The Job Description

In its introduction to the May 28 update, the EEOC was careful to state that its guidance relates only to the analysis of whether mandatory vaccine programs are lawful under the laws it enforces, noting that the vaccines are currently authorized under an emergency authorization from the Food and Drug Administration. This reference suggests that employers should consider the status of vaccine approval in evaluating whether to implement mandatory vaccination requirements.

In recent litigation that received national attention, a group of employees of Houston Methodist Hospital brought an action against the hospital challenging the hospital’s mandatory vaccination policy. The employees, who had refused to get vaccinated, alleged that terminating them for refusing the vaccine would be, in effect, wrongful termination in violation of public policy. The court rejected the claims of the employees and dismissed the complaint, emphasizing that the hospital’s policy did not require the employees to engage in an illegal act, which is a required element of a wrongful termination claim under Texas law. The court cited the EEOC guidance favorably, and noted that “Receiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties. [Plaintiff] is refusing to accept inoculation that, in the hospital's judgment, will make it safer for their workers and the patients in Methodist’s care.” Bridges v. Houston Methodist Hosp., CV H-21-1774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021) (appeal filed June 14, 2021).

The court further discussed the mandate, noting that the employer “is trying to do their business of saving lives without giving [patients] the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. [Plaintiff] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” Id., at *2.  In the days and weeks since the decision in the Houston Methodist matter was issued, a number of employers have begun announcing vaccine mandates or policies in which they mandate either the vaccine or weekly COVID testing for employees.

Vaccine Incentives

The most recent EEOC guidance also addresses vaccine incentive programs, stating explicitly in a new section of the WYSK document (section K.16) that employers may lawfully offer incentives to employees to voluntarily obtain the vaccine in the community, and require employees to show confirmation that they received the vaccination. The EEOC notes that incentives for community vaccination are lawful under both the ADA and the Genetic Information Nondiscrimination Act (GINA). If an employer or an employer agent (which may include a health insurance provider) is directly providing the vaccines, then an employer may only provide incentives to employees if they are not so substantial as to be coercive. Further, employers may not provide incentives to family members of employees to obtain the vaccine from the employer under GINA.

The EEOC, therefore, suggests that for employers who incentivize employees to obtain the vaccines in the community, there is no need to undergo the analysis of whether the incentives are so substantial as to be coercive. This guidance is a welcome confirmation from the EEOC. For health care providers and others that may provide the vaccine directly to employees, however, the recent update confirms the need to limit incentive programs. The EEOC did not provide guidance regarding how large an incentive might be considered coercive, and proposed regulations regarding such incentives were recently withdrawn.

The EEOC’s update also confirms that employers must maintain information about employee vaccination status as confidential under the ADA. The EEOC explained that this information must be maintained as confidential because it is “medical information.” The need to maintain information as confidential applies regardless of whether employers obtain the information in connection with mandatory vaccination programs, vaccine incentive programs, or for any other reason. 

The updated technical assistance document from the EEOC also notes that employers must continue to provide accommodations for employees with disabilities related to COVID-19. For example, employers may receive requests for accommodations from fully vaccinated employees who express concern that they may face an increased risk of severe illness from a COVID-19 infection. Such a request should be considered by the employer as a request for reasonable accommodations, and be treated consistently with all other accommodation requests.

Conclusion

The EEOC has provided helpful guidance around employer programs to incentivize employees to obtain the COVID-19 vaccine. In an important update, EEOC also confirms that employers may, under federal EEO law, implement mandatory COVID-19 vaccination policies consistent with equal employment opportunity laws, with some limitations. Specifically, in doing so, employers must allow for an opportunity for employees to request accommodations in the event of disability-related concerns or sincerely held religious beliefs. Additionally, vaccines continue to be in emergency-use status, which presents a risk that employees may allege that mandatory vaccine policies are against public policy. Employers should therefore carefully evaluate all of the facts and circumstances and applicable state and local law before implementing mandatory vaccination policies. 

