Health Law Advisor

On May 17, 2024, Colorado Governor Jared Polis signed into law SB 24-205—concerning consumer protections in interactions with artificial intelligence systems—after the Senate passed the bill on May 3. The law adds a new part 17, “Artificial Intelligence,” to Article I, Title 6 of the Colorado Consumer Protection Act, to take effect on February 1, 2026. This makes Colorado “among the first in the country to attempt to regulate the burgeoning artificial intelligence industry on such a scale,” Polis said in a letter to the Colorado General Assembly.

The new law will ...

As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.

As we previously reported, the Centers for Medicare & Medicaid Services' (CMS's) interim final rule (the “Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) was effectively stayed nationwide on November 30, 2021, by the U.S. District Court for the Western District of Louisiana (the “Louisiana Court”).  In yet another twist to the ongoing legal battles, the U.S. Court of Appeals for the Fifth Circuit lifted the nationwide stay and held that the Louisiana Court only had authority to block the vaccine mandate in the fourteen plaintiff states that brought suit in that court. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

Due to the litigation in the Eastern District of Missouri, as reported here, enforcement of the vaccine mandate is also blocked in ten other states:  Alaska, Arkansas, Kansas, Iowa, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.  In total, the vaccine mandate under the Rule is now stayed in twenty-four states, but is now in effect in the remaining twenty-six states.

Important guidance regarding COVID-19 testing in the workplace was recently issued by the Centers for Medicare & Medicaid Services (“CMS”) in the form of Frequently Asked Questions regarding Over the Counter (“OTC”) Home Testing and CLIA Applicability.

CMS regulates clinical laboratory testing pursuant to the federal Clinical Laboratory Improvement Act (“CLIA”). Generally, a laboratory or clinical setting (such as a physician’s office) must obtain CLIA certification to perform laboratory testing. Some OTC tests, however, are approved by the Food and Drug Administration (“FDA”) for home use and the new FAQs address the use of OTC home tests in the workplace.

As we previously reported, the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (“the Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) has been challenged in the U.S. District Courts for the Eastern District of Missouri (“the Missouri Court”) and the Western District of Louisiana, Monroe Division (“the Louisiana Court”).  As of the date of this writing, both Courts have granted preliminary injunctions placing the Rule on hold.

On November 29, 2021, the Missouri Court granted a preliminary injunction of the Rule, which applies to the coalition of ten states [1] that filed the challenge there. The following day, the Louisiana Court entered a similar injunction, which applies to the remaining forty states.

Failing a drug test may not kill the buzz for medical marijuana patients in the Empire State.  In contrast to courts in California and other jurisdictions, a New York state court has held that medical marijuana users are entitled to reasonable accommodations, even if they only obtain certification after testing positive for marijuana.

In Gordon v. Consolidated Edison, Inc., Kathleen Gordon failed a random drug test by her employer, Consolidated Edison, Inc. (“CEI”).  After testing positive, but before her termination, Gordon became a certified medical marijuana patient to ...

Notwithstanding numerous restrictions limiting access to many resources during the ongoing coronavirus (COVID-19) pandemic, marijuana users in states where medicinal and adult use is legal may still have access to cannabinoid supplies. Even as states, counties, and municipalities increasingly restrict or shut down business activities to stem the spread of the virus, many jurisdictions will keep medical marijuana dispensaries open as “essential” businesses like pharmacies and grocery stores.

Medical Marijuana Dispensaries Deemed “Essential” Businesses

On March 11, 2020, the World Health Organization declared that the 2019 novel coronavirus (known as “COVID-19”) is now a pandemic. The effects continue to be felt in the United States, which currently has well over 1,000 cases of COVID-19. As of March 12, 2020, 19 states have declared a state of emergency to ensure there are resources to address the coronavirus, and President Trump has announced a ban on travel to and from Europe for 30 days starting on Friday, March 13, 2020, which was extended to the United Kingdom and Ireland on March 15^th. Additionally, on March 13, 2020 President ...

On March 11, 2020, the World Health Organization declared that COVID-19 is now a pandemic.  The effects continue to be felt in the United States, which now has well over 1,000 confirmed novel Coronavirus disease (COVID-19) cases.  As of March 12, 2020, nineteen states have declared a state of emergency to ensure there are resources to address the Coronavirus, and President Trump has announced a ban on travel to and from Europe for 30 days starting on Friday, March 13, 2020.  Given the prevalence of the Coronavirus in the U.S. and the growing numbers of cases globally, health care providers should take extra precaution with their patients, employees, and visitors.  As all public health communications are making clear, efforts to limit the spread of COVID-19 will not only prevent illness, but they will also reduce the pandemic’s potential to overwhelm critical health care resources.

