Monthly Archives: July 2015

Insurance – especially for nonprofits – is critical

Just read a great article on the importance of D&O insurance for nonprofits entitles – including the increasingly valuable Employment Practices Liability Insurance (“EPLI”). Enjoy!

California Paid Sick Leave – Changes Effective Immediately (TODAY!)!

Governor Brown signed AB 304 and it is effective immediately. While it doesn’t fix or clarify everything, it does offer some guidance. Here are the highlights:

Unlimited Time Off programs. If your company provides “unlimited” or “nonaccrual” time off for some workers, you don’t have to also provide separate paid sick leave. The old rule required a bit of a fiction where the amount of paid sick leave had to be listed on the paystub (or other notice document) and tracked, even though the worker could really take “unlimited” time off. Now, unlimited sick time or PTO may show available paid sick leave on employees’ itemized wage statement by indicating that paid sick leave is “unlimited.” (The paid sick leave still requires in all other circumstances that employers communicate the amount of accrued sick leave an employee has on an itemized wage statement (or at the same time as the paystub is given).

Accrual Rates. The law required that employees accrue paid sick leave at the rate of one hour for every 30 hours worked. For some employers, this was confusing and limiting as existing programs were more generous, just providing the benefit pursuant to a different method. Now, employers may use any accrual method that provides at least 24 hours of paid sick leave by the 120th calendar day of employment.

Calculation of Paid Sick Leave. Employers can calculate the paid sick time using any of the following methods:

  • Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
  • Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment; or
  • Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Reason for Use. Employers are not required to inquire into or record purposes for which an employee uses any type of paid sick leave or PTO.

Medical Marijuana and the Workplace. . . [Cue Pot Pun]

Yesterday, the New Mexico Court of Appeals ruled that a patient in the state’s medical marijuana program who was injured on the job must be reimbursed by his employer for the expense of marijuana used for treatment.

That’s a pretty narrow ruling (involving a state program and workers compensation for on the job injury), but it sparked discussion on the interweb about medical marijuana in the workplace.

Can a company fire an employee for marijuana use? Should employers fire anyone who fails a drug test that shows marijuana use? As usual with California employment law – the answers are . . . “it depends”!

In California, individuals have a legal right to use medical marijuana and employers have a legal right to prohibit or restrict the use of alcohol and drugs at the workplace.

Use of medical marijuana is generally exempt from certain California criminal laws, but it remains a crime under federal law. This means that a worker’s legal right to use medical marijuana is protected from criminal prosecution, but not from an employer’s policies about the use of alcohol and drugs.

California employers can prohibit workers from possessing, using or being under the influence of marijuana at work, just as they can forbid them from being drunk on the job. But they cannot fire or refuse to hire workers because they have a medical condition they are using marijuana to treat.

An employer does not need to accommodate medical marijuana use. Employers are protected in firing or refusing to hire persons who use marijuana or test positive for marijuana use, even when the use was prescribed by a physician to alleviate a disability. An employer may require pre-employment drug tests and take drug use into consideration in making employment decisions.

As a general rule, employers must accommodate employees with medical conditions or disabilities, but they do not have to let them use marijuana in the workplace, even if medically prescribed. Disability discrimination laws prohibit employers from discriminating against workers or applicants because of a mental or physical disability. Employers must make reasonable accommodations for the disability, unless it would pose an undue hardship, or unless the disability poses a health or safety threat. What qualifies as an undue hardship depends on the size of the employer, the cost of the accommodation and other individual factors.

A California employer can elect not to hire someone who reveals their use of medical marijuana, or fails a pre-employment drug test. But this should not be your automatic, no-analysis-performed policy. Before using any pre-employment drug test program, an employer must analyze if the position is such that a drug test is appropriate. Is this a job for which drug testing is necessary and/or reasonable? For example, for some jobs it is critical to know if the applicant is using drugs or alcohol: a butcher where knives are used, an industrial bakery with a huge mixing apparatus, a transportation company. For these workplaces, everyone’s safety may be compromised by an employee impaired by drugs or alcohol. Other jobs, such as those in an office setting, a pre-employment drug test may not be necessary.

In California, employers can require job applicants to pass a drug test as a condition of employment. But they generally cannot test a current employee unless they have a reasonable suspicion the worker is under the influence.
Random testing of unsuspicious employees is allowed in only a few cases. Federal law requires random testing of certain transportation industry employees. California law allows it for certain safety-sensitive jobs, but there are many rules and safeguards. San Francisco bans random testing in employment, except when required by federal law.

In the end, I usually suggest the following: Make it explicitly against company policy to be under the influence of drugs and/or alcohol at work, no matter when the product was ingested. Then, look at specific jobs to determine if testing is appropriate (and legal). Simple!