ADA and absences before FMLA kicks in

In the last election, the Florida voters passed Amendment 2 legalizing the following:

“Allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not immunize violations of federal law or any non-medical use, possession or production of marijuana." See summary of Amendment 2

Here locally in Sarasota County and across Florida, physicians have already begun writing prescriptions for medicinal usage of marijuana. This means that Florida employees will be testing positive. It is important to remember that Federal law does not recognize medicinal marijuana as a legal medication See DEA says marijuana is illegal. Federal law still classifies marijuana as a Schedule 1 Drug. 21 U.S.C. § 812. 

In the state of Florida, employees are in an employment-at-will relationship whereby either party may terminate the employment relationship at any time. There are of course several exceptions to this, but most of those exceptions come from D.C. as opposed to Tallahassee.  Under the ADA, "the term 'qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs…." 42 U.S.C. § 12114(a).This means that these Federal protections will not recognize marijuana in the workplace.

Further, under its “Limitations” subsection, Amendment 2 explicitly states: 

“Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place.” Art. 10, Sec. 9(c)(10). 

This language seems really and truly to kill any fight that employees may make to allow marijuana use at work. However, what does this mean for use at home or as a caretaker administering it to a dependent with a debilitative disease? Because of the newness of the amendment, Florida case-law is silent. However, cases involving similar laws in Colorado and Oregon are instructive as to what Florida’s approach is likely to be. 

Colorado:

Coats v. Dish Network LLC, 303 P.3d 147 (Colo. App. Ct. 2013)

The plaintiff, a telephone operator for DISH Network L.L.C, was fired in 2010 after failing a company drug test. He was a medical marijuana patient who had been paralyzed as a teenager in a car crash. The test was performed on a random basis and the employer did not claim Coats was ever impaired on the job.

Coats alleged his termination violated Colorado’s Lawful Activities Statute.  The Statute prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during non-working hours,” subject to certain exceptions, under C.R.S. § 24-34- 402.5. The trial court granted DISH’s motion to dismiss Coats’ complaint after determining that the plaintiff’s medical marijuana use was not a “lawful activity” under Colorado law.

Ruling: Despite state laws allowing medical marijuana, Coats' employer was justified in terminating their paralyzed employee who tested positive for marijuana. 

Oregon: 

Washburn v. Columbia Forest Products, 2006 WL 1387967 (Ore. 2006) 

Plaintiff claimed employer terminated his employment unlawfully, discriminating against disabled persons as the plaintiff was a medical marijuana recipient. Oregon Supreme Court concluded that plaintiff was not a "disabled person" within the meaning of the Oregon statute. Concurring opinion noted federal law preempts state employment discrimination law as to the extent that it requires employers to accommodate medical marijuana use.

Ruling: Despite state laws allowing medical marijuana, Washburn's employer was justified in terminating their employee who tested positive for marijuana. 

Conclusion: 

Although it is certainly possible for Florida to take a different road in interpreting  rights to medicinal marijuana use,  it seem highly unlikely at this point that employees who choose to use medicinal marijuana will have their jobs protected. 

Minimum Wage Increased January 1st, 2017

I just wanted to make sure employers and employees got the Memo. Minimum wage is now $8.10 for most employees in the state of Florida. Make sure that you update your posters. Here is a link to the DEO website:

http://www.floridajobs.org/business-growth-and-partnerships/for-employers/display-posters-and-required-notices

The ugly truth about PTO.

I answered a question with some brutal honesty today on AVVO:

https://www.avvo.com/legal-answers/can-my-employer-change-my-pto-accrual-rate-without-2871321.html#answer_7064689

What is PTO and is it enforceable?

First and foremost, the Department of Labor, the Fair Labor Standards Act, and the Florida Statutes generally do not protect your PTO. PTO, holiday pay, your schedule, your hours, your workload or numerous other terms and conditions of your employment. Please excuse me if you work for the government or have a written contract or collective bargaining agreement with your employer as this does not apply in those situations.

An sophisticated business will articulate that you are not entitled to any PTO after your termination of separation from employment. I recommend that all of my small business clients put these words within their handbooks. Something like this would suffice:

"[Description of PTO] is a benefit which has no cash value, is non-transferable and the employer is not responsible for a payout upon separation of employment between employer and employee."

I typically recommend that the employer offer two weeks pay and get their employees to sign an iron clad severance agreement and release. This will preclude employees from precipitating litigation and other costly actions and engender good will with a former employee.

Am I violating Child Labor Laws?

Hiring my Niece!

This past six months I have been paying my niece $25 per week to clean my house. She is thirteen years old and in the seventh grade. This was her first experience working. This is an interesting topic for me because in the back of my mind I sometimes feel a little guilty hiring her at that wage or feel weird that she may not be getting paid minimum wage if she works too slowly.

 I answered an interesting question on AVVO today:

Q: In the state of Florida how many hours can a 16 year old work per week?: Also. How much does the average teen make a month?

A: My Answer: Fla. Stat. § 450.081 provides specific guidance on what a 16 year old can work. "Minors 16 and 17 years of age shall not be employed, permitted, or suffered to work before 6:30 a.m. or after 11:00 p.m. or for more than 8 hours in any one day when school is scheduled the following day. When school is in session, minors 16 and 17 years of age shall not work more than 30 hours in any one week. On any school day, minors 16 and 17 years of age who are not enrolled in a career education program shall not be gainfully employed during school hours." There are exceptions: "(a) Minors 16 and 17 years of age who have graduated from high school or received a high school equivalency diploma. (b) Minors who are within the compulsory school attendance age limit who hold a valid certificate of exemption issued by the school superintendent or his or her designee pursuant to the provisions of s. 1003.21(3). (c) Minors enrolled in a public educational institution who qualify on a hardship basis such as economic necessity or family emergency. Such determination shall be made by the school superintendent or his or her designee, and a waiver of hours shall be issued to the minor and the employer. The form and contents thereof shall be prescribed by the department. (d) Children in domestic service in private homes, children employed by their parents, or pages in the Florida Legislature."

 These would include working for your parents, babysitting, working as a maid, etc. Hope this is helpful.

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Now my Niece is not 16. There are actually separate sections of the statute applying here.

Those laws are: "Minors 15 years of age or younger shall not be employed, permitted, or suffered to work before 7 a.m. or after 7 p.m. when school is scheduled the following day or for more than 15 hours in any one week. On any school day, minors 15 years of age or younger who are not enrolled in a career education program shall not be gainfully employed for more than 3 hours, unless there is no session of school the following day."

Essentially, it looks like my major concern is keeping her working hours below three hours on schooldays or the day before school days. Thankfully, our home isn't too large to clean in three hours. This was a fun, informative example of how employment law impacts my personal life and I will look to tie this in similarly in other areas of my life and my practice of law.

Happy New Years. I am going to be restarting the blog by posting every day for the next 30 days. These post will cover a wide range of issues facing employers and employees. My goal is to provide some incite into areas of the law targeting issues for both employers and employees here in Florida. I am also very happy to announce that I have opening an Orlando location where I will be visiting and meeting with clients.