Effective July 26, 2018, Oklahomans will be able to legally use medicinal marijuana under state law. The change follows a June 26, 2018 ballot measure, State Question 788, approved by 56% of voters. Oklahoma’s new law, cheekily coded 63 Okla. Stat. § 420 et seq., expands the prior permissible use of cannabidiol (CBD) oil for limited purposes, now allowing licensed medicinal marijuana consumption. The ballot measure initially appeared in 2016, but was delayed for several years by a series of legal challenges concerning changes to its title, ultimately resolved by the Oklahoma Supreme Court in March 2017.

Consistent with the secondary wave of state laws legalizing medicinal marijuana, Oklahoma’s law contains an anti-discrimination provision providing that employers “may not discriminate against a person in hiring, termination, or imposing any term or condition of employment or otherwise penalize a person based on their status as a medical marijuana license holder,” unless failing to do so would cause the employer to “imminently lose a monetary or licensing related benefit under federal law or regulation.” 63 Okla. Stat. § 425(B)(1)-(2). Further, employers may not take action against a license-holder solely based upon the results of a positive drug test for marijuana or its components. 63 Okla. Stat. § 425(B)(2). Employers should note that these protections do not extend to use or possession of marijuana in the license-holder’s place of employment, or during the hours of employment. Id.

Oklahoma’s law differs from other states’, however, in that it does not predicate approved marijuana use on specific qualifying medical conditions. Instead, medical license applicants need only obtain the signature of an Oklahoma Board certified physician, who recommends the license “according to the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication.” 63 Okla. Stat. § 420(M). Moreover, the law incorporates protections for the recommending physician, who “may [not] be unduly stigmatized or harassed for signing [the] medical marijuana license application.” Id.

Looking forward, interested parties should expect to see regulations introduced to further refine terms of use. Governor Mary Fallin previously criticized the law as too “loose[ly written],” such that it “opens the door for basically recreational marijuana[,]” and threatened to call a special session of the legislature to develop regulations if the ballot measure succeeded. Rather than call a special session, however, Governor Fallin signed emergency legislation on July 11 adopting rules created by the State Board of Health, including a ban on the sale of smokable marijuana. In response, activists are pushing to legalize recreational marijuana use as an “insurance policy” against these and other potential restrictive regulations. At least two parties have filed lawsuits challenging the validity of the recent Department of Health rules. Additionally, Oklahoma voters will weigh in on Questions 796 and 797 this November—provided those questions receive the requisite 124,000 signatures by August 8, 2018—deciding whether to classify marijuana as an “herbal drug” and whether to permit adults 21 years or older to recreationally use marijuana, respectively.

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.

The United States is in the midst of an unusually lethal flu season, and health experts agree that despite inconsistencies in their effectiveness, flu shots are among the best ways to fight the spread of the flu. A recent holding from the Third Circuit Court of Appeals provides some good news for health care employers who require that their patient-facing employees receive flu shots, making it more difficult for employees to claim a religious exemption.

Courts have held that health care employers may require their patient-facing employees to be vaccinated against a number of diseases, including the flu.  Whether employers can mandate vaccinations for all employees has been a closer question.  A key issue faced by employers is determining whether an employee’s anti-vaccination beliefs qualify for a religious exemption.

In Fallon v. Mercy Catholic Medical Center, the Third Circuit considered the religious exemption, clarifying what may qualify as such. Paul Fallon, a psychiatric crisis intake employee of Mercy Catholic Medical Center (“Mercy”), refused to get his required annual flu shot. Fallon had successfully asserted a religious exemption for several years before Mercy changed its policy to require that employees seeking such exemptions provide a note from a clergy member. Fallon, who does not belong to a religious organization, did not provide the clergy note, instead outlining his “sincerely held beliefs” opposing the vaccine in a 22-page essay. Mercy determined that Fallon’s beliefs, however sincere, were not religious. It did not grant the exemption, and subsequently fired Fallon when he continued to refuse vaccination. Fallon sued Mercy for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964.

