E-cigarettes: Part of Your Workplace Smoking Ban?

Most employers, either on their own initiative or in response to state or local laws banning smoking in the workplace, have already banned the use of cigarettes and tobacco on their premises. However, the skyrocketing use of e-cigarettes has posed a challenge to such bans.

Electronic cigarettes, or e-cigarettes, are battery-powered devices that heat a nicotine-laced liquid and turn it into a vapor that a user inhales and then exhales. The act of using e-cigarettes has become known as “vaping,” and retail and online stores have sprung up everywhere to satisfy the consumer demand for these products. Unsurprisingly, proponents of e-cigarettes tout them as a safer alternative to cigarettes. The research, however, is not definitive, with the effect of vaping on bystanders unknown as well. 

There are a few jurisdictions that have banned e-cigarette use wherever smoking is banned. Employers should, of course, determine whether e-cigarette use is even permitted in a particular location. Even in the absence of a law regulating e-cigarette use in the workplace, employers should consider adding e-cigarettes to their current no-smoking policy. While such may elicit complaints from e-cigarette users, the benefits to adding e-cigarettes to a no-smoking policy allows for consistent enforcement as well as protection for your workforce.



Colorado Supreme Court Clarifies Employee Termination for Marijuana Use

The Colorado Supreme Court, in a 6-0 decision, has held that an employer’s right to fire employees for failing drug tests trumps state laws permitting marijuana use. Under the Court’s ruling, even employees using prescribed medical marijuana off-duty can still be subject to termination.

The case arose from the firing of Brandon Coats, a quadriplegic who worked for Dish Network. Colorado permits marijuana use for medical purposes, and Coats was prescribed it to treat muscle spasms. Coats used the drug off duty. He was fired in 2010 following a failed drug test and subsequently sued. Dish Network was initially successful at both the trial and appellate levels, and the case was heard by the Colorado Supreme Court in September.

At issue was whether the drug, which is illegal at the federal level, is nonetheless considered “lawful.” Under Colorado’s “Lawful Activities Statute,” it is illegal for an employer to fire an employee based on the employee’s lawful activities outside of work. Both the trial and appellate courts held Coats’ marijuana use was not a “lawful” activity, a decision echoed by the Supreme Court.

The Court noted that under Colorado’s “Lawful Activities Statute,” the term “lawful” only refers “to those activities that are lawful under both state and federal law. Therefore, those employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

The decision represents a setback for medical and recreational marijuana proponents and could serve as a guide for other states addressing the increasing legalization of the drug. 


Reminder: OSHA’s New Hazard Communication Standard Went Into Effect on June 1

The deadline for chemical manufacturers, importers, distributors, and employers to begin complying with OSHA’s new hazard communication standard was June 1, 2015.

In 2012, OSHA updated the old hazard communication standard to bring it into compliance with the global standard for chemical product labeling. The new standard still requires that chemical manufacturers and importers evaluate the chemicals they produce and provide hazard information in the form of container labels and safety data sheets. However, it also provides an updated set of harmonized criteria for classifying chemicals according to their health hazards. The new standard also requires that chemical manufacturers and importers use labels that include a signal word, pictogram, hazard statement, and precautionary statement for each hazard category. In addition, safety data sheets must follow a new format with sixteen sections, ensuring certain information is conveyed to employees. Finally, the new standard required employees to be trained in the new label elements and safety data sheet formats by December 1, 2013.

Employers should ensure they have updated their existing hazard communication programs and provided employees with training on the new label elements and safety data sheets. Chemical manufacturers and importers should make sure they have reviewed the new standard carefully, classified their chemicals according to the new criteria, and updated their labels safety data sheets.



Fourth Circuit Loosens Restrictions on Title VII Harassment and Retaliation Claims

The Fourth Circuit Court of Appeals in Boyer-Liberto v. Fontainebleau has held that a single incident of harassment can be sufficient to create a hostile work environment. The Court further noted that an employee is protected from retaliation “when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone.”

Reya C. Boyer-Liberto, an African-American, was an employee of the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland. While employed at Fontainebleau she performed a variety of duties. One day, while working as a cocktail waitress, she was twice called a “porch monkey” within a 24-hour period by her Caucasian supervisor. This same supervisor also threatened her with the loss of her job. Boyer-Liberato reported the incident to higher ups at the hotel, only to later be fired by the resort’s owner, Dr. Leonard P. Berger. She subsequently sued, asserting claims of a hostile work environment and retaliation under Title VII. Initially, both the District Court and the Fourth Circuit ruled in favor of the defendants, noting that the conduct in question was not severe or persuasive enough to create either a hostile work environment or a reasonable belief that harassment occurred (as is necessary for a retaliation claim). The Fourth Circuit then granted a rehearing en banc.

On the issue of harassment, the Fourth Circuit placed particular emphasis on the seriousness of the slur in question, finding it sufficiently severe to support a harassment claim. This was further heightened by the fact that it originated with Boyer-Liberto’s superior in conjunction with threats against her job. This led the Court to hold that the single incident of harassment can be enough to create a hostile work environment. 

On the issue of the retaliation complaint, the Court further held that a single incident, if threatening or humiliating is enough to create a reasonable belief that a hostile work environment exists. Under Title VII, an employee is protected against retaliation if they report unlawful employment actions, or employment actions that they reasonably believe to be unlawful. The Fourth Circuit held that the use of the term “ porch monkey” was threatening and humiliating enough to make Boyer-Liberto believe that a hostile work environment existed, and therefore, that an unlawful employment action occurred.

