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By Edgar M. Rivera, Esq.

On September 5, 2018, in Noffsinger v. SSC Niantic Operating Co., the District Court of Connecticut held that, under the Connecticut Palliative Use of Marijuana Act (“PUMA”), employers are prohibited from refusing to hire a person because of the person’s status as a qualifying medical marijuana patient, which includes refusing to hire someone because they failed to pass a drug test for marijuana.  This case makes it clear that anyone who is prescribed marijuana or a marijuana derivative does not need to choose between taking their medication and losing an employment opportunity.

In Noffsinger, Plaintiff Katelin Noffsinger accepted a job offer from Defendant SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center (the “Center”).  The offer was contingent on drug testing, and Ms. Noffsinger told the Center that she was qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder, which she was diagnosed with in 2012 after being in a car accident, and related night terrors (marijuana generally prevents lucid or vivid dreams).  After her drug test came back positive for THC consistent with the use of marijuana, the Center rescinded its job offer.  The Center’s position was that it did not allow medical marijuana for its employees, so Ms. Noffsinger was disqualified for employment with them.

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The past six weeks of the Brett Kavanaugh confirmation have marked one of the most monumental political events of Trump’s presidency and Supreme Court History. Over 20 million people watched live as Dr. Christine Blasey Ford accused a Supreme Court nominee of sexual assault before the Senate Judiciary Committee.  The hearing highlighted critical issues of political agenda, government policy, and gender discrimination.  Additionally, it compelled viewers to consider the deep-seated, long-term impact of sexual trauma and the importance of sexual violence in today’s political and social climate.

According to the United States Department of Justice, sexual assault is “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” Perpetrators of sexual abuse are not only physically abusive, but are verbally abusive, antagonistic, and emotionally manipulative. The topic of sexual violence in our society is multi-faceted and complex, rooted deeply in our historical and legal suppression of women. In examining these issues, cultural scientists often focus on the corrosive power of hyper-sexualization in media and  “rape culture,” a term coined by feminists in the late-70s that covers all “jokes, music, advertising, legal jargon, laws, words and imagery” that normalize sexual coercion. People promoting rape culture often regard the prominence of sexual assault as an “inevitable” facet of reality. The effects of over-sexualization and sexual commodification have been distinctly linked to mental conditions such as depression and eating disorders. Additionally, the hyper-sexualization of modern culture has enabled and permitted the ambiguity surrounding the definition of sexual abuse to continue.

Moreover, while there are 321,500 cases of rape and sexual assault reported annually in the U.S., this number is far less than the projected actual number, as victims are often too afraid to report their experiences. Dr. Christine Blasey Ford, whose traumatic experience of sexual assault went unreported for decades, is a classic example of “the silent victim.”  The uniqueness of her case being made public allows us to understand more deeply how an “indelible” trauma like sexual assault can affect our relationships, well-being and sense of safety for years following the incident. The effects of sexual abuse have been linked to an enormity of physiological conditions such as PTSD, borderline personality disorder, substance abuse, suicide, insomnia, panic attacks, generalized anxiety, sexual dysfunction, reproductive disease, cancer, digestive issues, emotional instability, autoimmune dysfunction, diabetes, and heart disease. (New Scientist, Committee on Healthcare) Sexual trauma impacts not only victims, but families, communities, companies, economies, and the environment.  Financially, rape is the “costliest crime for victims in the United States,” racking up to $127 billion annually.  These costs include medical, mental health, social and emergency services; insurance; legal costs; and lost productivity, wages, and fringe benefits.

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While the workplace has considerably evolved within the last decades to more openly recognize the diverse needs of employees, there still remains a large stigma around workers’ mental wellbeing. Statistics reveal striking contrast between the ubiquity of mental health issues and how few people seek treatment. In the United States, one in five adults, or 43.8 million people, experience a mental malady within a year, yet the long-held stigma about mental health keeps more than 50 percent of workers from seeking employee-covered care to support their physiological wellness. (One Medical, 2017) Employees largely do not disclose mental health issues, reportedly, for fear of job loss, lack of promotion, eventual replacement or judgement from colleagues.  As a result, approximately $27 billion dollars are lost annually to mental health-related absences in the workplace. (Office Vibe, 2014)

