Medical Marijuana, the ADA, and Hiring/Firing

Is the use of medical marijuana a justified reason for termination? Or is that a violation of the Americans with Disabilities Act? With the legalization of medical marijuana use in several states, drug screenings during the hiring process just got trickier.

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EEOC vs The Pines of Clarkston

Jamie Holden, a licensed practical nurse, applied for a position as nursing administrator with The Pines of Clarkston, an assisted living facility, in Michigan. Holden was offered the position contingent on the results of a routine drug screen. The results of the drug screen revealed high levels of marijuana. Holden met with her supervisors to explain that she uses medical marijuana for her epilepsy. After being questioned about her epilepsy, Holden was told that they did not believe she could perform the job. A few days later Holden was terminated for violating the company’s drug-free workplace policy.

Holden filed suit with the Equal Employment Opportunity Commission (EEOC) and maintains that her termination was not related to her use of medical marijuana, but rather that she suffers from epilepsy – a violation of the Americans with Disabilities Act (ADA) and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). The Pines maintains that Holden was fired because she violated their zero tolerance drug policy by using medical marijuana.

The Pines of Clarkston agreed to a four-year consent decree that resolves the dispute without admitting guilt. The company also agreed to pay $42,500 and institute policies regarding discrimination and training on the ADA.

Tips for Employers

This case got sticky because the candidate revealed a medical condition covered by ADA protections. With medical marijuana use expected to skyrocket, drug tests on their own may no longer be a reliable screening process and, in fact, may open a can of worms in terms of medical conditions. More court cases at the state and federal level eventually will shape employment drug-screening policies. In the meantime, when failing to hire a candidate or terminating an employee with a medical condition – whether the employee uses medical marijuana or not – employers must never make decisions based on the protected medical condition.

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What Is the Americans with Disabilities Act?

The ADA became law in 1990 and bans discrimination against individuals with disabilities in all areas of life – employment, transportation, public accommodation, communications, and governmental activities.

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Rhode Island Pregnancy Discrimination Law, Poster

Pregnant workers in Rhode Island are now protected from workplace discrimination in hiring, termination, job promotion, and benefits.

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The State of Rhode Island expanded the protections granted by its Fair Employment Practices Act to include employees and job applicants with “conditions related to pregnancy, childbirth, or related medical conditions”.

The new posting informs employees and applicants of their right to request a reasonable accommodation for conditions related to pregnancy, childbirth and expressing breast milk.

Covered employers must “fill in the blanks” with the names of staff members who would process requests for reasonable accommodation and complaints of discrimination.

The new law is effective immediately.

WHAT IS THE RHODE ISLAND FAIR EMPLOYMENT PRACTICES ACT?

The Rhode Island Fair Employment Practices Act protects workers and job applicants at companies of four or more employees from discrimination in hiring, promotion, salary, terms and conditions, and termination based on:

  • Race
  • Color
  • Sex (including pregnancy status and sexual harassment)
  • Religion
  • Ancestral origin
  • Disability
  • Age (40+)
  • Sexual orientation or gender identity/ expression

RHODE ISLAND PREGNANCY DISCRIMINATION POSTING REQUIREMENTS

The Rhode Island Pregnancy Discrimination notice is required for all employers with four or more employees covered by the Rhode Island Fair Employment Practices Act. The posting must be:

  • Displayed in a conspicuous location in each place of business and accessible to employees.
  • Provided to new employees at onboarding.
  • All employees by October 2015.
  • Pregnant employees must be provided the notice no later than 10 days after notifying employers of pregnancy.

