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What Should Ohio Employers Know About Marijuana in the Workplace?

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Question:
As an Ohio employer, can you help me understand how marijuana legalization fits into our employment policies?

Answer:
You are not alone in trying to navigate the everchanging state of marijuana legalization. A growing number of states have either passed laws, or are considering legislation, to ease restrictions on employees’ use of marijuana for medicinal or recreational reasons. So, employers that need or want to continue testing or disciplining for marijuana use must know the applicable state and federal laws, including the court decisions that interpret those rules.

Medical marijuana was legalized in Ohio in September 2016, and retail sales began on January 16, 2019, when the first four licensed dispensaries opened for business.  As of February 1, 2020, OHDispensaries.com reports 48 of the 57 licensed dispensaries are operating. So, it is important that you know your rights as an Ohio employer regarding medical marijuana.

Below, we will walk you through some commonly held perceptions and workplace scenarios to help your Ohio-based company evaluate how marijuana legalization impacts your employment policies.

True or False: Medical marijuana users have job protections in Ohio due to state disability discrimination laws.

Answer: False. Presently, there is nothing in Ohio’s medical marijuana law that prohibits or limits an employer’s right to drug test employees for marijuana, require a drug free workplace, or impose discipline or discharge an employee violating an employer’s policies The law protects the employer’s right to fire or discipline any employee found to be using medical marijuana. The statute also states that it will not interfere “with any federal restrictions on employment” related to the use of medical marijuana in the workplace. All marijuana use, whether for medical or recreational use, is still illegal under federal law. It is listed as a Schedule I drug under the Controlled Substances Act, which means that it is deemed to have no medical value and a high potential for abuse.

True or False: If an employee has a medical condition that requires the use of medical marijuana, I must accommodate the employee.

Answer: False. In outlining employers’ rights, Ohio’s Revised Code 3796.28 states that an employee has no specific protections. Under the law, you do not have to accommodate an employee’s need to use the substance. An employer has the right to not hire an employee based on medical marijuana use, possession, or distribution. The law does not allow a cause of action against an employer if an employee believes he or she was discriminated against due to medical marijuana use. An employer is allowed to have a zero-tolerance drug free policy in place, with or without special accommodations for those who use medical marijuana.

True or False: My company has its headquarters in Ohio but has locations in other states. Even if the laws in those states provide workplace protections for medical marijuana users, our employees in those states who use medical marijuana may be disciplined, fired, or not hired.

Answer: False. Thirty-three states and Washington, D.C., have legalized medical marijuana use, and 10 states have approved both medical and recreational use. Registered medicinal users—or “cardholders”—in some states other than Ohio may have job protections. For example, beginning in 2020, employers in Nevada and New York City cannot consider positive pre-employment marijuana screens. However, some exceptions apply, particularly for safety-sensitive positions. Consider research published last year by the National Institute on Drug Abuse where they found that employees who tested positive for cannabis had: 55 percent more industrial incidents, 85 percent more injuries and 75 percent greater absenteeism compared to those who tested negative.

State statutes with nondiscrimination provisions for medicinal use typically exclude jobs that require drug testing under federal law. For example, certain commercial motor vehicle operators would be excluded from job protections because the Department of Transportation requires them to pass drug and alcohol screens.

While Ohio law provides employers with employment rights on the topic of medical marijuana use, HR professionals must remain vigilant to ensure that your company does not act irresponsibly or apply policies in a discriminatory manner. Make sure that your drug-testing practices and drug-free workplace policy fall within the parameters of the laws in the states in which your company operates. You may find it helpful to consult your legal counsel to ensure that you understand and comply with the federal, state and local laws that may apply to your organization.

Strategic HR knows that keeping abreast of workplace compliance issues and deadlines can be daunting, especially when the laws keep changing. We can help you by offering resources to help you identify and mitigate compliance issues and by making sure you are informed of changes and reacting in a timely manner. Our HR Audit will help your organization identify trouble spots in your HR function. Visit our HR Audit page to learn more about this helpful service.

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What Does In Loco Parentis Mean In Regards to an FMLA Claim?

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Image-In loco Parentis (woman caring for sick child

HR Question:

I thought if an employee wants to take FMLA leave to care for a child they have to show proof of guardianship, but now I’m hearing that’s not necessarily the case because of “in loco parentis.” What does this mean?

HR Answer:

When an employee requests FMLA leave to care for a family member who is obviously not their child or parent, an initial reaction would be for the employer to deny the request.  However, under the FMLA, the U.S. Department of Labor Wage and Hour Division definition of “parent” and “son or daughter” includes any other individual who stands in loco parentis (“in the place of a parent”) to the employee or child.  In these cases a legal or biological relationship is not required.  Failing to recognize the in loco parentis relationship could result in an FMLA interference claim.

