Tag Archives: Medical Marijuana

Employers and Florida’s New Medical Marijuana Law

On June 23, 2017, Florida Governor Rick Scott signed into law a bill implementing the state’s medical marijuana constitutional amendment. You can view the full law here. The new law provides some clarity for employers. The statute provides, in relevant part:

This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

Although this law fails to specifically state that an employer is not required to provide any type of accommodation to employees relating to the use of medical marijuana, it does directly address several employment related questions that have made employers a little uneasy ever since voters made medical marijuana part of the Florida constitution in 2016.

Beyond the Hemline: Using Fashion to Recognize Employment Law Issues in the Workplace

There is a well-known saying that a person’s eyes are the keys to the soul. In the employment context, fashion choices are often keys to employee issues that not only impact employee performance and productivity, but also (should) alert employers to issues that, if not properly handled, will lead to legal liability. It may sound odd, but fashion in the workplace often provides insight into issues that implicate important employment laws, and employers should know what to look for.

When I say fashion in the workplace, I am not talking about the fashionista boss with unreasonable expectations from the 2006 movie The Devil Wears Prada (although that character has some amazing clothes), I am talking more along the line of Peter Gibbons from Office Space (1999). Peter stops coming into work on time, and when he does come in, he is dressed in casual clothing and even wears flip flops. Seriously folks, no one at Initech wondered what was up with Peter? No one investigated? I love the film, but in my Board Certified Labor and Employment attorney opinion, that is really a major plot flaw.

Consider how fashion and employment law are tied in the following scenarios:

  1. On his fifth anniversary with the company, Bob comes to work in a dress and asks to be called Barbara.
  2. Sue shows up to your conservative workplace on a Monday covered in tattoos.
  3.  Joe shows up to work wearing clothing with politically charged statements.
  4. You have an employee whose religious garb violates your company’s dress code policy.
  5. A pregnant employee comes to work with a photo of a pot plant on her shirt.
  6. Jane, who usually comes to work really put together, comes into work several days in a row wearing over-sized clothing and heavy makeup.
  7. You have an employee that appears to be wearing the same three outfits over and over.

Do you know how to properly handle these situations? Are you aware of what laws may be implicated by each? If you are interested in learning more, on Saturday, May 6, 2017, join me and another Sarasota-area employment lawyer at the Holiday Inn Lido Beach from 9:00 a.m. to 12:00 p.m., where participants will be part of an interactive presentation, including a fashion show presented contemporaneously with each scenario, that addresses the above situations (and others) and, in doing so, will review the basics of several labor and employment law issues, including but not limited to:

  • Religious Accommodation
  • Florida Domestic Violence Leave
  • Family Medical Leave Act
  • Americans with Disabilities Act
  • The Transgender Workforce
  • Gender Bias
  • Medical Marijuana
  • Employment Policies
  • Political Discourse in the Workplace

Although this presentation has been arranged by the Florida Association of Legal Support Specialists, it is open to anyone interested in attending. It has been approved for three General CLER credits. In addition, both HRCI and SHRM have confirmed with the Association that non-pre-approved attendees can obtain certification credits by directly requesting credits from the organizations using the information provided on the Attendance/CLE Certificate provided the day of the event.

Please visit falss.org for more information and to register.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Predicting the Unpredictable: Labor and Employment Law in 2017 (Part Two)

This post is part two of a two-part series. Catch up on part one here.

Several of the biggest employment law matters in 2016 were the Department of Labor’s overtime regulations, Florida’s medical marijuana law, LGBT rights, and changes to the joint employer relationship. It is expected that each of these issues will continue to hold the limelight in 2017.

DOL’s Overtime Regulations – Since March 2014, when President Obama issued a Memorandum to the Secretary of Labor directing the Secretary to “modernize and streamline existing overtime regulations,” this has been a hot topic. The discussion has moved from what the regulations will be, to what will happen with the Department of Labor’s appeal of the temporary injunction prohibiting the implementation of the rule.  Oral argument has not yet been set. Thus, the new administration could withdraw its appeal of the temporary injunction, leaving the lower court’s decision intact. If Puzder does take the reins of the DOL, it is likely that this will occur, as he is on record stating that the 2016 overtime regulations diminish opportunities for workers.

