Category Archives: Policies & Employee Handbooks

December 14, 2016

Working Through The Haze: What Legal Marijuana Means For Nevada Employers

6a013486823d73970c01b7c85cd538970bBy Dora Lane and Anthony Hall
One in eight adults in the United States smokes marijuana, according to a 2016 Gallup poll. That means about 13% of the adult population in this country smokes pot, nearly double the percentage that reported such use in Gallup’s 2013 survey. In fact, about 22 million Americans reported they had used marijuana in the past month, according to 2014 data collected by the Substance Abuse and Mental hall_aHealth Services Administration.

It is unclear whether the increase in the number of Americans reporting they use marijuana is due to an actual increase in use of the drug, or if it simply represents an increase in the willingness of survey respondents to admit to using marijuana. What is clear, however, is that more states are legalizing marijuana for both medical and recreational use. This past November, nine states had marijuana initiatives on the ballot. Voters in four states – California, Maine, Massachusetts, and Nevada – passed recreational marijuana use while voters in four other states – Florida, Montana, North Dakota, and Arkansas – passed medical marijuana initiatives. The undeniable result is that marijuana is becoming more acceptable, and more marijuana-related issues are likely to arise in the workplace.

Nevada Legalizes Recreational Marijuana Use 

In November 2016, Nevada voters approved a ballot question that legalizes the recreational use of marijuana by adults. The ballot measure amends the Nevada Revised Statutes to make it lawful for a person who is 21 years of age or older to purchase, possess, and consume up to one ounce of marijuana and to grow a limited number of marijuana plants for personal use. Questions have arisen how the legalization of marijuana will impact employers.

No Marijuana Use Or Possession At Work

Under the recently passed recreational marijuana initiative, public and private employers may maintain, enact, and enforce a workplace policy prohibiting or restricting actions or conduct otherwise permitted under the new law. In other words, although the initiative provides that marijuana may be consumed without criminal prosecution by the State of Nevada, it does not affect an employer’s right to implement policies prohibiting marijuana consumption or possession. Nevada employers may, therefore, prohibit the possession and use of recreational marijuana at work.

This provision is consistent with the state’s medical marijuana law which also does not require any employer to allow the use of medical marijuana in the workplace. Consequently, even though use of marijuana may be legal in the state, employers may restrict such use and possession on its premises and while employees are on duty. And, although not specifically stated, Nevada’s marijuana laws appear to allow employers to terminate or discipline employees who violate workplace policies that prohibit using, possessing, or being impaired by marijuana while at work.

So Must Employers Tolerate Off-Duty Marijuana Use, So Long as It Is Not Done While on Duty or on Company Premises? 

The short answer in our opinion is generally no, with some caveats for medical marijuana users described below, but employees’ off-duty consumption raises some difficult practical issues. First, many employers have policies prohibiting employees from being “under the influence” or “impaired” by prohibited substances while at work. It is often challenging, however, to determine when an employee is “under the influence” or “impaired” while at work. If the employee is visibly affected or slow to react, impairment may be easier to demonstrate. However, not everyone experiences side effects from marijuana consumption and even if they do, the timeframe within which the side effects can be observed may vary by individual. Accordingly, employers who prohibit employees from working while being impaired or “under the influence” should not jump to conclusions that someone was “under the influence” just because their drug screen comes back positive for Tetrahydrocannabinol (THC).

Second, employers should be mindful of NRS 613.333, which makes it an unlawful employment practice for an employer to refuse to hire a prospective employee, or to discharge or discriminate against an employee because the employee engages in the lawful use of any product outside the premises of the employer during the employee’s nonworking hours, as long as the use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees. Although the statute was initially enacted to protect tobacco smokers, the recent legalization of marijuana makes the statute also potentially applicable to marijuana users.

Unlike tobacco, however, marijuana remains illegal under federal law, which begs the question whether its off-duty use is “lawful.” Currently, no Nevada cases have considered or decided this issue, but a key case involving Colorado’s lawful activities statute, C.R.S. § 24-34-402.5, was decided by the Colorado Supreme Court last year. In that case, a quadriplegic employee who used medical marijuana during non-working hours to help control his pain was terminated after a random drug test showed a positive result for marijuana in his system. He sued his employer alleging that his termination violated the Colorado lawful activities statute. The Colorado Supreme Court ruled that his termination did not violate the statute because marijuana use was unlawful under federal law. Coats v. Dish Network, LLC, 350 P.3d 970 (Colo. 2015).