Employers should act diligently when an employee requests FMLA leave to care for an individual who is not obviously a parent or child, and should explore whether an in loco parentis relationship exists.  An employer may require an employee to provide reasonable documentation or a statement of the family relationship.  Employers should keep in mind that a simple statement asserting that the requisite family relationship exists is all that is needed for in loco parentis situations where there is no legal or biological relationship.

The FMLA regulations define in loco parentis as including persons with day-to-day responsibilities to care for or financially support a child.  Courts have indicated some factors that determine in loco parentis status include:

  • the age of the child;
  • the degree to which the child is dependent on the person;
  • the amount of support, if any, provided; and
  • the extent to which duties commonly associated with parenthood are exercised.

An eligible employee is entitled to take FMLA leave to care for a person who provided such care to the employee when the employee was a child. If the individual stood in loco parentis to the employee when the employee was a child, the employee may be entitled to take FMLA leave even if he or she also has a biological, step, foster, or other parent, provided that the in loco parentis relationship existed between the employee and the individual when the employee met the FMLA’s definition of a “son or daughter.”  Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the requirements.

 

FMLA, the ADAAA, and other labor laws can be difficult to understand, let alone enforce. That’s where Strategic HR has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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Can you be an Employee and Independent Contractor for the Same Company?

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Photo of W-2 and 1099 forms representing employee and independent contractor

HR Question:

Can an individual that is working for us be both an employee AND an independent contractor?

HR Answer:

According to IRS guidelines, it is possible to have a W-2 employee who also performs work as a 1099 independent contractor. For example, it is possible that an individual could work part of the year as an employee and part of the year as an independent contractor due to a layoff or even a resignation. Another way this could occur would be if the individual is performing completely different services or duties for a company that would qualify them as an independent contractor.

Examples of Employee and Independent Contractor Dual Classification

  • A production worker is laid off due to a slow down in the warehouse. The individual begins doing janitorial work for a few local companies and provides services to the same company from which they had been laid off. In this situation, the individual would receive a W-2 for the time they worked as an employee and a 1099 for the janitorial work.
  • An Executive Assistant who also owns a cleaning service business can have dual classification if their employer contracts with their cleaning company to clean the offices in the evenings.
  • An IT Help Desk Associate who performs graphic design work as a side gig can have dual classification if their employer contracts with the individual to create a new logo for the company.
  • An Electrician who also does handy work after hours in the community can have dual classification if the individual contracts with their employer to replace the company’s roof.
  • A custodian who works for a county public school and also owns and operates his own snow plowing service on nights and weekends can be classified as an employee and issued a Form W-2 for his custodian position. At the same time, when the county contracts with the individual for snow plowing services, he is an independent contractor as well.

How to Determine if Someone is an Employee or Independent Contractor

To determine if this dual classification applies to your situation, you must first verify if your current (or previous) employee’s secondary work qualifies as an independent contractor. The IRS provides specific guidance surrounding the Independent Contractor Definition.

As an alternative to making the determination yourself, you can choose to have the IRS review your situation and make the determination for you, but it will take some time. You would need to submit your position information to the IRS directly by completing IRS Form SS-8. In doing this, the IRS will determine the proper job classification and even guide you on dual classification. Although you will be confident in using the correct classification by following this route, know that the average response time is estimated to be six months.

If you (or the IRS) determine that the extra work being completed meets the Independent Contractor guidelines, you can pay them as both an employee and an independent contractor. If you elect to do this, be sure to keep accurate records. Companies should maintain a W-4 for employees and a W-9 for those working as a contractor. In addition, be sure to clearly and accurately document the hours worked in each category and the duties that were performed. It is widely believed that having a worker receive both a W-2 and a 1099 increases the likelihood of an audit by both the IRS and the DOL. Therefore, maintaining detailed records will be essential for your defense.

What Happens if you Misclassify Employees

Criminal penalties and liability for backpay may be imposed against organizations and leaders if Fair Labor Standards Act (FLSA) laws are violated. The DOL has recently increased its focus and scrutiny on employer misclassification of independent contractors. It is important to be aware that additional auditors have been engaged to direct their attention toward this area of compliance. Therefore, be sure that you have followed all relevant guidelines and maintain proper recordkeeping to protect your organization and remain compliant.

 

Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP for updating this HR Question of the Week.

Strategic HR knows that keeping abreast of HR Compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by fielding your questions regarding properly classifying your employees and other HR matters. We offer resources to help you identify and mitigate compliance issues. Visit our HR Compliance & Recordkeeping page to learn about our auditing services which can help you identify trouble spots in your HR function.

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Do I Have To Pay Employees for the Company Holiday Party?

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Employees socializing and eating at a company party.

