Missouri’s New Marijuana Amendment: Workplace Testing and Employees “Under the Influence”

Missouri’s newly approved constitutional Amendment 3 regarding marijuana use will go into effect on December 8, 2022.  With a total of 49 pages, the Amendment 3 has two sections: revised Section 1 (former Amendment 2), which focuses on medicinal use, and Section 2, which focuses on marijuana recreational use.

Employers have long had Drug-Free Workplace policies that test employees for various illegal drugs.  Common tests are pre-employment, random, reasonable suspicion, and fitness for duty/return to work/follow up after rehab or last chance.

The original Amendment 2 regarding medicinal use was passed in 2018.  Employers responded to this amendment in several ways including choosing to keep their policies the same but providing reasonable accommodation under the disability statutes or to simply quit testing for THC altogether except for reasonable suspicion.

Now, employers will have to go back to the drawing board.

Section 1: Medicinal Use of Marijuana

Section 1 of Amendment 3 revises the original Amendment 2 in its entirety. One of the revisions/additions includes adding a nondiscrimination in employment section. It prohibits employers from discriminating against “medicinal cardholders” based on off-duty use unless the person was “under the influence of medical marijuana” at or during work. Further, it specifically prevents employers from relying solely on a positive THC test result to terminate a medicinal cardholder unless the person used, possessed, or was “under the influence” of medical marijuana at or during work.

There are exceptions to the “under the influence test” for medicinal cards for the following situations:

1. If the employer would lose a monetary or licensing related benefit under federal law,
2. If the employee has a job where “legal use of a lawful marijuana product affects in any manner a person’s ability to perform job-related employment responsibilities, or
3. If it conflicts with a bona fide occupational qualification that is reasonably related to a person’s employment.

This exception protection does not appear to apply to “recreational” users who do not have a “medicinal card.”

There is no readily available test to scientifically confirm whether someone is “under the influence of marijuana” nor what the threshold of impairment is under BAC for alcohol. How long a person will test for marijuana depends on a multitude of factors but is not limited to: Continue reading »

Updated EEO “Know Your Rights” Poster Now Available

On October 22, 2022, the Equal Employment Opportunity Commission issued an updated EEO poster, a copy of which is attached to this blog post. This is to replace a previous EEO poster and addendum issued by the EEOC in 2019.

In many cases, employers have posted what is known as a 6-way poster, which sets forth an employee’s rights under various federal laws, including Title VII and the Americans with Disabilities Act. You may wish to acquire an updated 6-way poster, or you can simply post the October 2022 poster next to the 6-way poster, or over the section on Equal Employment Opportunity on existing 6-way posters.

Who is Required to Post this Notice?

Any employer with more than 15 employees is required to post the updated notice.

When Should I Put This Up? Continue reading »

Should Your Contracts Anticipate Another Pandemic?

The widespread impact of the COVID-19 pandemic caused many businesses to evaluate whether they are obligated to perform under certain contracts, or whether they can invoke unique contract provisions to excuse a possible or likely failure to perform. While no business wants to consider a downturn due to another worldwide health or other catastrophe, the last several years have made clear it could happen, and there are ways to minimize losses.

Specifically, a “force majeure” clause is a contract provision that excuses a party’s performance of its obligations under the contract when certain circumstances arise beyond the party’s control, and making performance inadvisable, commercially impracticable, illegal, or impossible. These clauses vary in language and length, but many clauses include events like fire, war, unrest, epidemic or pandemic, famine, or otherwise “acts of God.”

There are examples of businesses seeking to excuse or delay performance due to COVID-19.  One such case was Pacific Collective, LLC v. ExxonMobil, in California, in which a developer asked the court to prevent ExxonMobil from selling a property to other buyers, claiming that California’s lockdown during the pandemic was an act of God that prevented the developer from completing the multi-million-dollar property acquisition. Continue reading »

Your Business Needs an Estate Plan, Too

Yes, small businesses need estate plans. Business estate plans determine what happens if the owner can no longer operate the business due to death or disability. A plan must be in place to address either potentially devastating situation.

