By Anthony Califano, Jennifer Mora, and Frederick T. Smith

Seyfarth SynopsisEmployers are grappling with the wave of marijuana laws sweeping the nation, some of which provide very employee-friendly protections. While no state requires an employer to tolerate employees’ use of marijuana or impairment while they are working, present drug testing methodologies cannot determine whether an employee used marijuana two hours or two weeks ago. That might be changing as companies reportedly are closer to developing technology that will be able to detect recent use, a welcome development for both employers and employees.

Here Are The Problems:

Marijuana causes impairment to people who ingest it. Actually, the psychoactive component of marijuana, THC (tetrahydrocannabinol), is what really causes impairment. It weakens judgment and motor function. If an employee goes to work high, that creates serious safety concerns. It also creates legitimate concerns regarding employee judgement, behavior, work product, and efficiency. Science has confirmed that these concerns stemming from marijuana use are legitimate.

Another problem is that marijuana use is illegal under long-standing federal law, the Controlled Substances Act. To be clear, it is still illegal to use, possess, or distribute marijuana. Many employers take issue with the idea of being required to tolerate their employees’ conduct that is plainly criminal. Understandably, employers may not like the message that condoning marijuana use sends to their clients, target markets, and communities.

Opinions as to whether marijuana should be legal vary. But most would agree that no employer should have to tolerate employees working while high from use of marijuana—whether the use is legal or illegal. This idea is similar to the generally accepted idea that employers need not tolerate employees working while intoxicated from alcohol consumption, which is legal. Indeed, a number of state marijuana laws include provisions reflecting that employers need not accommodate or tolerate marijuana use or impairment in the workplace or while working.

This is the point at which perhaps the most practical problem lies for employers and employees. How can an employer know if an employee is impaired or high from ingestion of THC?

An employer with “reasonable suspicion” that an employee is working while intoxicated from alcohol can rely on science to establish impairment. Blood alcohol tests have generally been accepted to measure impairment from alcohol consumption. Unfortunately, there has been no  scientifically-accepted drug test to show impairment from marijuana use. While most tests show the presence of THC in a person’s system, reflecting use in recent days or weeks before the test, they do not show impairment at or near the time of the test.

New And Improved Testing Methods Could Be A Solution:

Science may be catching up with the times. A number of media outlets have reported that certain companies are developing tests that use breathalyzers to evaluate how recently a person used marijuana. According to reports, these tests are being designed to show if a person used marijuana within the 2-3 hours before the test, which has been reported to be within the peak period of impairment after ingestion of THC.  It is unclear if and when these devices will be available for employment-related testing or the costs associated with such tests.

That said, if new marijuana testing devices and methodologies become generally available, and they are validated as a reliable means by which to determine impairment or recent marijuana use, employers may have a much needed solution to their legal and practical dilemmas. In fact, these marijuana tests could bring employees and applicants peace of mind too. An employee who uses marijuana at home on Sunday evening, in accordance with his doctor’s instructions, may be able to rest easy knowing that, if sent by his employer for a drug test on Monday, the test results will show that he was not impaired while working.

The near term development and reliability of these testing devices is currently unknown and employers should not expect them to be a panacea to their marijuana woes. Amongst other issues, the devices may not be permitted by state law. Where their use is permissible, we predict their validity and reliability will be challenged by experts and their widespread use by certified laboratories for workplace drug testing programs is not likely to occur any time soon.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.

By Thomas F. Howley and Dov Kesselman

Seyfarth Synopsis: The DOL’s ARB rejected an employee’s SOX retaliation claim where he inadvertently provided information to his employer and only “hinted” that he was filing a SOX-protected complaint. The ARB seems unwilling to accept retaliation claims where the employee fails to report to, or actively conceals information from, the statutory entities under SOX.

On October 31, 2019, the United States Department of Labor’s Administrative Review Board (ARB) affirmed the dismissal of a whistleblower retaliation claim under the Sarbanes-Oxley Act (SOX), holding that the employee did not engage in protected activity by inadvertently providing information to his employer or by “hinting” at filing a complaint. Hoptman v. Health Net of California, ARB No. 2017-0052, ALJ No. 2017-SOX-00013 (ARB Oct. 31, 2019) (per curiam). This decision highlights SOX’s goal of encouraging open disclosure.