Based on these holdings, the Fourth Circuit vacated the District Court’s judgment and remanded the case. The decision by the Court in Boyer-Liberto could mark the beginning of an expansion of single incident Title VII litigation moving forward.

Marcus Pringle


OSHA Intends to Make Workplace Injury Reports Public by the End of This Year

Assistant Secretary of Labor for OSHA David Michaels spoke to the City Club of Cleveland last week about recent trends in workplace safety. One remark that caught the audience’s attention was that, by the end of this year, OSHA will begin making accident reports filed by employers available to the general public.

Back in 2013, OSHA released a proposed rule to “Improve Tracking of Workplace Injuries and Illnesses.” The rule would amend OSHA’s current recordkeeping regulations to require the electronic submission of injury and illness information that employers are required to keep under existing OSHA standards (Part 104). This includes information the employer enters in injury and illness logs (OSHA Form 300), incident reports (OSHA Form 301) and annual injury and illnesses summary forms (Form 300A). Employers with 250 or more workers would need to submit information from OSHA Forms 300 and 301 on a quarterly basis and information from OSHA Form 300A annually. Employers in “high hazard” industries with 20 or more workers would also be required to submit information from their OSHA Form 300A once a year.

The most controversial aspect of this rule is OSHA’s intent to make this information available online to the public. OSHA would redact employees’ personal information, but the accident histories of individual employers would be available. OSHA claims that publicizing workplace injuries “will nudge employees to better identify and eliminate hazards.” The proposed rule has met strong opposition from employers, who argue that the accident information will be misused and misinterpreted when taken out of context. Safety advocates have also opposed the rule because public disclosure of injury and illness information may chill voluntary reporting by employers.
Despite opposition to the rule, it appears OSHA intends to move forward with publication by the end of the year. We will keep you updated on its status over the next few months.

Nathan Pangrace


Equal Employment Opportunity Commission Issues Proposed Regulations on Wellness Programs and the Americans with Disabilities Act

Corporate wellness programs,which typically use financial or other incentives to encourage workers to participate in wellness programs, have surged in popularity over the last several years, spurred on by companies seeking ways to lower healthcare costs. However, these programs can cause legal headaches for employers if not administered properly. The Equal Employment Opportunity Commission (EEOC), likely reacting to what it perceives as improper administration, has issued proposed regulations addressing how the Americans with Disabilities Act (ADA) applies to these wellness program. Two of the hallmarks – goal of the program and voluntariness – are described below.

Any employee health program, including a wellness program, must comply with the ADA, which restricts the medical information that employers may obtain from employees and which makes it illegal to discriminate against an employee based on a disability. The proposed rule requires that any employee health program, must be “reasonably designed” to promote health or prevent disease; indeed, the proposed rule states that “the program must have a reasonable chance of improving the health of, or preventing disease in, participating employees, and must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.” For instance, an employer who uses the program to identify employees with certain health conditions and to take action based on that knowledge would be violating the ADA.

The wellness plan must be truly voluntary, that is, the employer may not require an employee to participate, may not deny coverage under a group health plan, may not limit the extent of coverage, and may not take any other adverse action against employees who refuse to participate or who do not achieve certain outcomes. While an employer may offer incentives to participate in a wellness program, the total allowable incentive may not exceed 30% of the total cost of employee-only coverage, whether that comes in the form of a reward or a penalty.

The employer must also provide notice explaining what medical information will be obtained, who will receive it, how it will be used, the restrictions on its disclosure, and the methods the employer will use to protect the medical information.

The Notice of Proposed Rulemaking was published in the Federal Registered on April 20, 2015, triggering a sixty-day public comment period.

Karen Adinolfi


Sixth Circuit Addresses Telecommuting as a Reasonable Accommodation

Jane Harris was a Ford steel resale buyer. In this capacity, she served as an intermediary between steel suppliers and parts suppliers, a job description that required a large amount of “good, old-fashioned interpersonal skills” as the court put it.

She also suffered from irritable bowel syndrome, which at best caused her to take frequent trips to the restroom, and at worst caused her to miss whole days of work due to incontinence. Initially, Ford adjusted her schedule to allow for occasionally telecommuting and flexible schedules, but neither option was sufficient. While Ford allowed some employees to work from home one day a week, Harris sought to do so up to four days a week.

It is worth noting that while employed at Ford, Harris’ performance was, as the court put it, “subpar.” She ranked in the bottom 10% of her peers repeatedly, averaged 1.5 missed days of work per week, and was noted as lacking interpersonal and communication skills. In fact, in 2009 she was absent more than she was present.

Following attempts to accommodate her condition and repeated poor reviews, Harris was eventually terminated on September 10, 2009. Four months later, the EEOC sued Ford under the ADA, alleging that Ford failed to reasonably accommodate Harris’ disability and terminated her in retaliation. The district court found that working from home for up to four days a week was not a reasonable accommodation and that Harris’ poor performance was a valid reason for terminating her. The EEOC appealed, and a divided Sixth Circuit panel reversed on both claims in 2014. The Sixth Circuit then granted an en banc review.

Ultimately, the Sixth Circuit Court held that Ford acted reasonably and did not violate the ADA by denying the requested accommodations. The court noted that regular and predicable attendance at the workplace was an essential function of her job, and was a prerequisite to other essential functions. Furthermore, Ford had made attempts to accommodate Harris previously, without success. Finally, the court stated that the EEOC failed to show that Harris’ termination was due to retaliation and not due to her poor workplace performance.

Marcus Pringle