On August 31, 2023, the National Labor Relations Board issued a decision in Miller Plastic Products, Inc. that will make it easier for a single worker’s action to be considered “concerted” under the National Labor Relations Act. In a 3-1 decision, the Board overruled its 2019 decision in Alstate Maintenance, which had narrowed the circumstances in which the Board considered solo protests to be concerted activity and, thus, protected activity under the NLRA.

For reference, in Alstate Maintenance, an employee working at JFK International Airport was terminated for a comment he made about not receiving a tip. Specifically, the employee in Alstate Maintenance made his comment about poor tips to a manager with colleagues nearby. In determining whether the employee’s solo action constituted concerted activity, the Board found that he was raising a “purely personal grievance” as opposed to a group complaint. As such, the comment did not reflect a group complaint nor an intent to initiate a group action. The Board in Alstate Maintenance listed several relevant factors to determine if a solo action constituted concerted activity, including whether the employee protested a change in job terms in a formal meeting and whether there was an actual objection as opposed to a question about a change.

The Board in Miller Plastic rejected the Alstate Maintenance decision, finding that it “imposed significant and unwarranted restrictions on what constitutes concerted activity.” The Board in Miller Plastic held that Alstate Maintenance had adopted an unduly restrictive test for defining concerted activity by introducing a rigid checklist of factors in place of the Board’s more holistic approach that was applied in the past. Indeed, the Board in Miller Plastic has effectively reaffirmed the principle originally announced in Meyers Industries, which held that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” Applying these principles, the Board in Miller Plastic held that the employer violated the Act when it fired an employee for blurting out during a March 2020 meeting that he and his co-workers “shouldn’t be working amid the exploding COVID-19 crisis.”

Moving forward, an employee’s conduct will be considered protected activity based on the “totality of the record evidence,” which will include all relevant facts and circumstances. Chairman of the NLRB, Lauren McFerran, sees its return to the “holistic” approach as beneficial to employees, as she stated, “[b]y returning to the Board’s traditional approach, we better protect employees who seek to improve their working conditions.”

In keeping with its recent trend of employee-friendly decisions, the Board’s recent decision in Miller Plastic could lead to more decisions where an employee’s solo action, such as voicing a complaint during a work meeting, is considered protected activity under the NLRA. This decision will also make it more difficult to predict what solo actions are considered protected activity and which are merely personal gripes, as each case will be fact-specific.

If you have questions about the Miller Plastic decision or wish to discuss how it may impact your business, please contact a member of the McNees Labor & Employment Group.

On August 2, 2023, the National Labor Relations Board reversed precedent on the issue of work rules that proscribe employee personal conduct. In Stericycle, the Board reversed and remanded an ALJ’s decision that found the employer violated Section 8(a)(1) by maintaining work rules addressing personal conduct, conflict of interest, and confidentiality of harassment complaints. In ruling against the employer, the ALJ had applied the standard established in Boeing Co 365 NLRB No. 154 (2017). The Boeing rule required the evaluation and balancing of two factors: 1) the extent of the potential impact on NLRA rights; and 2) legitimate justifications associated with the rule. The current Board determined that the Boeing balancing test gave too much weight to the employer’s interest.

Under the new rule, the General Counsel bears the burden of determining the rule is presumptively unlawful. The employer then bears the burden of proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored policy.

The Stericycle rule is open to very broad application. Many employers have expressed concern that their handbooks need to be substantially revised. This practitioner views the issue differently. It is true that the Board’s use of the term “employee personal conduct” is likely to encompass the vast majority of your policies that could lead to employee discipline. An employer could decide to add a business justification to each of its policies, but doing so would not necessarily solve the problem. The current NLRB General Counsel has proven to be quite the pro-union activist. Placing the business rationale in your policies will likely give her more ammunition to find a policy presumptively unlawful. In addition, it may constrain an employer’s ability to rebut the presumption of illegality by limiting the arguments used for making a business case for the rule to those stated in the policy.