Even though the Colorado case is not binding on Nevada courts, its reliance on the illegality of marijuana under federal law may be persuasive. Still, it is unclear how a Nevada court would rule if asked to decide whether an employer violates the Nevada lawful product statute by terminating or disciplining an employee due to his or her off-duty marijuana use. The risk of such a claim should be considered when making adverse employment decisions involving positive marijuana drug tests or other marijuana-related issues. Employers should also be mindful of potential developments in federal law with respect to the legalization of marijuana. Such legalization will transform marijuana into a “lawful” product under both federal and state law, and the above analysis will change greatly.

Finally, an employee who is terminated for marijuana use may attempt to argue wrongful termination in violation of public policy, given the recent marijuana legalization. Because the Nevada Supreme Court has been traditionally conservative in creating new exceptions to the at-will employment doctrine and marijuana remains illegal under federal law, such claims do not bear high likelihood of success. As mentioned above, however, legalization of marijuana under federal law will substantially affect this analysis. Read more >>

November 16, 2016

OSHA Clarifies Discipline, Retaliation and Drug Testing Commentary

linton_mBy Matt Linton

When the Occupational Safety and Health Administration (OSHA) released its 2016 final rule requiring the electronic reporting of workplace injury and illness reports, it included controversial provisions on discriminatory discipline, retaliation, and even post-incident drug testing by employers. The uproar was instantaneous, with industry groups quickly filing lawsuits challenging OSHA’s authority to enforce the rule. Originally scheduled to go into effect on August 10th, the effective date for the new anti-retaliation rule was pushed back by OSHA until November 1st, and more recently, until December 1st.

In the interim, Dorothy Dougherty, OSHA’s Deputy Assistant Secretary, issued an interpretation memorandum designed to explain the anti-retaliation and injury reporting procedures in more detail. The interpretation may help clarify what your organization must do in order to comply with the final rule – even if it doesn’t make the rule more palatable.

Reasonable Procedures For Employees To Report Workplace Injuries/Illnesses 

An employer violates OSHA’s new final rule if it either fails to have a procedure for employees to report work-related injuries or illnesses, or its reporting procedure is unreasonable. OSHA states that this requirement is not new, as it was implicit in the previous version of the rule. But now, it is an explicit employer requirement.

OSHA considers a reporting procedure to be reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting an injury or illness. Examples of what it considers reasonable and unreasonable are as follows:

Reasonable

  • Requiring employees to report a work-related injury or illness as soon as practicable after realizing they have a reportable incident, such as the same or next business day, when possible
  • Requiring employees to report work-related injuries or illnesses to a supervisor through reasonable means, such as by phone, email or in person.

Unreasonable

  • Requiring ill or injured employees to report in person if they are unable to do so
  • Disciplining employees for failing to report “immediately” if they are incapacitated because of the injury or illness
  • Disciplining employees for failing to report before they realize they have a work-related injury that they are required to report
  • Unnecessarily cumbersome or an excessive number of steps to report a work-related injury or illness

In short, if your procedure allows employees to report workplace injuries and illnesses within a reasonable amount of time after they realize they have experienced a reportable event, and the procedure does not make employees jump through too many hoops, it will be reasonable and comply with the final rule.

Anti-Retaliation Provision Explained

Retaliating against employees for reporting work-related injuries or illnesses has long been unlawful. To issue a citation under section 1904.35(b)(1)(iv), OSHA must have reasonable cause to believe that an employer retaliated against an employee by showing:

  1. The employee reported a work-related injury or illness;
  2. The employer took adverse action against the employee (i.e., action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
  3. The employer took the adverse action because the employee reported a work-related injury or illness.

As in most employment retaliation cases, the third element on causation is often the toughest to prove. The determination is made on a case-by-case basis, depending on the specifics facts in any particular case.

OSHA has focused its commentary primarily on three types of potentially retaliatory actions —  discipline policies, incentive programs, and post-accident drug testing. OSHA’s recent interpretation helps shed light on how employers should address these three issues to avoid a citation for a violation of the anti-retaliation rule. Read more >>

August 12, 2016

Notice Required By Colorado’s New Pregnancy Accommodation Law

By Besse H. McDonaldDORA notice

As we reported here, effective August 10, 2016, Colorado employers must provide a reasonable accommodation to applicants and employees for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Along with the new accommodation requirement, Colorado employers also must post a notice of employee rights under the new law as well as provide written notice to new hires at the start of employment and existing employees no later than December 8, 2016. The Colorado Civil Rights Division (CCRD) has published a suggested notice that it deems compliant with the new law.

