Happy Thanksgiving! 7 Things for Which We Are Thankful – 2020 EditionMany of us are understandably anxious to put the year 2020 behind us and move onward and upward! But before we all sit down at the table and fill our plates and bellies to overflowing as we start the holiday season, we can all find some bright shining blessings in what has otherwise been a difficult year (to say the least). We are grateful to have weathered hurricanes, wildfires, global pandemics and a divisive election. We are hopeful for vaccines, social justice and the ability to gather with friends and family as we did once upon a time.

We are also grateful for many developments in employment law that occurred this year.

1. Clarity from the DOL on Joint Employer Status

The DOL gave us a final rule this year with updated guidance for determining joint employer status. The final rule:

  • Provides a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • Clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA; and
  • Specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely.

The rule also provides practical examples to demonstrate how the DOL would determine joint employer status under a variety of different factual situations. We like simple and straightforward, so we are thankful for this guidance in the final rule… for now.

2. The Ability to Screen Employees for COVID-19 under the ADA

Not to brown-nose the federal agencies, but we are also thankful for the EEOC’s guidance on the ADA and COVID-19. Given the uncertainty about so many things, it was nice to have relatively clear guidance from the EEOC that during this pandemic ADA-covered employers may lawfully:

  • Ask employees if they are experiencing symptoms of the pandemic virus and even take their temperatures;
  • Require that employees stay home if they have a confirmed case or are experiencing symptoms to prevent further spread; and
  • Administer a COVID-19 test to detect the presence of the COVID-19 virus when evaluating an employee’s initial or continued presence in the workplace and be assured that such testing, if consistent with current CDC guidance, will meet the ADA’s “job related and consistent with business necessity” standard.

We will have to continue to monitor regulations on this front as developments occur in our fight against the spread, but for now and the foreseeable future, we can do our part to keep employees safe and healthy in our workplaces.

3. “On The Basis of Sex” Includes Sexual Orientation and Gender Identity

In a landmark decision, Bostock v. Clayton County, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. We have been preparing clients for this expansion for many years and are grateful that it is now clear that the protections under Title VII extend to and include all employees regardless of their sexual orientation or gender identity.

4. Sexual Harassment in the Workplace Continues to Be Exposed and Addressed

Since the Harvey Weinstein story broke, we have lost count of the growing number of perpetrators of similar offenses, and 2020 has been no exception. Victims, both male and female, are speaking out, and many of the accused have either admitted the behavior or have simply apologized. We are grateful for the opportunity to continue training employers, managers, and supervisors on this topic and helping our clients create better places to work.

5. Profanity-Laced Tirades and Other Abusive Conduct in the Workplace Is Actually Not OK

The current NLRB has modified the standard for addressing offensive outbursts — including profane, racist, and sexually unacceptable remarks — in the course of protected activity under Section 7. In General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the NLRB replaced a variety of setting-specific standards — one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings) — and instead followed the landmark Wright Line decision as the proper standard to apply. This move means employers no longer have to tolerate abusive and offensive conduct in the workplace or reinstate employees after they are discharged for deeply offensive conduct, and that’s something to be grateful for.

6. Winter Is Coming… But So Is a Vaccine

The federal government, through Operation Warp Speed, has been working since the pandemic started to make one or more COVID-19 vaccines available as soon as possible. As of today, there are three vaccine candidates in Phase 3 trials: Moderna, AstraZeneca and Pfizer.  Experts expect that a COVID-19 vaccine might be available in the spring or summer of 2021, and the FDA has pledged their commitment to expediting the development of the vaccines but not at the expense of science. So hopefully we will see some light at the end of this pandemic tunnel soon, and that is something we can all be grateful for. When a vaccine is available, check with your lawyers on the best way to encourage and/or require employees to be vaccinated (but that is a topic for another day).

7. All of Our Readers!

We are so grateful to all of our readers, followers and subscribers. We do this for each of you, and we appreciate hearing from you about what is helpful or when you send our articles along to someone else in your network. Continue to read, like, follow, and retweet us!

Happy Thanksgiving from Bradley’s Labor and Employment Insights blog team!

