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Amended medical marijuana bill offers employers higher protections

Last month, I reported on the introduction of Ohio House Bill 523, which would legalize medical marijuana in Ohio. I suggested that the bill’s protections for employers, which go further than those of either of the two competing November ballot measures, are a good start, but would likely need some tweaks to provide employers all of the protections they need.

Yesterday, employers got some much needed help, with an amended H.B. 523 [pdf], which significantly expands the rights of employers in regard to employees legally using marijuana.

The bill, as it now reads still would not require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. It also, however, would offer the following clear and unambiguous protections for employers.

  • It would permit an employer to refuse to hire, discharge, discipline, or otherwise take an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana;
  • It would permit an employer to establish and enforce a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
  • It would not interfere with any federal restrictions on employment, including the regulations adopted by the United States department of transportation for drivers;
  • It would prohibit a person from commencing a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;
  • It would not impact rebates or discounts on workers’ compensation premium rates to employers that participate in a drug-free workplace program; and
  • It makes clear that person who is discharged from employment because of that person’s use of medical marijuana is ineligible for unemployment compensation.

According to the Ohio Chamber of Commerce, H.B. 523 provides necessary “protections for Ohio employers by enabling them to maintain safe workplaces and enforce reasonable human resources policies.” I could not agree more.

There is no doubt that medical marijuana is coming to Ohio. The question is whether it is coming via this business friendly legislation, or via the either of the business-vague ballot initiatives that would impose hard to change constitutional amendments and leave employers exposed or completely unprotected (depending on the initiative).

Last time I wrote on this issue, I opened a hail storm of a debate. I can’t wait to read the comments this time.


Transgender bathrooms is a solution in search of a problem

In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:

Here’s the bottom line.

Like OSHA said in similar guidance nearly a year ago, it is illegal to require an employee to use the bathroom of his of her gender of birth, or a single-user bathroom. Instead, an employer must permit a transgender employee to use the bathroom of the gender with which the employee identifies.

Employers, answer me this. Why do we care? If an employee genuinely believes she is female (regardless of whether she was born a male), why do we care if she uses the women’s restroom? This issue is one of the most glaring examples I’ve ever seen of a solution in search of a problem.

I’m certain I have readers who are thinking, “I don’t want those freaks in my bathroom.” Well, this post isn’t for you (or maybe it’s especially for you). You are doing exponentially more harm to the mental well-being of your transgender employee(s) if you force them into the wrong bathroom or segregate them in a single-gender bathroom, than you are doing to your other employees by having them share their bathroom with their trans co-workers. Any other answer to this issue is bigotry, period. And, in 2016, we should be well beyond institutional bigotry of any kind.


Looks like the DOL just put its new salary test on the discount rack

It’s been a few weeks since we last peeked in on the DOL’s upcoming increase for teh FLSA’s salary test (Winter is coming … for the FLSA’s salary test). It’s long been expected that the DOL would increase the salary test for the administrative, professional, and executive exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week). Now, however, it’s been reporting that the DOL has had a change of heart, and will step up the salary threshold to $47,000 per year (or a nice, round, $903.85 per week).

From Thompson’s HR Compliance Expert:

The U.S. Department of Labor is considering a lower, $47,000 salary threshold for its upcoming overtime regulations, according to news reports….

The version of the rules that DOL proposed last June would more than double the threshold for its Fair Labor Standards Act white-collar exemptions. If the rules were implemented as proposed, employees only would be eligible for those overtime exemptions if they were paid $970 per week, or $50,440 annually.

DOL sent final rules to the White House’s Office of Management and Budget on March 14. A group of Democratic lawmakers urged OMB to approve the rules quickly while Republicans in Congress introduced legislation to block the rules.

OMB has been meeting with stakeholders every few days and, according to various news reports, DOL agreed to consider a $47,000 threshold. Final rules are expected any day.

