Employment Training, Practices & Procedures

Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.

Background

In Noffsinger v. SSC Niantic Operation Company (3:16-cv-01938; D. Conn. Aug. 8, 2017), the federal district court ruled that “qualified users” are protected from criminal prosecution and are not subject to penalty, sanction or being denied any right or privilege under federal laws, such as the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act (FDCA), because the federal laws do not preempt Connecticut’s Palliative Use of Marijuana Act (PUMA).

PUMA prohibits employers from refusing to hire, fire, penalize, or threaten applicants or employees solely on the basis of being “qualified users” of medical marijuana. PUMA exempts patients, their caregivers and prescribing doctors from state penalties against those who use or distribute marijuana, and it explicitly prohibits discrimination by employers, schools and landlords.

In Noffsinger, Plaintiff was employed as a recreational therapist at Touchpoints, a long term care and rehabilitation provider, and she was recruited for a position as a director of recreational therapy at Bride Brook, a nursing facility. After a phone interview, she was offered the position at Bride Brook and accepted the offer, and she was told to give notice to Touchpoints, which she did to begin working at Bride Brook within a week. Plaintiff scheduled a meeting to complete paperwork and routine pre-employment drug screening for Bride Brook, and at the meeting, she disclosed her being qualified to use marijuana for PTSD under PUMA. The job offer was later rescinded because she tested positive for cannabis; in the meantime, Plaintiff’s position at Touchpoints was filled, so she could not remain employed there.

Litigation

Plaintiff sued for violation of PUMA’s anti-discrimination provisions, common law wrongful rescission of a job offer in violation of public policy and negligent infliction of emotional distress. Defendant filed a Rule 12(b)(6) pre-answer motion to dismiss based on preemption under CSA, ADA, and FDCA. The federal court denied the motion and ruled that PUMA did not conflict with the CSA, ADA or FDCA, because those federal laws are not intended to preempt or supersede state employment discrimination laws. The court concluded that CSA does not make it illegal to employ a marijuana user, and it does not regulate employment practices; the ADA does not regulate non-workplace activity or illegal use of drugs outside the workplace or drug use that does not affect job performance; and the FDCA does not regulate employment and does not apply to PUMA’s prohibitions.

The court’s decision is notable in that it is the first federal decision to determine that the CSA does not preempt a state medical marijuana law’s anti-discrimination provision, and reaches a different result than the District of New Mexico, which concluded that requiring accommodation of medical marijuana use conflicts with the CSA because it would mandate the very conduct the CSA proscribes. The Noffsinger decision supplements a growing number of state court decisions that have upheld employment protections for medical marijuana users contained in other state statutes. These decisions stand in stark contrast to prior state court decisions California, Colorado, Montana, Oregon, and Washington that held that decriminalization laws – i.e., statutes that do not contain express employment protections – do not confer a legal right to smoke marijuana and do not protect medical marijuana users from adverse employment actions based on positive drug tests.

Key Takeaways

Employers may continue to prohibit use of marijuana at the workplace; and qualified users who come to work under the influence, impaired and unable to perform essential job functions are subject to adverse employment decisions. Employers in Connecticut, however, may risk being sued for discrimination for enforcing a drug testing policy against lawful medical marijuana users.  In those cases, employers may have to accommodate off-duty marijuana use, and may take disciplinary action only if the employee is impaired by marijuana at work or while on duty.

It remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana. Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment, and, in any event, observation alone does not indicate the source of impairment. Employers following this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it: (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; and (c) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test.

Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users. Eight other states besides Connecticut have passed similar medical marijuana laws that have express anti-discrimination protections for adverse employment actions: Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota and Rhode Island. Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user. Additionally, courts in Massachusetts and Rhode Island have permitted employment discrimination lawsuits filed by medical marijuana users to proceed.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but also to applicants.

