Delaware Employment Law Blog

Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996.  This year, the Delaware General Assembly began experimenting with marijuana legislation.  With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes.

S.B. 17 shares many common elements with medicinal marijuana legislation across the country.  But there are some key differences that could have a major impact on Delaware employers.  Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card.  Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers."  There will be only one state licensed dispensary in each county.  The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

Unlike many other states' medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.  Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.

Continue reading . . .

Last night, Governor Markell signed Delaware's civil union bill into law. The new law will go  into effect on January 1, 2012. 

See our prior posts regarding how the new law will affect Delaware employers:

Civil Unions: Federal Tax and Benefit Implications

Same-Sex Civil Unions Recognized in Delaware

Delaware Legislature Considers Same-Sex Civil Unions

The Delaware House of Representatives voted yesterday in favor of Senate Bill 30, a bill that would create same-sex civil unions in Delaware, and recognize civil unions performed in other states. The bill also changes all sections of the Delaware Code where marriage is mentioned, by requiring that the word “marriage” be read to mean “marriage or civil union.” 

Senate Bill 30 was approved by the Delaware Senate on April 7, and Governor Markell has already declared that he will sign the bill into law “as soon as a suitable time and place are arranged.” The law will take effect on January 1, 2012.

The new law raises several questions for employers.  For example, the law cannot, and does not, alter federal non-recognition of civil unions. So how will the new law impact employers?

Right to Employment Benefits

As we have previously indicated, the most significant impact of Senate Bill 30 is likely to be on employment benefits. When the law takes effect, employers will be required to provide partners in a civil union with the same benefits that they provide to partners in a marriage. The Act would not cover those currently not protected by the Delaware Discrimination in Employment Act (DDEA): (a) employers with less than 4 employees; or (b) religious corporations with respect to discrimination based on sexual orientation

Equality of Benefits

Employers should also be aware that equality of benefits is a two-way street. Many employers previously offered employment benefits to unmarried same-sex partners, but not to unmarried heterosexual partners. Now that same-sex couples have access to civil unions that are substantively identical to marriage, employers may be open to claims of reverse discrimination if they continue to offer benefits to same-sex partners who have not entered into a civil union, but do not offer the same benefits to unmarried heterosexual partners.

Employers should also be careful to impose the same requirements for receipt of benefits upon same sex civil union partners as they do upon married partners. While it is perfectly acceptable to ask an employee to verify his or her marital status before extending benefits, the same requests should be made of both same-sex and heterosexual partners. If you do not require a copy of a marriage certificate to establish benefits, you should not require a copy of a civil union certificate.

Discrimination Protection

As we have previously reported, the DDEA already protects Delaware employees from discrimination on the basis of sexual orientation. Keep in mind that homosexual individuals who may not have previously chosen to disclose that fact may, as a result of the new law, disclose that information so that their partner may enjoy benefits. Therefore, employers may possibly have knowledge of an employee’s protected class they might not otherwise have had – and should proceed cautiously with any adverse employment actions, particularly ones that may follow closely on the heels of such disclosure.

This post was authored by Adria B. Martinelli and Lauren Moak.  Adria will be speaking about the implications of Delaware's Civil Union and Equality Act of 2011 at our upcoming Annual Employment Law Seminar on May 11, 2011. 

I reported last week that the Delaware Senate was considering a bill that would recognize civil unions.  The Wilmington News Journal reports that the State Senate voted to approve the Civil Union and Equality Act of 2011 yesterday.  The House is expected to vote on the legislation on Thursday, April 15, so stay tuned. 

Delaware's General Assembly will consider a new bill that would permit civil unions for same-sex couples. The Civil Union and Equality Act of 2011 was introduced by Sen. Sokola & Sorenson and Reps. George & Schooley. 

A civil union would be parallel, but not equal to, marriage – which would remain reserved for heterosexual couples. Parties to a civil union will bear the same responsibilities and enjoy the same rights and protections, to the extent possible, as exist for married spouses.

