Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
medical marijuana act
In the post on Sunday 11/8/20, we learned that a federal court holds PA Medical Marijuana Act provides private right of action. Hudnell was a security analyst for Jefferson University Hospitals. She had surgery and before he could return was required to submit to a drug test. She notified the employer that her medical marijuana card had expired during her leave but she was expecting recertification She failed the drug test (yep, it came back positive for marijuana) and was fired. The employer’s basis for the discharge is in the post. Hudnell challenged the reasoning. She even submitted a doctor’s note as discussed in the post. When the employer still refused to return her to work, she filed charges for failure to accommodate a disability and race discrimination. The procedure is noted in the post; it ended up with her filing suit on the bases listed in the post. Some of the charges in the suit were dismissed on the basis noted in the post. What was left was whether there was a private cause of action under the MMA. The court’s analysis is in the post.
TAKEAWAY: Employer’s need to be aware of the MMA and how it can affect employment decisions.
The post on Monday 11/9/20 was about workplace vaccination policies during the pandemic. Whether employer or employee, we suggested you read the post. COVID-19 and the flu share similarities, but there are also differences. Employers may already have in place policies dealing with the flu (and similar ailments), but they should be reviewed now, including for mandatory flu and COVID-19 vaccinations. Yes, an employer can require employees to get vaccinated, but with limitations. First, an employee may have an ADA-qualified disability which prevents him or her from getting vaccinated. How that plays out is noted in the post. Also, under Title VII, religious opposition to vaccination may exempt the employee. Again, how that plays out is in the post. For both disability and religious requests for exemption form vaccination, the employer has a duty to accommodate unless it would be an undue hardship. Examples of what will or won’t be considered an undue hardship are in the post. There might also be a basis under applicable state law for exemption for vaccination.
TAKEAWAY: Discuss with an employment lawyer whether or not your business should require vaccinations – and the implication and effects of deciding either way.
The post on Tuesday 11/10/20 was about employees’ off-duty conduct, increasing violence at work, and the gig economy. How if at all should an employer respond to an employee’s off-duty conduct? Is there legal protection for the activity? Is the employment at-will? These questions, and others, along with 3 steps the employer should take, are discussed in the VID embedded in the post. And what about the rise of workplace violence during the pandemic, including against retail sector employees and among employees in all settings? The employer needs to have a policy and process in place. Some examples of what the policy should include are in the VID embedded in the post. Finally, what happens to gig workers – especially vis-à-vis the employee or contractor classification issue – is playing out in elections and courts across the country. The post gives an example.
TAKEAWAY: The pandemic has and continued to effect employees in many ways which then become job-related; employers need to have in place a legally compliant policy to deal with those job-related effects.
The post on Wednesday 11/11/20 told us that an Association had asked a woman to remove her Halloween decoration of skeletons on stripper poles. The Association’s letter to Angela characterized her decorations as “inappropriate” and “offensively positioned”. How Angela described her decorations is quite different – and in the post. Her neighbors became involved too – see the post.
TAKEAWAY: Associations need to have in place consistent, evenly-applied guidelines or restrictions on holiday decorations – consult a community association lawyer to ensure yours are legal.
In the post on Thursday 11/12/20 we learned that the EEOC sued Lonza America / Arch Chemicals for disability discrimination. Why? Lonza/Arch is a manufacturer or pool and spa sanitizers and similar treatment products. When a long-time employee tested positive for a controlled substance, he was suspended (and more, with conditions for his return to work, all as noted in the post). When they learned information about the employee, they did not make adjustments or accommodations – see the post for all of this. Lonza ended up firing the employee. The EEOC sued after conciliation failed.
TAKEAWAY: Employers indeed have rights when the use of controlled (or illegal) substances is involved, but so do employees under the right circumstances – know what those circumstances are and what you as an employer must do.
The post on Friday 11/13/20 told us that the EEOC sued Golden Entertainment / Rocky Gap Casino Resort for sexual harassment and retaliation. The resort is not far from Southcentral PA – it is near Cumberland, Maryland. So, what happened there? Allegedly a male bartender repeatedly made sexually offensive remarks to a female bartender and touched her inappropriately. She reported it; what happened is in the post. She reported it elsewhere, and what then happened is noted in the post. The male bartender then whispered something in her ear – not a sweet nothing, but what is set forth in the post. She was then reassigned to a location where she made less money while the male bartender stayed in his location; she ended up quitting. When conciliation failed, the EEOC filed suit.
TAKEAWAY: It is bad enough when an employer takes no action against an employee who is violating the law, but to retaliate against the victimized employee is even worse – for all involved. Don’t do it.
Finally, in the post yesterday 11/14/20 we saw that a former AT&T employee sued the company for age discrimination in a local case. The suit alleges that AT&T wants to get rid of older employees – voluntarily or otherwise – and tried to accomplish that through a ruse noted in the post. When the plaintiff was caught up in this, she was told the ADEA did not apply; it did and how is detailed in the post. Further, the release given by the company to the employee (and others) had already been determined by the Court to violate the ADEA. Finally, the employee explained in her suit how the reason for discharge could only have been age-related – see the post.
TAKEAWAY: If an employer is taking adverse action against an employee or group of employees, it should make sure there is a valid legal basis or be willing to risk suit.
York, Pennsylvania 17403