Available in both English and Spanish on the CCRD’s website, the two-page notice informs employees of the new pregnancy accommodation requirement under Colorado’s anti-discrimination laws. Be sure to print off copies of the notice to post in a conspicuous place in your business in an area accessible to employees, such as break rooms or near employee entrances, where other required employment law notices are posted. Then take steps to provide the notice to your existing employees no later than December 8, 2016 and to all new hires going forward.

June 6, 2016

Colorado’s New Pregnancy Accommodation Law

By Micah Dawson

Effective August 10, 2016, Colorado employers will commit an unfair employment practice if they fail to provide a reasonable accommodation for an employee, or an applicant for employment, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Last week, Colorado Governor John Hickenlooper signed into law House Bill 16-1438 which requires Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The new law, section 24-34-402.3 of the Colorado Anti-Discrimination Act, also prohibits employers from denying employment opportunities based on the need to make a pregnancy-related reasonable accommodation and from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

 Posting and Notification Requirements

The new law imposes posting and notification requirements on Colorado employers. By December 8, 2016 (120 days from the effective date), employers must provide current employees with written notice of their rights under this provision. Thereafter, employers also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. Employers in Colorado also must post a written notice of rights in a conspicuous place at their business in an area accessible to employees.

For more information on this new law, read our full post about its requirements here.

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May 11, 2016

Colorado Pregnancy Accommodation Bill Passes

By Micah Dawson

The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.

Pregnancy-Related Workplace Accommodations

This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.

Interactive Accommodation Process 

You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.

Examples of reasonable accommodations include but are not limited to:

  • more frequent or longer breaks
  • more frequent restroom, food and water breaks
  • obtaining or modifying equipment or seating
  • temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
  • light duty, if available
  • job restructuring
  • limiting lifting
  • assistance with manual labor, or
  • modified work schedules.

In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.

No Forced Accommodations or Leave 

Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.

Analyzing Undue Hardship Of Accommodations 

Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

Broad Definition of “Adverse Action” in Retaliation Prohibition 

The new law prohibits you from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined very broadly as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This approach harkens to the NLRB’s use of a “chilling effect” on employee rights as a basis for unfair labor charges. By not limiting an adverse action to concrete actions, such as a termination, demotion, pay reduction, or similar actions, the broad definition opens the door to a wide range of employer responses that could be deemed retaliation.

Notifying Employees of Their Rights

If signed into law, you will have until December 8, 2016 (120 days from the effective date) to provide current employees with written notice of their rights under this provision. Thereafter, you also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. You also have to post the written notice in a conspicuous place at your business in an area accessible to employees.

What To Do Now 

With enactment almost certain, prepare now to comply with this new pregnancy accommodation requirement. A checklist of action items includes:

  • Review and update job descriptions to designate essential functions of each job.
  • Update your accommodation policies and handbook to include pregnancy-related accommodations and information on how employees may request such an accommodation.
  • Train your supervisors, managers, and human resources department on the new accommodation requirements and the anti-retaliation provision.
  • Prepare written notifications of employee rights to send to current employees no later than December 8, 2016.
  • Include the written notification of rights in your onboarding materials so that after December 8, 2016, all new hires receive the notice.
  • Post the written notification of rights in a conspicuous place accessible to employees, such as your lunch room bulletin boards, intranet, or wherever other required employment law posters are posted.

March 16, 2016

Muslim Teacher May Proceed With National Origin Hostile Work Environment Claim

Hobbs-Wright_EBy Emily Hobbs-Wright

A Turkish-born Muslim teacher claimed that her school had a culture of racial and ethnic hostility. The Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Kansas, Oklahoma, and New Mexico) recently ruled that her complaints of national origin discrimination may move forward, offering lessons in how to handle cultural differences in the workplace.

School Principal Made and Allowed Insensitive Comments

Zeynep Unal worked as an elementary teacher in the school district’s gifted and talented program for about four years before the district hired Katheryn Vandenkieboom as the principal at Unal’s school. Born in Turkey, Unal spoke with a distinct Turkish accent and was the only foreign-born teacher at the school. Prior to Vandenkieboom’s arrival, Unal was considered a good teacher and received regular positive reviews.