This advisory provides guidance for health care providers in responding to the COVID-19 pandemic.  Our best practices for all employers can be found here and here, and all businesses should visit our Coronavirus Resource Center.

Delaware is reminding its employers that a safe, drug-free workplace can pay.  On February 1, the state’s Department of Insurance (the “Department”) amended its regulations to emphasize the availability of workers’ compensation insurance discounts of up to 19 percent for employers who participate in the Delaware Workplace Safety Program (the “Program”), and who implement a drug-free workplace program at their worksites.  The amended regulations took effect on February 11, 2020.

The Workplace Safety Program

First implemented in 1989, the Program offers an ...

We have written extensively on mandatory vaccination policies and employers’ obligations to accommodate requests for exemption based on religious or disability grounds.  The Fifth Circuit Court of Appeals has issued a recent decision that provides helpful guidance to employers who mandate vaccinations.  In Horvath v. City of Leander, No. 18-51011 (5^th Cir. Jan. 9, 2020), the Fifth Circuit held that the defendant City of Leander did not violate a firefighter’s religious freedom when it discharged the firefighter after he refused to choose either of two accommodations to the ...

With 2019 nearly rolled up, it is time to exhale and recap the latest dose of marijuana laws affecting the workplace.  In the last twelve months, Illinois became the eleventh state to legalize recreational marijuana use by adults[1] and several other jurisdictions passed or modified their existing laws governing marijuana and the workplace.  Below is a summary of this year’s developments and some thoughts about what 2020 might bring.

Illinois Legalizes Recreational Marijuana Use

On June 25, 2019, Governor Pritzker signed the Illinois’ Cannabis Regulation and Tax Act into law ...

Following an effort in the state legislature to legalize recreational marijuana, on July 29, 2019, Governor Andrew Cuomo signed S.6579A/A.8420 (the “Law”), a law decriminalizing marijuana possession in New York State. The Law will take effect on August 28, 2019. The Law expunges many past convictions for marijuana use and reduces the penalty for possession of small amounts (less than two ounces) of the drug from a misdemeanor to a violation.

Importantly, the Law does not legalize marijuana, and – relevant to this blog – therefore provides no employment protections for ...

On July 16, 2019, the New Jersey Supreme Court (“Court”) granted certification to review the Appellate Division’s decision in Wild v. Carriage Funeral Holdings, which ruled that the New Jersey Law Against Discrimination’s (“LAD”) requirement that employers reasonably accommodate disabilities applied to an employee’s use of medical cannabis legally prescribed pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”[1]). Employers may expect to see additional direction regarding their obligation to accommodate employees’ use ...

On July 9, 2019, Hawaii became the 26th state to decriminalize possession of small amounts of marijuana. HB 1383 (the “Law”), which became law when Governor David Ige allowed the veto deadline to pass without signing or striking down the bill, decriminalizes the possession of up to three grams of marijuana. It will go into effect on January 11, 2020.

Under the Law, those caught with up to three grams of marijuana will no longer face jail time but will still face a fine of $130. This is the smallest amount of marijuana that any state has decriminalized so far. Currently, possession of any ...

On July 2, 2019, New Jersey joined Illinois, Nevada, New Mexico, New York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered ...

On June 5, 2019, Governor Steve Sisolak of Nevada signed AB 132 (the “Law”), which prohibits employers from declining to hire a prospective employee based on pre-employment marijuana drug tests. On the heels of a new New York City law which prohibits employers from requiring pre-employment drug testing for marijuana and tetrahydrocannabinols (the active ingredient in marijuana), Nevada is now the first state to prohibit employers from using pre-employment drug tests to screen out applicants who use marijuana.

Under the Law, beginning January 1, 2020, employers in Nevada ...

As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving New York City employers one year to prepare.

Under the law, employers, labor organizations, and employment agencies ...

Health care providers and custodial agencies operating in Illinois are now subject to new obligations under the Health Care Violence Prevention Act (210 ILCS 160/1 et seq.)(“HCVPA”), which went into effect on January 1, 2019. The HCVPA, which was enacted in response to two 2017 incidents involving inmates who assaulted hospital nurses, seeks to reduce the growing rates of violence against health care workers.