As we have previously reported, there has been an uptick of new employment decisions finding in favor of registered medical marijuana users.  In keeping with these decisions, an administrative law judge (“ALJ”) at New York City’s Office of Administrative Trials & Hearings (“OATH”) also issued a report and recommendation, subsequently adopted by the relevant City commissioner, to dismiss a petition against a taxi driver that would have stripped him of his driver license because of his lawful medical marijuana use.

In Taxi & Limousine Comm’n v. W.R., OATH Index. No. 2503/17 (July 14, 2017), adopted, Comm’r Dec. (July 25, 2017), the Taxi & Limousine Commission (“TLC”) filed a petition seeking the revocation of the respondent taxi driver’s TLC Driver License because the driver tested positive for marijuana.  OATH disagreed and recommended that the petition be dismissed, finding that revocation solely because of the driver’s status as a certified medical marijuana patient would violate New York City and State laws.  The TLC adopted the OATH decision.

The rationale was simply stated. Under the New York Compassionate Care Act, certified patients may not be subject to penalty or denied any right or privilege solely for the certified use of medical marijuana.  Because the patient certification is analogous to a prescription, the certified use of marijuana could not constitute an illegal drug use that would serve as the basis to revoke a license.  Further, certified patients are deemed to have a disability under the New York State Human Rights Law.  Because the New York State Human Rights Law prohibits discrimination on the basis of disability, as does the New York City Human Rights Law, the driver had additional protections against revocation of his license.

Key Takeaways

This case serves as another illustration of the intersection of medical marijuana use and disability, and the potential pitfalls for those companies that maintain zero-tolerance drug policies.

New York City employers should be particularly cautious in the use of drug tests and the enforcement of their drug policies. While this decision involves a licensee rather than an employee, the reasoning employed by the ALJ could be equally applied to the employment context.  Additionally, OATH—as an independent administrative tribunal within the City—hears cases brought by any City agency, board, or commission, including the New York City Commission on Human Rights (“CCHR”).  In a case brought by the CCHR, OATH issues a report and recommendation to the City Human Rights Commissioner.  While the Commissioner has discretion to adopt, modify, or reject the report and recommendation, if such rationale were applied in an employment case, there is little doubt that this rationale would be followed by the Commissioner in employment discrimination cases.

When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

In an important new decision, the Massachusetts Supreme Judicial Court recently held that a qualifying patient who has been terminated from employment for testing positive for marijuana as a result of her lawful medical marijuana use may state a claim of disability discrimination under that state’s anti-discrimination statute. As we blogged with respect to a after a similar decision in Rhode Island, this holding has significant implications for employers that drug test for marijuana use because 29 states plus the District of Columbia have enacted legislation legalizing medical and/or recreational marijuana use.

Background

The plaintiff received an offer of employment conditioned on her passing a mandatory drug test. Before taking the test, the plaintiff told her would-be supervisor that she would test positive for marijuana because she was a qualifying medical marijuana patient under Massachusetts law and used marijuana to treat her Crohn’s disease and irritable bowel syndrome. The supervisor assured her that her medicinal use of marijuana would not be an issue with the company. After submitting a urine sample for the mandatory drug test, the plaintiff completed her first day of work without incident. At the conclusion of that day, however, she was terminated for testing positive for marijuana. She was told that the company did not consider whether the positive test was due to the lawful medicinal use of marijuana because it followed federal, not state, law.

Court’s Holding and Rationale

The Court rejected plaintiff’s claims under the Massachusetts medical marijuana act, finding there to be no private right of action under the statute, which merely decriminalizes medical marijuana use and does not provide express employment protections. Nonetheless, the Court allowed to the plaintiff’s disability discrimination claim to proceed. In so holding, the Court rejected the employer’s arguments that the plaintiff could not be a qualified handicapped person under the statute because the only accommodation she sought (possession and use of marijuana) is a federal crime, and that the plaintiff was discharged because she tested positive for an illegal substance, not because of her disability.

