Growing Questions About Employee Medical Marijuana Use Leave Employers in a Haze

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.

Background

Plaintiff applied for an internship at Darlington, and during an initial meeting, she signed a statement acknowledging she would be required to take a drug test prior to being hired.  At that meeting, Plaintiff disclosed that she had a medical marijuana card.  Several days later, Plaintiff indicated to Darlington’s human resources representative that she was currently using medical marijuana and that as a result she would test positive on the pre-employment drug test.  Darlington informed Plaintiff that it was unable to hire her because she would fail the drug test and thus could not comply with the company’s drug-free workplace policy.

Plaintiff filed a lawsuit alleging Darlington violated the Hawkins-Slater Act (“the Act”), the state’s medical marijuana law, and the Rhode Island Civil Rights Act (“RICRA”). The Hawkins-Slater Act provides that “[n]o school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”  After concluding that Act provides for a private right of action, the court held that Darlington’s refusal to hire Plaintiff violated the Act’s prohibition against refusing to employ a cardholder.  Citing another provision that the Act should not be construed to require an employer to accommodate “the medical use of marijuana in any workplace,” Darlington contended that Act does not require employers to accommodate medical marijuana use, and that doing so here would create workplace safety concerns.  The court rejected this argument, concluding:

  • The use of the phrase “in any workplace” suggests that statute does require employers to accommodate medical marijuana use outside the workplace.
  • Darlington’s workplace safety argument ignored the language of the Act, which prohibits “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” In other words, employers can regulate medical marijuana use by prohibiting workers from being under the influence while on duty, rather than refusing to hire medical marijuana users at all.
  • By hiring Plaintiff, Darlington would not be required to make accommodations “as they are defined in the employment discrimination context,” such as restructuring jobs, modifying work schedules, or even modifying the existing drug and alcohol policy (which prohibited the illegal use or possession of drugs on company property, but did not state that a positive drug test would result in the rescission of a job offer or termination of employment).

The court thus granted Plaintiff’s motion for summary judgment on her Hawkins-Slater Act claims.

With respect to Plaintiff’s RICRA claim, the court found that Plaintiff’s status as a medical marijuana cardholder was a signal to Darlington that she could not have obtained the card without a debilitating medical condition that would have caused her to be disabled. Therefore, the Court found that Plaintiff is disabled and that she had stated a claim for disability discrimination under RICRA because Darlington refused to hire her due to her status as a cardholder.  Importantly, the court held that the allegations supported a disparate treatment theory.

Finally, while noting that “Plaintiff’s drug use is legal under Rhode Island law, but illegal under federal law [i.e. the Controlled Substances Act (the CSA”)],” the Court found that the CSA did not preempt the Hawkins-Slater Act or RICRA. According to the court, the CSA’s purpose of “illegal importation, manufacture, distribution and possession and improper use of controlled substances” was quite distant from the “realm of employment and anti-discrimination law.”

Key Takeaways

While this decision likely will be appealed, it certainly adds additional confusion for employers in this unsettled area of the law – particularly those who have and enforce zero-tolerance drug policies. The decision departs from cases in other jurisdictions – such as CaliforniaColoradoMontanaOregon, and Washington – that have held that employers may take adverse action against medical marijuana users.  The laws in those states, however, merely decriminalize marijuana and, unlike the Rhode Island law, do not provide statutory protections in favor of marijuana users.  In those states in which marijuana use may not form the basis for an adverse employment decision, or in which marijuana use must be accommodated, the Callaghan decision may signal a movement to uphold employment protections for medical marijuana users.

While this issue continues to wend its way through the courts in Rhode Island and elsewhere, employers clearly may continue to prohibit the on-duty use of or impairment by marijuana. Employers operating in states that provide employment protections to marijuana users may consider allowing legal, off-duty use, while taking adverse action against those users that come to work under the influence.

Of course, it remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana.  Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment and, in any event, observation alone does not indicate the source of impairment.  Employers choosing to follow this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; (b) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users.  Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user.

The Callaghan decision also serves as a reminder of the intersection of medical marijuana use and disability.  Here, the court allowed a disability discrimination claim to proceed even though Plaintiff never revealed the nature of her underlying disability because cardholder status and disability were so inextricably linked.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well. In Callaghan, the court found the employer in violation of state law before the employee was even offered the internship or had taken the drug test.

This post was written byNathaniel M. Glasser and Carol J. Faherty of Epstein Becker & Green, P.C.

