21

July, 2021

Employers Throughout the NY Tri-State Area Face New Obligations: Takeaways Summer 2021

Summer 2021 has brought changes for employers throughout the New York tri-state area, as New York is mandating employers plan for the next pandemic; New Jersey is cracking down on wage law violations; and Connecticut passed four significant new employment mandates on cannabis use, nursing mothers, pay equity and voting. Employer obligations in response to COVID, on the other hand, are now dictated largely at the federal level. Our Summer 2021 issue of Takeaways covers all these legal developments, as well as the most recent federal employment law changes and relevant court decisions.

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25

June, 2021

Protecting the Unvaccinated Presents an Employee Relations Quandary for Employers

By Tracey I. Levy

Under the Biden administration, the CDC has taken a strong position in support of vaccinating as many individuals in the United States as possible. The latest, very well-publicized carrot to incentivize that effort has come in the form of a lifting of COVID-19-related precautionary safety measures for those who are vaccinated. Masking, social distancing, workplace signage about effective hand washing – are all a relic of the past for those who have reached the point of “fully vaccinated.” But as discussed in our prior blog post, the guidance from OSHA is that masking and other COVID-19 precautions should remain in place for employees who are not vaccinated.

Very few workplaces have achieved the point of 100 percent vaccination, and therefore the practical effect of the government’s duality in approach is to bring the full weight of peer pressure down on those who are not vaccinated. The guidance from the EEOC stresses that accommodations must be made for those who are not vaccinated for medical or religious reasons, but employers who endeavor to do so are running into a significant employee relations problem. How do you provide vaccinated employees with the flexibility to resume the panoply of normal activities, while the unvaccinated subset of the workplace is immediately recognizable by their masks and social distancing measures? How do you resume pre-COVID activities like business travel, especially internationally, when a subset of your workforce may be unable to participate due to COVID restrictions? For workplaces that have been working largely remotely since March 2020 and are eagerly anticipating bringing employees back to the office in-person (at least several days per week), how do you rebuild team culture and fully integrate your newest hires who perhaps only know their colleagues by screen shots when any indoor group gathering will necessarily require sufficient spacing of a subset of the team and face masks will quickly brand those who opted out of vaccination?

There is no federal government guidance on this, currently, and a subset of states are contemplating laws similar to that which already took effect in Montana, which prohibit private employers from treating individuals differently based on vaccination status. Options employers may want to consider include:

• Maintain masking protocols in common areas, like pantries, break rooms and rest rooms;

o Those who are vaccinated may balk at being asked to continue masking, but the imposition is relatively modest, especially as the past year has gotten many individuals accustomed to having a mask on their person whenever they are out with others.

• Permit vaccinated employees to remove masks at their workspaces, and adjust seating arrangements where possible to provide social distancing between those who are not vaccinated;

• Explore options for having meetings, particularly larger gatherings, at outdoor venues;

• Schedule team meetings in conference rooms that allow sufficient spacing for six feet of social distancing, at least to accommodate the subset of employees who are unvaccinated;

o A conference room built for 20 can be reduced to only accommodating seven if everyone is socially-distanced, but a hybrid approach, in which social distancing might only be necessary for two or three individuals, could potentially allow that same conference room to seat a team of 15.

• Alternatively, continue to conduct team meetings by videoconference;

o One of the great benefits of meetings in which the entire team is participating by videoconference is that the participants all are equally-spaced and sized, and can more closely approximate speaking at the same audio level. That is a great equalizer when compared to in-person meetings in which some attendees can physically dominate the room and the conversation, and continuing videoconference meetings in the current environment similarly places the vaccinated and the unvaccinated on an equal plane.