So, what is an employer to do? We recommend you consider the business case for the rules you have in place and consider eliminating those policies that have no business purpose. The Board may offer guidance on how or if policies should be modified. Until then, employers should exercise caution on issuing discipline based on any rule that may be affected by the Stericycle decision. Seek advice of counsel before issuing discipline to employees, especially in instances where employer is facing a union organizing campaign.

Some examples of policies that will likely need to be reviewed are as follows:

  • Restricting employee’s use of social media
  • Restricting criticisms, negative comments, and disparagement of the company’s management, products or services.
  • Promoting civility
  • Prohibiting insubordination
  • Requiring confidentiality of investigation of complaints
  • Restricting behaviors such as using cameras or recording devices in the workplace
  • Outlining rules for safety complaints
  • Restructuring the use of company communications resources such as email
  • Limiting the recordings or the use of smart phones or other devices
  • Restricting meetings with co-workers or the circulation of petitions
  • Limiting comments to the media or government agencies

These are simply examples of rules that might be affected by this recent decision. It remains to be seen how broadly the Board will apply the Stericycle rule.  If you have questions, please contact a member of the McNees Labor & Employment group.

On August 30, 2023, the U.S. Department of Labor issued proposed regulations that would sharply increase the minimum salary requirements for the Fair Labor Standards Act’s white-collar overtime exemptions.  These proposed regulations, if they take effect, would impact millions of currently exempt employees and create significant compliance issues for many employers.

Background and History

The FLSA’s white-collar exemptions are applicable to “bona fide” executive, administrative, and professional employees and generally include both a minimum salary requirement and a duties test.  To establish that an employee is properly classified as exempt from overtime pay requirements under one of these exemptions, the employer must be able to prove that the employee is paid on a salary basis in an amount at least equal to the minimum salary requirement and meets the primary duties test for one of these exemptions.

Over the last eight years, the minimum salary requirement for these exemptions has become a battleground.

In 2016, the Obama Administration DOL issued new regulations that would have more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 ($23,660 annually) to $913 ($47,476 annually).  A federal judge issued a nationwide preliminary injunction blocking these changes from taking effect in late 2016, and the Trump Administration DOL ultimately abandoned these regulations.

In September 2019, the Trump Administration DOL issued new regulations that increased the minimum weekly salary requirement from $455 to $684 ($35,308 annually).  Those changes took effect in January 2020.

The 2023 Proposed Regulations

On August 30, the Biden Administration DOL issued a new Notice of Proposed Rulemaking on this issue.  The proposed regulations would make the minimum salary requirement equal to the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage U.S. Census region, which currently is the southern U.S.  Based on 2022 data, this number would be $1,059 per week ($55,068 annually).  However, the DOL indicated that it will use the most recent data available when it issues the final regulations, which likely will result in a significantly higher threshold.  The DOL projects that the minimum weekly salary threshold could be as high as $1,140 ($59,285 annually) by the final quarter of 2023.

In addition, the DOL proposes tying the minimal annual compensation threshold for the FLSA’s highly compensated employee exemption to the 85th percentile of salaried workers nationally.  Again, based on the 2022 data (which is less than what the final number likely will be), this change would increase this annual compensation threshold from $107,432 currently to a number likely in excess of $143,988.

The DOL projects that 3.6 million currently exempt workers would be affected by these changes in the first year after the proposed regulations are implemented.

That’s not all.  The proposed regulations include automatic updates (i.e., increases) every three years to these minimum salary levels, using the same methodology for calculating the threshold numbers based on the statistical data.

The proposed regulations do not include any changes to the white-collar exemptions’ duties test.

What’s Next?

The public will be able submit comments on the proposed regulations for 60 days after their publication in the Federal Register.  After the comment period closes, the DOL stated that it will consider the comments submitted before issuing final regulations.  When those final regulations will be issued is unknown, but we likely will see final regulations in 2024 before the next presidential election.