The new Rhode Island Pregnancy Discrimination notice is available as part of the GovDocs Rhode Island Labor Law Posting Compliance Package. Subscribers to GovDocs Labor Law News receive an additional 20% off their purchases when using coupon code BLOG20. The posting package includes all postings required by the State of Rhode Island for employers:

  • Workers’ Compensation Act
  • Discrimination
  • Notice To All Employees (Unemployment & Disability Insurance)
  • State Minimum Wage Poster
  • Parental & Family Medical Leave Act
  • Ignoring This Poster Can Be Hazardous To Your Health (Right To Know)
  • Sexual Harassment In Employment
  • Whistleblowers’ Protection Act
  • Pregnancy, Childbirth, and Related Conditions Discrimination
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Discussing Job Security is a Protected Activity, NLRB Finds

The NLRB found that an employer violated Section 7 of the NLRA when it fired an employee for discussing job security with a co-worker.

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A vending-machine route driver left work early one Friday without notifying management, which is a violation of company policy. That weekend, she noticed a local ‘help wanted’ ad for a vending-machine route driver. She assumed it was her company that had placed the ad and that she was going to be fired.

When she returned to work the following Monday, she and another route driver discussed the ad. She asked her co-worker if he thought the ad meant their company was going to fire someone, but the co-worker thought she was implying he was going to be fired. The second driver went to the owners of the company and expressed his concern about losing his job.

The owner assured him that he would not be fired and asked why he was worried. The other route driver mentioned his conversation about the ‘help wanted’ ad. The company eventually fired the first driver – the one who ducked out of work on Friday – for gossiping and telling other employees they were going to be fired.

The NLRB Steps In

In a 2-1 majority ruling, the NLRB found that the driver’s termination violated the National Labor Relations Act (NLRA) because discussion of job security concerns with her co-worker were “inherently concerted,” and therefore considered protected concerted activity, even though there wasn’t any evidence that they were “engaged in with the express object of inducing group action.”

Conversations among employees are generally protected when they consider group action. However, the contemplation of group action is not required when the conversation is “inherently concerted.” Since job security discussions, like wages, are a vital conditions of employment, the NLRB held that they are inherently concerted.

The company was ordered to reinstate the driver with full back pay.

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Can Employees Talk About Their Pay?

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Protected Concerted Activity and Section 7 of the NLRA

Section 7 of the NLRA protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.

What Does This Mean For Employers?

Determining whether employee activity is protected under the NLRA ultimately depends on the specific facts of each case. However, it is clear from recent NLRB rulings that taking corrective action based on work-related conversations among employees can lead to trouble with the NLRB.

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Retaliation: Woman fired for Discrimination Complaint

Things blow up after company punished female employee for complaining about unlawful discrimination and hostile work environment.

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A male site superintendent at the Brunswick Nuclear Power Plant in South Carolina harassed a female planner who was hired to address a power outage. She notified company management, and according to her complaint, the site superintendent created a hostile work environment by being “aggressive, intimidating, sarcastic, and condescending” with her because she was a woman.

To the company’s credit, a vice president completed a relatively prompt investigation into the female worker’s complaint. To the company’s discredit, the Vice President fired her two days later.

The EEOC announced a settlement with the company on April 27, 2015. The company must pay $65,000 to the victim who was fired in retaliation for filing a complaint of workplace discrimination.

Retaliation against workers who lodge claims of workplace discrimination is illegal under Title VII of the Civil Rights Act of 1964.

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Why do Workplaces Attack? Learn more about the Psychology of Workplace Retaliation. LEARN MORE

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Case Outcomes

Monetary fine: $65,000

Employer must:

  • Provide annual training to all supervisors, managers, and employees, to prevent future retaliation.
  • Provide names of employees who complained about discrimination and who were thereafter subjected to adverse employment actions.
  • Post a notice regarding workers’ rights protected by the EEOC.
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Lessons Learned from EEOC v. Newport News Industrial Corporation

  • When a worker has lodged a discrimination claim, an employer must be very cautious about any action that might be perceived as an adverse workplace action (such as termination or demotion) – even after concluding an investigation.
  • Document, investigate, and resolve every claim of discrimination.
  • Consider hiring third-party investigators to probe discrimination claims.
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San Francisco Releases New Employment Discrimination Posting

The City of San Francisco’s Human Rights Commission released a new posting required for all employers with a business tax registration certificate from the City or that hold contracts with the City.

