On April 19, 2017, West Virginia Governor Jim Justice signed a bill legalizing the use of marijuana for medicinal purposes.  With the passage of Senate Bill 386, West Virginia becomes the 29th state to adopt a medical marijuana law.

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Employers need not panic.  This does not mean you have to ignore your employee toking in the bathroom or ignore a positive drug test simply because the employee has a medical marijuana card.

The law does contain a broad anti-discrimination provision prohibiting an employer from taking an adverse action against an employee solely because that person possesses a medical marijuana card.  However, the law specifically says that no employer must make an accommodation for the use of medical marijuana in the workplace and employees can be disciplined for being under the influence of marijuana at work.

The law also makes it illegal for any patient to operate or be in physical control of any of the following:

  • chemicals which require a permit from a state or the federal government;
  • high-voltage electricity or any other public utility; or
  • vehicle, aircraft, train, boat or heavy machinery

The law also states that a patient may not perform employment duties at heights or in confined spaces, including mining, while under the influence of marijuana.  In furtherance of addressing safety concerns, the law specifically states that employers may prohibit an employee from performing any task while under the influence of marijuana which the employer deems life-threatening to either the employee or other employees.  Employers may also prohibit employees from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Employers in West Virginia should update drug policies to address the new law.  No person will be issued a card until July 2019 so you have some time, but like with all things, while it is fresh in your minds it is a good idea to have counsel review and revise your policies.

Last week, we commented on the fact that Representative Nunes had recused himself from the investigation into President Trump’s Russia ties after appearing less than impartial in the investigation.  Some employers may view the actions of Nunes in briefing the White House on certain classified information was not really wrong and, it could be argued, simply part of the investigation in confronting the accused.

It is certainly true that in any investigation, care should be taken to insure that both the complaining party and the accused have an opportunity to be heard.  However, there is a time and a place for confronting the accused.  Generally speaking, when conducting an investigation, it is usually best to speak with the accused after all other facts have been gathered.  In this way, you can conduct the investigation in a much more efficient matter and will not have to repeatedly interview the accused as more evidence is gathered.

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Even more importantly, by waiting to gather even more evidence, you may avoid implicit bias and insure a more thorough investigation.  Clients routinely ask me how investigations are going midstream and I always truthfully answer that “I’m not sure yet.”

I’m not simply avoiding having a discussion with my clients when I say this.  When I act as an investigator for clients, I know that I work to keep an open mind until all evidence is gathered.  This is not always easy as it is human nature to start forming opinions about the stories being told to you.  However, if I prejudge a witness as not being credible or that their claims are ridiculous, I will consciously or not, steer the investigation towards the conclusion that fits that prejudgment.  In such cases, investigators may short cut an investigation and miss the second or third claim that has merit.

I’ve been listening to a decent amount of criminal justice podcasts, namely “Undisclosed,” and they talk frequently of “confirmation bias.”  In short, confirmation bias in an investigation means that if an investigator assumes a certain result is likely, then the investigation will lead to that conclusion.  In order to make sure that the desired conclusion is reached, investigators may ignore information that does not fit that conclusion or exaggerate the importance of evidence that does fit the conclusion.

By waiting until an investigator has a full picture of the evidence for and against an accused, the investigator can hopefully avoid any confirmation bias.

Recently, the United States Court of Appeals for the Seventh Circuit issued an opinion with significant employment law implications.  As you might recall, a panel of the Seventh Circuit issued a split 2-1 decision a few months ago, holding that Title VII’s prohibitions against sex discrimination in employment did not extend to protect employees on the basis of their sexual orientation.  The full Seventh Circuit then heard oral argument about whether the panel decision was correctly decided in the case, Hively v. Ivy Tech Community College.

Last week, the Seventh Circuit sitting en banc reversed the panel’s decision, holding that Title VII’s provisions that prohibit discrimination in employment on the basis of sex necessarily also prohibit employment discrimination on the basis of sexual orientation.  This decision is a binding interpretation of federal law for employers with employees within the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin.  This decision means that employers in those states should immediately review their policies, procedures, and training regimens to ensure compliance.  However, employers outside of those states aren’t necessarily “off the hook” and should strongly consider reviewing their own policies in light of this decision.

To learn more about what this decision could mean for your workplace, check out our recent Labor & Employment Alert on the case.