Background

Complainant was a claims representative for Respondent, a health maintenance organization. He allegedly discovered systematic overpayments by Respondent’s plan members and began texting with a plan member (the “Member”) to expose Respondent’s actions. Complainant asked the Member to fill out a HIPAA release so he could gather information. He also told her he did not have enough money to continue his investigation and suggested that he would share any reward money if she helped. At Complainant’s suggestion, the Member filed a complaint with California’s Department of Managed Health Care (DMHC) about her overpayments and provided the text messages that Complainant sent her.

Complainant later met with one of the Respondent’s HR managers on a separate matter and mentioned that he had read an online article about Respondent owing significant back taxes to the IRS. He hinted that Respondent was “going to be in a lot of trouble” and that he had a “complaint in the works.” Complainant, however, did not mention fraudulent activity or filing a complaint with the SEC during this conversation.

A few days later, DMHC sent Respondent the text messages that it received from the Member. After reviewing them, Respondent suspended and then terminated Complainant for soliciting assistance and possible financial assistance from a client, engaging in private communications with a client on a personal device, misleading a client to sign a HIPAA form for Complainant’s personal use, and offering to share a reward with the Member.

Complainant filed a SOX retaliation complaint alleging that he was terminated because he was about to file a complaint with a federal agency. The Administrative Law Judge (ALJ) granted Respondent’s motion for summary decision, finding Complainant failed to demonstrate that he engaged in protected activity. On appeal, Complainant argued that Respondent should have known from the text messages that he would file a complaint and that his conversation with the HR manager “hinted” that he was about to file a complaint.

The ARB’s Holding

The ARB affirmed the ALJ’s decision, finding that Complainant did not engage in protected activity. SOX protects employees who provide information, or cause information to be provided, to one of three entities: (a) a Federal regulatory or law enforcement agency, (b) any Member of Congress or any committee of Congress, or (c) a person with supervisory authority over the employee. 18 U.S.C. § 1514A(a)(1). SOX also protects employees who file or cause to be filed a proceeding, or assist in such a proceeding, with the employer’s knowledge. 18 U.S.C. § 1514A(a)(2).

It was undisputed that Complainant did not provide information to one of the three statutory entities directly. The ARB also found that his texts to the Member were not sent with any expectation that they would “cause information to be provided” to one of the entities. It emphasized that he “deliberately concealed” the text messages, which “inadvertently reached” Respondent, and that he was “quite surprised” the Member shared his texts with DMHC.

Complainant’s conversation with Respondent’s HR manager also failed to show he was “about to file” a complaint. The ARB found that the manager could not reasonably ascertain SOX-protected content from Complainant’s summary of an online article and vague references to a complaint “in the works.” It further held that, even after Respondent received the texts from DMHC, it did not, in context, establish a genuine issue of material fact as to whether Complainant engaged in protected activity. The ARB concluded that Complainant’s communications were “too attenuated and conflated with other non-SOX protected conduct to convey to a reasonable person that he was about to file a complaint protected under SOX.”

Takeaways

This decision highlights SOX’s and the ARB’s goal of encouraging open disclosure, rather than an employee’s attempt to use a “gotcha” strategy for his or her own benefit. The ARB focused on the fact that the employee deliberately concealed information and that the employer lacked any notice that he engaged in SOX-protected activity. Based on this decision, the ARB seems unlikely to find protected activity where the complainant fails to report to, or actively conceals information from, the appropriate entities under SOX.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower & Corporate Internal Investigations, the Workplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

 

By Jacob Oslick and Robert Nobile

Seyfarth Synopsis:  Does Pennsylvania’s public policy preclude a nuclear power plant from terminating an employee for being drunk on the job? “No,” the United States District Court for the Middle District of Pennsylvania ruled this October

The employee, a long-time production foreman, failed a blood alcohol test in February 2018.  In response, and pursuant to a federal regulation, the nuclear plant suspended the employee’s access to the facility for fourteen days.  Before the suspension ended, the plant terminated him.

The employee sued.  The employee argued, in pertinent part, that his termination violated an alleged Pennsylvania public policy to “allow[] employees with alcohol or drug-related issues to complete treatment for first offenses before being terminated.”

