CKVC Works

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.

U.S. House Passes Bill Authorizing Comp Time — Practice Currently Unlawful under State and Federal Law

Under both state and federal law, employers must pay non-exempt employees overtime, at a rate of 1.5 times their regular rate of pay, for all hours worked over 40 in a workweek.  Many employers try to avoid this payment obligation by giving employees additional time off – known as “comp time” – in lieu of paying them overtime.  This practice may not violate state and federal wage laws if the time off is provided to non-exempt employees in the same week in which the excess hours are worked.  This practice most likely does violate state and federal wage laws if the time off is provided to non-exempt employees in the week following the week in which the excess hours are worked.

On May 2, 2017, the U.S. House passed the Working Families Flexibility Act which, if signed into law, would allow for the use of comp time.  According to the Act, an employer could elect not to pay a non-exempt employee overtime for hours worked over 40 in a workweek and, instead, provide that employee with time off in a following week, paid at their regular rate of pay.  As a result, employees receiving comp time would end up with less compensation but more time off.

Massachusetts tends to follow federal law on many – but not all – employment issues.  If this Act become law, it is possible that Massachusetts would elect to adopt the practice of allowing employers to provide this type of comp time.  It is also possible that Massachusetts would reject the Act and keep the current prohibition on the use of comp time outside of the workweek.

Employers should not provide comp time to their employees until the practice of doing so has been explained to an attorney and approved.  The Massachusetts Wage Act provides for triple damages for wage violations, making the improper use of comp time very costly and risky.

If you’d like to discuss comp time, please let us know.


New York’s New Overtime Rules Expected to Have Big Impact

The most common exemptions to state and federal overtime laws are known as the “white collar exemptions,” and include the executive, administrative, learned professional, and creative professional exemptions.  In order to qualify for one of these exemptions, an employee must pass the “salary test” and the “duties test.”  Click here for more information on the “duties test” and also for examples of the types of employees that typically fall into one of the “white collar exemptions.”  Employees who pass these two tests are not entitled to overtime.    

As we explained here, the United States Department of Labor had approved regulations increasing the “salary test” threshold from $455/week to $913/week.  As explained here, on November 22, 2016, a judge in Texas, in response to a suit brought by 21 states, blocked the implementation of the DOL’s regulations.  As a result, currently an employee can pass the salary test under federal law, and most state laws, if he or she is paid a salary of at least $455/week.    

That is not the case for New York employees.  Effective January 1, 2017, New York employees will satisfy the executive or administrative exemptions only if they are paid amounts ranging from $727.50/week to $825/week, depending on their location and the employer size.  Those amounts increase every year.  As a result of these changes, a New York employee paid a salary of $455/week may be considered exempt from overtime under the federal Fair Labor Standards Act but entitled to overtime under New York law.  The New York changes do not apply to the creative professional or learned professional exemptions. 

Please contact us if you would like more information on how to determine if someone is or is not entitled to overtime. 

What Are the White Collar Exemptions?

The most common exemptions to state and federal overtime laws are known as the “white collar exemptions,” and include the executive, administrative, learned professional, and creative professional exemptions.  In order to qualify for one of these exemptions, an employee must pass the “salary test” and the “duties test.”  Click here for more information on the “salary test.”  The “duties test” is explained below. 

To qualify for the executive employee exemption, the employee must (1) have a primary duty of managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; and (2) customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and (3) must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.  Executive employees tend to be the organization’s leadership team, including managers, supervisors, directors, and executive officers.

To qualify for the administrative employee exemption, the employee must (1) primarily perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (2) primarily perform duties that include the exercise of discretion and independent judgment with respect to matters of significance.  Employees who satisfy this exemption tend to work in areas such as tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procurement, advertising, marketing, research, safety and health, personnel management, human resources, labor relations, public relations, government relations, computer networks, internet and database administration, or legal and regulatory compliance. 

