Posted by on Jul 17, 2015 in Disability Discrimination, Wrongful Termination

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com) and Bryan A. Coe, Summer Associate (bcoe@hillwallack.com)

The legal landscape surrounding marijuana laws has drastically changed over the last decade. Currently, 23 states, including New Jersey and New York, allow the use of medical marijuana despite the federal government’s classification of marijuana as a schedule 1 illegal drug. Pennsylvania currently has legislation pending to legalize the use of medical marijuana. The conflict between state and federal law leaves employers in states that protect against retaliation for an employee’s lawful activities guessing whether they can test for, and prohibit, the use of medical marijuana. A recent Colorado Supreme Court unanimous decision may help to alleviate some of this guesswork.

In Coats v. Dish Network, the court considered whether medical marijuana use was a “lawful activity” under Colorado’s Lawful Activities statute. This statute made it illegal for an employer to terminate an employee for engaging in a lawful activity, off the premises, during non-working hours. The plaintiff in the case, is a registered medical marijuana patient, who brought suit against his former employer for wrongful termination after he was fired for using medical marijuana outside of work hours. In determining the meaning of a “lawful activity”, the court rejected the argument that the Colorado State Assembly intended “lawful” to mean lawful under Colorado law. The court found that a “lawful activity” is an activity which complies with state and federal law. As a result, the court found that because the plaintiff’s medical marijuana use was illegal under federal law, the use was not protected by Colorado’s Lawful Activities statute.

New Jersey’s medical marijuana law has a provision where employers are not required to “accommodate the medical use of marijuana in any workplace.” New York’s medical marijuana law classifies patients as “disabled” making it illegal for employers to discriminate against medical marijuana users. New York’s law precludes an employer from taking disciplinary action against certified medical marijuana users for failing a drug test. Further, employers may need to make a reasonable accommodation for an employee who uses medical marijuana, although this second point is still contentious and unsettled. Pennsylvania’s pending legislation is similar to New York’s in that an employer could not consider a positive drug test for marijuana when making an employment decision unless that employee was impaired by or possessed marijuana while on the employers premises or during working hours.

The Dish Network decision follows decisions from courts in California, Oregon, and Washington – each of these states permit the use of medical marijuana – that employers can fire an employee for medical marijuana use. The legal landscape surrounding the medical use of marijuana remains dynamic, particularly as support grows for the federal government lightening its stance on medical marijuana’s drug classification. All businesses that have drug testing policies should be aware of this changing legal landscape.

Employers should seek legal counsel to accurately assess their drug testing policies to confirm compliance with all applicable laws. If you feel this is an area of concern for your business, seek legal counsel from one of our skilled employment law attorneys. We are ready to help.

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EEOC vs. Company Wellness Programs

Posted by on Nov 3, 2014 in Benefits, Disability Discrimination

By Felicity Hanks, Esq. (fhanks@hillwallack.com)

With its third lawsuit in as many months, the U.S. Equal Opportunity Commission (“EEOC”) has made known its condemnation for certain aspects of company wellness programs. Its focus, in part, appears to be on the voluntariness of participation in such programs, and the agency claims that incentive plans which result in penalties or discipline for those individuals that choose not to participate in the wellness programs make the programs compulsory and thus violative of federal law.

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Every Impairment Is Not An ADA-Protected Disability

Posted by on Apr 25, 2013 in Disability Discrimination

By: Felicity S. Hanks, Esq. (fhanks@hillwallack.com / link to bio)

