Help! I’m losing my best people and I can’t replace them! – Part 2.

Last time we talked about why people leave their jobs.

So where does this all get us?  If we know that it is the soft skills that matter and if we know that managers frequently do things that cause good people to quit, how do we fix that?  What do we do?  There are tons of articles out there on what to do to engage employees and they all have some variation of providing a good onboarding system, and a mentorship program, and fostering teamwork, and having a training program for employees.  That is always the solution, right?  It has been a long time since I got my business degree and, granted, it is a BA and not an MBA, but it seems to me business schools shovel this stuff out like . . . well, you know what they shovel it out like.  You have all heard it before and some of you, myself included when I was still managing people, have said it.  “Our performance management system isn’t working?  Let’s buy a fancy new and really expensive ‘tool’ to track performance, that will fix the problem.”  And five years later we still have the same problem with a fancy tool.  I want to go back to something Mr. Peters said was part of the problem:  “too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.”

Now look, I am not saying that fancy new tools to track performance are not valuable – they are.  But there is an old saying, I think it started in the computer industry:  “Garbage in, garbage out.”  And in this context, what that really means is that we are putting our resources in the wrong place.  If we assume Dr. Bradberry and Ms. Branham are correct and a majority of people who leave their jobs are really leaving their managers, and if we believe that Dr. Bradberry’s and Ms. Branham’s lists are at least close to the mark, what that should tell us is we need to put our resources in our managers and supervisors.

“Now we are talking.  Finally we are into the meat of it.  1300 words for Palazzolo to finally tell us how to keep our people!”  Relax, don’t forget Mr. Peters said, “Soft is hard.”  But I’m going to try to simplify so we all have some things we can start on right away.  I’m going to focus on three main topics:  Selection, Training and Measurement.

Selection

Now it all starts with figuring out what management’s job really is.  Far too often, when we need somebody to supervise widget makers, we promote the best widget maker. That, my friends, is exactly the wrong thing to do.  Being a good widget maker does not mean that you are a good supervisor of widget makers.  I wrote about this a long time ago, too.  I want you all to stop and go read that article.  You can find it here.  I’ll wait. . .   Ok, I’m glad you’re back.  Pretty good article if I do say so myself, right?  Anyway, back to making widgets or at least supervising those who do.

So if being the best widget maker does not make you a good supervisor, what does?  Well, that may vary from organization to organization, and it may depend on who is being supervised, right?  I mean a good plant supervisor on the production floor is not necessarily going to have the same skills as a manager in the accounting department, right?  Not so fast, my friend.  There may be slight variations, but what I am saying is that being a good supervisor or manager does have a common set of skills or, as my HR friends like to say, competencies that are common to all good supervisors.    Let’s go back to Dr. Bradberry’s and Ms. Branham’s lists of why people leave their jobs.  Dr. Bradberry says one reason people leave their jobs is managers “Hire and promote the wrong people.”  Ms. Branham says, “There is a mismatch between the job and person.”  So given that, one competency we need in a good manager is the ability to assess and evaluate talent.  Then we have, “They fail to develop people skills,” or put another way, “There is too little coaching and feedback.”   Don’t we then want somebody who knows how to communicate and give constructive feedback?  Maybe somebody who can manage conflict?  And finally, bad managers do “Not recognize contributions and reward good work” or make their “Employees feel devalued and unrecognized.”  Now I could go through both lists, put them all down here and ask you the same question.  How many of you have a supervisor job description that has any of these things as a competency or job duty or even mentions these?  If you do, good for you, you are ahead of the game.  If you don’t, why not?  But that is not the end, now is it?  Remember, “Garbage in, garbage out.”  So you have a nice shiny new job description that requires your managers to be able to communicate, and assess talent and deal with conflict in a fast-paced manufacturing environment blah, blah, blah!  Are you actually hiring people that have these skills?  Not if you are just hiring the best widget makers.  And this is where our friends from HR come in – are you helping management to see and assess these competencies?  Are you getting good candidates?  And when you get good candidates, do recognize this and hire them?  Promoting from within is a great goal, one all companies should aspire to.  But you have to promote the right people, with the right skill set.

Training

OK, we have the right people in the door and they have all the skills we are looking for.  Now what do we do?  What we do is we make sure we have a culture that values and rewards enhancing and developing those skills.  And the only way to do that is train, train, train.  And here is where you know that I am serious.  I’m not talking about having us in to train about the law.  Yes, that is important and I want you to do that too, but that is not the most important thing.  We are talking about training supervisors and managers, and I mean all supervisors and managers, all the way up to the top.

And upper level management has to live that training too. You see, the only way to create a culture of excellence, one that values the skills we are looking for in our managers, is for upper management to support the training.  They have to show up.

