Author: abbyt



August 31, 2020

PITTSFIELD, MASSACHUSETTS – Kevin M. Kinne, of the law firm Cohen Kinne Valicenti & Cook LLP, has been recognized as Western Mass. Lawyer of the Year for his work in Litigation – Labor and Employment Law.  He also has been named to list of The Best Lawyers in America© 2021.  The individual award and the Best Lawyers list are chosen based only on a peer-review evaluation process.

Kinne was honored for his work in Litigation – Labor and Employment Law.  Kinne regularly advises employers throughout the Berkshires on a broad range of employment law matters including counseling for employee issues, defending against discrimination and harassment claims and drafting employment-related documents.  Kinne is an experienced federal and state court trial attorney who has achieved verdicts and settlements in excess of $20 million for his clients.  Kinne also has been selected as a Massachusetts Super Lawyer for 2020.

Founded in 2009, Cohen Kinne Valicenti & Cook LLP is one of the Berkshires largest law firms and was chosen as the “Best Law Firm” for the past several years in the The Berkshire Eagle’s Best of the Berkshires poll.

Beth Tully Elected to Downtown Pittsfield, Inc.’s Board of Directors

Cohen Kinne Attorney Beth Tully was elected to serve on the Board of Directors of Downtown Pittsfield, Inc. at its 2020 annual meeting.  Beth joined the firm and moved to the Berkshires in 2019 after beginning her career in Boston.  Her focus is litigation and employment law.  At the meeting, Cohen Kinne partner Jesse Cook-Dubin stepped down as President of the organization after four years of service.  For many decades, the firm has been deeply involved in the economic development mission of the Berkshires.  DPI has been fostering the ongoing growth and vitality of downtown Pittsfield, Massachusetts since 1983 by developing strategies and programs, mobilizing resources and supporting the enhancement of a creative, lively, sustainable environment.

Kevin Kinne Appears on WBZ (CBS Boston) to discuss COVID-19 employment law issues.

Boston CBS affiliate WBZ turned to Kevin Kinne to answer important and interesting workplace questions concerning employees who have been diagnosed with COVID-19.  Kevin is actively advising a variety of clients about COVID-19 related employment issues.  He has been practicing employment law for over 25 years and is a partner of the firm. 

The WBZ report can be seen here:

American with Disabilities Act: Tardiness, Reasonable Accommodation and the Interactive Process

A Massachusetts federal court judge recently dismissed a claim by an individual against his former employer alleging a violation the Americans with Disabilities Act (ADA). The basis for the employee’s lawsuit was that the employer denied him a “reasonable accommodation” when the employer denied the former employee’s request to start work a half-hour to one-hour later than his scheduled shift. The case is Zavaglia v. Boston University School of Medicine.

The purpose of the ADA is to eliminate discrimination against qualified disabled persons. The ADA defines a disabled individual as (a) having a physical or mental impairment that substantially limits one or more of the major life activities of such individuals, (b) having a record of such an impairment, and (c) being regarded as having such an impairment. Under Title 1 of the ADA, all employers are required to evaluate accommodations requested by employees who claim to be disabled and engage in an interactive process with the employee to determine what accommodations the employee is requesting. Each employer must then determine whether the requested accommodation is reasonable without placing an undue hardship on the employer.

In this recent Massachusetts federal court case, the accommodation that the employee requested was to adjust his daily start time by 30 to 60 minutes. The employer determined that the request was not linked to the employee’s disability and was therefore not reasonable. Even though the employee presented a doctor’s note in connection with the requested accommodation, the doctor’s note stated that it was the employee’s opinion, not the doctor’s, that the employee required the accommodation. The accommodation request and the physician’s note also do not explain why (a) the disability required a later start time, and (b) the former employee was unable to address his medical needs prior to the start of his scheduled shift. On those bases, the employer denied the request.

The employee was frequently late to work following the employer’s denial of his request for a later starting time. The employer warned the employee that his frequent lateness was not acceptable, and ultimately terminated the employee’s employment due to tardiness.

The court ruled that the employer’s reasons for not granting the requested accommodation were valid. The former employee did not establish that his request was based on his medical condition and he failed to show that his request was reasonable for the employer. In determining that the request was not reasonable, the court also refused to consider disabilities that the employee claimed to have but did not disclose to the employer prior to termination of his employment. The court declined to find that the termination of the employee’s employment was wrongful, and instead found that the termination was rightfully based on the employee’s frequent tardiness.

Employer takeaways:

An employee who presents a doctor’s note stating the need for a later starting time based on a medical condition is not automatically entitled to start work later under the ADA. The employee still must show that his/her medical condition is a disability and that the demand to create a new shift is reasonable. An employer must engage in an interactive process with any employee requesting an accommodation for a disability. In the course of the interactive process, the employer and employee can evaluate both the basis for the request and the effect of the request on the employer. The ADA does not require that the employer approve all accommodation requests, but that the employer evaluate and make reasonable accommodations to assist disabled individuals in performing the same job functions as non-disabled employees. If the accommodation would impose an “undue hardship” on the employer, the employer is not required to approve it. The term “undue hardship” is defined by the ADA but interpretation varies based on the functions and structure of the employer.