The HCVPA establishes both preventive and curative measures to protect health care workers. Health care providers are required to create an OSHA-compliant workplace ...

In the November 2018 mid-term elections, state ballot measures for the legalization of marijuana were approved in three states – Michigan, Missouri, and Utah – and rejected in one state – North Dakota.

Michigan

Michigan is now the 10^th state in the country to legalize the recreational use of marijuana under certain conditions. Michigan residents approved Proposal 1, allowing for recreational marijuana to be consumed, purchased, or cultivated by those 21 and over. The new law went into effect December 6, 2018, but the commercial system will not be running for another year. The ...

Two recent federal cases illustrate why employers – even federal contractors – must be cognizant of relevant state-law pronouncements regarding the use of marijuana (i.e., cannabis) by employees. While one case found in favor of the employer, and the other in favor of the employee, these decisions have emphasized that state law protections for users of medical marijuana are not preempted by federal laws such as the Drug-Free Workplace Act (DFWA). Employers must craft a thoughtful and considered approach to marijuana in the workplace, and in most cases should not take a ...

Cannabis has been legalized in Canada as of October 17, 2018. What does this mean for employers with employees traveling to and from Canada? Can travelers from Canada to the United States with legally purchased cannabis simply drive to a state where recreational or medical use of cannabis is legal? The bottom line: Employers should remind employees that they cannot cross into the United States with Canadian cannabis under any circumstances.

The framework created in Canada did not change laws regarding borders. A traveler who purchases legal cannabis in Canada may not enter the United ...

Employers and health plans should be aware that two recent federal decisions have recognized that the non-discrimination provision in the Affordable Care Act prohibits discrimination on the basis of gender identity. Plans cannot categorically exclude coverage for procedures to treat gender dysphoria.

In Boyden v. Conlin, the U.S. District Court for the Western District of Wisconsin found that the state’s exclusion of gender reassignment-related procedures from the state employees’ health insurance coverage constitutes sex discrimination in violation of Section 1557 ...

Health care registry companies provide families and their loved ones with peace of mind by providing matchmaking and referral services for qualified, pre-screened and vetted home caregivers. They often also provide administrative services. As part of the “gig economy,” health care registries often tread a fine line in classifying caregivers as independent contractors rather than employees. A new Field Assistance Bulletin (“Bulletin”), “Determining Whether Nurse or Caregiver Registries are Employers of the Caregiver,” issued on July 13, 2018, by the Wage and ...

Effective July 26, 2018, Oklahomans will be able to legally use medicinal marijuana under state law. The change follows a June 26, 2018 ballot measure, State Question 788, approved by 56% of voters. Oklahoma’s new law, cheekily coded 63 Okla. Stat. § 420 et seq., expands the prior permissible use of cannabidiol (CBD) oil for limited purposes, now allowing licensed medicinal marijuana consumption. The ballot measure initially appeared in 2016, but was delayed for several years by a series of legal challenges concerning changes to its title, ultimately resolved by the Oklahoma ...

Beginning July 1, 2018, recreational marijuana can be legally sold, taxed, and consumed in Massachusetts—one of nine states, in addition to Washington, D.C., that now permits recreational marijuana use. Massachusetts already is one of 29 states that allow marijuana use for medicinal purposes (and 17 others permit certain low-THC cannabis products for medical reasons).

Background

Legalization of recreational marijuana started in 2016 with a ballot initiative by Massachusetts voters. The Regulation and Taxation of Marijuana Act (“Marijuana Act”), which took effect on ...

State attorneys general from Louisiana, Missouri, Oklahoma, Texas, Michigan, Nebraska, and South Dakota have joined Arkansas (collectively the “States”) in an amicus brief to the Eighth Circuit, urging the court not to join the Seventh Circuit and Second Circuit in interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit sexual orientation discrimination.

The States submitted this brief in a case brought by Mark Horton against Midwest Geriatric Management LLC (“Midwest Geriatric”) in which the plaintiff alleges sexual orientation and ...

On April 17, the Joint Commission—a nonprofit organization that provides accreditations to health care organizations—issued a list of seven steps hospitals should take to improve safety and reduce the risk of workplace violence perpetrated by employees, patients, and visitors. While the seven steps are advisory rather than mandatory, health care organizations risk jeopardizing their accreditation status if they fail to take appropriate action in response to episodes of workplace violence.

The Joint Commission’s alert seeks to address what it characterizes as the ...