According to Unal, Vandenkieboom made numerous hostile comments to her and allowed other school staff to do the same. When Vandenkieboom and other faculty began discussing an American movie in the faculty lounge, Vandenkieboom, in front of the staff, told Unal “You wouldn’t know about this. You are not from here.” During an after-school Christmas concert, Vandenkieboom thanked various teachers for being at the concert but then approached Unal to ask, “what are you doing here?” despite Unal’s own child participating in the concert. Vandenkieboom also would correct Unal’s pronunciation in front of staff. Another staff member once called Unal “a turkey from Turkey,” but later apologized.

Unal alleged that Vandenkieboom and her staff also made insensitive remarks about other nationalities, such as repeatedly referring to a Vietnamese family as the “little people,” and openly joking about an Asian family’s surname, Fu, by turning it into the crude insult, “F.U.” The office staff also made announcements over the school’s intercom system while faking foreign accents and then laughing about it.

Unal Alleged A Hostile Work Environment Based On National Origin

Unal sued the school district, its superintendent, and principal Vandenkieboom for, among other things, a violation of Title VII on the basis of a hostile work environment based on her national origin. The parties agreed that she was subject to some unwelcome harassment, but her employer argued that the harassment was not based on her national origin and was not sufficiently severe or pervasive to demonstrate a hostile work environment. The district court agreed with the school district, granting it summary judgment on Unal’s claims. But on appeal, the Tenth Circuit overturned that ruling, sending it back for trial.

Title VII Is Not A “General Civility Code”

The Tenth Circuit panel noted that Title VII is not a “general civility code.” In order to proceed to trial, Unal needed to show that a rational jury could find that the workplace was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.”

Evidence of Harassment Supported Claim

Unal needed to show that the harassment was based on a discriminatory animus toward her national origin. Evidence of such animus directed toward Unal’s specific nationality is the strongest evidence, but the Court noted that incidents of harassment of other nationalities could also be considered in evaluating her claim.

The Court found that Unal provided evidence that some comments were directed toward her own nationality. Such comments included Vandenkieboom’s question as to why Unal would attend a school Christmas concert while thanking other teachers who attended, Vandenkieboom’s exclusion of Unal from the faculty lounge discussion of an American movie because she was “not from here,” and another staff member’s comment that Unal was a “turkey from Turkey.” Though each comment was not necessarily supportive of a hostile work environment claim, the Court found that taken together, they were intended to negatively emphasize Unal’s status as a foreigner.

The Court also determined that comments directed to other nationalities, such as the derogatory remarks made about the Vietnamese and Asian families, as well as making school announcements with feigned foreign accents, support an inference that the school’s administration permitted a culture of animus toward foreign-born individuals.

In addition, the Court gave weight to several incidents where seemingly neutral conduct resulted in Unal being treated differently than other teachers. For example, Vandenkieboom solicited negative feedback about Unal from a substitute teacher but did not do so with respect to any other teachers. Vandenkieboom also discounted Unal’s expertise in the gifted program, excused other teachers from attending Unal’s meetings while not excusing attendance at other teachers’ meetings, and letting months pass before assigning an instructional assistant to help Unal while assigning an assistant to another teacher in only a week. Even though these events were not discriminatory on their face, the Court viewed them in relation to the totality of the circumstances and determined that a reasonable jury could conclude that those events were the result of a larger environment of hostility based on national origin.

Close Case On Severity or Pervasiveness

The conduct alleged by Unal as creating a hostile work environment occurred over a three year period. While noting that there is no “mathematically precise test” to determine whether harassment is sufficiently severe or pervasive to have altered a term, condition, or privilege of employment, the Court concluded that Unal met that standard. Calling it a close case, the Court viewed the totality of the circumstances of Unal’s allegations and found that a reasonable jury could find that Unal was subjected to unwelcome harassment based on her national origin that created an abusive work environment.

Handling Diverse Employees

By allowing this case to proceed to trial, the Court sent a strong message to employers to clean up a workplace culture that excludes or segregates workers based on their national origin, or creates hostility toward employees from other countries. Jokes, name-calling, correcting pronunciations, and other conduct that treats individuals differently because of their name, accent, appearance, food or music preferences, religious observances, or traditions can lead to a hostile work environment claim.

