Category Archives: New Legislation

The Illinois Medical Marijuana Law has Created Smoke Screens for Employers

Contributed by Michael Wong

The Illinois Medical Marijuana Law and its four year pilot program will become effective January 1, 2014.  However, this does not mean employers will be inundated by individuals who are registered medical marijuana users on January 1st.

Under the Medical Marijuana Pilot Program, the Illinois Department of Agriculture, Department of Financial and Professional Regulation and Department of Health have been tasked with developing administrative rules and regulations for the pilot program.  Officials from those departments have just started meeting to discuss drafting the rules and regulations and do not expect to finalize the rules and regulations until May 2014.  Until those rules and regulations are finalized, individuals are not legally allowed to prescribe, dispense or use marijuana, even for medicinal purposes. 

As we previously stated on August 1, 2013, in Caryl Flannery’s article Employers’ Control Over Drug Use Will Not Go Up In Smoke Under Illinois’ Medical Marijuana Law, there are significant exceptions and protections in the law that allow employers to keep control over their workplace.  However, despite the exceptions and protections, the language of the law will still create some issues that employers should be aware of and consider in applying their policies and procedures. 

The law expressly prohibits employers from discriminating against registered users by penalizing them solely for their status as a registered user, unless failing to do so would create a violation of federal law or cause it to lose monetary or licensing-related benefits under federal law or rules.  While employers cannot discriminate based on an individual’s status as a registered user, the law specifically provides that employers may enforce drug testing policies, including zero tolerance and a drug free workplace, provided such policies are applied in a non-discriminatory manner.  Confused yet?  If not, the law goes on to state that it does not create a private cause of action against employers when the cause of action is based on an employer’s “good faith belief” that the employee used, possessed or was impaired by marijuana during working hours.  

In layman’s terms, while employers can still have a zero tolerance or drug free workplace policy, there may be some exposures.  In essence, each situation will likely be treated differently until Illinois courts or the Illinois legislature provide precedent for employers to follow.  Until then, employers should carefully consider and seek legal advice before automatically denying employment to an applicant or disciplining/terminating an employee who is a registered user based on a drug test.

Employers will also have to keep in mind their duty under the Occupational Safety and Health Act (OSHA) of providing a safe work place for all of its employees.  If a registered user is applying for or currently employed in a safety-sensitive position, his or her marijuana use may not be reasonable based on the position.  While there might be uncertainty as to some safety sensitive positions, it is clear that in positions which require federal licensing or regulation, such as commercial driving, it is absolutely unacceptable for employees to use marijuana.  

Even though the Illinois Medical Marijuana Law and its four year pilot program is still in its infancy, employers should be aware of the ways that it can impact their workplace policies and procedures, drug testing policies (zero-tolerance, random and triggering events), hiring practices and other aspects of their business practices.

Protecting Your Workplace Just Got a Little Easier…

Contributed by Julie Proscia

On August 16th, Gov. Quinn signed the Workplace Violence Prevention Act (WVPA or act). The WVPA is effective on January 1, 2014. The legislation applies to employers with five or more employees, and covers the prevention of violence, stalking and harassment. The WVPA allows employers to seek a court order of protection if the business or its employees are threatened by an individual, generally a disgruntled employee.

At least once a week, we counsel and advise employers about the disgruntled employee. It is always a difficult situation; do we keep an abusive employee or let them go and face their wrath? Employers are fearful that if they terminate a disgruntled employee, the individual will return to the business and harm both the people and property associated with the business. Now we work with our clients and local law enforcement agencies to effectuate the smoothest of separations, and try and prevent the individual from entering the property through anti-trespassing measures. We have also successfully fought in the courts for orders of protection. Unfortunately, until this act, there was no cogent statewide legislation for orders of protections that specifically addressed these non-domestic workplace scenarios. This act is meant to resolve this deficiency. As of January 1, 2014, employers who face a credible threat of violence may seek an order of protection to prevent and preclude the individual from entering the workplace and contacting their employee(s).

