On September 24, 2021, in response to the Path Out of the Pandemic: COVID-19 Action Plan announced by President Biden on September 9, and Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), signed by the President the same day, the Safer Federal Workforce Task Force (“Task Force”) issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”). The Guidance, which the Director of the Office of Management and Budget approved, is intended to ensure that COVID-19 safeguards are provided in workplace locations with individuals working on or in connection with a Federal Government contract or contract-like instrument.  The requirements apply to new contracts awarded on or after October 15, 2021, and to contracts entered before that date when an option is extended or an extension is made.

Executive Order 14042

The Order requires all executive departments and agencies of the federal government to ensure that covered contracts and contract-like instruments include a clause ( “Clause”) requiring federal government contractors and subcontractors at any tier (“covered contractors”), for the duration of their contract, to comply with all guidance published by the Task Force that provide COVID-19 workplace safeguards.

The Order applies to the following types of federal contracts:

  1. procurement contracts for services, construction, or a leasehold in real property;
  2. contracts for services covered by the Service Contract Act, 41 U.S.C. § 6701 et seq.;
  3. contracts for concessions; and
  4. contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The Order expressly does not apply to grants; contracts whose value is equal to or less than the simplified acquisition threshold (currently $250,000), as defined in section 2.101 of the Federal Acquisition Regulation (“FAR”); contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act; employees performing work outside of the United States; and subcontracts solely for the provision of products.  Notwithstanding these exclusions, the Guidance and corresponding FAQs state that federal agencies may, and are encouraged to, incorporate the Clause into contracts not covered by the Order.

Safer Federal Workforce Task Force Guidance

The Guidance’s safety protocols apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces, even if they are not working on a federal contract or contract-like instrument. The workplace safety protocols include:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
  2. compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
  3. designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Covered contractors are responsible for ensuring that their employees comply with the workplace safety protocols, as well as the applicable agency COVID-19 workplace safety requirements while in federal workplaces.  The Guidance addresses in detail each of the three workplace safety protocols.

  1. Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation

Covered contractors must ensure that their employees are fully vaccinated for COVID-19, unless an employee is legally entitled to an accommodation based on a disability, including medical conditions, or a “sincerely held religious belief, practice, or observance.”  Documentation that proves vaccination status must be reviewed by the employer, including a copy of any one of the following: the record of immunization from a health care provider or pharmacy; the COVID-19 Vaccination Record Card; medical records documenting the vaccination; immunization records from a public health or State immunization information system; or any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine. A digital copy of the record is sufficient.

Covered contractor employees must be fully vaccinated by December 8, 2021. After that date, all covered contractor employees “must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.”  Federal agencies may approve a 60-day extension, if there is an urgent, mission-critical need for a covered contractor to have its employees begin work on a covered contract or at a covered workplace before becoming fully vaccinated.  In such instance the employers must ensure that the unvaccinated employees are wearing masks and meeting physical distancing requirements.

  1. Requirements related to masking and physical distancing while in covered contractor workplaces

Covered contractors must ensure that all individuals at a covered contractor workplace, including employees and visitors, comply with published CDC guidance for masking and physical distancing applicable to the specific workplace setting, e.g., healthcare, transportation, correctional and detention facilities, and schools.

With limited exceptions, fully vaccinated people must wear a mask in indoor settings in areas where community transmission is “high or substantial,” but not where community transmission is “low or moderate”.  Physical distancing is not required for fully vaccinated individuals regardless of level of community transmission.  Individuals who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings and during outdoor activities that involve sustained close contact with other people, regardless of the level of community transmission.  In addition, to the extent practicable, they must maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and work spaces. Individuals required to wear a mask must wear appropriate masks consistently and correctly.  Covered contractors must check the CDC COVID-19 Data Tracker County View website weekly for community transmission information.

Accommodations may be required for covered employees who cannot wear a mask due to a disability or because of a sincerely held religious belief, practice, or observance. Exceptions to mask wearing and/or physical distancing requirements consistent with CDC guidelines may be provided for individuals with private offices or for limited time when eating or drinking. Exceptions may also be provided where employees engage in activities in which a mask may get wet; high intensity activities where covered contractor employees are unable to wear a mask because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.

