Employment Policies Against Medical Marijuana
This past February, the first medical marijuana dispensaries opened in Pennsylvania. Over 13,000 patients already have been certified for medical marijuana treatment. Pennsylvania patients who have a prescription for medical marijuana may receive the treatment in the form of pills, vape pens, oil and tinctures. Marijuana remains illegal in the dry leaf, flower, or edible forms in the state.
Patients diagnosed with one of the 17 currently approved serious medical conditions can receive a prescription for medical marijuana as a treatment for their condition. The approved medical conditions include cancer, glaucoma, epilepsy, Huntingdon’s Disease, and Parkinson’s disease.
Doctors also can prescribe medical marijuana to treat the chronic pain associated with certain medical disorders such as fibromyalgia. For many patients, medical marijuana is a preferred treatment over other medications, which can have serious side effects such as seizures or an increase in suicidal tendencies.
Employment Drug Testing and the Use of Medical Marijuana
Employment drug testing may occur as part of a pre-employment physical, randomly, or when there is a suspicion of drug use. Many companies adhere to a strict policy, where a positive test for marijuana, regardless of whether the individual has a valid medical marijuana prescription, would constitute a “failed” test. This could result in employee discipline, including suspension, loss of pay, and even dismissal from the job.
When a patient feels that medical marijuana is their only viable treatment for their medical condition, this could put the individual in a position where they feel that they must choose between their employment and health.
While an employer cannot fire an employee for simply being a certified medical marijuana patient, employers do have the right to enforce a drug-free workplace. This is particularly true in the case of federal contractors.
Marijuana impairment is usually proven by the results of a blood test that is administered within one or two hours of ingestion. Urine testing will only screen for the presence of tetrahydrocannabinol (THC) metabolites, which does not give accurate information about true impairment. Patients medicating with medical marijuana each day will have high levels of THC metabolites, even if they are not using the medical marijuana on the job site.
Most major drug testing agencies such as Quest Diagnostics do not have a process in place that could verify a medical marijuana recommendation during the administration of a workforce drug test.
Employee Rights and Medical Marijuana
In some companies, a medical review officer will conduct an investigation, including an interview with the employee, when a positive drug test result is found. At that time, the employee can provide an alternative medical explanation for the positive test results.
While this system has been effective with respect to the use of certain prescription medication, it does not appear to work the same in the case of certified medical marijuana. It is more difficult for a physician to properly determine if the employee is actually using the medical marijuana consistent with their medical prescription.
Until Pennsylvania employment laws begin to reflect the new reality of medical marijuana use, there are no clear answers as to an employee’s rights with respect to drug testing. Patient advocacy groups such as Pennsylvania Compassionate Caregivers point out that this issue will continue to arise, as most individuals using medical marijuana for treatment are employed. Medical marijuana generally is not covered by medical insurance and therefore must be paid out of pocket – which usually means the patient has a steady source of income.
If you are an employer who needs additional information about the consequences of drug testing employees, an experienced employment attorney at MacMain Leinhauser is here to help. Contact us at 484-318-7106 or submit an online inquiry form.
Reducing Bias in the Hiring Process
In many industries, the standard hiring process is clouded by unfair and unseen biases. Employers may be unconsciously hiring certain individuals over other individuals on the basis of race, nationality, ethnicity, gender or age. Companies who have biased hiring processes, even if such biases are unintentional, can face a wide range of legal problems. To reduce liability exposure and to ensure that the best candidates are chosen for a position, there are several action steps companies can take to reduce unconscious bias in their hiring process.
Recognize the Problem
Educating managers on the inherent bias in their practices or procedures is the first step in changing a company’s hiring culture. Managers may not realize that they have developed a narrow view of the position for which they are hiring. Proper education about the problem of bias can be an effective, proactive step in developing a company strategy for reducing hiring bias. Bias awareness training is being offered by more companies. When companies recognize that biased hiring has a detrimental effect on the diversity, recruiting efforts, promotion rates, and staff retention, they are more willing to take steps to eliminate it.
Examine Job Description Language
Job descriptions should include language inclusive of the natural strengths of both men and women. Studies indicate that the use of stereotypical masculine or feminine words can influence whether applicants of a gender apply for the position. Job descriptions should strive to be inclusive of a balanced number of gendered adjectives and verbs. For example, many individuals naturally associate words implying competition and drive to male employees. Words that invoke feelings of empathy or cooperation are more commonly applied to female employees. By replacing gender associated words with neutral words, companies can avoid subtly casting certain positions as either male or female.
Use a Blind Hiring Process
Software programs can be used to create a blind hiring process where the demographic characteristics of the applicant are not made known. This can ensure a more systematic process where an individual’s name, age, or other surface information does not overshadow their qualifications or talents.
Standardized Job Interviews and Work Sample Tests
Many companies use both work sample tests and interviews as part of the hiring process. When interviews and tests are unstructured or subjective, it can lead to subtle bias. Work sample tests should focus on skill sets that allow the company to examine the quality of the candidate’s work. Effective work sample tests will mirror the types of tasks that the candidate would be asked to perform should they obtain the job. Interviews should be both structured and standardized to allow for independent data on qualities essential to the position. When an interview lacks defined questions about an individual’s experience or expertise, bias is more likely to occur.