• Reserve one or more smaller conference rooms or similar workspaces, perhaps outfitted with a portable HEPA filter for better air circulation, for use by unvaccinated employees when they are having one-to-one meetings with others;

o Some unvaccinated employees, especially those who are not vaccinated due to underlying medical conditions, may find their own mask to be insufficient protection when meeting with others who may not be masked, including clients or visitors whose vaccination status may not be known. Offering those employees an alternative, larger work space in which to conduct their meetings with social distancing and additional air filtration can reduce that concern, without “outing” the unvaccinated employee as someone with an underlying medical condition.

• Explore team-building activities that leverage the outdoors;

o As employers look to rebuild a cohesive culture, planning activities or events outside notably reduces the risks of COVID-19 exposure and enables unvaccinated employees to participate more freely.

• Advise managers, and all employees, to be sensitive to the range of reasons why employees may choose not to be vaccinated;

o To the same extent that we ask managers to address or report instances in which employees are engaging in harassment, retaliation or other inappropriate behaviors under respectful workplace policies, we want them to similarly address or report instances in which employees are being harassed or retaliated against based on their vaccination status.

• Regularly thank employees for adhering to protocols and being sensitive to their colleagues.

o None of this is easy, the stress of the past year has been overwhelming for many, and those who are vaccinated may have limited patience for continued COVID-19 precautions. Employers that acknowledge the strain and continue to express appreciation can help mitigate the negative impact on employee morale.

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3

June, 2021

The Courts Have Awoken: Takeaways Spring 2021

After a dearth of notable caselaw over the course of the pandemic, this past quarter brought five significant decisions across New York, New Jersey and Connecticut — addressing the parameters of employer obligations to medical marijuana users, the scope of New Jersey’s Pregnant Workers Fairness Act, business executives’ liability for harassing conduct by a supervisor, and New Jersey’s ban on arbitration of discrimination claims. Our Spring 2021 issue of Takeaways summarizes all those decisions, as well as recent employment law developments in New York and New Jersey resulting from the legalization of recreational marijuana usage, further updates on the ever-evolving maze of requirements related to COVID-19, expanded protections for discrimination related to employees’ hairstyles and head coverings, and a substantial increase in the minimum wage for federal contractors, taking effect in very short order.

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29

April, 2021

Cannabis Protections – NY and NJ Take Different Approaches on Employer Obligations

By Alexandra Lapes, Esq.

On March 31, 2021, New York State joined the rising number of states to fully legalize cannabis for adult users by passing the Marijuana Regulation and Taxation Act (“MRTA”).  Enacted just a month after New Jersey’s cannabis law passed, see our previous blog article here, the MRTA clarifies and establishes workplace standards related to cannabis including the rights and protections of both employers and employees, effective immediately.  The MRTA also amends New York Labor Law to protect an employee from discrimination based on the employee’s legal use of cannabis in accordance with state law, including an employee’s use of cannabis prior to the beginning or after the employee’s work hours, off the employer’s premises, and without the use of the employer’s equipment or property.

Notably, the MRTA explicitly carves out protections for medical cannabis users and expands the state’s medical cannabis program to allow clinicians to recommend medical cannabis for any condition (previously only a limited number of diseases qualified patients for medical cannabis use).  As such, under New York’s Compassionate Care Act, employees who are “Certified Patients,” and prescribed medical cannabis are deemed to have a disability under the New York State Human Rights Law and are entitled to reasonable accommodations based on their disability. In addition, the MRTA requires medical cannabis users be provided the same rights, procedures, and protections available and applicable to injured workers under the worker’s compensation law, when such injured workers are prescribed medications that may prohibit, restrict, or require the modification of the performance of their job duties.

Nevertheless, employers are not required to allow an employee to use cannabis while at work for any reason including if prescribed by a doctor, and employers may take action against any employee related to the use of cannabis if:

  1. the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. the employee is impaired by the use of cannabis while working; or
  3. the employer’s actions would cause the employer to be in violation of federal law, or would results in the loss of a federal contract or federal funding.

“Impaired by the use of cannabis” means the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s job performance or such specific articulable symptoms interfere with an employer’s obligation to provide a healthy and safe workplace, as required by state and federal law.  The MRTA does not define “specific articulable symptoms”.

Consensus on Prohibiting Work While Impaired; Divergence in the Details of Drug Testing

The New York and New Jersey cannabis laws both permit employers to enact and enforce policies pertaining to cannabis in the workplace, and employers may prohibit the use, possession, or being under the influence of cannabis while in the workplace or during work hours.  Employees’ off-duty use of cannabis in accordance with each state law creates a protected class for employees against adverse action based on lawful consumption.  Furthermore, employers in both states are permitted to take adverse action against an employee who is determined to be impaired while engaged in work responsibilities or during work hours. However, employers may not make any hiring decisions based solely upon a positive drug test result.

Under New Jersey’s cannabis law, employers who conduct drug tests per the law’s permissible reasons may then use the results of that drug test when determining the appropriate employment action concerning the employee, provided the drug test satisfies two prescribed requirements: it is conducted with scientifically reliable objective testing methods and procedures (i.e. testing blood, urine, or saliva); and a physical evaluation is conducted by a “Workplace Impairment Recognition Expert” (WIRE).

New York’s cannabis law has no similar provision or requirements and is ostensibly silent on drug testing requirements or procedures in the workplace.  While New York City employers have been explicitly banned from conducting pre-employment drug tests for cannabis since May 2020, it is unclear for employers in other parts of New York State, under what circumstances an employer may use pre-employment drug tests (unless mandated by federal law), since a positive test result cannot serve as the basis for any hiring decision.

Key Takeaways

Employers should review and update their policies and procedures to ensure compliance with their respective state cannabis law and stay alert for further guidance on interpreting and applying these laws in the workplace.  Multi-state employers should be mindful of the key jurisdictional differences that impose greater requirements on New Jersey employers when conducting drug tests for cannabis.

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7

March, 2021

NJ Employers Need Special Expert’s Sign-Off Before Disciplining Based on a Positive Test for Cannabis

By Alexandra Lapes

On February 22, 2021, after nearly three years of deliberation, New Jersey became the 15th state to fully legalize cannabis for recreational and medical use.  That legalization process includes new employment law protections to users of cannabis products in certain circumstances and places significant constraints on drug testing of applicants and employees.

How We Got Here

During the November election, 67% of New Jersey voters had approved a ballot measure legalizing adult-use cannabis and a state constitutional amendment was adopted on January 1, 2021, pending regulation by the Cannabis Regulatory Commission to establish a regulated marketplace for cultivation, distribution, and the sale of cannabis.  However, lawmakers then discovered discrepancies in the legislation that were interpreted as legalizing cannabis for children and did not sign the cannabis measures into law until they reached an agreement on a clean-up bill.  In total, three adult-use cannabis reform measures were signed into law, namely, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA” or “legalization bill”), the decriminalizing marijuana and hashish possession bill (“decriminalization bill”), and the “clean-up bill,” clarifying cannabis use and possession penalties for individuals younger than 21 years old.

The decriminalization provisions of the cannabis bills took effect immediately upon signature.  The provisions affecting the employment relationship are not effective until the Cannabis Regulatory Commission provides rules and regulations, which is mandated within 180 days after the bill was signed into law, or within 45 days of appointment of all members of the commission, whichever is later.

Provides a New Protected Class

The NJCREAMMA prohibits employers from refusing to hire any person, or discharging, or taking any adverse action against an employee, because they use cannabis products, and explicitly protects employees from being subject to any adverse employment action solely because they have tested positive for cannabinoid metabolites.*  This is a change from prior versions of the bill, which had explicitly permitted employers to take adverse action against an employee for use of cannabis or cannabis items in certain circumstances.  While the new law thus creates a protected class for cannabis users in New Jersey, employers are still permitted to maintain drug and alcohol-free workplaces and policies, and employers can discipline employees who engage in some other prohibited conduct under the law, such as being under the influence, possessing, selling, or transporting cannabis while in the workplace.

Drug Testing Requirements

The NJCREAMMA does not require employers to drug test employees who they believe have engaged in prohibited conduct under the employer’s policy.  Instead, the law explicitly permits employers to drug test:

  • upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
  • upon finding any observable signs of intoxication related to usage of a cannabis item;
  • as random screening;
  • as pre-employment screening;
  • as regular screening of current employees to determine use during work hours; or
  • following a work-related accident subject to investigation by the employer.

The employer may then use the results of that drug test when determining the appropriate employment action concerning the employee, provided the drug test satisfies two prescribed requirements, specifically, that:

1. it is conducted with scientifically reliable objective testing methods and procedures (i.e. testing blood, urine, or saliva); and

2. a physical evaluation is conducted by a “Workplace Impairment Recognition Expert” (WIRE).

A WIRE is an individual with the necessary certification to opine on the employee’s state of impairment or lack of, related to the usage of cannabis.  To obtain a WIRE certification, an individual must be trained to detect and identify an employee’s use of cannabis items or other intoxicating substances and assist in the investigation of workplace accidents.  The Cannabis Regulatory Commission is tasked with creating minimum standards and courses of study available for full or part-time employees or others contracted to provide services on behalf of the employer, to become certified as a WIRE.

Drug and Alcohol-Free Workplaces Permitted

The NJCREAMMA states that employers are not required to amend, repeal, or otherwise affect an employer’s policy and efforts to maintain a drug and alcohol-free workplace, and employers are expressly permitted to implement and continue to enforce policies that prohibit the use, possession, or being under the influence of cannabis while in the workplace or during work hours. The NJCREAMMA also does not require an employer to permit or accommodate any personal use of cannabis activities in the workplace, and employers may take adverse employment action against any individual found to be engaging in any prohibited conduct under a workplace policy.  In addition, if the requirements of the NJCREAMMA would result in a provable adverse impact on an employer who is subject to a federal contract, then the employer may revise its employee prohibitions consist with federal law, rule, and regulations.

Questions Left Unanswered

The law is voluminous and leaves many questions unanswered about the practical implications of these new cannabis protections.  For example, if an employer suspects someone of coming to work with their ability impaired, must the employer send the employee for a drug test before taking further responsive action, or can the employer opt out of drug testing?  If the employer opts not to drug test, can it discipline or fire the person based on perceived impairment?

Clearly, if an employer does drug test, the WIRE certification is required.  However, there appear to be two competing provisions in the statute on whether a drug test is required before an employer can take any adverse employment action against an employee who comes to work apparently under the influence of cannabis.  One provision indicates that an employer is still permitted to maintain a drug and alcohol free workplace and can have policies that prohibit use of cannabis items or intoxication by employees during work hours, while another provision suggests that the WIRE certification process is not only intended for purposes of determining the reliability of a positive drug test but also to balance employers’ interest in maintaining a drug and alcohol free workplace with employees’ interest in not being improperly disciplined or discharged.

If the latter interpretation applies, then the law holds employers to a higher proof standard before taking adverse action against a cannabis user than in the event someone reports to work under the influence of alcohol.   If the former applies, then the greater protection for cannabis users only kicks in when an employer chooses to administer a drug test to an individual who is believed to be impaired, and the WIRE process essentially is meant to discourage employers from relying solely on drug tests.  Employers will need to await regulatory guidance to clarify the circumstances under which an employer needs to involve a WIRE.

Employers should review and revise their drug testing policies and procedures now to ensure they do not include any outright bans on cannabis use that are inconsistent with the NJCREAMMA and be alert for further regulations on certification standards set by the Cannabis Regulatory Commission, which may require further updates to employer policies and practices.

*Editor’s note: This article was updated 3/15/21 to correct a misstatement regarding the scope of the protection against adverse action.

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