February

A federal court in Utah upheld the termination of an employee who did not disclose his use of prescription medication in accordance with his employer's policy.
 
This case highlights the importance of having a written policy requiring “safety-sensitive” employees to report the use of prescription medications that may impair the ability to perform their job duties safely - before reporting to work while using such medications and before being selected for drug testing.
 
Such reporting triggers an employer's obligation to engage in the “interactive dialogue” required by the ADA to determine potential reasonable accommodation. In this case, it was undisputed that the employee was aware of the policy and that he did not comply with it.
 
Employers must be careful not to apply such policies to non-safety-sensitive employees because there is no business justification to do so.

Another Washington court has held that an employer lawfully may terminate an employee for using marijuana, even when the employee had a prescription and used it off-duty.
 
After a workplace injury, Safeway tested its employee, Swaw, for drugs. Swaw tested positive for marijuana due to the use of medical marijuana outside of work, subject to a valid prescription. Safeway terminated him for testing positive for a controlled substance pursuant to its drug-free workplace policy. Swaw brought suit, alleging his former employer unlawfully discriminated against him on the basis of a disability.
 
The Court dismissed all of Swaw's claims, holding that Washington law does not impose upon employers a duty to accommodate medical marijuana in drug-free workplaces and that users of an illegal intoxicant are not a protected class.

Recently, Maine became the latest state to enact legislation restricting an employer's access to employees' and job applicants' personal social media accounts.

The new statute prohibits an employer from requiring, coercing or requesting an employee or applicant: to disclose the password or any other means for accessing a personal social media account, to provide access to a personal social media account in the presence of the employer, to disclose to the employer any personal social media account information, to add anyone to the employee 's or applicant 's list of contacts associated with a personal social media account, and to alter settings that affect a 3rd party's ability to view the contents of a personal social media account.