As featured in #WorkforceWednesday: This week, we’re breaking down recent local- and state-level developments impacting compliance for employers.
Governor Ron DeSantis recently signed HB 1-B, Ch. 2021-272, Laws of Fla. (the “Vaccination Exemption Law”), which prohibits every private employer from issuing COVID-19 vaccination mandates for its Florida employees without allowing employees to opt out for five specific exemptions: (i) medical reasons, including pregnancy or expectation of pregnancy, as determined by a physician, advanced practice registered nurse, or physician assistant; (ii) religious reasons, based on a sincerely held belief; (iii) COVID-19 immunity, based on prior COVID-19 infection, as documented by a lab test; (iv) periodic testing, agreed to by the employee and at no cost to the employee; or (v) based on compliant use of employer-provided personal protective equipment (“PPE”), agreed to by the employee. Employers that receive a “completed exemption statement” must allow the requesting employee to “opt out” of the employer’s vaccination requirements.[1] Employers will be found to have violated the Vaccination Exemption Law by failing to provide for exemptions in their COVID-19 vaccination mandate and terminating the employee—which includes “the functional equivalent of termination,” as defined below.
On December 2, 2021, the Florida Department of Legal Affairs issued a Notice of Emergency Rule (the “Rule”), further defining key provisions of the Vaccination Exemption Law. Moreover, this Department (headed by the Attorney General) has issued guidance in the form of FAQs (the “Guidance”), outlining the employee complaint procedure for potential employer violations of the Vaccination Exemption Law.
The Rule
While the fate of two COVID-19 vaccination rules by federal agencies were decided in January by the Supreme Court of the United States, millions of employees working for the federal government, whether directly or as a contractor, have been waiting for clarity in the wake of court orders halting Presidential efforts to promote vaccination. Here is a brief update on the status of litigation challenging the extent of the President’s authority to command the Executive Branch.
As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.
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.
As featured in #WorkforceWednesday: This week, we look at how the COVID-19 Delta variant is shifting employer vaccination policies and how that shift is conflicting with regulations in some states.
The Delta variant of COVID-19 is fueling another new chapter of the pandemic: mandates. Recent federal and state action is driving a trend toward employers mandating vaccines. Read more about state action in California and New Jersey.
While the trend is shifting back toward greater caution regarding COVID-19, states like Florida and Texas are sticking with bans on vaccine mandates and proof of vaccination requirements.
In an 11-11 party-line tie, the Senate labor committee is deadlocked on approving David Weil’s return to the Department of Labor as the Wage and Hour Division Administrator, a post he held under the Obama administration.
See below for the video and podcast links. For Other Highlights and more news, visit https://www.ebglaw.com/insights/vaccine-mandates-mandate-bans-wage-and-hour-nomination-stalls/.
Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.
After keeping us waiting with baited breath for several years, the Eleventh Circuit finally broke its silence – issuing its long-anticipated ruling in Gil v. Winn-Dixie Stores, holding that websites are not covered as places of public accommodation under Title III of the Americans with Disabilities Act (“Title III” or “ADA”). In doing so, the Court reversed and vacated the district court’s decision finding that defendant, Winn-Dixie Stores, violated Title III by failing to maintain a website that is accessible to individuals, who are blind or have low vision.
Unfortunately, to the extent that businesses, individuals, and disability rights advocates were hoping that this decision would help provide some much needed definitive guidance in this area of the law, they are all undoubtedly disappointed. While the decision should diminish plaintiffs’ abilities to successfully mount website accessibility challenges against certain types of businesses/websites in the Eleventh Circuit, it does little to immediately change the current state of the law at the national level.
Notwithstanding, the collective 61-page majority and dissenting opinions, do contain additional analysis into this ever-developing area. Below are three critical takeaways from this long-awaited decision, as well as our thoughts in looking ahead.
Takeaway #1: According to the Eleventh Circuit, Websites Are Not Places of Public Accommodation Under The ADA
The majority opinion reached its decision by adopting an extremely strict interpretation of the ADA – diverging from many district and appeals courts in other circuits – holding that websites do not qualify as “places of public accommodation” (“PPA”) under Title III, and accordingly, the plaintiff’s inability to access the site, in and of itself, is not a Title III violation.