  1. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces

Covered contractors must designate a person or persons to coordinate the implementation of and compliance with the Guidance and the workplace safety protocols at covered contractor workplaces.  The designated individual(s) must ensure that information on required COVID-19 workplace safety protocols, including on protocols and requirements related to masking and physical distancing, is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces.

Frequently Asked Questions 

The Guidance also includes a Frequently Asked Questions (“FAQ”) section, which addresses vaccination and safety protocols, workplaces, scope and applicability, and compliance, which are summarized below.

Key points on vaccination and safety protocols include:

  • contractors must post signage at entrances regarding safety protocols for fully and partially vaccinated persons, including masking and physical distancing protocols.
  • contractors do not have to provide onsite vaccinations at workplaces.
  • contractors must resolve employees’ accommodation requests regardless of an employee’s workplace location.
  • employees previously infected with COVID-19 must still be vaccinated and may not submit a recent antibody test in lieu of proof of vaccination.

Key points on workplaces include:

  • the Guidance applies to all areas of a covered contractor’s workplace – whether indoors or outdoors, as well as to employees working remotely;
  • unless the covered contractor can determine that no employee in or at one building, site, or facility will come in contact with a covered contractor employee during contract performance, all other buildings, sites, or facilities controlled by a contractor are considered covered contractor workplace;.
  • workplace safety protocols are the same whether work is performed at the covered contractor workplace or at a federal workplace.
  • Notably, the Guidance also applies to remote workers.

The key points on scope, applicability and phase-in requirements of covered contracts are as follows:

  • Contracts awarded prior to October 15, 2021 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made;
  • New contracts – the requirements must be incorporated into contracts awarded on or after November 14, 2021. Between October 15 and November 14, agencies must include the clause in their solicitation; agencies and contractors are encouraged to include the clause in contracts that were solicited before October 15, but are not required to do so.

President Biden’s Order applies to all federal contractors, regardless of size, and to subcontractors at all tiers, except for subcontracts solely for the provision of products. Accordingly, the FAQs take a broad view of covered employees, stating that employees who perform duties necessary to the performance of the covered contract, even if not directly engaged in the specific work identified in the contract (such as human resources, billing, and legal review), perform work “in connection with” a covered contract, and therefore are covered by the Order.  The Guidance as updated by the Task Force in the foreseeable future will also apply to existing contracts.

Regarding compliance, the Guidance makes clear that any of the workplace safety protocols set forth in the Guidance supersede any contrary state or local law or ordinance. Further, the Guidance does not excuse noncompliance with any applicable federal, state or municipal mandate establishing more protective workplace safety protocols. In addition, should a covered contractor be subject to the workplace safety requirements promulgated by the Occupational Safety and Health Administration, compliance with the Guidance is still mandated.

As a practical matter, the Guidance essentially requires employers who are federal contractors or subcontractors to be first-line enforcers of federal vaccination mandates, irrespective of the difficulties that role may engender from vaccine-resistant employees.  The ante for being a federal contractor has just been significantly raised.

On September 17, 2021, Los Angeles County Department of Public Health (LACDPH) announced a public health order (“the Order”) requiring proof of COVID-19 vaccination for all on-site employees and visitors at indoor bars, breweries, wineries, distilleries, nightclubs, and lounges throughout the county. Effective Thursday, October 7, 2021 at 11:59 P.M., proof of vaccination will be required to enter these establishments, and will be strongly recommended, although not required, for restaurants with indoor dining. Patrons who do not provide proof of vaccination may still be served in outside areas of the venue or enter the indoor portion for pick up or delivery.

The Order requires that both on-site employees and patrons be able to show proof of at least one vaccine dose by October 7, 2021, and to have proof of being fully vaccinated by November 4, 2021. The Order considers a person to be “fully vaccinated” two or more weeks after they have received the second dose in a 2-dose series or two or more weeks after a single-dose vaccine. On-site employees may be exempted from the vaccination requirement upon providing a declination form to their employer, stating they are declining vaccination due to sincerely-held religious beliefs or due to Qualifying Medical Reasons. Employees exempt from the requirement are to be tested for COVID-19 at least once a week, and must wear a surgical mask at all times while working.

The Order provides for verification of vaccination status by having employees and patrons present photo identification accompanied by: (a) a vaccination card; (b) a photo of their vaccination card (printed or stored on a phone or electronic device); or (c) documentation of full COVID-19 vaccination from a healthcare provider. Self-attestation is not permitted for verification of vaccination or as confirmation of test results.