Are You Still Minding the Gap? A Check-Up for Navigating Line Between Political and Hate Speech and Workplace Acceptability

megaphone political speech hate speechIn December 2015, we broadly reviewed concerns and compliance issues for employers when managing employees engaged in workplace political speech or those accused of engaging in “hate” speech in the workplace. A brief scan of headlines so far into 2017 reveals more than 900 instances of alleged violence, hate speech, and harassment in and out of workplaces reported since late January. Human Resource professionals and in-house counsel may wonder, again—what are the company’s obligations and duties to our employees?

A quick review: “Political activity” and “political affiliation” are only protected statuses for certain employees and in certain locales. Courts have held the First Amendment protects public employees from their employers using political affiliation as a basis for employment decisions. The Civil Service Reform Act of 1978 expressly prohibits political affiliation discrimination toward federal employees. Several states have passed their own statutes concerning private-sector employees:

  • Michigan prohibits direct or indirect threats against employees for the purpose of influencing their vote;

  • Oregon prohibits threatening loss of employment in order to influence the way an employee votes on any candidate or issue;

  • Florida considers it a felony criminal offense to discharge or threaten to discharge an employee for voting, or not voting, in any election (municipal, county or state) for any candidate or measure submitted for a public vote;

  • Kentucky, Ohio, Pennsylvania, and West Virginia prohibit employers from posting or distributing notices threatening to close their businesses or lay off employees if a particular candidate is elected; and

  • California, Colorado, New York, North Dakota, and Louisiana have passed laws deeming it illegal for an employer to retaliate against an employee for off-duty participation in politics or political campaigns.

Several cities, such as Lansing, Michigan; Madison, Wisconsin and Seattle, Washington, protect political affiliation similar to protections afforded race, sex, age and disability, even for private sector employees.

Beyond these mandated protections, private sector employees should be mindful of workplace speech and conduct. For example, managers and supervisors who express any type of political opinion to subordinate employees may expose themselves to subsequent claims they acted out of bias against those employees on the basis of other protected statuses. How could an employee draw such a connection in his or her allegation? As we saw in the most recent election cycle, some political candidates across all levels (local, state and federal) voiced strong opinions about race relations, foreign relations policy, religious freedom, Second Amendment rights, immigration, LGBT rights and other issues directly related to characteristics protected by federal, state or local workplace anti-discrimination laws. Dropping into a workplace political debate with a subordinate employee about a candidate, elected official, political party, cause or other political issue risks allowing that employee to associate expressed opinions with some type of prohibited discriminatory bias.

Best Practices Check-up

  1. Understand there could be laws relating to workplace political speech or activities in your location;

  2. Educate managers and supervisors regarding what laws impact the workplace as well as the employer’s workplace culture; training can form a vital line of defense by limiting potential exposure before it has a chance to evolve;

  3. Remind managers and supervisors how personal opinions can be viewed by subordinate employees as a form of prohibited workplace bias; and

  4. Encourage managers and supervisors to resist being drawn into workplace political discussions, particularly with subordinate employees.

Should an employee file an internal complaint alleging a workplace hate-based incident, conduct a measured, consistent investigation to determine what (happened), who (was targeted) and if hate speech or other actions (based on a protected class or against company culture) is likely to have occurred. Resist assumptions.

If the investigation yields a conclusion that inappropriate behavior occurred, initiate appropriate actions to (1) hold employees appropriately accountable (for example, through formal warning up to discharge) and (2) decrease the likelihood of repeated incidents. Resist any media, or social media, attention that can serve to derail thoughtful consideration of the facts and promote an atmosphere leading to impulsive decisions.

ARTICLE BYJay M. Dade of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California

IRS Tax Treatment of Wellness Program Benefits

Business people doing yoga on floor in office

The IRS Office of Chief Counsel recently released a memorandum providing guidance on the proper tax treatment of workplace wellness programs. Workplace wellness programs cover a range of plans and strategies adopted by employers to counter rising healthcare costs by promoting healthier lifestyles and providing employees with preventive care. These programs take many forms and can encompass everything from providing certain medical care regardless of enrollment in health coverage, to free gym passes for employees, to incentivized participation- based weight loss programs. Due to the wide variation in such plans the proper tax treatment can be complicated. However, the following points from the IRS memo can help business owners operating or considering a wellness program evaluate their tax treatment.

