Weed, Unions and Pregnancy…Oh My! 3 Controversial Issues Immediately Affecting the Way Your Workplace Works and Why You Need to Care Now

1. Proprietary and confidential
Weed, Pregnancy & Unions … Oh My!
3 Controversial Issues Immediately
Affecting the Workplace and Why Every
Employer Should Care

2. and
Proprietary and confidential

3.
High Times –
Managing Legal Marijuana and the
Workplace
Stephen Woods, Esq.
stephen.woods@ogletree.com

4. Map Prepared by Marijuana Policy Project

5. Anti-Discrimination Provisions
● AZ, CT, DE, IL, ME, MN, RI
○ Do not protect use, possession, or
intoxication at work
○ What is protected?

6. Basic Provisions of Medical Marijuana Laws
● Individuals who suffer from a “debilitating medical
condition” - authorized to use medical marijuana after
receiving registry identification card
○ “Debilitating medical condition” can meet the definition of a disability
under applicable state and federal disabilities laws
○ In most states, includes cancer, glaucoma, HIV, hepatitis, Crohn’s
disease, etc.

7. Proprietary and confidential
What Do MML’s Mean for You?
● Most state MML’s provide
that employers are not
required to accommodate
intoxication, use, or
possession of marijuana in
the workplace
● Employers in most states
can restrict marijuana use
by employees
● Employers in AZ, CT, DE,
IL, ME, MN, RI may be in a
tough spot given the anti-
retaliation provisions in
those states’ laws

8. ADA Considerations for Medical Marijuana Users
● No duty to accommodate illegal drug use
● Recovering addict provisions
● But, employer may have a duty to engage in the
interactive process if the employer has reason to
believe the employee is disabled
● May have to consider whether FMLA or other leave is
appropriate for underlying medical condition

9. Cutting through the Haze of Full Marijuana Legalization
● Alaska, Colorado, Oregon, and Washington
○ Legalizes possession of small amounts of marijuana
○ Marijuana regulated use much like alcohol
○ No explicit protections for employees who use marijuana for
recreational purposes

10. Practice Pointers
● No state restricts employer’s prohibitions on recreational
use
● No requirement under state law (except AZ, CT, DE, IL,
ME, MN, RI) to accommodate use of medical marijuana
● Employers (except AZ, CT, DE, IL, ME, MN, RI) may still
enforce drug testing policies to exclude employees who
test positive for marijuana
● Drug testing policies must be uniformly enforced to avoid
discrimination claims

11.
Pregnancy Accommodation
Gretchen Ewalt, Esq.
gretchen.ewalt@ogletree.com

12. Young v. UPS – Pregnancy Accommodation?
● Ms. Young was a pregnant part-time delivery
driver for UPS
● Her doctor imposed lifting restrictions due to
her pregnancy

13. Young v. UPS – Pregnancy Accommodation?
● Lifting restrictions precluded her from performing many of the duties of
her position.
● But, UPS also had a “light duty work assignment program”.
Participation in the program was reserved for employees injured on the
job, those who lost their DOT certifications, and those who suffered
from a disability under the ADA.
● Ms. Young asked to be assigned to the “light duty” program, but UPS
refused because she was not eligible.

14. Pregnancy Accommodation
● Is an employer legally required to accommodate a pregnant
employee/applicant because she cannot perform some of
the duties of her position?
○ Multiple Choice:
■ Yes
■ No
■ Maybe

15. Pregnancy Accommodation
● Did the Supreme Court give us a clear standard?
No, here it is:
○ If the pregnant employee can show that the employer refused to accommodate her while
accommodating other workers who were similar in their ability or inability to work; then
○ The employer has the opportunity to show a legitimate reason for the difference in
treatment; then
○ The employee can get a jury trial if she can show that the employer’s legitimate reason
imposes a “significant burden” on pregnant workers and the employer’s legitimate
reason is not sufficiently strong to outweigh the burden on the pregnant employee

16. Pregnancy Accommodation – The Path Forward?
● If you have a “light duty” program for employees injured on the job,
you should consider extending it to pregnant employees in situations
which are analogous to those of employees injured on the job who are
or have participated in the program
● Always consider: Is the condition a pregnancy related disability that
requires accommodation under the ADA?

17. Pregnancy Accommodation – the path forward?
● Always consider: local law
● Train your managers so that they know that work
modifications requested by employees due to
pregnancy should be forwarded to HR to insure a
thorough review and consistency of treatment

18.
Ambush Elections
John Merrell, Esq.
john.merrell@ogletree.com

19. Ambush Election Rules
● Went into effect April 14, 2015
● The practical impact: Elections within 21
days of a petition (vs. 42)

20. Ambush Election Rules—
The Requirements
● Comprehensive, issue-preclusive position statement with list of
employees within 7 days of a petition
● Hearing on the 8th day after the petition
● Employee contact information within 2 days after hearing
○ Full name and home address (current requirement)
○ Personal (not work) email (if available)
○ Personal home and cell number (if available)

21. Ambush Election Rules—Focus Areas for Employers
● Preventive measures
○ Build a good record and inoculate employees to union appeal
○ Train supervisors
○ Review policies
○ Conduct risk assessments
● Legal planning
○ Assess potential unit issues and consider prepackaging legal arguments
● The Campaign
○ Consider template communications