Date: February 18, 2022Attorney: Brent R. Pohlman

1)  Marijuana Use by Employees: While the federal government is not going to legalize recreational marijuana, states and local jurisdictions continue to propose and pass legislation that addresses decriminalization of marijuana, recognition of medical marijuana use and legalization of recreational marijuana. Currently 34 states permit medical use of cannabis products, and 18 states and the Washington D.C. permit recreational use of marijuana. The laws in some of these states prohibit employers from taking adverse action against an employee.

What does this mean for your Practice? Regarding recreational marijuana you can still prohibit employees from being under the influence while working. With respect to medical marijuana, you must engage in the “interactive process” and determine if a “reasonable accommodation” can be provided to an employee whose medical condition requires that they be under the influence during working hours. Your practice should review its substance abuse policy to ensure that it complies with your state and local laws, and you should identify a local lab that can perform the testing required to determine if an employee is under the influence while at work.

2) Paid Leave: Although the paid leave requirements of the federal government’s covid relief legislation has sunset, many states, counties, and cities have enacted or are considering enacting paid leave laws. Additionally, the Build Back Better Act would provide each worker with four weeks of paid family/sick leave. Some of these laws will require paid sick leave, others will provide for paid family leave. Given that these laws can vary from state to state and even city to city it is important that you review your Practice’s paid and unpaid leave policies to ensure that you are following the requirements for each practice location.

3)  Pay Equity: This is no longer just a question of equal pay for equal work. In fact, in some states the standard has been revised to provide equal compensation, including benefits, for substantially similar work. Additionally, some states have enacted legislation that prohibits a prospective employer from inquiring about a candidate’s salary history. The Biden Administration has made this issue a priority and we anticipate some additional action from the Executive Brach. We recommend that you review the salaries and benefits being provided to all employees to ensure that there is consistency within each employee group.

4)  Worker Classification: The U.S. Department of Labor recently withdrew the prior administration’s final rule designed to simplify the classification of workers as independent contractors, leaving open the possibility that the agency might be looking to propose a new rule. Such a rule could expand the number of workers considered to be employees under the Fair Labor Standards Act. Additionally, some states have made the misclassification of an employee a crime.

We also expect continued focus on exempt v. non-exempt status. Failure to pay even a minimal amount of overtime can result in the Practice being responsible for the back wages, a penalty, treble damages, and attorney fees. Practices are required to comply with multiple federal and state laws and agency guidance when determining worker status, applying wage and hour and tax laws and eligibility for fringe benefits. If you have a question about whether an employee is exempt you should seek the advice of an experienced employment law attorney before designating the employee as ineligible for overtime. Brent Pohlman, a Partner in the Employment Law practice group at Mandelbaum Barrett PC is ready to help with these questions.