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THE YEAR THAT (SORT OF) WASN’T: Five Lessons Employers Learned During the COVID-19 Pandemic and What They Mean for the Future

Coronavirus, COVID-19, Employer's Guide - COVID-19 March 15, 2021 Leave a comment

As a labor and employment lawyer, over the past year, I had both a front row view of the ways the COVID-19 pandemic shaped workplaces in a broad array of industries and the privilege of working with employers to tackle truly unprecedented issues.  With the milestone anniversary of the pandemic at hand, it is time to reflect on some of the lessons we can learn from this transformational experience.

Lesson 1: The Value of the Mission-Driven Employee

A common thread that ran through many of the often unique challenges businesses faced this past year is that the value individual employees contribute to an organization is both inestimable and not necessarily tied to salary grade.  Some of the lowest paid employees risked their wellbeing to remain on the frontlines, and their dedication and hard work opened employers’ eyes to the value these employees provide.  We have seen that dedicated employees can often find creative ways to solve problems.  We have also seen other employees struggle in this new environment for innumerable reasons, including more limited supervision, fewer support resources when working from home, limited adaptability and flexibility of the employee, and the challenges of balancing work and parenting responsibilities (which are more pronounced when children are attending school from home).

The one thing that has been universal is that mission-driven employees find a way to succeed, while employees who view work as a job often come up short.  From entry level to the c-suite, this dichotomy in attitude reinforces that employees who buy into the mission of the organization find ways to accomplish that mission.  Going forward, employers can learn from this equation and use it in all phases of employee relations, including recruitment, promotion, employee benefits and incentives, and workforce management to identify and develop employees who are mission-driven.  At the same time, employers can foster dedication and loyalty by treating employees fairly, showing them appreciation and respect, and fostering unity behind the organization’s mission. 

An interrelated factor is the importance of mental health.  We saw once valuable employees so overwhelmed by fear and anxiety that they became unable to focus on their jobs. This sobering experience gives employers a new perspective on and appreciation for the importance of paying attention to their employees’ mental health as much as their physical health. Employers who formerly recognized the need to provide their employees with health insurance benefits but who disclaimed responsibility for tending to their employees’ mental health have awakened to the truth that mental health issues can be one of the most serious drains on employee productivity and company morale.

Lesson 2: The Office is not the Only Place Employees can Work

While the steady rise of technological advances already made it possible for employees to work from home efficiently, many employers have been resistant to allowing work remote, fearing loss in productivity and dilution of corporate cohesion and culture.  When the pandemic forced many office workers to work from home on a prolonged basis, employers learned their fears were, in many instances, overstated.  Dedicated and loyal employees (see Lesson 1) have worked as efficiently, if not more efficiently, outside of the office, finding new and creative ways to get the job done. 

An important takeaway from the new prevalence of remote work is that, even within the same position, employers have witnessed varying degrees of success from employee to employee working remotely.  Although some employees cannot concentrate at home, others can focus much better without the distraction of co-workers and the fatigue of commuting.  Employers should take note of this fact and look for ways to allow employees to work in the environment where they are most productive and successful.  Employers who are overly rigid about where workers perform their jobs risk impairing productivity, morale, dedication, and, ultimately, retention and recruitment.

Lesson 3: Reports of the Death of the Office are Premature

Although employees are working productively outside of the office, on-site work still holds an important place in successful businesses.  From training new employees to setting a corporate culture, working in an office creates important synergies within an organization.  When employees are together, their ideas cross-pollinate, producing better ideas. Employees can work better as a team, and motivate and inspire one another when they interact with each other face-to-face in an office setting.  Remote work has taken a toll on these beneficial activities that we have not replaced despite all the technology at our fingertips. Although a Zoom call can be a valuable tool and is often a necessity in today’s forced remote work arrangements, it is sometimes a poor substitute for a face-to-face meeting and is seldom as effective in building teamwork and creating and enhancing a business’s culture as a live social event.

Successful businesses will look for a balance between isolated workplaces where some employees thrive and the cohesion that comes from working in an office.  Organizations suffer without collaboration and, when their employees work only in silos, they seldom develop the unity of mission that leads to success.  In addition, employees often find job satisfaction and inspiration in their interactions with their colleagues. It is usually easier to walk next door to ask your colleague a question or chat with her about an issue than to make a phone call or exchange emails or text messages. What’s more, the results of the face-to-face meeting are usually more productive, not to mention, more satisfying than the remote conversation. Each organization will have to strike the right balance of office and remote work, but we have learned that technology alone is not a substitute for in-person interactions.

