Employment Law Alert: Medical Marijuana Update / New Health Care Reform Law Provides Break Time for Nursing Mothers

Medical Marijuana Update/New health care reform law provides break time for nursing mothers

Employers Need Not Accommodate Medical Marijuana Users

Oregon State Supreme Court rules federal Controlled Substances
Act preempts state law

On April 15, 2010, the Oregon Supreme Court issued a decision in
Emerald Steel Fabricators v. Oregon Bureau of Labor & Industries,
346 Or 157 (2010), declaring that employers are not required
to accommodate an employee’s use of medical marijuana. In
Emerald, the employer discharged an employee for non-work use
of marijuana prescribed by a physician under the Oregon Medical
Marijuana Act. BOLI issued an order that the termination violated
the State of Oregon disability discrimination statute, ORS 659A.112,
because the employer failed to engage in the “interactive process”
to determine a reasonable accommodation for the employee’s
disability.

The Court reversed BOLI’s order, and held that the federal
Controlled Substances Act, which prohibits the manufacture,
distribution, dispensation, or possession of marijuana, even when
state law authorizes its use to treat medical conditions, trumped
the voter-enacted Oregon Medical Marijuana Act, which allows
medical marijuana users a defense against state criminal charges.
Under the Supremacy Clause of the US Constitution, federal laws
enacted by Congress supersede state law when state law confl icts
with federal statutes.

The immediate impact of the Supreme Court’s decision is to
remove the employment protection that medical marijuana users
arguably had previously under Oregon’s disability law. Under the
Emerald decision, Oregon employers now have no obligation to
accommodate an employee’s disability through the use of medical
marijuana and BOLI will no longer be able to enforce employment
protection under State of Oregon disability law for medical marijuana
users.

The Emerald decision supports an employer’s right to establish drugfree
workplaces, administer drug tests, and to make employment decisions (such as
hiring, discipline and discharge decisions) due an employee’s medical marijuana
use without violating the State of Oregon’s disability discrimination laws.
However, employers should be mindful of other discrimination laws that may
apply, including state and federal laws which provide employment protections
for those individuals who are in recovery from substance abuse, which could
include recovery from marijuana substance abuse.

Health Care Reform Law Requires Employers to Provide
Nursing Mothers With Extra Break Time and a Location to Express Milk

Section 4207 of the Patient Protection and Affordable Care Act (“the Act”),
signed by President Obama on March 23, 2010, amends the Fair Labor Standards
Act (“FLSA”) to add a new section requiring employers to provide “reasonable”
break time for employees who are nursing mothers to express milk. The new law
is effective as of March 23, 2010.

“Reasonable Unpaid Breaks” Requirement
Employers can determine what constitutes a “reasonable” amount of time
to express milk, but the frequency of required breaks is subjective and based
on the employee’s “need” to express milk. The U.S. Department of Labor (“DOL”)
has the authority to draft regulations offering guidance in this area. Until the
DOL implements such regulations “reasonable break time” remains undefi ned. The
length and frequency of each employee’s lactation breaks could vary based on the
needs of each individual employee and the location and logistics of the space provided.

The Act states that employers are not required to compensate employees
for “reasonable break time” for purposes of lactation under the federal law.
Note that under Oregon law, however, employees must receive a paid rest
period of 10 minutes for every four hours work. Thus, if an employee takes a
30-minute break to express breast milk (assuming she hasn’t already used all
regular paid rest periods during her shift), 10 minutes would be paid time and
20 minutes would be unpaid time. Employers should consult employment counsel
for further advice on how to address a particular employee’s situation.
A nursing mother is eligible for the break time for up to one year after her
child’s birth and may take advantage of the breaks anytime she has the need to do so.

Lactation Room Requirement
In addition to the break time requirements, under the new law, employers must
provide a private place, other than a bathroom, for the employee to use for
expressing breast milk. The room must be shielded from view and free from
intrusion by coworkers and the public. The definition of “intrusion” is not defined
at this point. For example, it is unclear whether multiple nursing mothers
can use the same location to express milk at the same time, and whether an
employee’s current office can be designated in lieu of some other location.
Providing access to a nearby safe water source for washing hands and rinsing out
breast-pump equipment and refrigerator storage are not required, but employers
may want to consider providing access to these things.

Who must comply with this law?
The new rules apply to all employers with one exception. An employer with
fewer than 50 employees may be exempt from the Act’s requirements regarding
break time for nursing mothers, but only if the employer can demonstrate
that complying with the requirements would impose “an undue hardship by
causing the employer signifi cant diffi culty or expense when considered
in relation to the size, financial resources, nature, or structure of the
employer’s business.” This means that each employer with less than 50 employees
still must make an individualized determination as to whether an undue hardship
exception applies.

The DOL will likely issue regulations regarding what constitutes an “undue hardship.” Until then, the
Americans with Disabilities Act’s undue hardship exception, 42 U.S.C. § 12111, and its regulations, 29
C.F.R. § 1630.2, provide guidance for employers. The determination of whether there is a qualifying
undue hardship is highly fact-specific. It is generally insufficient to only show that the employer will bear some additional cost, expense or inconvenience.

The new requirements do not apply to exempt employees. Keep in mind, however, that exempt employees
cannot have their pay reduced for taking breaks to express milk.

Oregon Law
Oregon law already provides break time for nursing mothers. Effective January 1, 2007, ORS 653.077
requires employers to provide nursing mothers a 30-minute break for every four hours worked to express
milk. Oregon’s law is substantially similar to the new federal law.
However, unlike the new federal law, Oregon’s statute only applies to employers with 25 or more employees
and only requires employers to make “reasonable efforts” to provide a location other than a restroom or
toilet stall for expressing milk. Under the new federal law, all employers, absent a showing of undue
hardship, must provide reasonable breaks, and must provide a location for expressing milk.
If you would like further information regarding this new law, or how the law may apply to you, please
do not hesitate to contact one of our labor and employment attorneys.

Please visit our new website at
www.harrang.com

Portland
1001 SW Fifth Avenue
16th Floor
Portland, OR 97204-1116
Phone: (503) 242-0000
(800) 315-4172
Fax: (503) 241-1458

Eugene
360 E. 10th Avenue
Suite 300
Eugene, OR 97401-3273
Phone: (541) 485-0220
(800) 315-4172
Fax: (541) 686-6564

Salem
333 High Street, N.E.
Suite 200
Salem, OR 97301-3614
Phone: (503) 371-3330
(800) 315-4172
Fax: (503) 371-5336

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