July.  So much to (grill) do, so little time.  Over in a snap too. Meanwhile, changes to the workplace landscape keep on coming! Here is the latest, plus two easy grilling recipes:


Medical Marijuana Use is a Reasonable Accommodation? 
Well, we knew this day would come.  Despite the fact that marijuana remains a Schedule I Controlled Substance under Federal law (defined as a drug or other substance that has no currently accepted medical use in treatment in the United States), the Massachusetts Supreme Judicial Court just held that marijuana is per se a reasonable accommodation for disability.  In other words, Massachusetts employers that test for marijuana need to immediately amend their policies and procedures to allow for the possibility of accommodating an applicant or employee’s medical marijuana use.  Deep breaths.

All is not lost and compliance is possible.
As a reminder, both Massachusetts and federal law require employers to engage in an interactive dialogue with qualified disabled employees who request reasonable accommodation.  Indeed, it was Advantage Sales and Marketing’s refusal to engage with Christina Barbuto, rather than their drug testing practices, that irked the Supreme Judicial Court.   The SJC makes clear that marijuana use may cause undue hardship for some employers, but employers cannot make that determination unless or until they engage with the employee to determine whether a qualifying disability exists, and whether factual circumstances surrounding the employee’s request would impose an undue hardship on the employer.  There are a few things to keep in mind:

1.      This decision does not address recreational marijuana use.  Employers do not have to allow employees to use marijuana at work, and can continue to test for marijuana use and terminate employees who fail the test.

2.      This decision does not find that Massachusetts law has created a protected class for medical or recreational marijuana users.

3.      This decision will not limit employers’ ability to regulate marijuana use in the workplace.  Employers do not have to allow employees to use marijuana in the workplace.

So what steps should an employer take if an employee notifies them that he or she is a medical marijuana user?  
Engage with the employee to determine the nature of the employee’s impairment, the nature of the accommodation the employee is requesting (is the employee asking to use marijuana at work, or merely notifying the employer that he or she will fail a drug test?), and whether there are alternative accommodations that will allow the employee to perform the essential functions of the job.  This process should be clearly documented, and in many cases will include the employee’s healthcare provider.  Depending on the employee’s requested use or the nature of the employee’s position, the request to use marijuana may not be reasonable or it may impose an undue hardship on the employer. However, the employer cannot come to this determination unless or until they engage with the employee.
And, it wouldn’t hurt to update your drug use and drug testing policies.

THE DOJ AND THE EEOC CANNOT AGREE WHETHER TITLE VII PROTECTS SEXUAL ORIENTATION DISCRIMINATION

In a case that takes parents fighting in front of the kids to new heights, the Department of Justice claims that Title VII does not cover discrimination on the basis of sexual orientation, the opposite position taken by the Equal Employment Opportunity Commission. In fact, the EEOC had filed an amicus brief on the same Second Circuit case last month (Melissa Zarda et al. v. Altitude Express dba Skydive Long Island et al) which stated that sexual orientation discrimination is inextricably linked to gender, involves gender-based discrimination regarding whom a person associates with, and is linked to gender stereotypes and non-conformity. 

Huh? The EEOC has been out in front on this issue for some time. Sexual orientation discrimination claims are working their way through several appeals courts and may soon be at the U.S. Supreme Court. As we reported in April, (link) the Eleventh Circuit in mid-March issued a decision counter to the Seventh Circuit’s Hively ruling, affirming dismissal of a lesbian hospital security guard’s claim she was fired because of her sexual orientation while letting her replead a gender nonconformity claim. Her lawyers have said they would take the case to the high court.

Treating sexual orientation like gender under discrimination laws is the best course unless and until the DOJ can persuade the US Supremes otherwise.  We will keep you posted.

GRILLING AND CHILLING
Spice-rubbed carrots: Roll peeled carrots in cumin, salt, pepper and brown sugar. Char, then move them away from direct heat and cover the grill until carrots are tender.

Grilled Chicken Parm: Pound breast thin (key), top one side with sliced tomato, mozzarella and Parmesan; fold in half, seal with a toothpick or skewer and grill for a few minutes on each side.
Bon apetit! (recipes by Mark Bittman, tested by Foley & Foley)