Lesson 4: Travel is Less Essential than we Thought

Although there is no substitute for meeting in person with a customer, there is also no doubt that corporate travel is a significant expense and disrupter of productivity.  Corporate travel can be invaluable in promoting in-person interactions that help build key relationships both within and outside the organization, but all too often in the past it was done without even thinking about whether there was a cheaper, less time-consuming, but just as effective alternative.  The era of corporate travel is far from dead, but the pandemic taught us that it is not as vital as we once thought.  We can use technology to train, gather information, work collaboratively, and develop relationships.  Again, technology is not a substitute for in-person interactions, but we now know there are viable alternatives to planes, trains, and automobiles that may help increase employee efficiency and boost employee morale. 

Additionally, for certain positions, finding talented employees who are willing to travel extensively can be a real challenge.  Employers who can find ways to minimize the personal sacrifices employees make to travel will find themselves rewarded with loyal employees who are satisfied with their jobs.   

Lesson 5: Adapt or Die

Perhaps one of the most important lessons from the pandemic is that employers must be prepared to adapt.  Those who are unable or unwilling to do so will suffer the adverse consequences. Employees who have found a new work-life balance working remotely will not want to give it up, just as clients who have grown comfortable with video meetings will not want to pay for travel that does not provide sufficient value.  We are in a transitional period and employees are becoming more assertive and clear-headed about what they do and do not want out of their employment.  That trend started when the millennial generation entered the workforce, but it has become more pronounced across all generations due to the pandemic.

Employers looking to recruit and retain top talent will need to meet the expectations of these employees or risk losing them to competitors who offer more flexibility.

Questions? Let me know.

WHAT ARE YOU SMOKING? New Jersey’s New Cannabis Law Also Changes the Rules for Employers

Medical Marijuana Act, Medical marijuana in the workplace, Tips for Employers March 9, 2021 Leave a comment

As New Jersey enters a new era of legalized cannabis, employers face a whole new crop of questions about responding to employee cannabis use.  The newly passed New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) changes the landscape for employers both in concrete ways and in ways that are still evolving.  On its face, NJCREAMMA allows employers to discipline employees for use of cannabis during work but prohibits them from taking adverse action against employee use outside of work. Although that principal seems straightforward, it is not. For an employer, determining when an employee consumed cannabis or whether they are actually impaired is quite challenging. The NJCREAMMA recognizes a positive cannabis test does not necessarily mean an employee is impaired at work and, therefore, limits employers’ ability to rely on tests alone. Until the science catches up to the law, employers do not yet have access to a reliable, objective measure to test for impairment at work, which makes it impossible to conclude an employee is impaired due to cannabis use based on testing alone.

What’s new?

As you may know, before the passage of this new 2021 law, the New Jersey Courts already ruled employers could not discriminate against employees lawfully enrolled in the State’s medical cannabis program and had to make reasonable accommodations for them. In practice, this body of case law, with limited exception, meant employers should not fire or refuse to hire someone who tested positive for cannabis if they had a medical use card.  Employers remained free to take adverse employment action against employees who showed signs of impairment and employees who tested positive but were not enrolled in the State’s medical cannabis program.

With the passage of NJCREAMMA, the scope of employee protections have materially expanded. Now, with limited exception, New Jersey employers may not take any adverse employment action (including refusing to hire a candidate) solely because the employee tests positive for cannabis. Employers can and should still prohibit impairment in the workplace. However, even when an employee is suspected of impairment, employers cannot act based on a positive test alone. Instead, NJCREAMMA requires that the employer also conduct a physical evaluation to determine whether an employee is impaired before it takes action based on a positive test. This physical evaluation must be performed by someone certified as a Workplace Impairment Recognition Expert. Although the State-created Cannabis Regulatory Commission is tasked with implementing guidelines for Workplace Impairment Recognition Expert training, it has not yet developed this training or guidelines. Until it does, this part of NJCREAMMA is not considered “operative” even though the law is deemed effective immediately. 

Aspects of NJCREAMMA’s employee protections, which do not have specific exemptions for safety related positions and require Workplace Impairment Recognition Expert training, are controversial and certain business groups are pushing for employee protections to be scaled back in the “clean up” bills that are expected to be introduced to try to refine NJCREAMMA. Due in part to the well-publicized political wrangling that preceded the Legislature’s final adoption of NJCREAMMA, employers should expect to see efforts to clarify the law as it applies to employers and to authorize common-sense controls on impairment in the workplace.

Employers are still permitted to conduct suspicion-based, pre-employment, random, and/or post-accident drug testing, but a positive test for cannabis alone is not enough to take action. Now, employers also must have evidence of impairment during work hours to take action. 