To avoid hostile work environment claims based on national origin, take these steps to make sure your managers and staff understand what is, and is not, acceptable behavior at work:

  • Make sure your harassment policy prohibits unlawful conduct based on all protected characteristics, not just sexual harassment.
  • Provide examples of unacceptable conduct in your harassment policy, including conduct that targets workers on the basis of their national origin, religion, or ethnicity.
  • Require all employees to review and acknowledge your harassment policy at least annually.
  • Train management to recognize and stop such conduct before it becomes severe or pervasive.
  • Promptly investigate any complaint of workplace harassment and take steps to correct improper conduct so that it doesn’t happen again.

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March 8, 2016

Paid Sick Leave Requirements For Federal Contractors: What To Expect

Wiletsky_MBy Mark Wiletsky

An estimated 437,000 workers who do not currently receive paid sick leave will become eligible for up to seven days of annual paid sick leave under recently released proposed regulations from the Department of Labor (DOL). Last fall, President Obama issued Executive Order 13706 to require federal contractors to provide paid sick leave to employees who work on covered contracts. If you are or expect to be a federal contractor, here is what you’ll need to know about the proposed rules.

Accrual of Paid Sick Time

For every 30 hours worked on, or in connection with, a covered contract, employees must accrue a minimum of one hour of paid sick leave, with a maximum cap of at least 56 hours. Contractors must calculate each employee’s accrual at the conclusion of each workweek. Alternatively, if a contractor does not want the trouble of calculating accruals, the proposed rules allow a contractor to provide an employee with at least 56 hours of paid sick leave at the beginning of each accrual year.

Contractors must provide written notification to covered employees about the amount of paid sick leave that the employee has accrued but not used. Notifications are required at the following times:

  • at least monthly
  • each time the employee requests to use paid sick leave
  • upon separation of employment
  • upon reinstatement of paid sick leave, and
  • whenever the employee asks for this information (but no more than once a week).

Notifications of sick leave benefits that accompany paychecks or are accessible online will generally satisfy this requirement.

Use of Paid Sick Leave

Under the proposed rules, an employee may use paid sick leave for an absence resulting from any of the following:

  • the employee’s medical condition, illness or injury (physical or mental)
  • for the employee to obtain diagnosis, care, or preventive care from a health care provider for the above conditions
  • caring for the employee’s child, parent, spouse, domestic partner, or another individual in a close relationship with the employee (by blood or affinity) who has a medical condition, illness or injury (physical or mental) or the need to obtain diagnosis, care, or preventive care for the same
  • domestic violence, sexual assault, or stalking, that results in a medical condition, illness or injury (physical or mental), or causes the need to obtain additional counseling, seek relocation or assistance from a victim services organization, take legal action, or assist an individual in engaging in any of these activities.

Definitions for these terms are included in the proposed regulations. Contractors must permit employees to use their accrued paid sick leave in increments of no greater than one hour.

Leave Requests and Medical Certifications

Employees must be permitted to make a verbal or written request to use paid sick leave. If leave is foreseeable, the request must be made at least seven calendar days in advance. When not foreseeable, the request must be made as soon as practicable. Any denial of leave must be provided in writing to the employee, with an explanation for the denial.

Contractors may only require a medical certification issued by a health care provider (or other documentation related to domestic violence) if the employee is absent for three or more consecutive full workdays.

Carryover and Reinstatement Of Unused Leave

Contractors are permitted to cap the amount of paid sick leave that employees may accrue to 56 hours each year. But, contractors must carry over unused, accrued paid sick leave from one year to the next, with a cap of at least 56 hours of accrued paid sick leave at any one time. In addition, under the proposed regulations, contractors must reinstate an employee’s unused, accrued paid sick leave if the employee is rehired by the same contractor or a successor contractor within 12 months after a job separation. Contractors will not be required to pay out any unused, accrued paid sick time at the termination of employment.

Interaction With FMLA and Existing Company PTO Policies

Paid sick leave under these regulations may run concurrently with Family and Medical Leave Act (FMLA) leave but it does not otherwise change a contractor’s obligations to comply with the FMLA. In other words, if an employee is eligible for time off under the FMLA, the contractor must meet FMLA requirements for notices and certifications regardless of whether the employee is eligible to use accrued paid sick leave.

