Reasonable Accommodation Laws Apply to Use of Medical Marijuana in Massachusetts

If there was any doubt that employers need to be careful about disciplining employees who use medical marijuana, it was ended today by the Supreme Judicial Court (SJC). It held that employees who are prescribed medical marijuana to treat their health conditions are protected under Massachusetts handicap law. Both employers and managers involved in decisions to punish workers for off-site medical marijuana use can be sued for damages caused by their conduct, the SJC held.

The case’s significance is patent. Under both Massachusetts and federal law, handicapped employees are protected against discrimination. If they can perform their jobs with or without reasonable accommodation, employers cannot take adverse action against them due to their disabilities. Massachusetts places a heavy burden on employers to consider accommodations their employees may need to continue working and to implement them if reasonable. Employers must both engage in an interactive discussion to evaluate potential accommodations and implement any that may exist unless they prove that doing so would pose an undue hardship. Proving undue hardship is quite difficult.

But state and federal laws diverge when it comes to marijuana use. In Massachusetts, such use is legal when medically prescribed. The drug can be sold in the Commonwealth, was long ago decriminalized, and is now wholly legal for personal use. At the federal level, none of this is true. Despite broad agreement among states that marijuana has valid medical uses that should be permitted under proper supervision, U.S. law continues to provide otherwise. It was on this basis that the employer in Barbuto v. Advantage Sales and Marketing, LLC believed it could summarily terminate its employee for a positive marijuana test. [Read more…]

Employer Learns Reasonable Accommodation Lesson that’s Instructive to All

The Supreme Judicial Court recently clarified the legal hurdles employers must satisfy when defending claims that they failed to reasonably accommodate their disabled employees. In doing so, it gave one employer a lesson that all will be well-advised to pay attention to.

The case involved a police officer who suffered a head injury. Though he contended he remained capable of performing patrol officer duties without posing an unreasonable risk of injury to himself or others, his department disagreed. It confined him to desk duty, then defended his lawsuit claiming, in effect, that it acted in a good faith belief that the officer could not perform the essential functions of his patrol job. After a superior court judge granted the department summary judgment, the SJC reversed. It held that the issue is not whether an employer in such circumstances acts in good faith — something an employee will have an extremely difficult time disproving — but whether the employee demonstrates he/she can do the relevant job with reasonable accommodation. The department now faces a jury trial on this relatively narrow and perhaps difficult question.

The case illustrates a common problem employers face in handicap cases — a failure to properly understand their duties to reasonably accommodate disabled workers. The fact is that workers must be accommodated whenever reasonably possible, and employers should consider this carefully and thoroughly before denying accommodation requests. Among other things, they should fully review all possible job adjustments and engage in meaningful discussions with their employees. Only when no accommodation is possible or the ones that do exist impose undue hardship should employers deny their employees requests. Such decisions should never be made lightly.

Federal Courts Move Toward Ban Against Sexual Orientation Discrimination

A U.S. Federal Court this week lent more weight to the notion that a federal law that bans employment discrimination applies to employers whose conduct is motivated by their employees’ sexual orientation. By a decisive 8-3 margin, the full court for the 7th Circuit applied Supreme Court precedent on sexual stereotyping to conclude that a gay professor enjoys the protections of Title VII, which proscribes certain forms of employment discrimination as part of the Civil Rights Act of 1964.

Though the ruling does not apply outside the 7th Circuit, it is significant for several reasons. First, it reverses precedent from the same circuit to the effect that sexual orientation is not a protected category under Title VII. Second, the majority reportedly consists of several Republican Party appointees, indicating broad agreement that gays are protected against discrimination under federal law just as they are by the U.S. Constitution. Third, the decision is at odds with other circuit courts, a situation that could lead the U.S. Supreme Court to settle the question. The Court frequently does so when circuits courts are split on significant issues such as the breadth of Title VII. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, agrees that sexual orientation discrimination is banned under that law.

What the federal courts ultimately decide on sexual orientation discrimination may not be as significant in Massachusetts as in other states. Here, state law already provides protections for gay workers, who can bring claims of job discrimination to the Massachusetts Commission Against Discrimination and state courts.

MCAD Decision: Employer Duty to Reasonably Accommodate Handicapped Employees is Extremely Broad

In the usual case, employers that receive reasonable accommodation requests from their employees try to help. They may adjust a work schedule, grant a leave of absence, or even modify job duties. Too often, however, those same employers fail to grasp the broad scope of their ongoing duties to accommodate. They reach what they perceive as an end point based on their own interpretations of what’s reasonable, then refuse to help workers further. Decisions like that have a high potential to lead them into hot legal waters.

