What issues and trends do we see on the horizon for employers in 2020? Here are some hot employment law issues that may impact your organization or give you food for thought. 

• Arbitration Provisions. The Supreme Court has made it clear that class action waivers in employment agreements requiring employees to arbitrate legal disputes are valid and enforceable. More and more employers are using such arbitration agreements to limit liability exposure for employment law claims. Is this a good option for your company?
   
• Marijuana Legalization. Colorado has legalized recreational marijuana; Oklahoma and Missouri have legalized medical marijuana; and Nebraska has decriminalized marijuana usage. What does the future hold for Kansas? Even aside from potential legal changes, some Kansas employers have decided to stop testing for marijuana use in light of the tight labor market and changing public perceptions.
   
• Ban the Box. Kansas state employers under Governor Kelly's jurisdiction and employers in Kansas City, Missouri, are now prohibited from asking about criminal history until after a conditional offer has been made. Many other states and cities have also “banned the box.” As an employer, should you continue to use criminal history to automatically disqualify job applicants?
   
• LGBTQ Protections. In 2020, the U.S. Supreme Court is expected to decide the hotly debated question whether Title VII’s prohibition of discrimination based on sex extends to sexual orientation and/or      Continue Reading...

The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.

With the expansion of legalized recreational marijuana in several states and localities, there will continue to be discrepancies between legal usage of a product and the consequences for that usage under employer policies for drug testing.  In some cases, this tension may come from the use of other substances that are not exactly marijuana. 

For example, an employee may test positive for the use of marijuana in cases where they are ingesting products containing cannabis.  These products can include items like hemp oil as well as other edible type items.  If an employee has sufficient levels of a controlled substance in their system, a positive test result can occur.  Unlike other situations where a medical review officer (MRO) can justify the positive result, the scenario with hemp and other cannabis related products is not justifiable.  As a result, employers may see more cases of positive drug test results due to what employees perceive to be acceptable uses of products.

The inability of an MRO to excuse a positive result triggered by hemp oil may be something employers want to address with employees to avoid these difficult situations.  As legalized recreational marijuana becomes more common and the uses of various cannabis related products grows, these situations are more likely to become more commonplace.

Most employers with drug-and-alcohol-testing policies require employees suffering a workplace injury to be tested for drugs or alcohol.  It is common for these post-injury tests to be conducted at the same time the employee receives medical attention for the injury.  These types of testing requirements make sense and are generally a sound practice.  The key for employers is ensuring these policies are implemented in an effective yet responsible manner. 

From the category of its-too-crazy-to-be-made-up, a lawsuit on this topic was recently filed in Dallas.  In that case, an employee suffered a workplace injury after falling from an undisclosed height.  The employer had a practice of drug testing employees injured on the job and allegedly required a drug test.  The minor problem in this case -- the employer is alleged to have left the unconscious worker lying on the floor for two hours waiting on the drug test to be administered.  The employer then called 911, and the employee was taken by the paramedics to a hospital, where the employee later died.  The plaintiffs allege the long delay in receiving treatment led to the employee's death.  Click here for the story.

Keep in mind now that, as with any lawsuit, the initial claims made by the plaintiff are not always accurate, and in this case I hope that is exactly the situation.  For those of you that require a drug test following a workplace injury, make sure you always look first to the employee's health and safety before focusing on the testing procedure.