James F. Mahoney, Attorney
Commentaries
 
     

June 2017

Medical Marijuana at Work

Plus: Accident Reconstruction and Drones ... Crash Severity and Cause

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Medical Marijuana Laws Present Unique Challenges to Employers

Almost all states will soon have similar laws as to medical marijuana usage, and generally no employee can be fired just for having medical authorization to use marijuana.

The Americans with Disabilities Act even prevents employers from asking about it because that would presume the employer is asking about an underlying disability.

While it’s still illegal under federal law to possess or use it, there have been more than 60 peer-reviewed studies with an overwhelming majority finding marijuana helpful as palliative care in debilitating diseases or for those with chronic pain.

What is an employer to do? Re-write your employee handbook; be vigilant and drug test under the defense of reasonable suspicion.

Current Arizona law is typical of many states’ view: unless a failure to test would cause an employer to lose a monetary or licensing-related benefit under law, an employer may not discriminate against a person in hiring, terminating, imposing a condition of employment, or otherwise penalizing a person for having medical marijuana privileges, or producing a positive test for marijuana.

Safety-sensitive work in the transportation industry – or any industry – allows the employer to discipline/terminate employees with medical marijuana prescriptions if intoxicated on duty.

Regardless of the industry, no employee with a medical marijuana card may use, possess, or be impaired at work.

Why should you be concerned / have a policy / conduct reasonable suspicion testing?

Because of exposure to the legal risk of negligent hiring or negligent retention claims brought by third persons; and because your medical card employee could challenge you for discrimination if you do not treat every employee the same.

The Gig Economy Just Got Giggier

On June 7, 2017, Labor Secretary Alexander Acosta announced that the U.S. Department of Labor has withdrawn two informal guidance documents on independent contractor misclassification and joint employment, which had been issued by President Obama.

These involved the “economic realities” test used for contractors; and an expansive interpretation for joint employment under the Fair Labor Standards Act.

Presumably, the absence of these guidance documents, along with various test factors delineated by the DOL, courts likely will revert to prior interpretations of independent contractor classification and joint employment as had been determined by courts in each jurisdiction.

Drones in Accident Reconstruction

Drone technology brings a significant advantage over current crash data collection methods in litigated matters.

The falling costs of drones and associated software, combined with reduced expert costs, time saved, access to traffic areas, and the superb visualization of the collected data make drones desirable and useful for accident reconstruction.

Post- crash investigations have always been a challenge for the transportation and insurance industries, particularly crashes occurring in, or because of, temporary traffic routing that can change daily. Some traffic plans fail to meet MUTCD standards and that failure could contribute to the cause of a crash.

A recent experiment with drone technology in relation to crash reconstruction proved to be a positive experience. A drone was used to collect images of the scene; and a 3D model was built with software. The technology produced amazingly clear and accurate scene details. It was also less time consuming and less expensive than traditional reconstruction methods. An exemplar reenactment proved to be of great value. It’s not for every case, but it should be considered.

Freight Recession Over?

DAT Solutions reported that last week the overall load to truck ratio was the highest it’s been since March 2014. Last week was also the second week in a row when rates rose on more than 70 of the top 100 dry van lanes. DAT suggests that the ratio and rates offer strong evidence that the freight recession is over and that spot rates may likely continue to rise, with the June California produce shipments making for a good start to Summer.