Rather, the Court concluded that, at least in some circumstances, an employer may have an obligation to accommodate the off-duty use of marijuana for medicinal purposes. Like the Rhode Island trial court in Callaghan v. Darlington Fabrics Corporation, the Massachusetts Court determined that the medical marijuana act implicitly recognizes that off-site medical marijuana might be a permissible accommodation of an individual’s disability, and further concluded that the fact that marijuana may be illegal under federal law does not make it per se unreasonable as an accommodation.

The court rejected arguments that the federal classification of marijuana as a controlled, and thus illegal, substance should preempt the state law classification. First, the court noted that only the plaintiff, and not the employer, risked federal prosecution for using marijuana, and therefore the legality of its use should not impact a determination of its reasonableness as an accommodation. Second, the court concluded that to adopt the federal classification would be to improperly reject the determination of Massachusetts voters to legalize the drug for medical use.

Notably, just because the plaintiff may proceed on her disability discrimination claim does not mean she ultimately will succeed. This decision comes at the motion to dismiss stage, and the employer still has the opportunity to demonstrate on summary judgment or at trial that accommodating the plaintiff’s marijuana use would constitute an undue hardship.

Key Takeaways

This decision is the first in any state in which the applicable medical marijuana act merely decriminalizes to permit a disability discrimination claim to proceed on such facts. The decision calls into question whether, even in these states, employers may maintain zero tolerance marijuana testing policies. Prior to this year, decisions in other jurisdictions have held that employers operating in such jurisdictions may enforce such policies and take adverse action against medical marijuana users simply for testing positive. With claims in Rhode Island and now Massachusetts surviving motions to dismiss, these decisions may indicate a trend by courts to provide greater protections for lawful medical marijuana users.

Wherever employers operate, it is clear that they must take added precautions in administering their drug testing policies. While employers may continue to prohibit the on-duty use of or impairment by marijuana, employers must consider the following when testing for marijuana:

  • Employers should review their drug-testing policies to ensure that they (a) set clear expectations of employees; (b) provide justifications for the need for drug-testing; and (c) expressly allow for adverse action (including termination or refusal to hire) as a consequence of a positive drug test.
  • Employers may consider or be required to adjust or relax certain hiring policies to accommodate lawful medical marijuana users.
  • When an individual tests positive ostensibly because marijuana is used to treat a disability, employers, particularly those in Massachusetts, may be required to engage in the interactive process. First, however, employers should evaluate whether the individual has a qualified disability that warrants an accommodation and whether allowing the individual to use medicinal marijuana would allow rather than hinder the individual’s ability to perform the essential functions of the job.
  • Employers concerned with the application of federal law may, during the interactive process, explore whether another equally effective medical alternatives to marijuana use may enable the individual to perform the essential functions of the job. Note, however, employers in states requiring accommodation of medical marijuana use may be prohibited from exploring these alternatives.
  • Where no such alternative exists or can be agreed upon, employers who cannot accommodate even lawful, off-duty medicinal marijuana use must be prepared to demonstrate that such accommodation would constitute an undue hardship.
  • Any such decision should be well-documented and well-coordinated by the relevant stakeholders.
  • In any case, hiring managers should be trained not to provide assurances as to whether and how marijuana use may be accommodated. If an applicant or employee discloses marijuana use, that disclosure should immediately be referred to Human Resources and addressed by a Human Resources professional in coordination with counsel.

Clearly, employers enforcing zero-tolerance policies should be prepared for future challenges to such policies. In Massachusetts as well as in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users, such challenges are now more likely to survive a motion to dismiss.

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available.  The guide addresses all forms of workplace harassment, including harassment based on sex.