The Act removes the criminal penalties under Delaware law for marrying a same-sex spouse in another jurisdiction, and recognizes those marriages as well as similar legal relationships entered into outside of Delaware as civil unions, not as marriages. For example, if a same-sex couple gets married in Vermont and moves to Delaware, their Vermont marriage would be recognized as a civil union in Delaware, not as a marriage

The Act cannot, and does not, alter federal non-recognition of civil unions.

If passed, what will this mean for Delaware employers?

First, employers generally will be required to make whatever employee benefits that are offered to a married spouse available to a spouse in a civil union.  The Act would not cover those currently not protected by Delaware’s discriminations laws: (a) employers with less than 4 employees, or (b) religious corporations with respect to discrimination based on sexual orientation.

Second, private employers offering health and retirement benefits that are subject to ERISA — a federal law — may not be required to offer such benefits to a spouse in a civil union.  This is because the federal Defense of Marriage Act (“DOMA”) defines “marriage” as only between a man and a woman, and a “spouse” as only a person of the opposite sex, for purposes of federal law, and ERISA preempts inconsistent state law. However, the present commitment to enforce DOMA remains an open question.

On February 23, 2011, Attorney General Eric Holder announced that the Justice Department would cease legal defense of the Act's Section 3 at the direction of President Barack Obama, who had reached a conclusion that Section 3 was unconstitutional. However, Congress may defend the law in court in place of the administration, and on March 4, 2011, Speaker of the House John Boehner announced he was taking steps to defend Section 3 in place of the Department of Justice. Given the uncertain state of current law, employers will need to stay tuned as to the current position of the administration if or when Delaware’s bill passes to best assess how to handle the conflicts between state and federal law on this issue.

Third, employers who currently offer benefits for same-sex partners will want to consider changing its policy so that benefits are only offered for same-sex partners who have entered into a civil union. This is because if you offer benefits only to homosexual partners who have not entered into a civil union, but do not offer those same benefits to unmarried heterosexual partners, you face potential exposure to a sexual orientation discrimination lawsuit under Delaware law.

The legal effectiveness of social-media policies in the workplace came under fire when the National Labor Relations Board (NLRB) filed an unfair labor practices complaint against American Medical Response.  The complaint was filed after the employer terminated a unionized employee for complaining about her boss via Facebook. The NLRB's complaint alleged that the employee was engaged in activity protected by the NLRA because she was discussing the terms and conditions of her employment with co-workers.

The NLRB just announced  that it settled the matter after the employer agreed, among other things, to revise its social media policy to be less broad. The employer had previously prohibited its employees from any on-line criticism of the company. As we've previously noted, the NLRB's position on social media does not mean that an employer is prohibited from restricting social media use by employees. It does, however, mean that employers need to tailor their social media policies to avoid overly broad restrictions.  We'll keep an eye out for release of the revised (and NLRB-approved) social-media policy. 

See also, coverage of the settlement by the N.Y. Times.

A bill to permit the use of marijuana for medical purposes was introduced in the Delaware General Assembly yesterday. Senate Bill 17, if enacted, would create an exception to Delaware’s criminal laws by permitting the doctor-recommended medical use of marijuana by patients with serious medical conditions. A patient would be protected from arrest if his or her physician certifies, in writing, that the patient has a specified debilitating medical condition and that the patient would receive therapeutic benefit from medical marijuana.

Patients would be allowed to possess up to 6 ounces for their medical use. The legislation allows them to designate a caregiver who would also receive an ID card. Each caregiver may assist no more than five qualifying patients. The legislation would also allow for the state-regulated, non-profit distribution of medical marijuana. The Department of Health and Social Services would issue registration certificates to qualified applicants.

SB 17 also contains restrictions on the medical use of marijuana, including prohibitions on public use of marijuana and driving under the influence of marijuana.

