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Medical Marijuana Use by Off-Duty Employees with Disabilities are Now Protected in Massachusetts

As marijuana has become legalized in more and more areas and manners, more and more rulings have come out saying that this still doesn’t mean an employer can’t fire you for using marijuana. We’ve talked at length about this phenomenon and what it means for you in the past-in fact we’ve dealt with the overruled lower court’s approach to this very same case. The trend in rulings, allowing employers to punish medically prescribe, legalized, behavior done when not at duty for work is a bit of an odd trend. You can imagine the uproar if courts took a similar approach to off-duty drinking of alcohol which doesn’t impact on-duty performance-never mind off-duty use of a prescribed medication.

However, just this last week the Massachusetts Supreme Court has taken a huge step as far as protecting Massachusetts employees based on medical marijuana use. They ruled it was handicap discrimination to fire a woman for using medical marijuana to combat low appetite resulting from Crohn’s disease. Let’s take a look at the facts in this legal first and what exactly the ruling means for the rights of Massachusetts employees and in a broader context.

medical marijuanaThe Firing of Ms. Barbuto

The case deals with one Ms. Cristina Barbuto, a women suffering from Crohn’s disease-an incurable ailment affecting the lining of the digestive tract . Crohn’s causes extreme intestinal discomfort, weight loss, fatigue, and other painful symptoms. As a result of her Crohn’s, Ms. Barbuto had serious appetite issues-losing dangerous levels of weight. She was eventually prescribed medical marijuana for her appetite and was able to once again reach a healthy weight.

Ms. Barbuto was offered a job with a company called Advantage Sales Marketing (ASM). The caveat to this job offer was that she needed to get and pass a drug test. Ms. Barbuto told them she was a legally prescribed medical marijuana patient and that the test would come back positive. She explained the details of her Crohn’s and also told them that her marijuana use was not daily, nor would she use it before or at work. Her typical use was low doses in the evening to improve her appetite before dinner.

The person from ASM told Ms. Barbuto that her marijuana use was unlikely to be an issue but that she would check and follow-up. After follow-up, the same person from ASM confirmed it wouldn’t be an issue.

Ms. Barbuto reported to her first day of work, worked a day without incident, then was contacted by HR and fired her for failing her drug test. When she mentioned she was legally prescribed the medical marijuana she was told that ASM “follow[s] federal law, not state law.” She then sued ASM for handicap discrimination.

The Ruling of the Court

Under Massachusetts law, and in general, it is illegal to fire or refuse to hire a handicapped person because of that handicap so long as they can perform the essential functions of the job in question if the employer makes reasonable accommodations for their handicap. A reasonable accommodation is basically any accommodation that does not cause undue hardship to the employer-usually by being extraordinarily expensive or difficult to accomplish. Once somebody establishes that they have a valid handicap it’s on the employer to prove that accommodations would be unduly difficult.

Under Massachusetts law, Crohn’s disease is explicitly included as a dehabilitating medical condition qualifying one for medical marijuana use. Thus, the Massachusetts Supreme Court felt it was pretty clear that Ms. Barbuto had a valid handicap.

ASM argued that a reasonable accommodation can’t exist because marijuana use of any type is a federal crime. This is a stance that has been successful in a number of states including California and Colorado. However, the Massachusetts Supreme Court felt that even if their drug policy forbids marijuana, ASM had to at least help the handicapped employee find an equally effective medical alternative. This process is a mandatory part of making reasonable accommodations for a Massachusetts employer. Where no equally effective alternative exists, the employer has to prove that the use of the forbidden medication-in this case marijuana-would cause them undue hardship before they can ban the medicine without committing handicap discrimination.

ASM’s argument essentially boiled down to saying federally illegal means the accommodation must be unreasonable and they don’t need to find alternatives. This most recent ruling reversed lower rulings and said no on both counts. The act legalizing medical marijuana in Massachusetts specifically says that patients can’t be denied any right or privilege due to the nature of their medicine. While the act doesn’t require accommodation of using marijuana on the job, partially because federal law specifically punishes businesses which allow drug use during work hours, this wasn’t an issue here as all use was done off-duty.  What’s more, the Court here ruled that the existence of a restriction on on-duty use implicitly allowed for off-duty use.

