Supplemental materials for LEAP 2025 session Managing Workplace Drug Issues: Policies, Compliance and Best Practices
Drug and alcohol testing at work have been commonplace for years, and for good reason. Employers want to ensure they host a safe and productive work environment. The use of alcohol and drugs poses a threat to the health and safety of employees and the security of facilities and equipment.
Since Pennsylvania does not have a specific statute setting out what employers can and cannot do, case law has developed to guide drug testing practices. In Pennsylvania, case law says employers should balance an employee’s privacy interests against the need for random drug testing.
Balancing privacy interests
The public’s interest in ensuring that workers in safety-sensitive positions are drug-free may outweigh any individual right to privacy.
For example, in 1992, the 3rd Circuit Court of Appeals found that terminating an employee for refusing to consent to a drug test may violate Pennsylvania’s public policy against tortious invasion of privacy. It ruled an employer must balance “the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer’s program highly offensive.” (Borse v. Piece Goods Shop, Inc., 3rd Cir., 1992)
What about the ADA?
The ADA does not prohibit drug and alcohol testing, and employers are permitted to implement policies and procedures to ensure that employees and applicants are not actively engaged in illegal drug use. (The ADA does not protect active drug users.)
However, medical marijuana users who have been subject to drug and alcohol testing have brought suits alleging violations of their rights under the ADA, as well as state law equivalents. In some cases, courts have agreed.
Interactive process required
Most recently, in Barbuto v. Advantage Sales & Marketing, LLC (477 Mass. 456, 2017), the Massachusetts Supreme Court decided that an employer is required to engage in the interactive process regarding potential accommodations and may be required to reasonably accommodate the medical use of marijuana outside of the workplace.
In Barbuto, the plaintiff accepted a job offer. When she was informed she would have to take a drug test, she told her supervisor that she would test positive for marijuana because she suffered from Crohn’s disease and was a qualifying medical marijuana patient under Massachusetts law. She noted that she did not use marijuana daily and would not consume it before or at work. The supervisor confirmed that her marijuana use would not be an issue.
Shortly after, the employee tested positive for marijuana. HR terminated her, saying it did not matter that she used marijuana to treat a medical condition since the company followed federal law, not state law.
The employee brought suit alleging, among other things, violation of the Massachusetts handicap discrimination law. She won.
Pennsylvania rules
In Pennsylvania, the medical marijuana law prohibits employers from discriminating against employees because of their medical marijuana status.
According to Pennsylvania law, however, employers are not required to “make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” You may discipline employees for “being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”
The law is silent on the implications if an employee who uses medical marijuana tests positive.
Advice for employers
Employers should not have a per se rule prohibiting employment when an employee tests positive for marijuana. If an employee tests positive for marijuana and informs you about legal medical marijuana use, engage in the interactive process to determine whether you can waive your drug testing policy without causing an undue hardship.
Waiving that policy does not mean you must allow the employee to work under the influence or use medical marijuana while working.
But testing positive for medical marijuana should not by itself disqualify an applicant or be automatic grounds for termination. Consider the type of work the employee does and whether there is a safety risk. The higher the safety risk, the less likely you will be required to accommodate the employee’s medical marijuana use.
Positive test vs. impairment
Remember, just because an employee who uses medical marijuana tests positive does not mean he or she is under the influence. Marijuana’s active chemical ingredient, THC, can stay in a user’s system for days or weeks, long after the effects of marijuana have subsided. This makes it difficult to determine whether an employee is actually under the influence at the time of the test.
If faced with this complicated issue, consult your attorney before making any disciplinary decisions.
Kali Wellington-James is an associate in the Labor and Employment Practice Group of Pepper Hamilton, working in the firm’s Berwyn, Pa. office.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Managing Workplace Drug Issues: Policies, Compliance and Best Practices
Some states have anti-discrimination laws that make it illegal for employers to punish employees for participating in legal activities outside of work. For example, employers can’t discipline or fire (or refuse to hire) someone who drinks alcohol or smokes cigarettes on their own time away from work premises.
But what about casual marijuana smokers in states that allow recreational use of cannabis? Can employers refuse to hire them or fire them if they test positive on a blood test? That’s the conundrum an Illinois employer recently faced when it wanted to enforce a zero-tolerance policy against drug users, including users of marijuana.
Recent case: Joseph was a territory account manager for Timken Gears, selling the transmission equipment the company makes. He worked mostly from his home. Timken Gears has a strict no-drugs policy that includes marijuana on the list of controlled substances that are not allowed.
When Joseph failed a random drug test that showed use of marijuana, he was suspended pending a negative test. He finally tested negative and was reinstated. But follow-up tests showed he might have used cannabis again, so the company fired him.