In the midst of one of the worst flu seasons to date, many hospitals and other health care organizations enforced mandatory flu vaccine policies for their employees to boost vaccination rates. However, recent litigation and governmental actions should serve as a reminder that health care entities should carefully consider safeguards whenever implementing mandatory vaccine policies and to not categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

In January, the Department of Health and Human Services (HHS) announced the formation of a ...

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that ...

In a move that could have broad national effects on gay rights in the workplace, the Second Circuit ruled that discrimination based on sexual orientation violates Title VII of the Civil Rights Act, deciding in favor of the estate of a deceased skydiving instructor who was allegedly fired for telling a client he was gay.

On Monday, the United States Court of Appeals for the Second Circuit became the second federal appeals court to rule that Title VII encompasses sexual orientation discrimination in Zarda v. Altitude Express, joining the Seventh Circuit in its decision last year. This ...

The United States is in the midst of an unusually lethal flu season, and health experts agree that despite inconsistencies in their effectiveness, flu shots are among the best ways to fight the spread of the flu. A recent holding from the Third Circuit Court of Appeals provides some good news for health care employers who require that their patient-facing employees receive flu shots, making it more difficult for employees to claim a religious exemption.

Courts have held that health care employers may require their patient-facing employees to be vaccinated against a number of ...

Last week, the federal Department of Health and Human Services (HHS) made two announcements aimed at providing additional protections for health care workers who object to providing services on moral or religious grounds.

On January 18, 2018, HHS announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR).  The stated goal of the new division is to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

The next day, on January 19, HHS ...

Further emphasizing the split in authority on sexual orientation discrimination, last month the Eastern District of Missouri dismissed plaintiff Mark Horton’s claim that Midwest Geriatric Management LLC (“MGM”) violated Title VII by rescinding an offer of employment after learning that he is gay. Horton v. Midwest Geriatric Mgmt., LLC, Case No. 4:17CV2324, 2017 U.S. Dist. LEXIS 209996 (E.D. Mo. Dec. 21, 2017).

Horton asserted that MGM unlawfully discriminated against him on the basis of sex and religion. Horton’s sex discrimination claim comprised three theories ...

In an October 4, 2017 letter to all United States attorneys and heads of federal agencies, Attorney General Jeff Sessions announced that the Department of Justice (“DOJ”) will no longer interpret Title VII of the Civil Rights Act of 1964 (“Title VII”) to provide employment protections to transgender individuals.  This statement reversed former Attorney General Eric Holder’s position, who previously concluded that Title VII does protect transgender individuals from employment discrimination.

Although this letter from the Attorney General is a departure from the ...

Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.

Background

In Noffsinger v. SSC Niantic Operation Company (3:16-cv-01938; D. Conn. Aug. 8, 2017), the federal district court ruled that “qualified users” are protected from criminal ...

As we have previously reported, there has been an uptick of new employment decisions finding in favor of registered medical marijuana users.  In keeping with these decisions, an administrative law judge (“ALJ”) at New York City’s Office of Administrative Trials & Hearings (“OATH”) also issued a report and recommendation, subsequently adopted by the relevant City commissioner, to dismiss a petition against a taxi driver that would have stripped him of his driver license because of his lawful medical marijuana use.

In Taxi & Limousine Comm’n v. W.R., OATH Index. No ...

The U.S. Court of Appeals for the Second Circuit recently clarified that the “motivating factor” standard of causation applies to Family and Medical Leave Act (FMLA) retaliation claims, instead of the “but for” causation standard applied in Title VII and ADEA retaliation cases. The “but for” standard is more onerous for the plaintiff, who must demonstrate that discrimination or retaliation was the determining factor for the adverse employment action, not just one reason among others. The less burdensome “motivating factor” causation standard requires the ...

In an important new decision, the Massachusetts Supreme Judicial Court recently held that a qualifying patient who has been terminated from employment for testing positive for marijuana as a result of her lawful medical marijuana use may state a claim of disability discrimination under that state’s anti-discrimination statute. As we blogged with respect to a after a similar decision in Rhode Island, this holding has significant implications for employers that drug test for marijuana use because 29 states plus the District of Columbia have enacted legislation legalizing ...

What obligations does an employer have to an employee returning from leave under the Family and Medical Leave Act (FMLA)?

What must the employer do if it was forced to fill that employee’s position during the employee’s absence?

How long after the employee returns must the employer wait before taking an adverse action against that employee?

