Blog Archives

Drug Testing
Let’s Talk About Drugs and Money, But Not in the Same Sentence (Quotes in the PBN)

Just recently, the Pacific Business News published a couple short articles where they included my thoughts about what we can expect during the upcoming legislative session.  The first article talked about possible medical marijuana legislation and the second article discussed Hawaii wage and hour law.

With regards to medical marijuana, I mentioned that we can expect to see bills that propose to expand the rights of medical marijuana patients in two ways.  First, medical marijuana is currently available only to individuals who have a debilitating condition, such as cancer, glaucoma, severe pain, or PTSD.  With the growing social acceptance of medical marijuana, we will likely see legislation opening up marijuana to conditions such as anxiety, stress, insomnia, and arthritis.  Second, we might also see measures that provide job protection for users of medical marijuana – meaning that an employer would be prohibited from firing an employee because the employee uses medical marijuana.

With regards to wage and hour law, we might see an increase in the salary threshold for Hawaii wage and hour exemption, which is currently set at $2,000 per month (in other words, an employee who is guaranteed a salary of $2,000 per month is exempt from Hawaii minimum wage and OT requirements, although they still need to comply with federal law).  Such legislation is especially likely in light of the DOL’s proposed increases to the salary basis for the FLSA’s exemptions.

You can read a copy of the articles here:  Medical Marijuana and Wage and Hour Exemption.

 
Hawaii Insurers Council Workers’ Comp Panel

Last week, I had the privilege of speaking on a panel for the Hawaii Insurers Council to discuss current workers’ compensation trends.  The panel discussion was a part of the Insurers Council’s two-day 2015 Annual Planning Meeting.

Clearly, workers’ compensation is a very hot topic, both locally and nationally.  And, with the costs of running a business being incessantly on the rise, employers are constantly concerned about increased costs and obligations under Hawaii and federal labor and employment laws.

For this particular panel discussion, I discussed some of the hot topics I thought would be of particular interest to employers and insurance carriers.  For example, medical marijuana is currently a very hot topic, especially with the passage of Act 241 SLH 2015, which legalized medical marijuana dispensaries in the State of Hawaii.  (Although medical marijuana has been legal in Hawaii for 15 years, individuals had no way of legally purchasing medical marijuana.  Rather, they either had to grow their own or purchase it from the black market.)  With medical marijuana being readily available within the next year or so, employers in Hawaii will have to face some key questions – i.e. can they terminate the employment of an employee who uses medical marijuana and are they required to cover the costs of medical marijuana for the purposes of workers’ compensation treatment?

Another topic I discussed is the possible vulnerability of the “exclusive remedy” provision for workers’ compensation cases, especially in light of such legal challenges that have been posed on the mainland.  In addition, there is also a growing trend for workers’ compensation opt-out provisions, whereby an employer can be excused from providing workers’ compensation insurance if they provide equivalent benefits in some other way.

Finally, due to the lack of time (there were four panelists total for just an hour of discussion), I didn’t have a chance to discuss issues related to the employee vs. independent contractor dichotomy in the context of the new “sharing economy” (e.g. Uber, Yelp, etc.)  This discussion is certainly worthy of its own blog post, which I will surely write one day, but one thing is clear – the way people obtain certain services is changing rapidly, and employers need to keep apprised of their legal obligations in light of such changes.

 
Employers Can Terminate Employees For Medical Marijuana Use, In Oregon

The Oregon State Supreme Court recently issued a decision in Emerald Steel Fabricators v. Bureau of Labor and Industrial Relations (Oregon, April 15, 2010), which addressed whether employers could terminate an employee for using medical marijuana.

The court’s decision?  Yes!

Oregon has joined California and Washington in ruling that employers can terminate employees for using medical marijuana.  The rationale is that while statutes decriminalizing the use of marijuana for medical purposes protects employees from criminal prosecution, the same laws do not prevent employers from terminating an employee for violating a company’s anti-drug policy.

In addition, the employee in question was also found using medical marijuana in an illegal manner anyway.

 
New Employment Laws for 2007
The following are significant labor and employment bills passed by the Hawaii State Legislature in 2007.

Act 265 (Family Leave)This bill provided that only employee may elect to substitute their available paid leave for leave taken under Hawaii Family Leave Law. (Effective July 1, 2007)Act 179 (Drug Testing) – This bill allows employers to use on-site drug screening tests, if they are manufactured in an ISO 13485 certified facility and used according to the manufacturer’s instructions. This bill eliminates the prior requirement that one-site tests could be used only for pre-employment screening. This bill also requires, however, that any positive test result is followed within four hours by a confirmatory test at a state licensed laboratory. (Effective July 1, 2007)

Special Session Act 5 (Dislocated Workers) – Amended the state Dislocated Workers Act to require notice of “divestiture” involving sale, merger, or other change of ownership transaction. Also, defined covered “closing” to include bankruptcy, loss of lease, or other close of business transaction. (Effective upon approval)