The Rulings Impact and the Larger Context

The Massachusetts Supreme Court has reversed the lower court and provided protection for off-duty use by employees legally prescribed medical marijuana. However, it’s important to note how specific the ruling is. Any use on-duty is clearly not protected and it is even arguable that if an employer offers to help find alternative medication they are still free to ban medical marijuana outright. Recreational marijuana use is obviously still completely unprotected, legalized or not and off-duty or not.

The ruling bucks the trend towards non-protection, but Massachusetts isn’t the first state to take steps towards protecting medical marijuana use by employees. Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada all protect such use to at least some degree-requiring employers to accommodate use. As marijuana legalization continues to spread at the state level-the Massachusetts Supreme Court noted in their ruling that almost 90% of states have legalized medical marijuana at this point-this tension will continue to grow. If marijuana becomes as commonly legalized as alcohol, questions will certainly start to arise over whether an employer would be able to regulate an employee’s off-duty drinking. The law around marijuana is frankly incredibly unstable as long as it remains federally illegal. For now, the laws will have to keep evolving as a patchwork of inconsistent state law.

Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.

Man Pleads Guilty to False Workers Compensation Claim for Motorcycle Injury

Workers compensation has been a boon to many employees. If a person’s primary – and probably only – form of income is the physical labor he or she can perform, an injury can be crippling for financial wellbeing as well. To compensate, many states have set up workers compensation to provide for a temporary disabled worker so that the worker can still have income until he or she is back on their feet. However, there are some who would abuse this generosity for selfish ends.

workers_compensationBoone Block of Clyde Park, Montana, worked for the state Department of Transportation. Block filed for workers comp, claiming that he had hurt his right knee while jumping out of a work truck. The Montana State Fund approved temporary total disability payments of $30,000 to pay for Block’s wages and medical treatment. Investigators received anonymous tips which lead to the discovery that Block had been injured in a motorcycle accident outside of work.  Boone Block has pleaded guilty. Block faces a three year suspended sentence and will pay a $3,000 fine.

Obtaining Workers Compensation

Workers compensation is obviously a life-saving benefit, as the benefit can pay for any medical bills acquired. As Block’s story shows though, if the employee abuses the system, it can backfire with significant damage to the employee. So are there any best practices to obtaining workers compensation without the shadow of fraud looming over the claim.

Check to See If Your Employer Is Covered

Not every employer is covered by workers compensation. Most states require an employer carry workers compensation if the employer has a certain number of employees. This number varies depending on the state – California requires that all employees be covered, while Georgia requires at least three employees before workers compensation is required – so check with an attorney first to determine if your employer is legally required to carry workers compensation.

One more note: the distinction between an independent contractor and an employee is very important if your state determines workers compensation based on the number of employees there are.

See a Doctor

Or better yet, see multiple doctors. Don’t worry about the cost; the workers compensation will put you back where you were before the accident – i.e. the cost of seeing these physicians will be covered. Blocks saw two doctors for his claim and it was approved, so this is a surefire way of affirming that you are indeed injured. The only mistake Blocks made was to lie to his doctors about how he was injured. That’s a no-no.

Document Everything

Broke your arm in a car accident while on a pizza delivery run? Crowbar pierced your leg while on the worksite? It might sound difficult, but try to obtain the names and contact information of any witnesses in the area. Not only will you need them to convince the state that you were injured on the job, but a credible witness will go a long way towards putting any investigation to rest. Even if you’re in no condition to go around collecting everyone’s names, you can ask a co-worker who was present to verify who was there.

Be Honest

There’s a difference between lying and being honest. It is possible to tell the truth without being honest. That’s not what happened with Block – he was just lying outright – but a lie by omission can harm your case just as much as an intentional lie. If you saw two doctors and one doctor said you were physically okay, you should disclose that doctor’s opinion to your attorney, even if the second doctor’s medical report is harmful to your case. Fraud is treated much more harshly, and scrutinized much further, in workers compensation cases than other types of cases.

Title VII Claim: Court Rules Intentional Segregation is Not Enough

The car repair chain AutoZone has been in legal trouble for transferring an African-American man from a store with primarily Latin-American clientele to one with primarily African-American clientele. To make things worse, the evidence showed that it was part of a concerted plan on the part of AutoZone to, over time, match the ethnicity of their store employees to the ethnicity of the majority of the clientele of a given store. The man who was to be transferred, one Kevin Stuckey, was fired after he refused the transfer.

