by Gary Stedronsky | Aug 28, 2018 | Board Policy & Representation, Labor and Employment, School Management, Unemployment, Workers’ Compensation
In 2016, Ohio became the twenty-sixth state to legalize the use of marijuana for certain specified medical conditions. Medical marijuana facilities and patient registries are expected to be fully operational in the near future. School districts should be aware of how the medical marijuana law might impact current policy and operations.
Overview of State Law
Under state law, individuals who suffer from any of twenty-one identified medical conditions (listed below) may register with the state to use medical marijuana. In addition to these twenty-one conditions, the state medical board may be petitioned to add other conditions to this list.
Qualifying Medical Conditions
|
| AIDS |
Inflammatory bowel disease |
| Alzheimer’s disease |
Multiple sclerosis |
| ALS (“Lou Gehrig’s disease”) |
Pain that is chronic, severe, or intractable |
| Cancer |
Parkinson’s disease |
| Chronic traumatic encephalopathy |
Posttraumatic stress disorder |
| Crohn’s disease |
Sickle cell anemia |
| Epilepsy or seizure disorder |
Spinal cord disease or injury |
| Fibromyalgia |
Tourette’s syndrome |
| Glaucoma |
Traumatic brain injury |
| Hepatitis C |
Ulcerative colitis |
| HIV |
|
When registering with the state, an individual’s application must be accompanied by a licensed physician’s recommendation. Caregivers of medical marijuana users must also register with the state to avoid criminal prosecution for possession of medical marijuana and to assist registered patients. Medical marijuana may be used in oils, tinctures, plant material, edibles, patches, and vaporizers; however, smoking marijuana is prohibited.
Federal Laws and Regulations
Regardless of Ohio’s legalization of marijuana for medical purposes, marijuana is still a prohibited substance under federal law. The Americans with Disabilities Act requires that employers provide reasonable accommodations to employees with certain disabilities so that they may perform the requirements of their job; however, the ADA does not require employers to permit the use of medical marijuana as a reasonable accommodation. Similarly, the Family Medical Leave Act does not require employers to grant leave for employees so that they may obtain medical marijuana treatments for a serious health condition. Federal law does not interfere with an employer’s right to maintain a drug-free workplace, to implement a zero-tolerance drug policy, or to subject an employee to a drug test. Currently, pending federal legislation to enact the STATES Act would give states the freedom to decide how to legalize or regulate marijuana.
School District Employees
Ohio employers are not required to permit their employees to use medical marijuana at work and may continue to take adverse employment action against employees for their use of medical marijuana – even if the employee has a recommendation from a doctor for use and uses the marijuana outside of work hours. School districts may elect to make accommodations and modify policies to allow employees to use medical marijuana in some circumstances, although employees must continue to comply with state and federal regulations that prohibit use of drugs in safety-sensitive positions. School districts should be clear that employees may not be under the influence of marijuana when they are responsible for the safety or supervision of students and staff.
For workers’ compensation purposes, if an injury occurs at the workplace and the employee tests positive for marijuana, a rebuttable presumption arises that the use of marijuana was the cause of the injury, even if the employee has a recommendation for use from a doctor. To overcome this presumption, the employee must then demonstrate that the marijuana use did not factor into the cause of the injury. If unsuccessful, the employee would not be eligible to receive workers’ compensation benefits. Similarly, with unemployment compensation, an employee’s use of medical marijuana is just cause for termination, and no benefits would be provided to an employee in this scenario.
Ohio’s law does not prohibit an employer’s right to refuse to hire a job applicant because of use, possession, or distribution of medical marijuana.
Patient Protections
A very small section of the Revised Code delineates the rights of patients who are registered with the state to use medical marijuana. Patient rights include the right to use and possess medical marijuana, up to a maximum of a 90-day supply; to possess any paraphernalia or accessories for the use of medical marijuana; and to avoid arrest or criminal prosecution for obtaining, using, or possessing medical marijuana and the necessary paraphernalia and accessories. Registered caregivers have the same rights to possess medical marijuana, paraphernalia, and accessories, but do not have the right to use medical marijuana. Operating a vehicle is prohibited while under the influence of medical marijuana. No minimum age is specified for patients to use medical marijuana.
Activities Prohibited Near Schools
No medical marijuana cultivator, processor, retail dispensary, or testing laboratory may be located within five hundred feet of a school, except for academic research institutes.
by Megan Bair | Jun 27, 2018 | Labor and Employment
Today the U.S. Supreme Court ruled in Janus v. AFSCME Council 31 that a public sector collective bargaining agreement that includes an agency fee clause (also referred to as “fair share” fee) that requires all employees of the unit to pay union dues is a violation of a public employee’s right to freedom of speech and must cease immediately.