Specifically, the guide provides employers with information regarding the particular components for an effective anti-harassment program in the workplace. The DFEH also gives employers step-by-step guidance for how to properly handle harassment complaints and any resulting investigations.  The guide discusses topics such as confidentiality during the investigation, the timeliness of an investigation, and investigator qualifications and training.  In its discussion of proper investigations, the DFEH provides nine “credibility factors” which an investigator may utilize in making a determination. These factors include a party’s motive to lie, any history of dishonesty, the manner of testimony – including hesitant speech and indirect answers – and the party’s demeanor during the investigation.  The guide also addresses what employers should do in unusual situations, such as: what to do when the target of harassment asks an employer not to act, how to investigate anonymous complaints, and how to handle retaliation.  The DFEH emphasizes the employer’s legal obligation to prevent and correct unlawful harassing behavior, and provides information regarding remedial measures. While some of these tips may seem intuitive, this guide is a good refresher for even the savviest of employers.

In conjunction with the guide, the DFEH also released an easy-to-follow brochure and corresponding poster specifically addressing sexual harassment, which employers can provide to their employees, in compliance with California Government Code section 12950(b). The brochure and poster echo many of the same tips as the guide, but focus solely on sexual harassment.  The poster and brochure include an explanation of what constitutes sexual harassment, provide examples of harassing behavior that may occur in the workplace, detail the civil remedies for harassing conduct, and outline an employer’s responsibilities and liability when allegations of sexual harassment are made.

Employers should utilize these DFEH resources when investigating and responding to claims of harassment made in the workplace.

What obligations does an employer have to an employee returning from leave under the Family and Medical Leave Act (FMLA)?

What must the employer do if it was forced to fill that employee’s position during the employee’s absence?

How long after the employee returns must the employer wait before taking an adverse action against that employee?

The U.S. Court of Appeals for the Fourth Circuit recently provided guidance to employers who frequently face these questions in the context of FMLA administration. In Waag v. Sotera Defense Solutions, Inc., the employer, Sotera, filled the position of an employee, Gary Waag, while he was out on FMLA leave, and assigned Waag to a different position when he returned.  Less than six weeks later, Sotera laid off Waag in a workforce reduction.  Waag filed suit claiming FMLA interference and retaliation.  The Fourth Circuit affirmed the lower court’s dismissal of the case, holding that Sotera was not required to return Waag to his original position and that Sotera reassigned him to a bona fide equivalent position, not a “sham position” meant to mask a discriminatory or retaliatory reason for his termination.  Most importantly, the court held that the “temporal proximity” of six weeks’ time between Waag’s return from medical leave and his termination was insufficient by itself for him to succeed on his FMLA interference claim.

Plaintiff Waag took a two-month medical leave to recuperate from a severe head injury. During Waag’s absence, Sotera filled his position.  Upon his return, Waag was assigned to a new position in a different division, albeit with the same salary, benefits, and terms and conditions of employment.  Six weeks after Waag returned to work, a drastic drop in work and revenue caused Sotera to begin a series of reductions in force, and Waag was included in the first round of layoffs.  Waag filed suit, alleging that Sotera violated his FMLA rights by putting him in a “sham position” that Sotera planned to eliminate shortly after his return from leave.

The Fourth Circuit rejected Waag’s claims. Addressing Waag’s claim of FMLA interference for failure to restore him to the same or an equivalent position, the court emphasized that Waag did not have an absolute right to reinstatement to his original position.  Rather, an employee “has the right to be restored either to his original position or to an equivalent position,” and an employer is not required to restore the employee to his original position if that position is no longer vacant.  Sotera fulfilled its obligations under the FMLA by reassigning Waag to a bona fide equivalent position with “substantially similar duties and responsibilities.”

Regarding Waag’s claim of FMLA interference based on his termination, the court held that although the close, six-week temporal proximity between his protected activity (medical leave) and the adverse action (termination) could demonstrate causation for purposes of establishing a prima facie case, it was insufficient standing alone to satisfy Waag’s burden of showing that his reassignment and the budgetary reduction-in-force were pretext for his termination.  Finally, the court rejected Waag’s claim of FMLA retaliation for failing to prove retaliatory intent.