First, the memo confirmed that coverage in employer-provided wellness programs that provide medical care is generally not included in an employee’s gross income under section 106(a), which specifically excludes employer-provided coverage under an accident or health plan from employee gross income. 26 USC § 213(d)(1)(A) defines medical care as amounts paid for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body,” transportation for such care, qualified long term care services, and insurance (including amounts paid as premiums).

Second, it was made clear that any section 213(d) medical care provided by the program is excluded from the employee’s gross income under section 105(b), which permits an employee to exclude amounts received through employer-provided accident or health insurance if it is paid to reimburse expenses incurred by the employee for medical care for personal injuries and sickness. The memo emphasized that 105(b) only applies to money paid specifically to reimburse the employee for expenses incurred by him for the prescribed medical care. This means that the exclusion in 105(b) does not apply to money that the employee would receive through a wellness program irrespective of any expenses he incurred for medical care. 26 CFR 1.105-2.

Third, any rewards, incentives or other benefits provided by the wellness program that are not medical care as defined by section 213(d) must be included in an employee’s gross income. This means that cash prizes given to employees as incentives to participate in a wellness program are part of the employee’s gross income and may not be excluded by the employer. However, non-money awards or incentives might be excludable if they qualify as de minimis fringe benefits (ones that are so small and infrequent that accounting for them is unreasonable or impracticable). 26 USC § 132(a)(4). The memo gives the example of a t-shirt provided as part of a wellness program as such an excludable fringe benefit, and notes that money is never a de minimis fringe benefit.

Fourth, payment of gym memberships or reimbursement of gym fees is a cash benefit, even when received through the wellness program, and must be included in gross income. This is because cash rewards paid as part of the wellness program do not qualify as reimbursements of medical care and cannot be a fringe benefit.

Fifth, where an employee chooses a salary reduction to pay premiums for healthcare coverage and the employer reimburses the employee for some or all of the premium amount under a wellness program, the reimbursement is gross income.

These points laid out in the IRS memo provide a solid foundation for understanding the tax treatment of workplace wellness programs and should be kept in mind by business owners deciding how to structure new wellness plans for their employees, or ensuring the tax compliance of existing plans.

Pokémon Go in the Workplace: Oh Look There’s a Pikachu!

Did you know that the world is now inhabited by creatures called Pokémon?  (Or maybe they’ve always been there?)  Some run across the plains; others fly through the skies; and some live in the mountains….and some, yes, some, are located right in your workplace.

Through the magic of downloading Pokémon Go to your smartphone, you too can see these creatures and catch them for some apparently critical scientific testing.

Workplace, Pokémon GoEmployers not familiar with Pikachu, Charizard, and Lucario can rest assured – your employees are.  In less than one week,Pokémon Go became the most downloaded smartphone videogame ever, and employers are clamoring for advice on how to deal with a workforce that already seems sufficiently and consistently distracted.

While employers may be used to seeing brief levels of high distraction during community events like March Madness, uncertainly surrounds this new obsession.  And an obsession it seems to be: sometimes when you look around Manhattan, you think you are in the least threatening version of the Walking Dead.  We even heard that someone just opened the first ever Pokémon-friendly hotel in Australia!  And this may only be the beginning as “augmented reality”-based gaming technology will likely improve in the coming years.

So what should employers do in response?

The first thing we’d say is to keep some perspective.  Before you do anything else, make a judgment call over whether you think the Pokémon Go craze will be short-lived – just a temporary blip on the employee-distraction radar, and if you think it will be, consider whether your planned reaction would really amount to an overreaction.  Remember: everyone could not get enough of Angry Birds, Words with Friends, and Candy Crush.  Is this just more of that?  If so, perhaps a quick and friendly preemptive reminder to employees that working time does not mean training your Bulbasaur to fight a Charmelon.  But if you think this is something different; something more serious, then a stronger communication/directive or an outright workplace ban may be in order.

The second thing we’d say is to consider converting this into an employee engagement opportunity.  Determine whether embracing this latest fad rather than suppressing it will pay morale boosting dividends.  There may be tremendous team-building and social engagement opportunities available, given the game’s team-based format.  Further (and we never thought we’d write something like the following, but), consider whether incentivizing your employees to search for imaginary monsters is an effective employee wellness activity.  (See: a more creative version of paying someone to walk 10,000 steps a day.)

