On January 10, 2023, Lancaster County Court of Common Pleas Judge Jeffrey Wright addressed the question that has been plaguing employers since the passage of the PA Medical Marijuana Act (the “Act”) – what constitutes being “under the influence” for purposes of the Act’s safety exception?  As a reminder, when the Act was passed, the legislature included a broad safety exception within Sections 510(3) & (4) of the Act, which provides:

A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana.

A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.

However, ‘under the influence’ was not defined for purposes of these provisions.

What is “under the influence?”

In the Lancaster County case of Clark v. J.R.K. Enterprises, Inc., the plaintiff was a roadside flagger who utilized medical marijuana outside of work to treat anxiety.  After several of his co-workers were sent for random drug tests, he admitted to his employer that he used marijuana nightly and, if tested, would test positive because he always had marijuana in his system.  The employer considered flagging to be a safety sensitive job and determined that plaintiff could not perform the flagging job unless he agreed to stop using medical marijuana.  Challenging this decision, the plaintiff filed suit, alleging discrimination in violation of the Act.

The employer moved for dismissal, arguing that plaintiff’s own admission that he “always had marijuana in his system” meant that he would be consistently under the influence and thus should not be performing safety sensitive duties.  Initially, Judge Wright denied the motion, holding that there was a factual dispute regarding the definition of ‘under the influence,’ which experts could address at trial.  However, following the decisions in Commonwealth v. Dabney (Pa. Super. 2022) and Commonwealth v. Haney (Pa. Super. 2022), Judge Wright reconsidered and dismissed the suit.

Dabney and Haney are both DUI cases in which, after being pulled over, the driver acknowledged medical marijuana use, the police officer had probable cause to require a drug test and the driver subsequently tested positive for marijuana.  In both cases, the drivers argued that they should not be charged with DUI, because their marijuana use was legal.  The courts disagreed.  In Dabney, the court held that the Act does not exempt a driver with a medical marijuana card from the prohibition against driving with any amount of marijuana or marijuana metabolites in the driver’s system.  Further, the court listed all of the actions permitted by the Act: growing, processing, manufacturing, acquiring, transporting, selling, dispensing, distributing, possessing and consuming marijuana.  It then noted what is not specifically permitted in the Act: “driving with a controlled substance in one’s blood.”  Likewise in Haney, the court upheld Pennsylvania’s zero tolerance DUI law for marijuana metabolites and noted that “driving after using medical marijuana, a Schedule I controlled substance, is not included in the lawful use of medical marijuana under the Act.”

Applying the rationale of Dabney and Haney to the Clark case, Judge Wright agreed with the employer’s argument that it would be absurd to criminally prosecute a driver for having marijuana in their blood, while at the same time allowing Clark to direct and control traffic on roadways with marijuana in his blood.  Because “the lawful use of medical marijuana does not include driving after using medical marijuana,” Judge Wright concluded that the “lawful use of medical marijuana cannot, likewise, include dressing in safety gear, entering the roadway, and directing drivers through precarious construction zones after using medical marijuana.”  Further discussing the issue, Judge Wright concluded that the General Assembly purposefully failed to include a definition of “under the influence” in the catch-all safety exception to the Act, whereas elsewhere in the Act, the term “under the influence” was linked to specific levels of THC in blood serum.  Based on this conclusion, the Judge reasoned that “the General Assembly’s clear choice to omit a specific nanogram level that employers may allow or prohibit relieves employers of a practically impossible-to-execute duty,” and that “to construe ‘under the influence’ to mean anything other than having any amount of marijuana in a Patient-Employee’s system would be altogether untenable.”

What does this mean for employers?

So, what is the takeaway from the Clark decision?  First, it is important to keep in mind that the decision of one Court of Common Pleas Judge is not necessarily binding on any other judge in the Commonwealth.  Accordingly, a judge in another county or on a higher court would be free to disagree with Judge Wright and reach a different conclusion.  However, Judge Wright’s rationale is based upon the holding of two recent Superior Court cases, which are binding on all judges in the county courts.  Accordingly, employers who wish to uphold a zero-tolerance policy for employees performing clearly safety-sensitive jobs (jobs that could be life threatening and jobs that could result in public health or safety risks) now have a very strong argument for doing so.  This is especially true when the employee either actually tests positive, despite only off duty use, or admits that they will test positive.

If you have questions regarding which jobs are safety sensitive and whether a zero-tolerance policy makes sense for your business, please reach out to Denise Elliott or another member of the McNees Labor and Employment Group.