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The new San Francisco workplace discrimination notice informs employees and independent contractors that employers and persons engaging the services of an independent contractor are prohibited from discriminating against protected persons during recruitment, hiring, training, promotion and termination.

The posting points out that retaliation for filing complaints of discrimination is illegal and the employers must provide reasonable accommodation for persons with disabilities. Additionally, the posting reiterates that City contractors must offer equal benefits to employees with domestic partners.

Which San Francisco Workers are Protected from Employment Discrimination?

Article 33 of the San Francisco Police Code prohibits employers from taking adverse employment action against protected classes of individuals based on:

  • Race / Color / National origin / Place of birth
  • AIDS/HIV
  • Marital status
  • Ancestry
  • Sex
  • Age
  • Religion / Creed
  • Disability
  • Sexual orientation / Gender identity
  • Weight / Height

An employer commits unlawful discrimination by refusing to hire, firing, under-compensating, or making less favorable terms of employment for workers protected by the Article.

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San Francisco City Posters

The GovDocs San Francisco City Poster Package includes postings by required for employers and businesses providing contracted services to the City of San Francisco:

  • San Francisco Minimum Wage (6-Language version)
  • San Francisco Paid Sick Leave (6-Language version)
  • San Francisco No Smoking
  • San Francisco Health Care Security Ordinance (6-Language version)
  • San Francisco Family Friendly Workplace (6-Language version)
  • San Francisco Fair Chance Ordinance posting
  • San Francisco Employment Discrimination is Against the Law

Subscribers to the GovDocs blog can use coupon code BLOG20 to save 20% on the San Francisco City Poster Compliance Package.

City Postings in the U.S.

Currently more than 40 cities require postings for some or all employers, and GovDocs monitors more those and a dozen more cities in the U.S. for new postings and posting updates. City posting coverage is just another reason why North America’s largest employers trust GovDocs for ongoing posting compliance.

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Disclosing Bipolar Disorder Key to Discrimination Claims

Workers with bipolar disorders can be as productive and successful as any other worker. However, employers and their workers with bipolar disorder should be aware that disclosure of a disability allows an employer to provide reasonable accommodation under the requirements of the Americans with Disabilities Act (ADA). The two situations below – one where the employee disclosed a bipolar disorder and one in which the employee did not disclose – underscore the importance of disclosing a disability.

Example 1: When Playing the Bipolar Card Failed Because of Lack of Disclosure

Ryan Foley was a financial advisor at Morgan Stanley in Florida (Ryan Foley v. Morgan Stanley L13-11413). Foley, who suffered from bipolar disorder, believed the company was spying on him, so he swapped his work computer’s central processing unit and hard drive with those of a coworker’s computer.

When the company realized the work computer was gone, they reviewed security tapes and saw Foley leaving with the equipment. Foley was questioned about the computer’s whereabouts, but he maintained that he didn’t know where it was. Once he “remembered” where he took the computer, he returned it to Morgan Stanley and was fired that same day.

Foley claimed that he was in the midst of a ‘psychotic episode’ brought on by his bipolar disorder and maintained that he was fired due to this disability. A judge ruled that Foley wasn’t entitled to protection under the ADA because he never disclosed his bipolar disorder to Morgan Stanley. That lack of disclosure was the difference between a disabled employee requiring accommodation under the ADA and an employee who simply violated Morgan Stanley’s policies on protecting crucial company data – policies he knew about and signed off on in his employee handbook.

The ruling cited case law and the EEOC’s own resources, such as The Americans with Disabilities Act: A Primer for Small Business, which states:

“[An employer does] not have to tolerate violence, threats of violence, theft, or destruction of property, even if the employee claims that a disability caused the misconduct.”

The judge therefore ruled that Foley’s termination was justified.

Example 2: Disclosing Bipolar Disorder Sets Stage for Discrimination Case

Sean Reilly, who also suffered from bipolar disorder, was hired as an assistant manager at The Cash Store in Washington (Equal Employment Opportunity Commission v. Cottonwood Financial Ltd., case number 2:09-cv-05073). He disclosed his bipolar condition and later was promoted to Store Manager only a few months after being hired.

