Category Archives: Employment Non-Discrimination Act

Supreme Court of NJ Affirms Employee May State A Claim for Reasonable Accommodation for Medical Cannabis Use

Employment Non-Discrimination Act, Medical Marijuana Act, Medical marijuana in the workplace, Uncategorized March 13, 2020 Leave a comment

medical marijuana

You may recall, in 2019, this blog post reported New Jersey’s Appellate Division joined courts that found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  That case, Wild v. Carriage Funeral Holdings, Inc., was one in a spate of recent decisions as courts in New Jersey and other states that allow medical use of cannabis have grappled with reconciling laws protecting employees from disability discrimination, employers’ rights to maintain workplaces free of drug use, and federal statutes outlawing cannabis use for any reason. Early decisions in these cases came down in favor of employers, permitting employers to discipline, terminate, or refuse to hire employees who use medical cannabis, even without evidence of use or impairment in the workplace.

New Jersey’s Appellate Division’s Wild ruling changed course when it held an employee may state a disability discrimination claim for failure to accommodate against an employer who takes an adverse employment action due to the employee’s use of medical cannabis.  Now, on March 10, 2020, the Supreme Court of New Jersey affirmed the decision, ruling an employer can potentially be liable under New Jersey’s Law Against Discrimination (“LAD”) for failing to accommodate an employee’s use of medical cannabis outside of the workplace.

What Happened?  In 2015, the employee, a funeral director, was prescribed and used medical cannabis as authorized by New Jersey’s Compassionate Use Act. In 2016, the employee was in an auto accident while working. The employee advised hospital staff he was authorized to use medical cannabis. The treating doctor responded that “it was clear [the employee] was not under the influence of cannabis [and, thus, his cannabis use was not a cause of the accident], and therefore no blood tests were required.”

While the employee recuperated, the employer advised that a blood test was required before the employee could return to work. The employee went to a facility to take a urine and breathalyzer test; however, the results were not provided to the employer and were not part of the case record.

The employee eventually returned to work, but, his supervisor advised him that his employment was “being terminated because they found drugs in your system”, though no test results had been provided to the employer. In a subsequent letter, the company told the employee it had terminated him not because of his drug use, but because he failed to disclose his use of medication contrary to company policy. The employee brought an action alleging he had been a victim of disability discrimination.

What did the Courts decide?  The trial court dismissed the employee’s claims, finding that New Jersey’s Compassionate Use Act “does not contain employment-related protections for licensed users of medical cannabis.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal. The Appellate Division cannabis found that the LAD might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical cannabis use, by the same token, the Appellate Division stated it does not immunize an employer’s conduct that might otherwise have been a violation of the LAD.  In affirming the decision, the Supreme Court held an employee may state a failure to accommodate claim under the LAD against an employer who takes an adverse action against the employee for use of cannabis outside of work when that use is otherwise compliant with the Compassionate Use Act.

What do employers need to know?  It is important to understand neither the Appellate Division nor the Supreme Court ruled this employee was a victim of disability discrimination. In fact, the Appellate Division expressly recognized that the case was at the earliest stages, and the employer had pled potentially valid defenses.  The Court ruled only that the case could not be dismissed on its face.

New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical cannabis outside of the workplace.  It is important to note, the courts in New Jersey have not suggested an employer must accommodate impairment due to medical cannabis use, so employers should remain vigilant about addressing employee impairment issues.  The law as to when an accommodation is reasonable is still developing.  For instance, a requested accommodation that may make an employer ineligible to bid on certain projects or that conflicts with established safety laws and regulations will be subject to greater scrutiny than a requested accommodation that does not impose added burdens on the employer.

In other words, stay tuned, because we have certainly not heard the last word on this topic.

Questions? Let me know.

 

What New Jersey’s New Law On Employment Contracts Means for Employers: Are Non-Disclosure and Arbitration Provisions Out?

Employment Non-Discrimination Act, Uncategorized March 21, 2019 Leave a comment

Law should know concept, The lawyer explained to the client to plan the case in court.

On March 18, 2019, New Jersey Governor Phil Murphy signed a new law, which, among other things, bars employers from requiring employees to sign or enforcing employment contracts that require employees to agree to waive certain rights or remedies and bars agreements that conceal details relating to discrimination claims.