As part of the Consolidated Appropriations Act of 2023, Congress passed two new pregnancy-related laws requiring covered employers to provide reasonable accommodations to employees due to pregnancy, childbirth, and related medical conditions. The two new laws are the Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), effective April 28, 2023. These laws will generally enhance the protections afforded to pregnant employees and create new compliance obligations for employers.

The PWFA will require employers with 15 or more employees to grant temporary and reasonable accommodations for pregnant employees or pregnant job applicants. Under the current Pregnancy Discrimination Act (PDA), covered employers are generally only prohibited from discriminating against pregnant employees. The PDA does not, however, guarantee accommodations for pregnant employees. The PWFA will not only require covered employers to provide reasonable accommodations to pregnant employees, but will also prohibit employers from discriminating against a job applicant or employee because of their need for a pregnancy-related accommodation.

If this all sounds familiar, it is because the PWFA’s protections are similar to those outlined in the Americans with Disabilities Act (ADA). Like the ADA, the PWFA will require covered employers to engage in an interactive process with pregnant employees and to provide reasonable accommodations where appropriate. But, like the ADA, pregnant employees will not necessarily be entitled to the accommodation of their choice under the PWFA – just a reasonable accommodation that does not create an undue hardship on the employer. Notably, though, the PWFA will also prohibit employers from requiring employees to take paid or unpaid leave when a different reasonable accommodation is available. Lastly, the PWFA will prohibit employers from retaliating against an employee who requests or receives a reasonable accommodation due to pregnancy, childbirth, or a related medical condition.

The other recently enacted law, the PUMP Act, will expand employers’ existing obligations to provide employees with time and space to express breastmilk. In particular, the PUMP Act will require that all breastfeeding employees, whether salaried or hourly, be given time to express breastmilk and a private place to do so, other than a bathroom. Additionally, time spent expressing breastmilk must be considered hours worked if the employee is working while expressing breastmilk. Notably, employers with fewer than 50 employees will be given an opportunity to request an exemption from the law if they demonstrate that compliance would cause an undue hardship.

Although the PWFA and PUMP Act will expand the rights of pregnant employees under federal law, numerous states and cities have already passed their own pregnancy accommodation laws, often exceeding these upcoming federal requirements. For example, cities like Philadelphia and Pittsburgh both have robust local ordinances addressing pregnancy accommodations in the workplace. Thus, for employers who operate in jurisdictions where existing laws require workplace accommodations for pregnant employees, the PWFA and PUMP Act may not have much of an impact. However, for all other employers, now is the time to start considering what changes to current practices might be necessary in order to comply with the PWFA and PUMP Act when they become effective. For any questions related to these laws, or any other labor and employment compliance issues, reach out to any member of the McNees Labor & Employment Group.

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a Notice of Proposed Rule Making and additional information describing a new proposed rule that would prohibit employers across the country from entering into non-compete agreements with their workforce. The FTC’s press release and related information on the proposed rule can be found here.

The FTC’s proposed rule is in response to a prior Executive Order from President Biden, which, among other things, encouraged the FTC to use its rule-making authority to “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” At the time, few people likely anticipated the broad sweeping prohibition that would follow under the FTC’s current proposed rule.

Below is a summary of a few key aspects from the FTC’s proposed rule:

• Broad Definition of a Non-Compete Clause – A non-compete clause is defined as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” (Proposed as 16 C.F.R. § 910.1(b)(1).)

• Functional Test Used to Determine if a Contractual Clause is a Non-Compete Clause – In addition to the broad definition discussed above, a non-compete clause includes “a contractual term that is a de facto non-compete clause because it has the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer.” (Proposed as 16 C.F.R. § 910.1(b)(2) (emphasis added).) The proposed rule provides examples of a few types of contract provisions that may be de facto non-compete clauses. One such example is “a non-disclosure agreement between an employer and a worker that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.” (Proposed as 16 C.F.R. § 910.1(b)(2)(ii).)

• The Proposed Rule Applies to More than Just Employees – The proposed rule’s broad ban on non-compete clauses applies not only to employees, but also to independent contractors, externs, interns, volunteers, apprentices, and individual sole proprietors who provide a service to a client or customer. (Proposed as 16 C.F.R. § 910.1(f).)