The Court disagreed.  It recognized that Pennsylvania law permits common law wrongful discharge claims when an alleged termination “violate[s] a clear mandate of Pennsylvania public policy.” But, the court held, such a clear mandate has been recognized only in three limited circumstances: (1) when an employer fires an employee for refusing to commit a crime; (2) when an employer fires an employee for complying with a statutorily imposed duty; and (3) when a statute prohibits discharge.

Contrary to the plaintiff’s argument, the Court concluded that no statute or regulation required employers to forgive “first offenses,” or offer treatment in lieu of termination.  The Court further concluded that, although Pennsylvania offers state employees the opportunity to participate in substance abuse programs after a first offense, this program did not evidence any “public policy” that applied to private employers.  Accordingly, under the employment “at will” doctrine, the Court found that the nuclear plant could freely terminate the employee for failing a sobriety test.

The Court’s decision is a reminder that, while the employment “at will” doctrine is under threat, it’s not dead yet.  Providing substance abuse counseling and treatment to employees who violate drug and alcohol policies may be good personnel management.  But, all other things equal, nothing in Pennsylvania prohibits employers from simply terminating offenders.

That guidance, however, comes with a caveat: every employee has multiple protected characteristics (i.e., a sex, race, national origin, religion, etc.).  If employers terminate some substance offenders, while referring others to treatment, plaintiffs’ attorneys may be able to assert discrimination claims based upon alleged disparate treatment.  At the same time, some offenses may be worthy of termination, while others aren’t.  An employer could draw a clear difference, for instance, between a forklift driver who comes to work at three times over the legal limit, and a secretary who tests positive for marijuana.  But there are also many gray areas, which could raise factual questions in a discrimination case.  To that end, employers who run drug testing programs should draft clear, written guidelines demarcating what kind of offenses they consider terminable, and what kind of offenses warrant treatment, or a lesser sanction.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.

By Jennifer L. Mora

Seyfarth Synopsis: The Tenth Circuit Court of Appeals recently affirmed summary judgment in favor of an employer that terminated an employee after he tested positive for methamphetamines, even though he claimed that his drug test was the result of his use of an over-the-counter sinus medicine. While a favorable decision to employers, it serves as a reminder for employers to be cautious about how they elicit information from employees about prescription and over-the-counter drug use without risking a claim for an unlawful medical examination and inquiry in violation of the Americans with Disabilities Act (ADA).

The plaintiff worked as crane operator for a refinery in Oklahoma. As such, he was subject to the employer’s substance abuse policy, which provided for random and post-accident drug testing. As part of the testing process, the employer contracted with a Medical Review Officer (MRO), which, per the employer’s policy, would contact any employee after a positive test result to determine whether the employee wished to discuss the result. The plaintiff was selected for a random drug test and, three days later, was sent for a post-accident drug test. The random drug test revealed the presence of amphetamines in the plaintiff’s system, a drug that had not been prescribed to the plaintiff. However, his doctor provided a letter stating that the plaintiff had been taking over-the-counter Sudafed for unspecified “medical conditions.” The employer ultimately terminated the plaintiff for his positive test result.

The Tenth Circuit affirmed the federal district court’s grant of summary judgment to the employer on the employee’s ADA claims, which alleged disability discrimination and that the employer’s random drug test and its MRO’s questions to the employee about his drug use were impermissible medical inquiries in violation of the ADA. In affirming dismissal of the disability discrimination claims (under both “actual” and “regard as” theories), the court agreed that the plaintiff failed to prove that the employer’s stated reason for the discharge, the failed drug test, was a pretext for discrimination.

Next, the Tenth Circuit found that the test for the presence of illegal drugs was not an impermissible medical examination under the ADA, even though it potentially revealed lawful drug use. Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” However, “a test to determine the illegal use of drugs shall not be considered a medical examination.”

The plaintiff argued that because the drug test result revealed lawful drug use, the drug test was not for illegal drugs, “but went beyond that to legal and appropriate use.” He also argued that the drug test was a medical evaluation and, thus, the employer could only test if job-related and consistent with business necessity. Relying on the Equal Employment Opportunity Commission’s (EEOC) regulatory guidance, the Tenth Circuit concluded that, “[a] test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.”