It is safe to assume that legal challenges will be filed in response to any final regulations that are ultimately issued.  Whether those legal challenges will be successful in blocking any final regulations (like what happened in 2016) is unknown.

In the meantime, employers should monitor developments and begin the process of identifying employees currently classified as exempt under one of the white-collar exemptions who are paid a salary amount below the projected new minimums.  If these proposed regulations take effect, employers will need to consider either increasing those employees’ salaries, identifying another exemption without a minimum salary requirement that may be applicable, or converting those employees to non-exempt status for overtime pay purposes.

More to come.

This post was co-authored by Christian M. Wolgemuth, an attorney in McNees’ Privacy & Data Security and Litigation practice groups.

In our rapidly evolving technological landscape, the use of artificial intelligence (AI) has become more prevalent, touching virtually every aspect of our lives. From smart assistants that streamline our tasks to advanced data analytics that drive business decisions, AI is transforming industries across the globe. However, with this transformation comes important questions about ethics, fairness, and potential biases, particularly when it comes to AI in the employment context. The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new guidance to address them.

The Intersection of AI and Employment

The employment sector has witnessed the integration of AI in various processes, including recruitment, candidate screening, employee evaluations, and even talent development. While AI offers great potential in making these processes more efficient and objective, it also brings with it significant challenges and legal risks.

One of the primary concerns is the potential for AI algorithms to inadvertently perpetuate or even amplify biases that exist in society. These biases may be based on race, gender, age, or other protected characteristics, and their unintended reinforcement can lead to discriminatory outcomes. The EEOC’s guidance seeks to address these challenges and provide a framework for employers to ensure that their use of AI remains compliant with the anti-discrimination laws.

Key Points from the EEOC’s Guidance

  1. Transparency: Employers should ensure that the AI systems they use are transparent and explainable. This means that the decision-making process of the AI should be understandable to human operators, and the factors leading to particular decisions should be clear.
  2. Bias Mitigation: Employers should actively assess the potential for bias in their AI systems. This includes regularly reviewing the data used to train the AI and evaluating the outcomes to detect any discriminatory patterns. If biases are detected, steps must be taken to correct them.
  3. Human Oversight: While AI can be a powerful tool, it should not replace human judgment entirely. Human oversight is essential to ensure that AI systems are not making decisions that have a disparate impact on protected groups.
  4. Fairness and Consistency: Employers must ensure that the use of AI does not result in unfair or inconsistent treatment of different groups of employees or job applicants. The guidance emphasizes the importance of conducting regular audits to identify and address any disparities.

The above points largely amount to ensuring that employers avoid “adverse impacts” through their use of AI tools. The EEOC defines an “adverse impact” as when the selection rate of a protected group is “substantially” less than the selection rate of those in another group. This analysis involves various mathematical calculations regarding the data pool and selection rate which should be utilized during regular internal audits. For questions regarding adverse impact calculations, reach out to any of the McNees Labor & Employment team.

Be Mindful of State Privacy Laws

The rapid adoption of state consumer privacy laws also impacts businesses’ and employers’ use of AI in decision making.  California, for example, as the state which has been leading the trend of adopting novel privacy laws, provides its residents with the right to request that businesses limit the use of California residents’ “sensitive personal information.”  California privacy law defines “sensitive personal information” to include information about the individual’s racial or ethnic origin, religious or philosophical beliefs, union membership, personal health, and sex life or sexual orientation.  When California consumers exercise this right, the business (or in this case, the potential or current employer) is prohibited from using sensitive personal information in any way that would not be reasonably expected by an average person.  And because an average person does not expect this type of sensitive personal information to be factored into an employment decision, employers must confirm that it is not being used in any AI decision-making processes.

