What are we talking about this week? Just things like marijuana, shots (again), and a bit of clairvoyance. Plus we have some speaking engagements coming up!
1. New York’s High State of Mind. With New York joining states like New Jersey in legalizing marijuana, many employers are wondering what they can/can’t do about employees using the substance. While we’re still waiting for more guidance on the issue, New York went so far as to amend its Labor Law. As background, employees are already protected against discrimination for engaging in lawful “off-duty” activities (a hot issue during recent protests and rallies). New York amended this law to specifically include protection for employees who use marijuana “in accordance with State law”. Notably, employers are still able to drug test employees, but they need to proceed with caution before rejecting an applicant solely because that person tests positive (and in some jurisdictions/occupations, you’re not even permitted to test applicants for marijuana at all) or terminating a current employee for a “failed” test. Employers can/should also enact workplace policies that prohibit marijuana use and other drug use on-site and during working hours. Sounds like it’s a good idea to update your handbook’s drug and alcohol policies.
2. Obligatory COVID-19 Update. So, about that shot, you get it yet? Besides becoming a prerequisite to making weekend plans (remember those?), many employers are now inquiring if they can ask employees if they’ve been vaccinated. In short, yes you can. And, if they say “yes”, then you can ask for proof in the form of a vaccination card. Be careful, however, if the person says “no” since this might elicit information about the employee’s disability or religious beliefs. That’s dangerous grounds.
We also saw a recent “on second thought . . .” from the EEOC regarding incentives for employees to get vaccinated (remember those “wellness programs” we mentioned a few months ago?), with the EEOC withdrawing two proposed rules. Does this mean you’re now permitted to shower your employees with gifts if they get the shot? Please don’t. Remember, in the absence of specific agency guidance, employers who offer a vaccine incentive must be mindful of the possible repercussions and risks (like, ya know, differential treatment of employees who refuse the vaccine for religious or disability-related reasons). Best practice if you want to offer incentives? Continue offering nothing more than de minimis incentives until further notice.
3. Weinstein + Klein: Psychic Extraordinaires. We’re not saying we’re psychics, but…we told you! We’ve been telling our New Jersey clients that they should expect the State to follow New York’s lead on requiring written anti-discrimination policies and employee training for all employers. We were right! A bill pending in New Jersey, which seems likely to pass, would amend the State’s Law Against Discrimination (“LAD”) and mandate written anti-discrimination policies, anti-discrimination training to all employees (and all new employees within 90 days of hiring), and clear internal reporting procedures. The trainings will have to follow various topics outlined by the State and proof of attendance must be provided to the State upon request. In other words, the practices we’ve been advising our clients about – and implementing for those employers in the Empire State – may soon become required by law in the Garden State.
The bill goes even further, however, and would require employers to report any internal discrimination complaints to the State. Given Governor Murphy’s announced plans to overhaul the LAD, whether through this bill or not, the LAD and New Jersey employment laws will undergo a significant facelift. Stay tuned!
Check us out! If reading our emails isn’t enough, you can actually hear us present (live!).
· April 30th: Our friends at SKC & Co. CPAs are hosting a virtual “office hour” on April 30th at 9am via Zoom. Join Damien and Jen L’Estrange from Red Clover HR as they discuss what’s next for business owners now that people are getting vaccinated and returning to work. Register here!
· May 6th: Supporting Strategies is hosting a virtual “Business Fundamentals Bootcamp” on May 6th at 10am. Damien will be presenting alongside Nicky Chin (Supporting Strategies North Central Jersey), Bob Carino (Kistler Tiffany Benefits), Craig Louiselle (Prudential Advisors), and Graham Relf (Graham Relf Design) on “Evolving Beyond COVID: Moving Your Business Forward in 2021”. Register here!
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.