The plaintiff also claimed that the MRO’s obtaining information about his prescriptions constituted an impermissible disability-related inquiry. The court disagreed. First, assuming the MRO even made an inquiry, the court noted that the plaintiff offered no evidence that the MRO directed any questions to any disability. Instead, the only record evidence showed that the MRO simply received information from the plaintiff about his medication. The court relied again on the EEOC’s guidance, which states that an employer is permitted to ask about lawful drug use if a person tests positive for illegal drug use and “may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.” Thus, the Tenth Circuit agreed that no unlawful inquiry occurred.

With the opioid crisis dominating the news, employers have become increasingly concerned about how the epidemic is impacting their workplaces. However, this court decision should not be interpreted as license for employers to begin inquiring about their workers’ lawful prescription and over-the-counter drug use. As we reported here, the EEOC continues to scrutinize employer policies regarding prescription drug use. In general, employees have a protected right to use prescribed controlled substances and come to work unless such use creates an undue risk of harm or presents a safety issue. Moreover, employers should take precautions before implementing blanket drug-testing policies that do not account for the need under the ADA to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations.

Employers also should consider revising any workplace policy that requires employees to disclose their prescription medication use, unless there is reason to believe the medication may impact performance, or otherwise suggests that employees taking such medication will be treated in a certain way without regard to whether their drug use impacts their work. Finally, employers should be mindful of the language used in a drug and alcohol testing policy, which should focus on testing for and restricting use of “illegal drugs” as opposed to “controlled substances.”

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.

By James L. Curtis and Adam R. Young

Seyfarth Synopsis: The National Safety Council released a policy statement endorsing employer zero-tolerance policies for cannabis use for employees who work in safety-sensitive positions, explaining that no level of cannabis is safe.

Unlike a test for Blood Alcohol Content, testing results for Tetrahydrocannabinol (THC) metabolites (the psychoactive components of cannabis) do not directly demonstrate employee impairment.  Positive tests for cannabis can reflect past usage by an employee who is not impaired.  Because the science has not yet created a test which can definitely show cannabis impairment, several legal frameworks presume impairment from positive drug test results.  Employers have raised the question of what “levels” of marijuana metabolites are “safe” for employees at work and on duty, and how best to address positive drug test results.  The National Safety Council (NSC), a respected national body of safety professionals, released a policy statement on October 21, 2019 addressing cannabis issues.

After acknowledging that the amount of THC detectable in the body does not directly correlate to a degree of impairment, the NSC advises employers that it is unsafe to be under the influence of cannabis while working in a safety sensitive position.  “Safety-sensitive” refers to positions where drug impairment can significantly jeopardize the safety of the employee, co-workers, or third parties.  The NSC explains that any level of cannabis in the system should be unacceptable, as it leads to an increased risk of injury or death to the employee and others.

In support of its contention that employers should have a zero-tolerance policy for employees in safety-sensitive positions, the NSC cites a National Institute of Drug Abuse study that found that employees who tested positive for cannabis had:

  • 85% more injuries;
  • 55% more industrial incidents; and
  • 75% higher absenteeism rate.

The NSC further cites an Insurance Institute for Highway Safety study that found a 5.2% increase in the rate of crashes post-cannabis legalization in three states as compared to before legalization.

In its policy statement, the NSC further recommends assigning employees to non-safety sensitive positions when they use marijuana for medical reasons, as a mandatory accommodation.

As a group of safety professionals, the NSC’s primary concern is employee safety.  The organization’s recommendations may conflict with applicable laws or may require additional nuance and refinement.  Employers should consult with legal counsel before implementing the NSC’s recommendations to ensure compliance with the Americans with Disabilities Act, state cannabis laws, and other federal and state rules.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA), Cannabis Law Practice, or Workplace Policies and Handbooks Teams.

Seyfarth Synopsis: In advance of the firm’s 75th anniversary in 2020, Seyfarth this week launched a new brand and website which reflect a distinct client experience, combining the scale of the firm’s legal representation around the globe with innovative service delivery capabilities.

The firm’s new brand – Seyfarth – pays homage to its heritage with a close eye on the future. Long recognized as a leading labor and employment law firm and legal industry innovator, Seyfarth is now a full-service firm with 16 offices around the globe.

Today Seyfarth marks a new era focused on continued growth, addressing the needs of clients to implement the right solution at the right moment across three core areas of legal services: advisory, litigation, and transactional.