Like Ryan Foley, Sean Reilly experienced a manic episode causing extreme paranoia. Reilly asked for time off from work as his psychiatrist adjusted Reilly’s prescribed medications. His request was denied, and he continued to work. But he dropped the “eff bomb” on some paperwork, and that caused his manager to write him up for obscenity as part of an employee performance improvement plan. Higher-level managers weighed in, however, and instructed Reilly’s supervisor to terminate his employment.

U.S. District Judge Edward F. Shea ruled that Cottonwood violated the ADA when it wrongfully terminated Reilly and that the company failed to make reasonable accommodation for Reilly’s bipolar disorder. The Cash Store must also train their managers and human resource staff about anti-discrimination and anti-retaliation laws.

“The court sent an important message today that employers can’t substitute fiction for facts when making employment decisions about disabled workers. Employers acting on outdated myths and fears about disabilities need to know that the EEOC will not shy away from taking ADA cases to trial to bring them into the 21st century.”

  • William Tamayo, EEOC’s regional attorney in San Francisco

When Does an Employee Need to Disclose a Disability?

There is no right time to disclose a disability – every situation is different. Employees only need to disclose a disability if they need reasonable, work-related accommodation. The U.S. Department of Labor (DOL) suggests that employees make the decision to discuss their disability when it works for them – whether that is during the interview process, after a job has been offered, or not at all. Disclosure of a disability is protected by the Equal Employment Opportunity Commission (EEOC).

What is Bipolar Disorder?

The National Institute of Mental Health (NIMH) defines Bipolar Disorder (or manic-depressive illness) as

“a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. Symptoms of bipolar disorder are severe. They are different from the normal ups and downs that everyone goes through from time to time. Bipolar disorder symptoms can result in damaged relationships, poor job or school performance, and even suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).


Can Workers Send Personal Email at Work?

Many employers claim their workplace cultures help employees achieve a work/life balance, but what happens when the edges between work and personal life blur? Should workers have unrestricted access to their personal email, social media, and phone calls that aren’t work-related using company computers and phones?

The General Counsel for the National Labor Relations Board (NLRB) argued that a company’s prohibition of personal communication (email and phone calls) on business computers and phone lines was in violation of Section 8(a)(1) of the National Relations Act (NLRA), which protects workers’ rights to protected concerted activity. Counsel argued that employees should be allowed to communicate freely within their workplace about employment conditions, and that company-owned equipment and systems were readily accessible avenues for employee protected concerted activity.

An NLRB Administrative Law Judge dismissed a claim that employers should be prohibited from restricting their employees’ usage of company-owned equipment and systems to send personal communications.

The company in question, Purple Communications, had developed language in their employee handbook prohibiting personal use of company-supplied computers, internet, voicemail, email, and cell phones.

All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only…Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other company equipment in connection with any of the following activities:

  • Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.
  • Sending uninvited email of a personal nature.

The Employer is authorized to punish an employee’s violation of this policy with discipline up to and including termination.

Overly Broad Policies Are No-Go’s for the NLRB

In the same decision, the NLRB ruled the employer’s rule prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” violates Section 8(a)(1) of the Act because it sets forth an overly broad restriction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity.

Care to Share with the NLRB?

The NLRB is looking for feedback about whether employers should allow communications considered protected concerted activity and protected under the NLRA. Specifically, they want answers to the following:

  1. Should the Board reconsider its conclusion that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?

  5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The NLRB is accepting briefs of 25 pages or less through June 16, 2014 and responsive briefs until June 30, 2014, either of which can be submitted electronically.

Puerto Rico Labor Law Requirements 101

Puerto Rico has been a commonwealth of the United States since 1952, and the 3.7 million citizens of Puerto Rico also have automatic U.S. citizenship. The World Bank Group ranks Puerto Rico #40 on its list of countries rated for ease of doing business.