This long-awaited decision overturns the 40-year-old framework established by the Court in Abood v. Detroit Board of Education, which permitted the collection of public sector agency fees from all unit employees to the extent the fees covered costs related only to collective bargaining, contract administration and grievances. 431 U.S. 209 (1977).
Effective immediately, fair share fees may no longer be lawfully collected from public sector employees. Agency fee arrangements that have been negotiated in a public sector collective bargaining agreement must cease immediately. Failure to do so may nullify any indemnity clauses in a collective bargaining agreement and may result in civil liability. This Supreme Court decision takes precedence over any contractual bargaining language.
The Janus ruling does not change the collection of dues from current union members. Dues from association members should continue to be collected without interruption. Union members who wish to make changes to their membership should follow the regular procedure of providing the union with their notification to withdraw.
Prior to today’s decision, 22 states plus Washington, D.C. allowed public sector unions to charge fees to nonmembers for collective bargaining activities.
It remains to be seen whether this landmark decision will represent a significant change to the collective-bargaining rights of public sector employees, or simply provide a public employee a choice to which the vast majority will respond by remaining dues-paying members.
by Ryan LaFlamme | May 18, 2018 | Labor and Employment
Ohio’s Tenth District Court of Appeals recently overturned a decision of the Ohio Court of Claims in a case alleging gender discrimination. The Court of Claims had rendered summary judgment in favor of the employer, the Ohio Department of Transportation (ODOT), but the Court of Appeals found that the trial court overstepped its authority in making that decision. The Court of Appeals sent the case back to the Court of Claims, presumably for either trial or settlement.
The plaintiff, a truck driver named Anne Eschborn, was the only female employee at her assigned post. She was terminated from employment and was told the reason was lack of work. However, she later received a letter stating that she had been terminated for poor performance, for using foul language, and for sexual harassment. She admitted to using foul language in a few instances at work and that these were sexual in nature.
At the outset, the appellate court noted the legal standard in discrimination cases in Ohio. The analysis, often cited as the “McDonnell Douglas burden shifting,” goes as follows: If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to prove that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. If the employer does so, the burden of proof shifts back to the plaintiff, who then must prove that the employer’s reasons are merely a pretext for discrimination.
A plaintiff can establish a prima facie case either directly or indirectly. Directly, a plaintiff may present evidence of any nature to show that the adverse employment action taken by the employer was more likely than not motivated by discriminatory intent. Indirectly, a plaintiff may show that “(1) he or she was a member of a statutorily protected class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by, or that the removal permitted the retention of, a person not belonging to the protected class.”
The Court of Claims found that Eschborn failed to present a prima facie case of discrimination. The Court of Claims determined that Eschborn could satisfy the first three elements of her prima facie case but could not satisfy the last element because the evidence was insufficient to support the conclusion that a person outside of the protected class replaced her or that other comparable, nonprotected persons were treated more favorably.
The evidence showed that ODOT assigned another employee to the post that Eschborn occupied prior to her termination. The trial court held that the evidence merely established a redistribution of work, not a replacement (with someone outside of the protected class). Therefore, the Court of Claims granted summary judgment to ODOT.
Summary judgment is a device used to terminate litigation before trial. It is granted sparingly because of the difficult burden of proof. In order to be granted summary judgment, a party must show that no dispute exists regarding all of the facts and evidence in the record, and that reasonable minds could come to only one conclusion, against the other party.
Generally, in a civil trial, the jury decides what the facts are, and the judge applies the law to those facts. The Court of Claims does not use juries, and so judges are the triers of fact. In this case, the plaintiff argued that the judge was making factual determinations that should have been left to a trier of fact.
Here, the issue is that no trial took place at which the judge could weigh the evidence presented to make a factual determination. Reasonable minds could differ on the meaning of the evidence about the replacement. Therefore, the two parties were in dispute of the facts, which is a genuine issue for a trial. If any genuine issues exist for the trier of fact to consider, a court cannot grant summary judgment. The Court of Appeals therefore agreed with the plaintiff, finding that the trial court had overstepped its authority in granting summary judgment. The Court of Appeals also pointed to evidence in the record that similar male employees were not disciplined for using foul language.
While this case is certainly better for law students studying summary judgment than for school administrators, the case facts contain some practical lessons regarding employment law, discrimination, and harassment. First, without the shifting explanations for termination, the employee’s claim of discrimination would likely not have been made. Employers must be clear in their communications to employees, especially communications of a disciplinary nature. Make sure that department heads and supervisors are on the same page regarding an employment matter before moving forward. Second, employers should keep in mind that discipline must be uniform among employees to prevent claims of better treatment of persons outside of a protected class. It is difficult for an employer to credibly state that foul language was a basis for termination, and not a pretext for discrimination, when other similar employees are not disciplined for similar behavior.