This decision provides important guidance for employers reintegrating employees returning from FMLA leave. It makes clear that employers are not required to restore an employee to the exact same position held before taking leave, particularly where the original position had to be filled during the employee’s leave.  Indeed, employers are not required to hold open the employee’s original position while that person remains on leave.  Employers instead may place the employee in an equivalent position with the same status, pay, benefits, and “substantially similar duties and responsibilities.”  If intervening factors arise causing the employer to terminate the employee, either while on leave or shortly after returning from leave, the temporal proximity between the leave and the termination decision alone will not substantiate an FMLA claim – at least in the Fourth Circuit.  (Employers should be aware that courts in other jurisdictions may more closely scrutinize the temporal proximity and rely upon it in assessing pretext.)  In these instances, however, it is particularly important that an employer can point to documentary evidence of the legitimate, non-discriminatory reasons supporting the termination decision.  As a best practice, employers should contemporaneously document and clearly communicate their reasons for taking such adverse actions.

Finally, while the subject was not raised in this case, employers should always be cognizant of their obligations under the Americans with Disabilities Act (ADA), especially after an employee has exhausted FMLA leave. Depending on the employee’s reason for leave, the ADA may impose additional obligations – beyond those of the FMLA –to extend the employee’s leave, transfer or reassign the employee, or otherwise accommodate the employee.  In matters involving the interplay of the FMLA and ADA, employers are advised to consult with counsel to determine the proper course of action.

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.

Background

Plaintiff applied for an internship at Darlington, and during an initial meeting, she signed a statement acknowledging she would be required to take a drug test prior to being hired.  At that meeting, Plaintiff disclosed that she had a medical marijuana card.  Several days later, Plaintiff indicated to Darlington’s human resources representative that she was currently using medical marijuana and that as a result she would test positive on the pre-employment drug test.  Darlington informed Plaintiff that it was unable to hire her because she would fail the drug test and thus could not comply with the company’s drug-free workplace policy.

Plaintiff filed a lawsuit alleging Darlington violated the Hawkins-Slater Act (“the Act”), the state’s medical marijuana law, and the Rhode Island Civil Rights Act (“RICRA”). The Hawkins-Slater Act provides that “[n]o school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”  After concluding that Act provides for a private right of action, the court held that Darlington’s refusal to hire Plaintiff violated the Act’s prohibition against refusing to employ a cardholder.  Citing another provision that the Act should not be construed to require an employer to accommodate “the medical use of marijuana in any workplace,” Darlington contended that Act does not require employers to accommodate medical marijuana use, and that doing so here would create workplace safety concerns.  The court rejected this argument, concluding:

  • The use of the phrase “in any workplace” suggests that statute does require employers to accommodate medical marijuana use outside the workplace.
  • Darlington’s workplace safety argument ignored the language of the Act, which prohibits “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” In other words, employers can regulate medical marijuana use by prohibiting workers from being under the influence while on duty, rather than refusing to hire medical marijuana users at all.
  • By hiring Plaintiff, Darlington would not be required to make accommodations “as they are defined in the employment discrimination context,” such as restructuring jobs, modifying work schedules, or even modifying the existing drug and alcohol policy (which prohibited the illegal use or possession of drugs on company property, but did not state that a positive drug test would result in the rescission of a job offer or termination of employment).

The court thus granted Plaintiff’s motion for summary judgment on her Hawkins-Slater Act claims.

With respect to Plaintiff’s RICRA claim, the court found that Plaintiff’s status as a medical marijuana cardholder was a signal to Darlington that she could not have obtained the card without a debilitating medical condition that would have caused her to be disabled. Therefore, the Court found that Plaintiff is disabled and that she had stated a claim for disability discrimination under RICRA because Darlington refused to hire her due to her status as a cardholder.  Importantly, the court held that the allegations supported a disparate treatment theory.

Finally, while noting that “Plaintiff’s drug use is legal under Rhode Island law, but illegal under federal law [i.e. the Controlled Substances Act (the CSA”)],” the Court found that the CSA did not preempt the Hawkins-Slater Act or RICRA. According to the court, the CSA’s purpose of “illegal importation, manufacture, distribution and possession and improper use of controlled substances” was quite distant from the “realm of employment and anti-discrimination law.”