The Order will also require vaccination verification or a negative COVID-19 test within the preceding 72 hours from all attendees, ages 12 and older, and workers at mega outdoor events with 10,000 people or more, beginning October 7, 2021. Mega events include conventions, conferences, expos, concerts, shows, nightclubs, sporting events, live events and entertainment, fairs, festivals, parades, theme parks, amusement parks, water parks, large private events or gatherings, marathons or endurance races, and car shows. In addition, the Order extends a previous California order requiring vaccination or recent negative COVID-19 test for all indoor events with more than 1,000 attendees. While self-attestation at such indoor mega events had previously been allowed, as of September 20, 2021, the California Department of Public Health no longer permits self-attestation as a method of verifying an attendee’s status as fully vaccinated or as proof of a negative COVID-19 test result.

What this means for employers

Employers with employees working in Los Angeles County must be prepared to verify the vaccination status of all on-site employees working in public indoor bars, wineries, breweries, nightclubs, and lounges starting October 7, 2021, and must require that staff provide proof of being fully vaccinated by November 4, 2021.  Those employers should familiarize themselves with the bases for exemptions. According to the Order, employees claiming a religious or medical exemption must provide their employer with a signed declination form, stating that the worker declines vaccination based on (i) sincerely held religious beliefs or (ii) due to “Qualifying Medical Reasons.” An exemption request based on Qualifying Medical Reasons must be accompanied by a signed written statement from a specified licensed medical professional, affirming that the individual qualifies for an exemption and the duration of that patient’s inability to receive the vaccine. Such medical certifications should not describe the underlying medical condition. As stated above, on-site employees who meet eligibility requirements for an exemption must be tested for COVID-19 with a non-rapid test at least once per week, and must wear a mask that is at least surgical grade at all times while at work.

Employers with employees working at outdoor events with more than 10,000 attendees must also prepare to verify vaccination status or a recent negative COVID-19 test for all workers and attendees.

The LACDPH will be preparing tool kits for businesses to use while confirming vaccinations of patrons, and has also provided Guidance for Verifying Proof of COVID-19 Vaccination and Guidance for Verifying Proof of a Negative COVID-19 Test.

The LACDPH Order requiring all persons to wear face masks indoors, regardless of vaccination status, remains in effect.

 

*Catherine Kang a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s Los Angeles office, contributed to the preparation of this post.

On September 23, 2021, the New York State Department of Labor (“NYSDOL”) released an update to its general model airborne infectious disease exposure prevention plan (“model plan”) for employers’ use in complying with the NY HERO Act. Specifically, the model plan’s language regarding face coverings and physical distancing was modified by:

  • distinguishing between workplaces where all individuals on the premises, including, but not limited to, employees, are fully vaccinated and those workplaces where not all individuals are vaccinated in terms of whether face coverings are required or recommended, consistent with current guidance from the New York State Department of Health (“NYSDOH”) and the Centers for Disease Control and Prevention (“CDC”), and
  • recommending the use of physical distancing “to the extent feasible” per guidance from NYSDOH and the CDC.

A comparison of the changes is reflected below:

Image: A comparison of the changes.

These changes appear to give employers with fully vaccinated workplaces more flexibility in whether to mandate face coverings. The revised NYSDOL model plan is available here.

Employers with fully vaccinated workplaces wishing to take advantage of this flexibility likely will want to update their HERO Act safety plan to reflect the language in the new model.

To learn about the actions that New York employers need to take now to comply with the NY HERO Act, please read our Insight entitled “All New York HERO Act Safety Plans Must Be Placed Into Effect: New Guidance Issued.”

Supreme Judicial Court Clarifies Breadth of COVID-19 Tolling Order

During the early days of the COVID-19 pandemic, the Supreme Judicial Court of Massachusetts (“SJC”) entered an order tolling the statutes of limitations applicable to civil claims. Although some practitioners interpreted the order as tolling only those statutes of limitations set to expire while the order was in effect, in Shaw’s Supermarkets, Inc. v. Melendez, SJC-13054 (Sept. 3, 2021), the SJC rejected such a narrow interpretation and held that its order tolled all statutes of limitations, regardless of their expiration date. Employers should take note of Melendez and consider whether they have any other timeliness arguments when faced with stale claims.