A recent Massachusetts Commission Against Discrimination (MCAD) decision illustrates this point. The employer involved believed it bent over backwards, as it were, to help its employee. It gave her 12 weeks of FMLA leave, 23 weeks of part-time work, job relocation, and adjustments to avoid heavy lifting. Despite the seeming generosity of these accommodations — a fact expressly noted by the MCAD in its decision — the employer was tripped up when it refused to extend part-time work for three additional weeks so its employee could complete physical therapy and, hopefully, return to full-time work. Because the employer could not demonstrate that the continued leave would impose an undue hardship, it violated the Massachusetts anti-discrimination statute. It was ordered to pay damages to its former employee despite the fact that she did not recover sufficiently to work full-time as hoped.

The lesson for employers here is patent. Reasonable accommodation is an ongoing and fungible process that requires regular reassessment of workplace requirements and employee needs. Granting a work adjustment is not alone enough to satisfy the law, which requires an interactive engagement with employees in search of accommodations that are reasonable and appropriate under given circumstances. Employers who fail to understand that process as they seek to themselves decide what’s reasonable and what is not run the risk of lawsuits. In most cases, those suits can be avoided by careful consideration of what the law requires.

Marijuana Use Rights Arise in Employment Situations

With the enactment of two marijuana laws in Massachusetts during the past few years, there’s never been much doubt that use of it would someday become a workplace issue. Now, the Supreme Judicial Court is taking up the issue in connection with medical marijuana use. It seems likely that similar legal questions regarding recreational use of the drug will also soon arise in the wake of the 2016 legalization of marijuana in the Commonwealth.

The current case involves an employee who was fired after she failed her employer’s mandatory drug test. She sued, claiming her rights were violated because she was legally authorized to use marijuana to treat Crohn’s Disease. According to the complaint, her employer told her it did not care about her medical authorization to use marijuana because it followed federal law, under which marijuana remains illegal. After the superior court dismissed her lawsuit, the SJC opted to hear her appeal. It will reportedly consider both whether the company violated Massachusetts anti-discrimination laws and whether employees can sue their employers under the medical marijuana statute.

The case signals problems on the horizon for employers on various fronts. Drug testing has long been a problematic policy that runs headlong into individual rights of privacy. Since testing can potentially uncover drug use that occurs outside work, employers need to respond to positive tests carefully. Now that marijuana is legal for recreational use in Massachusetts, complexities with testing and in other areas of the employer/employee relationship will likely multiply. The wisest course may be for employers to treat marijuana as they commonly do alcohol — by proscribing its use only while employees are working.

EEOC Working on New Anti-Harassment Guidance

The Equal Employment Opportunity Commission (EEOC) is currently working on new guidance to help analyze and decide claims involving harassment in the workplace. The new rules promise to bolster enforcement against harassers as it follows a task force finding that the issue remains a serious problem in the American workplace. The new guidance will explain the law as interpreted by courts and serve as a reference for EEOC enforcement staff and other federal officials. It is likely to be used by courts and litigants as well.

The guidance will likely deal with harassment based on race, color, religion, sex, national origin, disability, age and genetic information. There is no current timetable for its release. The EEOC recently extended the time period for comments on it March 21, 2017. A copy of the proposal can be found at www.regulations.gov/document?D=EEOC-2016-0009-0001.

Good Faith Interactive Process is Key to Properly Handling Accommodation Issues

Most employers know (though some, incredibly, still do not) that they are obligated by law to reasonably accommodate disabled employees. After that, there are several areas of knowledge breakdown that form a theme for cases in litigation. Among them is a rule that is commonly overlooked: the requirement that employers engage in good faith interactions with disabled employees to find reasonable accommodations that will allow them to perform their jobs. Doing so is critical to effectively preventing or defending against handicap discrimination lawsuits.

After acknowledging an employee’s handicap, a process that is not always as simple as it may seem, employers on notice that an accommodation is needed have the duty to figure out what can be done. Commonly, they treat it as a one way street along which they alone consider potential work changes and decide whether they can be implemented. This approach can work as long a reasonable accommodation is identified, accepted by the employee involved, and implemented. When this  doesn’t happen for one reason or another, employers need to be sure they turn to the employee for and engage in a good faith interaction aimed at exploring accommodation options and finding one that will work. This normally involves a review of medical information, meeting with the employee, considering which job duties are essential, and exploring all reasonable options for helping the employee perform them. Employers should be careful that, while working with employees in this area, they are not counter-acting that effort by disciplining or mistreating them actions that somehow relate to the disability in question.