For contractors with an existing paid time off (PTO) policy, the policy will meet the requirements of the proposed regulations if the paid time off policy satisfies all the obligations under the proposed rules. But, if it does not meet all of the requirements under the regulations, such as not permitting an employee to use paid time off for reasons related to domestic violence, sexual assault, or stalking, then the PTO policy would not suffice. In such cases, the contractor would have to either amend its PTO policy to make it compliant, or separately provide paid sick leave under the proposed regulations in addition to its PTO.

Covered Contracts and Employees

The Executive Order applies to new contracts and replacements for expiring contracts with the federal government that result from solicitations (or awards outside the solicitation process) issued on or after January 1, 2017. It essentially applies to four major categories of contracts:

  • procurement contracts for construction covered by the Davis-Bacon Act
  • service contracts covered by the McNamara-O-Hara Service Contract Act
  • concessions contracts, and
  • contracts in connection with federal property or lands and relating to offering services for federal employees, their dependents, or the general public.

Employees covered by the Executive Order, and therefore entitled to paid sick leave, include any person performing work on, or in connection with, a covered contract. There is a narrow exclusion for employees who perform work “in connection with” covered contracts but who spend less than 20 percent of their hours in a particular workweek in connection with such contract work.

Next Steps

Interested parties and the general public may submit comments on the proposed regulations on or before March 28, 2016. The DOL then will review the comments and decide whether to make any revisions before issuing a final rule sometime before the end of this year.

As you can see, many of the requirements of these proposed regulations differ from what we typically see in an employer’s sick leave or PTO policy. Consequently, employers who expect to seek or renew federal contracts after January 1, 2017 should review their existing sick leave and/or PTO policies to determine what changes may be required in order to comply with the proposed regulations.  The devil is in the details on this one so don’t wait until the last minute to get your policies and procedures in place.

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February 11, 2016

Medical Marijuana Need Not Be Accommodated by New Mexico Employers

West_LBy Little V. West

New Mexico employers are not required to accommodate an employee’s use of medical marijuana, according to the federal district court in New Mexico. In dismissing an employee’s discrimination lawsuit, the Court recently ruled that an employee terminated for testing positive for marijuana did not have a cause of action against his employer for failure to accommodate his use of medical marijuana to treat his HIV/AIDS. Garcia v. Tractor Supply Co., No. 15-735, (D.N.M. Jan. 7, 2016).

New Employee Terminated For Positive Drug Test 

When Rojerio Garcia interviewed for a management position at a New Mexico Tractor Supply store, he was up front about having HIV/AIDS. He also explained that he used medical marijuana under the state’s Medical Cannabis Program as a treatment for his condition upon recommendation of his doctor.

Tractor Supply hired Garcia and sent him for a drug test; Garcia tested positive for cannabis metabolites. He was terminated from employment. Garcia filed a complaint with the New Mexico Human Rights Division alleging unlawful discrimination based on Tractor Supply’s failure to accommodate his legal use of marijuana to treat his serious medical condition under New Mexico law. 

No Affirmative Accommodation Requirements in New Mexico’s Medical Marijuana Law

Garcia argued that New Mexico’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes with a state-issued Patient Identification Card, should be considered in combination with the state Human Rights Act, which, among other things, prohibits employers from discriminating on the basis of a serious medical condition. He argued that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico. Accordingly, Garcia asserted that employers must accommodate an employee’s use of medical marijuana under the New Mexico Human Rights Act.

The Court disagreed. It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico’s law did not. Consequently, Garcia did not have a claim under the CUA.

The Court then rejected Garcia’s arguments that his termination violated the Human Rights Act. The Court found that Garcia was not terminated because of, or on the basis of, his serious medical condition. He was terminated for failing a drug test. The Court stated that his use of marijuana was “not a manifestation” of his HIV/AIDS, so Tractor Supply did not unlawfully discriminate against Garcia when it terminated him for his positive drug test. 

Court Rejected Public Policy Arguments 

Garcia argued that the public policy behind the state’s legalization of medical marijuana meant that employers should be required to accommodate an employee’s legal use of marijuana. The Court rejected the argument, noting that marijuana use remains illegal for any purpose under federal law. It stated that if it accepted Garcia’s public policy position, Tractor Supply, which has stores in 49 states, would have to tailor its drug-free workplace policy for each state that permits marijuana use in some form.