Businesses with multiple owners commonly use Buy/Sell Agreements for such a plan. These provisions can be inserted into the Operating Agreement if the business is a limited liability Company (LLC) or can be provided in a separate agreement if the business is a corporation or partnership. There are two general forms used:

• Buy/Sell Provisions: Remaining owners (whether shareholders, members, or partners) buy the deceased owner’s interest from the estate. A life insurance policy can provide funds for the purchase.
• Redemption Agreement: The company buys the deceased owner’s interests from the estate. The remaining owners own the company. Proceeds from the sale go to the estate. This arrangement can also be funded by a life insurance policy.

Because of the tax and legal considerations involved, it is critical that these plans be thought out and planned in advance with the advice and input of the business’ attorney, accountant, and insurance professional.

If no agreement exists, the remaining owners must deal with the deceased owner’s estate, possibly controlled by the spouse, children, or other persons not involved in the business. This can be very disruptive. The business may have to be sold or liquidated to the detriment to all concerned. The value of the business is not passed on to the estate. The remaining owners must deal with a hostile party and potential litigation which could destroy the business.

The loss of an owner can also cause a vacuum in the management of the company. Continue reading »

Sexual Harassment Policies for the Trucking Industry: Best Practices

The current over-the-road driver shortage has created increasing pressures for trucking companies of all sizes. As a result, some trucking companies may be reluctant to terminate – or to not hire – drivers who have been accused of sexual harassment. But this reluctance may not be a good idea in light of Title VII.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and retaliation against any employee who complains of sexual harassment to an employer. In addition, Title VII complaints can be filed in any judicial district where: the harassment was alleged to have been committed; the employment records relevant to the harassment claim are maintained and administered; the complainant worked; or if the employer cannot be “found” in one of the first three districts, the complaint can be filed in the district of the employer’s principal place of business.

Continue reading »

Revisions to Punitive Damages in Missouri

Changes have been made to punitive damages claims in civil actions filed in Missouri on or after August 28, 2020.

Under the revisions, Missouri Revised Statute Section 510.261 now prohibits parties from making a claim for punitive damages in their initial pleading in a civil action. Any claimant who wishes to add a punitive damages claim to a civil action must file a written motion to amend 120 days prior to the pretrial conference, or, if no conference is scheduled, 120 days prior to trial, seeking leave to bring a claim for punitive damages. The claimant seeking leave must provide exhibits, affidavits, and discovery materials establishing a reasonable basis for the recovery of punitive damages. Any party opposing leave may submit admissible evidence to demonstrate that the standards for a punitive damage award have not been met. The court may grant leave to add the punitive damages claim if it determines that a judge or jury could reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damage award have been met. This statute has the effect of preventing meritless claims being made in litigation as well as saving both the time and money of the parties involved.

Substantive Changes and Clarifications

After clearing the hurdle of obtaining leave to bring a punitive damages claim, a claimant must satisfy the statute’s requirements to receive an award of punitive damages. To do so, RSMo  510.261(1) requires the claimant to prove by clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The revised statute does three things:

1. Codifies the original common law regarding punitive damages. In Klingman v. Holmes, 54 Mo. 304, 308 (1873), the first Missouri Supreme Court case allowing an award of punitive damages, the Court held that exemplary damages are only appropriate where an evil intent has manifested itself in acts. The court reasoned that under common law there must have been intent, or positive proof of malice, to justify granting punitive damages.
2. Clarifies the requisite mental state of the defendant, to intentionally harm without cause or with a deliberate and flagrant disregard for the safety of others. This gives the judge or fact finder a clear standard for determining whether the claimant is entitled to punitive damages.
3. Codifies the “clear and convincing” burden of proof standard. The Missouri Supreme Court has previously adopted this standard, but it had yet to be codified.[1]^,[2] The clear and convincing burden of proof standard falls within the middle ground of the ordinary civil burden of proof standard, preponderance of the evidence, and the criminal law standard, beyond a reasonable doubt.