The second thing we need to do is make this mandatory.  Knowing your job and developing the skills that you need to do it well should never be voluntary, it is part of your job.  So no “I’m too busy on the line” or “the month end report is due” excuses.  You show up and you participate or it will cost you.  Because we are evaluating you on this stuff.  And we will talk about that in a second.

And the final thing we need to do is make sure we are training on the right things.  Now as I said above, I am not talking about compliance training or harassment training here, although as we all know that is important too.  Especially in this climate.  What I am talking about here are the soft skills that Mr. Peters called so hard.  I’m talking about communication training, I’m talking about teaching managers to give constructive feedback.  I’m talking about teaching active listening skills.  And that is hard.  And the only way to make sure it sinks in is to practice it and make it an ongoing process.

Measurement

Now we have the right people in the door and we have them trained on the right things. What do we do to wrap this all up?  We measure our progress.  And here is what I am talking about here. We evaluate our managers and supervisors on these skills.  Over the years, this has been one of the things that has confounded me the most about communicating with employees.  We have these expensive evaluation processes that I talked about – you know, the shiny new tool.  And because it is so expensive and because it is so hard to actually evaluate employees, we try to make these tools one size fits all.  You know what I mean, often there is a set of goals that we sit down and talk to employees about at the beginning of the year.  And then we have some competencies that are supposed to relate to what the employee is doing.  And not once in this whole process do we take into account the employee’s job description or even what the employee is doing.  So we end up with a review that does not take into account what the employee is really doing, that measures a set of competencies that may or may not even be important to the employee doing his/her job and that in the end spits out a bunch of data that is of limited use at its best.  Employees don’t like this process, it is demoralizing.  Supervisors don’t like this process, it is a pain.  And worst of all, we tie compensation to this farce of a process.  So why do we do it?  Great question, and if you don’t have a good answer, then stop.  Doing a performance review once a year is a pain, but it is a pain only once a year.  It is also, for the most part, a complete waste of time.  Unless you are going to do it right.  Get rid of your fancy tools and use the job description as the basis for your reviews.  Yes, that will be hard.  Remember, “Soft is hard.”

Or scrap the whole process.  Want your employees to be engaged and stick around?  Give them constant feedback.  It’s important, especially to the younger generation.  When they do something good, tell them.  When they do something not so good, tell them.  Then tell them why it was either good or bad.  And then talk with them about what they can do better or what they should keep doing well.  That’s really hard.

And finally, make sure you are giving them feedback on what matters.  How is the turnover rate?  When you do a 360, how is the supervisor rated by the people he/she supervises?  I know, no one likes these, but that is because before we did not give our supervisors the skills they needed to be successful.  Now that we have done that, we should not be afraid of the dreaded 360 review.  Now I know what you are all saying, “That’s great, but what about production goals and deadlines and all that stuff?”  Yeah, I get it, that is important too.  But if your managers are being good managers, then those numbers will follow.

Let me just wrap this up with one final thought.  It is going to seem a bit cliché, but I think it is true.  We have to give our managers and supervisors the tools they need to be good managers and supervisors.  And for the most part, we have not done that.   Because it is hard.  It is way easier to train supervisors on how to run the machine or how to do the report.  As we try to shift this, let me give you a place to start.  Let’s start to train our supervisors to treat people the way they want to be treated.  You know, the good old Golden Rule.  Hey, it’s a start.

 

 

 

 

 

Help! I’m losing my best people and I can’t replace them! – Part 1.

As most of you know, the lawyers at good old WNJ go to a lot of events that you all attend, and sometimes we are presenting at those events.  We do things like panel discussions and programs on everything from Terms and Conditions to protecting your Intellectual Property.  And we talk about the law and take questions.  Lately we have been hearing a common theme in these questions, something that is clearly on your minds.  Whether you work in communications or human resources or purchasing, you are telling us:  “I can’t find and keep talented people.”  From the skilled trades to engineers, talented proficient employees are in short supply.  Now WNJ can’t make more engineers for you and we can’t teach employees to be electricians or welders –  we are exceptional lawyers, but we are not magicians.  So let’s focus on what we can help you do.  What we can help you do is retain the talent you have.  And no, this is not another employment lawyer telling you to sign all of your employees to covenants not to compete, although in some cases that might be a good idea.

(And by the way, I wrote about this about two years ago.  Must be we were having a talent shortage then too.  You can read that article here.  Some of this is going to sound strangely familiar after you do, but that is only because I cut and pasted from that blog post.)

Instead, we are going to focus on other ways to retain employees.  Soft skills, if you will, that might help you keep your really good employees.  What do you do?  I know, just pay them more.  Easy enough, right?  Of course that is not easy and that is not the answer.  The answer is a whole lot harder than that.  Tom Peters, who I am sure you know is a highly respected author and leadership consultant, is known for saying:  “Soft is hard.”     What does Mr. Peters mean by that?  Well, let’s use his words:

Yet a closer look reveals that for every quality program success    there were scores of misfires—programs, often absorbing vast amounts of time and sums of money, that produced little or nothing in the way of better quality or improved financial results, and in some situations made a slumping organization even more sluggish.