For an employer to obtain an order of protection under the act, they must show through an affidavit, to the satisfaction of a judge, that there is sufficient evidence that an employee has suffered a threat or there is a credible potential threat that could be faced by the workplace. A credible threat of violence is defined as a statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.

This act does not supplant any current means or methods of seeking protection but gives employers both a shield and a sword to try and prevent workplace violence. In an era where employers are constantly subjected to additional legislation that makes it harder to do business, this is legislation that makes it easier. Put this one in the win column.

Contractors Beware: Strict Amendments to the Illinois Employee Classification Act

Contributed by Jonathon Hoag

House Bills 923 and 2649 were signed into law amending the Illinois Employee Classification Act (IECA), effective January 1, 2014.  The IECA sets forth strict requirements in order to lawfully classify individuals as independent contractors within the construction industry (defined very broadly by the act).  The IECA has been amended to give the Illinois Department of Labor more oversight and authority to enforce this act.  The recent amendments mandate that (1) contractors follow annual reporting requirements when contracting with an individual, sole proprietor, or partnership to perform construction services; (2) add individual liability; and (3) change the department’s method for enforcing the act (i.e. easing enforcement).

Beginning January 1, 2014, contractors that make payments to an individual, sole proprietor, or partnership for construction services must report contact and payment information to the Illinois Department of Labor by January 31 following the taxable year in which payment was made.  The department intends to closely monitor the use of (non-employee) sole proprietors and partnerships in the construction industry.  Contractors that fail to submit required reports are subject to penalties and debarment.

In addition, officers and agents of contractors who knowingly permit the contractor to violate the IECA, or are otherwise considered an employer under the act, are subject to individual liability.  This provision does not apply to contractors primarily engaged in the sale of tangible personal property or doing work for a business primarily engaged in the sale of tangible personal property.

Lastly, the enforcement procedure was drastically amended so that now alleged violations will be prosecuted by the Illinois Department of Labor through an administrative hearing, subject to administrative review in the courts.  Currently, the Illinois Department of Labor’s administrative findings have no significant weight and violations must be proved by the Attorney General in the circuit court.  This change to the enforcement procedure will give the Illinois Department of Labor substantial control and power in how this act is enforced. 

Interestingly, contractors in compliance with the responsible bidder requirements set forth in the Illinois Procurement Code are exempt from these statutory amendments.  There are a number of requirements under the responsible bidder provision of the Illinois Procurement Code, but the one of most significance is the requirement that contractors have an apprenticeship program approved by the U.S. Department of Labor to cover each craft of work performed on the job.  There has been a concerted effort to broaden the application of the responsible bidder requirements to contractors throughout Illinois, and it appears the strategy will be to give contractors who satisfy the responsible bidder requirements special treatment under other Illinois laws.

Employers’ Control Over Drug Use Will Not Go Up In Smoke Under Illinois’ Medical Marijuana Law

Contributed by Caryl Flannery

On August 1, 2013 Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act making Illinois the 20th state to enact some form of medical marijuana legalization.  The law goes into effect January 1, 2014, but regulations and full guidelines for implementation will likely not be in place until next summer. Proving that patience does have its virtues, Illinois has taken note of the bumps and pitfalls other states have encountered with their medical marijuana programs to craft a law that addresses the concerns of both medical marijuana advocates and employers who value a drug free workplace. 

The four-year pilot program is highly structured. Patients must obtain a registry identification card by submitting applications which include medical documentation of a covered condition; a written certification from a physician with whom the patient has an established relationship; the name of the dispensary the patient will use; a background check; and other identifying information and certifications.  They may purchase only 2.5 ounces at a time, and make purchases at one of 60 highly regulated dispensing outlets. 