– Eschborn v. Dept. of Transp., 2018-Ohio-1808.
by Bronston McCord | Apr 11, 2018 | Board Policy & Representation, Labor and Employment
The U.S. Department of Labor (DOL) has issued an official statement of Wage and Hour Division policy concerning athletic coaches for public schools. Opinion Letter FLSA2018-6, issued on January 5, 2018, is an exact reproduction of a previous Wage and Hour Division opinion that was issued in 2009 and then rescinded less than two months later.
This Opinion Letter states that community members who coach public school athletic teams qualify as teachers under the Fair Labor Standards Act (FLSA) and are therefore exempt from FLSA’s minimum wage and overtime pay provisions.
It is important to note that this exemption applies only to coaches who are not employees of the school district. It does not apply to coaches who are employed in another nonteaching capacity by the school district. In the latter case, these coaches are not exempt from the FLSA’s minimum wage and overtime pay provisions.
The DOL explains that coaches spend most of their time instructing student athletes in the rules and fundamentals of their respective sports. When not instructing players, coaches recruit students, supervise them during trips to and from games, discipline them when necessary, and account for their equipment. “Coaches qualify for the exemption if their primary duty is teaching and imparting knowledge to students in an educational establishment.”
Furthermore, a teaching certificate is not required to qualify for this FLSA exemption, nor is a certain minimum education or degree. “Thus, coaches whose primary duty is teaching qualify for the exemption whether or not they hold a teaching certificate or an academic degree.”
Therefore, based upon this new guidance, a school may pay its coaches as it deems appropriate so long as they are not otherwise employed by the district in a nonteaching capacity.
by Pamela Leist | Mar 30, 2018 | Labor and Employment, Legislation
The Ohio House of Representatives is expected to vote on a bill that would create a license for individuals to serve as substitute pupil services personnel. HB 491 passed in the House Education and Career Readiness Committee on March 21 by a vote of 16-0. The bill enacts a new section of the Revised Code (3319.2210) that would require the state board of education to issue a substitute license to individuals who meet certain criteria and wish to serve as substitutes in the following positions:
- Speech language pathologists
- Audiologists
- Registerd nurses
- Physical therapists
- Physical therapist assistants
- Occupational therapists
- Occupational therapist assistants
- Social workers
The current version of HB 491 would require the superintendent to request and recommend an individual for the new license. Any candidate who wishes to obtain the license must submit both a copy of a valid occupational license as well as all materials necessary to complete a criminal background check. The license may include a term of 1–5 years as determined by the state board. The state board is prohibited from requiring any additional qualifications beyond those listed in the statute. A school district may only hire a substitute license holder in a substitute capacity.
The Ohio House will meet again during the second week in April, when it is expected to vote on this bill.
by John E. Britton | Nov 21, 2017 | Labor and Employment
The Ohio Supreme Court recently determined that a substitute custodian was not a “regular nonteaching school employee,” a designation that would have entitled him to better wages and benefits. The employee, substitute custodian Kurt Singer, demanded that the Fairland Local School District recognize him as a regular nonteaching employee since 2006 and pay him the additional back wages and benefits that he would have been qualified for under that designation.
Ohio law does not define “regular nonteaching school employee.” Under R.C. 3319.081, “regular nonteaching school employees” in local school districts, including hourly and per diem employees, are under a one-year contract for their first year, then a two-year contract for their second and third years. If renewed, a subsequent contract is a continuing contract, which includes other benefits such as paid leave as well as termination only for just cause. Because Singer worked hours and performed job functions similar to contractual custodians, he argued that he met the definition of a regular nonteaching school employee.
From 2006, when Singer was hired as a substitute custodian, to June 2016, every day that Singer worked for the district was recorded as “substituting.” Alleging that he had asked for a contract but was denied, he requested benefits and back wages to the 2009–2010 school year, which is when he would have received continuing contract benefits if the contract was granted. Singer asked the Supreme Court to compel Fairland Local to recognize him as a regular nonteaching employee and to provide a continuing contract.
The court found that Singer did satisfy the requirements of working full-time and at least 120 days within a school year for the first seven years, but he did not satisfy the requirement of being a “regular” employee. In the absence of a statutory definition of “regular,” the court turned to Black’s Law Dictionary to find the definition “steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation.” The court examined Singer’s employment and found that it was not regular in terms of days of service, hours, and school-building assignments. Additionally, Singer worked anywhere from four to ten days in a pay period, and during many pay periods he worked even fewer than four days.
Additional facts leading to the court’s decision include that Singer had no regular location assignment but worked routinely in any of the district’s four buildings – sometimes in more than one building in the same day, and other times in the same building on a daily basis. Furthermore, Singer was able to turn down opportunities to substitute, and at times he did so.
In consideration of these facts, the court issued a 6-1 decision holding that “we cannot conclude that Singer’s employment was in any meaningful way ‘regular.’”
– State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.
