Who Judges the Judges? Federal Judiciary Adopts New Workplace Conduct RulesIn light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating employees to report any misconduct behind the bench. The conference amended the Code of Conduct and Judicial Conduct and Disability Act rules to make clear that misconduct includes:

  1. Sexual harassment or assault.
  2. Creating a hostile work environment for judicial employees.
  3. The broad category of treating judicial employees in a “demonstrably egregious and hostile manner.”
  4. Intentionally discriminating on the basis of race, color, sex, gender, religion, pregnancy, national origin, age or disability. Interestingly, judges are also prohibited from discriminating on the basis of gender identity or sexual orientation – two categories that are the basis of a current split among the courts.
  5. Retaliating against complainants, witnesses or others for participating in the complaint process or for reporting misconduct or disability.
  6. Failing to notify the chief district or circuit judge of reliable information reasonably likely to constitute judicial misconduct or disability.

The amendments also streamline how employees can report misconduct and implement training in identifying judicial misconduct. These requirements will primarily be accomplished through the new Office of Judicial Integrity, which will collect the confidential complaints.

Now what?

No one thinks that the judges didn’t know their legal obligations or that they were allowed to harass employees prior to these amendments. However, it is a sign of the times that the courts decided to explicitly state their commitment to prohibiting harassment, to make it easier to report, and to reiterate non-retaliation protections. It may be interesting to see how judges in the circuits who have ruled specifically against protecting against discrimination based on gender identity and sexual orientation will react to the fact that their own Judicial Code of Conduct recognizes those as protected classes.

Why does this matter to regular folks?

Although the courts knew what the law said, judges will now have a written guideline for how a policy should look. In the future, when a judge needs to assess the sufficiency of a company’s harassment policy and complaint-reporting procedure, that judge may look to these new judicial requirements as a minimum. Companies would be well served to make sure their policies at least hit the high points.

Changing Marijuana Laws and Effective Drug Testing PolicyAlthough marijuana is classified as an illegal drug under federal law, a majority of states have now legalized its use in one form or another. This rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states. Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights. Although difficult at times, there are steps employers can take to help successfully navigate this legal minefield.

Maintain a Safe Workplace

Workplace accidents can have significant effects on multiple areas of a business, including insurance costs, personal injury claims, third-party claims, and employee satisfaction and productivity. An employee’s impairment from drugs or alcohol can seriously increase the risk of injury to persons and damage to property. Accordingly, most employers have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states has made maintaining a zero-tolerance policy more difficult.

In some states, employers must accommodate an employee’s use of medical marijuana. For example, in Noffsinger v. SSC Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user. Similarly, Oklahoma law prohibits employers from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations. Although these statutes do not prohibit employers from disciplining employees who consume marijuana, or are under its influence, while on the job, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken.

Other states that have legalized medical marijuana do not require accommodation of employees’ use. In California, for example, an employer can dismiss an employee who tests positive for marijuana and its components. Likewise, under Ohio law, employers are not prohibited from refusing to hire, discharging, or disciplining a person because of the use or possession of medical marijuana, nor are they prohibited from establishing and enforcing a zero-tolerance drug policy.

Between these two ends of the accommodation spectrum, a number of states’ laws provide for varying levels of accommodation for employees’ medical marijuana use. In Illinois, for example, employers are prohibited from discriminating against employees and job applicants who qualify as a medical marijuana patient unless the accommodation would result in the violation of a federal law or the loss of a federal benefit. Nonetheless, Illinois employers may still impose reasonable limitations on the consumption of medical marijuana and enforce zero-tolerance and drug-free workplace policies as long the policies are applied in a non-discriminatory manner. Other states, such as Delaware, Nevada, New York, and West Virginia, have similarly varied degrees of required accommodation.

To help navigate these nuanced laws, employers, especially those with a multi-state footprint, should develop a well-defined drug policy and administer a drug testing program in a non-discriminatory manner.

Develop a Well-Defined Drug Policy

Developing a well-defined company policy on marijuana use can minimize the risk of harm to persons and property, and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will open the door to liability for adverse employment decisions. At a minimum, employers should ensure that a company drug policy:

  • Defines the terms “marijuana,” “cannabis,” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.
  • Indicates that the use of marijuana, whether recreationally or on the job, is strictly prohibited.
  • Articulates drug testing policies and procedures (including penalties for failing a drug test).
  • Educates employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions, and the potential impacts on workplace safety and performance.
  • Is included in recruiting and new-hire onboarding materials to ensure notice to the individual.

Consistently Administer a Drug Testing Program

Once an employer adopts a drug policy, it is critical that drug tests are conducted uniformly for all employees. Failure to do so can subject an employer to liability for discrimination claims that arise from adverse employment actions.

If an employee tests positive for marijuana, the recourse available to an employer can vary greatly under federal and state laws. For example, the Americans with Disabilities Act (ADA) currently does not shield an employee from adverse employment actions for using marijuana to treat a disability, even if the employee refrains from using medical marijuana while on the job. The ADA exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the Controlled Substances Act, which currently lists “marijuana” as a banned substance. As a result, at least under the ADA, employers can terminate an employee who tests positive for marijuana, even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time. Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, an employer is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or temporary leave during treatment.

By contrast, as discussed above, some states require an employer to accommodate an employee’s use of medical marijuana and prohibit an employer from terminating an employee for a failed drug test for marijuana use. Employers should be mindful of the potential for conflict between their own drug testing policies and requirements mandated by federal or state laws. If there are questions as to what actions an employer can take against an employee for failing a drug test, the advice of legal counsel should be sought.

The Measure of Success

An effective drug policy decreases hazards and promotes an accident-free work environment. While state and federal laws meant to promote this goal may seem straight forward when read in isolation, problems arise when these laws overlap or conflict with one another. The growing number of states legalizing marijuana use, and the nuanced differences between laws, will only amplify this problem. Although all employers need to implement well-defined policies and procedures, it is particularly important that those employers operating in any of the 30 plus states in which marijuana is now legal in some form take time to review current policies and evaluate the need for changes to ensure employee safety and reduce company risk. If you have questions about this rapidly changing legal issue, you should contact an attorney with experience in this emerging area of the law.

Survey Says! You Have Some Extra Time to File Your EEO-1 FormWe all know how much HR professionals LOVE to fill out government-mandated forms. One of the forms at the top of the list is the EEO-1 compliance form that must be filled out by companies that have 100 or more employees or that are a federal contractor with 50 or more employees and a contract of $50,000 or more. The form asks for basic information on the company’s full-time and part-time employees, including gender and ethnicity. Usually, these forms are due on March 1 of every year. However, due to the partial government shutdown, the deadline has now been extended to May 31, 2019. So enjoy that additional time, but get your forms in!