Make Diversity a Company Goal
For companies that have identified a bias in their hiring process, making diversity a company goal can have significant business advantages. Encouraging managers to overcome their natural bias can result in a larger applicant pool and hiring more qualified employees in the future. Many companies have recognized the creative benefits that come with hiring employees with diverse perspectives.
To learn more about how bias in the hiring process could be affecting your business, schedule a consultation at MacMain Leinhauser today by calling us at 484-318-7106 or submit an online inquiry form.
A Needed Change in Restitution Laws in Pennsylvania
The state of Pennsylvania has a loophole in its restitution laws stating that only an individual can be a victim of a crime and receive reimbursement for losses stemming from a crime. A 2016 Supreme Court ruling narrowly defined a victim in this way, leaving entities such as townships and non-profits to suffer the consequences.
Recently, Bethlehem Township was allegedly scammed by two businessmen hired to replace the townships streetlights. They collected $832,000 from the township without producing the agreed upon streetlights. Both men are serving sentences, but they appealed their court-ordered restitution and won when the state circuit court cited the 2016 Supreme Court ruling. There is no legal way for Bethlehem to collect the money that was stolen from the township.
Other Pennsylvania non-profits have learned of the loophole the hard way, including the First Presbyterian Church of Easton, whose former treasurer has admitted to stealing $362,000 over several years. The woman was convicted in 2014 and sentenced to a minimum of nine months in prison. She is now taking advantage of the State Supreme Court ruling and appealing her court ordered restitution. To date, her appeal was denied, but given the precedents that have already been set, she could prevail. The pastor of First Presbyterian said the congregation and its community programs still feel the crippling effects of the theft.
Pennsylvania Legislature Steps In
The Pennsylvania legislature is poised to do something about the problem as the Senate Judiciary Committee considers closing the loophole with bill 897 that has been pending since September of last year. Similarly, the proposed fix House Bill 1806 passed last year and was sent on to the Senate in October but has yet to be reviewed. At a news conference where he appeared together with members of First Presbyterian church, Northhampton County District Attorney, John Morganelli, observed that the legislation has bipartisan support and said that the ambiguity of the current law hurts thousands of crime victims in Pennsylvania every day.
The attorney representing the former treasurer of First Presbyterian argued that debts should be managed by a debt collector and not through court orders. However, victims may have difficulty recovering payments though a debt collector and may not have the time, energy, and resources to file lawsuits to chase down the money that is owed to them. Failing to pay court ordered restitution can result in jail time, which can be a significant incentive for criminals to pay their debts.
As it stands now, only individuals can receive restitution, leaving non-profits, government agencies, businesses, and other entities vulnerable and with no legal remedy to retrieve what has been stolen from them.
Understanding Insurance for Sexual Harassment
As sexual harassment in the workplace continues to make headlines, businesses need to be aware that allegations can not only damage reputations that have taken years to establish, but also have significant financial implications. Employers should review their policies, procedures, and employee handbooks to ensure they have best practices in place. Additionally, it is important to understand the role of insurance in sexual harassment claims.
Coverage of such claims may vary widely from policy to policy and is generally covered under employment practices liability insurance (EPLI), or a hybrid private company directors and officers liability (D&O) policy. Whether or not coverage kicks in will depend on the specific facts of each case.
As defined by the Equal Employment Opportunity Commission (EEOC), sexual harassment comprises any “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
Workplace sexual harassment is prohibited under Title VII of the Civil Rights Act, and claimants have 180 days from the date of an alleged incident to file a charge with the EEOC. After the EEOC evaluates and approves the claim, a lawsuit may be filed.
As to liability for the employer, the greatest factor is the cost associated with litigation, regardless of the outcome of the case. In other words, perceived harassment can generate six-figure liability for a business, even before and irrespective of whether a claimant can actually make a case proving that sexual harassment occurred.
While many claims never see the inside of a courtroom, costs to the employer can still be substantial.
Policy Coverage and Exclusions
EPLI policies cover companies and their employees, including directors, officers and senior management, against claims alleging wrongful employment acts and decisions initiated by past, present, and future employees. Coverage usually provides for defense costs and indemnity for the company and employee. There are EPLI policies that also cover claims brought by third parties such as vendors, customers, or clients.
Whether a claim is covered will depend on specific circumstances of the alleged incident, such as if the employee was acting in the course of employment, and where the incident took place. For example, if the harassment involved an employee and a supervisor, but took place at a social event, the insurer would likely question if the participants were on the job at the time.
Policies frequently exclude intentional criminal acts and deliberate fraud, as well as bodily injury. The exclusion for bodily injury means that any coverage for sexual harassment will be limited to nonphysical types, although the policy may not contain language that explicitly states this. Claims that allege emotional distress, humiliation, and mental anguish are generally covered under EPLI policies.
Employers must examine their insurance policies, so that they understand what coverage they already have, and can make changes if they feel they lack coverage. It will also be important to monitor any changes EPLI insurers make as the national discussion around workplace sexual harassment continues.