Helen Holden is a Partner with Spencer Fane LLP, in Phoenix, Arizona.

By way of background, cannabis is the entire plant many people refer to marijuana. It is the plant with the stereotypical leaves, and it is the source of many products — from rope to hemp (defined in the 2018 Farm Bill as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta–9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis”), to adult-use cannabis. CBD oil is currently viewed as a potential treatment for seizure disorders, but it does not contain THC. Cannabis is considered a “Schedule 1” drug under the Controlled Substances Act. While a movement exists to re-schedule cannabis, at the moment, it is still a schedule 1. Schedule 1 drugs are considered highly dangerous and addictive with no medical use. If cannabis were to be rescheduled to schedule 2, it would still be considered highly dangerous and addictive, but with acknowledged medical uses.

Approximately 20 states allow adult-use recreational cannabis. An additional 18 states permit specific use of cannabis for medical reasons. Some of those states prohibit an employer from hiring an employee due to a positive THC test if the applicant has a proper, medical marijuana certificate.

While the Delta-8 compound from the cannabis plant is gaining more attention; traditionally, the statutes regarding cannabis have focused on Delta-9 THC levels.

States May Limit Whether an Employer Can Refuse to Hire an Applicant for a Positive THC Test

Of the 38 states (or District of Columbia) that allow either the use of “medical marijuana” or recreational adult-use, differing attitudes are expressed in the statutes. Accordingly, an employer should be aware of what each specific state statute allows or prohibits when making an employment decision.

One example of a state prohibiting discrimination on the basis of a positive THC test is Connecticut. Under Connecticut law, “No employer may refuse to hire a person or may discharge, penalize, or threaten an employee solely on the basis of such person’s … status as a qualifying patient … under sections 21a-408 to 21a-408m[.]” CT ST § 21a-408p. However, the statute does include a caveat. That prohibition applies “unless required by federal law or required to obtain federal funding.” Id.

In Smith v. Jensen Fabricating Engineers, Inc., 2019 WL 1569048 (Conn. Super. Ct. March 4, 2019), plaintiff Adam Smith sued after Jensen Fabricating withdrew an offer of employment when he tested positive for THC (the active ingredient in cannabis), which he took to treat post-traumatic stress disorder. Smith told the doctor and the drug screening facility that he had the proper certification under Connecticut law. Nevertheless, Jensen Fabricating revoked its employment offer. Smith filed suit, alleging a violation of § 21a-408(p). Jensen Fabricating moved to dismiss the suit, arguing that the Controlled Substances Act (CSA) and the Americans with Disabilities Act preempted the Connecticut statute.

The Connecticut court denied the motion to dismiss, finding the CSA did not actually conflict with the Connecticut statute. “In this case, the fundamental issue is that the CSA does not make it illegal to employ a marijuana user. Indeed, the CSA does not purport to regulate employment practices in any manner.” Id. Further:

In and of itself, § 21a-408p(b)(3) does not authorize the use of marijuana. Section 21a-408p(b)(3) simply says that an employer may not fire or refuse to hire an employee solely because that individual uses marijuana in compliance with [the statute’s] requirements and in a manner that has no effect on that employee’s workplace performance or the employer’s ability to obtain business.

Id. The court also rejected the argument that the ADA preempted the Connecticut statute, stating that the Connecticut statute does not force an employer to accommodate marijuana use. Indeed, the statute permits an employer “to prohibit the use of marijuana at work, to terminate an employee for showing up for work under the influence, and to terminate or refuse to hire an employee using medical marijuana if required to do so by federal law[.]” Id.

Therefore, under the statute, as interpreted by the courts, an employer may not refuse to hire an applicant who tests positive for THC so long as (a) the applicant meets the requirements of the Connecticut statute and (b) does not somehow violate federal law or impact federal funding.

