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Archive for the ‘Employment Law Blog – FL’ Category

FAQs: Medical Marijuana in Florida and Accommodations Under the ADA

Posted on: April 10th, 2017

By: Melissa A. Santalone

In this past election cycle, Floridians voted to approve Amendment 2 by a landslide, officially amending the State Constitution to allow the medicinal use of marijuana by those with “debilitating conditions,” free from criminal or civil liability under Florida law. The amendment went into effect on January 3, but questions remain as to exactly how this amendment affects the rights of employers and employees under the Americans with Disabilities Act (ADA).

Who can use medicinal marijuana under Amendment 2?

Amendment 2 provides for legal medicinal use of cannabis under Florida law by “qualified users,” or those with “debilitating conditions.”  “Debilitating conditions” have been defined as:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • HIV;
  • AIDS;
  • Post-traumatic stress disorder (PTSD);
  • ALS;
  • Crohn’s disease;
  • Parkinson’s disease;
  • Multiple sclerosis; and
  • Other debilitating medical conditions “of the same kind or class or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.”

It remains to be seen how the potential vagueness in the definition of “other debilitating medical conditions” will play out in proposed state rules and regulations and in the courts. Under draft administrative rules recently proposed by the Florida Department of Health, the Florida Board of Medicine will have the final say as to what other conditions may qualify for use of medical marijuana.

Does the ADA mandate accommodations for the use of medical marijuana?

No. Title I of the ADA prohibits employers with 15 or more employees from discriminating against disabled employees and the case law suggests an employer may be required to provide reasonable accommodation for disabled employees that need to take medication during their shift.  However, there is a carve-out in the ADA for the use of ”illegal drugs,” which is defined by the federal Controlled Substances Act (CSA). As marijuana is still currently illegal under the CSA, the ADA does not require an accommodation be made for the use of medical marijuana.

Does Amendment 2 require employers to make accommodations for employees’ use of medical marijuana?

We currently don’t know with certainty, but we may be able to make a good prediction. Amendment 2 expressly provides that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” The language is clear in that no accommodation must be made whatsoever for employees to use medical marijuana while on the job. However, Amendment 2 remains silent as to any accommodations to be made for off-site use, and the Amendment is too new for the Florida courts to have weighed in on this point.

The wording of Florida’s Amendment 2 mirrors that of the State of Washington, though, which is also silent as to accommodations for off-site use. In Washington, the courts have declined to interpret their law’s silence as a mandate that accommodations are to be made for off-site use of medicinal marijuana.  Given Florida’s relatively conservative jurisprudence, it seems likely that Florida courts will likely adopt a similar interpretation.

Moreover, Amendment 2 further provides that “[n]othing in this section shall permit the operation of any vehicle, aircraft, train or boat while under the influence of marijuana.” This language would support an employer’s denial of any accommodation for off-site use of medical marijuana by an employee required to operate vehicles or heavy machinery.

What developments in the law do Florida employers need to look out for?

The Florida Department of Health has been tasked with promulgating final administrative rules for Amendment 2 by July 2017. The Florida Legislature is also moving forward with bills delineating a regulatory scheme for Amendment 2 in this legislative session. These rules and laws, when enacted, may offer employers further guidance.

Florida employers seeking assistance in the development of ADA policies in light of the passing of Amendment 2 or those with accommodation questions should contact attorneys in FMG’s Tampa office.

Trump Nominates New Labor Secretary Nominee One Day After Puzder Drops Out

Posted on: February 16th, 2017

GTY-alexander-acosta-02-as-170216_31x13_1600By: Marty Heller

Donald Trump has named Florida International University Law School Dean, R. Alexander Acosta, as his new nominee for Secretary of Labor. Acosta is a Harvard Law graduate who clerked for Supreme Court Justice Samuel Alito when he was an appeals court judge, and previously has served on the National Labor Relations Board and was an Assistant Attorney General under George W. Bush, before acting as US Attorney for the Southern District of Florida. It remains to be seen where Acosta stands on several key issues that await the new secretary of the DOL, including implementation of the currently enjoined “overtime rule” which substantially increases the minimum salary to qualify for the FLSA’s white collar exemptions. 

