Beginning July 1, 2018, recreational marijuana can be legally sold, taxed, and consumed in Massachusetts—one of nine states, in addition to Washington, D.C., that now permits recreational marijuana use. Massachusetts already is one of 29 states that allow marijuana use for medicinal purposes (and 17 others permit certain low-THC cannabis products for medical reasons).

Background

Legalization of recreational marijuana started in 2016 with a ballot initiative by Massachusetts voters. The Regulation and Taxation of Marijuana Act (“Marijuana Act”), which took effect on December 15, 2016, provides that “[t]his chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” Thus, while the Marijuana Act expressly permits employers to prohibit employees from using or being under the influence of marijuana in the workplace, it does not address whether an employer can regulate employees’ lawful use of marijuana off duty.

How Might a Court Rule if an Employer Banned Off-Duty Recreational Marijuana Use?

Employers may terminate an employee for off-duty and/or off-site recreational marijuana use because Massachusetts, unlike a number of other states, has no statutory protection for employees’ lawful off-duty conduct, such as smoking.

There are, however, other claims an aggrieved applicant or employee might bring absent the off-duty conduct statute protections. In one case, an employee who was terminated by his employer for violation of the company’s non-smoking policy when he tested positive for nicotine brought a case claiming a right to privacy. See Rodrigues v. EG Sys., 639 F. Supp. 2d 131, 133 (D. Mass. 2009).   A federal court dismissed the plaintiff’s claims that the employer violated his right to privacy because the plaintiff made no attempt to keep his smoking private: he testified to smoking outdoors and purchasing cigarettes with coworkers. Id.

In Barbuto v. Advantage Sales and Marketing, LLC, a 2017 decision by the Massachusetts Supreme Judicial Court, a new hire disclosed a prescription for medical marijuana she used for Crohn’s Disease. 78 N.E. 3d 37, 42 (Mass. 2017). HR personnel informed her that her prescribed, off-duty use would be acceptable; however, when she tested positive after working for one day, the company terminated her employment.

The Barbuto court permitted the employee’s reasonable accommodations claim. Specifically, the court held that although marijuana use is still illegal at the federal level, the public policy of Massachusetts prioritizes accommodating workers with disabilities.

Although the use of medical marijuana could be considered a public policy concern under certain circumstances, given that an employee may be discharged for the off-duty conduct of smoking cigarettes, it is unlikely that Massachusetts courts would protect employees who test positive for recreational marijuana use. Unlike medical marijuana use, recreational marijuana use likely does not implicate public policy considerations because the use of medical marijuana has health benefits related to treating illness and disease, whereas the use of recreational marijuana does not.

With respect to privacy arguments akin to those asserted in Rodrigues, courts might distinguish marijuana from cigarettes for a variety of reasons. In Massachusetts, marijuana consumption in public and in vehicles is prohibited, whereas cigarette smokers have greater freedom to smoke outdoors and in vehicles. Additionally, marijuana, unlike cigarettes, is still illegal under federal law.

How Can Massachusetts Employers Manage Employees While Avoiding Legal Risks of Employees Using Recreational Marijuana?

Although neither the law nor the applicable regulations address employee-employer rights in the context of recreational marijuana, and it is too soon for the courts to have weighed in, employers likely have the right to terminate an employee for recreational marijuana consumption, even where that consumption occurs off duty and/or off-site. To minimize any risk that an employee may bring a viable legal claim resulting from the termination of employment or rescission of a conditional offer of employment due to a positive drug test, employers should consider the following:

  1. Employers that continue to enforce zero tolerance policies and either decline to hire or terminate individuals for marijuana use should articulate to employees that the test will screen for marijuana, and clearly define “illegal” drugs as those banned under federal, state, or local law to avoid conflicts regarding its legal status in Massachusetts.
  2. As recreational use becomes more prevalent in Massachusetts, in light of the Marijuana Act, talent pool considerations may favor loosening drug-testing policies, at least for certain positions.
  3. Though Massachusetts law currently permits pre-employment drug screening for any reason (as long as it is non-discriminatory), employers may choose to eliminate standardized testing policies and instead opt to test only upon “reasonable suspicion” that the employee is under the influence at work.
  4. Multistate employers should update employee handbooks with particular emphasis on any changes made to their drug-testing policies and decide whether they plan to standardize testing across the company or enact carve-outs for recreational marijuana states.
  5. Notwithstanding the above, because health care employers in particular face safety issues and high risks associated with patient care, those considerations may weigh in favor of enforcement of zero tolerance and standardized testing policies – particularly with respect to recreational marijuana – in patient-care and other safety-sensitive positions.
  6. Employers in highly regulated industries, such as health care and transportation, should be aware of additional regulations that govern drug testing in their industries.
  7. Drug-testing policies should make clear that on-the-job marijuana consumption or being under the influence of marijuana remains against company policy. Further, employers wishing to prohibit off-duty or off-site recreational consumption should expressly state that such conduct may result in discipline or termination of employment.

