Legal Updates

Are Zero Tolerance Drug Testing Policies About to Go Up in Smoke?

In an important new decision, the Massachusetts Supreme Judicial Court recently held that a qualifying patient who has been terminated from employment for testing positive for marijuana as a result of her lawful medical marijuana use may state a claim of disability discrimination under that state’s anti-discrimination statute. As we blogged with respect to a after a similar decision in Rhode Island, this holding has significant implications for employers that drug test for marijuana use because 29 states plus the District of Columbia have enacted legislation legalizing medical and/or recreational marijuana use.

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Talking Tax – Issue 86

Case law

AAT rejects Taxpayer’s claim for input tax credits

In GH1 Pty Ltd (in Liquidation) v FCT [2017] AATA 1063, the Administrative Appeals Tribunal affirmed the Commissioner of Taxation’s decision to disallow input tax credits (ITCs) totalling $817,207 for bulk earthwork services provided in relation to a development project.

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Is that reasonable? The impact of federal discrimination laws when managing injured workers

A recent Federal Circuit Court decision1 reminds employers that the obligation under the federal Disability Discrimination Act 1992 (DDA) to make reasonable adjustments for injured workers:

  • is limited to adjustments that would enable an employee to perform the role he or she is employed to do and
  • does not require employers to redeploy an injured worker to an alternative suitable position.
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Guide Published to Assist in The Development of Effective Anti-Harassment Programs

Our colleagues , at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the technology industry: “DFEH Publishes Materials to Assist Employers With Handling Harassment Allegations.”

Following is an excerpt:

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force. This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available. The guide addresses all forms of workplace harassment, including harassment based on sex. …

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DFEH Publishes Materials to Assist Employers With Handling Harassment Allegations

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available.  The guide addresses all forms of workplace harassment, including harassment based on sex.

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The lowdown on paid parental leave

Failure to launch

In May 2015, the Abbott Government proposed changes to the paid parental leave scheme which sparked much controversy. These changes sought to crack down on new parents ‘double dipping’ in light of comments that women were ‘rorting the system’ by accessing both employer and Government funded paid parental leave entitlements.

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Implementation of Private Payer Parity Laws for Telehealth Services

Private payer parity laws generally require private insurers and health maintenance organizations to cover, and in some cases also reimburse, for the provision of telehealth services in the same manner and at the same level as comparable in-person services. These laws are enacted at the state level, creating a complicated framework within which insurers must operate. At this point, most states have implemented some form of private payer parity law, although the specifics of each state’s laws vary. One of the most common is a rule such as Montana’s, which requires insurers to offer coverage for health care services provided by a health care provider by means of telemedicine if the services are otherwise covered by the plan. Some states, like Iowa, only mandate parity within their Medicaid programs without extending the mandate to private payers. Other states only require parity for certain types of services, like mental health services in Alaska. Lastly, Illinois and Massachusetts, require parity only when insurers opt to provide telehealth services.

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Handicapped Employees Can Use Medical Marijuana Off-Site Under Massachusetts Anti-Discrimination Law

On July 17, 2017, the Massachusetts Supreme Judicial Court (SJC) determined that Massachusetts law permits the off-site use of medical marijuana by handicapped employees, provided that this accommodation does not unduly burden the employer. THE FACTS Cristina Barbuto, the plaintiff, was hired by the defendant company, pending successfully passing a drug test mandated by company policy. The company fired Barbuto after she failed the company’s mandatory drug test due to the presence of marijuana. Barbuto explained that she used medical marijuana off-site at night to treat symptoms associated with Crohn’s Disease, to no avail.

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House Committee Seeks to Force the NLRB to Jettison “Indirect Control” Standard in Determining Joint Employer Status

Since the National Labor Relations Board’s (“NLRB” or the “Board”) 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, in which it adopted a new, far less stringent test for determining joint-employer status under the National Labor Relations Act (“NLRA”),  employers have been left wondering whether they may be held to be a joint employer of temporary or contract workers that they retain through staffing and temporary agencies.

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Asean Today – Regional Legal and Business News – June 2017

ASEAN Economic Community News

Regional Economic Outlook
The ASEAN Secretariat reports that ASEAN in 2017 will continue to see strong economic growth that should match its 4.8% growth in 2016. The Secretariat attributes the growth to the strengthening of private consumption and private investment in the region. In 2018, they expect domestic demand growth to be driven by 1) consumption, backed by stable labor market conditions and wage growth, and 2) demand, backed by public spending on infrastructure projects and fiscal stimulus. Downside risks include potential disruptions due to global trade policy adjustments and changes in monetary policies.

ASEAN Power Grid
At the ASEAN Ministers of Energy meeting in September, Thailand, Laos, and Malaysia plan on signing a tripartite electricity-trading agreement which could initiate the start of the ASEAN Power Grid. The agreement covers the sale of 100 megawatts of electricity generated in Laos and transferred to Malaysia using Thailand’s transmission system. The planned ASEAN Power Grid will be a secure, reliable integrated electricity infrastructure that will help stimulate regional economic growth and development.

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