Grandfathering Under the ADA Is Not A Thing

100 Year old BuildingFor all of you businesses in cool brick lofts, I’ve got some bad news for you. Grandfathering under the ADA is not a thing.

Everyone thinks it is, though. It’s a persistent rumor leading to poor decisions. I hear the grandfathering rumor all the time. All. The. Time.

So I feel the need to say it again. Just because the building is old doesn’t mean that your business doesn’t have to comply with the ADA. Grandfathering under the ADA does not exist.

Most California businesses find this out the hard way.

In California, a disabled plaintiff can get damages and attorneys’  fees for going to a business that is not to code under the ADA. So these suits are rampant and entire law firms exist just to bring them.

In other states, the availability of damages varies. So the attractiveness of a lawsuit to lawyers also varies. But, that doesn’t mean the businesses can’t or won’t get sued.

And if you are a commercial tenant, you probably won’t be able to blame it on the landlord. Quite the opposite: your landlord will also get sued and you’ll be required to indemnify him.

So beware. This is a trap for those who live in old towns, like our headquartered city of Saint Louis, Missouri.

Video Transcript:

Say your business is in a 100 year old brick warehouse.

Is it correct I’m grandfathered out of the Americans With Disabilities Act accessibility regulations?

Sorry. Grandfathering is a myth. It doesn’t exist under the ADA.

That means two things. First, you may not receive permits from the city to open or improve your business until you bring your building up to code.

Second, you could get sued.

The ADA is what’s called a “complaints driven” law. So someone who notices your building isn’t ADA accessible has the right to sue you.

However, in many states the plaintiff won’t be entitled to damages even if they win because the state has to make an extra law to create damages.

California is an example of a state that gives a plaintiff damages for bringing an ADA accessibility case.

But in all states, a lawsuit can result in a court order requiring you to bring your building into ADA compliance, even if it is expensive.

Confused about possible risks or liabilities in your business? Get peace of mind by having us on call for less than $5 per day. Call us and ask about our Peace of Mind Plan at 800-449-8992 or visit http://peaceplan.biz for details.

Do I Have To Accommodate An Employee Who Uses Medical Marijuana?

Marijuana in the Workplace Marijuana is well on its way to being legalized in the United States.

I’m going to make a prediction right now. In about a decade’s time, marijuana will be legal to use in the United States. I say that because we are nearing a tipping point in legalization.

By the end of the 2016 election cycle, more than half the states will likely have legalized marijuana in some way.

This presents a problem for employers who have a drug-free workplace. Some employers (i.e. defense contractors) are obligated by contract to have a drug-free workplace. And of course there are safety issues.

Still, I think the law on this is going to rapidly change over the next decade. What is an employers’ obligation to accommodate an employee using marijuana as medicine?

Video Transcription:

An employee of mine uses medical marijuana. Can I fire them for violating my drug-free workplace policy?

When marijuana was illegal, the answer was yes. But rapid changes in the legal status of marijuana as medicine makes the answer less clear.

Normally, you can fire an employee for being under the influence of drugs while at work.

But when the drugs are medications lawfully prescribed to them to treat a true medical condition, then such a firing may constitute disability discrimination.

For example, if someone uses insulin to control diabetes and this makes him or her act spacey, or be unsafe, you cannot fire them.

When marijuana is legally used to treat glaucoma, cancer or seizures, the employer may be required to accommodate the employee.

Employers also do not have the right to inquire about an employee’s health, medications or medical history, including at a hiring interview.

And in most cases, employers may not drug test current employees.

If you must keep a drug-free workplace by contract, you need legal advice to deal with such tricky situations.

Ask us how we can keep you safe from lawsuits with our Employer Protection Package by calling us at 800-449-8992 or emailing us at [email protected].

Can I Require My Employees To Be Nonsmokers?

Non-Smoking Employees When I first started practicing law, I was asked by a fitness-conscious employer whether he could require his employees to quit smoking.

After some research into the Americans with Disabilities Act, I concluded, “no.” Basically, I concluded that smoking interferes with a major life activity — namely, breathing.

The senior lawyers whom I worked with disagreed.

They had some good points at least politically. Being a smoker is not a sympathetic status in California.

But a decade has passed and the ADA has broadened. And I’ve become more experienced as an employment lawyer, so I have thoughts on other laws that inform this situation.

So this video has my thoughts on whether you can make your employees be non-smoking.

Video Transcription:

Sometimes employers ask, “Can I require my employees to be nonsmokers?”
Some employment lawyers will say it’s acceptable because it’s not illegal to discriminate against smokers.

