Here’s the deal: Since 1996 seventeen states and Washington D.C. have passed marijuana laws for medical/personal use. To date all the courts have ruled that on the job use or intoxication is not protected. California, Oregon and Washington State court rulings have said use itself, even if legal, does not prevent an employer from have a no drug policy for hiring or employment. Statutes like Michigan’s explicitly say “nothing in this act shall be construed to require an employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.”

Of course, as with a prescription drug where health and safety concerns govern it can be treated like the use of other prescription drugs. I doubt any court will require employers to hire stoner surgeons or crane operators. At least let’s hope not! It appears only the Maryland and Arizona statute specifically allows for use at works. Employers cannot discriminate against patients and caregivers and a positive test for marijuana metabolites is not cause for disciplining or terminating a patient. In a sense you have to catch them intoxicated in the moment, not just in their blood stream. Every one of these laws will be tested in court to find out where their workplace boundaries lie.

To the extent Federal laws such as DOT provisions and government contract drug-free workplace laws apply, they control. The Feds are still reviewing the situation as these laws impact on their ability to control illegal use and sale nationwide.

To keep abreast of these legislation trends here are two great resources:
http://www.ncsl.org/issues-research/health/state-medical-marijuana-laws.aspx
http://www.whitehouse.gov/ondcp/marijuanainfo

Of course there are those who wonder what all the fuss is about. Here’s an interesting blog on the smokers view of drug testing for the weed.

Note: Just the millionth reason why employers should have their employee handbooks reviewed by an attorney on an annual basis.

Holiday Party Best Practices

Eggnog, latkes, old friends, parties – and a whole lot of beveraging! The holiday season is here! On behalf of everyone at HR That Works, let us be the first to wish you a safe and happy holiday!

Rule #1 – make sure everyone gets home safe! As the party host you in fact have liability if you fail to do so.

To protect yourself and others follow these best practices:

• Make sure that attendance at the party is voluntary.
• Hire bartenders who are trained to spot intoxicated revelers and how to handle them.
• Provide non-alcoholic beverage options.
• Provide each guest with a limited number of drink tickets instead of an open bar.
• Have real food – not just chips and pretzels – served whenever alcohol is available.
• Stop alcohol service at least an hour before ending the function.
• Confront intoxicated guests immediately and cut them off; don’t wait until they are ready to leave the party.
• Don’t inquire of an apparently impaired guest whether they think they’re able to drive home. They can’t.
• Have a taxi service available for any guest who requires one.
• Call a friend or family member to pick up intoxicated guests.
• Arrange for discounted rooms at the event location (if possible) or a nearby hotel.

Don’t forget to have a fun party. Think Mr. Fezziwig!

Accommodating Religious Needs

The holiday season makes an ideal time to focus on the law regarding religion in the workplace. It’s also a great time to celebrate our religious differences! Title 7 of the Civil Rights Act of 1964 prohibits discrimination based on religion. There has been an increasing trends in these claims over the past years with over 4,000 claims being filed in 2011. Not surprisingly, many of these claims are combined with national origin discrimination allegations (i.e. someone alleges discrimination because they’re of Arab origin, as well as Muslim).

The EEOC makes this point about what a religion is:

“In most cases, whether or not a practice or a belief is religious is not an issue. However, the EEOC defines religious practices to include moral or ethical beliefs as to what’s right and wrong, which are sincerely held with the strength of traditional, religious views. The fact that no religious group espouses such beliefs, or that the religious group to which the individual professes to belong might not accept such belief, will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase ‘religious practices’ includes both religious observances and practices.” Also, bear in mind that:

• It’s unlawful for an employer to fail to accommodate reasonably the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation will mean undue hardship in conducting its business.
• An employer may not ask about an employee’s religious background unless justified by business necessity.

The EEOC’s guidelines on religious discrimination can be found by clicking here. Here is a good FAQ on it too.

Here’s an EEOC memo on accommodating religious expression.

Lastly, here’s a great link to the religious accommodation practices at the University of Missouri.

Each June, the National Safety Council encourages organizations to get involved and participate in National Safety Month. NSM is an annual observance to educate and influence behaviors around the leading causes of preventable injuries and deaths. Each week carries a theme that brings attention to critical safety issues.

