Please join Kelley Drye’s Labor and Employment team for a virtual WORKing Lunch, a webinar series focused on bringing you the latest trends and developments in workplace law. If you or a colleague are interested in receiving an invitation to any of the webinars, please contact marketing@kelleydrye.com.

This webinar series is designed to provide in-house counsel, management and HR professionals with trends and developments related to workplace law. We can provide CLE, SHRM and HRCI credit if desired.

The “Year of the Woman” – Pay Equity and Gender Equality Legislation and Litigation
Date: Wednesday, September 25, 2019
Time: 12:30 pm ET | 11:30 am CT

With agency and legislative support, female employees are demanding pay equity, opportunity equality, and fair treatment for pregnant workers and new parents. New York is just the latest state to pass new pay equity legislation, and this trend will continue. We will discuss compliance with ever-changing legal requirements, as well as how to audit your business to identify and eliminate risk.


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On June 25, 2019, Governor Jay B. Pritzker signed the Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) into law. When the law goes into effect on January 1, 2020, Illinois will be the second largest state (after California) to allow the use and possession of recreational cannabis for all citizens over age 21. Notably, Illinois is the first state to legalize recreational cannabis use through legislative action, rather than ballot initiative.
Businesses in Illinois should have one simple question in mind: what can we do about drug testing now that employees have the right to use cannabis under state law? Can these employers still prohibit their employees from using cannabis when they are at work? Can these employers still prohibit their employees from partaking in cannabis when they are not at work?
The answer is, of course, it depends. Unfortunately, the Cannabis Act provides conflicting language on precisely what employers can do in terms of drug testing for employees.


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On June 2, 2019, the Illinois General Assembly passed SB75, a legislative response to the #MeToo movement. Governor J. B. Pritzker is expected to sign SB75 soon, as it aligns with his campaign promise to tackle sexual harassment.

SB75 creates three laws and amends a number of others to increase protection for employees in Illinois who are victims of sexual harassment, sexual assault, sexual violence, and domestic and gender-based violence. Employers should be aware of the following highlights:


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Following its usual approach of lifting employment restrictions in the five boroughs, on April 9, 2019 the New York City Council approved legislation that will prevent employers from conducting pre-employment screens for tetrahydrocannabinols, commonly known as THC, the active ingredient in marijuana. The bill was sent to Mayor Bill de Blasio, who is expected to sign it into law.

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Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?
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Marijuana remains illegal under federal law. However, there are many states, and a few cities, which have legalized medical and recreational marijuana – creating challenges for employers, as these laws “sprout up” (pun intended) across the country.

Also, prior to now, the caselaw was quite clear – an employer could discipline an employee for lawful use of marijuana. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). But the law appears to be changing, as recent cases indicate that courts are beginning to recognize that employees who are lawful users of marijuana are entitled to some protection.

It is a trend that employers need to watch.
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Currently, 23 states have enacted laws to legalize medical marijuana.  Medical marijuana laws are challenging for all employers, but particularly multistate employers, as employers must reconcile federal and varying state laws.

In November 2015, medical marijuana dispensaries in Illinois began treating patients under Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act (“Compassionate Use Act”). 

iStock_000058987054SmallAs more states legalize medical marijuana and consider legalization of “recreational” marijuana, many employers have wrestled with the question of whether they can still maintain a drug free workplace or must allow employees to use marijuana at work.  The Colorado Supreme Court just provided the common sense answer we’ve been waiting for:  YES,  employers can

While drug testing policies are becoming commonplace, employers must remember that they can violate the Americans with Disabilities Act (ADA) if reasonable accommodations are not provided, as a recent decision in a Maryland federal court demonstrates. In January, Kmart settled an EEOC suit over its alleged discriminatory urine drug test policy. The lawsuit was based