Florida’s Medical Marijuana Law – This past election Florida’s voters approved medical marijuana for treatment of certain health conditions.  Although the state has already issued seven licenses for growing marijuana and some of the businesses with licenses are already starting to plant crops, it will not be until summer 2017 that regulations implementing the voters’ directive will be released. Many counties and cities in the state, including Sarasota County, Manatee County, Hillsborough County, Pasco County, and the City of Bradenton, have or are considering instituting temporary bans of the drug until the state’s regulations are issued and/or local zoning and building regulations are implemented.

Even though it is clear from the text of the constitutional amendment that employers will not be required to allow employees to use marijuana at the workplace, there will still be questions regarding zero tolerance policies, Florida specific drug testing, and reasonable accommodation under the Florida Civil Rights Act (arguably the ADA, a federal law, would not require an accommodation that involves a federally prohibited substance). Further, although marijuana (and CBD/hemp oil) may be approved for limited use in Florida, what the voters approved this past election is in direct conflict with the federal Controlled Substances Act. In addition, on January 13, 2017, the Florida’s legislature’s 2014 approval of limited use of CBD will be in direct conflict with the Drug Enforcement Administration’s new rule making CBD a schedule one controlled substance.

State laws will not protect businesses, including those licensed by the state to grow marijuana, from federal prosecution. If Sessions takes over the DOJ, he could overrule the 2009 directive to U.S. Attorneys not to prosecute violations of the federal drug laws when the acts being prosecuted are legal under state law. If this occurs, the federal government could thwart business opportunities in the marijuana industry and put many people in jail.

LGBT Rights in the Workplace and in Places of Public Accommodation – In the last few years, both the Equal Employment Opportunity Commission and the DOJ have taken serious efforts to expand protections afforded to members of the LGBT community. The EEOC’s 2017 Strategic Enforcement Plan indicates that providing this group protections under Title VII will remain a priority. However, depending on who is chosen to lead the EEOC, this focus could change and this aspect of the strategic plan could be ignored. Similarly, with Sessions in charge of the DOJ, a roll back in efforts to use public accommodation laws to provide greater protections to transgender persons is likely to occur.

Joint Employer Status – Recently both the EEOC and the National Labor Relations Board have broken with their own long-standing standards of what constitutes a joint employer, with both agencies expanding their standards to cover a greater number of relationships. The NLRB went as far as to redefine the joint employment test in place for over 30 years. In the past, a joint employer relationship existed when two entities shared or codetermined the essential terms and conditions of the workforce. Thus, for two entities to be considered joint employers, both had to exercise some control over employees’ terms and conditions of employment. However, with the 2015 Browning-Ferris decision, the NLRB removed the actual exercise of control as a requirement and instead focused on whether each entity has a “right to control” regardless of whether that right is ever used. Because of the five-year staggered terms of board members and the fact that a change at the Board level is made through interpretations of the NLRA, the impact of the new administration on this standard will most likely not be immediate. Instead, the NLRB’s new joint employer standard is already being challenged by Congress, and if a bill is passed overriding the NLRB’s new standard, it is likely that the new President will sign the bill.

Aside from the foregoing issues, there are also several other matters that will probably be of interest in 2017: Will Obama’s executive orders for federal contractors regarding minimum wage and paid sick leave stand? Will the new administration continue to push for fair pay? Will we see an increase in INS investigations of undocumented workers? Will the new administration attempt to undo the NLRB’s quickie election rules?

If only we had Dr. Who’s Tardis so we could travel to the future and see for ourselves. Whether the changes will ultimately be positive or negative for employers in 2017 is yet to be seen. Regardless, we are guaranteed a year full of activity in the employment law arena.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558