The Decision

In Melendez, the plaintiff alleged that she was injured because of the defendant’s negligence on September 3, 2017. Although M.G.L. c. 260, § 2A requires plaintiffs to file tort claims within three years “after the cause of action accrues,” the plaintiff filed suit on September 24, 2020 pursuant to the SJC’s Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic (“COVID-19 Order”), which provided that “[a]ll civil statutes of limitations were tolled . . . from March 17, 2020, through June 30, 2020.”

The defendant moved to dismiss the plaintiff’s claim as barred by the statute of limitations. In support of its motion, the defendant argued that the COVID-19 Order tolled only those statutes of limitations that were set to expire from March 17, 2020, through June 30, 2020. Because the statute of limitations applicable to the plaintiff’s claim would have expired on September 3, 2020, the defendant contended that the COVID-19 Order was inapplicable.

Based on the “plain language” of the COVID-19 Order, “which tolled all civil statutes of limitations regardless of their expiration,” the district court rejected the defendant’s argument. On appeal, the SJC affirmed the district court’s decision, reasoning that the phrase “[a]ll civil statutes of limitations” “encompasse[d] each and every civil statute of limitations, not just those where the statutory period of limitation expired between March 17, 2020, and June 30, 2020.”

Considerations for Employers

Melendez makes clear that the COVID-19 Order essentially tacks additional time onto the statute of limitations applicable to any cause of action that accrued on or before June 30, 2020. Accordingly, it may require employers to litigate claims that they otherwise would have been able to dismiss based on the applicable statute of limitations. However, employers may still have three timeliness arguments to defeat late-filed claims after Melendez.

First, employers should consider whether the statute at issue is truly a statute of limitations, or whether it is a statute of repose. In Klein v. Catalano, 386 Mass. 701 (1982), the SJC explained the difference between the two types of statutes as follows:

A statute of limitations normally governs the time within which legal proceedings must be commenced after the cause of action accrues. . . . A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action. The injury need not have occurred, much less have been discovered.

By its terms, the SJC’s COVID-19 Order applies only to statutes of limitations, not statutes of repose. More importantly, on numerous occasions, the SJC has held that, unlike statutes of limitations, statutes of repose may not be tolled for any reason. As a result, a statute of repose may provide employers with a basis for defeating a time-barred claim.

Second, the SJC’s COVID-19 Order likely does not toll an employee’s 300-day deadline to file a discrimination or retaliation claim under M.G.L. c. 151B with the Massachusetts Commission Against Discrimination (“MCAD”). The COVID-19 Order focused on the operation of Massachusetts’ courts, and the SJC issued it pursuant to the SJC’s “superintendence and rule-making authority” over the court system. As such, administrative filing deadlines are presumably beyond its reach. In addition, on April 1, 2020, the MCAD issued Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis providing that “extending filing deadlines . . .  will be determined on a case-by-case basis . . . by submitting a motion to the investigator or staff member assigned to [the] case.” That the MCAD adopted its own guidelines on tolling further suggests that the SJC’s COVID-19 Order is inapplicable to MCAD proceedings. Accordingly, employers faced with an untimely claim at the MCAD may be able to secure its dismissal if they can show that traditional tolling doctrines (such as equitable tolling, the continuing-violation doctrine, and fraudulent concealment) do not apply.

Finally, it is unclear whether Melendez affects arbitration agreements that shorten the limitations period applicable to claims subject to the agreement. Employers with such arbitration agreements may be able to enforce their contractually shortened limitations periods, provided that the shortened period is reasonable.

Employers dealing with potentially time-barred claims should consult with counsel about these and other defenses.

On September 30, 2021, the COBRA premium assistance period established by the American Rescue Plan Act (“ARPA”) will come to an end. ARPA requires, among other things, that employers provide 100 percent COBRA premium subsidies to assistance eligible individuals (“AEIs”) and their qualified beneficiaries, if they are eligible for COBRA during the six-month period beginning April 1, 2021 through September 30, 2021. Employers must notify all AEIs that their subsidy period is going to end by sending the Notice of Expiration of Premium Assistance at least 15 days, but no more than 45 days, before the expiration of the premium assistance. With the COBRA premium assistance period less than two weeks away, employers should have already sent their final Notices of Expiration. Employers that have not done so, however, should send the notices now.

