The legalization of medical and recreational marijuana is leaving many employers shifting on unsteady and unfamiliar ground. Employers have rights and responsibilities; let us help you with the changes coming. The recent amendments involving the use of marijuana in Missouri and Illinois are not unique; 33 states have legalized marijuana for medical use and 11 states have legalized its recreational use, although there is still a federal ban on the substance.
We address issues, cases and matters of statutory and regulatory compliance of employment law that can impact a business' growth and profitability.
Regis Corporation, dba SmartStyle, has agreed to pay $60,000 in damages and back pay to a former employee to settle a lawsuit that was brought by the EEOC in the Western District of Texas. Regis’ employee worked as a hair stylist. Due to her claustrophobia, she could not work at a salon station if it was in a confined space located between others. The EEOC claimed in the lawsuit that Regis violated the ADA when it refused to accommodate the stylist’s claustrophobia and then fired her.
By Courtney Cox
Jack Brown had worked for the City of Anderson Transit System (CATS) for many years as a bus driver and then a dispatcher. When the mayor’s election caused a change from one political party to another he was demoted to a mechanic’s helper. When the political winds blew in his favor after the next election, Brown was promoted to a street-supervisor position. In this position Brown made sure the drivers left the bus garage with the requisite paperwork and operational vehicles.
Along the way, before he was promoted to the street-supervisor position, Brown developed diabetes and was unable to maintain his commercial driver’s license (CDL). The street-supervisor position job description required the person holding that position to have a CDL.
When the political winds blew ill again and a mayor of the opposite party was elected, Brown was fired from the street-supervisor position. His termination notice listed his inability to obtain a CDL as required in the job description as the reason for his discharge. An employee is only a “qualified employee” under the ADA if he or she can perform the essential functions of the job, with or without accommodations.
Brown sued the city for failing to accommodate his disability in violation of the Americans with Disabilities Act. The jury sided with Brown on his ADA claim and awarded him damages. The city appealed, pointing to the job description as proof that holding a CDL was an essential function of the job which Brown could not perform.
The Seventh Circuit said not so fast. The job description is merely one of several factors court considers when determining whether a job function is essential. The court also considers other factors –
• The employer’s judgment as to which functions are essential
• The amount of time the employee spends on the job performing the function
• The consequences of not requiring the employee to perform the function
Here, the job function at issue was driving the bus, which Brown could not do without a CDL. The Court noted Brown’s supervisor admitted he knew Brown did not have a CDL when he promoted him, indicating the employer did not consider the function of driving to be essential. Brown testified he had worked in the job for four years and never had to drive a bus, indicating he spent no time on the job performing this function. Finally, the court noted testimony that when a replacement driver was needed one could be obtained in 10 minutes, so the consequences of Brown not driving were minimal.
In the end, the Court affirmed the jury’s decision, noting that the issue what is an essential job function is a question of fact for the jury.
Brown v. Smith, et al, No. 15-1114 (7th Cir. June 28, 2016).
A recent federal circuit court of appeals decision shows a growing change in how courts define an “employer” for the purpose of establishing liability under the Family and Medical Leave Act ("FMLA").
As discussed in an earlier blog article, the EEOC takes a dim view of employer wellness programs to the extent they “encourage” participation through monetary penalties. As part of its wellness program, Honeywell encouraged employees and their dependents to participate in a biomedical test which would analyze a blood sample for, among other things, cholesterol, glucose and nicotine levels.