NJCREAMMA does allow employers to implement more strict rules for drug use when it is necessary to maintain a federal contract. 

NJCREAMMA does not restrict an employer from maintaining and enforcing drug-free workplace policies, but, again, when it comes to cannabis, employers must show use and/or impairment at work, as opposed to off-duty use. 

Savvy Employers’ Takeaways:

Practically, when it comes to cannabis, employers can focus on performance issues without attributing the source of the performance issue to cannabis impairment. Behaviors that might suggest drug use, such as sleeping on the job, carelessness, and lack of attention are properly the subject of discipline whether or not the employee is impaired by cannabis use or for another reason. NJCREAMMA, in its current form, makes it harder for employers to rely on testing as evidence of impairment, but does not restrict an employer from taking action based on observable impairment or performance issues. Although it may seem like new territory, employers have historically managed employee productivity issues, whether they arise from unknown causes or from use of legal substances, such as hangovers from alcohol abuse and performance deficits from use of prescription medications. Employers do not need drug tests to manage these issues but, instead, focus on the business disruption and observable performance issues. For now, employers would be wise to do the same when it comes to cannabis. 

Questions? Let me know.

What Employers Need To Know: New Jersey’s Appellate Division Issues Historic Ruling On Medical Marijuana Users’ Rights in the Workplace

Medical Marijuana Act, Medical marijuana in the workplace, Wrongful Termination April 2, 2019 Leave a comment

Marijuana Medical PrescriptionEver since the use of properly prescribed medical marijuana became legal in New Jersey, Courts have grappled with reconciling state and federal laws protecting employees from disability discrimination, and employers’ rights to maintain workplaces free of drug use. In simple terms, New Jersey law permits the use of medical marijuana, which is illegal under federal law. With limited exceptions, the decisions in these cases have come down in favor of employers’ right to enforce workplace drug rules. Generally, courts have permitted employers to discipline, terminate, or refuse to hire employees who use medical marijuana, even if there is no evidence of use or impairment in the workplace.

This week, New Jersey’s Appellate Division joined the minority of courts that have 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 marijuana.

What Happened?

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

While the employee recuperated, his father took his medical prescription and marijuana license to his son’s supervisor and explained what had happened and why the hospital had not given a drug test. Later that day, the employer called and spoke to the employee’s father to advise that a blood test was required before the employee could return to work.

Later that evening, the employee went to a facility to take a urine and breathalyzer test; however, the results of those tests were not provided to the employer and were not part of the case record.

The next day, the employee returned to the funeral home, not as an employee, but because a close friend’s family member had died. While there, he and his supervisor spoke briefly about his job status. His supervisor said he had not heard from “corporate” but did not see how it would be a problem since the employee had a prescription for his marijuana use. The employee told the supervisor, “I only take it when I am home, not at work because I don’t want to jeopardize my license for what I have worked so hard for.”

The employee eventually returned to work, but, shortly after his return, his supervisor advised him that “corporate” was unable to “handle” his marijuana use and that his employment was “being terminated because they found drugs in your system”, though no test had actually 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 that might adversely affect his ability to perform his job duties. According to a company policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”

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 marijuana.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal in a unanimous decision. The Appellate Division acknowledged that the Compassionate Use Act unambiguously states it does not “require . . . an employer to accommodate the medical use of marijuana in any workplace.” Nevertheless, the appellate panel found that the New Jersey’s Law Against Discrimination might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical marijuana 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 Law Against Discrimination. For this reason, the Appellate Division reversed the trial court’s dismissal and permitted the case to proceed.

What do employers need to know?

At the outset, it is important to understand that the Appellate Division did not rule that this employee had been a victim of disability discrimination. In fact, the Court 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.

Although this precedent is now binding on state trial courts in New Jersey, it is far from settled law, and may well be subject to an appeal to the New Jersey Supreme Court. However, 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 marijuana; those affected by such decisions will be emboldened by this new case, and their lawyers will be confident that a lawsuit challenging the adverse actions is more likely to survive a motion to dismiss at the beginning of the case. As the law in New Jersey now stands, employers are not required to accommodate medical marijuana use, but there is now an increased risk if they refuse. Additionally, various bills have been proposed and are being considered by the New Jersey legislature, which, if adopted, may expand employee rights in this area of the law.

In other words, stay tuned, because we have certainly not heard the last word on this topic. With that said, employers remain free to take adverse action if an employee shows any sign of impairment from use of medical marijuana, or, for that matter, any other drug, legal or not.

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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.

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