As featured in #WorkforceWednesday:  This week, we look at significant developments for employers from across the federal government, including at the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the Securities and Exchange Commission (SEC).

OSHA Readies Vaccine Mandate Requirement

President Biden is embracing vaccine mandates in his new COVID-19 action plan. Among other mandates, the plan includes a new OSHA-enforced requirement that employers with 100 or more employees mandate vaccines or test employees weekly. Read more about the new requirements.

First EEOC Remote Work Lawsuit Alleges Disability Discrimination

The EEOC has brought suit alleging disability discrimination under the Americans with Disabilities Act. This is the first COVID-19-related remote work case where the agency itself has initiated legal action during the pandemic.

SEC Whistleblower Program Tops $1 Billion in Awards

Last week, the SEC announced two whistleblower awards that totaled $114 million. With these awards, the SEC’s whistleblower program has now awarded over $1 billion to whistleblowers since its first award in 2012. “For employers, this is a clarion call that you need to embrace best practices and training,” said attorney Greg Keating in The Wall Street JournalRead more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw226.

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

As featured in #WorkforceWednesday:  This week, we focus on Biden’s six-pronged action plan towards combating COVID-19, which requires mandatory vaccination programs for a majority of employers.

Biden Announces Employer Vaccine Mandates

On September 9, President Biden announced that all federal agencies and contractors and employers with 100 or more employees in the private sector must mandate COVID-19 vaccination through a new Occupational Safety and Health Administration-enforced emergency temporary standard. The plan is estimated to impact two-thirds of the country’s workforce. Attorneys Kate Rigby and Adam Tomiak discuss how employers should prepare for compliance. To read more about the President’s plan, click here.

New York HERO Act Safety Plans Now Required

New York Governor Kathy Hochul recently designated COVID-19 a serious public risk under the state’s HERO Act (“Act”), requiring employers’ safety plans developed pursuant to the Act to go into effect. Read more.

Marijuana Legalization Rundown: Recent Judicial Decisions

State legislatures across the country have been busy enacting cannabis legalization laws this year. Along with those laws has come a number of significant court decisions interpreting the application of cannabis legalization around the country. Read more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw225.

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

As we wrote in our last Marijuana Legalization Rundown, state legislatures across the country have been busy enacting cannabis legalization laws this year.  Along with those laws has come a number of recent court decisions interpreting the application of cannabis legalization laws.  This post summarizes some of the significant decisions issued this year.

California     

On April 28, 2021, the U.S. District Court for the Central District of California granted summary judgment to the defendant employer on claims brought under the Fair Employment and Housing Act (“FEHA”)—including claims for disability discrimination, retaliation, wrongful termination in violation of public policy, failure to provide accommodation, failure to engage in an interactive process, and failure to prevent discrimination—asserted by a medical marijuana user whose job offer was withdrawn based on a positive pre-employment drug screening test.

In Espindola v. Wismettac Asian Foods, Inc.Case No. 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021), the plaintiff, a Florida resident, applied through a recruiting agency for an executive position with the defendant employer.  The company offered the plaintiff a job and told him that he would be subject to the policies in the company’s employee handbook, which contained a pre-employment drug testing provision.  At the plaintiff’s request, he was granted a delay in scheduling his drug screening in order to address personal matters.   Shortly thereafter, and only a few days before his first day at work, the plaintiff took steps to procure a medical marijuana card in Florida.  As part of his on-boarding paperwork, the plaintiff indicated that he was not disabled and signed a drug testing consent form and the employee handbook.  In a subsequent meeting with the employer’s CEO, the plaintiff disclosed that he had chronic back pain for which he had been prescribed medical marijuana.  The plaintiff did not provide any supporting medical documentation to prove his diagnosis or any work-related limitations, only providing the approval of his application for a medical marijuana card by the Florida Department of Health.  The plaintiff took his pre-employment drug test, which was positive for marijuana.  The employer terminated the plaintiff’s employment due to the positive test, after which the plaintiff filed a complaint in California federal court.