California’s consumer privacy laws, including the California Consumer Privacy Act of 2018 and the California Privacy Rights Act of 2020, do not exclude employee and job applicant data.  This means that employers and businesses that are required to honor the statutory privacy rights requests of California consumers must also honor the privacy rights of their California employees and applicants when they request to limit the use of their sensitive personal information.  Additionally, California’s privacy laws grant consumers the right to be free from discrimination or retribution when they exercise their privacy rights.  This means that an employee’s or applicant’s choice to restrict the use of their sensitive personal information cannot be held against them when considering any potential employment decisions.

Currently, California is the only state to expand the scope of its consumer privacy laws to include employees and applicants.  However, and as the trends have shown, where California goes others are likely to follow.  Virginia has created additional consumer privacy rights for its residents, including the right to opt out of the processing of personal information for the purposes of “profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.”  As of right now, this right is not available to individuals in the employment context, but as state privacy laws become more consumer-friendly, we should expect these types of privacy rights to proliferate and be available to employees and job applicants.

As discussed above, employers should already be working to remove bias from screening and hiring practices using AI.  However, the rights granted to job applicants and employees in California – and likely the residents of more states in the future – create an additional prohibition against the use of personal information that could create bias or an adverse impact against certain individuals.

A Call for Responsible AI Implementation

The EEOC’s recent guidance is a significant step toward addressing the complex issues surrounding the use of AI in the employment context. It highlights the need for employers to approach AI with responsibility, diligence, and a commitment to equal opportunity.

By incorporating these guidelines into their AI practices, employers can harness the benefits of AI technology while minimizing the risk of discrimination. This not only protects the rights of employees and job seekers but also contributes to a more inclusive and diverse workplace.

In this era of AI-driven innovation, the EEOC’s guidance serves as a reminder that while technology advances, the importance of upholding ethical standards and safeguarding equal opportunities remains paramount. By staying informed about these guidelines and working together to implement them, employers can help to create a future where AI enhances our workplaces without compromising fairness and equality.

The National Labor Relations Board issued a groundbreaking decision in Cemex Construction Materials Pacific, LLC that will likely leave employers reeling.  The Board cast aside over 50 years of established law, and created a new standard that will further tilt the playing field in favor of labor unions in the union election process.  The new standard will result in more bargaining orders, which will force employers to bargain with a union despite the employees’ preference to remain union free.

At the urging of its General Counsel, the Board overturned the rule it established in 1971 in a case known as Linden Lumber, which permitted an employer to refuse a union’s demand for voluntary recognition based upon a showing of cards signed by a majority of employees in the bargaining unit and, instead, insist upon a Board-conducted election in order to determine whether the employees actually wanted to be represented by the union. The Board’s decision in Linden Lumber was subsequently affirmed by the United States Supreme Court.

The Board’s decision in Cemex Construction Materials overrules Linden Lumber and replaces it with a new, pro-union standard.  Here is what the Board said:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).

. . .

We conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.

Essentially, this means that if a union asserts that it has majority status, which is typically done by offering to demonstrate that a majority of employees in the proposed unit have signed union authorization cards, the employer must either recognize and bargain with the union or file a petition to request that the Board conduct an election.

But wait, there is more!

The Board went on to hold that if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.  Previously, such an extraordinary measure, known as a Gissel bargaining order named after another SCOTUS case, required a showing of unfair labor practices during the pre-election period that were so egregious that a re-run election could not be conducted fairly.  In those limited circumstances, the Board would order the employer to bargain with the union even though the union had just lost the election.   In other cases where employers committed unfair labor practices during the pre-election period, the Board would require a re-run election.

Under this new standard, any unfair labor practices committed by an employer during the pre-election period will result in a bargaining order, unless the violations are so minimal that it is virtually impossible to conclude that they could have affected the election results.

As a result, employers presented with authorization cards signed by a majority of employees in an appropriate unit will be between a rock and a hard place, and will be forced to choose between recognizing and bargaining with the union, or filing a petition for election, knowing that most any unfair labor practice found to have occurred in the pre-election period will result in a bargaining order.