But you could be risking a disability discrimination claim because smoking is a physical addiction that may impair a major life activity, such as in situations when the person develops lung or throat disease.

In addition, employers do not have the right to inquire about an employee’s health and medical history, including at a hiring interview.

In requiring your employees to be nonsmokers, you may run the risk of violating these laws.

Employers do have the right to designate the workplace as smoke free.

However, employers do not have the right to dictate how employees spend their breaks, such as unpaid lunch breaks, when employees are free to leave the premises.

If you are worried about your employees’ health, try offering access to a smoking cessation program.

If you offer employee health insurance, many such programs are offered as part of the insurance plans and can be promoted by human resources.

Ask us how we can keep you safe from lawsuits with our Employer Protection Package by calling us at 800-449-8992 or emailing us at [email protected].

Americans with Disabilities Act 25 Years Old Today

Caring hands for Americans with DisabilitiesOn July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law. The law’s goal is to ensure equal opportunities for people with disabilities by mandating greater accessibility and reasonable accommodations in public transportation, public institutions, commercial facilities, and federal and local programs. The ADA also regulates employment practices and mandates that employers provide reasonable accommodations for people with disabilities in the workplace.

 

When President George H.W. Bush signed the law he had to address concerns from the American public that the broad civil rights law would be “too vague or costly, or may lead endlessly to litigation.” In response, Bush used a line from President Reagan’s Berlin Wall speech to remind Americans of the main goal of the Act, saying, “Let the shameful wall of exclusion finally come tumbling down.”

 

Twenty-five years later, there is still significant debate about whether the law in practice is too vague, costly, and encouraging of frivolous lawsuits or unnecessary litigation. But advocates for the disabled state that the law has much further to go in knocking down the barriers people with disabilities may find between them and opportunities for a productive life. Indeed, President Obama’s administration has been expanding the ADA regulations throughout his terms in response to these calls and litigation has not appeared to increase. And as the workforce ages, a full 20% of Americans now qualify as disabled in a way that impacts their daily lives, mobility and employment.

 

In my experience, the ADA is easily violated by employers, because they are either ignorant of its provisions or they do not understand what it requires. That accommodations must be “reasonable” is an amorphous standard that is both hard for employers to implement and also protects employers from being overly burdened with expensive or unworkable accommodations. But employers usually do not want to spend the money required for reasonable accommodations, and that is where they get into significant trouble. I write about the ADA a lot in my blog because it is the one area that I see the most mistakes and the most resistance for compliance.

 

Still, I do not know how — if at all — I would change the ADA. Technology has made accommodations easier. Compassion for people’s health or physical wellness is the right thing morally. And I can even make a business case for accommodations because they help employers keep their valuable employees or add valuable disabled employees to their ranks.

 

Generally, I think it would be a bad idea to regulate accommodations that closely because every situation is unique. More government controls in an attempt to navigate the infinite possibilities will just be a burden on everyone. The ADA is already a heavy hammer for many employers who should be motivated to engage in best practices for their disabled employees. Employers should get advice on how to properly accommodate disabled employees and not wing it, though; and they should not be so recalcitrant when it comes to accommodations.

What is the Status on Firing Employees for Medical Marijuana Use?

marijuanaThe Current State of Medical Marijuana Use

As of December 2014, states where medical marijuana is legal no longer have to worry about federal drug agents raiding retail operations. Hidden within a 1000+ page spending measure, Congress essentially approved lifting the federal ban on medical marijuana, stating that federal agents were banned from such raids.

The provision has been enacted law roughly one year after the Obama administration directed federal prosecutors  to stop enforcing drug laws that contradict state marijuana policies. Since this directive, federal agents have been limited to targeting medical marijuana retailers and growers who are violating other federal laws, such as money laundering or fraud.

The District of Columbia, along with 32 states have legalized the use of medical marijuana and marijuana related substances. While these laws began to pass in states as early as the 1990’s, it has long remained illegal under Federal Law until now.

While these 32 state laws vary in scope and definition, they share many common features. For example, most states require patients who want access to medical marijuana to apply and be approved for a registration or ID card.

Requirements vary in each state, however generally these cards require for a patient to seek approval from a doctor. Once a patient has received doctor approval and has received their ID card, they can purchase and even grow personal batches of medical marijuana. ID Cards are usually granted by a government agency and require annual renewal.