HR Question:

Our organization is hosting our annual holiday party, and we’re trying to answer a question – do we have to pay our employees to attend?

HR Answer:

It’s that time of year again – the holiday season is here! And with this season come parties and events designed to celebrate this festive time of year, show appreciation for employees and their contributions, and build team camaraderie by gathering together. Plus, in a labor market where employee retention is a primary concern, holiday parties can be a way to provide levity to a stressful time, show an organization’s thanks and commitment, and engage employees (and potentially, their families). But just because it’s a work-sponsored event, does that mean employers have to compensate their employees for time spent at the party?

Do I Have to Pay Employees for the Holiday Party?

In general, employers are not required to pay employees if the company holiday party is considered voluntary and takes place outside of regular working hours. Holiday parties scheduled during the regular workday should be compensated. If the employer requires all employees to attend an event outside of regular working hours, then it may be considered work time and employees should be compensated for attendance. Be sure to follow applicable FLSA requirements as well as any internal policies that you have established.

How Should I Pay Employees for the Company Holiday Party?

If an employee is exempt, their salary covers all work obligations. Non-exempt employees, however, need to be paid for attending in the following situations:

  • If attendance is mandatory, non-exempt employees should be paid for the extra time and travel to and from the party (if it’s not held at the regular work location).
  • If the holiday party includes work-related activities, such as a meeting and/or team-building exercises, non-exempt employees should be compensated.
  • If a non-exempt employee is working at the event including set-up, clean-up, serving, and/or representing the company (i.e., wearing a mascot costume), they should be paid, even if they are working voluntarily. Want to keep internal costs down and avoid placing additional stress on your team? Don’t ask or permit non-exempt employees to work the holiday party.

It’s important to note some employment contracts or collective bargaining agreements may have provisions that require employers to pay employees for attending certain events, including holiday parties. Be sure to keep those agreements in mind when scheduling or factoring in potential costs for a holiday party.

What Else Should I Consider?

As always, whenever there’s alcohol involved, it’s important to keep some of the legal considerations in mind. For example, do you have a plan for handling alcohol? Will there be drink tickets or a cash bar? Do you plan to enforce a drink limit to help avoid DUIs and other potential risks? These and several others are good questions to ask to determine ways to limit the organization’s liability for this event.

In the end, it’s important for employers to communicate clearly about whether attendance is voluntary, and whether employees will be compensated for their time. The goal of a holiday party is to celebrate, relieve some stress, and enjoy spending time with your team – not to force people to gather if it’s not how they want to spend their time.

Thank you to Becky Foster, Senior HR Business Strategist, and Samantha Kelly, Senior Sales and Marketing Strategist, for contributing to this HR Question of the Week.

Do you find yourself without answers to tough Benefits and Compensation questions? Whether you need an analysis of your current benefit offerings, a review of your salary structure, or outsourced payroll/benefits administration, Strategic HR Business Advisors can do the job. Please visit our Benefits & Compensation page for more information or Contact Us.

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Managing Frequent ADA Accommodations

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Question:

I have an employee with a disability and I have made frequent ADA accommodations for them but lately their attendance is horrible.  Frequent call-ins for one thing or another or doctors’ visits have become the norm.  I can’t keep my production line running and I can’t plan for it.  Does the ADA require that I just live with this?  Are they exempt from my attendance policy as an accommodation?

Answer:

Although the ADA would like to require you to modify the schedule for this individual, and even in some circumstances alter the time and attendance requirement for this person as a reasonable accommodation, it is not necessary if it is causing an undue hardship.  Employers DO NOT have to exempt an employee from:

  • Time and attendance requirements,
  • Allow them to come and go as they please, or
  • Accept irregular, unreliable attendance.  

If the frequent and/or unpredictable nature of such absences put a strain on your operations (can’t meet production standards in this example) and a reasonable accommodation cannot be made, it is within your right to follow the attendance policy you have set forth for all of your employees.  If the poor attendance cannot be accommodated and it is causing production problems, customer issues, or costs you additional money in overtime to have someone “cover” for the missed shift, these may be examples of undue hardship for the company.  In this example, the employee is not meeting an essential duty of the job, ADA accommodations would impose an undue hardship, and discipline is warranted, up to and including termination.

According to the EEOC, It is not necessary to provide a reasonable accommodation if doing so would cause an undue hardship.  Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.  Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation, the employer’s size, financial resources, and the nature and structure of its operation.  For more detailed information on ADA Accommodations, visit The U.S. Equal Employment Opportunity Commission page: The ADA: Your Responsibilities as an Employer.

 

Is your head spinning? Too many new Labor Laws to keep up with? Let Strategic HR assist you with navigating the workplace compliance minefield. We can help you with any of your  compliance needs. Please visit our HR Compliance page for more information or feel free to call us if you have a specific question or need.