The Board did note that an employer that refuses to bargain without filing a petition may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case.  However, its refusal to bargain, and any subsequent unilateral changes it makes without bargaining are at its own risk.

In Cemex Construction, the Board concluded that: (1) the Respondent refused the Union’s request to bargain; (2) at a time when the Union had in fact been designated representative by a majority of employees; (3) in a concededly appropriate unit; and then (4) committed unfair labor practices requiring the election to be set aside, violating Section 8(a)(5) under the standard we announce today.

But wait, there is still more!

The Board held that its decision, setting aside decades of case law, would be applied retroactively.

What does this all mean?

Employers may begin to recognize and bargain with unions even without a valid union election.  Other employers may go through the election process without running an educational campaign.  That will likely result in more wins for unions.  And for those who do decide to educate employees, many of those employers will face bargaining orders.

The Board’s decision in Cemex Construction Materials and the new standard it creates will undoubtedly be appealed and the issue will likely make its way to the Supreme Court of the United States.  The ultimate fate of the Board’s new standard remains to be seen.

In the meantime, employers should take any indication of card signing activity very seriously.  Under this new standard, the best time to educate employees about what it might really mean to form a union (and what it does not mean) will be before the employer is presented with a showing of majority support.

Individuals who are 50 years old or older may make additional contributions to 401(k) plans, referred to as catch-up contributions.  Secure 2.0 included a requirement that starting January 1, 2024, only participants who earn $145,000 or less (as adjusted) in the previous year may make pre-tax contributions. Individuals who earned more than $145,000 in the previous year may only make Roth catch-up contributions.

On August 25, 2023, the Internal Revenue Service announced a 2-year transition period whereby plans will not be required to comply with the requirement that individuals earning more than $145,000 may only make Roth catch-up contributions.

For more information on these changes and other employee benefit law changes, contact a member of our Employee Benefits Group.

On August 8, 2023, the Department of Labor issued a Final Rule that makes significant changes to contractor and subcontractor obligations on federal and federally-assisted construction projects.  Contractors who perform work under projects covered by the Davis-Bacon Act should become familiar with their new obligations.

We have summarized below some of the key provisions of the Final Rule.  They are as follows:

  • Updated definition of “prevailing wage.” The DOL departed from the definition of “prevailing wage” used for nearly 40 years.  The Final Rule now identifies a wage as prevailing if it is paid to a majority of workers, or, if no wage rate is paid to a majority of workers, then it is prevailing if it is the rate paid to at least 30% of workers.  Then, if no wage rate is paid to 30% of workers, the prevailing wage is the weighted average of all rates paid to workers in that classification.  While this is a significant departure from previous methodology – and likely to result in union wage rates determining which rates are “prevailing” – the change is not likely to be felt as sharply in Pennsylvania because the prevailing wages on Davis-Bacon projects are already determined by union rates.
  • Fringe benefit annualization requirements; unfunded plans; and administrative costs. The Final Rule makes official DOL’s long-held position that fringe benefits should be “annualized” when calculating the amount that a contractor’s contributions to a fringe benefit plan can be credited against Davis-Bacon fringe benefit requirements.  The Final Rule also requires contractors to seek approval of unfunded plans (including vacation and holiday plans) before claiming credit for the anticipated costs of the plan toward prevailing wage obligations.  Lastly, the Final Rule prohibits contractors from taking credit for the costs of administering a fringe benefit plan if the expenses are primarily for the benefit or convenience of the contractor.  The Final Rule does, however, permit contractors to take credit for those costs which are directly related to the administration and delivery of a bona fide fringe benefit.
  • Expanded Davis-Bacon coverage to additional construction activities and “site of the work.” Davis-Bacon coverage is generally limited to the “site of the work,” but the Final Rule expands this definition to include certain “secondary construction sites” where a significant portion of the building or work is constructed, provided the site isn’t making products or materials for the general public and it is established in connection with the contract or the project.  The Final Rule also includes various “green” activities as construction activities subject to Davis-Bacon coverage, like the installation of solar panels, wind turbines, broadband internet, and electric car stations.
  • Limiting the exemption for material suppliers. The Final Rule clarifies that the material supplier exemption is only available to entities whose sole obligation under the contract is to supply materials.  In other words, if a company is supplying materials for the contract, and also engaging in construction activities at the site of the work, it not a material supplier, and the exemption would not apply.
  • Clarification relating to coverage for truck drivers employed by contractors or subcontractors who are not material suppliers. With respect to truck drivers who are not material suppliers, the Final Rule also clarifies that Davis-Bacon coverage applies to the time that delivery drivers spend onsite related to offsite deliveries (loading and unloading) if that time is not de minimis.  In determining whether the delivery driver’s time onsite is de minimis, the DOL notes that what matters is the total daily or weekly time a driver spends at the site of work, rather than focusing on the fact that each delivery may only take a few minutes.
  • Removal of notice requirements. The requirements of the Final Rule are effective even if the contract doesn’t expressly require them.  In other words, the provisions of the Final Rule are simply effective by operation of law, which means contractors should be aware of the new requirements, even if the contract with the federal agency doesn’t provide notice.