While the bill states that employers are not required to allow patients to be impaired at work or to allow the possession of marijuana at a workplace, it does not address how employers are to deal with employees who test positive for marijuana or ask for accommodations under the ADA.

Other States' Laws

Delaware joins a growing list of States proposing or enacting medical marijuana laws. Last year alone, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana

Some states have already enacted legislation. Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so).

Other Legal Issues, From ADA Accommodation to Safety

Legal questions are sure to arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don't need to make such accommodations. Because the ADA doesn't require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment.

Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties.

See also Wilmington News Journal's coverage of Montel Williams' visit to Dover, Delaware, in support of SB 17

A law first proposed by the late Senator Ted Kennedy has been resurrected and introduced in the Senate by Bob Casey (D-Pa.) and Tom Harkin (D-Iowa). The law mirrors legislation introduced in the House of Representatives in March 2009 which, to date, has gone  nowhere. Premised on the purported need of employees to have more flexible work options, it authorizes an employee to request from an employer a change in the terms or conditions of the employee's employment if the request relates to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work; or   (3) where the employee is required to work.

The proposal does not require the employer to grant any requests, but does set forth employer duties with respect to such requests, and makes it unlawful for an employer to interfere with any rights provided to an employee under the Act. Under regulations to be promulgated by the Secretary of Labor, an employer would have to hold a meeting with the requesting employee and give the employee a written decision on the request, discussing the reason for any rejection and addressing a prescribed list of possible explanations. An employee would be entitled to request reconsideration and the employer would be required to provide a written response to that request as well. In short, it would create an unnecessary paperwork nightmare.

The proposed law also authorizes an employee to file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor for any alleged violations of rights, and provides for the investigation and assessment of civil penalties or the award of relief for alleged violations.

The timing of its introduction suggests that S. 3840  is a political ploy. In view of the current mood of the populace, passage of the legislation is, to put it mildly, a longshot.

The credit history of a job candidate will be off limits to Illinois employers as of January 1, 2011.  Illinois Governor Pat Quinn signed the bill into law on Tuesday, thereby prohibiting employers from making employment decisions--including the decision whether to hire--based on the individual's credit history.  (See Press Release).

Hawaii, Oregon, and Washington already have similar laws.  And bills are pending in 16 state legislatures that would enact similar prohibitions.  The recent push is likely related to the high unemployment rate--more candidates inevitably will have credit issues as a result of unemployment. Therefore, there are more voices to speak out against employers' use of credit histories for employment decisions. 

Delaware’s law banning calling and texting while driving takes effect in January. Eric Ruth, of the Wilmington News Journal, details what Delaware's new no-cell-phone law does and does not require and, with a few suggestions from Adria B. Martinelli, offers ways that employers can begin to prepare.

Adria also offers some tips for employers who will need to update their policies:

• Ban all cell phone use while driving company-owned vehicles -- even hands-free devices can distract drivers.
• Specifically ban texting and e-mailing while driving. If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle.
• Make an exception for emergencies that require police or medical attention.
• Also require all occupants of company-owned vehicles or private vehicles driven on company business to wear seat belts.
• Monitor and enforce the policy.

Health care reform is now law and many of the so called “insurance market reforms” go into effect for most employers on January 1, 2011. However, the portion of the law that will require certain large employers to offer and contribute to employees’ health insurance or pay a penalty are deferred until 2014.

Under the law, effective January 1, 2014, each Applicable Large Employer must offer minimum essential coverage to its full-time employees (and their dependents) or it will be required to pay a penalty for each month that any of its full-time employees purchases health insurance through a state health insurance exchange (“Exchange”) and receives a tax credit or cost-sharing reduction (generally granted to individuals based on income levels).

