Legal Report October 2015
U.S. Judicial Decisions
Marijuana. A company lawfully fired an employee after he tested positive for marijuana use, despite its being legal in the state, Colorado’s Supreme Court ruled. The court found that the federal prohibition on pot makes the drug unlawful no matter what state law dictates.
The ruling stems from a case brought by Brandon Coats, a former Dish Network customer service representative from 2007 to 2010 and a quadriplegic. In 2009, he registered for and obtained a medical marijuana license from the state of Colorado to treat painful muscle spasms. Coats consumes medical marijuana at home and after work, in accordance with his license and Colorado law.
In May 2010, Coats tested positive for tetrahydrocannabinol (THC), a compo- nent of marijuana, during a random drug test. He informed Dish that he was a registered medical marijuana patient and planned to continue using medical marijuana. However, Dish fired him for violating its drug policy.
Coats then filed a wrongful termination suit against Dish under a section of Colorado law that generally prohibits employers from firing an employee based on engagement in “lawful activities” off the worksite during nonworking hours, according to court documents. Coats alleged that Dish violated this statute by firing him based on his outside-of-work medical marijuana use, which he said was “lawful” under the Medical Marijuana Amendment and its implementing legislation.
Coats’ claim was initially dismissed by a trial court, and through a series of court proceedings made its way to the Colorado Supreme Court, which affirmed a lower court’s ruling in a 6-0 decision with one justice abstaining.
In its opinion, the court held that under Colorado’s lawful activities statute, “the term ‘lawful’ refers only to those activities that are lawful under both state and federal law.”
The use, possession, or manufacture of marijuana is a federal criminal offense, except when it is used for federally-approved research projects, the court explained. “Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.” (Coats v. Dish Network, Supreme Court of Colorado, No. 13SC394, 2015)
ADA. United Airlines will pay more than $1 million to a class of former employees and implement changes to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
The settlement marks the end of a complicated lawsuit that was initially filed in 2009 when the EEOC charged that United’s competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires employers to provide reasonable accommodations to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer.
United violated the law, the EEOC said, by requiring workers with disabilities to compete for vacant positions they were qualified for and that they needed to continue working. This policy frequently prevented employees with disabilities from continuing their employment with the airline, the EEOC alleged.
A district court initially ruled that United’s competitive transfer policy did not violate the ADA and dismissed the case in 2011. The EEOC appealed, however, and the U.S. Court of Appeals for the Seventh Circuit reversed the lower court’s decision.
In its ruling, the court found that “the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer.”
United appealed the ruling to the U.S. Supreme Court, which declined to take up the case in 2013. United then agreed to settle the suit, paying $1,000,040 to former United employees with disabilities and changing its policies.
Those changes include revising its ADA reassignment policy, training employees regarding the policy changes, and providing reports to the EEOC on disabled employees who were denied a position as part of the ADA reassignment process. (EEOC v. United Airlines, U.S. Court of Appeals for the Seventh Circuit, No. 11-1774, 2012)
Discrimination. The EEOC has issued an update to its Enforcement Guidance on Pregnancy Discrimination and Related Issues.
“Employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification,” the EEOC said in a press release on the new guidance.
The EEOC released the guidance to address the U.S. Supreme Court decision in Young v. UPS earlier this year, which found that women may be able to prove unlawful pregnancy discrimination if their employer accommodated some workers, but refused to accommodate pregnant women.
The new guidance is available via www.securitymanagement.com.
Communications. President Barack Obama signed legislation into law that requires the U.S. Department of Homeland Security (DHS) to achieve and maintain interoperable communications. The law (P.L. 114-29) requires a DHS under secretary to submit a strategy to Congress to achieve and maintain communications, including for daily operations, planned events, and emergencies.
The strategy must include an assessment of interoperability gaps in radio communications among DHS groups, information on DHS efforts to achieve and maintain interoperable communications, and information on the adequacy of mechanisms available to the under secretary to enforce and compel compliance with interoperable communications policies and directives of DHS.
Intelligence. The House of Representatives passed an annual intelligence policy bill. The measure (H.R. 2596) provides a policy guide for the 16 U.S. federal intelligence agencies.
The bill addresses efforts to combat al Qaeda, the Islamic State of Iraq and Syria, and other extremist groups, as well as to build intelligence powers in space.
Additionally, the bill instructs the Office of the Director of National Intelligence to create a Cyber Threat Intelligence Integration Center for analyzing and integrating all intelligence possessed or acquired by the United States on cyberthreats. The center would also be used to disseminate cyberthreat analysis to the president, federal agencies, and congressional committees, among other tasks.
The bill also repeals some reporting requirements, including the president’s report on how the executive branch determines whether a security clearance is required for a particular government position; the president’s annual report on espionage by China; and the National Counterintelligence Policy Board reports on security vulnerabilities of computers at national security labs.
The bill is sponsored by Rep. Devin Nunes (R-CA) and has no cosponsors. It will now move to the Senate.
Drones. The House of Representatives passed the first bill of its kind to address the security implications of drones.
The bill (H.R. 1646) requires DHS to assess the security risks associated with commercially available small and medium unmanned aerial systems, also known as drones. The measure also requires DHS to develop policies, guidance, and protocols to prevent or mitigate the risks if drones are used in an attack.
The bill is sponsored by Rep. Bonnie Watson Coleman (D-NJ) and is cosponsored by Rep. Bennie G. Thompson (D-MS), the ranking member of the House Homeland Security Committee. The bill will now move to the Senate.
Data Breaches. Canada enacted a new law that requires organizations to maintain a record of all privacy breaches and to send breach notifications.
The Digital Privacy Act (S-4) requires organizations to report any breach of security safeguards involving personal information if the “breach creates a real risk of significant harm to an individual.”
The notification should contain sufficient information to allow the individual to understand the significance of the breach and to take steps to reduce the risk of harm.
The act requires organizations to maintain records of every breach and make these records available to Canada’s privacy commissioner. It explains when organizations are allowed to share personal information without an individual’s consent or knowledge.