Driving, Pokémon GoThird, remind employees to play safely. This picture says it all.  People are playing Pokémon Go while driving, and two men even fell off a 90-foot cliff in San Diego searching for Pokémon! The humorous and not-so-humorous Pokémon-related accident examples grow by the day. There have even been reports of employees leaning out of windows to get better reception and chasing Pokémon critters and nearly falling downstairs.  And problems can and often will arise when employees encroach on another employee’s work space or enter dangerous workplace areas while playing.  Employers therefore, should consider prohibiting their employees from playing the game on company premises or at least restrict it to certain areas and to certain times.

And the risk of an accident becomes even greater when employees operate company vehicles.  Employers should remind employees that while the game creates an augmented reality, they live in plain old regular reality, so if they see an ultra-rare Articuno Pokemon in the center lane of the 405, ignore it and keep driving.  At the same time, it’s not just the game-playing employee who creates the danger; often times, it is the game-playing civilian.  So tell employees, like your delivery drivers, to be on the lookout for individuals not paying attention to their surroundings as they cross streets even if it seems ridiculously obvious that they should know this already.

Pokémon Go, Work, Lastly, remind employees about your electronic use policies’ application toPokémon Go (or scramble to put some in place)!  Within certain parameters, employers have widespread discretion to monitor employees’ internet use on employer-provided computers and devices, to track employees’ data usage on the company’s purchased bandwidth, and to block certain websites and traffic patterns.  And this is no different when it comes to using employer-provided mobile devices where employees play Pokémon Go, or when employees are playing Pokémon Go in workplaces on work time.  Employers therefore, should seize this opportunity to review existing acceptable use policies to ensure that the risks posed by this “phenomenon” are specifically addressed – and if your company does not have an electronic use or acceptable use policy, this is absolutely the time to get one in place.  Some of the more immediate risks (beyond the loss of productivity) that should be addressed, include the following:

  • If using company-owned devices, a download of this app or any related app should be prohibited.  Some of the Pokémon Go-related applications have been proven to contain malware and depending what is on the device, this may be creating a potential data leak (or even data breach) situation.

  • Depending on where employees might be wandering, they are recording what they see while playing Pokémon Go, and could create privacy issues or even create data breaches that may be reportable.

  • Registration using a company-provided email address should be prohibited.  Collection of email addresses ofPokémon Go players have been reported to have been used in “phishing” involving the game and could put company information at risk.

Conclusion

In an age where technological innovation can negatively affect productivity by making it easier for employees to indulge in frivolous distractions (not to mention impact the overall quality of the labor pool when employers mistakenly hire candidates who have merely wandered into an interview in pursuit of an Ivysaur), employers can sometimes overlook the benefits of a tech-savvy workforce and the technology they have at their disposal. While employers should take steps to limit the employee distraction, safety, data breach and privacy-related concerns associated with Pokémon Go, they should also recognize the potential employee engagement opportunity that this novel game presents.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Trump Trump Trump Trump Trump Trump Everywhere All the Time, Including in Workplace

Ddonald trum larry kingonald Trump has become part of the national conversation. Not a single day goes by now without Mr. Trump filling up at least one news cycle.  His recent success reminds me of a fantastic exchange in Private Parts when a researcher is explaining Howard Stern’s improbable success to the infamous Pi … let’s just call him Phil Vomitz:

Researcher: The average radio listener listens for eighteen minutes. The average Howard Stern fan listens for – are you ready for this? – an hour and twenty minutes.

Phil Vomitz: How can that be?

Researcher: Answer most commonly given? “I want to see what he’ll say next.”

Phil Vomitz: Okay, fine. But what about the people who hate Stern?

Researcher: Good point. The average Stern hater listens for two and a half hours a day.

Phil Vomitz: But… if they hate him, why do they listen?

Researcher: Most common answer? “I want to see what he’ll say next.”

Not surprisingly, not a single day also goes by without a workplace water-cooler (or better yet, chat room) conversation about Mr. Trump (or any of the other presidential candidates.) It can run the spectrum from some friendly banter among co-workers, to a serious dialogue about the issues facing this country, all the way to a heated disagreement coupled with threats of violence.  And it begs the question: how can employers respond to employee political speech in the workplace?  This post addresses that issue.

Few Laws Exist Protecting Employee Political Speech in Private Workplaces

Generally private employers can take adverse actions against employees based on their political speech, unless (i) the employer operates in a state or city that specifically protects employees against discrimination because of political speech, or (ii) the employees are subject to a collective bargaining agreement that does the same.  (The story is quite different for public sector workers, but we do not address them here.)