Key Takeaways

While this decision likely will be appealed, it certainly adds additional confusion for employers in this unsettled area of the law – particularly those who have and enforce zero-tolerance drug policies. The decision departs from cases in other jurisdictions – such as California, Colorado, Montana, Oregon, and Washington – that have held that employers may take adverse action against medical marijuana users.  The laws in those states, however, merely decriminalize marijuana and, unlike the Rhode Island law, do not provide statutory protections in favor of marijuana users.  In those states in which marijuana use may not form the basis for an adverse employment decision, or in which marijuana use must be accommodated, the Callaghan decision may signal a movement to uphold employment protections for medical marijuana users.

While this issue continues to wend its way through the courts in Rhode Island and elsewhere, employers clearly may continue to prohibit the on-duty use of or impairment by marijuana. Employers operating in states that provide employment protections to marijuana users may consider allowing legal, off-duty use, while taking adverse action against those users that come to work under the influence.

Of course, it remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana.  Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment and, in any event, observation alone does not indicate the source of impairment.  Employers choosing to follow this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; (b) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users.  Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user.

The Callaghan decision also serves as a reminder of the intersection of medical marijuana use and disability.  Here, the court allowed a disability discrimination claim to proceed even though Plaintiff never revealed the nature of her underlying disability because cardholder status and disability were so inextricably linked.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well. In Callaghan, the court found the employer in violation of state law before the employee was even offered the internship or had taken the drug test.

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “Potential Impact of Trump Tax Reform Plan on Retirement Plans: What’s Old Could Be New Again.”

Following is an excerpt:

While Congress’ attention has most recently been focused on the American Health Care Act, that bill will most likely not be the only proposed legislation that Congress will consider in 2017. It appears that a tax reform plan (the “2017 Tax Proposal”), which could also have a wide-reaching impact, is also on the agenda.

If the 2017 Proposal includes provisions relating to defined contribution retirement plans sponsored by private employers, such as 401(k) plans, the impact will be felt by employers and investment managers, as well as by plan participants. While the Trump Administration has stated that the current version of its 2017 Tax Proposal does not reduce pre-tax contributions to 401(k) plans, speculation continues that a later draft may include curtailment of these contributions or other changes with a similar impact. …

Read the full post here.

An employee on an extended medical leave to recuperate from shoulder surgery posts pictures of his active Caribbean vacation. His employer is justified in terminating him, right?  Maybe not.

On April 19, 2017, the Eleventh Circuit reversed a trial court ruling and held that a former employee had raised a genuine issue of material fact regarding whether he was terminated in retaliation for using FMLA despite the former employee posting pictures from various vacations on Facebook during his time off of work to recuperate from surgery. This case, Jones v. Gulf Coast Health Care of Delaware, LLC, 2017 U.S. App. LEXIS 6766 (11th Circ. 2017), serves as a cautionary tale of why employers need to be careful and consistent while following proper steps when terminating employees—even in situations where the evidence of employee wrongdoing might appear obvious.

The plaintiff, Rodney Jones, was formerly employed as the activity director for the defendant, Accentia Health. His job included desk work as well as regular physical activity.  During his employment, Accentia Health approved Jones’s request for FMLA leave for shoulder surgery.  When Jones was unable to resume his full-time job duties at the end of the 12-week FMLA period, Jones requested a modified duty assignment, which was rejected by Accentia Health. Jones then requested additional time off from work, and Accentia Health granted another 30 days of “non-FMLA medical leave” in order to complete his physical therapy.

During the additional 30 days of leave, Jones twice visited the Busch Gardens theme park and went on a trip to St. Martin. Jones took pictures while on the vacations—including pictures of himself on the beach, posing by a boat wreck, and in the ocean—and then posted those pictures on Facebook.  An anonymous co-worker provided the pictures to management.  When Jones returned to work at the end of the additional time off, Jones was suspended by his supervisor and was later terminated. Accentia claimed that Jones was fired because he “(1) posted photos from his outings in violation of the company’s social-media policies, and (2) displayed poor judgment as a supervisor in posting these photos, even if this activity did not violate the company’s social-media policies.”