2012 Weekly Themes
Week 1: Employee wellness and PALA+ Challenge
Week 2: Ergonomics
Week 3: Preventing slips, trips and falls
Week 4: Driving safety

The live webinars are only $119 and come with a great deal of information! The recorded webinars are free! Check them out yourself and I know you will to use some of the excellent tools. Great job NSC!

This case represents one of the scariest scenarios related to workplace safety. Apparently, after being terminated, the former nurse employee and her husband returned to the hospital where she worked to visit some former patients. When told she was not to be in the nurses’ area, her husband made threats to the managing nurses. The court eventually upheld a three-year “stay away” injunction over the plaintiffs’ complaint that the Court relied on hearsay statements to issue the injunction. The statute involved, which is similar to that found in many states, allows an employer to seek a temporary restraining order and an injunction on the behalf of an employee who has already suffered violence or a credible threat of violence carried out in the workplace. The employer may obtain a temporary restraining order if the affected employee files an affidavit that, to the satisfaction of the court, shows reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the defendant, and that greater irreparable harm would result to an employee.

The question in this case is whether typical rules of evidence (like those related to hearsay) apply to this type of procedure. The court ruled that due to the unique and expedited context pertaining to a workplace violence injunctions that the typical rules of evidence do not apply. Kaiser Foundation Hospital v. Jeff Wilson, 4^th Appellate District http://www.courtinfo.ca.gov/opinions/documents/D058491.PDF

Lesson to employers: You have an obligation to seek these types of injunctions should you catch wind of a credible threat. Remember, the last thing you want is to have any regret afterward because you did not make every effort possible to prevent violence, even if based on hearsay statements.

Inc. Magazine did an excellent article on the history of the workplace you can read by clicking here.

Heat illness can be deadly. Every year, thousands of workers become sick from exposure to heat, and some even die. These illnesses and deaths are preventable.

This webpage is part of OSHA’s nationwide outreach campaign to raise awareness among workers and employers about the hazards of working outdoors in hot weather. The educational resources on this website give workers and employers information about heat illnesses and how to prevent them. There are also training tools for employers to use and posters to display at their worksites. Many of the new resources target vulnerable workers with limited reading skills or who do not speak English as a first language. OSHA will continue to add information and tools to this page throughout the summer.

http://www.osha.gov/SLTC/heatillness/index.html

The U.S. Department of Labor (DOL) announced a new Web tool to help employers understand their responsibilities to report and record work-related injuries and illnesses under Occupational Safety and Health Administration (OSHA) regulations. 

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

You may access the OSHA Recordkeeping Advisor from the DOL web site at: www.dol.gov/elaws/osharecordkeeping.htm.

Here is some helpful info from OSHA on keeping workers safe during flood and tornado recovery operations:
www.osha.gov/OshDoc/flood-tornado-recovery.html#guides

The DOL issued a press release which provides plenty of sound advice “If you’re working outdoors, you’re at risk for heat-related illnesses that can cause serious medical problems and even death,” said Secretary Solis at stops in Anaheim, Calif.; Tucson, Ariz., and Las Vegas, Nev. “But heat illness can be prevented. This Labor Department campaign will reach across the country with a very simple message – water, rest and shade.” Each year, thousands of outdoor workers experience heat illness, which often manifests as heat exhaustion. If not quickly addressed, heat exhaustion can become heat stroke, which killed more than 30 workers last year. Heat can be a real danger for workers in jobs ranging from agriculture and landscaping to construction, road repair, airport baggage handling and even car sales. OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training.

• Read the News Release
• Learn More about the Heat Campaign
• View The Slideshow

When disasters strike, the Occupational Safety and Health Administration transforms itself and swings into technical assistance mode for affected areas. This week, after devastating storms pounded a large number of southern states, OSHA deployed teams of technical advisors to the affected areas of Mississippi, Alabama and Georgia. OSHA staff contacted incident commanders at the various county emergency management centers, as well as power companies that will be involved in the cleanup. They also do assessments of the safety needs for recovery workers. Dangers from downed electrical power lines and fallen trees are only two of the many hazards facing workers. “Storm recovery work encompasses a wide range of safety and health hazards, which can be minimized by knowledge, safe work practices and personal protective equipment, ” said Cindy Coe, OSHA’s regional administrator in Atlanta.

• Learn More about Storm Recovery
• Read the News Release

HR That Works Members should also review the many tools in the Disaster Planning section.