• Existing Non-Competes Must be Rescinded with Notice to Current and Former Workers – As all future non-compete clauses would be banned under the proposed rule, employers would also be required to rescind existing non-compete clauses that are entered into prior to the compliance date of the proposed rule (which is currently set for 180 days after publication of the FTC’s final rule). In order to rescind existing non-compete clauses, employers must provide written notice to both current and former workers (see broad definition above) bound by non-compete clauses (see broad definition above). The written notice must be provided in an individualized communication on paper or in a digital format (such as email or text message). The proposed rule also provides model language that would satisfy this written, individualized notice requirement to current and former workers. (Proposed as 16 C.F.R. § 910.2(b)(2)(C).)

• Narrow Exception for the Sale of a Business – The proposed ban on non-compete clauses does not apply to a non-compete clause entered into between a buyer and seller of a business so long as the individual restricted by the non-compete is a substantial owner, member, or partner of the business (meaning the individual holds at least 25% interest in the business entity) at the time the individual enters into the non-compete clause. (Proposed as 16 C.F.R. § 910.3.)

• Proposed Rule Supersedes Any State Law – The proposed rule is intended to supersede all state laws, regulations, orders, and interpretations of them that is not consistent with the proposed rule’s requirements. Nonetheless, states will still be permitted to impose requirements and restrictions against non-compete clauses if they provide greater protections than those provided by the proposed rule.

The FTC’s proposed rule is at the first stage of the rule making process, where feedback is being solicited from the public. As part of the public comment period, the FTC is seeking comment on several alternatives to the proposed rule, including whether different standards should apply to senior executives (something short of a ban), and whether low-wage and high-wage workers should be treated differently under the proposed rule. The public comment period is open until March 10, 2023. Comments on the proposed rule can be made and viewed here.

The FTC’s proposed rule is further indication of the growing scrutiny over non-compete restrictions, particularly as they relate to low-wage earners. In fact, a number of states have already introduced new bills in the early legislative sessions of 2023 that would significantly limit the use of non-compete provisions in the employment relationship. Some of those states include New Jersey, New York, and West Virginia.

The FTC’s proposed rule has already faced opposition, including a dissenting statement from FTC Commissioner Christine S. Wilson, and an announcement from the US Chamber of Commerce declaring the proposed rule “blatantly unlawful.” There will undoubtedly be legal challenges to the proposed rule should it become a final rule (much like the legal challenges raised against OSHA’s COVID-19 vaccination rule). As a result, it will likely be some time before we know whether the FTC’s propose rule is the beginning of the end for non-compete agreements in the workplace. We will continue to monitor and provide updates as the FTC’s proposed rule moves through the administrative process.

A recent press release by the U.S. Equal Employment Opportunity Commission (EEOC) demonstrates that Equal Pay Act claims are becoming increasingly common.  The EEOC in Baltimore, MD announced that an auto dealership agreed to pay $62,500 to resolve an Equal Pay Act claim by a female employee.  The employee had alleged that she was being paid less than a male employee who was performing equal work, and that she was retaliated against for complaining about the situation.

According to the EEOC, in addition to paying $62,500 in monetary relief, the auto dealer is enjoined from sex-based pay discrimination and retaliation moving forward, and is required to adopt a policy creating channels for employees to report unequal pay and procedures for handling those complaints.  In addition, the dealer was required to conduct training on preventing gender-based wage discrimination.

What was the issue? 

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.  The jobs need not be identical, but they must be substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.  Title VII also makes it illegal to discriminate based on sex in pay and benefits. Therefore, someone who has an Equal Pay Act claim may also have a claim under Title VII.  Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement under Title VII, the ADEA, or the ADA that the jobs must be substantially equal.

How can you avoid these types of claims?

Employers should take every opportunity to proactively review any vulnerabilities in their pay practices.  A pay equity audit can help determine if any pay equities or pay gaps exist in the workforce, what employee population is affected by the inequity and if the pay inequity can be explained by legitimate job-related reasons, such as tenure, education and experience.  A thorough evaluation includes reviewing pay structures, starting pay policies, merit increase policies, promotional pay policies and recordkeeping practices.  In addition, confidentiality of the evaluation can be established with the use of attorney-client privilege.

The time to conduct a pay equity audit is now, before any litigation arises.  This is especially true for employers who were experiencing difficulties in recruiting, and who may have offered very generous compensation packages to new hires as a result.

Benefits of an audit include avoiding or defending against litigation, gaining safe harbor protection in some states, improving employee recruitment, retention and morale, and responding to shareholder activism pertaining to pay equity.  The benefits of an audit far outweigh the risks.  Risks include finding unfavorable results and employee suspicion of results.

If you are interested in exploring a pay equity audit further, please reach out to any member of the McNees Labor and Employment Group.