The Court also relied on the fact that the CUA only provides limited state-law immunity from prosecution for individuals who comply with state medical marijuana law. However, Garcia was not seeking state-law immunity for his marijuana use. Instead, he sought to affirmatively require Tractor Supply to accommodate his marijuana use. The Court stated that to affirmatively require Tractor Supply to accommodate Garcia’s drug use would require the company to permit conduct prohibited under federal law. Therefore, the Court ruled that New Mexico employers are not required to accommodate an employee’s use of medical marijuana.

What This Means For Employers

The Tractor Supply decision is consistent with rulings from courts in other states that have similarly ruled that an employer may lawfully terminate an employee who tests positive for marijuana. Although Garcia may appeal this decision, it is difficult to imagine that an appellate court will overturn it as long as marijuana use remains illegal under federal law, and state law does not require a workplace accommodation.

In light of this decision, take time now to review your drug-free workplace and drug testing policies. Make certain that your policies apply to all controlled substances, whether illegal under state or federal law. Clearly state that a positive drug test may result in termination of employment, regardless of whether the employee uses medical marijuana during working hours or appears to be “under the influence” at work. Communicate your drug-free workplace and testing policies to employees and train your supervisors and managers on enforcing the policies in a consistent and uniform manner.

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January 28, 2016

Inclement Weather: Tips for Handling Absences and Pay When Bad Weather Blows In

Vilos_JBy Joanna Vilos 

Blizzards, flooding, tornadoes – parts of the country have been slammed with bad weather recently. What should you do if inclement weather shuts down your business or makes it impossible for employees to get to work? How should you handle absences and tardiness when employees are late or can’t get to work at all due to bad weather? Do you have to pay employees when you send them home early because a blizzard is moving in? Here are some tips, originally posted in November 2013, for addressing inclement weather situations.

Bad Weather Absences and Tardiness

Generally, it’s up to your company to decide how to handle weather-related absences and tardiness. Private employers may determine whether such absences and tardiness will be considered unexcused or excused, what the proper call-in procedures are and if employees may make up the missed time on another day that week. Of course, if you have employees who are covered by a collective bargaining agreement or an individual employment agreement that addresses inclement weather situations, you’ll need to abide by the applicable contractual provisions.  

Pay Concerns for Time Missed Due to Inclement Weather 

Pay issues related to inclement weather days are, in many ways, dependent on your company policies as well. Under the Fair Labor Standards Act (FLSA), you don’t need to pay non-exempt employees for time not worked, meaning you don’t need to pay non-exempt employees for time missed due to weather-related reasons. This applies whether your business completely shuts down for inclement weather, or if it remains open and individual employees can’t report to work.

Of course, your company may choose to pay non-exempt employees under inclement weather conditions, perhaps when your business sends workers home or closes completely. Alternatively, you may choose to allow or require employees to use vacation or other accrued paid time off to receive pay during inclement weather days. Such pay policies go above what is legally mandated for non-exempt employees so your company should decide in advance how it will pay employees when weather interferes with your business operations. 

Exempt employees, on the other hand, can’t have their salaries reduced “for absences occasioned by the employer” so if your company closes due to bad weather for less than a full workweek, you must pay exempt employees their full salary for that week. Even if your business stays open but an exempt employee fails to report to work due to the weather, you need to be cautious about salary deductions. Under the FLSA, if an exempt employee misses an entire day of work due to adverse weather conditions when the employer is open for business, the employer may lawfully deduct one full-day’s absence from his or her salary. Employers may not, however, deduct pay for partial-day absences. In addition, in today’s business environment, many exempt employees may be able work from home on bad weather days thanks to technology such as remote access to computer systems, cell phones and call forwarding, email and other telecommunication devices. If an exempt employee is able to work remotely, you should not deduct pay even if inclement weather keeps the employee out of the office.