According to experts like Mary Deacon, who heads one of Canada’s largest mental health initiatives, the corporate environment has suffered from creating an “artificial separation” between mental and physical health. (Concordia, 2013) Until now, it has been more acceptable within the professional environment to recognize employees with physical disabilities or illnesses. Deacon expresses, however, that raising awareness around mental health is now gaining as much traction as cancer and AIDS-awareness movements garnered in the last decades, and rightfully so.  With over 80 percent of people working more than 48 hours weekly and with 50 percent of workers reporting they experience extreme stress at work, places of business must consider how to address the topic of mental health on multiple levels. (Office Vibe, 2014)

Companies can support whole-person health through the design and management of their company culture, choice of health care policies and employee benefits. Team leaders can initiate conversations that foster and promote a healthy work place. Bringing the subject of mental wellness to light can be a useful tool for promoting a sense of security within the job environment for workers. Initiatives can be taken to bring in Employee Assistant Professionals to speak to employees about mental health resources and the effectiveness of getting support to ease stress. Leadership training can facilitate efficient communication within the workplace and can be a useful tool to support greater wellness at work and improve colleague and client relations.

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Jessica Ellis

On August 10, 2018, in Cotto, Jr. v. Ardagh Glass Packing, Inc., the United States District Court of New Jersey held that New Jersey law does not require private employers to waive drug tests as an accommodation for employees using medicinal marijuana.

In 2007, Plaintiff Daniel Cotto, Jr. was prescribed medicinal marijuana to treat a neck and back injury, which he disclosed to Ardagh Glass Packing, Inc. (“Ardagh”) when he was hired as a forklift driver.  In 2016, Mr. Cotto hit his head on a forklift, and Ardagh asked him to take a drug test before returning to work.  As a user of medical marijuana, Mr. Cotto told his employer that he would not be able to pass the test.  Ardagh, however, told Mr. Cotto he could not continue working there unless he tested negative for marijuana. Consequently, on December 1, 2016, Ardagh suspended Mr. Cotto for an indefinite period of time.

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Edgar M. Rivera, Esq.

People suffering from a range of physical and mental disabilities frequently rely on companion animals, most commonly dogs, to assist them as they go about their day.  Most employers, however, prohibit employees from bringing animals to work, creating a tension between employer and employee based on a misunderstanding about disability.  As part of our series on mental health, this blog covers a case involving a companion animal for someone suffering from depression and post-traumatic-stress disorder (PTSD).

Joyce Riggs worked for the Bennett County Hospital and Nursing Home (the “Hospital”) from March 2006 until her termination in March 2015.  Between 2006 and 2012, Joyce brought a companion animal to work with her to help manage her depression and PTSD.  When Ethel Martin became CEO in 2012, however, the Hospital adopted a more restrictive policy regarding pets in the workplace.  Joyce informally requested permission to continue bringing her companion animal to work, but the Hospital denied her request.

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by Owen H. Laird

This Summer, The Harman Firm Blog is running a series of articles on mental health in the American workplace.  Millions of Americans suffer from a wide range of mental health issues, be they diagnosed or undiagnosed, treated or untreated, living with the stigma surrounding mental illness and the lack of understanding about these disorders.  The variety and severity of these conditions runs the gamut from relatively minor issues to disabilities so severe they are completely debilitating.  But they are too often overlooked.  With that in mind, we will undertake a comprehensive analysis of how mental health issues – both arising out of the context of employment discrimination and those arising independently – affect workers, employers, lawyers, legislators, and the courts.

People with mental health issues make up an important segment of the workforce: they work in every sector of the economy and at every level – from the mail room to the boardroom.

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Edgar M. Rivera, Esq.

On April 30, 2018, in Sépulveda-Vargas v. Caribbean Restaurants, LLC, the First Circuit affirmed the U.S. District Court for the District of Puerto Rico’s dismissal of Victor Sépulveda-Vargas’s reasonable accommodation claim under the Americans with Disabilities Act (ADA).

Mr. Sépulveda, an assistant manager at Caribbean Restaurants LLC (“Caribbean”), which operates Burger King restaurants in Puerto Rico, suffered from post-traumatic stress disorder (PTSD) and depression after he was attacked at gunpoint, hit over the head, and had his car stolen while making a bank deposit on behalf of Caribbean Restaurants.

