While the announcement generated considerable public attention, employers should understand that the change does not create a “right” to use marijuana in the workplace, nor does it prevent employers from maintaining workplace drug and alcohol policies—particularly for safety-sensitive positions and public sector employees.

What Does This Mean for Employers?

• The DOJ’s action does not require employers to permit employees to work while impaired, nor does it prohibit employers from enforcing workplace drug testing policies. However, the reclassification is likely to increase scrutiny of employer decisions involving off-duty medical marijuana use, particularly where the employee is using marijuana pursuant to a physician recommendation or for treatment of a medical condition.
• One of the most significant practical developments is that employers should move away from blanket marijuana prohibitions and instead focus policies on workplace impairment and fitness for duty. As a result, employers should review existing policies to ensure they clearly prohibit employees from reporting to work impaired or under the influence of any substance that affects their ability to safely and effectively perform their job duties.
• As it pertains to drug testing, the Schedule III classification means that employers should carefully assess whether the positive drug test result is pursuant to a valid state prescription or recommendation for medical marijuana.

Reasonable Accommodation Considerations

• The area most likely to evolve in the coming years involves disability accommodation claims under the Americans with Disabilities Act (“ADA”) and similar state and local laws protecting disabled employees. The reclassification of medical marijuana will inevitably lead employees to request permission to use medical marijuana off duty as a reasonable accommodation for a recognized disability.
• When evaluating accommodation requests, employers should continue engaging in an individualized, interactive process while carefully assessing whether the requested accommodation would create a direct threat to the health and safety of the employee or others or undue hardship based on the employee’s specific position and job duties. The analysis should resemble how employers already address other prescribed medications that may impair judgment, reaction time, alertness, or firearm and vehicle operation.

Looking Ahead

• Although the DOJ’s action represents a significant policy shift, many legal questions remain unresolved. Courts will likely continue addressing issues involving: workplace drug testing; disability accommodations; off-duty lawful conduct; and fitness-for-duty standards.
• Employers should continue monitoring legal developments and consult counsel when reviewing workplace drug policies or responding to accommodation requests involving medical marijuana use.
  

If you have questions regarding your organization’s drug and alcohol policies or the impact of the DOJ’s reclassification of marijuana, please contact our office.

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Section 3 of the EO, titled “Terminating Illegal Discrimination in the Federal Government,” specifically addresses the federal contracting process and revokes several previous executive orders and memoranda, including Executive Order 11246 (“EO 11246”). Originally established in 1965 by President Lyndon Johnson, EO 11246 prohibited employment discrimination by federal contractors and subcontractors based on race, color, religion, sex, and national origin. EO 11246 also required covered contractors to take affirmative action to ensure equal employment. President Trump’s EO now bars federal contractors from considering race, color, sex, sexual orientation, religion, or national origin in their employment, procurement or contracting practices “in ways that violate the Nation’s civil rights laws.” The EO ultimately eliminates affirmative action plan obligations for federal contractors.

Section 4 of the EO, titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences” directs federal agencies, in coordination with the attorney general, to take necessary actions to implement the EO’s principles. Within 120 days, the attorney general, in consultation with agency heads, is required to submit a report with recommendations for enforcing federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. This report must outline key areas of concern within each agency’s jurisdiction, identify the most egregious DEI practices, propose specific measures to deter illegal discrimination, suggest strategies for private sector engagement, and indicate potential litigation and regulatory actions.

It is crucial to note that President Trump’s EO does not alter existing anti-discrimination laws (like Title VII or the Florida Civil Rights Act) or their judicial interpretations. However, we strongly encourage employers, particularly federal contractors, to evaluate their current DEI initiatives and/or programs to ensure potential compliance with the EO.

We will continue to monitor developments regarding this executive order. If you have any questions or concerns about it or other employment-related executive orders, please feel free to reach out to us.

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The PWFA expands upon existing federal laws prohibiting pregnancy discrimination.  Specifically, pregnancy discrimination is already prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act, which requires covered employers to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other similarly situated employees. Additionally, the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy if that condition qualifies as a disability, such as diabetes that develops during pregnancy.  However, many other common pregnancy-related conditions are not covered under the ADA.  