Adopt an Inclement Weather Policy

Advance planning will help you avoid the last minute uncertainties of managing absences and pay issues when the weather turns sour. Decide ahead of time how you will address the following:

  • Who will decide if/when your business closes due to inclement weather? Is the decision contingent on any specific factors, such as community declaration of a snow emergency, shut down of the public transportation system or accumulation of “x” inches of snow?
  • How will you communicate a business closure/snow day to employees – will you use a call-in hotline? Text messages? A phone tree? Television business closure list?
  • Are there essential personnel who are expected to report to work even if the rest of your operations are closed?
  • Can employees work remotely and if so, what are your expectations for them to do so when inclement weather prevents employees from working in your facility?
  • What is your call-in procedure if an employee can’t make it to work due to the weather?
  • Will you excuse employees’ absences and/or tardiness that are caused by bad weather?
  • If you shut down or send employees home due to adverse weather, will you pay non-exempt employees for the missed time?
  • May/must non-exempt employees use vacation time or other accrued time off to get paid for time missed due to bad weather?

Establish an inclement weather policy now, before it is needed, and let your employees know how these issues will be handled. A good policy communicated to employees will help reduce everyone’s anxiety when the cold and snow blows in.

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December 14, 2015

Employee Handbook Versus Procedures Manual: Keeping Policies Consistent

Romero_CBy Cecilia Romero

Should your employee handbook contain every HR policy and procedure used by your organization, or should it only contain policies that employees need to know? Should you maintain a separate procedures manual describing how HR and supervisors enact those policies? Here are the key considerations to help you decide what to include in your handbook versus a procedures manual.

Goals of Your Employee Handbook

Your employee handbook should contain your employment policies and be written with your employees as the intended audience. It is meant to inform employees of what they may expect from the company, and what is expected of them. It does not need to include the “how” or “why” behind the policies but instead, sets forth the essential terms and conditions that govern the employment relationship.

Although there is no legal requirement that you have an employee handbook, a well-written handbook can play an important role in reducing your employment law risks. Specifically, your handbook should:

  • reinforce an employment-at-will relationship between the company and its employees through proper disclaimers and a description of the at-will relationship in your “Acknowledgment of Receipt of Handbook” form signed by each employee
  • show your company’s intended compliance with applicable laws (e.g., equal opportunity employer, pay will be in compliance with the Fair Labor Standards Act, reasonable accommodations will be offered, etc.)
  • offer grounds or support for your employment decisions (e.g., policy indicated that violation of work rules could result in termination, etc.)
  • provide affirmative defenses when faced with an employee charge or lawsuit (e.g., policy informed employees on how to report harassment but charging party failed to report it, pay policy indicated how to report payroll errors, etc.)
  • comply with applicable state and federal laws that mandate notification of employee rights, such as an FMLA policy.

In addition to the legal benefits of an employee handbook, you may use your handbook to inform employees about discretionary benefits (i.e., those that are not mandated by law), such as breaks, vacation, sick time, tuition reimbursement, discounts or other perks. Your policies on these types of benefits should set forth eligibility requirements, accrual amounts, scheduling, call-in or request procedures, etc. Make sure your policies comply with applicable state laws as some states regulate pay issues associated with breaks, vacation time and other employer-provided benefits.

Separate Procedures Manual 

A procedures or operations manual, on the other hand, is intended for use by HR, managers, and/or supervisors, not your employees at large. Typically, a procedures manual will describe how your policies are implemented and enforced. It may include forms, checklists, and sample documents to show administrators and managers how to handle specific workplace policies and situations. For example, it may detail the procedures for sending out an offer letter, how to complete the Form I-9, or how to handle a request for jury duty leave. It also may include references to specific laws, rules or regulations should management or HR need to look those up.

Just as you are not required to have an employee handbook, you are not legally required to have a procedures manual. One advantage to having a more detailed document is that it may serve as a reference tool for frontline supervisors, helping to make sure management is consistent in the way it handles employee matters and policy enforcement. It also can be useful in ensuring procedural continuity so that institutional knowledge is not limited to the memories of a few, select individuals in HR.

Avoid Discrepancies Between Policies And Procedures

A distinct disadvantage of having a separate procedures manual, however, is that it could contain or reveal discrepancies between the “management” policy and the policy communicated to employees in the handbook. You do not want two or more “policies” on the same topic as that can lead to inconsistent treatment of workers — with potentially discriminatory consequences. Discrepancies and inconsistent policies not only confuse administrators and supervisors but they also can result in a “smoking gun” that can be used against you when an employee raises a claim.

Deciding whether to have a separate procedures manual often depends on how much guidance your internal folks need in order to manage their workforce in a consistent, uniform and non-discriminatory manner. If you decide a more detailed document would be useful, take great care to ensure that the separate management document is consistent with the policies in your employee handbook.

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