This post was written with assistance from John W. Milani, a 2018 Summer Associate at Epstein Becker Green.

State attorneys general from Louisiana, Missouri, Oklahoma, Texas, Michigan, Nebraska, and South Dakota have joined Arkansas (collectively the “States”) in an amicus brief to the Eighth Circuit, urging the court not to join the Seventh Circuit and Second Circuit in interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit sexual orientation discrimination.

The States submitted this brief in a case brought by Mark Horton against Midwest Geriatric Management LLC (“Midwest Geriatric”) in which the plaintiff alleges sexual orientation and religious discrimination in violation of Title VII. More specifically, Horton alleges that Midwest Geriatric revoked his job offer after the company learned he was gay. In their brief, the States assert that Horton wrongly petitioned the court to ignore precedent and reverse its prior position that sexual orientation discrimination is not covered by Title VII.

The States argue that until last year, when the Seventh and Second Circuits expanded the scope of Title VII to encompass sexual orientation discrimination, federal courts had unanimously found that sexual orientation was not a protected category under Title VII, and the Eighth Circuit should follow this long-standing view. The States add that, despite numerous opportunities to revise Title VII to include sexual orientation, Congress has chosen not to do so. Finally, the States contend that Horton’s arguments simply are not persuasive.

In addition to the States’ brief, the Eighth Circuit has also received amicus briefs supporting Horton’s argument from 18 other states and Washington D.C., in addition to the U.S. Equal Employment Opportunity Commission and various businesses.

The Eighth Circuit’s decision remains pending, and we will be watching for it. In the meantime, employers operating within the Eighth Circuit—comprising Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota—are encouraged to evaluate their non-discrimination policies with this potential change to the federal law in mind, to the extent they have not already done so to comply with state or local laws.

Featured on Employment Law This Week: NJ Senate Advances Ban on Sex Harassment Confidentiality Agreements.

The New Jersey Senate wants no more secrecy around harassment claims. On a 34-to-1 vote, the chamber approved legislation banning confidentiality agreements involving sexual harassment claims. The bill is still pending in the House, where a vote is expected in the next few weeks. The legislation would also allow victims to keep their identities confidential and would establish jurisdiction in Superior Court, arguably bypassing arbitration agreements.

Watch the segment below.

Our colleague at Epstein Becker Green has a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the health care industry: “The Generally Prevailing Website Accessibility Guidelines Have Been Refreshed – It’s Time to Officially Welcome WCAG 2.1.”

Following is an excerpt:

After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1. Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website. …

Read the full post here.

Our colleague at Epstein Becker Green has a post on the Health Law Advisor blog that will be of interest to our readers in the health care industry: “NIST Seeks Comments on Cybersecurity Standards For Patient Imaging Devices.”

Following is an excerpt:

The National Institute of Standards and Technology (“NIST) has announced that it will be seeking industry input on developing “use cases” for its framework of cybersecurity standards related to patient imaging devices. NIST, a component of the Department of Commerce, is the agency assigned to the development and promulgation of policies, guidelines and regulations dealing with cybersecurity standards and best practices. NIST claims that its cybersecurity program promotes innovation and competitiveness by advancing measurement science, standards, and related technology in ways that enhance economic security and quality of life. Its standards and best practices address interoperability, usability and privacy continues to be critical for the nation. NIST’s latest announcement is directed at eventually providing security guidance for the healthcare sector’s most common uses of data, inasmuch as that industry has increasingly come under attack. …

Read the full post here.

On April 17, the Joint Commission—a nonprofit organization that provides accreditations to health care organizations—issued a list of seven steps hospitals should take to improve safety and reduce the risk of workplace violence perpetrated by employees, patients, and visitors. While the seven steps are advisory rather than mandatory, health care organizations risk jeopardizing their accreditation status if they fail to take appropriate action in response to episodes of workplace violence.

The Joint Commission’s alert seeks to address what it characterizes as the prevalence of workplace violence in the health care industry, citing a 2015 report from the federal Occupational Safety and Health Administration (OSHA) suggesting that approximately 75% of workplace assaults reported annually occur in health care and social service. The Joint Commission suggests that health care workplaces are particularly susceptible to workplace violence because of the daily care of patients dealing with mental health issues.

In the last few years, OSHA has taken action to address workplace violence in health care settings, including by overhauling its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, and by issuing citations to health care employers with allegedly inadequate workplace violence programs. Yet OSHA has not proposed an explicit regulation applicable to workplace violence in health care and instead has relied upon the General Duty Clause when issuing citations. And as our colleagues have reported, as of April 1, 2018, California is the only state that expressly requires all health care facilities to maintain a comprehensive plan to prevent workplace violence. The Joint Commission’s recent alert now adds additional incentives for health care organizations to implement and update workplace violence prevention programs.