Joseph sued, alleging his firing violated the Illinois Right to Privacy in the Workplace Act. That law says employers can’t fire workers “because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.”
Since 2020, using marijuana has been legal in Illinois.
The employer argued that the law that legalized marijuana usage allows employers to establish and maintain a drug-free workplace. The court was left to decide whether testing positive but not actively using the substance at work could be grounds for termination.
After reading the statutory language, the court concluded that off-premises drug use could be punished if the policy was reasonable and didn’t discriminate. And it said Timken Gears’ policy—which gave employees a second chance to get and stay clean—was reasonable. (White v. Timken Gears, ND IL, 2024)
Advice: Before implementing and executing a drug-testing program in a state that permits marijuana use and has a law protecting employees from lifestyle discrimination, have your attorney review each law carefully. Are controlled substances excluded from protection under the lifestyle-discrimination law? Does the marijuana law address at-work use? Do the exclusions require any safeguards, such as running a second test of the same sample? Must a drug-free policy be reasonable and nondiscriminatory? Only a qualified attorney can safely guide you through that legal maze.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session AI and HR: Shaping the Future Together
Download Managing Responsible Use of AI in HR.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session AI and HR: Shaping the Future Together
Relying on an artificial intelligence-based service to screen résumés and select candidates to interview may seem like a great idea. AI vendors tout the ability of their algorithms to quickly weed out unqualified applicants.
They also suggest that using AI to screen candidates can insulate employers from discrimination charges. After all, bias can’t taint the hiring process if no one in HR or on a selection team reviews résumés and applications, right?
Maybe not. AI skeptics and a growing cadre of plaintiffs’ attorneys argue that instead of preventing hiring bias, relying on an AI algorithm may actually bake discrimination into the selection process. That’s what is alleged in one recent complaint filed with the Federal Trade Commission and another with the EEOC.
The complaint: The American Civil Liberties Union recently filed dual complaints with the FTC and the EEOC alleging that a personality assessment tool based on AI illegally screens out people with disabilities. Aon, a risk management company that provides HR solutions, sells the tool, as well as a video-interview system and a cognitive-assessment program.
Aon says its products improve the recruitment process and also increase the diversity of the candidate pool.
The ACLU complained to the FTC that Aon deceived its customers by claiming the products are “bias-free” when in reality they appear to discriminate. The ACLU alleges the screening program identifies as negative several applicant characteristics that its diagnostic criteria say are evidence of mental-health disabilities and autism. Thus, people with the characteristics indicating a diagnosis of having a mental-health condition or autism are flagged as poor job candidates.
How do the screening tools work? Applicants are asked to read a series of statements and then say whether they agree with them or not. The video-interview tool assesses the candidate’s performance and responses against diagnostic criteria. That is, the program may view candidate behavior such as looking down or gazing around the room instead of looking directly at the camera as disqualifying. Yet it’s well documented that many people with autism avoid looking others directly in the eye.
Finally, the tools also transcribe speech. The ACLU claims the program routinely makes more mistakes when transcribing Black candidates’ speech than that of other non-Black candidates.
If you use AI tools to screen candidates, take these steps to minimize your discrimination liability:
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Supplemental materials for LEAP 2025 session Balancing Civility and Employee Expression in the Workplace
By Jon Hyman, Esq., Wickens, Herzer & Panza, Cleveland
When a Pennsylvania brewery noticed a large number of online complaints about employees’ sexist behaviors, its owner (who was at the center of those allegations) stepped away. The brewery also decided to publish a comprehensive new code of conduct on its website.
Most companies have anti-harassment policies. Far fewer include behaviors that fall outside of illegal protected-class workplace harassment. The time has come for all employers to adopt a code of conduct in addition to their harassment policy—and let all employees, customers and vendors know that any mistreatment of employees or others will not be tolerated. What should it include, and to whom should it apply? Some tips:
For employees, it depends on the severity of the offense. Employers have a legal obligation in cases of protected-class harassment to instill corrective action reasonably likely to stop future harassment (possibly including termination). For non-protected-class harassment or other code of conduct violations, the remedy should be no different.
For non-employee business partners (e.g., contractors and vendors), violations should constitute a breach of their agreement, which entitles the company to terminate the agreement. At a minimum, the offending person should be banned from the premises.
For customers, again, depending on the severity of the offense, remedies could vary from a warning to removal to a permanent ban from the business.
For employees, it should be handed out as a stand-alone document and put in the handbook. If you have an intranet, add it there.
For non-employee business partners, add it as a clause in agreements.
For customers, add it to your site and post it in your workplace.
A final word: Having a code of conduct is one thing. Living it in your culture is another. Unless you’re prepared to act on it no matter the perpetrator, there’s no point in drafting it in the first place.