The U.S. Court of Appeals for the Fourth Circuit recently provided guidance to employers who frequently face these questions in the context of FMLA administration. In Waag v. Sotera Defense Solutions, Inc., the employer, Sotera, filled the ...

In a departure from the recently developing law, a federal court judge from the Eastern District of Pennsylvania ruled that the Americans with Disabilities Act (“ADA”) may cover gender dysphoria, and other conditions related to gender identity disorder – opening the door to expanding employment protections to some transgender individuals under the ADA.

In Blatt v. Cabela’s Retail, Inc., a transgender woman filed Title VII and ADA claims against her former employer claiming that she had suffered disability discrimination and retaliation based on her gender dysphoria ...

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.

Background

Plaintiff ...

An employee on an extended medical leave to recuperate from shoulder surgery posts pictures of his active Caribbean vacation. His employer is justified in terminating him, right?  Maybe not.

On April 19, 2017, the Eleventh Circuit reversed a trial court ruling and held that a former employee had raised a genuine issue of material fact regarding whether he was terminated in retaliation for using FMLA despite the former employee posting pictures from various vacations on Facebook during his time off of work to recuperate from surgery. This case, Jones v. Gulf Coast Health Care of ...

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination on the basis of sexual orientation is covered under Title VII of the Civil Rights Act’s protections against discrimination on the basis of sex.

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian part-time professor at Ivy Tech, applied for but was denied several full-time positions with the college. After her employment was later terminated, she filed a lawsuit alleging that she was denied promotion and then terminated because of her ...

In a decision impacting the interactive process, the Northern District of Texas held in EEOC v. Methodist Hospitals of Dallas, No. 3:2015-cv-03104 (N.D. Tex. Mar. 9, 2017), that employers do not violate the Americans with Disabilities Act (“ADA”) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.

Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she ...

In a decision with significant implications for private hospitals, on March 7, 2017, the Third Circuit held in Doe v. Mercy Catholic Medical Center that medical residents may bring private causes of action for sex discrimination under Title IX against private teaching hospitals operating residency programs, and are not limited to claims under Title VII.

Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq., prohibits sex discrimination in any “education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). A former resident ...

How will the Trump administration handle discrimination cases involving transgender employees? The EEOC’s pursuit of a sex discrimination claim on behalf of Aimee Stephens, a transgender woman who was terminated by a Michigan funeral home for expressing her intention to dress in conformance with her gender identity, will be an early indicator.

In a brief filed with the Sixth Circuit on January 26, 2017, Stephens argues that the interests of transgender individuals will not be adequately represented under the new administration. Under the Obama administration, the EEOC sued ...

With flu season quickly approaching, health care employers may be considering mandatory influenza vaccinations for their workforce. Mandatory vaccination policies may dramatically increase patient safety, but they may also cause friction within the workforce when employees object on religious grounds to being vaccinated.

While no federal and few state statutes address the legality of enforcing mandatory vaccination policies, the EEOC and private litigants recently have moved this issue forward in the courts. Under Title VII of the Civil Rights Act of 1964 (“Title ...

In May 2016, the U.S. Department of Health and Human Services (“HHS”) published a final rule implementing Section 1557 of the ACA. Section 1557 prohibits discrimination in the health programs and activities of “Covered Entities” on the basis of race, color, national origin, sex, age, or disability. Section 1557 also imposes detailed and specific notice and disclosure requirements on Covered Entities, including, among other things, the requirement to provide information about the use of auxiliary aids and services, the adoption of grievance procedures, and access for ...

While the presidential election has attracted extreme attention, marijuana legalization initiatives were on the ballots in nine states on November 8, 2016. Four states – Arkansas, Florida, Montana, and North Dakota – approved measures providing for the medical use of marijuana, and three states – California, Massachusetts, and Nevada – approved initiatives allowing for recreational use.  The results in Maine are still close to call, but, if that measure is approved, it will be the fourth measure permitting recreational use.  Only one state (Arizona) defeated a marijuana ...

On November 4, 2016, the Western District of Pennsylvania held that the “because of sex” provision in Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation. In doing so, the court broke from the recent trend of federal courts that have felt compelled by prior precedent to dismiss sexual orientation discrimination claims.

In EEOC v. Scott Medical Health Center, P.C., the plaintiff (a gay male) alleged that he was subjected to repeated and unwelcome offensive comments regarding his sexual orientation and his relationship with a male ...