Earlier this month, voters in five states took to the ballot box and legalized some form of marijuana use. Polls show that Voters Legalize Marijuana, Employers Ask Questionstwo-thirds of Americans now favor marijuana legalization, and 59% said it should be legal for both recreational and medical purposes. This is a sharp contrast to Gallup’s first poll on the issue in 1969, when only 12% of Americans favored legalizing marijuana. And the support isn’t entirely based on partisan lines: 55% of Republicans, a group that has traditionally fought against legalization, now favor it. This shift in America’s opinions and laws has left many employers dazed and confused, wondering how these changes will impact federal and state employment laws around the country.

The New Laws and Their Effects on Employers

Voters in Arizona, Mississippi, Montana, New Jersey, and South Dakota legalized marijuana use in some form. While Mississippi only legalized medicinal use, the other four states legalized marijuana for both medical and recreational purposes. However, these new provisions are not without limitations and safeguards. For example, in Montana, New Jersey, and South Dakota, only people over the age of 21 may use marijuana. In Mississippi, only those with a specified debilitating medical condition can obtain marijuana with the certification of a licensed physician. Notably, most of the laws directly address the rights and duties of employers in managing employees who legally use marijuana:

Arizona explicitly allows employers to “maintain drug-and-alcohol-free places of employment” and notes that the law does not “affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees.” Most notably, the law states that an employer is not required to allow or accommodate marijuana use or possession at work. Similarly, employers may still prohibit or regulate conduct that is allowed by the law but occurs on employer property.

Mississippi makes clear that it does not require employers to either accommodate for the use of medical marijuana or allow such use on employer property.

Montana explicitly states that nothing within the law requires an employer to “permit or accommodate conduct otherwise allowed by [the proposition] in any workplace or on the employer’s property.” Employers may still discipline employees, by declining to hire, discharging, disciplining, or otherwise taking adverse employment action, for violations of a workplace drug policy, use on employer property, or intoxication while working.

New Jersey’s law contains no information regarding the freedoms or obligations of employers.

South Dakota makes clear that employers are not required to permit or accommodate any conduct allowed by the proposition. Moreover, the South Dakota law does not “affect an employer’s ability to restrict the use of marijuana by employees.”

What Should Employers Do?

Because of the rapidly evolving marijuana laws, employers, especially multi-state ones, face a number of potential legal issues. Remember, marijuana is still illegal under the federal Controlled Substances Act (CSA), so any employee protections will stem from state law.

Your first step is to locate and review the relevant laws of the states in which you operate. This map indicates which states have legalized marijuana (either fully or for medicinal purposes) and includes a link to each of the relevant state laws. Some states’ laws, like the propositions above, explicitly state that they do not affect employer rights and obligations, while some explicitly provide protections to employees. Once you have looked over the applicable state law, here are some things to consider.

  • Use on the Job: No state requires employers to allow employees to either use marijuana at the workplace or work under the influence of marijuana. With that said, if an employee requests permission to use marijuana for a medical purpose, you should treat that like any other request for disability accommodation. You may, of course, conclude that the employee’s requested accommodation is unreasonable and deny it, but be sure to take the proper steps to avoid any future liability.
  • The Americans with Disabilities Act and Reasonable Accommodations: The ADA does not protect employees who use drugs that are illegal under the CSA. Although there is an exception for drugs used “under supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act,” courts have held that, to fall under the exception, the drug must be legal under the CSA. Thus, marijuana use is not protected by the ADA, and employers have no federal duty to accommodate it.
  • State Law and Accommodations: However, a state law may give rise to a duty to accommodate.
    • If a state law requires employers to accommodate medical marijuana users, make sure to follow the rules. For example, in New York and New Jersey, certified users are deemed disabled, and firing an employee for failing a drug test can be considered disability discrimination. Engage in the interactive process, determine whether there are reasonable accommodations, and ensure that no safety hazards will arise.
    • If a state law does not explicitly require employers to accommodate medical marijuana users, you have no duty to accommodate, and private employers may test for it. Courts have held that requiring employers to make such an accommodation would require them to permit federally illegal conduct.
  • Drug Testing: In states where marijuana has been legalized recreationally or medically, consider only testing when there is suspicion of use or intoxication on the job, which is unprotected activity. Traces of marijuana may remain even when the employee is no longer under the influence, and taking an action against an employee who is engaged in legal activity outside of work is risky.
  • Zero-Tolerance Policies: Some states that have legalized marijuana explicitly prohibit employers from refusing to hire solely because of a positive marijuana test, with exceptions for positions that pose a health and safety risk to others. Others prohibit employers from such discrimination based on medicinal use alone. In states that have adopted no legislation, only federal law applies, providing no employee protection. Look to each state law to find out.