While the law states that no employer may refuse to hire nor penalize a person solely for his/her status as a registered qualifying patient, there are significant exceptions and protections to keep employers in control of their workplace: 

  • An employer may refuse to hire, terminate, or otherwise take action against a registered user based on their status if such action is necessary for the employer to follow applicable federal law or to retain a monetary or licensing-related benefit under federal law or regulation;
  • An employer may enact a zero-tolerance, drug testing policy as long as it is applied in a non-discriminatory manner and discipline registered users who violate the policy;
  • Employers may prohibit employees who are registered users from using, possessing, or being impaired by marijuana while on the employer’s premises and during hours of employment;
  • An employer may discipline a registered user who tests positive for marijuana if the employee’s positive status puts the employer in violation of federal law or jeopardizes federal contracts or funding;
  • Employers who observes specific, articulable symptoms (such as unusual speech or actions) may conclude that a registered user is impaired and may take disciplinary action if the employee cannot refute the determination;
  • There is no cause of action against an employer who imposes discipline based on a good faith belief that the registered user was impaired;
  • No health insurance plan is required to cover medical marijuana;
  • Employers may prohibit a “guest, client, customer, or visitor” to use legally prescribed cannabis on or in their property.

Employers should remember that this is a state law only.  Marijuana – prescribed or otherwise – remains a Schedule 1 drug under federal law, which places it in the same category as heroin and LSD.  Possession and distribution of marijuana remains illegal under federal law. 

In the employment context, courts have held that federal employment statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act do not protect or allow for the use of medical marijuana.  Thus, permitting an employee to take breaks to smoke medically prescribed marijuana would not be a reasonable accommodation under the ADA.  Federal agencies that promulgate and enforce employment standards, such as the Department of Transportation, have made it clear that a positive drug test for marijuana is a positive drug test, regardless of the source or reason for the presence of the drug.

Bottom Line:  Employers will not have to significantly alter their policies and programs to comply with the new law and will not be required to permit employees to use or be under the influence of medical marijuana in the workplace.

New Jersey Enacts New Domestic Violence and Sexual Assault Leave Law Effective October 1, 2013

Contributed by Sara Zorich

On July 17, 2013, Chris Christie, Governor of New Jersey, signed into law the “New Jersey Security and Financial Empowerment Act” (“NJ SAFE Act”) to assist victims of domestic violence and sexual assault.  The NJ SAFE Act is applicable to private employers in New Jersey that have 25 or more employees and is effective as of October 1, 2013.  Pursuant to the Act, employers must display a conspicuous notice of employees’ rights and obligations under the Act, in a form to be provided by the Department of Labor and Workforce Development, and to use “other appropriate means to keep its employees informed.”  No notice is yet available from the Department of Labor and Workforce Development.

Eligible employees (defined by the Act as those who have been employed for at least 12 months and have at least 1,000 base hours during the 12-month period immediately preceding the leave) in New Jersey are entitled to up to 20 days of unpaid leave, as needed, within one year of the incident, if they or their spouse, parent, child, domestic partner or civil union partner are a victim of domestic violence or sexual assault.  The leave must be taken related to the domestic violence or sexual assault for any one of the following purposes: (1) seeking medical attention for, or recovering from, physical or psychological injuries; (2) obtaining services from a victim organization; (3) obtaining psychological or other counseling; (4) participating in safety planning, relocation, or taking other actions to increase safety; (5) seeking legal assistance or remedies to ensure health and safety; or (6) attending, participating in or preparing for a criminal or civil court proceeding relating to the incident.

If the leave is foreseeable, employees must provide employers with as much written notice as is reasonable and practical of the need for leave under NJ SAFE Act.  Employers may require or employees may choose to exhaust accrued paid leave (i.e. vacation, PTO, sick time, etc.) during their leave provided by NJ SAFE Act before using unpaid time. 

Employers may require documentation to support the leave for which any of the following are sufficient: (1) restraining order or other documentation of relief issued by the court; (2) letter from the prosecutor; (3) documentation of offender’s conviction; (4) medical documentation of incident; (5) certification from a certified Domestic Violence Specialist, director of designated domestic violence agency or Rape Crisis Center or (6) other documentation by a social worker, clergy, shelter worker or other professional assisting with the incident.  All information provided must be kept confidential by the employer and employers may not retaliate or discriminate against an employee for taking leave under the Act.