In less than three weeks, health care providers covered by the Affordable Care Act must meet various posting obligations required by the recently issued Section 1557 regulations. Epstein Becker & Green, P.C. has written extensively about the Final Rule, including the expansive nondiscrimination standards and the upcoming October 16 deadlines. While we encourage you to review these publications for more detail, covered entities urgently need to prepare by October 16, 2016, nondiscrimination notices and taglines to be posted (1) in significant publications or communications; ...

On August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues (Guidance) to replace its 1998 Compliance Manual section on retaliation, including tips on ADA interference. The Guidance reflects the Commission’s consideration of feedback received on the proposal from about 60 organizations and individuals following a 30-day public input period that ended February 24, 2016. The changes in the Guidance are in line with the EEOC’s efforts to broaden the conduct that would be deemed retaliatory as well as the concept of causation.

Along with ...

[caption id="attachment_2394" align="alignright" width="113"] Nathaniel M. Glasser[/caption]

On July 18, 2016, the final rule implementing Section 1557 of the Affordable Care Act (“ACA”) went into effect.   Section 1557 prohibits health care providers and other covered entities from refusing to treat individuals or otherwise discriminating on the basis of race, color, national origin, sex, age, or disability in any health program or activity that receives federal financial assistance or is administered by an executive agency.

While the rule does not apply to ...

The District of Columbia Office of Human Rights recently partnered with the National LGBTQ Task Force to publish a resource guide, “Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers” (the “Guide”), designed to support employers in creating workplace and hiring policies that prevent discrimination against transgender and gender-nonconforming individuals. The guide is meant to lay the framework for building a culture of inclusion in the workplace that goes beyond legal obligations.

The suggested best practices include ensuring ...

[caption id="attachment_2394" align="alignright" width="113"] Nathaniel M. Glasser[/caption]

North Carolina made waves last week by enacting legislation prohibiting cities from allowing transgender individuals to use public restrooms that match their gender identity and further restricting cities from passing anti-discrimination ordinances that would give protected status to sexual orientation or gender identity.

Employers in North Carolina and across the country, however, should be aware of the trend in the federal courts and agencies to grant protections to ...

[caption id="attachment_2394" align="alignright" width="113"] Nathaniel M. Glasser[/caption]

In case you missed it, last week the U.S. Department of Labor (“DOL”) blogged about the misclassification of workers in the home care industry.  As a reminder, on October 1, 2013, the DOL issued its home care final rule, which (1) more narrowly defines the tasks that comprise exempt “companionship service” and (2) limits the exemptions for companionship services and live-in domestic service employees to individuals, families, or households using the service, and no longer ...

In a matter emphasizing the importance of neutral hiring policies, the U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of a Kentucky hospital system that refused to hire two nurses who had restrictions on their professional licenses after they participated in a state-approved drug rehabilitation program.  The nurses alleged the refusal to hire decisions violated the Americans with Disabilities Act, but the Sixth Circuit held that the evidence showed the hospital had a neutral practice of denying employment to nurses with current or previous ...

[caption id="attachment_2360" align="alignright" width="206"] Nathaniel M. Glasser and Daniel C. Fundakowski[/caption]

Last month, in United States ex rel. Helfer v. Associated Anesthesiologists of Springfield, Ltd., No. 3:10-cv-03076 (N.D. Ill. Jan. 14, 2016), the U.S. District Court for the Central District of Illinois held that the retaliation provision of the False Claims Act (“FCA”) requires a whistleblower to show that protected activity was the “but-for” cause of the alleged adverse action.

The FCA’s retaliation provision entitles an employee to ...

In December 2015, the Equal Employment Opportunity Commission (EEOC) released new guidance for job applicants and employees with HIV infection that is particularly applicable to employers in the health care industry.  This guidance is applicable not only to applicants and current employees with HIV infection, but also to physicians and other health care providers who treat individuals with HIV infection to the extent their assistance is requested in obtaining workplace accommodations.

The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace ...

The United States District Court for the District of New Mexico recently dismissed a lawsuit filed by an employee who was fired after testing positive for marijuana despite using medical marijuana as permitted by New Mexico state law.  In finding that the employer did not violate New Mexico law or public policy, the court’s decision mirrors the holdings in similar cases from California, Colorado, Michigan, Montana, Oregon, and Washington holding that employers have no duty to accommodate medical marijuana use by employees.

In the New Mexico case, the employee applied for a ...