The Final Rule also sets forth additional recordkeeping requirements, anti-retaliation provisions, revised debarment provisions, and could expand the geographic area over which a wage rate is deemed prevailing, among other provisions.  Contractors should become familiar with these provisions now, before the Final Rule goes into effect.  The Final Rule is scheduled to become effective on October 23, 2023 (60 days from its publication in the Federal Register). If you have any questions about the Final Rule, or any prevailing wage matters, contact Andrew Levy, Austin Wolfe, or Langdon Ramsburg.

Most of our readers are aware of the fact that the COVID era policy which allowed employers to remotely examine documentation provided by employees for completing the form I-9 ended as of July 31, 2023. All employers will now have until August 30, 2023 to physically examine the I-9 documentation presented by the employees who were previously allowed to present their documentation remotely. Like everything else the government does, DHS and USCIS wanted to make the I-9 process fun for all. As a result, USCIS has issued a new I-9 form and DHS has established an alternative for review of I-9 documents in person.

The new I-9 form is considerably shorter than the old form. It is one page long and the instructions are eight pages instead of fifteen pages. Employers were allowed to start using the new form as of August 1, 2023. You may continue to use the current I-9 form dated 10/21/2019. Beginning November 1, 2023, however, all employers must use the new I-9 form. A copy of the new I-9 form may be found using this link: Form I‑9, Employment Eligibility Verification (PDF, 483.6 KB)

It is important to note that the alternative procedure for verifying I-9 supporting documents is only available to those employers who are E-Verify users in good standing. If a qualified employer chooses to use the alternative procedure, the employer must do so consistently for all employees at that site. An employer may also choose to use the alternative procedure only for those individuals working remotely, while still requiring in person review for all employees who work on site. Employers use the information provided on the I-9 form to enter information into E-Verify. E-Verify then confirms that the documents presented by the potential employee are consistent with the records held by DHS and the Social Security Administration.

Qualified employers who choose to use the alternative procedure must retain a clear and legible copy of all documents presented by the employee seeking to establish his/her identity and employment eligibility for the form I-9. These documents will allow DHS to assess the documents that were presented to, and remotely examined by, the employer in the event of an audit. This will also help DHS to determine whether the documents examined by the employer reasonably appear on their face to be genuine and to relate to the employee.

Should you have further questions about completing the new I-9 form, in person inspection of I-9 supporting documents, or use of the alternative review procedure for I-9 documentation, please contact one of our experienced employment lawyers.

McNees’ Benefits Group will be issuing a “Did you know?” series throughout the year providing short compliance reminders.