Many workers live in jurisdictions that provide at least some protection against political speech discrimination – typically in the form of protecting an employee’s political activities, expressions and/or affiliations.  But those laws come in all shapes and sizes, so employers must proceed carefully before banning political speech or disciplining an employee.  For example, Washington D.C.’s human rights law limits its reach to actual or perceived political affiliations only, while Seattle’s law is a bit broader, extending to one’s “political ideology.”  Wisconsin protects those declining to attend a meeting or to participate in any communication about political matters.

More often than not, these laws protect workers from discrimination because of their political activities outside instead of inside the workplace.  For example, with limited exceptions, Colorado law prohibits employers from firing someone because of their lawful off-duty activities, which includes engaging in political speech, and it also prohibits employers from making any rule prohibiting employees from engaging or participating in politics or running for office.  New York’s law protects employees engaging in certain “political activities” outside the workplace, during off hours, but it contains an exception where the employee’s activities would create a “material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”

There is no federal law that specifically protects employees from discrimination or retaliation because of their political activities, affiliations or expressions.  And the First Amendment is not much of a help as it only protects a person’s right to free speech from government interference, not from interference by private employers.

Therefore, unless you live in a jurisdiction that protects you, if the boss overhears you in the cafeteria campaigning for Team Trump or going haywire for Hillary, he or she can generally send you packing.

Political Speech May Invoke the Protections of Other Laws, However

Of course, it’s a bit more complicated than the above analysis indicates, and will only become more so as the primary, and then general election, season unfolds.  To explain, consider the following hypothetical.

Employees A and B are talking in the break room about the upcoming Democratic debate.  Employee A says to Employee B that Hillary is the only candidate who can deliver on increasing the minimum wage, and “maybe they’ll stop underpaying us here if that happens.”  Employee B disagrees emphatically, placing his bet on Bernie Sanders as the only viable candidate to get the job done, and eventually the conversation turns uncomfortably vocal such that Employee C, an older Hispanic woman, cannot help but overhear Employee B comment to Employee A that he fully expects Hillary Clinton to play the female victim card to stave off criticism about her e-mail scandal.  Employee D, who supervises Employees A, B and C, chimes in and enthusiastically sides with Employee B stating that women always do this, and that Employee A should really stop griping about her wages if “she knew what was good for her.”  Employee E, a senior executive, then gets in on the conversation by professing his love for Trump, including by echoing his views on immigration and in particular, Mexican immigrants, and then he goes on to say that he thinks Hillary is just too old to assume the Commander in Chief Position.  Meanwhile Employees F, G, and H are sitting there stunned with their turkey sandwiches in hand, saying to themselves “awwwwwkward!”

This hypothetical, drawn directly from The Cat in the Hat Comes Back: Workplace Edition, shows that while the employer doesn’t necessarily have a political speech problem on its hands, it may instead have sex, age, race and national origin discrimination and/or NLRA interference complaints coming its way – just from one spirited election-related conversation in the break room.  Yes, politically-related conversations often invoke passionate feelings on both sides of the aisle on issues ostensibly about public policy, but they also often touch on issues that may relate to someone’s membership in a protected class, leaving employers vulnerable to discrimination and other claims.

Potential Employer Responses to Political Speech in the Workplace

As we head into Super or SEC Tuesday and the (17-month+ long!) election season plods along, you should be asking yourself what level of political discourse do you want in your workplace.  Do you want everyone to keep their political opinions to themselves or do you want to encourage robust debate or somewhere in between?  Discussion of politics and campaigning in the workplace puts you on tricky terrain, and may lead to conflict among your employees and thus, wherever you fall on this spectrum, consider addressing these issues in your code of conduct or in your handbook, including more specifically in your anti-discrimination/harassment, complaint reporting, non-solicitation/distribution and social media and electronic use policies.  In doing so, remain mindful of certain laws like the state and local laws mentioned above and the National Labor Relations Act, which restrict your ability to limit certain politically-based conversations/activities in the workplace.

