To Discipline or Not to Discipline: What to Do With Illinois’ New Pot Law?

Employers in Illinois will face a conundrum come January 1, 2020. Illinois legislature recently passed some of the most expansive marijuana laws that the United States has seen to date. The Cannabis Regulation and Tax Act (the “Act”) legalizes marijuana, making it a “lawful product” under the Illinois Right to Privacy in the Workplace Act which prohibits discrimination against employees for using lawful products. It raises the question of when disciplining an employee for marijuana use is acceptable compared to when the discipline may cross the line into prohibited discrimination.

The Act explicitly grants employers the right to maintain a drug-free workplace. Section 10-50 states in part:

• Employers may adopt reasonable zero tolerance or drug free workplace policies (the Act allows employers to define the extent of the “workplace” while providing guidelines of what shall standardly be considered part of the workplace).
• Employers are not required to allow an employee to use marijuana at work or while on call (the Act defines “on call” as when an employee is scheduled with at least 24 hours’ notice to be on standby or otherwise responsible for performing work-related tasks).
• Employers may adopt employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call. These employment policies may not be applied in a way that discriminates against employees for their use of marijuana outside the workplace.
• Employers may discipline their employees for using marijuana at work, possessing marijuana at work, or being under the influence of marijuana at work.

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Re-evaluating Standards for Admissibility of Photographs of Vehicular Collisions

In Illinois, historically, two predominating schools of thought regarding the admissibility of photographs of vehicular collisions have existed. The first school of thought, Baraniak v. Krauby, holds that when using photos to correlate vehicular damage to injuries, expert testimony is always necessary. The second school of thought, Fronabarger v. Burns, holds that vehicular collision photographs are admissible if the jury can properly relate the vehicular damage depicted in the photos to the injuries without the aid of an expert. In 2008, the Fronabarger court declined to follow the rigid rule from Baraniak.

In the 2019 case of Peach v. McGovern, the 5^th Circuit Court of Appeals in Illinois addressed this contentious issue once again. Here, the plaintiff and the defendant were involved in a car accident where the defendant rear-ended the plaintiff. The defendant claims that she was at a full stop behind the plaintiff, and she rolled into the plaintiff, “tapping” his truck, when she accidentally let her foot off the brake. The plaintiff contends that the defendant “plowed” into him at a speed of 20-30 miles per hour. After the accident, the plaintiff began experiencing severe neck issues, incurring over $23,000 in medical expenses.

At trial, plaintiff presented his pain management specialist as an expert witness, who opined that the plaintiff’s neck injuries were consistent with having been rear-ended in a motor vehicle collision, and even a very low speed collision could have caused this damage. Though the plaintiff had a degenerative disc condition, the expert testified that the plaintiff’s injuries were consistent with a sudden impact rather than the degenerative condition. The defendant did not present any expert witnesses, instead using the photographs depicting minimal damage to both vehicles in her closing arguments to argue that the plaintiff exaggerated the impact of the collision in order to relate his injuries to the collision. Continue reading »

#SocialMediaAsEvidence

Social media has officially taken over our lives. The statistics only confirm this fact. There are 2.3 billion active social media users across the world. Any given internet user has an average of five social media accounts. Facebook has over 1.71 billion users, YouTube has over 1 billion users, and WhatsApp has 900 million users. Every day, there are 60 billion messages sent through Facebook messenger and Whats-App. Three hundred hours of videos are uploaded on YouTube every minute. Snapchat users watch 6 billion videos on average a day.

It is clear that an individual’s accounts contain a plethora of intimate, personal details meant to be shared exclusively with friends or a fan base. But this begs the question, with this personal nature of social media, what can be excluded from court? The answer: potentially none of it. Continue reading »

UPDATE: Salaries Speak Louder than Words

Equal Pay Day was celebrated this month on April 2, 2019. This date symbolizes how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not stationary. In fact, the date occurs seventeen days earlier than it did in 2005. While there is a lot to celebrate with that achievement, there is still a long way to go to completely close the gender wage gap.

In fact, the Supreme Court recently faced the opportunity to potentially close this wage gap even further when it granted cert to Rizo v. Yovino. See Katherine Flett’s blog post titled “Salaries Speak Louder than Words” for more discussion on the case. In Rizo, the Ninth Circuit sitting en banc found that the use of salary history to establish a starting salary violated the Equal Pay Act, as it perpetuated the discriminatory nature of women historically being underpaid in almost all sectors of employment. Thus, reliance on prior pay could no longer be considered as an affirmative defense under the Act’s fourth catchall exception, “any other factor other than sex.” Continue reading »

Mandatory Arbitration in the Transportation Industry Takes a Blow from The United States Supreme Court

New Prime, Inc. v. Oliveira

On January 15, 2019, the United States Supreme Court ruled unanimously in favor of Dominic Oliveira, a purported Independent Contracted driver (“owner-operator”) for New Prime, Inc., an interstate trucking company, holding that Oliveira’s dispute need not be compelled to arbitration.

The case hinged largely on the Federal Arbitration Act (FAA), a 1926 law that requires courts to move cases involving interstate commerce disputes to arbitration.  However, the FAA includes an exception in Section 1 for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Oliveira filed a class action lawsuit, alleging that New Prime deprived its driver of legal wages.  New Prime sought to resolve the dispute via arbitration pursuant to Oliveira’s owner-operator agreement, which included a mandatory arbitration provision.