Jon Hyman is a partner at Wickens, Herzer & Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. You can read his popular blog at www.OhioEmployerLawBlog.com.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Balancing Civility and Employee Expression in the Workplace
As the election nears, your employees are going to bring some of their political opinions to work. It’s your job as a responsible employer to keep the workplace free of harassment. You can and should train employees to interact civilly with one another, even those with different political views.
But that can be difficult when public discourse from politicians descends to levels that would be inappropriate at work, creating a hostile work environment.
Recently, with the emergence of Vice President Kamala Harris as the Democratic presidential candidate, there has been a flood of social media memes and comments centering on her sex, race and national origins. If employees share some of this content via company email, text or other official channels, it could trigger harassment lawsuits.
Take, for example, a recent widely circulated comment about single cat ladies being unfit for office. Could it be interpreted as an insult to women in general because of their sex or reproductive status? What about comments about Harris being a “DEI candidate”? That could be seen as a racist comment stereotyping Black or Asian individuals as less capable than others.
Here’s what employers can do to maintain civility in contentious times:
Reinforce your electronic-communication rules. Remind all employees that they may not use company-owned computers, email systems, smartphones and text-messaging applications to share political memes or comments that denigrate anyone’s protected characteristics. Explain that sharing such content may create a hostile work environment for customers, clients and co-workers.
Ensure private social media doesn’t implicate the company. Remind employees that what they say or share on private social media must not mention the company or tag co-workers or customers who may find the message harassing.
Hold a meeting. It may help to hold an all-hands-on-deck-type meeting. Remind staff of your communication and anti-harassment policies. Explain that you will investigate all reports of harassment or statements that may create a hostile work environment. Follow up with a disclaimer that you are not prohibiting civil discussions that address politics or the election.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
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Supplemental materials for LEAP 2025 session Washington Watch: Assessing Election 2024
In the 48 hours after President Trump took office on Jan. 20, he issued a torrent of executive orders and actions, many of them bearing directly on issues that matter to HR professionals and employers. For example, high-profile orders paved the way to deport roughly 11 million immigrants without legal status and increase immigration enforcement, which could eventually affect labor availability in some industries.
Other executive actions may have more immediate effects on hundreds of thousands of employers. Broadly speaking, Trump’s orders addressed actions the federal government is now authorized to take to advance the administration’s policy goals. Ultimately, many will trickle down to affect employer operations and HR.
Diversity, equity and inclusion
On the campaign trail, Trump routinely decried programs designed to foster diversity, equity and inclusion. Among his executive orders were several that:
Gender issues
Several orders addressed culture-war controversies around gender identity. Trump:
Immigration
HR professionals in industries that traditionally employ immigrant workers should pay attention to executive orders that:
Regulatory environment
One of the vaguest but potentially most far-reaching orders directed all executive branch agencies to stop issuing new regulations.
Federal workforce
Other orders directly targeted employees of the federal government. They:
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Supplemental materials for LEAP 2025 session Here come the new state employment laws for 2025
A new administration always means change, with new policy agendas and new leadership at federal departments and regulatory agencies. Ordinarily, it takes months or even years for new agency rules and guidance to roll out. Not so with the Trump administration, which has adopted an aggressive, expansive and fast-moving approach to enacting change in the federal government.
That has certainly been the case for the federal contracting practices overseen by the Department of Labor’s Office of Federal Contract Compliance Programs. A White House executive order issued the day after President Donald Trump took office is already forcing companies that provide contract services to the federal government to revamp their anti-discrimination policies.
History, rooted in the Civil Rights Movement
In 1965, President Lyndon B. Johnson issued Executive Order 11246, which was meant to assure that all federal contractors followed the requirements of the Civil Rights Act of 1964, including Title VII. The order added a provision to all federal contracts requiring contractors to refrain from discrimination based on race, color, religion, sex or national origin.
In addition, the order required contractors to develop plans to make sure protected classes were not excluded from hiring—and significantly, it required contractors to take affirmative action to assure a level playing field.
In the intervening 60 years, repeated additional executive orders built on the protections written into EO11246.
The Trump executive order
On Jan. 21, Trump signed Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which specifically reverses parts of the 1965 executive order. EO14173 directs the OFCCP to cease promoting diversity and encouraging contractors “to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
It also requires federal contractors to stop taking affirmative action to prevent discrimination and foster diversity in the workplace. In essence, it reverses the OFCCP anti-discrimination practices mandated by the 1965 executive order.
EO14173 applies to all federal contractors, subcontractors, grant recipients, state and local education agencies and institutions of higher learning that receive federal grants.
Compliance advice: The first step employers should take is to determine whether they are covered as a federal contractor, subcontractor or grant recipient. Work with your organization’s contract compliance staff to locate the contract or contracts that apply. Determine which activities or programs you have in place may be affected EO14173. Then have your attorney review the contract and your programs to determine what next steps may be appropriate.