It does not appear that the federal government currently intends to regulate medical marijuana. It has left any such regulations and procedures up to each state for the meantime. However, the federal government’s change in stance on prosecuting medical marijuana is signifying a larger change in the tide of acceptance of medical marijuana. However, not much guidance has been given to businesses and employers on what to do with the current rise in medical marijuana usage.

Given these new developments, what should an employer know about terminating employees for medical marijuana usage?

Some states, although authorizing termination or discipline for marijuana use or intoxication, prohibit discrimination against individuals on the basis of their being medical marijuana registration cardholders. However, many state laws have created exemptions for employers to restrict any use of marijuana in the workplace or premises. In additions, these laws also usually prohibit an employee from being intoxicated on the job, whether or not the usage was within work hours or on the premises. Some jurisdictions, such as California, have case law supporting an employer’s right to terminate an employee who tests positive for marijuana.

However, it still remains unclear if an employer can terminate an employee for use of medical marijuana with a valid prescription during non-employment hours, with the potential to create a wrongful termination lawsuit. Currently, Arizona, Minnesota and Delaware have enacted laws that prevent employers from firing an employee for a positive marijuana drug test if the employee holds a valid medical marijuana card. However, other western states like California, Oregon, Montana and Washington have enacted laws stating that employers are allowed to enforce a zero-tolerance drug  policy at the workplace regardless of whether the state currently stands on medical and recreational marijuana.

Federal laws further complicate matters in this area. For example, under the Americans With Disabilities Act (ADA), illegal drug use is not generally protected for accommodation as its own illness.  But as a legally-prescribed painkiller that is legal under state but not federal law, the protection of workers using medical marijuana is not at all a given.  Many state courts over the last three years, including courts in California, have ruled that employers do not need to accommodate workers who use marijuana medically. Moreover, any employees of the federal government will fall under federal law, not their own states with regards to medical marijuana. Thus, even an employee who is a valid medical marijuana user in Arizona may still lose their job pursuant to federal law.

That being said, I think that the law is going to change as medical marijuana laws gain traction across the country.  However, employers in California, as of right now, you can feel reasonably safe terminating for medical marijuana use.  However, I suggest that you begin thinking about how you might modify your policies to account for a possible change in the law and whether you really could accommodate medical marijuana use.  If you have more pressing things to do than worry about a hypothetical future change in the law, then sign up for my newsletter, and I’ll let you know when the time comes to revisit this issue. Also please contact our employment law attorneys for a consultation at (800) 449-8992 or contact us online.

What do you need to know about Equal Pay laws?

woman ready to take notesWith the current surge of women’s rights issues in the news, equal pay laws have been receiving a lot of attention. As an employer, you should be aware of both state and federal laws governing this area.

For example, California Labor Code 1197.5 prohibits the payment of wages at rates less than the rates paid to employees of the opposite sex in the same establishment if the job requires equal skill, effort, responsibility, and similar working conditions. Different pay rates may be allowed where they arise under a merit or seniority system, a system which measures earnings by quantity or quality of production, or a differential based on any factor other than sex (or else be faced with a sex discrimination lawsuit). The Federal Equal Pay Act is nearly identical to the California Statute.

Due to these laws, lawsuits regarding an employer’s failure to enact equal pay laws have steadily been on the rise. Typically in these cases, the focus is on the work product and qualifications of the employee filing the lawsuit versus the employee/gender of employees who are receiving better pay. The greater the disparity in pay, the more justification the employer will have to prove for such a disparity.

Judgments for these cases typically include not only the recovery of any wages lost  but also liquidated damages. A party bringing such a suit may also recover attorney’s fees in a private action to enforce this section.

As a result of these laws and the recent Lilly Ledbetter Fair Pay Act which essentially resets the statute of limitations to file a discrimination lawsuit with the receipt of each new paycheck, class actions lawsuits are steadily on the rise. These can be very painful suits to defend. They are long, time consuming, comprised of multiple former employees and a lot of work. The fallout of such a lawsuit can be both devastating to you personally and to you business.

At the risk of being redundant, employers should audit their workforce!  I’m going to keep saying it until they start doing it.  It’s the best way to protect and defend against these types of suits.  Remember that these lawsuits start with the big companies and slowly work their way down to small companies, so you aren’t safe simply by virtue of the fact that you have 20 employees instead of 20,000.  Many of my clients know this by personal experience.

If you want to know whether you are at risk for an equal pay lawsuit (or any other lawsuit), sign up today for a free Business and Employment Law Planning Session, or contact our employment law attorneys at (800) 449-8992 for a consultation.