For any questions, please contact Marty Heller at [email protected].

Breaking News – Puzder Withdraws from Consideration to be Secretary of Labor

Posted on: February 15th, 2017

By: Paul H. Derrick

Andy Puzder, President Trump’s nominee for Secretary of Labor, has withdrawn his name from consideration after being plagued by criticism since his nomination. Union leaders and prominent Democrats have been among his staunchest critics. Puzder’s decision to step down comes a day before his Senate confirmation hearing was set to begin. Just hours before the announcement of his withdrawal, media outlets had begun reporting that Republican officials advised the White House that Puzder lacked the votes needed for confirmation because at least four GOP senators intended to break ranks and vote against him. It remains to be seen who President Trump will nominate in his place.

For any questions, please contact Paul Derrick at [email protected].

Be on the Lookout for Minimum Wage Increases in 2017

Posted on: December 20th, 2016

 By: Brad Adler and Agne Krutules

As we enter into 2017, employers should remember that, while the federal minimum wage remains at $7.25, many state and local jurisdictions have passed legislation that will increase their respective minimum wage in 2017.

Below is a list of the states and some of the major local governments that will be increasing their minimum wage in 2017. Of course, if you have employees working within any of these jurisdictions, it is important that you pay them in accordance with the state or local law.

Jurisdiction Current Min. Wage Planned Min. Wage Effective Date
Alaska $9.75 $9.80 January 1, 2017
Arizona $8.05 $10.00 January 1, 2017
City of Flagstaff, AZ $8.05 $12.00 January 1, 2017
Arkansas $8.00 $8.50 January 1, 2017
California* $10.00 $10.50 January 1, 2017*
Berkeley, CA $12.53 $13.75 October 1, 2017
Cupertino, CA $10.00 $12.00 January 1, 2017
Emeryville, CA $13.00 $14.00 July 1, 2017
Los Altos, CA $10.00 $10.50 January 1, 2017
Los Angeles, CA $10.50 $12.00 July 1, 2017
Los Angeles County, CA $10.50 $12.00 July 1, 2017
Mountain View, CA $11.00 $13.00 January 1, 2017
Oakland, CA $12.55 $12.86 January 1, 2017
Palo Alto, CA $11.00 $12.00 January 1, 2017
Pasadena, CA** $10.00 $10.50 July 1, 2017
Richmond, CA $11.52 $12.30 January 1, 2017
San Diego, CA $10.50 $11.50 January 1, 2017
San Francisco, CA $13.00 $14.00 July 1, 2017
San Jose, CA $10.30 $10.50 January 1, 2017
San Mateo, CA $10.00 $12.00 January 1, 2017
Santa Clara, CA $11.00 $11.10 January 1, 2017
Santa Monica, CA $10.50 $12.00 July 1, 2017
Sunnyvale, CA $11.00 $13.00 January 1, 2017
Colorado $8.31 $9.30 January 1, 2017
Connecticut $9.60 $10.10 January 1, 2017
District of Columbia $11.50 $12.50 July 1, 2017
 Florida $8.05 $8.10 January 1, 2017
Hawaii $8.50 $9.25 January 1, 2017
Chicago, IL $10.50 $11.00 July 1, 2017
Cook County, IL $8.25 $10.00 July 1, 2017
Johnson County, IA $9.15 $10.10 January 1, 2017
Polk County, IA $7.25 $8.75 April 1, 2017
Wapello County, IA $7.25 $8.20 January 1, 2017
Maine $7.50 $9.00 January 1, 2017
Portland, ME $10.10 $10.68 January 1, 2017
Maryland $8.75 $9.25 July 1, 2017
Montgomery County, MD $10.75 $11.50 July 1, 2017
Prince George County, MD $10.75 $11.50 October 1, 2017
Massachusetts $10.00 $11.00 January 1, 2017
Michigan $8.50 $8.90 January 1, 2017
Missouri $7.65 $7.70 January 1, 2017
Kansas City, MO*** $7.65 $9.82 January 1, 2017
Montana $8.05 $8.15 January 1, 2017
New Jersey $8.38 $8.44 January 1, 2017
Albuquerque, NM**** $8.75 $8.80 January 1, 2017
Bernalillo County, NM $8.65 $8.70 January 1, 2017
Las Cruces, NM $8.40 $9.20 January 1, 2017
New York***** $9.00 $9.70 December 31, 2016
New York City, NY****** $9.00 $11.00 December 31, 2016
Nassau, Suffolk, and Westchester Counties, NY $9.00 $10.00 December 31, 2016
Ohio $8.10 $8.15 January 1, 2017
Oregon******* $9.75 $10.25 July 1, 2017
South Dakota $8.55 $8.65 January 1, 2017
Vermont $9.60 $10.00 January 1, 2017
Washington******** $9.47 $11.00 January 1, 2017