So what can health care organizations do to protect the workers who put themselves in harm’s way each day? According to the Joint Commission, organizations should clearly define the term “workplace violence.” Staff members should recognize that workplace violence comprises a broad range of behaviors, from verbal assaults to physical violence with or without use of weapons. Staff should be able to easily report episodes of workplace violence, and organizations should track and follow up on any reported incidents, providing support and psychological counseling to victims, witnesses, and others affected.

Once organizations begin tracking incidents, they should review and analyze the data to identify common contributing factors and use those to develop intervention strategies. These strategies may include changes to the physical environment, such as altering exit routes, improving alarm systems, adding restricted access doors, and implementing more regular security patrols, or altering work practices or administrative procedures, reducing stressors like crowding and wait times, identified as risk factors for workplace violence. Organizations should train employees on how to use de-escalation tactics, and run practice drills such as active shooter response simulations. Finally, organizations should regularly review and assess the effectiveness of their responsive strategies to recognize areas of success and ensure continuous improvement.

While these measures are unlikely to completely eliminate workplace violence in health care settings, they represent a step in the right direction toward managing the risks, thus enabling our health care workforce to focus on the business of healing. Health care employers are well-advised to consult with counsel to develop and implement effective workplace violence prevention programs to improve employee safety and morale, reduce the likelihood of receiving an OSHA citation or jeopardizing accreditation, and – in the case of California employers – comply with the law.

Our colleagues Frank C. Morris, Jr.Jonathan K. Hoerner, and Katie Smith—attorneys at Epstein Becker Green—authored an article in Healio titled “4 Ways to Address the #MeToo Era in Health Care.”

Following is an excerpt:

The #MeToo movement has its roots in Hollywood and the entertainment industry, but its branches extend into myriad other industries including journalism, the financial sector, government, athletics, tech, academia, and even the federal judiciary. The health care sector is no exception, despite its guiding principle to “first do no harm.”

Studies assert that sexual harassment is pervasive in the health care space. An academic medical faculty study published in 2016 found approximately 30% of female physicians surveyed reported having personally experienced sexual harassment by a superior or colleague, compared with 4% of men. Statistics from the Equal Employment Opportunity Commission (EEOC) indicate that at least 3,085 employees at general medical and surgical hospitals filed sexual harassment claims between 1995 and 2016 (or about 147 per year).

Some of these sex harassment claims turned out to be very costly for employers. In September 2013, a dental assistant at the University of Connecticut Health Center sued her employer claiming gender discrimination and a hostile work environment under Title VII of the Civil Rights Act of 1964. A jury found in her favor on March 30, 2017, awarding her $200,000, although the court later reduced the award to $125,000. Though damages in Title VII claims are capped, plaintiffs may also bring claims under state or local laws, which provide for greater damages.

Read the full article here.

Our colleague  at Epstein Becker Green has a post on the Trade Secrets & Employee Mobility blog that will be of interest to our readers in the health care industry: “Colorado Places New Limitation on Physician Restrictive Covenants.”

Following is an excerpt:

Earlier this month, Colorado amended its law governing physician non-compete agreements (C.R.S. § 8-2-113(3)).  Since its enactment in 1982, that statute generally has prohibited agreements restricting the rights of physicians to practice medicine, but has allowed contractual provisions requiring a physician to pay damages arising from his or her competition if the damages are reasonably related to the injury suffered by the employer or other contracting party.  Under the amended statute, “a physician may disclose his or her continuing practice of medicine and new professional contact information to any patient with a rare disorder…to whom the physician was providing treatment.”   The goal of the amendment is to avoid interruptions to the continued care of individuals with rare disorders.  The statute looks to the National Organization for Rare Disorders, Inc. to maintain a database of diseases considered “rare disorders.” …

Read the full post here.

With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported.

Under the law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

Our colleagues  at Epstein Becker Green has a post on the Trade Secrets & Employee Mobility blog that will be of interest to our readers in the health care industry: “Mile High Non-Compete Law: Colorado Court of Appeals Determines Enforceability of Liquidated Damages Clause in Physician Non-Compete Agreement.”

Following is an excerpt:

The Colorado Court of Appeals, in Crocker v. Greater Colorado Anesthesia, P.C., recently examined several unique enforceability considerations with respect to a physician non-compete agreement.  Of particular interest was the Court’s treatment of a liquidated damages provision in the agreement.  Pursuant to a Colorado statute (8-2-113(3), C.R.S. 2017), the Court held that the provision was unenforceable because the liquidated damages were not reasonably related to the injury actually suffered.

Michael Crocker, a former physician-shareholder at Greater Colorado Anesthesia (Old GCA), signed an employment agreement with Old GCA that contained a non-compete provision that prohibited Crocker from practicing anesthesiology within 15 miles of a hospital serviced by Old GCA, for two years following termination of the agreement. …

Read the full post here.