“We have transformed into a global, full-service platform over the past decade, and our success will continue to be fueled by helping clients anticipate and navigate their most pressing challenges and opportunities,” said Seyfarth Chair and Managing Partner, Pete Miller. “Our new brand brings all these elements together to highlight how we partner with our clients, each other, and our communities in delivering exceptional results.”

The launch caps a collaborative two-year process which emphasized the participation of clients—and the firm at large. Beginning with data gathered through Seyfarth’s client scorecard program, the firm then conducted interviews with clients to collect actionable insights about how they view the brand and use the firm’s website. Armed with this intelligence, Seyfarth organized working groups with representatives from the executive committee, the partnership, and functional leads across the firm. All told, more than 50 attorneys and allied professionals spanning every department and function of the firm directly shaped Seyfarth’s new brand. Another 400 provided input via a firmwide survey.

“Our new brand and website proudly capture the collective culture and energy of Seyfarth, while showcasing the leadership and diversity of our teams,” said Dawn Orel, Seyfarth’s Chief Marketing & Business Development Officer. “It reflects who we are today, and where we want to go in the future.”

In recognition of the larger context clients bring to their interactions with the firm, Seyfarth partnered with Carbone Smolan Agency for their deep experience in professional services and consumer branding. The firm’s new brand platform provides a more seamless experience for clients with a mobile-friendly content strategy. The new website places greater emphasis on new client-focused content, which is more intuitively organized under the firm’s full-service capabilities in advisory, litigation, and transactional.

“It’s exciting to be a part of a firm that understands the importance of brand to the choices our clients and talent make every day,” explained Molly Porter, Seyfarth’s Director of Marketing. “We are proud now to have a presence that more effectively and powerfully tells the story of the excellence in legal services we’ve always offered.”

To experience Seyfarth’s new look and feel, please visit www.seyfarth.com for more details.

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  The Federal Motor Carrier Safety Administration (FMCSA) recently rolled out Our Roads, Our Safety, a national safety campaign to raise awareness about sharing the road safely with large trucks and buses. 

The Agency noted that “trucks and buses are much more difficult to maneuver, have massive blind spots, and take far longer to stop.  Awareness of these differences, and some simple adjustments, can help everyone using the roads and keep us all as safe as possible.”  The Agency’s new materials include Voices of Safety public safety awareness video and audio messages, a variety of infographics with messages about the specific operating challenges that buses and trucks face, an Our Roads, Our Safety brochure that shares facts and tips for driving safely around large trucks and buses, a Large Trucks & Buses by the Numbers fact sheet provides high-level crash data and statistics, and Tip Sheets, that are designed for bicyclists and pedestrians, bus and truck drivers, and passenger vehicle drivers.  An issue covered in the materials is distracted driving.  The Agency is providing these materials free-to-use as a way to raise awareness.

Employers regulated by the FMCSA must prioritize policies and training on the safe operation of those vehicles, including a clear prohibition against texting on a hand held cell phone while driving. Failure to address this hazard can result in significant employer liability under the FMCSA, and in tort litigation.

While the FMCSA has updated its distracted driving website, distracted driving is not a new issue. We have blogged previously and frequently on the hazard of distracted driving.  See OSHA Updates on Distracted Driving in Employment and in the Workplace, Cell Phones at the Workplace: Protecting Employee Safety, Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely?, National Safety Council Congress Session on Driving Safety – The Missing Link in Your Company Safety and Health Management Systems, Employees Driving In Illinois? What Employers Need to Know, Have Yourself a Safe, Undistracted, and Accident Free Holiday, President Declares “National Impaired Driving Prevention Month”.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Workplace Policies and Handbooks Teams.

By Alex Passantino

Seyfarth Synopsis: The Department of Labor’s Wage & Hour Division announced its long-awaited proposed rule related to the FLSA’s tip provisions. The rule would implement statutory changes passed in March 2018; it also would elevate certain WHD policy guidance into regulation.

The legislative changes come from the Tip Income Protection Act, which was passed as part of the Consolidated Appropriations Act of 2018. As we have discussed previously, that provision prohibits employers from “keep[ing]” employees’ tips. The proposed rule would allow employers who do not take a tip credit to establish a tip pool to be shared between workers who receive tips and are paid the full minimum wage and employees that do not traditionally receive tips, such as dishwashers and cooks. According to WHD, its proposal would not impact regulations related to employers who *do* take a tip credit: that tip poll may only include traditionally tipped employees.

