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The Higher Ed Workplace Blog

HR and the Courts: ADA Prescription Marijuana Precedent, Telecommuting as a Reasonable Accommodation and More

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Prescription Medical Marijuana User States Valid Disability Discrimination Claim Under State ADA Law, Sets Precedent
A qualified medical marijuana user in Massachusetts, who filed suit under the state disability law, may proceed with her disability discharge lawsuit following her discharge resulting from her failing a workplace drug test.

In a case of first impression nationwide, a Massachusetts court ruled in favor of affirmative employment-related protection for the medical marijuana user under the state Americans with Disabilities Act (ADA) law (Barbuto v. Advantage Sales Inc.). The court specifically ruled that the plaintiff’s claim should be treated like a claim from any other employee taking a legally prescribed medication to treat a disability.

Massachusetts passed a law decriminalizing the use of medical marijuana where medically prescribed, and while the statute is not as robust as other state laws which more affirmatively support the use of medical marijuana, the law nonetheless states that qualifying patients cannot be punished under state law for the use of medical marijuana.

A lower court had dismissed the claim, but the Massachusetts Supreme Court reversed that decision, rejecting the employer’s argument that the plaintiff’s use of medical marijuana to treat her Crohn’s disease would be a federal crime and therefore could not be a reasonable accommodation for the employer under the state ADA law.

The court held that Crohn’s disease is unquestionably a disability under the Massachusetts ADA statute, and it is reasonable for an employee to request to be allowed to continue to use a legally prescribed medication to alleviate the disability’s conditions.

EEOC Says Refusal to Consider a Telecommuting Request Is Unlawful, and That Final Decision Should Be Made on a Case-by-Case Basis
Telecommuting may not always be a reasonable accommodation, depending on the disability and the functions of the job involved, but it is not reasonable for an employer to reject a telecommuting accommodation request without due consideration. The Equal Employment Opportunity Commission (EEOC) articulated this policy in a lawsuit it recently filed against an employer in North Carolina (EEOC v. Advanced Home Care Inc.).

This case involved a charging party who had asthma and COPD, which made her sensitive to workplace smells. The worker alleged she had a hard time breathing when coworkers came to work with the “smell of smoke” on their clothes. The worker requested a telecommuting option as a reasonable accommodation, but the employer refused to consider it.

The EEOC sued, alleging that the employer should have at least considered the telecommuting accommodation, as the employee is legitimately disabled and raised an appropriate request for an accommodation.

Court Rules Against Mandatory Arbitration of a “Learning Disability” ADA Discrimination Claim, Sends Case to an ADA Jury Trial
While the recent trend in court decisions rejecting mandatory arbitration of workplace discrimination claims has been largely a West Coast-based movement, a federal district court in New York recently denied an employer’s request to dismiss and send to arbitration a learning disability discrimination claim, holding that the arbitration agreement lacked contractual enforcement and that the plaintiff had a right to a jury trial under the ADA (Weiss v. Macy’s Retail Holdings).

The plaintiff alleged that he was harassed and was being discriminated against in the workplace because of his learning disabilities, which are protected by the ADA. Macy’s moved to dismiss the case, stating that it had sent a mandatory arbitration option form to the plaintiff months before his filing of the lawsuit, which he did not reject.

The court held that the plaintiff’s silence did not amount to acceptance, as there was no indication on the form that his continued employment depended on agreement. The court concluded that the unsigned form did not amount to an enforceable contract under which the plaintiff waived his ADA rights to a jury trial.

EEOC and NLRB Have Differing Conclusions on Workplace Civility Policies and Training
The Equal Employment Opportunity Commission (EEOC) has long embraced and encouraged workplace civility policies and civility training as an important tool in combating workplace harassment of all kinds. Recently the National Labor Relations Board (NLRB), which has jurisdiction over private colleges and universities, stated positions in unfair labor practice cases which call into question the enforceability of what it considers “overbroad” civility policies which prohibit profanity, employee disparagement and other related conduct in the workplace.

The NLRB strictly scrutinizes employer rules, especially if they were adopted during an organizational campaign which would involve and dampen an employee’s right to engage in speech concerning union representation, wages, hours, working conditions and grievances.

The EEOC and NLRB have agreed to continue to meet to resolve any possible disagreement.

It is always wise to adopt a disclaimer to all workplace civility policies with language stating that nothing in the policy is intended to discourage open discourse of employees on workplace issues, especially those involving grievance, wages, hours and working conditions. The precise nature of the disclaimer should be drafted with the help of the institution’s counsel.

Rise in State and City Laws Prohibiting Employers From Inquiring About Applicants’ Current Salary or Salary History
In the past year, New York, Philadelphia and San Francisco) and Massachusetts, Delaware and Oregon have passed laws prohibiting employers from asking job applicants about their salary history. The laws have effective dates over the next year or two, and several other states and cities are considering similar legislation.

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