Takeaways

The federal CSA still classifies marijuana as an illegal drug, so only state law provides protections to employees using marijuana. Check the laws of the states where you have employees.

  • If the state’s law does not explicitly require employers to accommodate medical marijuana users, you have no duty to accommodate.
  • If a state’s law explicitly requires employers to accommodate medical marijuana users, engage in the standard interactive process with the employee.
  • Regardless of your state’s law, if an employee requests the ability to use marijuana, either on or off the job, treat the request as a disability accommodation request and engage in the interactive process to avoid future liability.

The state of the law surrounding marijuana use is shifting regularly, so stay up to date.

Prop 22 and Minimum Wage Hikes: What the Election Results Mean for EmployersIn true 2020 style, this year’s general election was one for the history books. While the presidential race has been called in favor of President-Elect Joe Biden, the inevitable legal challenges are looming. Meanwhile, Georgia will be the site of two runoff elections in January – races that could decide which party controls the U.S. Senate. This is not to mention the slow, and at times frustrating, process of counting an unprecedented number of ballots cast in newfangled ways. With (most of) the results finalized, many of you are wondering: What does this mean for my business?

Independent Contractors

Under an incoming Biden administration, there may be an attempt to withdraw the DOL’s recent proposed rule clarifying federal standards for who qualifies as an independent contractor. The DOL rule may be finalized before Biden takes office — it has been fast-tracked for a 30-day review – but it is possible the Biden DOL may initiate new rulemaking to amend or rescind the rule. It is most likely that any proposed rule under the Biden DOL would seek to expand the definition of “employee.”

This move would stand in contrast to California’s approval of Proposition 22 – a statewide ballot initiative aimed at the gig economy.

CA’s Proposition 22

Proposition 22, a statewide ballot referendum, overturns the state’s previous worker classification law that classified drivers for apps such as Uber and Lyft as employees, not independent contractors. On November 3,  after a well-funded campaign (with nearly $200 million from tech companies), approximately 58% of voters approved the measure. Essentially, Prop 22 allows companies to classify gig economy workers as independent contractors, rather than employees. This means that these contractors continue to be exempt from benefits such as health insurance, unemployment, and even some standard minimum wage requirements. On the flip side, those workers also can work as much or as little as they want and hold lots of other jobs (which is attractive to many).

As California goes, so goes the nation? Will tech companies see Prop 22’s passage as a bellwether for gig economy legislation to come? It is too soon to tell, but the passage of this referendum will have a major impact not only in California, but likely nationwide as well.

Minimum Wage

Florida – a veteran of the election spotlight – voted to raise the state minimum wage from $8.56 to $15 over the next six years. This move made Florida the eighth state to usher in the $15 minimum wage. If you want to check your state’s minimum wage, visit the DOL’s webpage.

In Maine, the cities of Portland and Rockland approved city-wide measures to increase the minimum wage to $15 over the next four years.

President-Elect Joe Biden

Finally, like every incoming administration, President-Elect Biden will have the authority to appoint new members of the NLRB and new leadership to agencies such as the EEOC. We don’t want to go out on a limb but it is likely these appointments will skew democratic and, as much of Biden’s platform, pro-labor. Some are already speculating that Biden may support federal measures to strengthen OSHA reporting requirements during COVID-19; push for a federal minimum wage increase; and defend (and expand) the Affordable Care Act. While we are not here to make predictions, we will keep you informed of any new developments under this new administration.

For now, it’s a waiting game.