In contrast, Alabama’s medical marijuana statute (passed this year) specifically allows an employer to make decisions regarding employment based on the use of medical marijuana. Specifically:

This chapter does not … [p]rohibit any employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions, or privileges of employment as a result, in whole or in part, of that individual’s use of medical cannabis, regarding of the individual’s impairment or lack of impairment resulting from the use of medical cannabis.

Ala. Code § 20-2A-6(3) (1975) (as amended).

If an employer is in a state that prohibits making an employment decision based on the use of medical marijuana, it must also take into account that no legitimate test exists for testing whether a user of cannabis is, in fact, intoxicated or impaired. Even states that prohibit making employment decisions based on the use of medical marijuana, such as Connecticut, allow making decisions based on impairment of the employee or applicant. However, without a test (such as a breathalyzer or blood alcohol content test), an employer may find supporting its decision without clear documentation difficult.

Federal Contractors and the Drug-Free Work Zone Requirement

Some employers are deciding quietly not to test for cannabis-use, unless an employee appears impaired. However, if an employer is a federal contractor, they may not be able to do so.

Under the Drug Free Work Zone Act, a drug-free workplace means a site of an entity performing work as defined by the act “at which employees of the entity are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance …” 41 U.S.C. § 8101(a)(5). Loosely explained, the Drug Free Work Zone Act requires federal contractors to post warnings to employees that the unlawful use of a controlled substance, such as cannabis, is prohibited and to specify what actions will be taken if the employee violates the prohibition. 41 U.S.C. § 8102(a)(1)(A).

Based on the provisions of the Drug-Free Work Zone Act, then, an employer – even if located in a state that prohibits actions taken on the basis of an employee’s use of medical marijuana – may be required to take actions otherwise prohibited by the state law.

So – Now What?

Employers need to be aware of the terms of any particular contract under which they operate. If an employer is operating a worksite in Connecticut for example under a private contract, and it requires a drug-free workplace, the employer needs to address an exception that complies with Connecticut’s medical marijuana act. Moreover, if an employer operates a worksite and that worksite, but perhaps another, is subject to the Drug Free Work Zone Act, the employer needs to ensure that it complies with the federal requirement, where appropriate.

Worse than the differing requirements among the states and federal government, the states are changing laws frequently. The state of the law with respect to both medical and recreational use is in constant flux. The correct answer today likely may not be the correct answer in three to four months.

Employers needs to stay aware of changing state and federal laws as public opinion shifts more positively toward cannabis. Unfortunately, most of the answers to any questions will be “it depends.”

Stacy L. Moon is an Office Partner in the Birmingham office of Gordon Rees Scully Mansukhani, LLP, and is a member of the Employment Litigation practice group as well as Employment Law, Cannabis, Hemp & CBD, Construction Law, and Professional Liability practice groups. Ms. Moon is an AV-rated attorney, with more than 20 years of primarily defense litigation, including commercial, construction, employment litigation, and professional liability defense.She is active in DRI, including the Employment Law Committee.

As many communities around the world shut down in an attempt to stop the spread of the COVID-19 virus, we suddenly realized that what we all do every day is not in isolation, but is closely connected with others, and that living a life without in-person contact, physical touch, and close relations with friends, colleagues, and loved ones can cause pain, suffering, and is not something we can sustain for too long. We need one another, in more ways than we may have anticipated or realized.  

Anita Moorjani wrote recently in her book “What If This Is Heaven?” that we are all connected in the “grand tapestry” of life and that our lives are “woven together with the treads of other lives.” Each thread connected and part of a “beautiful, cohesive, cosmic work of art. No thread can be extracted without changing everything,” and “each thread is indispensable to the overall image” and is a vital element of the whole story. I loved Moorjani’s imagery and insights.