If you will tolerate political discussions in the workplace, consider whether it’s necessary during this election season to conduct workplace professionalism training seminars for all staff members to reduce the likelihood that a healthy debate will turn into a contentious or inappropriate one.  Or consider distributing an election-focused one-pager with helpful talking points.  For example, it may remind employees that a politically-laced, yet well-intentioned conversation, even between the best of friends, can quickly turn contentious, and thus, even though you are not banning such conversations, you are asking your employees to think twice before engaging in one.  Or if the employees do engage in such a conversation, they should be sensitive to others’ beliefs and should not pressure anyone into discussing politics at work.  It also should remind them to utilize your complaint reporting mechanisms if a problem does arise from such a conversation.

Overall, employers should aim for outcomes where employees can engage in a dialogue about important issues, whether in person or electronically, during non-working hours while remaining respectful of others’ points of view and aware of key discrimination and labor laws.  Employees should also understand that they may be subject to discipline for failing to meet your standards of conduct regarding political discourse.  Taking this approach should allow employers to create realistic workplace social conditions, maintain employee morale, and reduce their exposure to a lawsuit.

It’s 2015: Do You Know Where Your Workplace Is? [VIDEO]

Where, when, and how we work has changed profoundly since I started practicing law but employment and privacy laws have not evolved to keep up with technological change and the reality of the “everywhere” workplace.

I would like to think that employment lawyers can provide some practical solutions to addressing policies that help draw the line between personal and business and yet protect valuable business assets.

Social media policies, integrating multi-jurisdictional privacy and employment laws, the gig economy … all of these developments are impacted by rapid technological change but legal developments have lagged.

Just think about the last “non-traditional” place you worked. In line at the grocery store? In your car? Where is your workplace?

Employer’s Use of DNA Test to Catch Employee Engaging in Inappropriate Workplace Behavior Violates Federal Law

If someone continually, yet anonymously, defecated on the floor of your workplace, you’d probably want to use any and all legal means at your disposal to identify and discipline the perpetrator.  Your methods might include surveillance or perhaps some form of forensic or other testing to link the offensive conduct to a specific individual.  You would probably not be overly concerned that your efforts to rid the workplace of this malefactor might give rise to a discrimination claim, but is that really a safe assumption?

Background

In a case exemplifying the gentility of labor-management relations, a Georgia federal court grappled with how far an employer may go in this situation.  In Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015), the employer, Atlas Logistics Group Retail Services (Atlanta), LLC, which provides long-haul transportation and storage services for the grocery industry, discovered in 2012 that one or more employees had been using a common area in one of its warehouses as a lavatory.  As part of its investigation into this matter, the company retained the services of a DNA testing lab and requested cheek swabs from two employees it considered suspects so that it could compare their DNA with that of the mystery defecator.  After Atlas determined that neither employee was responsible for the unwelcome contributions to its workplace, the employees filed a lawsuit alleging that the company violated the Genetic Information Nondiscrimination Act (GINA) by requesting and requiring them to provide genetic information.

GINA prohibits discrimination on the basis of genetic characteristics and makes it unlawful for an employer to request, require or purchase genetic information with respect to an employee.

The Court Finds Atlas Violated GINA

The court held that Atlas’ argument that GINA only prohibited genetic testing that revealed an individual’s propensity for disease – which the test in this case did not do – was inconsistent with the statute’s text and legislative history as well as the applicable EEOC regulation.  In the court’s view, this argument “render[ed] other language in GINA superfluous.”  In particular, the court noted that the statute contained specific exceptions permitting certain testing that did not involve an individual’s propensity for disease, and if testing revealing a propensity for disease were the only prohibited testing, then those exceptions would not have been necessary.  The court further rejected Atlas’ argument that GINA’s legislative history demonstrated an intent to limit violations to testing that revealed a propensity for disease, explaining that although a group of senators favored this interpretation during the legislative debate, all of the evidence indicated that Congress chose to reject this view in favor of a broad construction.  Finally, the court held that an EEOC regulation listing eight examples of “genetic tests” did not support Atlas’ narrow definition of that term because the list included testing that also did not relate to one’s propensity for disease and, therefore, “would go beyond the scope of the statute” if the law were as narrow as Atlas claimed.

Conclusion

This case’s distasteful facts, which will undoubtedly remind many human resource specialists how coarse employee relations challenges often are in practice, should not distract employers that currently perform DNA tests from the fact that GINA may apply more broadly than some initially believed.  Although the decision should not have a significant impact on the narrow range of situations where workplace DNA testing is a legitimate practice, such as those involving health and safety concerns, it should serve as notice to employers investigating misconduct that they should find methods other than DNA testing to identify culpable employees.

©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.