Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond


Employers and Election Day: Voting Leave

Q: Now that the election is finally here, am I required to give employees time off to vote?

The answer to that question depends on which state you are in. There is no federal law that requires employers to give time off to vote, but many states do have such laws.  While the laws vary by state, in general, these kinds of laws provide that employers must provide time off to vote if employees do not have sufficient time to vote outside of working hours.  State laws vary as to whether the time is paid or unpaid, how much time must be given, and how much time is “sufficient” to vote outside of working hours.  Many states provide that employees are only entitled to voting leave if they provide advance notice to the employer.

In New York, for example, employers are required to provide up to two hours of paid voting leave to employees who are registered voters and who do not have sufficient time outside of work hours to vote, so long as eligible employees notify their employer of the need for voting leave at least two workdays before election day. If employees have four consecutive hours between the opening of the polls and the start of their work shift, or between the end of their work shift and the closing of the polls, that is considered sufficient time to vote, and leave does not need to be provided.  Employers can require that the leave be taken at the beginning or end of a work shift.  New York is the only state that requires employers to post a notice of employees’ voting leave rights.  But employers in New York must get these notices posted now, as the rules require that the notice be posted at least 10 workdays before every election and remain posted until the polls close on election day.

Pennsylvania and New Jersey do not have voting leave laws, but both states have similar laws providing that employers may not interfere with an employee’s right to vote, or use threats or intimidation to influence an employee’s vote for a particular candidate.  New Jersey also provides that, within 90 days of an election, employers may not exhibit any notice in the workplace that contains any information that could be construed as a threat intended to influence employees’ political opinions or actions.

Finally, it is important to note that while this year’s Presidential election is receiving the most attention, state voting leave laws also apply to other types of elections (general, special and primary, and ballot proposals, among others, depending on the state).

Jessica Rothenberg

Employer Planning Needed to Counter Zika and Influenza Viruses

Q.  Are there any issues I should be concerned about with regard to the Zika virus and upcoming flu season?

A.  Media attention about the Zika virus seems to have lessened now that temperatures in the Northeast have cooled.  If your business requires employee travel to Zika-infected areas, however, there are several issues for you to consider.  Zika concerns also highlight the need for employers to be prepared for issues surrounding other employee viruses, particularly as influenza season begins.

Click here to access an article by Pepper Hamilton’s Amy G. McAndrew highlighting these issues and discussing what employers should be doing with regard to Zika and other viruses.

-Tracey E. Diamond


Tolerating Tattoos in the Workplace

Q.  We have several employees with tattoos on their necks and forearms. Can we require them to cover up?

A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image.  To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?

Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring.  However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.

The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.

Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.

On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.

As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up.  Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.

-Tracey E. Diamond & LaVelle S. King

Is Obesity an ADA Disability?

Q: We have an employee who is unable to perform some of his essential job requirements because of physical limitations due to his weight.  Do we need to provide him with an accommodation?

 A: Given that almost one-third of the U.S. population is considered obese, many employers are struggling with whether to provide accommodations for employees whose weight prohibits them from performing all of their job functions. Whether obesity falls under the Americans with Disabilities Act is a hotly debated issue. Employers must juggle the cost and resources of providing accommodations with the desire to create a comfortable environment for all employees and avoid discrimination claims.

Generally, non-morbid obesity is not considered a disability under the ADA because it does not substantially limit an employee’s major life activity.  Although the Equal Employment Opportunity Commission views morbid obesity as protected under the ADA, some courts have held that morbid obesity alone, in the absence of an underlying physiological condition, is not protected under the ADA.

Nevertheless, the EEOC has brought several lawsuits in recent years on behalf morbidly obese individuals,. In Louisiana, for example, an employer paid $125,000 to settle a discrimination suit brought by the EEOC on behalf of an employee who was terminated due to her severe obesity.  In another case, a forklift operator in Texas requested a seat belt extender in order to perform his job safely.  After refusing the accommodation, and later firing the employee, the EEOC brought a discrimination suit on the employee’s behalf. The employer later settled for $55,000.

In addition to ADA considerations, companies must also consider individual state laws, which may prohibit discrimination based on obesity or require employers to make accommodations for obese employees to enable them to perform the essential functions of their job. For example, clinically-diagnosed obesity is considered to be a disability under the New York State Human Rights Law.  Likewise, New Jersey courts have found that actual or perceived morbid obesity is a protected disability under the New Jersey Law Against Discrimination.

Employers also need to be mindful of protecting employees from harassment based on their weight. According to a recent study, obese employees are 100 times more likely to experience workplace discrimination. Approximately 43% of overweight employees reported weight-related bias from co-workers and supervisors.  Derogatory comments or “jokes” about an employee’s weight may form the basis for an obesity-related harassment or hostile work environment claim.

The safest path to avoid liability is to treat requests for accommodations from employees whose morbid obesity prohibits them from performing their essential job functions the same as a request for an accommodation from an employee with another form of disability. The EEOC’s position that morbid obesity is a disability, and state laws that draw the same conclusion, mean that employers who wish to challenge morbid obesity as a covered disability face a difficult and expensive battle.

Where the accommodation is relatively easy to grant – such as a seatbelt extender – employers are well advised to provide the accommodation without engaging in an analysis of whether the employee’s weight rises to the level of a disability. If the requested accommodation would impose a more serious hardship on the employer, however, and the employer wishes to challenge whether the obese employee is disabled, the employer should assess the whether the specific employee is rendered disabled by his or her morbid obesity, i.e., whether he or she is impaired in a major life activity (such as sleeping, walking, etc.).  The employer may request a health care certification from the employee’s physician to evaluate whether the employee is disabled and to obtain specific information about the employee’s limitations.

Keep in mind that morbidly obese employees often suffer from other medical conditions. The employer therefore needs to assess the effect of the totality of the employee’s medical condition to determine whether that employee is disabled and precisely what restrictions the disability places on the employee’s ability to perform his or her job duties.  If this analysis leads to the conclusion that the employee is disabled, then the employer is required to engage in the interactive process with the employee to determine whether there is a reasonable accommodation that would enable the employee to perform the essential functions of his or her job without causing an undue hardship to the employer.

Regardless of whether obesity is considered to be a disability, employers should train employees not to make derogatory comments or jokes about a coworker’s weight. Employers would be wise to take precautions to ensure that the workplace is free from harassment based on all disabilities, including morbid obesity.


– Matthew V. DelDuca, Tracey E. Diamond and Kavida Gobalasingham