The first issue that the Court considered was whether a court or an arbitrator should decide whether the Section 1 exception applied.  In a unanimous opinion written by Justice Neil Gorsuch, the Court held that “a court should decide for itself whether Section 1’s ‘contracts of employment’ exclusion applies before ordering arbitration. After all, to invoke its statutory powers . . . to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§1 and 2 [of the FAA].” Continue reading »

Favorable Changes to 065 Agreements in Missouri Apply Prospectively Only

The Court of Appeals of Missouri’s Western District has issued an opinion holding that the recent amendment to Section 537.065 RSMo. may not be applied retrospectively, under the Missouri Constitution.  The Court of Appeals held in Desai v. Seneca Specialty Ins. Co., 2018 WL 3232697 (not released for publication as subject to motion for rehearing or transfer, etc.) that the trial court’s judgment should be affirmed in which the insurance company’s motion to intervene and motion for relief from judgment were denied.  The insurance company had argued that Section 537.065, as amended effective August 28, 2017, required that it should have received notice of a “065” agreement and the opportunity to intervene as a matter of right.

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Troubling Practices by Hospitals for Patients’ Access to Medical Records Uncovered

A new study published in JAMA Network Open and conducted by Yale University School of Medicine found troubling practices at U.S. hospitals relating to patients’ access to and provision of patients’ own medical records.  HIPAA’s Privacy Rule absolutely requires access to a medical record when properly requested under two circumstances:  (1) to the patient; and (2) to the Secretary of the Department of Health and Human Services.  Further, the patient must be provided records in his or her preferred format and for a reasonable processing fee.  Shockingly, only 53 percent of the hospitals surveyed provide patients an option to obtain their own medical records.  (Eighty-three top-ranked U.S. hospitals in 29 states were surveyed.)

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#MeToo Movement Spurs a 50 Percent Increase in EEOC Sexual Harassment Lawsuits

It comes as no surprise that one year after the rise of the #MeToo movement, more women are not just speaking up about sexual harassment in the workplace, but they are taking action in the courthouse.

According to a recent Equal Employment Opportunity Commission (EEOC) press release, the EEOC has already filed 66 harassment lawsuits in 2018, including 41 specifically citing sexual harassment – a 50 percent increase over 2017.

The EEOC also reported that it recovered almost $70 million for the victims of sexual harassment through administrative enforcement and litigation in 2018, up from $47.5 million in 2017. Interestingly, the overall number of discrimination charges are down, but charges for sexual harassment are up.

Victoria Lipnic, acting chair of the agency, commented during an interview with The Washington Post that she believe the increase is a result of the #MeToo movement, saying “This stuff happens everywhere. If you don’t address it in your workplace, you could find yourself on the receiving end of a federal enforcement [action].” Continue reading »

Missouri Health Care Legislation Update

MO HealthNet Program Expands Its Coverage:

• Section 208.151 (20) RSMo was expanded to include language allowing pregnant women who receive substance abuse treatment within sixty (60) days of giving birth, subject to appropriations and any necessary federal approval, to be eligible for MO HealthNet benefits for substance abuse treatment and mental health services for the treatment of substance abuse for twelve (12) additional months, as long as the woman remains adherent with treatment.
• With the passage of HB 1516, § 208.152(7), chiropractors are included in the MO HealthNet Program and now allows, . . . subject to appropriation, up to twenty (20) visits per year for services limited to examinations, diagnoses, adjustments, and manipulations and treatments of malpositioned articulations and structures of the body provided by licensed chiropractic physicians practicing within their scope of practice.

CEU Requirements Expanded:

• As amended, § 324.046 RSMo provides that any Missouri licensed healthcare professional may annually complete training in the areas of “suicide assessment, referral, treatment and management,” which may qualify as part of the continuing education requirements of the professional’s licensing authority with the Division of Professional Registration for renewal of licenses.

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Modernizing Healthcare Legislation in the Face of the Opioid Crisis

In 2016, opioid overdoses accounted for more than 42,000 deaths in America. It was estimated that 11.5 million people misused opioid prescriptions and 2.1 million people suffered from an opioid use disorder that same year.[1] From July 2016 to September 2017, the Center for Disease and Prevention found that opioid overdoses increased 30% in 45 states; however, the Midwest region alone saw a 70% increase.[2] On October 26, 2017, President Trump declared the opioid crisis a national Public Health Emergency under federal law.

While the federal government has responded by allotting six billion dollars to assist in the treatment and prevention of opioid overdoses, hospitals and medical providers still face barriers when it comes to the disclosure of medical information related to these overdoses due to conflicts between HIPAA and other federal law. Congress is working to resolve this conflict.

In 2017, the Department of Health and Human Services Office for Civil Rights (OCR) released a new HIPAA Guidance on when and how healthcare providers may share a patient’s health information with his or her family members, friends, and legal representative if the patient is in crisis. Current HIPAA regulations permit (but do not require) healthcare professionals to disclose health information without a patient’s consent if the provider determines that doing so is in the best interest of an incapacitated or unconscious patient and the information shared is directly related to the family or friend’s involvement in the patient’s healthcare or payment of care. This allows a provider to talk to the parents of someone incapacitated by an opioid overdose about the overdose, but generally does not allow disclosure of medical information unrelated to the overdose without the patient’s permission. Continue reading »