To qualify for the learned professional employee exemption, the employee must (1) primarily perform work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; and (2) the advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Employees who satisfy this exemption tend to work in law, medicine, theology, accounting, actuarial computation, engineering, teaching, or pharmacy.  Learned professionals include registered medical technologists, registered nurses, dental hygienists, physician assistants, certified public accountants, executive chefs, athletic trainers, funeral directors, teachers, lawyers, scientists, and doctors. 

To qualify for the creative professional employee exemption, the employee must (1) primarily perform work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.  Examples of employees who satisfy this exemption tend to work as actors, musicians, composers, conductors, soloists, certain painters, writers, cartoonists, essayists, or novelists. 

Employees who satisfy one of these “duties tests” and who pass the “salary test” are not entitled to overtime.  Please contact us if you would like more information on how to determine if someone is or is not entitled to overtime. 

EEOC Issues Guidance on Mental Health in the Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a resource document explaining workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA). The ADA is a federal statute that prohibits discrimination on the basis of an actual or perceived disability. The ADA also requires employers to provide reasonable accommodations to their disabled employees, identified via an interactive process, so that those employees can perform their job duties.

This resource document, titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” covers a number of important topics focused on the numerous issues that arise in this context.

First, the guidance makes it clear that an employer cannot fire or discipline an employee because that employee has a mental health condition, stressing that an employer cannot rely on myths or stereotypes about mental health conditions when making employment decisions.

Second, the guidance provides that employees may keep their mental condition private, as is often their preference in these situations, unless (1) the employee has asked for a reasonable accommodation, (2) the employer has made a job offer, but employment has not commenced, (3) the employer is engaging in an affirmative action program to hire individuals with disabilities, or (4) there is objective evidence that the employee cannot perform his/her job or that he/she poses a direct safety threat.

Third, the guidance identifies reasonable accommodations that may be appropriate for individuals with mental health conditions, including (1) altered break and work schedules to allow for attendance at therapy appointments, (2) quiet office space, (3) changes in supervisory methods, (4) specific shift assignments, or (5) permission to work from home.

Fourth, the guidance reiterates that a condition need not be ‘permanent’ or ‘severe’ to be a covered disability. Instead, a condition may qualify as an ADA-protected disability if it makes activities more difficult or time-consuming to perform compared to the way most people perform them.

Fifth, the guidance identifies the following as disabilities that are likely protected and notes that they can be disabilities even if the symptoms come and go: major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD).

Sixth, the guidance makes clear that the ADA prohibits harassment based upon an employee’s disability. According to the guidance, employees who are being harassed because of a disability should notify their supervisors and should follow the employer’s reporting procedures. Employers are legally required to take action to prevent this type of harassment.

In light of this new guidance, employers should (1) train their supervisors on the ADA-mandated interactive process and how to handle internal complaints of harassment and (2) review their internal policies to insure they are ADA compliant.  If you have any questions about disability law or the interactive process, please feel free to contact us.

Texas Court Enjoins DOL Regulations

As we wrote about, as of December 1, 2016, new Department of Labor Regulations were to have gone into effect that would have resulted in approximately 4.2 million more workers being entitled to overtime.   As we wrote about 21 states brought suit in a Texas federal court to stop the implementation of those new regulations.  Yesterday, a Texas District Court Judge, who happened to have been appointed by President Obama, granted a nationwide preliminary injunction blocking implementation of the rule that doubled the required salary level to qualify for the Fair Labor Standards Act’s “white collar exemptions.”  As a result, the salary required to be paid to an employee to be treated as “white collar exempt” will remain at $455/week and will not be increased to $913/week.

Many employers had already prepared for the new regulations by identifying workers affected by the new rule and determining how to address the change.  Many employers gave employees raises to new salary level, hired new employees to limit overtime worked, and implemented the fluctuating workweek method of overtime calculation.  If an employer has already communicated those changes, it will be difficult to undo them. 