Employment law in Puerto Rico is covered both by U.S. labor law and Puerto Rico’s Constitution, which affirms the right of employees to choose their occupation, to have a reasonable minimum salary, a regular workday not exceeding eight hours, and to receive overtime compensation for work beyond eight hours.

The Puerto Rico Department of Labor and Human Resources is responsible for overseeing the legislation affecting workers and employment programs in Puerto Rico.

Puerto Rico Minimum Wage

The Minimum Wage, Vacation, and Sick Leave Act of Puerto Rico (Minimum Wage Act) was enacted in 1998. The Minimum Wage Act establishes that the federal minimum wage fixed by the Fair Labor Standards Act (FLSA) applies automatically to non-exempt employees in Puerto Rico who are covered by the FLSA. Currently, the U.S. federal minimum wage for non-exempt employees is set at $7.25 per hour. Employers not covered by the FLSA must pay a minimum wage to non-exempt employees of at least 70% of the applicable federal minimum wage.

Puerto Rico Overtime

Employees covered by the FLSA are entitled to overtime pay at a rate of 150 percent of their regular wage (commonly known as “time and a half”). If employees are not covered by the FLSA, they are entitled to a rate of two times their regular compensation rate for every hour worked beyond forty within a week.

Puerto Rico Christmas Bonus – ¡Feliz Navidad!

Known as el Bono de Navidad in Spanish, the Christmas Bonus is a mandatory annual payment to employees based on their earned wages for the year; however, Puerto Rico’s credit rating was recently lowered to “junk” status, and legislators are considering a reduction in the Puerto Rico Christmas Bonus as one measure to spur the economy.

For now, the Christmas Bonus rates are based on company size.

  • 15 or fewer employees: Bonus of 3 percent of employee’s earned wages
  • 16 or more employees: Bonus of 6 percent of employee’s earned wages

The bonus must be paid between December 1 and December 15 of each year.

No At-Will Employment in Puerto Rico

What do Puerto Rico and Montana have in common besides having Spanish names? Employees in Puerto Rico and Montana are not at-will employees, meaning that employees in Puerto Rico (and Montana) cannot be fired anytime, for any reason.

Employers in Puerto Rico (and Montana) should anticipate more difficulty than in other locations in the U.S. as Puerto Rico law favors employees.

Employers must demonstrate just cause for employee termination or risk paying a premium (una mesada) to the discharged employee that can be a severance package on steroids – including two months’ salary (minimum) plus progressive compensation depending on length of service.

How can employees in Puerto Rico be fired? Example of just cause for termination include:

  1. Documented pattern of improper or disorderly conduct.
  2. Measurable work performance issues (efficiency, quality, etc.).
  3. Violations of reasonable written rules.
  4. Closing of business operations.

Puerto Rico Labor Law Posting Requirements

In addition to required Federal labor law posters, employers in Puerto Rico are required to display a variety of work place postings to remain compliant with Puerto Rico labor law.

Required Federal Postings

  • Equal Employment Opportunity Is the Law
  • Federal Minimum Wage Notice
  • Employee Polygraph Protection Notice
  • Family and Medical Leave Act (FMLA)
  • Job Safety and Health “It’s the Law!” (OSHA)
  • Uniformed Services Employment and Reemployment Rights Act (USERRA)

Required Puerto Rico Commonwealth Postings

  • Working hours (29 L.P.R.A. § 283): Employers must display a printed notice of the:
  • Number of working hours required daily from employees for each day of the week.
  • Time to begin and end work.
  • Time to begin and end the period for taking food within the regular working hours.
  • Ley de Seguridad y Salud (Safety and Health Act)
  • SINOT Sistema de Compensasion por Accidentes del Trabajo (Workers’ Compensation)
  • Antidiscrimen “Discrimination Is Illegal”
  • Negociado De Normas de Trabajo

 Another Bonus: The National Anthem of Puerto Rico

Enjoy the Puerto Rico national anthem, La Borinqueña