 

* Although the statewide minimum wage will increase from $10.00 to $10.50 as of January 1, 2017, employers with 25 or fewer employees will receive a one-year reprieve and will not face the statewide increase in 2017.

** In Pasadena, employers with 25 or fewer employees will face a minimum wage increase to $10.50 as of July 1, 2017, while larger employers will face an increase from $10.50 to $12.00 as of the same date.

*** The Kansas City minimum wage was slated to increase to $9.82 on January 1, 2017, but is stalled due to pending court challenges. The Missouri Supreme Court is expected to soon rule on the issue. The same holds true for the St. Louis minimum wage, which was scheduled to increase to $10.00 as of January 1, 2017.

**** However, if the employer provides healthcare and/or childcare benefits to the employee during any pay period and pays an amount for these benefits equal to or in excess of an annualized cost of $2,500, the minimum wage will increase from $7.75 to $7.80.

***** For fast-food employers outside of New York City, the minimum wage will increase from $9.75 to $10.75 on December 31, 2016.

****** For businesses with less than 11 employees, the minimum wage will increase from $9.00 to $10.50. For fast-food establishments in New York City, the minimum wage will increase from $10.50 to $12.00 on December 31, 2016.

******* For employers within the state’s Urban Growth Boundary, the minimum wage increase on July 1, 2017 will be from $9.75 to $11.25. For employers in frontier counties, the minimum wage increase on July 1, 2017 will be from $9.50 to $10.00 per hour.

******** Seattle employers with 500 or more employees will see an increase in their minimum wage from $13.00 to $15.00 on January 1, 2017. The SeaTac minimum wage applicable for hospitality and transportation workers will increase from $15.24 to $15.35 as of January 1, 2017. In Tacoma, the minimum wage will increase from $10.35 to $11.15.

The minimum wage for federal contractors covered by those regulations and Executive Order 13658 (primarily those with Davis-Bacon Act and Service Contract Act contracts) will increase from $10.15 to $10.20 effective January 1, 2017.

New I-9 Form Takes Effect Next Year

Posted on: December 1st, 2016

U.S. Department of Homeland Security LogoBy: Agne Krutules

U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification. The revision process commenced over a year ago, with the main goal to strengthen the security and integrity of the I-9 Form.

Effective January 22, 2017, employers must use only the new version, dated 11/14/2016. Until then, they can continue to use the version dated 03/08/2013 or the new version.

Among the changes to the I-9 Form, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly;
  • The ability to enter multiple preparers and translators;
  • A dedicated area for including additional information rather than having to add it in the margins;
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

U.S. Immigration and Customs Enforcement (ICE) imposes hefty fines (raging from $110 to $1,100 per violation) for improperly preparing I-9 Forms.

For any questions you may have, please contact Agne Krutules at [email protected].