An Applicable Large Employer is one that employed an average of at least 50 full-time employees during the preceding calendar year. A full-time employee is one who for any month works an average of at least 30 hours or more each week is counted as one employee and those employees who work less than 30 hours per week are counted as proportionate employees based on 30 hours per week. An Applicable Large Employer will be subject to the penalty only if the employer has any full-time employees who are certified as having purchased health insurance through an Exchange and received a tax credit or cost-sharing reduction.

Delaware will join the many states that ban cell-phone use while driving.  The law, signed by Gov. Markell on July 6, will take effect on January 2, 2011. The new law bans texting while driving and the use of hand-held cell phones – meaning a hands-free device will be required to talk on the cell phone while driving. It also bans the use of pagers, PDAs, BlackBerry devices, laptops, games or portable computers, and two-way communication devices while driving. In addition, drivers cannot browse wirelessly or read, write, or send messages while driving.

There are a few exceptions, including for law enforcement, firefighters, EMS technicians, or other operators of emergency vehicles. In addition, two-way mounted radios can be used to communicate with other employees or a central dispatch.

Any violation is primary offense and a civil penalty. The fine for the first offense is $50 and subsequent penalties are between $100 and $200 dollars.

29 other states plus D.C. & Guam ban texting. Delaware will be only the eighth state to ban the use of hand-held phones. Delaware State Police cite 230 crashes in 2009 that involved the use of a cell phone as a distraction. National research shoes that drivers using cell phones are four times more likely to get into crashes causing an injury.

Employer Policies

The new laws don’t require you to have specific policies, but it’s a good idea to remind your employees that they need to follow the law while they’re working. There are many reasons employers should take all the steps they can to make sure their employees are driving safely while on the job. Employers may be legally responsible for the actions of their employees. If one of your employees is negligent, gets into an accident, and injures someone while on the job, the company could be held liable. Furthermore, if the employee is injured, you will likely have a workers’ compensation claim on your hands as well.

For these reasons, consider adopting and enforcing the following policies – some of which go further than Delaware’s new law:

· Ban all cell phone use while driving company-owned vehicles or on company property (even hands-free phones can distract drivers);

· Ban texting and emailing while driving.  If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle;

· Make an exception for emergencies that require police or medical attention;

· Require all occupants of company-owned vehicles or private vehicles driven on company business to wear their seat belts, and monitor and enforce the policy. Seat belt use is the single most effective way for vehicle occupants to prevent injuries and fatalities;

· Include a signed acknowledgement of your written policy;

Finally, employers may want to contact their insurance broker or review their insurance policies to make sure your company and your employees are adequately covered.

By implementing the suggested policies, employers can ensure their employees are following the law AND that, as an employer, have taken all steps possible to prevent accidents and minimize the company’s liability.

Bonus Benefit

Another potential upside of the cell phone ban, according to the L.A. Times, is improved personal relationships!  According to the article, effective communication while driving is difficult and can lead to relationship problems. 

Federal contractors and subcontractors are subject to a new posting requirement.  Federal contractors and subcontractors (except for acquisition contracts worth less than $100,000 and subcontracts worth less than $10,000) have until June 21, 2010, to post a new notice telling their employees about their rights under the National Labor Relations Act (NLRA), the federal law that governs the relationships between private sector employers and unions. The posting describes the rights of employees to organize into unions and collectively bargain for a contract with their employer. It also describes union and employer conduct that is deemed to be unfair interference with employee rights, and tells employees to contact the National Labor Relations Board if they believe their rights have been violated.

Contractors will be able to download the notice from the Department of Labor’s website and print it out for posting. If the contractor also posts notices to employees electronically, it must also post this notice electronically through a link to the Department of Labor’s Office of Labor-Management Standards (OLMS) website. If a significant number of a contractor’s employees do not speak English well, the contractor must post translated versions of the notice, which will be provided by the OLMS.

The text of the notice and certain other provisions must now also be inserted into federal contracts and subcontracts. The text is available at 29 C.F.R. Part 471 Appendix A (scroll down to page 52).

