTO
  • Bereavement
  • Sick leave (non-ADA, FMLA, etc.)
  • Maternity/paternity (non-ADA, FMLA, etc.)
  • Holiday
  • Personal reasons

CONCLUSION: IDENTIFY THE TYPE OF LEAVE AT ISSUE, KNOW THE LAW, AND BE CONSISTENT 

Handling potential leave situations is relatively straightforward: identify the type of leave at issue, know the law and whether leave is mandatory or discretionary, and be consistent.

Long employee absences sometimes pose significant problems for employers — lost production, administrative burdens, etc.   Granting a leave often requires a great degree of patience and discipline. Exercising these virtues will assure that your business complies with the law and reduces the risk of employee lawsuits.

SUPER BOWL SUNDAY SPECIAL EDITION: OMAHA, OMAHA! — CALLING AUDIBLES DURING WORKPLACE INVESTIGATIONS

Super Bowl Sunday: on a day when most Americans will be watching the game — or using the game as a good excuse to get their party on — some of us are reminded of the great economic engine that is the NFL. But how does it continue to increase in popularity and revenues? Should these not be declining given recent PR disasters and investigations into “deflate gate,” domestic abuse, discrimination, etc.?

Commissioner Rodger Goodell has been maligned by the media for “leading” a league that in many instances doesn’t seem to care. Team owners, however, have a different take. They see a man leading an unprecedented rise in league revenues — a leader that, after a series of mistakes, is becoming adept at calling audibles during workplace investigations.

This special Super Bowl edition of the HR Law Insider discusses calling audibles during the course of workplace investigations — when “going by the book” isn’t the best course of action to achieve the desired result.

DEFLATE GATE 

For the uninitiated — for those who have been living in a cave — “deflate gate” is the name given to the ongoing scandal involving the New England Patriots. The Patriots are accused of improperly deflating footballs prior to their recent game against the Colts. Patriots quarterback Tom Brady has said that he likes his balls less inflated. So, when 11 of 12 Patriots’ balls tested at halftime proved to be deflated and below the league approved minimum, the you know what hit the fan.

The NFL has obtained videotape of a Patriots’ ball boy entering a bathroom with the balls and emerging 90 seconds later.  Commentators have three theories as to what happened in the bathroom. Numbers one and two are too obvious to mention. The third, and prevailing, theory is that the ball boy deflated the balls during his bathroom sojourn. Yes, one can deflate 11 balls well within 90 seconds:

http://video.nydailynews.com/Done-in-40-Seconds-Newser-Deflates-12-Footballs-in-40-Seconds-28443950

There is indeed a distinct advantage to having deflated balls:

http://espn.go.com/video/clip?id=12206777

THE NFL’S INVESTIGATION: DELAY OF GAME 

One would THINK that it would take several days for the NFL to investigate and determine what happened to those 11 balls.  The investigation would include:

  • Reviewing security videotapes;
  • Interviewing Brady and the Patriots’ coaching staff (e.g. I would have Brady handle deflated balls and inflated balls and ask him various questions abut how they feel and what he likes to test his credibility);
  • Interviewing the ball boys;
  • Interviewing sideline and other personnel who handled the balls;
  • Constructing a timeline of the balls and changing inflation levels;
  • Consulting ball pressure experts; and
  • Reaching a conclusion

The NFL, however, is nowhere near reaching a decision. Among other things, the league has hired lawyers and says it needs to interview as many as 40 people!

Is the NFL stalling? I think so. Anything that will affect the NFL’s biggest prize — the Super Bowl — must be stopped or, as is the case here, delayed until after the Big Game.

The NFL has called an audible in an effort to run out the clock. And it is working. Many are already “tired” of hearing about a scandal where nothing has been proven. Brady and the Patriots are free to go forward — more galvanized than ever to prove the haters wrong — and play the game. If they win, and are later determined to have cheated, many will say that they beat the Seahawks “fair and square” and “who cares.”

The NFL is equally free to go forward with its crown jewel game. If it is later decided that the Patriots cheated, the league will “get tough” and penalize the Patriots with the loss of a draft pick or two and perhaps a fine. Painful? Yes. But relatively little compared to the decision occurring BEFORE today’s game. Such a decision would have placed the league and Patriots in an awful and awkward position.

HR LESSONS TO BE LEARNED 

No two workplace investigations are the same. Investigations are not one dimensional: WHEN to take action is sometimes as important as WHAT is decided. Timing, while not everything, is oftentimes critical in how a company’s decision is evaluated by the public, by regulatory agencies (e.g. EEOC; Department of Labor; OSHA, etc.), and by judges and juries.

So, when the next scandal hits the NFL, or when your business faces its own workplace challenge, carefully consider: how and when to take action. Usually the answer is: “methodically and right away.” But sometimes your company may need to call an audible at the proverbial line of scrimmage — deviating from the so-called book because the book was written for most, but not all, situations.

Have a great Super Bowl Sunday.  I know I will be glued to the tube being the football geek that I am.

For those not averse to some strong language, watch Burt Reynolds himself resolve a workplace dispute on the gridiron — in my favorite football movie ever: