Best Practices
for Best Employers
™
How to Become a Best Workplace Starting Today!
EAMWORK • EMPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUN
LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION • INSPIRATION • TEAMWOR
MPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUNITY • LEADERS
EAM • VALUES • VISION • MOTIVATION • INSPIRATION • TEAMWORK • EMPOWERM
INNOVATION • SUCCESS • SOLUTION • OPPORTUNITY • LEADERSHIP • TEAM • VALU
VISION • MOTIVATION • INSPIRATION • TEAMWORK • EMPOWERMENT • INNOVATI
SUCCESS • SOLUTION • OPPORTUNITY • LEADERSHIP • TEAM • VALUES • VISION •
OTIVATION • INSPIRATION • TEAMWORK • EMPOWERMENT • INNOVATION • SUCC
SOLUTION • OPPORTUNITY • LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION
NSPIRATION • TEAMWORK • EMPOWERMENT • INNOVATION • SUCCESS • SOLUTIO
PPORTUNITY • LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION • INSPIRATIO
EAMWORK • EMPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUN
LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION • INSPIRATION • TEAMWOR
MPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUNITY • LEADERS
EAM • VALUES • VISION • MOTIVATION • INSPIRATION •
September 9, 2014
Lawyers for Employers®
Dear Colleagues:
Being a “Best Workplace” can be hard work. Lane Powell; Puget Sound Business Journal; Lake
Washington Human Resource Association; and Parker Smith & Feek have joined forces to help your
business become a “Best Workplace.”
D. Michael Reilly
Director of Labor and Employment and Employee
Benefits Practice Group — Lane Powell PC
We invite you to join us for our 32nd Annual Labor and Employment “Best Practices For Best Employers™”
Seminar at the beautiful Motif Seattle. Small- and large-business owners, senior corporate executives,
corporate counsel and human resource professionals will receive cutting-edge guidance on quick-changing
employment laws. This seminar sold out last year, so early registration is encouraged.
Being caught unaware of big changes in employment laws can hurt your business. We are here to help.
You will receive thoughtful insights from experienced speakers on new developments in federal, state and
local laws that will directly impact your company. Some new developments include:
•
•
•
•
•
Nancy Kasmar
President — Lake Washington
Human Resource Association
The impact of the new recreational marijuana law in the workplace;
Changing employee benefits, given the U.S. Supreme Court’s Hobby Lobby decision;
Seattle’s new $15 minimum wage law;
New ways to address disability and pregnancy discrimination in light of recent
Equal Employment Opportunity Commission guidance; and
How the National Labor Relations Board is affecting non-union companies.
You will also hear discussions on important topics that affect your business, including:
• Mental disabilities in the workplace and how employers should address day-to-day events,
and short- and long-term disability;
• How employers can benefit from employees with mobile technology and also understand
the business risks if not handled appropriately; and
• How to address the continued surge in workplace retaliation and whistleblowing.
Lane Powell is the “Lawyers for Employers” firm that helps emerging and established businesses navigate the
employment landscape throughout the Pacific Northwest. Lake Washington Human Resource Association
is the “Super-Mega Chapter” of the Society for Human Resource Management, and has a long history of
providing thoughtful insights to current employment issues facing businesses. Parker, Smith & Feek is one of
the 100 largest insurance brokerage firms in the nation and is dedicated to protecting their clients’ assets.
We look forward to seeing you on September 9!
Edward G. Rhone, CPCU, AIC
Principal, Claims Manager —
Parker, Smith & Feek
For more information or to register for our upcoming 32nd Annual Labor and Employment
“Best Practices For Best Employers™” Seminar, please visit our website at www.lanepowell.com.
Lawyers for Employers®
Seattle’s New
Minimum Wage:
Some Myths and Facts
By Laura T. Morse
Laura T. Morse is Chair of Lane Powell’s
Labor and Employment Practice Group. Laura
advises employers of all sizes, from Fortune 500
companies to local startups, in navigating complex
employment issues. Laura has an active litigation
practice and has achieved winning dismissals
for employers on a variety of claims in both state
and federal court. She also focuses her practice on
helping employers avoid litigation, giving guidance
on handbooks, leave questions and providing
training on ever-changing employment laws. Laura
has a Yellow Belt certification in Legal Lean Sigma®
and Project Management. Laura can be reached at
[email protected] or 206.223.7063.
I
n a vote heard across the country, the Seattle City
Council unanimously voted on June 2 to raise the
minimum wage for workers in the City of Seattle.
Washington state already had the highest statewide
minimum wage at $9.32 (by comparison, the federal
minimum wage is $7.25 an hour). Seattle’s increase
put the city in the spotlight in the Wall Street Journal,
the New York Times and Fox News, to name just a few.
The “what ifs” swirled around the heated negotiations
that led up to the Council’s vote. What if the increase
would push employers to cut jobs, thereby doing a
disservice to the very employees the law was meant
to benefit? What if the people who chose to come to
Seattle to find higher-wage jobs that might not exist,
would weigh further on the City’s already burdened
social services system? What if paying a higher wage
would infuse more money into the Seattle economy,
which would ultimately benefit employers paying the
increased wage? What if paying a “living wage,” as the
proponents characterized the increase, would reduce
the reliance on social services and state benefits?
When Seattle Mayor Ed Murray signed the ordinance
into law on June 3, the discussion changed from “what
if ” to “we will have to see.” The constitutionality
of the new law has already been challenged. An
association of franchisors and franchisees and four
of its members filed suit against the City in June.
Under the law, franchisees are required to count all
employees of its franchisor’s brand (for example,
counting all McDonald’s employees nationwide even
if the Seattle franchisor only employs 10 people).
The group argues that this requirement unfairly
discriminates against franchisees, who are otherwise
small-business owners. On August 6, the group asked
the court to immediately block implementation of the
ordinance. Even if successful, however, such a ruling
would only apply to franchisees. Forward Seattle, a
local organization opposing the wage increase, sought
unsuccessfully to get the issue on the November ballot
for a vote by the people.
Consequently, employers should begin planning for
the implementation of the new law, which sees the
first wage increase go into effect on April 1, 2015. As
employers have started this process, there have been
some misunderstandings about the new law, several
of which are addressed below.
MYTH: The minimum wage in Seattle is now $15.
FACT: The minimum wage will increase
incrementally, and it will not reach $15 until 2017
(and only then for some employers who do not pay
employee medical benefits). The minimum wage is
set to increase over a period of years. The increase
will affect larger and smaller employers differently.
Employers with more than 500 employees in the
U.S. are Schedule 1 employers. The wage rate for a
Schedule 1 employer’s employee varies depending
on whether the employer pays toward the employee’s
medical benefits. Employers with 500 employees
or fewer in the U.S. are Schedule 2 employers.
(Franchisees count employees a little differently, as
further detailed in the ordinance. As discussed above,
this is currently subject to a legal challenge.) The rate
increases applied to Schedule 2 employers depend
on a number of variables. Schedule 2 employers can
also pay a minimum compensation rate rather than a
minimum wage; the former of which can include tips
and payments toward the employee’s medical benefits.
However, no Schedule 2 employer will reach a $15
minimum wage rate until 2021.
MYTH: Employers can now count tips toward the
employee’s minimum wage rate.
FACT: As noted above, only Schedule 2 employers
can take tips into account in calculating an
employee’s minimum compensation rate. In an
attempt to assuage concerns of smaller employers, the
new law permits Schedule 2 employers to count tips
toward an employee’s minimum compensation rate.
Attempts to exclude tips altogether failed.
MYTH: Schedule 1 employers that offer their
employees medical benefits can apply the lower rate
increase, even if the employee does not enroll in the
employer’s plan.
FACT: The letter of the law requires actual
payment toward the employee’s medical benefits.
SMC 14.19.030 looks to the individual employee and
provides: “Schedule 1 employers that pay toward an
individual employee’s medical benefits plan shall
pay the employee an hourly minimum wage as
follows . . . .” (Emphasis added.) The City of Seattle
may issue further guidance, but as the law currently
reads, the employer must actually make payments and
not just offer benefits.
These are just a few common misunderstandings about
the new minimum wage law. Given the complexity of
the ordinance, employers should act now to familiarize
themselves with the nuances of the law and determine
how the law will apply to them. Given the maze of
variables, it may affect employer policies, such as
paying toward medical benefits. Employers should
contact legal counsel with any questions.
Interesting Facts...
Gov. Jay Inslee has announced his renewed
focus on raising the state-wide minimum wage.
Although Seattle is the first major American city to pass a $15 minimum wage law,
San Francisco has put a similar measure on the ballot for the November 2014 election.
For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com.
Lawyers for Employers®
What Does the Recent
Hobby Lobby Decision
Mean for Washington
Employers
By D. Michael Reilly
D. Michael Reilly is a nationally recognized employment attorney, recently
recognized as one of “The Nation’s Top 100 Most Powerful Employment Attorneys”
by Human Resource Executive. He advises employers in all employment matters,
and represents employers in litigation, including ERISA and non-ERISA employee
benefit litigation. He has successfully tried over 75 jury trials, arbitrations and
bench trials, including retaliation and Sarbanes-Oxley claims. Mike can be
reached at [email protected] or 206.223.7051.
Y
ou already know that the U.S. Supreme Court issued a 5-4 decision in the
Hobby Lobby case. You may have heard a lot of commentary about the
decision. BUT — What does it mean for Washington state employers?
1. What was the controversy before the Supreme Court that affected employers?
The Affordable Care Act (ACA) and its regulations generally require employers
with 50 or more full-time employees to offer “a group health plan or group health
insurance coverage” that provides “minimum essential coverage.” Unless an
exception is applicable, the regulations issued for the ACA mandated that employers
cover 20 methods of contraception approved by the Food and Drug Administration.
2. What was the employer’s position that created the lawsuit? Hobby Lobby,
a privately held corporation, agreed to cover 16 out of 20 different contraceptive
methods. However, it refused to cover four of the 20 contraceptive methods that may
prevent an already fertilized egg from developing any further, contending it violated
religious beliefs. Hobby Lobby’s refusal to cover four contraceptive methods meant it
could be fined $1.3 million a day, or $475 million a year, under the ACA.
3. What did the Supreme Court decide? The Supreme Court majority opinion
concluded that the Religious Freedom Restoration Act of 1993 (RFRA) did not
prevent Hobby Lobby from refusing to provide these four types of contraception.
The ACA provides for exemptions from the contraceptive mandate for “religious
employers” and certain religious nonprofit organizations. The majority concluded
that owners of for-profit, privately held corporations with five or fewer shareholders
do not forfeit all RFRA protection when they operate their business in the manner
required by their religious beliefs.
4. What does the decision mean for Washington employers? More court
decisions regarding how the ACA applies to employers are coming. They will
further define the ACA and how employers and employees will be affected by
this law. For example, nonprofit religious organizations that object to covering
birth control, such as some Catholic charities or universities, can elect instead to
have their insurer or third-party administrator pay for the workers’ contraceptive
coverage. However, that work-around is being litigated and the outcome is unclear.
For now, consider these predictions:
• Expect some closely held for-profit corporations, sole proprietorships and other
associations and nonprofit corporations to file lawsuits seeking to opt out of the
ACA contraceptive coverage mandate. Many more regulations will be issued that
will affect how employers adapt to the ACA. And, as grandfathered plans are
phased out and premiums continue to rise, companies will likely decide to
challenge certain provisions. Companies may try to use the decision to deny
qualified retirement plan protections to an employee’s same-sex spouse, based on
religious objections to that marriage. The majority opinion in Hobby Lobby warns,
however, that the decision does not protect employers who illegally discriminate
against employees.
• Companies trying to opt out of certain contraceptive coverage will have to prove a
history of religiously motivated decisions in their business. An employer could
seek a declaratory judgment on the issue. Expect the Department of Health and
Human Services to issue guidance providing for-profit corporations with an
accommodation similar to that provided for nonprofit religious organizations.
An accommodation would likely be limited to only those contraceptives that the
owners oppose for religious reasons, such as the four contraceptives challenged in
Hobby Lobby, and will likely require that a corporation’s owner(s) certify religious
objections to those contraceptives.
• New rules posted July 24 by the U.S. departments of Health, Labor and the
Treasury are the first regulatory response to the decision from the court.
The document orders companies to give employees a summary of any
changes to their health benefits.
• Expect that more female employees may receive a second ID card in the mail
that can only be used for contraceptive coverage provided by the ACA that is
paid for by the insurance company and not the employer.
• Expect health insurance companies to continue to offer group health insurance
products that automatically include no-cost contraceptives for plan participants
and beneficiaries. These products probably will not allow employers to exclude
certain contraceptive services, even if the employer has religious objections to a
plan that covers such services. It is uncertain how employers, especially those with
fully insured group health plans and who have religious objections to the
contraceptive mandate, will actually avail themselves of the Hobby Lobby decision.
• Expect legislative proposals from Congress, with no immediate effect. Sens. Mark
Udall (D-CO) and Patty Murray (D-WA) recently introduced legislation that
would make it clear that no federal law permits for-profit employers to refuse to
comply with the ACA contraceptive mandate for any reason, including religious
beliefs. It is doubtful this legislation will move very quickly.
Interesting Fact...
Over 100 lawsuits by for-profit companies and over 40 lawsuits by nonprofit entities have been
filed in federal court challenging the Affordable Care Act’s birth control coverage benefit.
The Hobby Lobby decision applies to “closely held” for-profit businesses,
which make up over 90 percent of all American businesses.
For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com.
Lawyers for Employers®
How to Handle Mental
Disabilities in the
Workplace Without
Losing Your Mind
Katheryn Bradley defends employers in employment
litigation, and devotes a substantial part of her
practice counseling managers and human resource
professionals on the best practices of managing
leave and navigating through the interactive process
of accommodating disabled employees. She also
prepares executive employment agreements, effective
covenants not to compete, and trade secrets and
intellectual property agreements. Katheryn can be
reached at [email protected]
or 206.223.7399.
By Katheryn Bradley and Craig A. Day
C
onsider this scenario: In your role as a human
resources director, an accounting manager visits
you to report that her boss is having an affair with her
husband and that they are plotting to kill her or fire
her, or both. She offers no proof whatsoever, but she
demands that you immediately fire her boss or she will
report it to Jesse Jones at KING 5 News. Do you have
a modern-day Don Quixote in your workplace? If so,
what are your legal obligations?
This situation may seem far-fetched, but in fact, mental
illness is more prevalent than you may think. A 2011
national survey by the federal government reported
that one in five American adults, or 45.6 million
people, suffered from mental illness in the prior year.
Your accounting manager may suffer from a
diagnosable psychopathological condition known as
Othello syndrome, in which a person holds a strong
delusional belief that their spouse is being unfaithful
without having any significant proof to back up their
claim. What obligations do you now have under
workplace laws?
Craig A. Day focuses his practice on ERISA-related
matters, employee benefits issues and executive
compensation. He has extensive experience in
ERISA issues related to qualified and nonqualified
retirement plans and employee welfare benefit
plans, including medical, dental, vision, life
insurance and short- and long-term disability
plans. He also advises clients on issues related to
the Patient Protection and Affordable Care Act.
Craig can be reached at [email protected]
or 206.654.7819.
Washington state anti-discrimination laws protect
any person with a diagnosable disability. The
Americans with Disabilities Act (ADA), the federal
anti-discrimination law, as amended, also provides
broad protection for mental illness. Your task therefore
becomes determining whether the disability can be
reasonably accommodated without imposing an undue
hardship on the company’s operations, or whether the
employee is a direct safety threat to herself or others.
This undoubtedly will require you to seek help from a
medical professional trained in mental illness.
Accommodations can include granting leaves of
absence. Paid or unpaid leave can enable employees to
recover and seek treatment. When disabilities involve
chronic conditions, an employee may require further
accommodation to continue working. Resources are
available to employers to help identify reasonable
accommodations for challenging mental conditions.
For example, the federally-funded Job Accommodation
Network suggests that employees with disabilities that
affect concentration, including depression, Attention
Deficit Hyperactivity Disorder or short-term memory
loss can be provided tape recorders, photographs,
checklists, written procedures or other visual aids to
assist in their work. Employees with other psychiatric
disabilities can be accommodated through physical
means. For example, an employee with social anxiety
could potentially be accommodated by providing
higher cubical walls.
At the other end of the spectrum, a reasonable
accommodation could stretch as far as job
restructuring or removing marginal functions of an
employee’s position. Although an employer never
needs to reassign essential functions, reassigning
marginal functions may allow a disabled employee to
better focus on work.
With that being said, it is worth remembering that
an employer is not required to promote an employee
as a reasonable accommodation, and that moving an
employee to a different position is a last resort only if
no other reasonable accommodation can be found.
Accommodating a mentally disabled employee is a
delicate matter. An employer must walk a tightrope
between maintaining the employee’s dignity and
ensuring the workplace remains safe and productive.
Sometimes this will require the employer to remove
or even terminate an employee’s employment. Each
situation requires a case-by-case analysis, and before
disciplining an employee with a mental disability, legal
counsel should be consulted. An employer should
also keep in mind that an employee may be covered by
disability discrimination laws, but its short- and longterm disability policies and other benefit plans may
use a different definition of disability, so plans must be
reviewed independently.
Interesting Fact...
People with mental disorders identify employment discrimination
as one of their most frequent stigma experiences.
For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com.
Lawyers for Employers®
Employment Unplugged:
The Effects of Mobile Technology
on the Employment Relationship
By Jacob M. Downs and Kelly M. Lipscomb
W
Jacob M. Downs focuses his practice on employment
and business litigation, and represents many national
and northwest companies in both state and federal
court, as well as in private arbitration. Additionally,
he has obtained favorable jury verdicts and
arbitration decisions for his clients in cases involving
discrimination, harassment, breach of contract, trade
secrets and tortious interference. Jake combines his
trial counsel experience with his leadership skills as
a former captain in the United States Army. Jake has
a Yellow Belt certification in Legal Lean Sigma® and
Project Management. He can be reached at [email protected]
lanepowell.com or 206.223.7397.
ithout question, mobile technology is now a
fundamental part of our lives and it is here to
stay. As a testament to this new reality, it is startling
to learn that in 2013 the number of iPhone sales
significantly outpaced the number of babies born
worldwide! Consequently, fewer and fewer areas of our
lives are free from intrusion by mobile technology —
including the workplace.
Mobile technology is now used at almost every step
of the employment relationship. Many employers
now recruit employees using social media, and
some employers are even requiring employees to
use company-created apps to submit applications.
Employees are increasingly using their personal
and company-owned devices to work outside of the
workplace. While there is certainly value in having a
workforce available wherever and whenever, employers
should be keenly aware of the issues regarding
employee privacy, cybersecurity and data ownership.
Employee Recruiting and Applicant Screening
LinkedIn is just one of dozens of apps through
which potential employees can pursue employment
opportunities. At an Equal Employment Opportunity
Commission (EEOC) meeting in March, the Society for
Human Resource Management reported that 77 percent
of companies surveyed stated that they use social media
networking sites to recruit candidates. In fact, some
employers are taking it to the next level by creating their
own networks and mobile apps. For example, online
shoe retailer, Zappos, now requires employees to become
a “Corporate Insider” through the Zappos Web page
before the employee can be considered for a job.
Kelly M. Lipscomb focuses her practice
in the areas of labor and employment law
and business litigation. She has represented
employment clients in arbitration proceedings
and collective bargaining, and advises them in
all phases of labor and employment matters,
including wage and hour; FMLA; and sex, race
and disability discrimination issues. Kelly also
represents national companies in claims involving
consumer banking laws. She can be reached at
[email protected] or 206.223.7078.
While this new method of recruiting has benefits,
employers should be aware of the drawbacks of
gaining too much information about applicants. If
an applicant’s protected classifications are revealed
through his or her social media account, knowledge
and consideration of such characteristics may be
imputed to an employer who views the account during
the hiring process. For example, the University of
Kentucky was recently sued for failing to hire an
astronomer after the university found the applicant’s
personal website where he had posted a religious
article. (Gaskell v. University of Kentucky, CIV.A. 09244-KSF, 2010 WL 4867630 (E.D. Ky. Nov. 23, 2010).)
The university’s reasoning for the decision was because
of the applicant being “potentially evangelical” and the
potential unwanted publicity that might come with
hiring him.
Pre-employment probing through social media, while
great for gathering detailed information about how
an applicant will fit with the company culture, has
significant risks that employers should be mindful of
before employing such a practice.
Workplace Technology Practices and Policies
Gartner, Inc. researchers predict that by 2017 half of
employers will require their employees to use their
own mobile device for work purposes. The benefits of
having employees use their own device are convincing
more and more employers to adopt these practices. But,
employers must still be aware of the security and privacy
issues associated with having a “bring your own device”
(BYOD) practice.
In drafting a BYOD policy, employers should keep in
mind the following questions:
• What types of devices will the employer support
or require, and who will pay for the plans?
• How are employees’ privacy and data ownership
rights going to be protected?
• What device-monitoring and data protection
software should the employer use to protect itself
from employee misdeeds or when a device is lost?
Protecting Data When a Device is Lost or the
Employee Leaves the Company
It is important that employers monitor and regulate
not only how an employee uses a device, but also
the device itself. In response to the high rate of lost
and stolen smartphones, many products now exist to
mitigate the damage caused by such misfortune. For
example, apps are available that will “wipe” the data
on a lost device. Employers should also have strong
password policies in place and employ encryption
where necessary. When developing mobile device
policies, consider the following:
• Who owns what data on employee-owned and
company-owned devices?
• How may an employee retrieve personal data on a
company-owned device before surrendering the
device?
The risks posed by mobile device data breaches are
big business. According to InfoWorld, in the first
three months of 2014, 4,238,983 records related to
personal information were compromised due to
cyberattacks, stolen laptops and failures to encrypt
data. The Ponemon Institute reported that in
2014, companies spent approximately $3.5 million
per breach in recovery efforts. Considering the
significant financial impact even one breach can have
on a company, employers would be well-advised
to invest the resources in preventing such breaches
before they happen.
Interesting Fact...
A global survey of CIOs by research company Gartner, Inc., suggests that
38 percent of companies expect to stop providing devices to workers by 2016.
For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com.
Lawyers for Employers®
Reefer Madness:
Marijuana and the Workplace
By Michael B. Harrington
Michael B. Harrington has over 20 years of experience representing employers facing claims of employment discrimination,
retaliation, workplace harassment, wage and hour issues, and collective bargaining. He counsels employers on leaves of absence,
disabilities and reasonable accommodations, non-competition and trade secret disputes, employment contracts, reductions
in force and severance arrangements. Mike served two terms as chair of the Washington State Bar Association’s Labor and
Employment Law Section. He can be reached at [email protected] or 206.223.7050.
O
n November 6, 2012, Washington state became a national trailblazer when
voters approved I-502, an initiative that legalized the recreational use of
marijuana (Colorado passed a similar law the same day). Since December 6, 2012,
Washington state law has allowed adults over the age of 21 to possess one ounce
of marijuana. And as of July 8, 2014, adults of the legal age have been able to
purchase marijuana in state-approved retail stores. However, employees shouldn’t
break out the Doritos® just yet — employers still have the ability to enforce wellwritten substance-abuse policies. The Facts About Washington’s Marijuana Law
Medical Marijuana: The following health care providers can prescribe marijuana:
•Medical doctors (MD);
•Physician assistants (PA);
•Osteopathic physicians (DO);
•Osteopathic physician assistants (OA);
•Naturopathic physicians (ND); and
•Advanced registered nurse practitioners (ARNP).
However, it can only be prescribed for terminal or debilitating medical conditions,
including cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy,
renal failure, glaucoma, debilitating Crohn’s disease and debilitating hepatitis C.
Recreational Marijuana: In Washington, individuals that are 21 years of age or
older are legally authorized to possess and use:
•One ounce of usable marijuana;
•16 ounces of marijuana infused product in solid form or 72 ounces
of marijuana infused product in liquid form; and
•Marijuana-related drug paraphernalia.
However, any use of marijuana is still prohibited:
•In public or in view of the general public;
•At the retail shop(s) where it was purchased;
•Most hotels and other accommodations;
•Restaurants, lounges, clubs, bars, sports stadiums and concert venues; and
•All federal land, including national parks and national forests.
What Does I-502 Really Change?
There is nothing in the law that protects employee use of marijuana at work, and
there is nothing that prohibits an employer from disciplining an employee who
shows up for work with the drug in their system. Furthermore, the law does
not require employers to change their workplace drug and alcohol policies to
accommodate an employee’s use of marijuana (either medical or recreational).
In the one case it has decided on this issue, the Washington State Supreme Court
(the “Supreme Court”) has ruled that employees can be fired when they violate an
employer’s zero-tolerance drug policy.
Back in 2011, the Supreme Court provided the public with guidance on this issue
in Roe v. TeleTech Customer Care Management. The case involved a woman who
worked at a call center. Her job did not include operating heavy equipment or any
other task that would raise an on-the-job safety concern, but her company did have
a zero-tolerance policy for drugs. After the woman was fired for testing positive for
marijuana, she sued her previous employer claiming that she was legally allowed to
use the drug under the state’s Medical Use of Marijuana Act. The Supreme Court ruled that employees who legally use medical marijuana can
still be fired from their jobs if they violate an employer’s substance-abuse policy.
The court noted that there are a lot of reasons why employers have no-tolerance
policies for drugs, including workplace safety issues, productivity issues and
concerns over an employee’s health or absenteeism. While this case was decided before recreational use was permitted, it was after
medical use was legal. There is no reason to believe that recreational use would be
permitted any more than medical use.
Bottom Line: Employers have legitimate reasons for implementing and applying
policies that prohibit employee use of marijuana and other drugs. If employees
violate substance-abuse policies, then they can be legally subjected to discipline,
including termination.
Remember these key points for effective policies:
•Clearly state why the policy is being implemented. Your reason can be as
simple as being committed to protecting the safety, health and well-being of
employees and customers, and recognizing that abuse of alcohol and using
drugs compromises this commitment.
•Provide a clear description of behaviors that are prohibited. At a minimum,
this should include a statement that the “use, possession, transfer or sale
of drugs that are illegal under state or federal laws or controlled substances is
prohibited.” Try to stay away from basing violations on “being under the
influence,” as this unnecessarily complicates matters.
•Explain the consequences for violating the policy, and be consistent with
other existing policies.
•As always, consult with legal counsel to ensure your policy will accomplish
your goals and keep you out of court.
Interesting Fact...
Medical marijuana is legal in 23 states and the District of Columbia.
Recreational marijuana is legal in Washington state and Colorado with
15 other states considering marijuana reform bills or ballot initiatives.
For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com.
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Best Practices for Best Employers