The PWFA extends protections similar to those provided under the ADA to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.  According to recent guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”), examples of possible reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions may include:

• The ability to sit or drink water; 
• Closer parking; 
• Flexible hours; 
• Appropriately sized uniforms and safety apparel; 
• Additional break time to use the bathroom, eat, and rest; 
• Leave or time off to recover from childbirth; and 
• Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. 

Under the PWFA, covered employers will also be prohibited from:

• Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
• Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfering with any individual’s rights under the PWFA.
• In light of new law, covered employers may want to consider taking the following actions:
• Analyzing potential accommodations that could be provided to pregnant employees for known limitations;
• Conducting training for human resources personnel and supervisors to ensure they understand how to appropriately respond to accommodation requests; and
• Reviewing and updating accommodation policies to ensure compliance with the PWFA.

The EEOC will begin accepting charges under the PWFA on June 27, 2023. 

Should you have any questions about the Pregnant Workers Fairness Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

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Under the Safety in Private Spaces Act, a covered entity that maintains a restroom and/or changing facility, must at a minimum, have a restroom and/or changing facility designated for exclusive use by females and for exclusive use by males. The Act defines a person’s sex as, “indicated by the person’s sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth.” A covered entity may have unisex restrooms and changing facilities, though it must only be intended for a single occupant or a family. In a unisex restroom, a covered entity will be required to ensure that the restroom is enclosed by floor-to-ceiling walls and is accessed by a full door with a secure lock that prevents another individual from entering while being used. 

The Act provides the following limited circumstances for a person to enter a restroom or changing facility designated for the opposite sex:

• To accompany another person to chaperone a child under the age of 12;
• To accompany an elderly or disabled person, as defined by Florida Statutes Section 825.101 and 760.22;
• For law enforcement purposes; 
• For emergencies (medical or otherwise); and
• For custodial, maintenance, or inspection purposes.

Under the Act, the applicable governmental entity for each public building under its jurisdiction will need to establish disciplinary procedures for any employee of the governmental entity who unlawfully enters a restroom (employee restroom or public restroom) or changing facility and refuses to depart when asked to do so. A person who unlawfully enters a restroom or changing room in a public building and refuses to depart when asked to do so by an employee of the governmental entity for the public building will have committed the criminal offense of trespass as provided by Florida Statute Section 810.08. On July 1, 2024, members of the public will be permitted to submit complaints to the Attorney General relating to covered entities that fail to meet the specific requirements under the Act. 

A covered entity that fails to comply with the requirements of the Act is subject to penalties and to licensure or regulatory disciplinary action, as applicable. The penalties detailed in the Act include the Attorney General bringing a civil action to enforce the Act against any covered entity beginning on July 1, 2024. Specifically, the Attorney General may seek injunctive relief. If a covered entity is found to have willfully violated the Act, the Attorney General may seek to impose a fine of up to $10,000.  

The following covered entities will be required to submit documentation to its applicable governing body detailing their compliance with the Act within one year after being established, or if such covered entity was established before July 1, 2023, then no later than April 1, 2024:  

• Correctional institutions; 
• Detention facilities; 
• K-12 educational institutions or facilities;
• State universities;
• Postsecondary educational institutions or facilities; and
• Juvenile correctional facilities or juvenile prisons. 

We anticipate that the constitutionality of the new law will be challenged pursuant to the Equal Protection Clause of the Florida Constitution. Nonetheless, all covered entities should be prepared to comply with the provisions in the Act beginning on July 1, 2023. 

Should you have any questions about the Safety in Private Spaces Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice

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Brett stated that it is legal for companies to install software on employees’ computers to track productivity, but he recommended companies let their workers know that their digital activity is being monitored.

As a Florida Bar Board Certified attorney in Labor and Employment Law, Brett helps public and private sector employers resolve issues in a prompt and efficient manner.

Click here to read the full interview.

The post Brett J. Schneider Discusses Employer Rights to Monitor Work Devices with CBS12 News appeared first on Weiss Serota Helfman Cole + Bierman.

Gov. DeSantis is likely to sign the bill into law given his support of the bill when it was introduced in December 2021. Assuming that happens, the amendments will take effect July 1, 2022.

