Workplace Legalities Update: Marijuana Use and Discrimination

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Explore the latest in employment law with a focus on workplace implications of legal marijuana use and discrimination issues. Learn about trends, claims, and employer obligations. Stay informed to navigate legal complexities effectively.


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Workplace Legalities Update: Marijuana Use and Discrimination

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  1. Disclaimer: the information provided herein is not legal advice and should not be relied upon as such.

  2. EMPLOYMENT LAW UPDATE Stacey Trien strien@adamsleclair.law (585) 327-4110

  3. Trends in Trends in Discrimination Discrimination Claims Claims

  4. Workplace Sexual Harassment Complaints Filed With DHR 900 810 800 700 600 500 401 388 400 300 200 100 0 2020 2020 2021 2021 2022 2022

  5. Discrimination Claims Sexual Harassment Disability Retaliation

  6. Political activities Recreational activities Membership in a union Refusal to attend employer-sponsored meeting or speech regarding religious or political matters Legal use of consumable products including cannabis Marijuana Discrimination Labor Law 201-d

  7. Marijuana in the Workplace Labor Law 201-d Employers are prohibited from discriminating against employees based on employee s LEGAL use of marijuana: Without use of employer s equipment or property Outside of Work Hours Outside the Workplace

  8. Legal Use = 21 years or older Illegal Use: Driving while using/under the influence Where smoking tobacco is prohibited Sell without a license Federal land What is legal use?

  9. What are Work Hours? MEAL PERIODS PAID AND UNPAID BREAKS ENGAGED IN WORK

  10. What is Employers Premises? Company property Worksite Company vehicles Any areas used by employees (rest breaks, etc.) NOT: remote workplace/working at home

  11. What to Do if Employee is Using During Work Hours or on Employer s Premises? Employee manifests specific articulable symptoms of impairment that: Decrease Interfere with your obligation to provide a safe workplace performance of their duties

  12. Drug Testing Pre-Employment Testing Testing on the Job Not unless state or federal law requires E.g. driving commercial vehicle (federal law requires) Cannot use testing to determine if someone is impaired Can test if state/federal law requires drug testing

  13. Exceptions: Employees working outside New York State Federal or state law requires drug testing or drug free position: E.g. drivers of commercial motor vehicles (federal & state law) Collective Bargaining Agreement

  14. Medical Marijuana Disability Can you accommodate without undue hardship to your business?

  15. Marijuana Updates Drug policy in CBA will be enforced, even if it prohibits use of medically prescribed marijuana Employee required to test negative for marijuana prior to returning to work per CBA, 7/28/23 appellate court decision

  16. Federal Labor Law Lion Elastomasters LLC NLRB Decision May 1, 2023 Increased protections for all speech during concerted activity is protected Certain situations protection applies to vulgar, racist, inappropriate speech Concerted activity = activity raising concerns about working conditions Different weight if speech made to management, social media posts, co-workers, or on the picket line

  17. New Laws in NY State a. Wage disclosure law (9/17/23) b. New model sexual harassment policy (Apr. 2023) c. Whistleblower protections increased (2022) d. Nursing mother accommodations (6/7/23) e. Social media privacy cannot ask employees for access to information in any personal account (effective 3/12/24) f. Notice eligibility unemployment benefits expanded (11/13/23) g. Prohibition on mandatory meetings re: employer s political or religious views (Sept. 2023)

  18. Links: New model sexual harassment policy (Apr. 2023): https://www.ny.gov/combating-sexual-harassment- workplace/sexual-harassment-prevention-model-policy-and-training Unemployment form: https://dol.ny.gov/system/files/documents/2021/02/ia12_3.pdf

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