If separating stores by race sounds like segregation to you, that’s because it’s basically the textbook definition of it. The Equal Employment Opportunity Commission (EEOC) certainly thought so, and brought a Title VII claim against AutoZone over their practice of intentional segregation. However, in a recent ruling, the EEOC was handed a shocker of a loss. Let’s take a look at the EEOC’s claim and why the court chose to rule the way they did.

Title VII Segregation Claims

The lawsuit brought by the EEOC made a claim under a less common source of liability for employers under Title VII– section 2000e(a)(2). Section 2000e(a)(2) makes it illegal for employers to “limit, segregate, or classify…employees or applicants … in any way that would deprive or tend to deprive [them] of employment opportunities or otherwise adversely affect [their] status as an employee [based on a protected characteristic such as gender or race].” This is a lower requirement than the usual Title VII claims alleging adverse employment action based on a protected characteristic. As we’ve discussed in the past, adverse employment action includes things such as firing, refusal to hire, demotions, refusing promotions or pay raises, and transfers to a generally less desirable position.  The EEOC’s claim, on the other hand, needed only to establish that AutoZone had acted in a way that tended to deprive Mr. Stuckey of an employment opportunity.

title viiThe first part of the EEOC’s claim was to simply prove that there had been segregation based on race. AutoZone obviously contested this, saying that Mr. Stuckey’s transfer was due to a combination of his inability to understand Spanish and failure to get along with the manager at his location.

The EEOC’s case, however, was quite strong. They produced evidence, and even testimony from the manager of Mr. Stuckey’s location, that AutoZone was engaged in intentional segregation based on majority clientele for a given store. AutoZone had an establish practice during the time of only hiring Latin-American employees for the location-regardless of their ability to speak Spanish.

The Court’s Ruling

Unfortunately for Mr. Stuckey and the EEOC, the court didn’t feel they needed to consider whether segregation took place–intentional or otherwise. They instead focused their ruling on whether or not Mr. Stuckey’s required transfer would have had a negative impact on his employment situation.

As mentioned before, segregation cases are fairly rare these days, so perhaps due to the lack of case law on the issue the court decided to examine the potential for negative impact on employment in a very similar manner to the higher standard of an adverse employment action. They focused on the fact that the transfer was a lateral one, no difference in duties, pay, or hours, in determining that Mr. Stuckey’s transfer would not tend to deprive him of an employment opportunity.

The EEOC argued that if the segregation element of Title VII does not cover intentional segregation, it’s a particular odd choice to have a separate rule for it. They further argued that the humiliation and embarrassment of being subjected to racial discrimination was by itself enough to give rise to a cause of action under Section 2000e(a)(2). They reasoned that it doesn’t make sense that the law allows intentional racial segregation of employees so long as the situations are equal–the very definition of separate but equal. Unfortunately, the court did not agree and ruled that without a situation that sufficiently damaged Mr. Stuckey to create a claim it did not need to bother considering whether AutoZone had actually segregated its employees.

What Does This Case Mean?

Unfortunately, this Seventh Circuit Court of Appeals ruling does mean what the EEOC feared in its arguments-employers seem to be able to legally intentionally segregate their employees so long as they don’t do so in a way that damages their economic situation. This seems almost too ridiculous to be the case. However, the next step of appeals from the Seventh Circuit Appeals Court would be up to the highest court in the land-the U.S. Supreme Court. The Supreme Court reviews only a very small portion of cases and, given its current conservative make-up, it is hard to predict the result of such an appeal. For now, this is the final word on this topic-regardless of if it seems to fly in the face of the law itself.

Whole Foods Loses the Fight to Stop Employee’s NLRA Right to Record

As an employee, protecting your rights is incredibly important. However, even with full knowledge of the rights you possess it can be tricky to identify situations where rights are violated and gather the evidence to prove your case when you look to enforce those rights. Communicating with others and recording situations where your rights may have been violated can be critical in making a case or even just determining whether your rights have been violated in the first place. Thankfully, your right to record in the workplace was just given a major boost in a recent ruling against Whole Foods by the National Labor Relations Board (NLRB).

The NLRB is the federal agency in charge of enforcing labor laws related to unions, collective bargaining, and unfair labor practices-primarily as set forth in the National Labor Relations Act (NLRA). Just a few weeks ago, the Second Circuit upheld a decision of the NLRB deciding that Whole Foods had violated the NLRA through a policy barring recording conversations, phone calls or meetings in the workplace without manager approval.