In granting the employer’s motion for summary judgment, the court held that the plaintiff’s disclosure to the employer that he had chronic back pain alone, without supporting documents to substantiate his claim of a physical disability or how chronic back pain affected his ability to work, was insufficient to make out a prima facie claim under the FEHA.  The court concluded that in the context of this case, the plaintiffs “chronic back pain” did not qualify as a disability under the FEHA and the employer could not be said to perceive the plaintiff as having a disability.  For these reasons, the plaintiff’s accommodation, interactive process, and retaliation claims also failed. Moreover, the court held that, even if the plaintiff could establish that he had a qualified disability, he could not meet the evidentiary standard to show that he was terminated from employment for anything other than a legitimate, non-discriminatory reason—the failed drug screen.  The court explained that where, as here, “the employer has a uniform policy requiring employees to complete a pre-employment drug test as a condition of employment, the fact that the employee has notice of that condition, coupled with the result of the test, is determinative.”  Therefore, the employer had a legitimate, non-discriminatory reason for terminating the plaintiff’s employment.  The case has been appealed to United States Court of Appeals for the Ninth Circuit.

In so holding, the court confirmed that in California—unlike in New York, Nevada, and soon Philadelphia—an employer may screen out applicants on the basis of a pre-employment drug test for marijuana.  To reduce the likelihood of discrimination claims such as the one asserted in Espindola, employers should take care to notify applicants that a job offer is conditioned on consent to drug testing, to uniformly apply the drug testing policy to all applicants, and to avoid any discussions of an applicant’s underlying medical conditions.

Michigan

On May 13, 2021, the United States District Court for the Western District of Michigan held that a Black employee whose employment was terminated for a positive drug test for marijuana had plausibly pled his allegations of employment discrimination sufficient to overcome the defendant employer’s motion to dismiss.

In Bownes v. Borroughs Corp., Case No. 1:20-cv-964 (W.D. Mich. May 13, 2021), the plaintiff was a long-time, union employee covered by a collective bargaining agreement (“CBA”). The employer immediately terminated the plaintiff’s employment after he tested positive for marijuana. The CBA, however, provided that if an employee tested positive for a controlled substance, the employer could allow the employee to complete a “rehabilitation/treatment program” as a condition of continuing employment.  The employer could immediately terminate employment after a second positive test, unless the employee “comes forward and admits that he has an alcohol or drug problem after having been rehabilitated.”  The plaintiff alleged that similarly situated White employees who had failed drug tests had been given the opportunity to complete a “rehabilitation/treatment program” and allowed to continue their employment.

In denying the employer’s motion to dismiss, the court held that the plaintiff had sufficiently pled a disparate treatment claim by identifying six White employees allegedly treated more favorably than him.  The court rejected the employer’s attempt to introduce information outside of the complaint that would allegedly show that it had a universally-applied zero tolerance workplace drug policy.

While the employer will have an opportunity to present its defense more fully on summary judgment, this case presents a lesson to employers that they should carefully consider the level of discipline that is appropriate for a drug (in this case, marijuana) offense, and ensure that offenders are disciplined fairly and consistently under the company’s policy.

Pennsylvania

On August 10, 2021, the Pennsylvania Superior Court affirmed that the state’s Medical Marijuana Act (“MMA”) creates an implied private right of action for medical marijuana users to sue their employers for discrimination.

The MMA provides that “[no] employer may discharge . . . or otherwise discriminate or retaliate against an employee . . . solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  In Scranton Quincy Clinic Company, LLC v. Pamela Palmiter, Case No. 498 MDA 2020 (Pa. Super. Ct. Aug. 5, 2021), a medical assistant who uses medical marijuana to treat chronic pain, chronic migraines, and persistent fatigue, was advised that she could not continue to work after failing a drug test, despite providing a copy of her medical marijuana certification.  Although the MMA does not create an express private right of action, the medical assistant brought a claim for discrimination and wrongful discharge in violation of the law.

Acknowledging that the MMA does not create an express private right of action with statutory remedies, the appellate court adopted the lower court’s three-part analysis to determine whether the statute contained an implied right of action.  Specifically, the three-judge panel considered whether: (1) the plaintiff is one of the class for whose “especial” benefit the statute was enacted; (2) there is an indication of legislative intent, explicit or implicit, to create or deny such a remedy; and (3) it is consistent with the underlying purpose of the legislative scheme to imply such a cause of action.  In holding that the MMA contained an implied right of action, the appellate court observed that the General Assembly had “proclaimed a public policy prohibiting such discrimination” against medical marijuana users, and found that the Pennsylvania Department of Health did not have exclusive enforcement authority.