The U.S. District Court for the Eastern District of Pennsylvania threw attorneys a curve ball in its recent decision in Mengel v. Reading Eagle Co., by finding that the plaintiff’s partial deafness was not a protected disability under the ADA.
Christine Mengel was employed as a copy writer and page designer at Reading Eagle since 1999. Ms. Mengel became totally deaf in one ear following a surgery to remove a brain tumor in November 2007. The partial deafness caused her to have balance problems and difficulty concentrating. Reading Eagle was aware of Ms. Mengel’s hearing problems. Ms. Mengel, however, continued to perform her job functions without accommodation.
In January 2009, Reading Eagle reduced its workforce, and terminated Ms. Mengel in April 2009. She filed a complaint with the EEOC for, among other things, disability discrimination. Ms. Mengel claimed that she was included in the workforce reduction due to her alleged disability – deafness in one ear. The District Court dismissed Ms. Mengel’s complaint at summary judgment, holding that she failed to present prima facie evidence that she was disabled under the ADA.
The District Court recognized that hearing is a major life activity and bilateral hearing loss is an ADA-protected disability. The District Court found, however, that Ms. Mengel failed to demonstrate that deafness in just one ear substantially limited her hearing. The evidence indicated that the partial deafness was only a “distraction” to Ms. Mengel and she had no specific problems resulting from the impairment, with the exception that she “didn’t hear some things.” Although her employer was aware of her impairment, there was no evidence of a causal link between her condition and her termination. The District Court pointed to the 18 month time period between the surgery and her termination, noting that Ms. Mengel continued to work and obtain satisfactory reviews even after the condition arose.
In this matter, the District Court looked critically to whether a subset of an otherwise protected disability also received protected status, and found that it did not. Notably, this court did not draw a hard line with respect to partial deafness, but confirmed that it is the employee’s burden to demonstrate that their claimed impairment substantially limits a major life activity.
The ADA Amendments Act of 2008 mandated that the definition of “disability” be broadly interpreted, thus making it easier for an employee seeking protection under the ADA to establish that she has a qualifying disability. In the post-Amendments world, employers and courts spent little time analyzing whether an alleged impairment fell within the ADA definition of disability. This case is significant as it brings the definition of disability back into play.
The take away from the Mengel case is that even after the Amendments to the ADA, courts are still willing to review the merits of a disability claim. This case does not invite employers to cease assessing employees’ alleged disabilities or refuse to engage in the interactive process to determine whether a reasonable accommodation should be offered where warranted. However, the Mengel court alerts employers to continue to analyze whether the claimed impairment is protected disability under the ADA. Similarly, where litigation has arisen, employers should keep this argument in its arsenal. The message for employees is one of caution – simply claiming an impairment is protected by the ADA is not enough without evidence that it substantially limits a major life activity. Employers should always consult with experienced legal counsel before taking any adverse employment action against an employee who has alleged a disability under the ADA.

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Employers: Take Care Before Firing an Employee who Has Requested FMLA Leave

Posted by on Sep 30, 2009 in Caregiver Discrimination, Disability Discrimination, FMLA, Retaliation, Wrongful Termination

By: Tiffanie Benfer, Esq.
Has your employee asked for time off under the FMLA? The Third Circuit has made clear that firing that employee after the leave is requested but before it begins constitutes unlawful “retaliation” under the FMLA.
Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.
The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.
On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.

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Fighting Cancer and Discrimination Too

Posted by on Feb 18, 2009 in Disability Discrimination

By: Tiffanie Benfer, Esq.
I’m seeing a trend. We seem to be getting more and more calls from employees who have lost their jobs while in the midst of treating for cancer, and from employers who are trying to figure out what to do about an employee with a serious illness.
Needless to say, employees whose employment is terminated during treatment have a particularly difficult time, especially if they are dependent on employer-provided health insurance. The question is difficult too for employers who want to stay within the bounds of the law, but cannot afford to keep on an employee whose performance is lacking.
The trend we’ve seen appears to be worldwide. The New York Times today discussed an analysis in the Journal of the American Medical Association, concluding that cancer survivors in the U.S. and Europe are 37 % more likely to be unemployed than their healthy peers.
What are the rights of an employee with cancer? Under the Americans with Disabilities Amendments Act, it is clear that cancer is a covered “disability.” An employee cannot be fired simply because he or she has cancer. Likewise, an employee cannot be fired simply because he or she took leave under the FMLA.

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EEOC Backlog Swells. What Does This Mean for Your Case In the EEOC?

Posted by on Feb 4, 2009 in Age Discrimination, Caregiver Discrimination, Disability Discrimination, Gender Discrimination, National Origin Discrimination, Pregnancy Discrimination, Racial Discrimination, Religion Discrimination, Sexual Harassment, Wrongful Termination

By: Tiffanie Benfer, Esq.
It isn’t a newsflash to those of us who regularly deal with the EEOC: the federal agency charged with protecting Americans from discrimination is overworked, with a tremendous backlog of cases. The Washington Post reported Monday that because of increased claims and decrease in staff, the case backlog is now at 73,951 – up 35 % from a backlog of 54,970 a year ago.
This means that more and more cases are languishing in the EEOC. That’s a problem when it comes to getting to the truth behind a claim, because witnesses move away or forget what happened. In this climate, it is essential for both employees and employers to obtain independent legal counsel to move a case along, to secure witness statements, to conduct investigations, and — most importantly — to frame the issues for an overworked investigator.

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