Employment Law Predictions for 2017

Whatever your political views, it is undeniable that the last several weeks have been fascinating, to say the least. The most interesting thing about labor and employment law is that any change can affect our clients because any change can impact employees.

That said, there will likely be a number of changes to employment laws specifically. Given this President’s ideologies, I suspect that he will attempt – through Executive Order – to eliminate a number of protected categories (e.g., sexual orientation) such that people who previously could not be discriminated against because of their membership in those categories will now be exposed anew. We can also expect that he will do all he can to eliminate same sex couples’ ability to marry, or at the very least, to limit their access to the same rights that male-female couples enjoy (e.g., rights relating to taxes, family and medical leave, etc.). And, one can only imagine the changes that would occur if the Senate confirms a Secretary of Labor with no government experience who is the former CEO of CKE Restaurants, Inc. (parent to Hardee’s and Carl’s Jr.).

So far, however, the only action the President has taken that relates on its face to employment have been his January 23, 2017 Executive Order freezing hiring across the Executive Branch, and his January 20, 2017 Executive Order encouraging the agencies administering the Affordable Care Act to grant liberally all exemptions to the implementation of the Act.

Although it is quite clear that the President intends to do all he can unilaterally via Executive Order, we can also expect that lawyers and judges will do all they can to apply the necessary checks and balances on that power, as we have seen with the recent issues surrounding the injunction on the enforcement of an executive order that attempted to apply a travel ban targeting Muslims from specific international states. It is nearly impossible to watch this impartially, but I will do my best to report and analyze these issues as neutrally as possible…Stay tuned…

In the meantime, let me know – what issues are you keeping you eye on the most?

 

 

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NFL Suspends Player with Crohn’s Disease for Marijuana Use

As I mentioned in my biography, I started in labor and employment by researching medical marijuana in Arizona, so marijuana and drug testing as they relate to employment law will always hold a special place in my heart. In that regard, today’s Deadspin article on Seantrel Henderson’s suspension seemed like a great place to start this blog.

By way of background, the NFL suspended the Buffalo Bills’ offensive tackle for ten games without pay for violating the NFL Policy and Program for Substances of Abuse, which prohibits players from the illegal use, possession, or distribution of drugs, including but not limited to marijuana. I am curious to know, however, how the NFL or the Bills discovered Mr. Henderson’s drug use. I realize that he has not denied it, but it seems to me that a different outcome would result if he were impaired during practice or during a game, as compared to if his use were discovered based only on a positive random drug test. I will update you all as I learn more.

I should also share with you that New York legalized the medical use of marijuana in 2014, under its Compassionate Care Act. That Act allows a person who has a “severe debilitating or life-threatening condition” (e.g., HIV/AIDS, ALS, Parkinson’s disease, multiple sclerosis, inflammatory bowel disease (i.e., Crohn’s disease)) to follow the state’s process to become certified to use medical marijuana. I have not seen any indication one way or another as to whether Mr. Henderson is a certified patient who is authorized to use medical marijuana under New York law for his condition, but I will certainly update you if I do.

Without opining as to how Mr. Henderson’s situation should or could end up, I encourage employers considering these issues to keep a couple of things in mind: (1) the use of marijuana remains illegal under federal law; and (2) many states have legalized the medical and/or recreational use of marijuana, but none of those states have required an employer to allow an employee to use, possess, or distribute marijuana at work or during work hours, nor to be impaired by marijuana at work or during work hours. In that regard, I generally do not have any concerns about prohibiting the use, possession, distribution, or impairment by illegal drugs while at work or during work hours. However, as we will discuss on this blog quite often, it can be difficult to prove or articulate impairment, particularly where there is no state law defining such term. I am quite curious to see how this area of the law develops as the number of states legalizing some form of marijuana use increases – and the number of employers affected by this increases, as well. As I said, this is a special focus of mine, so we will be discussing this often.