Nominal Damages Continue reading »

Illinois Legislature Passes Bill Allowing for Prejudgment Interest on Personal Injury Claims

Illinois law traditionally has not allowed for prejudgment interest on personal injury claims, but that rule is about to change. On January 13, 2021, the Illinois legislature passed House Bill 3360. The original purpose of the bill was to amend Illinois law relating to mortgage foreclosures and abandoned residential property. However, Senate Floor Amendment No. 1 modified the bill to introduce prejudgment interest for personal injury claims in Illinois.

Prejudgment interest on personal injury actions was not available under the common law, so generally it is only allowed when authorized by a statute. Illinois HB 3360 provides that in all actions for personal injury or wrongful death, the plaintiff shall recover prejudgment interest on all damages set forth in a subsequent judgment at the interest rate of 9% per annum.

Of note is when prejudgment interest begins to accrue under the bill. Among the jurisdictions allowing prejudgment interest on personal injury claims, a plethora of approaches has emerged for determining the starting point. Some states require the rejection of a formal demand with specific requirements (such as Missouri, § 408.040 RSMo.), others from the date of the loss (such as Florida, Fla. Stat. § 687.01), or still others from the date of the filing of the complaint (such as Michigan, Mich. Comp. Laws § 600.6013). Continue reading »

COVID-19 Vaccines and the Workforce – Mandatory or Encouraged?

Getting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.

Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.

Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours. Continue reading »

FMCSA’s New Rules Offer Improved Flexibility to Commercial Motor Vehicle Drivers

For years, commercial drivers and transportation companies have urged the Federal Motor Carrier Safety Administration (FMCSA) to provide greater flexibility in the hours of service (HOS) regulations. This call grew even louder following the implementation of the electronic logging device (ELD) mandate. This summer, FMCSA finally announced revisions to the hours of service regulations. The new rules went into effect on September 29, 2020.

The FMCSA’s rule changes affect four areas: the short-haul exception; the adverse driving conditions exception; the 30-minute break requirement; and the sleeper berth provision. Additionally, although it is not a formal rule change, the FMCSA issued new guidance regarding personal conveyances. These updates will help provide flexibility to an industry that often grapples with rigid regulations that have failed to keep pace with reality.

Short Haul Exemption

The short-haul exemption applies to drivers who report at the same location at the start and end of each workday and operate in a limited area. These drivers can keep a time record in place of the more burdensome HOS log. FMCSA’s new rule increases the geographic restriction from 100 air-miles to 150 air-miles. This change will allow motor carriers utilizing this exemption to expand their range, and some drivers whose regular routes previously prevented them from taking advantage of the exemption now can do so. Further, the on-duty limit for short haul operations has increased from 12 hours to 14 hours. Continue reading »

The Trucking Industry is on the Road to Clarity for Driver Classification Issues

The trucking industry has commonly used the owner-operator model for interstate commerce.  Whether individual state labor laws, which typically require labor protections such as minimum wage, sick leave, and unemployment and workers’ compensation benefits, apply to truck drivers generally depends on their status as employees or independent contractors.  California attempted to provide a mandatory test for determining whether a driver is an employee or independent contract in its Assembly-Bill 5 (“AB-5”).

For three decades prior to the enactment of AB-5, California courts relied on a test based on the decision in S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations that considered the following factors when determining whether a worker was an employee or independent contractor: (a) the right to control work; (b) whether the worker is engaged in a distinct occupation or business; (c) the amount of supervision required; (d) the skill required; (e) whether the worker supplies the tools required; (f) the length of time for which services are to be performed; (g) the method of payment; (h) whether the work is part of the regular business of the principal; and (i) whether the parties believe they are creating an employer-employee relationship.^[1] In April of 2018, the California Supreme Court replaced the Borello classification test with the “ABC test,” by its decision in Dynamex Operations West v. Superior Court.^[2]  The AB-5 test essentially codified the “ABC test” established by Dynamex.

However, on December 31, 2019, the day before AB-5 was set to take effect, the Southern District of California granted a temporary restraining order in California Trucking Association, et al v. Attorney General Xavier Becerra, et al., temporarily enjoining the State of California from enforcing AB-5 as to any motor carrier operating in California. ^[3] Continue reading »