Here’s what employers need to know:

  • Any provision in an employment contract that waives or limits any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment will now be deemed against public policy and unenforceable;
  • No right or remedy under New Jersey’s “Law Against Discrimination,” or “any other statute or case law” shall be prospectively waived;
  • A provision in any employment contract or agreement that has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable;
  • For unionized work forces, this law does not restrict agreements to waive rights contained in collective bargaining agreements, but it does extend its prohibition to clauses designed to conceal details of a discrimination claim from unionized employees;
  • Attempting to enforce an agreement that is unenforceable under this law will give employees a private right of action to sue in court and the right to recover their attorney’s fees and costs of suit if they prevail;
  • The law protects employees from retaliation for refusing to enter into an agreement that violates their rights under this new law;
  • The law does not restrict an employer’s right to impose and enforce restrictions on the use of the employer’s confidential and proprietary information other than with respect to the details of discrimination claims;
  • The law does not expressly prohibit confidentiality provisions in settlement agreements meant to prevent disclosure of the amount of a settlement;
  • The law does not require disclosure; rather it leaves the choice in the hands of the individuals involved; and
  • The law took effect immediately and applies to all new contracts and agreements and existing contracts that are renewed, modified, or amended going forward.

Although the law is aimed primarily at prospective waivers of rights and clauses concealing the details of discrimination claims, the full scope of this law’s applicability will become clear only after it has been interpreted by the courts.  For example, one of the most significant open questions is whether New Jersey courts will deem mandatory arbitration provisions in employment agreements unenforceable as to discrimination claims and, if they do, whether the Federal Arbitration Act will, in turn, be deemed to preempt such a limitation on the enforcement of arbitration clauses.  Another important question is whether courts will construe this law to bar confidentiality provisions in settlement agreements that restrict employees from disclosing the terms of the settlement.

As we wait for the courts to resolve these and other open questions, employers should proceed thoughtfully when seeking confidentiality in connection with a claim of discrimination.  A precisely drafted confidentiality agreement or policy might be desirable in some situations, such as to preserve the integrity of an ongoing investigation, but employers need to be mindful of this law and understand the limitations and potential consequences of requiring confidentiality and/or taking disciplinary action when confidentiality is breached.  Employers relying on mandatory arbitration provisions should also consider the impact of this law and consult their counsel in evaluating whether to exclude discrimination claims from arbitration.

If you have any questions about this legal alert or if you run across a related issue in your workplace, please feel free to contact Adam Gersh or any other member of Flaster Greenberg’s Labor & Employment Department.

EEOC Finds Existing Workplace Protections Extend to Sexual Orientation

EEOC, Employment Non-Discrimination Act, LGBT August 11, 2015 1 Comment

The U.S. Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against an employee  based on his or her sexual orientation can constitute sex discrimination under existing civil rights laws, adding to a wave of legal developments favoring protections for the LGBT community. The EEOC’s evolution of its interpretation of existing laws is especially noteworthy as it comes as Congress considers Employment Non-Discrimination Act (ENDA) and the Equality Act of 2015, both of which extend workplace protections to workers based on sexual orientation and gender identity. 

The EEOC ruling, issued on July 15, 2015 in Complainant v. Foxx, broke new ground when it reversed an EEOC Agency’s dismissal of a sexual orientation complaint and  found all types of discrimination based on sexual orientation are forms of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  For decades, the EEOC and the courts found no Title VII protections based on sexual orientation alone.  In recent years, however, the EEOC and some courts have extended Title VII protections to sexual orientation and gender identity discrimination when the discrimination can be characterized as arising out of sex-based stereotypes.  The Foxx decision takes this one step further. 

In Foxx, a federal air traffic controller based in Miami contended he was denied a promotion because he was gay.   In evaluating the scope of Title VII protections, the  EEOC noted Title VII does not exclude “sexual orientation” discrimination from its definition of discrimination based on “sex,” and the EEOC found that there can be no basis to draw  a distinction between the two.   Going forward, the EEOC directed, “Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary . . . process.”   

The EEOC’s ruling binds the EEOC’s agencies but does not bind the courts,.  Nonetheless, state and federal courts routinely look to EEOC rulings for guidance in interpreting the Civil Rights Act and other federal anti-discrimination laws enforced by the EEOC.  In many states, including New Jersey, state laws already protects employees from discrimination based on sexual orientation and gender identity, so expansions of Title VII would have less impact on employers in those states. 

While the future is never certain, employers should expect state law and federal laws to increasingly protect employees from discrimination based on sexual orientation and gender identity, especially in light of the U.S. Supreme Court’s 2015 ruling recognizing same-sex marriage as a constitutionally-protected right.  Employers therefore should re-evaluate their anti-discrimination policies, identify any gaps relating to sexual orientation and gender identity, and consider expanding their policies and training, as needed, to protect employees from such discrimination. 

Questions? Let me know.

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