Employers who did not plan for the change can breathe a sigh of relief.  That relief, however, may be temporary as the Department of Labor is likely to appeal the decision to the Fifth Circuit Court of Appeals.  If the decision is reversed by the Fifth Circuit, and the employer is not in compliance with the new regulations, a difficult scenario arises:  does the reversal of the injunction mean the effective date of the regulations will be made retroactive to December 1, 2016? 

What Does Legal Marijuana Mean for Massachusetts Employers?

Yesterday, Massachusetts voters approved a law permitting recreational use of marijuana by a margin of 53.6 percent to 46.4 percent.   Numerous employers have asked how this impacts the workplace.  Are employees entitled to utilize recreational marijuana at work or on a break?  Do employers have to allow for marijuana use as an accommodation to a disability?  Can employers no longer enforce drug/alcohol-free workplace policies as they relate to marijuana?

Thankfully, the 12-page statute provides clarity for employers wondering how this affects the workplace in Section 2(e):

(e) This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter (i.e. the use of recreational marijuana) in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.    

This section makes clear that employers will not have to allow marijuana use in the workplace and will still be able to enforce a drug-use policy that restricts the consumption of marijuana by employees. 

Employers who do not have a drug/alcohol-free workplace policy should have one.  Employers who have not updated their policies since the 2012 legislation legalizing medical marijuana should do so.  Please contact us if you would like assistance in drafting or reviewing workplace policies to be sure they comply with these laws.    

Obesity as a Disability – The Debate Continues 

According to the Americans with Disabilities Act and M.G.L. ch. 151B, employees are entitled to protections associated with mental or physical impairments if they rise to the level of a “disability,” a question resolved by determining whether the condition substantially impairs one or major life activities.  If someone meets the statutory definition of “disabled,” they are entitled to important workplace protections, including those prohibiting harassment and discrimination, as well as those requiring employers to engage in an interactive process to determine if reasonable accommodations must be provided to the employee to mitigate the impacts the disability has on work performance.   In 2008, the Americans with Disabilities Act was amended in a number of important ways, including in ways that greatly expanded the definition of “disability.”  As a result, numerous conditions (cancer, diabetes, etc.) are clearly considered “disabilities.” 

The status of obesity as a “disability,” however, is not clear.   Some courts have said “maybe,” others have said “no,” and others have said “yes, but only if it results from an underlying physiological disorder.”  On September 21, 2016, the Massachusetts Commission Against Discrimination joined the debate, finding that an employee who suffered from morbid obesity was disabled and that the employer’s refusal to grant him a leave of absence violated its obligation to provide the employee a reasonable accommodation. 

Please feel free to contact us if you have questions about disability discrimination, the interactive process, or workplace accommodations.    

Time for Vermont Employers to Prepare for New Sick Leave Law

As of January 1, 2017, Vermont will become the fifth state to have a paid sick leave law.  Employers with five or fewer employees who are employed for an average of 30 hours or more per week will not be subject to the law until January 1, 2018.

According to this new law, employees who work an average of 18 hours or more per week are eligible to accrue one hour of paid sick leave for every 52 hours worked.  The law generally requires employees to be entitled to carryover unused sick time from year-to-year, but limits an employee’s use of accrued sick time to 24 or 40 hours in any 12-month period, depending on the year in which it was accrued.   Employers may implement a one-year waiting period prior to allowing employees to utilize paid sick leave.  During the waiting period, however, employees will accrue paid sick time. 

The new law allows employees to utilize paid sick leave to (1) care for their own or a family member’s illness or need for medical care, (2) obtain services or care associated with domestic violence, sexual assault, or stalking suffered by the employee or a family member, and (3) to care for a family member because the school or business they attend is closed for public health or safety reasons. 

Employers with Vermont employees should review and revise their leave policies in advance of the new law’s implementation.  If you have any questions about this proposed law or any other employment issue, please feel free to contact us