Do you have questions about reasonable accommodations, the interactive process, or what “undue hardship” may mean for your company? Please feel free to contact us

Massachusetts Supreme Judicial Court Protects Medicinal Marijuana Users in the Workplace

On July 17, 2017, the Massachusetts Supreme Judicial Court issued its opinion in Barbuto v. Advantage Sales and Marketing LLC. In it, the Court recognized that employers may not terminate employees because they utilize medical marijuana simply because that use is unlawful under Federal law. Instead, these employers must engage in an interactive process with these employees to determine whether it is reasonable to provide requested accommodations, including an exception to the employer’s policy prohibiting use of marijuana.

Case Summary

Cristina Barbuto accepted a job offer from Advantage Sales in late summer of 2014. After accepting the offer, Barbuto was subjected to a mandatory drug test. Barbuto told her employer that she would test positive for marijuana as she utilizes it to treat her Crohn’s disease. This made her a qualifying patient under the Medical Marijuana Act. Barbuto noted that she did not use marijuana daily and would not consume it before work or at work. Barbuto used marijuana in small quantities at her home, usually in the evening, two to three times per week. Barbuto found that marijuana was the only medicine that allowed her to maintain a healthy weight. Barbuto’s supervisor told her that her use of medical marijuana “should not be a problem,” later telling her via telephone that her use of marijuana would not be an issue.

On September 5, 2014, Barbuto submitted a urine sample for the mandatory drug test. On September 11, she went to a training program where she was given a uniform and work schedule. She completed her first day of work on September 12. That evening, Barbuto’s HR representative terminated Barbuto for testing positive for marijuana, stating that she did not care if Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.” Shortly thereafter, Barbuto brought claims alleging (1) disability discrimination, (2) invasion of privacy, (3) violation of Massachusetts public policy, and (4) violation of the Medical Marijuana Act. The Superior Court judge dismissed all claims except for the invasion of privacy claim. Plaintiff appealed. SJC’s Opinion According to the SJC, Barbuto had adequately alleged that she was entitled to protections of state disability law because she was capable of performing her essential job functions with an accommodation from her employer.

According to the SJC, it was at least facially reasonable for Barbuto’s employer to waive its rule prohibiting the use of medical marijuana relative to Barbuto’s employment, especially in light of Barbuto’s specific circumstances in which medical marijuana was the most effective medication for her debilitating condition and where other available medications would be less effective. Further, even if accommodating medical marijuana was unreasonable, employers still may violate disability discrimination laws if they terminate effected employees before engaged in an interactive process to determine if alternative medications exist.

The SJC dispensed with the employer’s argument that such an accommodation was never reasonable because marijuana use was illegal of Federal law, noting that this exposes the employee, not the employer, to criminal penalties.

For these reasons, the SJC held that the trial court should not have dismissed Barbuto’s disability discrimination claim, and sent that claim back for the parties to conduct discovery. The SJC’s opinion provides that an employer may still defeat this type of claim by establishing that deviating from its policy banning marijuana use would create an undue hardship. For instance, an employer could defeat this claim if continued use of medical marijuana would impair the employee’s performance, pose a safety risk, violate the employer’s contractual or statutory obligations, or jeopardize its ability to perform its business.

Employer Takeaways

Employers face considerable risk if they terminate employees who use medical marijuana simply because that use is illegal under Federal law. Instead, employers must engage in an interactive process with these employees to identify the nature of their limitation, the nature of the requested accommodation, and the impact the accommodation would have on their business operations. Employers should remind their supervisory employees not to react to accommodation requests with comments like “that should not be a problem.” Doing that makes it incredibly difficult for employers to later claim that the requested accommodation presents an undue hardship. Please let us know if you have any questions about this or any other employment-related issue.

State House Passes Pregnant Workers Fairness Act

Last week, the Massachusetts House of Representatives passed the “Pregnant Workers Fairness Act,” a law designed to extend certain protections to employees who are pregnant or are new mothers. This Act provides protections similar to those provided by the Americans with Disabilities Act, and requires employers to provide reasonable accommodations to pregnant employees / new mothers, including allowing them to take more frequent bathroom breaks, drink water while at work, be provided a stool to sit on, and be provided a time and place to nurse. The Act also makes it illegal for employers to take an adverse employment action against a pregnant woman because she asks for a reasonable accommodation. The Act also prohibits employers from requiring a woman to take a leave of absence if another accommodation can be provided.

If passed, this Act will extend reasonable accommodation requirements to employees who do not meet the statutory definition of ‘disabled’ under the Americans with Disabilities Act. Under the proposed Act, employers must engage in an interactive process with their pregnant / new-mother employees to determine if a reasonable accommodation can be provided that would allow them to perform the essential functions of their job. As drafted, this new Act would be enforced by the Massachusetts Commission Against Discrimination and would carry penalties similar to those found under chapter 151B, including emotional distress damages, punitive damages, backpay, frontpay, attorneys’ fees, and costs.

Please click here to contact a CKVC attorney if you have questions or concerns about this act.