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…]

Court Holds Individual Supervisor Liable under Family and Medical Leave Act

In a case of first impression in Massachusetts, a federal judge ruled that individual supervisors can be personally liable to employees for violations of the Family and Medical Leave Act.

The employee involved claimed he was treated differently at work and retaliated against in part because he requested medical leave. He sued both his employer and his immediate supervisor despite the fact that the FMLA requires only ‘employers’ to provide certain leave rights to workers. The supervisor’s motion to dismiss on this ground – he is not, he argued, an employer, and lawsuits against individuals are not authorized by the FMLA – was denied by the court, which cited to higher court interpretation of the Fair Labor Standards Act, a federal law whose definition of the term “employer” is almost identical to that in the FMLA.

The decision serves as a warning to managers and others to pay close attention to their companies’ conduct in cases that might implicate the FMLA. The law applies to employers of greater than 50 employees, and to workers who work at least 1250 hours in a prior year. It permits qualified employees to take unpaid leaves of absence for their own health reasons and those of certain close relatives. Massachusetts employers should also note that the Commonwealth provides similar protections to employees of smaller companies.

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.

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.

Court Rejects Another Expansion of At-Will Employment Rule

Yet another attempt to expand the public policy exception to the Massachusetts at-will employment rule has fallen by the wayside. This time, the court rejected a former employee’s challenge to his firing based on a concept termed, “honest, open and accountable government.”

“The question what exactly is required by the policy of open, honest and accountable government… is both difficult to define and open to debate,” the Appeals Court wrote on August 4, 2016. “The Supreme Judicial Court…has made clear that the public policy exception must be construed narrowly in order to avoid effectively imposing a just cause requirement for termination of at will employees….”

The at-will employment rule provides that either employees or their employers are free to end their working relationship at any time, for any reason, and either with or without cause. This means that employees generally have no recourse when fired except as may be provided by particular laws. The Massachusetts anti-discrimination law and anti-retaliation language in the state’s Wage Act are examples. Absent those legal protections, employees can challenge their firings only if they can identify an exception to the at-will rule.  Exceptions are few and far between.

In Tramontozzi v. Mass. Dept. of Transportation, a former employee of the Massachusetts Transportation Department claimed he was unfairly made a scapegoat after a light fixture fell from the Central Artery Tunnel in Boston. He accused the Department of unfairly blaming him for alleged delayed disclosure of the incident in order to provide cover for higher authorities. While the Appeals Court agreed that government should be open and honest, it declined to create a public policy exception to the at-will rule on this basis.

Workplace Bullying Could Soon be Outlawed in Massachusetts

It has not become law yet and there’s no assurance it will make it through this Legislative session, but a bill that would outlaw “workplace bullying” is making progress. The fact that the current version of the proposed law, which has been considered in various forms in the past, is sponsored by more than 50 members of the House of Representatives is one sign that this time things may end differently.  Another is the positive report it received in August by the committee on Labor and Workforce Development.

The law would open employers to liability for permitting an “abusive work environment” to exist, making them liable for the acts of their employees. It defines such environments as ones where abusive conduct has caused physical or psychological harm to an employee. Repeated verbal abuse, intimidating or humiliating behaviors, and sabotaging of an employee’s work fall within the ambit of abusive conduct under the proposal’s definition. Among the possible sanctions for workplace bullying: an injunction to stop it, job reinstatement of a victim, termination of an offending party, wage losses, emotional distress and punitive damages, and legal fee awards.  Employees would have to bring a private suit for bullying within a year of the most recent workplace event.

As justification for the law’s passage, sponsors recite that one-third of all Massachusetts employees will experience “health-endangering workplace bullying”  that can cause shame, humiliation, severe anxiety, depression, and even suicidal tendencies, among other things. They note that bullying not tied to membership in a legally protected class of individuals is four times more prevalent than sexual harassment and opine that victims of it should not be shut out from relief. The proposal’s goals, its sponsors say, are to provide relief for employee victims of bullying and incentives for employers to prevent it from occurring.

Employee Handbooks are Valuable Tools, but Present Dangers when not Followed

There’s no question that employee handbooks are an invaluable tool for managers. In my view, few  should be without the benefits they bring in terms of both communicating with workers and management’s own understanding of the myriad employment laws that may apply on the job. That said, employers need to understand that, when they include a policy in a handbook, they need to respect it. Those who don’t proceed at their own legal peril.

Massachusetts courts have long permitted employees to claim that the terms of an employee handbook form part of a contract that their employers need to follow. Though claims like those are tough to win, former workers sometimes see good reason to try nonetheless. That may be because, as with any lawsuit, outcomes are uncertain, regardless what one may believe about a claim’s merits. Since all must be defended at often substantial cost, defendants who face lawsuits often figure out quickly that it’s better to settle than to fight to the death, as it were. When it comes to suits over the terms of an employee handbook, the primary way an employer can avoid a predicament like that is to strictly follow the terms of the policies it publishes to its workers. If you don’t like a policy, change it – prospectively only, of course. Until that is done and conveyed to workers, all policies should be complied with by employer and employee alike.

A recent case in the U.S. District Court illustrates the perils companies can face when they don’t follow this tact. In Grant v. Target Corp., a former employee is complaining that Target fired him in violation of policies and procedures in its employee handbook. When Target moved to dismiss the suit, the court refused. Though Target claimed, among other things, that it retained rights to change its handbook at any time, the court concluded it must still deal with the employee’s claim that, when he was fired for intoxication at work, Target’s policies were violated. Though Target may ultimately win the case, it will not do so before expending substantial time and effort. In the end, it will need to prove either that its handbook did not form the basis for a contract or that the contract it did form was followed. Unfortunately for the employer, the process is not likely to be cheap.

Massachusetts Sick Leave Law Takes Effect Today

Effective today, July 1, 2015, all Massachusetts employees enjoy guaranteed sick leave benefits. The law that was approved by voter referendum last November mandates that every employee receive one hour of accrued sick leave for every 30 hours of work. The leave can be used for a variety of purposes — including worker or family illness, medical appointments, and dealing with domestic violence — and must be paid by employers with 11 workers or more. It is enforced by the Massachusetts Attorney General, which recently issued final regulations, a mandatory workplace poster, and a draft policy for employers to implement. Those materials can be found on the AG’s website at www.mass.gov.

Employers who have not implemented written policies that comply with the statute should do so promptly. The law was incorporated as a new section of the Massachusetts Wage Act, which provides substantial penalties for violations. It is illegal to refuse to provide sick leave, to require documentation under most circumstances, or to punish workers for using it. Employees can use leave in increments as small as one hour at a time. Though they are prohibited from abusing leave, employers should move cautiously before disciplining employees for improper sick leave usage.