As drafted, Title III applies to PPA, which, as the Court correctly notes, are expressly defined as physical, tangible, places, like retail stores, hotels, restaurants, and theaters. Notwithstanding the ADA’s examples of PPA, to date, a number of courts in other Circuits have nevertheless found that businesses must make their websites accessible under Title III, by utilizing one of two theories:
Here, the majority outright rejected the “spirit of the law” approach as being contrary to the plain and unambiguous text of the ADA and, moreover, chose not to adopt the “nexus” theory (prevalent in the Ninth Circuit’s decision in Robles v. Domino’s), noting it was not something that had been previously followed in the Eleventh Circuit.
Instead, the Eleventh Circuit held that the impetus is on Congress to amend the ADA if its protections should be extended to websites, and absent Congress broadening the definition of PPA to include websites, it declined to “extend ADA liability to the facts presented to [it] here.”
Takeaway #2: The Eleventh Circuit Entertains an Alternative Theory of Potential Liability Under Title III, But Finds That It Still Doesn’t Result in Winn-Dixie’s Website Violating Title III
Having rejected the two theories noted above, the Appellate Court adopted an alternative, “third” theory of liability – the “intangible barrier” theory. Specifically, the Court held that if a website is inaccessible to individuals with disabilities, that website would violate Title III only where it creates an “intangible barrier” to accessing goods/services in a physical, brick and mortar location. The Court found that the inaccessibility of Winn-Dixie’s website did not present an “intangible barrier,” because it has a “limited use;” it is not the sole access point to the company’s stores, and it does not prevent the plaintiff from enjoying or accessing the goods/services that Winn-Dixie offers in its stores. (Indeed, the Court noted that the plaintiff had admittedly shopped at one of Winn-Dixie’s stores for years before he brought his lawsuit). Critically, the Court noted that Winn-Dixie’s website does not allow users to make purchases on the site; to the contrary, any purchases are made at the stores, and it held that anything a user could do on the website, it could also do at the stores.
Importantly, the majority was not swayed by the plaintiff’s arguments that the website’s inaccessibility forced him to confront additional inconveniences that individuals without disabilities, who could use the website, would not encounter (e.g., longer in-person wait times to pick up medications; inability to independently access coupons at home), and rejected his contention that these inequities denied him full and equal enjoyment of the grocery store or met the “intangible barrier” test.
Takeaway #3: This Decision’s Implications Are Limited
Ultimately, while this decision is sure to garner a significant amount of coverage, and does certainly make it harder to bring website accessibility claims under the ADA in the Eleventh Circuit, for the near-term future, it is unlikely to have a significant impact on this area of the law at a national level.
Although the majority held that Winn-Dixie did not violate Title III by maintaining an inaccessible website, it took great care to mention more than once that the fact that the website did not contain an e-commerce component linked to the store was a factor in reaching its decision.
Undoubtedly, the decision provides businesses with ammunition to aggressively fight back against cases filed in the Eleventh Circuit where: (i) a business is cyber-only and entirely unconnected to a physical PPA; or (ii) the website in question is predominantly informational and does not contain an e-commerce component. Given that a significant number of website accessibility lawsuits and demand letters continue to emanate from Florida, this should provide relief to Florida businesses that fit into one of these two categories.
As noted above, the Eleventh Circuit’s decision is inconsistent with those in several other circuits and district courts, and accordingly, is unlikely to deter plaintiffs from simply switching forums and asserting claims in jurisdictions that have adopted more pro-plaintiff theories of the law, such as New York, Massachusetts, Vermont, or California, where Title III and/or state/local law currently require accessible websites.
Looking Ahead
Plaintiff’s counsel in this case has vowed to appeal to the Supreme Court. While the Supreme Court previously rejected Domino’s efforts to seek review of its case in the Ninth Circuit, it is possible that the tension between the two cases will finally be enough for the Court to grant certiorari.
Separately, while recent efforts over the past six months have proven unsuccessful, there is bipartisan interest among some members of Congress to amend the ADA to expressly address digital accessibility. Similarly, we anticipate that if Congress confirms Kristen Clarke to serve as the head of the U.S. Department of Justice’s Civil Right Division (“DOJ”), DOJ’s Disability Rights Section is apt to work with the U.S. Access Board to reignite prior efforts under the Obama Administration to promulgate and adopt federal regulations governing website and mobile application accessibility. Interested parties should keep an eye out for announcements of such developments this July around the anniversary of the ADA and will, of course, report on any such announcements.