The Act provides that the restriction is not intended to prohibit discussion of the barred concepts as part of a training, as long as the training is done in an “objective manner.” However, there is little doubt that these amendments will effectively chill Florida employers from providing Diversity and Inclusion training and—potentially—sexual harassment training until there is further guidance on how this law will be interpreted by courts.

What do employers need to do now? It would be prudent for covered Florida employers to review their mandatory trainings—especially those trainings that focus on diversity, equity, and inclusion in the workplace. If there is any question that a particular training module could be perceived as “espousing” an idea that one race, color, sex, or national origin should be held accountable for past actions of its members, or that one set of people is historically oppressed or privileged, the employer should consider making the module voluntary. Again, this law prohibits mandatory training or instruction; so, among others, a potential way to avoid liability is to create a policy or disclaimer that makes certain training components optional. We would be happy to help you navigate through this new development. Please do not hesitate to reach out to either of us or any member of our team.

The information contained in this document does not constitute legal advice.

The post What Florida’s “Stop WOKE Act” Means for Florida Employers appeared first on Weiss Serota Helfman Cole + Bierman.

In light of the Court’s decision, Florida employers should be mindful of recent laws enacted by the Florida state legislature, including HB-1’s prohibition against employer vaccine mandates unless such mandates provide broad exemptions for religious and medical reasons, as well as exemptions for documented natural immunity.

The information contained in this document does not constitute legal advice.

The post Supreme Court Just Stayed Enforcement of President Biden’s Vaccine Mandate appeared first on Weiss Serota Helfman Cole + Bierman.

The Occupational Safety and Health Administration has issued its long-awaited Emergency Temporary Standard (“ETS”) requiring that private employers with 100 or more employees implement a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to wear face coverings at work and to be tested for COVID-19 at least once per week. Covered employers are also required to:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from employees, and maintain records and a roster of each employee’s status.
• Require employees to provide prompt notice when they test positive for COVID-19 and remove employees who test positive from the workplace.
• Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if the employee is in the workplace at least once a week) or within 7 days before returning to work (if the employee is away from the workplace for a week or longer).
• Ensure that, in most circumstances, any unvaccinated employees wear a face covering when indoors or when occupying a vehicle with another person for work purposes. 

Employers must comply with most of the ETS provisions by December 5, 2021, though employers have an additional 30 days to comply with testing requirements. Florida Governor Ron DeSantis has announced that he intends to challenge the ETS in federal court. Nevertheless, covered employers should begin to formulate policies and procedures to comply with the ETS because waiting for the results of potential litigation could leave employers with insufficient time to comply should the ETS be upheld. 

We are continuing to monitor the situation closely and will provide updated information upon further developments. We would be happy to help you navigate preparing a policy that addresses each of these issues, as they may be applicable to your operations. Please do not hesitate to reach out to the Weiss Serota Labor & Employment Division with any questions or concerns.

The information contained in this document does not constitute legal advice.

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1. UPDATED RETURN-TO-WORK GUIDANCE

On July 20, 2020, the CDC updated its guidance for determining when individuals with COVID-19 may discontinue isolation and return to work. Whereas the CDC previously recommended either a test-based strategy or a symptom-based strategy, the CDC now recommends that employers should utilize only symptom-based criteria for determining when and how employees may return to work. The guidance provides that persons with COVID-19 who were directed to care for themselves at home may discontinue isolation if:

• At least 10 days have passed since symptom onset and
• At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and
• All COVID-related symptoms (e.g., cough, shortness of breath) have improved.

In light of the CDC’s updated guidance, we recommend that employers follow this symptom-based approach when determining when employees may return to work following an absence due to COVID-19.

2. CAN I STILL REQUIRE EMPLOYEES TO UNDERGO COVID-19 TESTING BEFORE THEY RETURN TO WORK?

Despite the CDC’s latest guidance, the CDC acknowledges that a test-based strategy may be utilized in the following circumstances:

• With individuals who are severely immunocompromised;
• When individuals wish to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy;
• Depending upon a healthcare provider’s advice and the availability of testing.