Employers must Investigate Sexual Harassment Complaints to Reduce Risk of Punitive Damages

When in doubt, investigate – carefully and thoroughly. That’s the message again delivered to employers by a recent decision of Massachusetts’ highest court. When an employee complains about sexual mistreatment or other discrimination, it’s critical that he/she be taken seriously and that appropriate remedies be implemented to address any allegation that is borne out by a fair investigation.

Lexus of Watertown learned this lesson the hard way recently. After its former employee filed suit for sexual harassment, among other things, a jury awarded her $40,000 for emotional distress and another $500,000 in punitive damages. On appeal, the Supreme Judicial Court rejected Lexus’s argument that it did not act badly enough to justify a punitive damages award, which can be used to punish employers only in cases of outrageous or egregious misconduct.  Lexus, the court found, exposed itself to a punitive damages award because it did not adequately investigate its employee’s complaints after it learned about them. Those complaints were later proved true at trial, at least to some degree.

“Where the employer is aware of a sexually hostile or offensive work environment, the potential for punitive damages against the enterprise is triggered and an inquiry into the response by the employer is warranted….The failure to do so opens the door to the potential imposition of punitive damages if the jury conclude that the employer’s failure was sufficiently outrageous and egregious,” the SJC found.

Although Lexus of Watertown in fact conducted an investigation, the court found that it was inadequate. It was conducted by a supervisor who doubted the complainant from the outset, did not include interviews of all relevant personnel, and did not involve the complaining employee. Though the investigation did not corroborate any of the complaints, a former manager had previously circulated a memo regarding the harasser’s inappropriate behavior. At trial, many of the complaints were corroborated by testimony. Other employers should learn from this case. All complaints should be investigated fairly by an impartial person. Counsel should either guide the investigation or conduct it.

EEOC Urges Employers to Improve Workplace Anti-Harassment Training

Calling workplace harassment an “all too persistent problem,” two commissioners from the Equal Employment Opportunity Commission (EEOC) are calling on employers to rework and improve their anti-harassment training programs. The commissioners headed a task force that evaluated sexual harassment in the work place. The EEOC’s chairperson seems to agree that more and better training is required. She said, “I thank Commissioners Feldbum and Lipnic and the members of the Select Task Force for their work to combat the persistent problem of workplace harassment. Preventing harassment from occurring in the first place is far preferable to remedying its consequences.”

The EEOC was created by the Civil Rights Act of 1964. It is charged with addressing workplace discrimination issues. It is the federal equivalent of the Massachusetts Commission Against Discrimination (MCAD), which has the same mission. In Massachusetts, training employees on sex harassment issues is not mandatory but is strongly encouraged. Whether and to what extent employers accused of sex harassment have done so is often an important issue at MCAD hearings.

Employers will be well-served to examine their workforces and consider how best to train their employees. Anti-harassment training should be tailored to the needs of individual businesses. Its goal should be to help employees understand what sexual harassment is, how it can damage individuals and companies, and how to deal with it as it arises. No anti-harassment program can be effective unless employees believe their employers are serious about it and are consequently unafraid to use complaint and other systems without fear of retaliation.

Massachusetts Legislators Debate Bill to Provide 12 Weeks of Paid Leave for Employees

The Massachusetts state legislature is considering a bill that would not only provide family leave for employees who now are not entitled to it, but would set up a fund to pay at least part of their lost wages.

Titled “An Act establishing a family and medical leave and temporary disability leave insurance program,” the bill has numerous sponsors in both the House and Senate.  It is currently being considered by the Labor and Workforce Development Committee and is due to be reported out on May 16. Citing the large number of Massachusetts employees who are not entitled to leave provided by the Family and Medical Leave Act (FMLA) due to company size – and decrying the fact that FMLA leave is unpaid and thus difficult for many employees to use in any event – the bill’s sponsors contend that the new law is needed to protect employees who face serious personal or family emergencies.  Among its provisions as currently formulated are the following:

  1. 12 weeks of job protected leave for serious personal /family illness or to care for a newborn, adopted or foster child;
  2. Partial wage replacement in the form of temporary disability coverage that will be funded by employer contributions;
  3. Continued coverage by employers for health care on terms in effect for employees before they begin a leave; and
  4. A one-week waiting period in cases of personal illness and an exemption from funding obligations for employers who provide paid leave benefits, both of which are aimed at controlling costs.

Eligibility for the Act’s benefits would begin after an employee works 1,250 hours for his/her employer. Penalizing employees who take leave would be prohibited. If enacted, the new law will be administered by the Massachusetts Commission Against Discrimination (MCAD). Violators will be subject to the same penalties as apply in discrimination cases generally, including payment of an affected employee’s lost wages, emotional distress and legal fees.