Did you know that beginning in January 2024, participants may only make Roth catch-up contributions to their 401(k) (and may not make pre-tax catch-up contributions) if they earned more than $145,000 (as adjusted by the Secretary of the Treasury) in the previous year? If the participant made less than $145,000 in the previous year, the participant may continue to make pre-tax catch-up contributions.

For more information regarding compliance for your benefit plans, contact any member of the McNees Labor and Employment Group.

Effective July 1, 2023, Maryland became the 21st state to legalize recreational cannabis.  Individuals 21 and over may now purchase, possess, and use cannabis products without fear of criminal repercussions in the state.  Cultivation of no more than two plants is also permitted.  Because Maryland has a developed dispensary system for medical cannabis, progressing from the legalization of recreational cannabis (last fall) to implementation (on July 1) was relatively straight forward.  Several dispensaries in Maryland have been granted dual use licenses, and on July 1 were allowed to sell cannabis products to anyone over the age of 21 – medical certification is no longer needed.

What does this mean for employers in Maryland and its surrounding states?

Neither the initial ballot measure approving the use of recreational cannabis, nor the subsequent laws passed to implement such approval, specifically address use by employees or the impact of such use on the workplace.  Nonetheless, we can glean some information from what is and what is not included in the new law.

First, the law provides that cannabis may not be consumed in a vehicle.  Thus, it follows that employers can implement policies that prevent the use or possession of cannabis in company vehicles, vehicles used for work purposes, or in private vehicles on the employer’s property.

Second, the law requires that businesses subject to Maryland’s Clean Air Act take steps to add cannabis and hemp products to the list of substances that may not be smoked or vaped indoors.  Accordingly, employers can and must implement policies prohibiting the smoking and vaping of cannabis and hemp products in the workplace.  Likewise, individuals have no affirmative right to use cannabis at work and employers can enact – and should enact – general policies prohibiting all use at work and during work hours.  Drug and alcohol policies should specify that employees may not be under the influence of or impaired by cannabis while working.

Third, there are no provisions in the new law, or any other law in Maryland, restricting an employer’s ability to test for cannabis/THC.  Unlike New York and New Jersey, for example, employers in Maryland may include marijuana/THC on their testing panels, including for pre-employment or random tests.

Finally, there are no employment protections for off duty use by employees.  Accordingly, employers – for now – may continue to administer and follow drug and alcohol policies that strictly prohibit use of recreational cannabis by employees.  If an employee tests positive, does not have a medical certification for use of cannabis, and the employer has a policy providing for discipline or termination in the event of a positive test, the employer may follow its policy – at least for now.  Notably, several states are starting to include or enact protections for off duty use, requiring that employers show impairment before issuing discipline.  Maryland has not yet done so, but employers should keep an eye out for further developments in this space.

For employers in neighboring states, such as Pennsylvania, there is nothing in the law that would require those employers to make an exception to their policies for legal recreational use in another state.  Recreational cannabis remains illegal in Pennsylvania and Pennsylvania employers may continue to adopt and enforce zero tolerance drug policies for recreational cannabis use.

Of course, just because an employer is allowed to test for cannabis under all circumstances or terminate an employee for legal off duty use, does not mean the employer has to do these things.  Employers who are not subject to federal regulation may decide to relax their drug policies for cannabis use and focus only on reasonable suspicion testing and termination for impairment at work.  Why?  Work force issues and employee retention are big reasons.  Employers should, if they haven’t already, assess their organizational temperament for off duty recreational use and how the legalization of cannabis might impact their hiring and retention programs.  Additionally, employers should ensure they have a detailed reasonable suspicion policy and that supervisors and managers are trained regarding impairment detection, documentation, and the procedures for reasonable suspicion testing.

As always, if you have any questions about cannabis legalization in Maryland, your company’s drug testing policy, or workplace health and safety generally, you should reach out to Denise Elliott or another member of the McNees Labor and Employment team.