Expect the OFCCP to soon begin reaching out to contractors to modify existing contract language to incorporate changes mandated by the executive order.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Here come the new state employment laws for 2025
States are emerging as prime sources of new employment-related laws. Congress didn’t pass much in the way of employment laws at the federal level this year. The Supreme Court largely steered clear of issuing opinions on employment-law questions (although one case did address sex discrimination).
That has left states to pick up the slack, subjecting employers to a dizzying array of new labor and employment laws. Here is a sampling of new laws scheduled to go into effect on Jan. 1, 2025, or soon after.
Background checks
Child labor
Several states have tightened their child-labor laws. Others loosened them.
CROWN Act
Domestic violence leave
Paid sick leave
Pay transparency
Several states require starting salaries to be posted with job ads.
Workplace safety
Final note: This list does not cover every new law. Check with your state department of labor for the latest minimum-wage increases and any other new laws or regulations effective in 2025.
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See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Re: Employee Lawsuit Risks
Hiring is one of the most difficult and legally dangerous tasks for supervisors. Just a few ill-timed words in a want ad or interview can trigger a legal complaint. Here are the key liability hot spots to watch out for in the hiring process:
Employment advertisements
A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age or other protected characteristic is generally unlawful.
If you participate in drafting employment ads, list only the necessary job-related skills and qualifications—for example, “must be able to lift 50 lbs.”—rather than assumptions about who can perform the functions of the position—such as “male furniture-mover wanted.”
There are a few exceptions to this general rule, such as when a “protected” characteristic is a bona fide occupational qualification (BFOQ) for the job (e.g., requesting a female to work in a women’s locker room).
Job descriptions
Although no law requires organizations to maintain job descriptions, it’s a good practice. Job descriptions can help applicants understand the job’s requirements and discourage poorly suited applicants from applying. Here are tips for drafting job descriptions:
– List the “essential functions” of the job—the fundamental job duties.
– Identify the skills, knowledge and abilities required to perform the essential functions and any special requirements for the job.
– Include a summary of nonessential functions that an employee may be asked to perform occasionally or intermittently.
– Include descriptions of the work environment, equipment and expected work habits.
– Include a disclaimer that the job description does not constitute an exhaustive list of duties and that management may revise it at any time.
– Review and update descriptions as needed so they remain accurate.
Job interviews
Written job applications and face-to-face interviews help hiring managers gather applicant information and assess their qualifications. But asking for some kinds of information may violate anti-discrimination laws. Stick to questions that assess a candidate’s skills, ability or qualifications.
Avoid questions that may trigger stereotypical assumptions about protected class status, such as:
– Marital status: Are you married? Is that your maiden or married name?
– Age: How old are you? When did you graduate from high school?
– Disability: Do you have any disabilities that would impair your ability to work? How often were you out sick in your last job?
– Religion: Which church or synagogue do you attend? What religious holidays do you observe?
– Gender/sex: Are you pregnant? What will you do with your children while you are at work?
– National origin/race: Where were you born?
Background checks
Federal law sets limits on employers’ ability to obtain background reports and demand preemployment medical examinations. Before an applicant’s references are checked, he or she should be notified in writing that the check is occurring. Obtain the applicant’s written consent to the reference checks.
When checking an applicant’s references, ask only for job-related information. Stay away from anything unrelated to how the person could perform the task at hand.
Job offers
Supervisors need to be mindful of inadvertently making promises they don’t intend to keep.
Enthusiastic managers sometimes make statements to applicants that suggest long-term or permanent employment (“You’ll always have a job here if you hit your sales quota.”) or indicate that they can only be fired for cause (“You will always be treated fairly.”). Those statements can easily become ammunition in later breach-of-contract litigation.
Avoid making unintended promises, either orally or in written communications, such as offer letters. That way, you will retain flexibility to respond to personnel issues in the most appropriate way, given the circumstances.
Hire education: 6 smart do’s and don’ts
Despite the complexity and legal risks of the hiring process, the best advice for managers can be captured in a few fairly simple rules:
1. Don’t use advertisements that directly or indirectly express a preference for (or exclude) a person of a particular protected class status (age, sex, race, religion, disability status, etc.).
2. Do draft job descriptions that accurately describe the positions and list the “essential functions.”
3. Do ask interview questions that relate only to an applicant’s ability to perform essential functions of the job. Again, avoid protected characteristics.
4. Don’t ask questions that may trigger stereotypical assumptions about applicant’s characteristics.
5. Don’t consider an applicant’s protected class status when making hiring decisions.
6. Don’t make unintended promises in conversations with applicants or in the offer letter.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