In the interim, as we’ve noted for years, the best way to currently avoid falling prey to website accessibility lawsuits like Gil v. Winn-Dixie Stores and Robles v. Domino’s’s is to achieve substantial conformance with the Web Content Accessibility Guidelines (“WCAG”) 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives), maintain internal digital accessibility policies and corporate governance procedures, include website accessibility obligations in all contracts with third-party vendors, provide training to relevant employees regarding developing, operating, and maintaining an accessible website, and ensure that these efforts are ongoing, and not simply one-time efforts.
Our colleagues Denise Dadika and Vidaur Durazo of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: “Changing Floors: Minimum Wage Increases for Health Leaders to Consider”.
The following is an excerpt:
2021 is set to be a landmark year for the number of jurisdictions raising wage floors across the country. According to a National Employment Law Project report, as of January 1, 2021, 20 states and 32 municipalities raised their minimum wage. By the end of 2021, the report tracks that as many as 24 states and 50 municipalities will increase wages for the lowest-paid workers.
Perhaps as a reaction to the steadily growing Fight for $15 movement or in response to the COVID-19 pandemic, 40 cities and counties will have met or exceeded a $15 minimum wage by the end of 2021. Eight states — California, Connecticut, Illinois, Florida, Maryland, Massachusetts, New Jersey, and New York — and the District of Columbia, will raise their state minimum wage to $15 or higher by 2026. Florida voters’ recent approval of a ballot initiative to raise the state’s minimum wage to $15 by 2026 may evidence a shift of public support for an increased minimum wage. Indeed, a 2019 Pew Research Center survey revealed that upwards of two thirds of Americans support a $15 minimum wage. President Biden also supports increasing the minimum wage to $15, and while Congress unsuccessfully sought to include a provision to raise the federal hourly minimum wage from $7.25 to $15 in the recent American Rescue Plan COVID-19 stimulus bill, we expect further action to increase the federal minimum wage.
Click here to read the full post on the Health Employment and Labor Blog.
On June 15, 2020, and June 24, 2020, New York Governor Andrew Cuomo issued two Executive Orders (“EO”) numbers 202.45 and 205, which address COVID-19 travel-related restrictions. EO 202.45 temporarily modifies New York State’s pandemic-related Sick Leave Law to prohibit employees from receiving paid sick leave benefits if, as of June 25, 2020, they travel to a “restricted state” for non-work related reasons and contract COVID-19. EO 205 (the “Travel Advisory”) imposes a 14-day quarantine requirement on travelers from a “restricted state” entering New York. For the purposes of both orders, a “restricted state” is a state with a COVID-19 positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, based on data provided by the states.
The list of “Restricted States” is posted on New York’s COVID-19 Travel Advisory website. Data is reviewed weekly to determine whether a particular state should be added or deleted from the list. As of July 14, 2020, the following 22 states have been designated “restricted states”:
| Alabama | Kansas | Oklahoma |
| Arkansas | Louisiana | South Carolina |
| Arizona | Minnesota | Tennessee |
| California | Mississippi | Texas |
| Florida | New Mexico | Utah |
| Georgia | North Carolina | Wisconsin |
| Iowa | Nevada | |
| Idaho | Ohio |
The Travel Advisory requires travelers to quarantine for 14 days from the date they were in a restricted state. The quarantine mandate does not apply, however, to individuals who have passed through restricted states for a “limited duration,” i.e., less than 24 hours. Examples of “limited duration travel” include “stopping at rest stops for vehicles, buses, and/or trains; or lay-overs for air travel, bus travel, or train travel.”