Illinois Employers May Be Able to Get Orders of Protection Soon…

Contributed by Michael Wong

In today’s day and age, workplace violence is becoming more and more of an issue for employers.  While employers have control over their employees and property, it can be difficult for them to obtain protection for their property and employees from other individuals, including disgruntled ex-employees or a violent former client/customer. 

The Illinois Legislature recently sent the Workplace Violence Act, H.B. 2590, to the Governor to review and approve.  If approved by the Governor, the Workplace Violence Act will allow an employer to seek an order of protection to prohibit further violence or threats by an individual on the employer’s premises or against its employees.  Currently, there are a few options for an employer seeking to prohibit an individual from accessing its property, including notifying the individual that they are trespassing and seeking help from law enforcement or filing a civil lawsuit against the individual for trespassing and seeking a temporary restraining order.  

However, those options do not necessarily provide the same level of protection or enforcement as an order of protection and it can take time to get a temporary restraining order.  Under the proposed Workplace Violence Act, an employer would be entitled to basically the same rights as individuals in seeking orders of protection for domestic violence.  If it is enacted, the Workplace Violence Act will exponentially simplify the process and allow an employer to get an order of protection by (1) filing an affidavit that shows reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by an individual, and (2) demonstrating that great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by the employee if the order of protection is not granted. 

Furthermore, a change to the Illinois Domestic Violence Act by the recently enacted Firearm Concealed Carry Act would allow an employer, if the Workplace Violence Act is signed into law, to request that the individual subject to the order of protection be required to turnover any firearms that he or she possesses and his or her FOID card to prevent them from legally carrying or possessing a firearm. 

Simply, H.B. 2590 which sets forth the Workplace Violence Act, if signed into law by the Governor will become another tool that employers may use to protect their property and employees.

Hit the Deck! Reloaded – Revisiting Illinois’ Concealed Carry Legislation

Contributed by Brandon Anderson

It is now official.  As a result of the U.S. Court of Appeals for the Seventh Circuit’s decision in Moore v. Lisa Madigan (see my December 2012 “HIT THE DECK!blog), Illinois has enacted a comprehensive concealed carry law (Firearm Concealed Carry Act or “Act”).  Last week, Governor Quinn used his veto pen to make various changes to the Act (including but not limited to prohibiting firearms in restaurants that serve alcohol, and prohibiting license holders from carrying more than one firearm at a time).  However, both chambers of the Legislature voted on July 9, 2013 to override the changes.  The Department of State Police now has 60 days to develop the required training program and will begin accepting permit applications within 180 days.

Now, let’s get down to business—figuratively and literally (if you are looking for a summary of the licensing requirements, try: http://www.isp.state.il.us/firearms/ccw/ccw-faq.cfm).  In December 2012 when the Seventh Circuit issued its ruling, the cliff-hanger question was to what extent the legislation will impact a business’s right to maintain a firearm free workplace.  We now have the answer.

The Act specifically provides that “[t]he owner of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control.”  In order to do so, the owner must post a sign indicating that firearms are prohibited on the property (unless the property is a private residence, in which case no sign is needed).  The Act requires that the signs must “be of a uniform design” as established by the Department of State Police and “shall be 4 inches by 6 inches in size”.  The signs must be “clearly and conspicuously” posted at the entrance of a building or premises.   As additional information regarding the signage and other rules become available, updates will be posted to the ISP’s website

Regardless of a private property owner’s right to prohibit the carrying of a concealed firearm on the property, the Act does indeed carve out an exception that allows license holders to carry a concealed firearm on or about their person or in their vehicles in the parking area of a property that prohibits concealed firearms.  License holders can also store a firearm or ammunition “concealed in a case within a locked vehicle of locked container out of plain view within the vehicle in the parking area.”  The Act goes on to provide that license holders can even carry a concealed firearm in the immediate area outside of their vehicles, but only for the limited purpose of storing or retrieving the firearm within the vehicle’s trunk and only if the firearm is unloaded.

