Shari's Solutions: Medical Marijuana, Holiday Pay for Part-Timers, Recording Work Meetings

Must we accommodate an employee's medical marijuana use?

Possibly. While state laws legalizing medical marijuana are becoming more prevalent, they aren’t uniform in nature. Such legislation runs the gamut from not mentioning employment protections at all to prohibiting employers from terminating an employee solely on the basis of a positive drug test. 

No laws currently protect Bill when he chomps on cannabis-infused edibles at his desk or Sara when she comes to work high. But what about when these employees aren’t impaired or caught but fail a drug test in violation of your workplace policy? Marijuana metabolites can be detected long after an individual has partaken in the drug. Must that be accommodated? 

It’s important to know that there are no employment protections or accommodations required for marijuana use under federal law. Marijuana is still illegal under the federal Controlled Substances Act, and the federal government could prosecute for its possession or use, regardless of state law. The federal Americans with Disabilities Act (ADA) also doesn’t require an employer to accommodate the use of any illegal substances, including marijuana that was prescribed by a doctor. Be that as it may, the fact that an individual has a medical marijuana card generally means that she has a medical disability. Therefore, to deny ADA accommodations based solely on the fact that the worker uses marijuana could be risky. 

As with all accommodation requests, you should get medical documentation on the disability, understand how the person is limited and make accommodations that the law would otherwise require for the disability itself—not the marijuana use. Leave could also be required under the federal Family and Medical Leave Act because the disability may qualify as a serious medical condition. 

A total of 25 states, the District of Columbia, Guam and Puerto Rico have now legalized marijuana for medical use. However, even in those places, there is more to consider. Few state laws require employers to make accommodations for medical marijuana use, and even those that do make exceptions for safety-sensitive positions and for companies required to maintain a drug-free workplace in order to retain their licenses or federal contracts or grants. 

In Arizona, Delaware and Minnesota, which prohibit employers from penalizing registered medical marijuana cardholders for a positive drug test, the employer must provide accommodations—unless the employee was impaired or used or possessed the substance at work.

Accommodations in these cases could mean anything from time off for intermittent use to adjusting the worker’s schedule or duties, just as you would for the underlying disability. It will also involve modifying your drug-testing policy and altering zero-tolerance policies in those states. 

As case law on medical marijuana use and employment issues increase, you’d be wise to consult with your attorney regularly regarding your policies and to keep abreast of new and pending cases. Even when not required, making reasonable accommodations for medical disabilities should always be carefully considered and may be in the best interests of both employer and employee.  

Can we ban employees from recording meetings or conversations at work?

Employers are prohibited from imposing broad no-recording policies following a ruling by the National Labor Relations Board (NLRB) in December 2015. 

In that case, the board ruled 2-1 that Whole Foods Market Group Inc. violated federal law with its policy barring employees from making audio or video recordings at team meetings without prior approval from management. While Whole Foods claimed the ban was meant to encourage employees to be more candid in those meetings, the NLRB found that such a policy could easily be interpreted by employees as violating their right to “protected concerted activity”—that is, openly discussing the terms and conditions of their employment with each other—under Section 7 of the National Labor Relations Act (NLRA).

The NLRA applies to both union and nonunion employers. According to the NLRB, disallowing audio and video recordings could interfere with employees’ documenting and publicizing discussions about workplace terms and conditions, securing images of unsafe workplace equipment or hazardous conditions, or capturing evidence of the inconsistent application of employer rules. 

Unless there is an overriding business interest, no-recording policies violate employees’ Section 7 protections. However, an employer may be justified in imposing such a rule to protect the confidentiality of trade secrets, patient medical data, customer information or financial intelligence. To maximize the likelihood that a ban would be allowable, HR should spell out in the policy why this information can’t be recorded. As always, have your attorney review any new policy to ensure that the wording is appropriate.

Another scenario in which an employer may be able to ban recordings is when state law requires all parties to agree to being recorded. In that case, managers could simply refuse their consent. The Whole Foods ruling didn’t address this because the company policy wasn’t state-specific. Check with your attorney before prohibiting all recordings. 

Are we required to provide holiday pay to part-time employees?

Sometimes. Employers aren’t obligated to pay hourly nonexempt part-time employees for holidays that they don’t work, but some organizations voluntarily do so. Those that do may place restrictions on when workers are eligible for such pay. For example, a company’s policy may require an employee to have worked there for a certain number of days before he or she is entitled to holiday pay. Or eligibility may depend on whether the employee works certain days or hours in the holiday week.

About 56 percent of employers pay part-time workers for holidays, with an average of nine paid holidays offered annually, according to the results of a 2015 Society for Human Resource Management survey.

While we may typically think of part-time workers as hourly nonexempt—and, indeed, many are—it’s important to remember that other pay classifications can be used for these workers, and those classifications may require holidays to be paid. Part-time exempt workers and nonexempt workers on a fixed salary fall into this category.

Just as with full-time exempt employees, part-time exempt workers can’t be docked pay when the office is closed for a holiday. Policies that require employees to work the days before and after a holiday to receive pay can’t be imposed on exempt workers, nor can companies dock these employees’ salaries for not working a full week, according to federal Fair Labor Standards Act regulations. 

Therefore, if a workweek contains a holiday and the employer closes operations, all exempt workers, including part-time exempt employees, must be paid for that full workweek. If a part-time exempt employee isn’t scheduled to work on an actual holiday, then the employer doesn’t have to provide additional pay beyond her weekly salary.

Nonexempt employees working on a fixed salary for fluctuating hours generally must be paid their full salary, regardless of whether they work fewer hours in a workweek. Therefore, a week with a holiday in it would be treated the same way. Conversely, a nonexempt employee working on a fixed salary for a set number of hours each week could be docked pay for holidays if your company doesn’t offer holiday pay or if the worker doesn’t yet meet the requirements of your policy.    

Illustrations by James Smallwood for HR Magazine