Marijuana Enjoys Largest Electoral Victory Since 2012

Voters in California, Massachusetts, and Nevada approved recreational marijuana, while medical marijuana gained approval in Florida, North Dakota, and Arkansas.  Given the heavy support nationwide and ongoing speculation regarding federal approval, it will be interesting to see how Trump’s election affects this national trend.

An Intimate Look at Fear with Deirdre Kamber Todd

(Dec. 12, 6:30) — Channel 69 News and the Wisdom Coalition have interviewed Deirdre Kamber Todd for an intimate look at how fear affects our lives.  Whether at work or at home, fear can become a wall against which we feel powerless, preventing us from becoming our best selves.  Along with Nancy Werteen, Kim Howie, and a therapist specializing in fear, Deirdre takes us down an intimate fearjourney of the fear she developed after 9/11 and how she set a plan in motion to defeat her personal demon.  The segment will be aired on December 12, at 6:30 on Channel 69; don’t miss it!

Deirdre Kamber Todd to present as keynote at the Lehigh Valley SHRM Conference

Deirdre Kamber Todd will be presenting as a keynote speaker on hot EEOC trends at the SHRM Lehigh Valley’s 2016 Conference, #HRLegalTrends,  on October 3 and 4, 2016, at the Best Western in Bethlehem, PA.  If you haven’t signed up for the conference, the event is full, but you can still put your name on the waiting list by contacting admin@SHRMLV.org.

LGBT Employment Protection Trends under Federal and State Law

Over the last decade, we have witnessed a trend toward legal protection for individuals who are lesbian, gay, bisexual and transgender (“LGBT”) in most facets of life, including marriage, adoption, education, and housing.   Twenty-two states protect against sexual orientation discrimination and the nineteen states protecting against gender identity discrimination.  Yet, federal protection from employment discrimination remains out of reach for most LGBT Americans.  To address this deficiency, in 2012, the Equal Employment Opportunity Commission (“EEOC”) created a strategic plan to integrate LGBT rights into the protections afforded by Title VII of the Civil Rights Act (“Title VII”).  Although Title VII does not explicitly include LGBT rights, it protects against gender discrimination and harassment “because of­…. sex,” an obvious component of many LGBT discrimination cases.  Quoting Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The EEOC has adopted the view effectively that LGBT discrimination falls wholly under Title VII’s protections; the courts, however, disagree.  In Hively v. Ivy Tech Community College, a recent case rejecting protection of sexual orientation inclusion under Title VII, the Court explained “[p]erhaps the writing is on the wall for a change in federal law, but that change must come from Congress or the Supreme Court.” No. 15-1720 (7th Cir. July 28, 2016, order corr. Aug. 3, 2016)(hearing en banc requested, August 30, 2016).   

In order to reconcile the challenge of protecting gender discrimination while excluding LGBT status under Title VII, the courts are requiring plaintiffs to break gender discrimination cases into minute elements to prove them relevant to the law.   Once asserted sex discrimination claims now require intricate elements of “sex stereotyping,” “gender classification,” “perceived sex norms,” “termination for processing transgenderism,” “non-conformity with gender-based expectations,” “preoperative transgenderism,” “gender status,” and others.  Some of these cases are enjoying success:  claims based on an individual’s “gender status,” “perceived sex norms,” or “actions in non-conformity with gender-based expectations” often yield positive results, whereas cases predicated on sexual preference harassment, showering at work, and preoperative transgenderism often remain unprotected.

While the EEOC remains enthusiastic about litigating these cases, the same cannot be said of the Pennsylvania Human Relations Act (“PHRA”).  The PHRA does not protect against LGBT discrimination.  Instead, LGBT protections have only emerged through local laws and by executive order in Pennsylvania. As of 2016, local ordinances protecting LGBT rights have been passed in fifteen Pennsylvania cities, twenty-one towns, and two counties.   In April 2016, Governor Wolfe signed two executive orders expanding LGBT protections for state workers (HB 1510) and for companies who contract with the Commonwealth (SB 974); they have yet to be passed into law.