All businesses should be considering three issues at this point.  First, who will be regulating the carrying of concealed firearms in the workplace (i.e. does the business own the property, and, if not, will the landlord be implementing its own policy)?  Second, assuming the business intends to regulate the carrying of concealed firearms, what policy or handbook changes need to be implemented? Third, if the business is going to entirely prohibit carrying concealed firearms on the premises, where can the proper signage be obtained?

Once again, be sure to check back frequently for some additional guidance on these issues…

New York City Passes Paid Sick Leave Law

Contributed by Samantha Esmond

On April 5, 2013, we blogged about the resurgence of proposed paid sick leave legislation, which had been considered by the New York City Council since 2009. The New York City Council initially approved the legislation on May 8, 2013 and, as promised, Mayor Bloomberg vetoed the legislation on June 6, 2013.

Despite Mayor Bloomberg’s veto, the New York City Council garnered enough votes to override his veto and enact the “Earned Sick Time Act.” Several other cities, including Seattle, Portland, Philadelphia, San Francisco, and Washington D.C. have passed similar laws. However, New York City is the most populous city yet to require employers to provide paid sick leave. It has been estimated that this new law will affect nearly one million New Yorkers.

Specifically, the Act requires employers who employ twenty (20) or more employees and all employers of one or more domestic workers to provide paid sick time to their employees beginning on April 1, 2014. The Act is expanded to cover employers who employ fifteen (15) or more employees beginning on October 1, 2015.  Employers who do not employ the requisite number of employees will be required to provide employees with up to 40 hours of unpaid sick leave once the law takes effect on April 1, 2014.

Under the Act, employers shall provide a minimum of one (1) hour of sick time for every thirty (30) hours worked, with a maximum of no more than forty (40) hours of paid sick leave per calendar year, as defined by the employer. To be eligible for paid sick time, employees must work within New York City limits and must have been employed for more than eighty (80) hours in a calendar year. The Act further provides that eligible employees shall be entitled to use sick time for themselves or to care for an eligible family member who is in need of:  (1) a medical diagnosis; (2) care or treatment of a mental or physical illness, injury, or health condition; or (3) preventative medical care.

Although, New York City employers must provide paid sick leave, they may require reasonable notice of the need to use such sick leave, not to exceed seven (7) days advance notice, and request documentation for absences of more than three (3) consecutive workdays. The Act further requires employers to provide employees with written notice of the Act’s requirements, upon commencement of the employment relationship and requires employers to maintain records documenting their compliance. The full text of this new Act is available here.

IMPACT:  New York City employers should be cognizant of the new requirements of the Earned Sick Time Act, including the notice and recordkeeping provisions, and update all employee handbooks and sick leave policies to ensure compliance.

The Supreme Court Strikes Down DOMA – What Does It Mean For Employers?

Contributed by Rebecca Dobbs Bush

On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor, issued a landmark decision striking down the federal Defense of Marriage Act (DOMA) as unconstitutional. Now the federal government must acknowledge marriages between same-sex couples. What does this mean for employers? Well, it depends on what states you operate in….

If you live in a state like Illinois that DOES NOT recognize same-sex marriage:

The short answer is, no one knows. While Illinois does allow same-sex couples to enter into a civil union, being in a civil union is essentially the same as being unmarried for purposes of federal law. The decision of the Supreme Court now arguably makes civil unions even more unequal to marriage.

While civil unions are not affected by the decision, it is unclear whether employers will be required or permitted to recognize same-sex spouses of employees living in states that do not recognize same-sex marriages for purposes of federal employment laws such as ERISA, COBRA, FMLA, etc. In other words, what are an employer’s obligations if they operate in Illinois and have an employee who entered into a same-sex marriage in Massachusetts?