While this is certainly good news for employers, I question whether it is good enough. Consider, for example, California, the Willy Wonka Chocolate Factory of employment law. The current salary threshold for exempt employees is $41,600. Even at the supposed lowed $47,000 mark, the federal standard would eclipse California by 13 percent. Yet, compare the cost of living in Los Angeles, California, to Cleveland, Ohio. It costs an approximate 37 percent more to live in Los Angeles than Cleveland.  And that’s not nearly as big a difference as Omaha, Nebraska (52 percent) or Jackson, Mississippi (64 percent). In other words, the $47,000 salary test is not an apples-to-apples comparison, and, even at this “lower” level, still imposes a significant economic burden on businesses.

For now, stay tuned. No one outside a select few in D.C. (who aren’t talking) have seen the final regulations. They are still on track to be published this summer, with an expected effective date in September.


Maternity leave vs. “Me-ternity” Leave, and what it means for work-life balance

I read with great interest the following story in the New York Post, entitled, “I want all the perks of maternity leave — without having any kids.”

The story, written by Meghann Foye, a self-professed overworked, yet childless, woman in her mid-30s (and author of a recently published novel called “Meternity”), argues that all women deserve “me” time away from work, and that maternity leave shouldn’t be limited just to new moms.
[T]he more I came to believe in the value of a “meternity” leave — which is, to me, a sabbatical-like break that allows women and, to a lesser degree, men to shift their focus to the part of their lives that doesn’t revolve around their jobs. 
For women who follow a “traditional” path, this pause often naturally comes in your late 20s or early 30s, when a wedding, pregnancy and babies means that your personal life takes center stage. But for those who end up on the “other” path, that socially mandated time and space for self-reflection may never come.… 
It seemed that parenthood was the only path that provided a modicum of flexibility. There’s something about saying “I need to go pick up my child” as a reason to leave the office on time that has far more gravitas than, say, “My best friend just got ghosted by her OkCupid date and needs a margarita” — but both sides are valid.
The backlash against Ms. Foye was swift. For example, the following are just a couple of the tweets the Today Show received in response to its story on me-ternity leave.

This idea of me-ternity leave leaves me with two thoughts, one legal and one pratical

1. Legally speaking, there is a vast difference between maternity leave and me-ternity leave. The law requires the former, while the latter is a figment of Ms. Foye’s creativity. The FMLA requires covered employees to provide eligible new moms up to 12 weeks of unpaid maternity leave. Moreover, even if you are too small of an employer for the FMLA to cover you, or if an employee is too short-tenured, Ohio law still requires an unpaid leave of absence for a new mother, and Title VII suggests that an employer may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave. In other words, you likely have to grant some duration of maternity leave to every new mom.

2. If you have employees clamoring for “me” time, you have an issue deeper than mom vs. non-mom; you have a work-life balance issue. We, as Americans, continue to struggle with the ongoing need for flexible workplaces and time to get away from work and disconnect. It’s our own faults. We work well in excess of 40 hours per week at work, and when we are away from work we are tethered to our iPhones emailing about work. We are workaholics. Until we, as employers, figure out how to permit our employees (women and men) to step away from work when needed and inject some balance into their lives, we will have employees like Meghann Foye calling for me-ternity leave.


WIRTW #410 (the “odd jobs” edition)

What is the oddest job in America? It might be the folks who blur to the naughty bits on Discovery Channel’s Naked and Afraid. From The Seattle Times:

“This is a totally weird work environment,” said Shaun O’Steen, the 45-year-old leader of the team, which calls itself the Blur Man Group. “I mean, what job can you say, ‘Oh, my God, look at that penis,’ and not have to worry about HR?” …  For O’Steen, the task is slightly complicated by one more fact: His desk is opposite that of a 27-year-old who is the only woman and, by far, the youngest member of the blurring group. She is also his wife.

No matter how weird you think your job is, I’m going to bet it’s not this weird.

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