The legislative resolution to this issue has been available to us for more than two decades.  The federal Employment Non-Discrimination Act (“ENDA”) has been proposed, and debated, by every Congress since 1994.  ENDA would provide protection from discrimination in employment on the basis of sexual orientation or gender identity by employers with at least fifteen employees.  Despite significant support, ENDA continues to elude the necessary votes to become law.

Thus, until Title VII is amended, ENDA is passed, or federal protections are reconciled by the courts, we will have little choice but to continue to compare apples to apples, while naming them oranges for the sake of the preserving Title VII’s stated purpose.

Legalization of Medical Marijuana: What It Means for Pennsylvania’s Employers

 

On May 17, 2016, Act 16, Pennsylvania’s Medical Marijuana Act, was made law thereby making Pennsylvania the 25th state to legalize the drug for healthcare purposes.   

What Act 16 Does.  The law legalizes marijuana use for qualfiying medical conditions for Pennsylvania residents[fn1] and offers non-discrimination employment rights for these qualified patients.[fn2]   Patients approved for marijuana use by the DOH will be given a medical cannabis registration card which will be essential to be afforded any protections of law.  Access to medical marijuana will be offered only for certain identified illnesses and only through certain forms of THC ingestion.  Act 16 also gives doctors and growers a limited, legal means to produce and provide marijuana to qualified patients. 

What Act 16 Doesn’t Do.  The law does not allow for marijuana to be used for recreational purposes or to be smoked (even for medical purposes).[fn3]  The law will not protect impaired employees at work who test positive for marijuana or whose work product falls below acceptable standards.  The law does not require health insurers to pay for medical marijuana and it does not require employers to accomodate employees at the workplace with respect to the drug.

Analysis.  Boiled down, the new state law should balance individual and employer rights fairly well. The immediate question is whether employers will be obligated to accommodate qualified employees who self-medicate outside of work under the PHRA.   Ideally, the regulations will clarify exactly what is expected of employers, but, of course, we will have to wait and see.

[Fn1] Qualifying Medical ConditionsThe law approves treatment for Pennsylvania residents with a terminal illness or if he or she suffers from cancer, HIV/AIDS, amyotrophic lateral sclerosis, Parkinson’s disease, multiple sclerosis, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, glaucoma, autism, sickle cell anemia, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, and severe chronic or intractable pain of neuropathic origin, or if conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.  Patients registered for medical cannabis in another state are not allowed access to medical cannabis in Pennsylvania. 

[Fn2]Legal ProtectionsA patient must be registered with the DOH in order to be legally protected from marijuana-related arrest, prosecution, or discrimination in child custody. Employers also may not discriminate against patients for their “status” as registered patients.  These protections, however, are not absolute:

  • Employers are not required to accommodate employees with respect to the property or premises, including for on-site use.
  • Employers are not required to violate federal law (e.g. through federal contracting) to assist employees.
  • Employers are entitled to maintain a safe workplace:
  • Employees with more than 10 nanograms* per milliliter of THC in their blood in serum may not operate or be in physical control of (a) chemicals that require a federal or state permit, (b) a high-voltage electricity, or (c) other public utility.
  • Employers may discipline employees for “being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”
  • Employers may prohibit employees from performing mining or any other “employment duties at heights or in confined spaces” while under the influence of marijuana.
  • Employers may prohibit employees from performing any task which the employer deems life-threatening to the employee or other employees while under the influence of marijuana. In addition, “[t]he prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”

[Fn3]Method of Ingestion.  The only types of medical cannabis allowed initially are pills, oils, gels, creams, ointments, tinctures, liquid, and non-whole plant forms for administration through vaporization:  no smoking or edibles are currently permitted.  Medical access to marijuana may be limited to a thirty day supply.

 

Deirdre Kamber Todd, Esq., is a partner with the Kamber Law Group P.C. For more information on employers’ rights, marijuana laws, or other business related matters, please contact The Kamber Law Group, P.C. at 484.224.3059 or jhanchett@kamberlegal.com.