The Department of Labor’s OLMS has published a Fact Sheet that explains the new posting requirements in detail. Contractors and subcontractors who fail to comply with the requirements risk suspension or cancellation of current contracts and debarment from future contracts

The IRS has issued a News Release explaining to small businesses how they can determine whether they qualify for tax credits pursuant to the Affordable Care Act. These credits are granted to small employers who provide health insurance, as well as additional coverage, such as dental and vision, to employees. The IRS also issued Notice 2010-44 (pdf), which provides more detailed information, including how the credit is calculated.  The Notice also provides more than a dozen examples demonstrating how the credit will work.

The tax credits granted pursuant to the Affordable Care Act are intended to provide tax incentives to small businesses, defined in this instance as having fewer than 25 full-time employees, whose employees earn, on average, less than $50,000 per year. These benefits are available to those small businesses who provide health insurance benefits for which the company pays at least half of the annual cost of individual coverage in 2010. Because the credits are based upon the number of full-time employees, employers with more than 25 employees, some of whom are part-time, may still qualify. Owners of the small business and their family members are not included in the definition of employees.

The credit will range from 25% to 35% of premiums paid by small business employers for tax years 2010 through 2013. Tax-exempt organizations that qualify may receive a credit of up to 25% of the premiums paid. The credit for small businesses will be included as part of the general business credit for 2010. The IRS is still working on the procedure by which tax-exempt entities may claim the credit.

See also, Summary of HIRE Act

This post was written by guest blogger, Jennifer R. Noel.  Jenn is an associate in Young Conaway's Tax, Trusts & Estates Section, where she advises clients with respect to local, state, federal, and international tax issues, the legal aspects of the formation and operation of small and emerging growth business enterprises, and the preparation and negotiation of commercial contracts.

Delaware’s legislature has bills pending which may change how some employers credential their employees.

First, there is a bill pending (Senate Bill No. 236) which will remove the provision that allows for the registration of psychological assistants who hold a master’s degree that is “based on a program of studies that is psychological in content and specifically designed to train and prepare psychologists but who is not working toward full licensure as a psychologist.” Pursuant to the bill, a psychological assistant must have completed all the course requirements for a doctoral degree in psychology. A grandfather provision is included for existing registered psychological assistants who maintain their registration. The change limits psychological assistants to those people who meet the experience requirement under §3508(a)(2) for full licensure as a psychologist. The bill was reported out of committee on May 12, 2010.

Second, there is a bill pending (House Bill No. 377) for all state contractors in the plumbing and heating, ventilation, air conditioning and air refrigeration (“HVACR”) fields. Currently a licensed contractor from any state can obtain a Delaware plumbing or HVACR license by simply paying a fee and proving that the contractor is licensed elsewhere. Some states do not offer the same reciprocity, and instead require Delaware contractors take a written test, pay a fee, and satisfy all licensing criteria for that state.  This bill eliminates the existing disparity between Delaware and out of state reciprocity requirements.   If an out of state contractor’s home state has provisions similar to Delaware’s, the contractor may obtain a Delaware license through the reciprocity provisions.  If the other state does not offer reciprocity, that state’s resident plumbing and HVACR contractors must go through the full process of becoming licensed in Delaware. The bill was reported out of committee on May 12, 2010.

Third, pending Senate Bill No. 246 would create a Delaware Board of Examiners of Bail Enforcement Agents empowered to enforce standards upon bail enforcement agents. This 9 member board will supplant the primary responsibility of the Secretary of the Department of Safety and Homeland Security regarding licensure and disciplinary regulatory authority. Regulations proposed by the Board would still be subject to the approval of the Secretary. The Bill also requires that licensees operating a bail enforcement company obtain insurance and file proof of insurance with the Board. The bill was reported out of the Senate’s sunset committee on May 12, 2010.

Employers can find out more about pending state legislation and how the legislative process works at http://legis.delaware.gov.