The proposed rule also would codify WHD’s opinion letter that an employer may take a tip credit for any amount of time an employee in a tipped occupation performs related non-tipped duties with tipped duties. For the employer to use the tip credit, the employee must perform non-tipped duties contemporaneous with, or within a reasonable time immediately before or after, performing the tipped duties. The proposed regulation also addresses which non-tipped duties are related to a tip-producing occupation, referring to O*NET (an occupational database created under DOL sponsorship), and stating that tasks listed for an occupation in O*NET will be considered as “related” tasks for the purposes of the tip credit.

WHD also proposes to explicitly prohibit employers, managers, and supervisors from keeping tips received by employees and incorporate new civil money penalties that may be imposed when employers unlawfully keep tips.

The comment period runs through December 9, 2019.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Labor & Employment Team.

By Jennifer L. Mora, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Western District of New York, in Horn v. Medical Marijuana, Inc., et al., issued an initial procedural order last week in a case where the plaintiff’s purchase and use of the defendant products resulted in a failed drug test that resulted in his employer terminating his employment.  Horn v. Medical Marijuana, Inc., et al. No. 15-cv-701-FPG (W.D.N.Y.)

We have noted previously that the federal Drug Enforcement Agency (DEA) recently announced that drugs that include CBD (cannabidiol) with less than 0.1% of THC (tetrahydrocannabinols) are now considered Schedule V drugs provided they are approved by the federal Food and Drug Administration (FDA).  The move marked the first time the DEA removed any form of cannabis from Schedule I and was due to the FDA’s approval of Epidiolex, a non-synthetic cannabis-derived medicine used to treat severe epilepsy.  Setting aside this very limited exception, marijuana and CBD remain illegal under federal law.  And while CBD is projected to be a $22 billion industry by 2022, many employers remain hazy about this extremely popular product and the implications it has for their employees and businesses.

We had previously blogged on The Stoned Age: What the CBD Craze Means for Employers and Their Substance Abuse Policies, CBD is Everywhere – But Where Does the FDA Stand?, CBD: Uncertainty for Restaurants and Retailers, and FDA: .1% CBD OK.  As the legalization and normalization of these products becomes more prevalent, their encroachment into the workplace becomes more and more likely, and more of an ongoing issue for employers. Now, we are seeing CBD companies being sued for allegedly promoting “pure CBD” products that might actually contain THC and, thus, creating work-related issues for applicants and employees using these products.

In Horn v. Medical Marijuana, Inc., et al., the plaintiff was a professional over-the-road hazmat commercial truck driver who worked for the same company for 10 years and drove professionally for 29 years.  Plaintiff’s employment as a professional commercial driver required that he be and remain free of all illegal and impairing substances, including marijuana.  The plaintiff allegedly used a CBD product called Dixie X.   Subsequently, the plaintiff submitted to a random urinalysis screening as required by his employer, and as required by the U.S. Department of Transportation (DOT)’s drug and alcohol testing regulations set out in Part 40..  Plaintiff ultimately was terminated for testing positive for a “high level of THC.”

Before his termination, plaintiff asked an independent laboratory to test Dixie X CBD to determine if it did indeed contain THC.  That laboratory informed plaintiff that it could not run the tests on the Dixie X as the substance was illegal and contained THC levels well over the federal limit as per DEA regulations.

In his complaint, the plaintiff alleges that, among other claims, he had used products marked “THC free” and “non-THC,” and the defendants were “misleading the public at large through their misrepresentation of the true chemical compound make-up of products like DIXIE X.”  We will monitor this case as it progresses through the courts.

We continue to recommend that employers exercise caution when dealing with applicants and employees using medical marijuana or CBD.  As noted in our previous blogs, CBD is a recent and largely unregulated industry.  Thus, before taking any action against medical marijuana or CBD users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.

Employers also may need to consider:

  • Revising their policies to define marijuana and address CBD use;
  • Training managers and supervisors on how to address situations where an employee defends a positive drug test by claiming use of CBD; and
  • Educating employees about CBD and zero tolerance policies.

Seyfarth Shaw will continue to monitor legal developments at the federal and state level.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.

