As a new year approaches, now is a good time for employers to assess what lies ahead. Here are two hot topics to consider for 2018.
The Good News is That Not All Men Behave Badly
Sexual harassment and the #MeToo Movement is the most visible employment issue in corporate America. No industry has been immune. The intense concentration of reported incidents of sex harassment has shocked America’s conscience. Daily, we have seen one determined victim after another come forward to shed a spotlight on their experience. The emotional turmoil, business disruption and injury to reputations cannot be overstated. Today, no high-powered executive’s job or compensation is safe if he or she engages in sex harassment.
So for 2018, employers would be wise to revisit their anti-harassment policy and audit its effectiveness. Ask: does the policy comply with current best practices? Do confidentiality measures empower employees to come forward without fear of reprisal? Is there guidance for handling off-duty sexual conduct, “years ago” sexual conduct, and obvious “false reporting” for an ulterior motive? Is the policy stopping the offending behavior? If not, why not? Are employees—especially executives—being held accountable for bad behavior in a meaningful and proportionate way?
Consider reinvesting in leadership “buy-in” concerning the anti-harassment policy by conducting C-Suite, manager, and supervisor meetings and “refresher” trainings. Pay special attention to the possible backlash of males shutting down and shunning their female colleagues because they are now confused or fearful about how to act around them. Such backlash can lead to other forms of discrimination if men start “working around” their female colleagues.
Marijuana, Marijuana Everywhere
In 2016, Ohio legalized medical marijuana for about 20 qualifying medical conditions, including epilepsy, cancer, fibromyalgia, CTE, chronic pain, HIV/AIDS, and PTSD. Since then, Ohio has been creating a regulatory framework for its new medical marijuana industry: the Medical Marijuana Control Program. The MMCP may be operational by the fall of 2018. Once it is, qualified individuals will be able to legally buy and use medical marijuana in Ohio.
As a reminder, under Ohio’s new law, employers will not need to accommodate an applicant’s or employee’s use, possession, or distribution of medical marijuana. Ohio employers that wish to maintain “zero-tolerance” policies will still be able to discharge, discipline, or choose not to hire a person due to use, possession, or distribution of medical marijuana.
But, will Ohio employers want to maintain such a strict stance? In certain circumstances, Ohio employers may face first-impression legal challenges under federal laws, such as under the ADA’s “perceived disability” protections or the FMLA’s caregiver rules. Even if the employer prevails, the legal costs incurred will not feel like a win.
Also, given the wide availability of medical marijuana in Ohio and many other states, some Ohio employers have inserted an exception in their policies for medical marijuana use. This is a practical business approach for some employers to respond to employee relations concerns and to ensure there are enough viable candidates to fill their work forces. Will this approach provide a competitive edge?
As we roll into 2018, consider revisiting your policy to ensure the policy meets the company’s business needs and clearly states the company’s position on medical marijuana.
Kevin Griffith is an experienced employment lawyer and the Office Managing Shareholder of Littler’s Columbus, Ohio office. Ben Mounts is an Associate who recently moved to Columbus and joined Littler after practicing in West Virginia.