Quarantine Requirements
Pursuant to the Travel Advisory, the New York Department of Health (“DOH”) released Guidance providing the following requirements for a quarantined individual:
Limited Exemption for “Essential Workers”
The Guidance provides a limited exception for “essential workers,” based on the duration of time they spend in restricted states, as well as the intended length of time they plan to be in New York. An “essential worker” is (1) any individual employed by an entity included in the Empire State Development Essential Business list; or (2) “any individual who meets the COVID-19 testing criteria, pursuant to their status as either an individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting, or an individual who is employed as an essential employee who directly interacts with the public while working,” under the DOH May 31, 2020 Protocol for COVID-19 Testing, or (3) “any other worker deemed such by the Commissioner of Health.”
The Guidance does not state how the exceptions for essential workers are limited based on the duration of time in restricted states. It does, however, specify the requirements for essential workers based on how long they remain in New York and establishes varying requirements for “Short Term” (i.e., less than 12 hours), “Medium Term” (i.e., less than 36 hours) and “Long Term” (i.e., several days) stays. By way of summary:
Upon their return to New York, essential workers based in New York who travel to a restricted state, must, along with their employers, comply with previously issued DOH guidance for employees returning to work after a suspected or confirmed case of COVID-19 or after close contact with a person with COVID-19, unless the DOH guidance is superseded by specific industry guidance.
Amendment of New York State’s Sick Leave Law
EO 202.45 temporarily modifies New York State’s Sick Leave Law for COVID-19 to make employees who voluntarily travel to a restricted state after June 25, 2020 ineligible for New York paid sick leave benefits, unless the travel was taken “as part of the employee’s employment or at the direction of the employee’s employer.” The Sick Leave Law already exempted employees who traveled to countries with a level two or three travel health designation from the Centers for Disease Control and Prevention.
Sometimes a crisis can be an opportunity to embrace new technologies and changes that were already on the horizon – albeit at a much more expedited pace. As employees are required to work remotely and practice social distancing due to the COVID-19 pandemic, the federal government and several state governments (including New York and New Jersey) are moving (New York more quickly than New Jersey) to enable remote online notarization and keep businesses operating.
A Potential Federal Solution
On March 18, 2020, Senator Kevin Kramer, R-N.D. and Mark Warner, D-Va, introduced legislation that would allow immediate nationwide use of remote online notarization in response to the Covid-19 outbreak. Senate Bill 3533, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (the “SECURE Act”) was introduced as bipartisan legislation to authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce. If the SECURE Act becomes law, it will authorize every notary in the US to perform remote on-line notarizations using audio-visual communications and tamper-evident technology in electronic notifications and provide fraud prevention through use of multifactor authentication.
Currently, only twenty-three states allow notaries to conduct remote notarizations: Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wisconsin.
Until the Covid-19 outbreak forced non-essential businesses to close and employees to work from home, neither New York nor New Jersey permitted remote on-line notarization of documents.
New York Moves Swiftly To Allow Remote Notarizations Through April 18, 2020
New York Governor Andrew Cuomo issued an executive order allowing notarizations using audio-video technology in place of physical appearance under certain conditions. This option allows New York Notaries and signers to practice the necessary “social distancing” required to reduce risk of contracting COVID-19. The order is in effect through April 18, 2020.
To use audiovisual technology to communicate during the notarization, the Notary and signer must comply with the following requirements:
New Jersey Is On The Right Track, But Moving Too Slowly
On March 19, 2020, the New Jersey Legislature passed bill A-3864 https://www.njleg.state.nj.us/2020/Bills/A4000/3864_I1.HTM which awaits signature by Governor Murphy and will allow remote notarization. However, once signed by the Governor, the bill does not take effect for 90 days. In addition, the New Jersey law does not apply to wills or family law matters (divorce, adoption, etc.).
Until Bill 3864 is signed by Governor Murphy and becomes effective, notaries in New Jersey have been instructed to perform “window-separated signings”. This means that the Notary and signor must be able to communicate with each other by sight and sound through the window and by normal means. Cell phones, FaceTime, Skype, Zoom or any other electronic communication tools may not be used for a “window-separated signing.” The Notary must follow all federal, state and local guidelines for social distancing, health protection and sanitization when meeting with signers and handling documents, IDs or other materials. As Covid-19 continues to tear through New Jersey and the United States as a whole, “window-separated signings” is not a practical solution and provides little comfort to notaries and signers alike.
While the US as a whole has been moving towards remote notarization for years, state by state, this crisis could be the impetus for a national resolution.