Note that where a test-based strategy is used, the CDC requires negative test results from at least two (2) consecutive respiratory specimens collected ≥24 hours apart. All test results should be final before isolation is ended.

3. DOES THE 14 DAY QUARANTINE STILL APPLY?

The CDC continues to recommend that individuals with known exposure to COVID-19 undergo fourteen (14) days of quarantine.

4. IMPACT OF CONTINUED SCHOOL CLOSURES

A. CAN EMPLOYEES SEEK EMERGENCY LEAVE FOR SCHOOL CLOSURES IN THE FALL OF 2020?

The Families First Coronavirus Response Act (FFCRA) provides benefits for qualified employees who are unable to work because of the need to care for their child because the child’s school or place of care has been closed due to COVID-19. Although most Florida school districts have not yet formally announced whether or not they will open for on-campus learning in the Fall of 2020, if schools do remain closed, qualified employees will be entitled to Emergency Paid Sick Leave (EPSL) and Emergency FMLA (E-FMLA) benefits under the FFCRA, which is in effect until December 31, 2020 ¹.

B. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF SCHOOLS GIVE THE OPTION OF IN-PERSON INSTRUCTION OR VIRTUAL LEARNING, AND THEY OPT FOR VIRTUAL LEARNING?

Likely not. If an employee’s child is enrolled in school that opens but gives families the option of virtual learning, the employee will not qualify for EPSL or E-FMLA because the school is not actually closed due to COVID-19. School closure is required for EPSL and E-FMLA benefits under FFCRA.

C. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF THEIR CHILD’S SCHOOL CLOSES BUT OTHER DISTRICT SCHOOLS OPEN FOR IN-PERSON INSTRUCTION?

This question is up for debate and the DOL has not yet weighed in. On the one hand, employers might reasonably deny FFCRA benefits to employees if there is a potential open school in the employee’s district which could enroll the employee’s child, even if the child’s prior/current school is closed. On the other hand, it might be unreasonable to expect an employee to remove their child from their current school and enroll them in a new school. It might also place an untenable burden on those schools within a district that elect to open up to in-person instruction.

5. CAN EMPLOYERS EXEMPT HEALTH CARE PROVIDERS AND EMERGENCY RESPONDERS IF THEY DID NOT PREVIOUSLY DO SO?

The FFCRA permits employers to exempt health care providers and emergency responders from receiving its leave benefits. Many employers who previously elected not to exempt such employees are now determining that they can no longer operate effectively with their health care providers and/or emergency responders taking leave pursuant to the FFCRA. Because the FFCRA specifically allows employers the option to exempt or not exempt these employees in accordance with their needs, employers may reasonably take steps to change their prior policies with regard to exempting these workers. Any policy change should be done in an equitable, consistent manner.

Under FFCRA, “Health Care Provider includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19. “Emergency Responder” includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.

The information contained in this document does not constitute legal advice. If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.

¹ Employees who have already used all 12 weeks (of Emergency-FMLA and/or FMLA leave) in the designated 12 month year are not eligible for additional leave under Emergency-FMLA or FMLA.

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Citizen Advisory Initiatives, such as investigatory boards, enable local governments to provide residents a means with which to independently participate in and make recommendations regarding law enforcement practice and procedure.  Panels are often responsible for making recommendations regarding complaints about police conduct, though the community boards do not have authority to impose discipline.  Municipalities also may grant such panels authority to review and provide non-binding input regarding policies and procedures.  The boards afford municipalities an additional forum for community involvement and buy-in.

There are numerous legal issues regarding the formation and implementation of these board and the scope of their authority.  Municipalities that are interested in exploring the creation of a board must carefully assess these issues, including the limitations imposed by the Florida Police Officers’ Bill of Rights contained in Chapter 112, Florida Statutes.  For example, in D’Agastino v. City of Miami, 220 So. 3d 410 (Fla. 2017), the Florida Supreme Court held that the Police Officers’ Bill of Rights did not preempt the City from creating its Citizen Investigation Panel because that panel was carefully formed to avoid impinging responsibilities delegated exclusively to law enforcement agencies.

If your agency is interested in exploring the creation of a Community Oversight Board or you have any questions related thereto, please feel free to reach out to us to discuss.

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