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Thursday, May 23, 2013

Medical Marijuana in the workplace

On Thursday, May 2, 2013, Governor O’Malley signed into Maryland law restricted use of medical marijuana. Academic centers will be allowed to apply to a commission to distribute marijuana grown by federally or state licensed growers.

Marijuana is still considered illegal under federal law. As with other states that have passed similar legislation, Maryland is now thrust into the debate of federal jurisdiction over the states. Employers are also in this mix when they discover employees who are prescribed marijuana for medical conditions and are violating company policy.

Maryland became the 19th state to legalize medical marijuana, although the program will not be implemented until 2016. Supporters of medical marijuana do not consider Maryland’s passage of a law a victory. Maryland’s law is more research based and does not allow for growing or dispensaries as in other states. Further, it will be difficult for patients to obtain. For these reasons, Maryland employers may not have to worry about this issue for quite some time. While we wait, we can watch how the topic plays out in the courts.

The first of what will most likely be many challenges has already occurred. The Colorado Court of Appeals recently upheld the firing of a man who failed an employer random drug test for marijuana use. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supports employer rights to enforce their drug policies.

Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient because he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case is the first to look at whether off duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off Duty Activities Statute. This statute states that employers cannot fire employees for doing legal activities while not at work.

Colorado has had medical marijuana laws since voters passed a constitutional amendment in 2000. In November 2012, Colorado became the first State to have the medical marijuana laws upheld by the voters.

Court of Appeals Chief Judge Janice Davidson wrote in the opinion, “While we agree that the general purpose of (the Lawful Off Duty Activities Statute) is to keep employer’s proverbial noses out of an employees off-site off-hours business, we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.”

Employers have little authority in controlling employees off duty activities when those activities are legally conducted. When the activities are illegal, violate established company policies, affect performance, or directly reflect on the company, then the employer has cause to take action.

Currently, Maryland does not have a law similar to Colorado’s  “Lawful Off Duty Activities Statute”. Maryland is an employment at will State, meaning in the absence of an express contract, agreement or policy, an employee may be hired or fired for almost any reason, or for no reason at all. Of course, there are exceptions based on discrimination, retaliation, denial of employee rights, etc.

The Colorado ruling was big for employer rights. It will be interesting to follow employer/employee interactions and challenges to the medical marijuana issue from the labor angle.

Mazzella-Investigative Solutions

Thursday, May 16, 2013

Maryland bans the box

In February I posted about Tampa being the latest city to pass “ban the box” legislation. Since then, Maryland has joined seven other states by recently passing legislation that removes the criminal conviction question from state employment applications. Maryland’s governor signed the bill into law on May 2, 2013 and it will take effect October 1, 2013. Currently, there are fifty cities or counties nationwide with similar laws and legislation being heard in more jurisdictions each year.

The Maryland law applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview.  Exempt from the law are positions in the Department of Public Safety and Correctional Services.

Other States with statewide laws are:
California-state employment
Colorado-state employment
Connecticut-state employment
Hawaii-public and private employment
Massachusetts-public and private employment
Minnesota-state employment
New Mexico-state employment

The National Employment Law Project estimates that there are 65 million Americans with criminal records. The interest in employers to conduct background checks also continues to grow. It is reasoned by supporters that many qualified workers are not given the opportunity for employment. In this digital age of job application submission it is difficult enough to clear the candidate filtering process. Applicants are grateful for a chance at a face to face interview. Those with criminal records would like the opportunity to address the issue and not be judged on the record alone.

Most jurisdictions’ laws regulate government hiring. With some exceptions, the city/county laws apply to government applicants or vendors. Hawaii and Massachusetts laws apply to public employers as well as state. As the interest in such laws continues to grow, all levels of government are hearing legislation. The U.S. House of Representatives heard a proposed bill in 2011. Yearly, this issue is raised in state legislative and city/county council sessions throughout the country. In early 2012 there were 32 jurisdictions and as of April 2013 there are fifty.

Many public companies have not removed the question, but have deferred background checks on applicants until after the interview process. Others have voluntarily removed the question. Either way, private employers have to pay attention and adjust to the ever changing landscape of the hiring process.

Visit our site to review the new Maryland law 

Monday, May 6, 2013

Providing a safe work environment

            Providing a safe work environment is the responsibility of every employer. The Occupational Safety and Health Act of 1970, requires employers to provide employees with working conditions that are free from known dangers. Most associate OSHA with the physical hazards associated with occupational safety and health issues, which is correct. However, there is more involved than protecting against physical hazards. Who you hire, protecting against workplace violence, and being prepared for acts of violence in the workplace are all components of a safe workplace.
Hiring the right person for the job is the one component that is often overlooked. Why should you do employee screening? The expense of making a bad hire is generally three times the salary of the job in question. One third of all resumes have some lies, so you need to ensure the applicant is who they say they are. Workplace violence amounts to 18% of all crime. Those with a propensity for violence can be discovered before they’re hired. Workplace accidents can be reduced because the applicant was thoroughly vetted and has the skills for the job.  Liability. Employees or others who may be harmed by an under qualified or violent employee can sue the employer.  The safety of all involved is put at risk when the employer does not check into the applicant’s background.
Safe working conditions are always on employer’s minds. The impetus behind the Occupational Health and Safety Act was to prevent workers from being killed or injured while at work. The U.S. Bureau of Labor and Statistics reported over 4,000 deaths attributed to workplace injuries in 2011. Private sector injuries had an average of eight days of work missed. Assessments of the workplace are necessary and constant.
Just because a condition was fine today doesn’t mean that conditions will not change. Employees have to know why policies are in place and understand the reasoning behind the policy. They also have to see that management takes safety seriously and practices the safety policies. Employees have to be trained on all machinery. If it is determined that personal protective gear is needed to reduce injury, employees have to be provided the necessary PPE as well as be trained in its use. Whenever there is an incident, the employer should determine the cause, provide solutions, corrections, and retraining so that further exposure to an unsafe condition is removed.
Workplace violence can happen anywhere to any type of business. Whether a disgruntled employee or customer, or the perpetrator chooses your business to commit the act, the possibility has to be considered. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries, of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides. Homicide is the leading cause of death for women in the workplace.
First, it must be understood that individuals do not “snap”. Studies have shown that individuals who commit acts of workplace violence are set on a pathway to violence well before the act occurs. There are indicators that the person’s life is going off track and these indicators are manifested in daily interactions. Changes in mood or mood swings, becoming introverted, violent outbursts, or other changes in personality may indicate that something is wrong. Talking about violence and threatening others, or property destruction, and strange computer activity may be more indicators. Bear in mind that not one action may indicate that someone is about to act out, but changes should be noted. The decision to act is usually caused by a triggering event. Triggering events are usually a perceived wrong against the person or an attack on their ego, such as loss of financial stability, divorce, loss of promotion, or being overly disciplined.
            Employers should have policies and plans in place to deal with workplace violence. Employees need to feel confident that they can report abnormalities and that action will be taken. They should be trained in how to deal with violent employees and evacuation methods. Security strategies used to prevent crime against the business work well in preparing the environment for acts of violence. Security doors and cameras, clear line sight throughout help identify and prevent against potential threats. Employers should know their employees and be able to identify when something just isn’t right. Simple intervention and counseling early on could prevent acts of violence.
Providing a safe work environment is not just about working conditions. Employers have to take into consideration all the factors of workplace safety: Hiring, Safe conditions, and Workplace violence. Simple prevention strategies, employee training, and response may save lives and keep the employer out of court.