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This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.

As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.

We have previously reported on the prevalence of—and problems with—mandatory arbitration agreements (which require employees to agree to resolve any future discrimination and harassment claims in a private forum, rather than in court) and nondisclosure provisions, better known as NDAs, in settlement agreements (which swear employees to silence about their experiences of discrimination in exchange for settling their claims). Beginning July 11, 2018, however, the New York general business law will be amended to prohibit New York State employers from forcing employees to arbitrate sexual harassment claims—including nullifying any arbitration agreements signed prior to that date. And amendments to New York’s civil practice law and rules and general municipal law will prohibit employers from including NDAs in settlement agreements concerning workplace sexual harassment claims unless the plaintiff specifically voices a preference for including the nondisclosure language. Together, these changes will hopefully begin to end the silence around workplace sexual harassment by giving victims of sexual harassment the chance to pursue their claims in court and share their stories of discrimination with others, unrestricted by silencing clauses in settlement agreements.

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On April 2, 2018, the U.S. Supreme Court held in Encino Motorcars, LLC v. Navarro that an auto dealership’s service advisors were exempt from overtime under the Fair Labor Standards Act (FLSA), which excludes “any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles” from the FLSA’s overtime provisions. While the case turned on this fairly specific overtime exemption question, however, the Court’s decision has much greater implications, laying out a new standard for analyzing overtime exemptions under the FLSA and rejecting the longstanding precedent that FLSA exemptions be “narrowly construed” in favor of a broader “fair reading” standard.

The FLSA is a federal wage-and-hour statute which establishes, among other things, minimum wage and overtime requirements for covered employers. Under the FLSA, most employees are entitled to overtime premium pay—pay at one-and-a-half times the regular hourly rate for hours worked in excess of 40 in a given work week. Some workers, however, are exempt from the FLSA’s overtime provisions, including executives, administrative employees, learned professionals (such as doctors and lawyers), and creative professionals (such as musicians and actors), among a number of others.  Encino Motorcars dealt with a less common, more obscure FLSA exemption, set forth in § 213(b)(10)(A) of the FLSA, which states that “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” is exempt from overtime under the FLSA.

In Encino Motorcars, a group of current and former service advisors at an auto dealership brought suit under the FLSA, alleging that they were owed back pay because their employer had misclassified them as exempt from overtime under the FLSA. The defendant then successfully moved to dismiss on the grounds that the plaintiffs fell within the “selling or servicing automobiles” FLSA exemption, which decision plaintiffs appealed to the U.S. Circuit Court of Appeals for the Ninth Circuit. The Ninth Circuit reversed the district court’s ruling, finding the language of the FLSA “ambiguous” and the legislative history “inconclusive.” Encino Motorcars then appealed the Ninth Circuit’s holding to the U.S. Supreme Court, which reversed and remanded in a 5-4 decision.

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Edgar M. Rivera, Esq.

On March 26, 2018, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of the defendant in Westbrook v. Illinois Department of Human Services, dismissing the hostile work environment claims brought by Velma Westbrook against her former employer, the Illinois Department of Human Services (IDHS). Ms. Westbrook, an African-American security therapy aide, alleged that a patient repeatedly made racially derogatory comments and once tried to attack her. The court held that, due to the nature of Ms. Westbrook’s job, the patient’s offensive comments and behavior were not sufficiently severe or pervasive to alter the conditions of Ms. Westbrook’s employment, meaning that Ms. Westbrook could not sustain a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In 2001, Ms. Westbrook began working as a security therapy aide for IDHS’s forensic treatment programs, which house and provide treatment for individuals who have been found not guilty by reason of insanity in criminal court. As a security therapy aide, Ms. Westbrook’s job duties included documenting residents’ inappropriate behavior, de-escalating resident behavior in potentially dangerous situations, and preventing residents from harming themselves or others. At the beginning of her employment at IDHS, Ms. Westbrook received training on how to deal with disruptive residents, restrain combative residents, and defend herself against residents who became aggressive, and she testified that she knew when she took the job that she would be dealing with mentally ill individuals. Over the course of her nearly 10-year employment at IDHS, Ms. Westbrook observed patients assault others on a regular basis, and she regularly worked with patients who said hurtful or offensive things to staff members.

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