The decision references the fact that over 1,000 federal laws contain provisions specifically applicable to spouses that may be affected and should be coordinated. Until we receive additional guidance from the relevant agencies, employers in states such as Illinois are in a state of uncertainty. For example, the IRS generally defers to state of residence and not state of celebration for purposes of determining tax filing status and whether employer provided benefits should be considered imputed income. However, some federal laws, such as ERISA, do not specifically reference which state law should be given deference. In light of the stated views of the Obama administration, many are anticipating an Executive Order directing federal agencies to defer to the state of celebration for purposes of determining whether couples are married. In the meantime, employers operating in states that do not recognize same-sex marriage will need to wait for further clarification.

If you operate in a state that DOES recognize same-sex marriage:

Currently 13 states and the District of Columbia recognize same-sex marriage, including: Massachusetts, Connecticut, Iowa, California, Vermont, New Hampshire, Washington D.C., New York, Rhode Island, Delaware, Minnesota, Maine, Maryland, and Washington State.

For employers operating in states where same-sex marriage is recognized:

  • Same-sex and opposite-sex spouses will need to be treated the same for purposes of benefits extended to spouses.
  • Employees will not have to pay federal taxes for imputed income tied to an employer’s contribution to the same-sex spouse’s welfare benefit coverage. And, these same employees should be permitted to make their contributions towards these spousal benefits on a pre-tax basis under a Section 125 plan.
  • COBRA continuation will need to be offered to same-sex spouses.
  • Same-sex spouses will need to be treated the same as an opposite-sex spouse for purposes of an employer’s pension or 401(k) plan.
  • Employees will be able to access FMLA leave to care for an ill same-sex spouse the same as they would for an opposite-sex spouse.

Regardless of the state you operate in:

Every employer should review their existing benefit plan documents to verify how “spouse” is defined and to determine whether amendments need to be made to existing documents to accurately reflect the employer’s intent and actual administration of the plan.

U.S. Supreme Court Decision Narrows the Definition of Supervisor and Vicarious Liability for Employers under Title VII

Contributed by Michael Hughes and Michael Wong

On June 24, 2013, in Vance v. Ball State University, the Supreme Court adopted the Seventh Circuit’s narrow definition of a supervisor under Title VII.  In doing so the Supreme Court rejected the EEOC and other appellate courts broader definition of “supervisor,” which included employees who lacked the authority to make tangible employment actions, but directed other employees’ day-to-day activities. 

In this decision the Supreme Court provided employers a clearer distinction between supervisors and co-workers and a better understanding of which employees fit within the scope of a supervisor under Title VII.  This is important for employers as the standards for liability in discrimination and harassment cases are different depending on whether the alleged wrongdoer is a supervisor or a co-worker. 

By narrowing the definition of a supervisor, the Supreme Court in effect limited the liability that employers can face under Title VII. Under the narrower definition of supervisor, in order to hold an employer vicariously liable for a supervisor’s actions in violation of Title VII, the supervisor must be an employee authorized by the employer to take tangible employment actions against another employee, such as hiring, firing, promoting, reassigning with significantly different responsibilities or causing significant changes in benefits.  This should make it more difficult for employees to prevail on claims involving non-supervisory co-worker discrimination or harassment claims, unless the employer was aware of the alleged misconduct and did not take action to remedy it.  To take advantage of this favorable decision, employers may want to review their operations and job descriptions to ensure that they accurately reflect which supervisors or managers have the authority to make tangible employment action in accordance with this Supreme Court decision. 

It should be noted that while the Supreme Court narrowed the definition of a supervisor, it recognized that an employer could still be held liable for effectively delegating tangible employment decision powers to an employee, even if he or she is not a supervisor in title or authority, by relying on the employee’s recommendations in making tangible employment decisions.  Moreover, employers should be aware that corresponding state anti-discrimination statutes may not follow federal law with respect to who qualifies as a “supervisor.”  For example, under the Illinois Human Rights Act, employers are subject to strict liability for any harassment or discrimination committed by a supervisor—and the Illinois courts have tended to find supervisor status for a broader scope of an employer’s workforce than the federal courts.