With this case upheld on appeal, let’s take a look at the rights the NLRA grants you, the case itself, and what the case means for you as an employee or an employer.

Your NLRA Rights

The NLRA itself provides you a fairly broad suite of rights related to your ability to organize and bargain collectively. Under the act you have the right to (or not to) self-organize, form, join, or assist labor organizations, bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This basically means you have the right to choose whether or not to join with other employees in bargaining for employment terms. You also have the right to take the steps necessary to coordinate that group bargaining.

In order to protect these rights, the NLRA also makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of any of the rights discussed above.

The Case Against Whole Foods

Whole Foods had two policies on the books that got them into the legal trouble which led to this case. First, a policy forbidding any audio or visual recording of company meetings-with any recording device-without prior approval of a manager. The second policy applied a similar recording ban on any conversation held during business hours. These policies applied to any topic of conversation and all areas of every Whole Foods store.

The stated goal behind these policies was to encourage “open communication” and “spontaneous and honest dialogue.”  Whole Foods argued that, regardless of the policy, they strove to foster a culture where employees were free to speak up though open door policies and “town hall meetings.” They argued that recording meetings would damage the anonymity behind complaints and weaken employee rights.

However, the NLRB and the Second Circuit weren’t buying it. The test to see if rights have been violated isn’t whether an employer provides sufficient avenues for an employee to speak out, but rather whether the policy could inhibit an employee’s NLRA rights.

Whole FoodsWhen Does a Policy Violate the NLRA?

A policy inhibits rights where it would “reasonably tend to chill employees in the exercise or their” NLRA rights. This means that policies which tend to make it harder to exercise your rights are not ok. This can happen where a policy explicitly restricts you from doing something the NLRA guarantees. However, a policy also violates the NLRA when: 1) an employee would reasonably consider in to prohibit them from asserting NLRA rights; 2) the rule was made in response to union activity, or 3) the rule, despite how it is written, has been used to restrict employees’ NLRA rights. Where a rule is ambiguous, but could be interpreted to violate NLRA rights, it still violates the NLRA. This unacceptable overbreadth exists when an employee would reasonably interpret the policy to prevent exercise of NLRA rights. It is this rule against overbroad policies that worked against Whole Foods.

Ruling Against Whole Foods

The policies are a blanket ban on all recording. However, photography and video recording in the workplace have historically been guaranteed when it is done to document a potential violation of rights under the NLRA unless there is a particularly compelling reason for the employer to ban them such as the heightened privacy interests of patients within a hospital. The NLRA has even been interpreted to guarantee an employee’s ability to post these photographs and recordings on social media.

Despite Whole Foods stated purpose of maintaining open communication, the policies as written prevented employees from exercising these rights. Thus, the policies violated the NLRA by inappropriately curtailing protected employee actions.

However, the ruling didn’t hold Whole Foods’ feet to the fire too much. It only really required them to retract the policies, or at least reword them to provide exceptions for NLRA protected recording.

What Does This Mean For Employers and Employees?

One thing to keep in mind is that this is not the only time in recent memory that the Second Circuit has backed the NLRB in expanding the definitions of employee rights under the NLRA. It was just May of this year that they ruled that an employee had the right under the NLRA to post quite unflattering things about his manager in a social media post because the post also discussed an ongoing union election. This could be seen as a trend towards expanding the spheres in which an employee enjoys NLRA protection.

For employees, this ruling means that you enjoy greater NLRA protections on your right to organize and record the behavior of your employer. This is incredibly important because proving a violation of your NLRA rights will often require this sort of recorded evidence.

As an employer, this ruling can act as guidance for crafting policies on recording that avoid the mistakes of Whole Foods. Recording restrictions haven’t been banned altogether, rather recording restrictions without clearly defined exemptions for NLRA rights have. The lesson here is to make sure that your policies include these exemptions in order to avoid trouble with the NLRB.

So is this the beginning of a trend where NLRA rights catch up with tech? It’s simply too early to say. However, the trend is encouraging. Recording devices are more broadly available than ever before. It’s a safe wager that a large portion of those reading have one in their pocket or purse as we speak. With recording rights protected, it’ll be easier than ever before to gather the evidence necessary to protect your rights-and that’s encouraging.