Blog Archive

HR Tip of the Month: Don't be a Dope About Opioids in the WorkplaceJuly 2017

The pernicious opioid epidemic sweeping the nation is well known, and at some point employers may have to deal with an employee who has a substance abuse problem. These situations have implications on everything from workplace drug testing, medical leave laws, and reasonable accommodations to employee assistance programs.

Typically, employers will start to notice signs of opioid abuse including frequent lateness, poor attention to detail and a general drop in performance. Nothing prohibits an employer for terminating an employee for poor performance. However, if the employee comes to the employer before the employer takes any disciplinary action and says they have a substance abuse problem, this changes everything and employers must treat the situation delicately.

Generally, employees who are currently using illegal drugs are not considered “individuals with disabilities.” However, individuals addicted to drugs but who are no longer using and receiving treatment for addiction may be protected by disability discrimination laws. Under New Jersey and Federal medical leave laws, employees are generally entitled to job protection if they seek an unpaid leave to attend rehab. When they return, they may need other accommodations. For example, if an employee requests time off or a revised schedule to attend Narcotics Anonymous meetings or other support groups, those requests need to be considered in good faith by an employer as part of the interactive process to determine reasonable accommodations under New Jersey and Federal law.

These types of employee issues can be riddled with pitfalls for the unknowing employer and sometimes even the knowledgeable employer. These employee issues are rarely, if ever, resolved at once. Remember to be patient, tread lightly, and always consult with legal counsel before taking any action.

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HR Tip of the Month: Getting into the Weed(s) with Medical Marijuana in New JerseyMarch 2017

In 2010, New Jersey passed the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) which protects the users of medical marijuana “from arrest, prosecution, property forfeiture, and criminal and other penalties.” The law specifically provides that employers are not required to “accommodate the medical use of marijuana in . . . [the] workplace,” but is silent about an employer’s duty to accommodate medical marijuana use outside the workplace. While the New Jersey Law Against Discrimination requires an employer make reasonable accommodations to a disabled employee who can perform the essential functions of the job, the law is hazy when it comes to whether those reasonable accommodations include allowing an employee to use medical marijuana outside of the workplace. This dilemma can present some sticky situations for employers. For example, what is required of an employer who maintains a zero tolerance drug policy, but is confronted with an employee who tests positive for marijuana because of their underlying disability? Given this budding area of the law; for now these situations should be addressed on a case by case basis taking into account the employee’s job description, the underlying disability, the circumstances prompting the drug screen, etc.

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HR Tip of the Month: Pregnancy Accommodation Requests. . . Are You Responding Properly?July 29, 2016

An increasing number of states and cities have passed laws providing greater rights to pregnant employees than provided under federal law. For example, New Jersey, New York State, New York City and Philadelphia have all passed laws mandating that employers reasonably accommodate pregnant employees. New Jersey’s law, the Pregnant Workers Fairness Act ("PWFA"), applies to all New Jersey employers regardless of size.  The PWFA (and the New York City and Philadelphia laws) list several potential accommodations that employer’s should consider for pregnant employees. Such accommodations include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules, and temporary transfers to less strenuous or hazardous work. Employers should review their pregnancy accommodation policies and practices to ensure they are compliant with applicable law.

More information regarding the New York City law can be found at:
http://www.nyc.gov/html/cchr/downloads/pdf/publications/Pregnancy_Poster.pdf

More information regarding the Philadelphia law can be found at:
http://www.phila.gov/HumanRelations/PDF/pregnancy_posterenglish.pdf

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New York State and City – New Regulations on Unlawful Harassment and DiscriminationJanuary 2016

On January 20, 2016, new regulations under the New York State Human Rights Law relating to unlawful discrimination and harassment on the basis of gender identity, transgender status, and gender dysphoria became effective. The new regulations make clear that discrimination or harassment based upon these protected classes is unlawful, in addition to requiring employers to make reasonable accommodations for persons who fall into the gender dysphoria class. To read the regulations or the Division on Human Rights’ comments, click here.

So too the New York City Human Rights Commission recently issued guidance to employers on the broad scope of the meaning of “gender” under the New York City Human Rights Law. To read the new guidance click here.

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HR Tip of the Month: Employee Performance Reviews... Are You Doing It Right?September 2015

Many employers still make the mistake of either not conducing periodic performance reviews or conducing reviews but not doing them “right”. To be done “right”, performance reviews should not be a once a year proposition.  Throughout the year supervisors should be clarifying expectations, setting objectives and goals, providing feedback and documenting each of the foregoing.  Employees that are not meeting expectations should be told so in a very direct, but constructive, manner.  Conducting performance reviews right will not only help your employees achieve their fullest potential, but perhaps even more important, it will help limit the company’s risk of litigation.  Conversely, the risk of discrimination, harassment and retaliation claims are significantly increased where decisions regarding important terms and conditions of employment are not supportable by documented performance reviews (e.g., decisions regarding promotions, raises, bonuses, work assignments, work accommodations, training opportunities, discipline, layoffs and termination).   

There is no question that the performance review process can require a significant investment of time and energy, but it is an investment worth making.  As your company approaches the year end, it is a good time to evaluate your performance review process and to make any necessary changes to insure it is being done right.

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