By Paul Galligan and Meredith-Anne Berger

Seyfarth Synopsis: The New York City Council voted to expand the anti-discrimination and retaliation provisions of the Human Rights Law to freelancers and independent contractors.  The bill is awaiting the Mayor’s signature.  New York City employers should also be aware that the law prohibiting retaliation against anyone who requests a reasonable accommodation goes into effect November 11, 2019.  Finally, effective November 18, 2019, New York State will require employers to provide reasonable accommodations for employees who are victims of domestic violence. 

New York employers should be aware of the following recent new developments:

  • First, the New York City Council voted to include freelancers and independent contractors under the expansive New York City Human Rights Law (“NYCHRL”). It is likely Mayor DiBlasio will sign the bill, which will be effective 90 days after it becomes law.
  • Second, New York City has banned retaliation against individuals who request a reasonable accommodation, codifying the principle that a request for reasonable accommodation is a “protected activity” under the law, meaning it can be a basis for a retaliation claim.
  • Third, victims of domestic violence now have their own protected category under an amendment to the New York State Human Rights Law (“NYSHRL”), which applies to nearly all employers in the state.

NYC Council Votes to Expand Employment Protections to Independent Contractors and Freelancers

In NYC, even more workers have protections under the NYCHRL, as the City Council has voted to expand such protections to independent contractors and freelancers.  This constitutes a major shift, even in NYC, where the law is “liberally construed.”  The same bill also clarifies how to determine whether an employer has the requisite four or more employees for purposes of coverage under the NYCHRL, and that an employer’s family member who is an employee is included in that count.

NYC Codifies Request for Reasonable Accommodation as Protected Activity

Effective November 11, a request for a reasonable accommodation under the NYCHRL will be considered “protected activity” for purposes of a retaliation claim.  With this amendment, the City affirms 2016 EEOC Enforcement Guidance which provides a reasonable accommodation is protected activity.  Some courts have held that a request for reasonable accommodation is not protected activity under the NYCHRL, including the New York State Supreme Court, Appellate Division (the state’s intermediate appellate court), however, this amendment will overrule those decisions.

Domestic Violence Victim Protections

Under the NYSHRL, beginning November 18, employers cannot base employment decisions or discriminate against victims of domestic violence in terms, conditions, or privileges of employment.  The law links the definition of a victim of domestic violence to that of the Domestic Violence Protection Act, which now includes acts by a family or household member such as identity theft, grand larceny or coercion, among other crimes, that cause physical or emotional harm.  Previously, employers could not discriminate based upon “victim status,” but the law did not specifically mention domestic violence.  Employers cannot include in any advertisement or publication or make any inquiry which directly or indirectly discriminates or expresses any preference as to status as a victim of domestic violence, but may include a statement for purposes of providing assistance to, or a reasonable accommodation for, a victim of domestic violence.

Notably, employers must provide a reasonable accommodation in the form of unpaid leave for employees who are victims of domestic violence when the employee must be absent from work for a reasonable amount of time, unless the absence would cause an “undue hardship” to the employer.  An “undue hardship” is limited to consideration of factors such as the size of the employer, number of type of facilities, and budget, and type of operation, including the composition and structure of the employee population.

However, employers may require employees to use paid time off (such as NYC Earned Safe and Sick Time) for this purpose, unless otherwise provided in a collective bargaining agreement or by existing policy. During any absence, employees are entitled to continued health insurance coverage.

Employees may request an accommodation with a leave of absence for several prescribed reasons under the statute, including to seek medical attention or psychological care, legal or victims’ services, in connection with domestic violence.  If the employee seeks leave on behalf of a child who is a victim of domestic violence, in order to request the reasonable accommodation, the employee may not be the perpetrator of domestic violence.  Moreover, if an employee has a physical or mental disability as a result of domestic violence, they must be treated in accordance with applicable law for employees with disabilities, including providing reasonable accommodations for those disabilities.

Where feasible, employees must provide reasonable advanced notice to employers before taking leave.  Employers may request certification of the need for leave if employees do not provide reasonable advanced notice.  The certification may consist of a police report, court order or other evidence from a court or prosecutor that the employee appeared in court, or documentation from a health care provider or victims’ advocate.

What’s Next for Employers?

Employers should be aware of these new obligations and consider revising their policies and training human resources professionals and supervisors so that they appropriately handle any requests for accommodation or complaints under the law.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.