When I read her book, I was immediately reminded of the “grand tapestry” of my DRI tribe. The brilliant image of 20,000 plus individual strands, symbolizing the individual paths of talented lawyers and awesome human beings whose lives have been intricately woven together to create a brilliant tapestry of complex and colorful patterns. With 29 substantive and affinity committees, DRI members, whose background, experience, and personal journeys have been intertwined in this amazing community that stands strong together and benefits all of us and our clients.

Despite all the challenges we have faced over the past 16 months, my DRI community has managed to stay together, show up for one another, learn from one another, and navigate this trying period with resilience and grace.

This brings me to the second lesson I learned during the pandemic: Most times, we navigate life from a place of fear, not love. And I do not mean fear of physical threats, but fear that many lawyers experience every day, when faced with the ongoing demands to excel under pressure, to fit in and perform complex tasks under severe time constraints. It is that fear that I know you have heard many lawyer friends share: “I am overwhelmed,” “I don’t feel like I fit in,” or “I feel like I am not good enough.”

Again, I was reminded of that fateful day, 20 years ago, when I walked into a room full of employment lawyers at a DRI Employment and Labor Law seminar in Phoenix, Arizona, and even as a young lawyer surrounded by experienced professionals, I immediately felt a deep sense of belonging. I did not try to impress or fit in. I showed up as me and that was good enough. What I did not know back then is that for the next 20 years, I would have the incredible opportunity to collaborate and work with some of the most talented lawyers from around the country, to give presentations, to publish articles, to lead continuing education events, and most importantly, that I would do all that not because someone demanded or expected it, or because I needed to pad my resume. I did (and do) all that because I love it. Service that flows from the heart is priceless, and in return you get so much back.

As we grew our DRI community during the pandemic, and celebrated adding new members, we did so with keen sense of awareness that we are not adding numbers to a membership roster. Each lawyer we add to our team is a valued member with unique experiences, background, talents, and insights, and shares in the DRI common values of representing businesses in the United States and beyond. Our DRI community is like no other that I have experienced in that regard. We are welcoming, inclusive, and do not “other” each other. We support one another, collaborate, and everything that we do is a beautiful work of a perfectly orchestrated team effort. For my DRI tribe, it is never about the individual strands. It is always about the whole picture — the brilliant work of a team that works well together, even in trying times.

Our 2021 seminar planning team led by Stacy Moon (Gordon Rees Scully Mansukhani, LLC) and Eric Kinder (Spilman Thomas & Battle, PLLC) put on an incredible virtual seminar in May 2021. We not only learned from the experts but gathered in round table groups sharing practical tips and experiences about litigation tactics and return to work issues in the COVID-19 environment.

Joseph DeBlasio (Jackson Lewis P.C.), one of our long-standing members, put on a great webinar on “Employment Law 101” topics, which is available in our DRI library and a great resource for those who are new to the employment law practice.

Helen Holden (Spencer Fane LLP) and Marti Carti (Matrix Absence Management, Inc.) presented an informative session on COVID-related leaves of absence, accommodations, and vaccination issues, which was broadcast in January 2021 and again in February 2021, due to popular demand. It is also available in our online library.

With the pandemic landscape constantly evolving and changing, Anne R. Yuengert (Bradley Arant Boult Cummings LLP) and Laura Proctor (Numotion) will soon share their insights about the “Lessons from the Pandemic (Or Please Can We Get Back to Business as Usual?)” on August 2, 2021.

In October 2021, we are poised for an incredible coming together of the entire DRI community that is so eager to be together, in person, at the DRI Annual Meeting in Boston, October 13–16, 2021. The speakers are fabulous and the relationship-building opportunities amazing! You do not want to miss it! Join me and my DRI tribe at our next event. You will not regret it!

Until then, be well, do good, and stay connected!

Dessi Day is the Chair of the DRI Employment and Labor Law Committee. She is Senior Counsel at Greene & Roberts LLC, in San Diego, California, advising clients and representing businesses throughout California in wage and hour, discrimination, retaliation, wrongful termination, and a wide variety of employment law disputes, including complex representative/class actions.