The Superior Court also determined that the MMA supports a claim for wrongful discharge.  Siding with the trial court, the Superior Court again cited public policy reasons, rejecting the employer’s assertion that Department of Health remedies were intended by drafters to be the MMA’s sole enforcement mechanism.

Now that a state appellate court has given employees the “green light” to bring their own claims under the MMA, Pennsylvania employers should exercise care when considering adverse employment actions against employees based on their on their off-site use of medical marijuana.

* * *

These cases illustrate that the legal landscape regarding cannabis and employment law continues to change, even in jurisdictions that have legalized medical and/or recreational cannabis.  Employers should continue to monitor case law developments to determine whether and to what extent they may discipline employees or refuse to hire applicants who test positive for cannabis.

*America Garza, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

Many employers are aware that they could waive the ability to enforce an arbitration agreement if they delay moving to compel arbitration until after they have engaged in significant litigation activities in court, such as filing a motion to dismiss or serving discovery requests. However, in Hernandez v. Universal Protection Services, a Massachusetts Superior Court judge found that an employer waived its right to compel arbitration based on its actions before an employee filed suit in court. As Hernandez is novel and significant, employers may want to consider adopting practices to remind employees of their arbitration agreements when it appears that litigation is likely.

Background

In September 2018, Universal hired Hernandez. As a condition of her employment, she signed an arbitration agreement requiring her to arbitrate all claims against Universal, including those for discrimination or harassment.

According to Hernandez’s complaint, in March 2020, her supervisor sexually harassed her. She reported the alleged harassment to the local police department, who, in turn, told Universal about it. Shortly after Universal learned of the Hernandez’s allegations, it terminated her supervisor’s employment.

Nonetheless, Hernandez filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) against Universal and her former supervisor alleging that her former supervisor sexually harassed her at work. Around the same time, she also requested that Universal provide her with a copy of her personnel record under Massachusetts’ personnel-record law (M.G.L. c. 149, § 52C).  . Universal gave Hernandez a copy of her personnel record, but it  did not include the arbitration agreement she had signed.

After Universal responded to Hernandez’s MCAD complaint, she removed the case to the Massachusetts Superior Court. Promptly after Hernandez served Universal with a copy of her court complaint, Universal moved to dismiss or compel arbitration based on the agreement Hernandez had signed in 2018. Hernandez opposed that motion, arguing Universal had waived its right to compel arbitration.

Decision

The court agreed with Hernandez and found that Universal had waived its right to enforce the arbitration agreement for three reasons. First, although M.G.L. c. 149, § 52C requires employers to include “any waiver signed by the employee” in an employee’s personnel record, Universal did not provide Hernandez with a copy of her arbitration agreement (which waived her right to file her claims in court) when it responded to her request for her personnel record. Second, the court found that Universal had “failed to disclose the existence of or its intent to enforce an arbitration agreement” after it learned of Hernandez’s allegations, during the MCAD proceedings, or at any other time before the employee filed a complaint in Superior Court. Finally, in the court’s view, the employee ostensibly suffered prejudice by removing her case from the MCAD to Superior Court, which was “irreversible” and done “at her own cost.” Accordingly, the court denied Universal’s motion to dismiss or compel arbitration.

Takeaways for Employers

While Massachusetts courts have long recognized that an employer can waive its ability to enforce an arbitration agreement, Hernandez is a novel decision. Typically, courts find a waiver based on an employer’s actions in court, such as taking actions inconsistent with an intent to arbitrate, failing to move to compel arbitration promptly after service of process, invoking the judicial machinery, or taking other actions that have prejudiced the employee. In stark contrast to these cases, Hernandez found a waiver based on the employer’s actions before the employee filed her court complaint.

As a trial court decision, Hernandez is not binding precedent in Massachusetts, and other courts may disagree with its reasoning. However, employers can take a few steps to avoid a potential waiver based on Hernandez:

  • Exercise diligence when searching for and assembling documents in response to an employee’s personnel-record request to avoid omitting arbitration agreements.
  • Remind employees of their obligation to arbitrate claims in response to threats of litigation (such as a formal demand letter).
  • Refer to arbitration agreements in initial submissions to state and federal agencies (such as the U.S. Equal Employment Opportunity Commission and MCAD) to put employees on notice of the applicability of the agreement to the dispute if they remove their claims to court.