The District Court sided with Mercy, and the Third Circuit affirmed the decision. The court relied on the three-part modern definition of religion, as adopted in Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981): a religion (1) addresses fundamental and ultimate questions having to do with deep and imponderable matters; (2) is comprehensive in nature, consisting of a belief system as opposed to an isolated teaching; and (3) is often recognized by the presence of certain formal and external signs.  The court concluded that Fallon’s belief that “the flu vaccine may do more harm than good” amounted to nothing more than a concern about the health effects of the vaccine and demonstrated his disbelief of the scientifically accepted view that it is harmless to most people.  Therefore, Fallon could not meet either of the first two prongs of the Africa test.  In addition, Fallon was unable to meet the third pong because he could not demonstrate that his beliefs manifested in “formal and external signs,” such as services or the existence of clergy.    Accordingly, the court concluded that Fallon’s “beliefs do not occupy a place in his life similar to that occupied by a more traditional faith,” meaning that “[h]is objection to vaccination is . . . not religious and not protected by Title VII.”

While the court’s decision provides guidance for employers responding to anti-vaccination beliefs, the court recognized that anti-vaccination beliefs can be part of “a broader religious faith.”  Thus, employers should be mindful not to categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

Employers also should follow the recent developments within the Department of Health and Human Services (HHS), which recently established a new Conscience and Religious Freedom Division in the Office for Civil Rights (OCR) and released a proposed rule that would provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral convictions.   In an HHS press release on January 19, 2018, Acting HHS Secretary Eric D. Hargan said that the creation of the Division constitutes “a rollback of policies that had prevented many Americans from practicing their profession and following their conscience at the same time,” adding that “Americans of faith should feel at home in our health system, not discriminated against.”  These developments, and the public comments by HHS officials, may signal a move to prevent employers from enforcing mandatory flu vaccination policies.

Further emphasizing the split in authority on sexual orientation discrimination, last month the Eastern District of Missouri dismissed plaintiff Mark Horton’s claim that Midwest Geriatric Management LLC (“MGM”) violated Title VII by rescinding an offer of employment after learning that he is gay. Horton v. Midwest Geriatric Mgmt., LLC, Case No. 4:17CV2324, 2017 U.S. Dist. LEXIS 209996 (E.D. Mo. Dec. 21, 2017).

Horton asserted that MGM unlawfully discriminated against him on the basis of sex and religion. Horton’s sex discrimination claim comprised three theories: (1) sexual orientation is necessarily discrimination based on sex; (2) discrimination on the basis of his association with a person of a particular sex (his male partner); and (3) nonconformity with sex stereotypes.  In granting MGM’s motion to dismiss, the district court cited Eighth Circuit precedent from a 1989 holding that Title VII does not cover discrimination based on sexual orientation, and concluded that both the sex and religious discrimination claims were merely refashioned sexual orientation discrimination claims.

The Eighth Circuit precedent, which comports with a recent decision in the Eleventh Circuit, contrasts with the EEOC’s position, adopted by the neighboring Seventh Circuit in Hively v. Ivy Tech Community College. In that case, the Seventh Circuit held that “a person who alleges that [he] experienced employment discrimination on the basis of [his] sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hively v. Ivy Tech Cmt. College, 853 F.3d 339, 351-52 (7th Cir. 2017). The Hively court based its holding on a conclusion that there is no difference between a gender nonconformity claim and one based on sexual orientation. Thus, “a policy that discriminates on the basis of sexual orientation . . . is based on assumptions about the proper behavior for someone of a given sex.” Id. at 346. The Court further cited a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Id. at 351.  While the Seventh Circuit is the first federal appellate court to find sexual orientation covered by Title VII, the Second Circuit is considering the question in en banc review.

Unlike the Seventh Circuit’s approach, the Eighth Circuit draws a distinction between discrimination based on sex stereotypes and that based on “notions of heterosexuality and homosexuality,” finding that Title VII protects against the former but not the latter. Though the basis for the claim is not always obvious, here—because Horton directly tied each of his claims to his homosexuality—the Court did “not struggle with exactly where to draw the line between actionable discrimination based on what is alleged to be gender non-conforming behavior and non-actionable discrimination based on sexual orientation.”

Despite the circuit split and legal uncertainty on the federal level, employers should be aware that many state and local laws offer protections against sexual orientation discrimination. And properly pled gender nonconformity claims may be pursued even in jurisdictions that do not recognize sexual orientation discrimination.  Thus, employers should train their employees to treat all employees equally in the workplace to prevent such claims.