The appellate court found that Jones presented sufficient evidence that a fact-finder could conclude that Accentia Health’s stated reasons for the termination were pretexual. In arriving at this decision, the court focused on inconsistencies and contradictions in the reasons presented to Jones.  These inconsistencies included a formal termination letter that didn’t mention the Facebook photos, and failing to let Jones know at any time that he violated the company’s social media policy.

Employers need to be consistent when taking adverse action against an employee when FMLA is involved. This includes making sure that both written and oral communications to the affected employee are consistent and clear. Employers should take the time necessary to gather the proper facts and have better communication with the potentially affected employee before deciding upon a course of action and before letting the employee know what action might be taken. This will help ensure that any eventual adverse action is communicated clearly and consistently to the affected employee and will help limit the potential for allegations of a pretexual termination.

In a decision with significant implications for private hospitals, on March 7, 2017, the Third Circuit held in Doe v. Mercy Catholic Medical Center that medical residents may bring private causes of action for sex discrimination under Title IX against private teaching hospitals operating residency programs, and are not limited to claims under Title VII.

Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq., prohibits sex discrimination in any “education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). A former resident alleged the director of her program repeatedly sexually harassed her and then retaliated against her for resisting his advances and complaining about them, culminating in her termination from the program. In deciding a question of first impression, the Third Circuit held that Mercy could be sued under Title IX because, under the allegations of the complaint, its medical residency program constituted an “education program or activity” provided by a private organization principally engaged in the business of providing health care, 20 U.S.C. §1687(3)(A)(ii), that received Federal financial assistance. In so holding, Court established a test to determine whether a program is educational, asking whether it is structured as an educational program, allows participants to obtain a degree or certification or qualify for an examination, has instruction, tests, or grades, accepts tuition, and is promoted as educational.  The Court had little trouble finding that the allegations demonstrated plaintiff was enrolled in a multi-year regulated program of study and training that led to qualification to take a certification examination, and that this program was run by Mercy in affiliation with Drexel University’s College of Medicine, a university program also plausibly covered by Title IX.

Notably, the Court did not reach the question of whether Mercy’s receipt of Medicare payments constituted “Federal financial assistance” under Title IX because Mercy had not raised this issue in the District Court, although it expressed some skepticism towards Mercy’s argument that such payments merely flowed from “contracts of insurance.” In this regard we note that a number of courts have found Medicare payments can constitute Federal financial assistance for the purpose of coverage under Title VI and the Rehabilitation Act.

Importantly, the Court rejected Mercy’s argument that the plaintiff’s remedy should be limited to an action under Title VII (which would have been time-barred) because she was also an employee, finding that there is concurrent liability under Title IX. In this regard it followed decisions from the First and Fourth Circuits, rejecting conflicting decisions from the Fifth and Seventh Circuits that predated the Supreme Court’s decision in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), where the Supreme Court found a high school coach who alleged a retaliatory termination could sue under Title IX. Thus, it found that causes of action exist under Title IX for claims of both retaliation and quid pro quo sexual harassment and that, where an individual is covered by both Title IX and Title VII, that plaintiff can file complaints through either means. However, the Court did not reach the question of whether Title VII’s potential applicability barred a Title IX claim for hostile environment because that claim was time-barred under Title IX’s two-year statute of limitations.

This case stands as a warning to hospitals and other health care institutions providing accredited teaching and training programs to ensure that they have in place and follow policies that not only bar sexual discrimination, harassment and retaliation, both in general and with respect to medical residency and other educational programs, but also provide an effective complaint procedure for addressing claims that these policies have been violated.  These institutions also should be aware that employees covered under both Title VII and Title IX may pursue their discrimination claims under Title IX in federal court without first exhausting their administrative remedies, as required under Title VII.