Taking these steps is unlikely to impose significant burden on most employers and may help ensure that employers are able to compel employees to abide by the agreements they signed.

On September 9, 2021, President Biden announced that his Administration is implementing a six-pronged, comprehensive national strategy to ensure that all available tools are being used to combat COVID-19.  The plan addresses: (1) vaccinating the unvaccinated; (2) further protecting the vaccinated; (3) keeping schools safely open; (4) increasing testing and requiring masking; (5) protecting the economic recovery; and (6) improving care for those with COVID-19.  The first strategy is germane to employers.

Vaccinating the Unvaccinated – To accomplish this, the U.S. Government will require the following:

  • All private sector employers with 100 or more employees will be required to ensure their workers are vaccinated. Those who remain unvaccinated will need to produce a negative test result on at least a weekly basis before coming to work. The Administration has directed the Occupational Safety and Health Administration (OSHA) to develop and issue a new Emergency Temporary Standard (ETS) to implement this requirement.

The new ETS is expected to include a requirement that private employers with 100 or more employees provide paid time off for workers to receive the vaccine and recover from any side effects.   While a timeline for issuance of the rule has not been announced, an ETS was already issued for workers in health care settings, effective June 21, 2021. That ETS does not contain a vaccination mandate, but does direct employers to provide reasonable paid leave for vaccinations and vaccine side effects.

  • All federal workers and contractors that do business with the federal government will need to be vaccinated. By Executive Orders issued September 9, 2021, President Biden directed that all federal executive branch workers be vaccinated (Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees); and that all employees of contractors that do business with the federal government be vaccinated (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Order covering federal employees eliminated the testing option for those who are not vaccinated.  Under the Order covering federal contractors, however, although the testing option appears to have been eliminated, further guidance is needed as to whether testing will be available for those employees of federal contractors who are not “performing [work] on or in connection with a Federal Government contract.”  The Safer Federal Workforce Task Force is expected to issue guidance on September 24, 2021.

The latter Order takes effect immediately and applies to new contracts, new solicitations, extensions or renewals, and exercises of options on existing contracts where the relevant contract will be entered into, extended or renewed, or option exercised on or after October 15, 2021.  The Order does not address penalties for the failure of federal government contractors to comply.

  • All staff at Medicare and Medicaid-certified hospitals and other health care facilities will be subject to a vaccine mandate. The U.S. Centers for Medicare and Medicaid Services (“CMS”) announced the nationwide mandate on September 9, 2021, applicable but not limited to, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action is a continuation of efforts announced on August 18, 2021, when CMS advised that it was collaborating with the Centers for Disease Control and Prevention (“CDC”) to develop an emergency regulation requiring staff vaccinations at nursing homes participating in Medicare and Medicaid. It will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

CMS is developing an Interim Final Rule with Comment Period that will be issued in October.  Until that Final Rule takes effect, CMS expects certified Medicare and Medicaid facilities to act in the best interest of patients and staff by complying with new COVID-19 vaccination requirements.

Employers should operate on the assumption that, while controversial, the President’s orders may withstand any legal challenge, especially with respect to government contractors, given that there is no inherent right to do business with the government or gain from a federal contract. There is long-standing precedent of the United States Department of Labor (“DOL”) and the Office of Federal Contract Compliance Programs (“OFCCP”) successfully enforcing federal contract mandates that support an administration’s policy goals.

What Employers Should Do

With the issuance of President Biden’s COVID-19 Action Plan and Executive Orders, there remain many unanswered questions regarding the details. Until those questions are answered, employers should do the following:

  • Follow guidance and watch for updated guidance/rules issued by the Center for Disease Control (CDC), OSHA, the Task Force, and, if applicable, CMS and other regulatory agencies.
  • Consider using all available resources to support employee vaccinations, including employee education and clinics.
  • If implementing a vaccination mandate, recall that, as we have previously explained, such programs must be compliant with applicable laws protecting workers’ medical information privacy, limiting disability-related inquiries, and prohibiting discrimination based on disability or other protected categories, including sincerely held religious beliefs and genetic information. Employers should refer to the U.S. Equal Employment Opportunity Commission’s guidance and seek our support.
  • Stay tuned – we will keep abreast of developments as guidance is released or updated, to help employers stay compliant.