Though it’s dangerous to make such an assertion, in my view there was a singular reason for the mixed bag of results; and it was predictable from our excellence research—too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.

*  * *

In the end: Hard is soft. Soft is hard. The traditionally viewed ‘soft’ variables such as ‘institutional culture’ and ‘inspired leadership’ are the principal keys to success—or failure.

You can see Mr. Peters’ whole paper here.  It is worth a read.  So Mr. Peters, back in 2012, was talking about things like “institutional culture” and “inspired leadership” and he has built on these ideas over the years.  But he is not the only one.

In order to retain employees, seems to me the first thing we need to know is why do people leave their jobs?  Again, we can go back to “they can make more money someplace else” but that can’t be the answer.  Dr. Travis Bradberry, coauthor of the No. 1 bestselling book, Emotional Intelligence 2.0, and the cofounder of TalentSmart, in an article he originally published on LinkedIn, gives nine primary reasons why people leave their jobs, and pay is not to be found among them.  Dr. Bradberry first says that “People don’t leave jobs, they leave managers.”  Now I think that might be a bit too broad of a statement – clearly, some people do leave jobs where they have a manager they really like.  But this does raise a good point.  It is not always about the money.  In fact, it is rarely about the money.  Let’s go back to those nine things that Dr. Bradberry says are the worst things managers do that cause people to leave.  He says managers who lose good people tend to:

  1. Overwork good people.
  2. Not recognize contributions and reward good work.
  3. Don’t care about their employees.
  4. Don’t honor their commitments.
  5. Hire and promote the wrong people.
  6. Don’t let people pursue their passions.
  7. Fail to develop people skills.
  8. Fail to engage their employees’ creativity.
  9. Fail to challenge people intellectually.

You can see Dr. Bradberry’s whole article here – again, it is a good read.

In addition, in that blog post I wrote in 2015, I noted:

In her article Strategies for Retaining Employees and Minimizing Turnover, Sarah K. Yazinski, an Admissions Counselor at the University of Scranton, cites strategic planning consultant Leigh Branham, SPHR, who claims:

88% of employees leave their jobs for reasons other than pay: However, 70% of managers think employees leave mainly for pay-related reasons.  Branham says there are seven main reasons why employees leave a company:

  1. Employees feel the job or workplace is not what they expected.
  2. There is a mismatch between the job and person.
  3. There is too little coaching and feedback.
  4. There are too few growth and advancement opportunities.
  5. Employees feel devalued and unrecognized.
  6. Employees feel stress from overwork and have a work/life imbalance.
  7. There is a loss of trust and confidence in senior leaders.

Remember, it is here.

Now look at these two lists:  Quite a bit of overlap, right?  Could be we are on to something here.

Next time we will talk about what to do about all of this.

New Light on an Old Problem – Sexual Harassment!

It is all over the news and it is certainly high profile.  From Hollywood to the morning news to the halls of Congress, powerful men (and yes I said men, because so far, that is who it has been but yes I also know women can be harassers) are being brought down by allegations of sexual harassment. There has been story after story after story in the news.  On top of that, in this digital age we have the #MeToo movement and Time magazine has even named “The Silence Breakers” as the person of the year.

We could spend a lot of time talking about these headlines and the shocking behavior alleged and in some cases admitted to by these people. But I’m an employment lawyer, so I am going to stick to the law and not the headlines.  What I’m not going to do is spend any time in this particular post going through the legal definition of harassment.

Here is what I do want to do.  I want to remind you of your obligations when you learn that harassment may be occurring in your workplace.  And we are going to go to the EEOC for some help on deciding what we should be doing about this.

The very first step to making sure that you don’t have harassment in your workplace is having a culture that does not tolerate this kind of behavior.  Having a policy and doing training is not going to do you one bit of good if you don’t live the policy.  This has to come from the top.  And the top has to be committed.  You’ve all seen the billboards, “Your kids learn by watching you.”  Your employees do too, and if you say one thing and do another you are sending mixed messages.

So, where do we start?  According to the EEOC’s Guidance we start with prevention:

An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non-supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to ‘encourage victims of harassment to come forward’ and should not require a victim to complain first to the offending supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.

See https://www.eeoc.gov/policy/docs/currentissues.html.

Now take a look at that.  First, have a policy.  Then tell people about it.  Raise the subject of harassment with your employees, all of your employees, and inform employees of their right to and how to raise the issue of harassment.  Tell people you don’t tolerate harassment and that they can report it.  And do it over and over again.  I know what you are saying, “If we raise the issue we are going to get a line of people at my door wanting to talk about this stuff.”  That’s right, you are.  And you should welcome that.  At best, it is an opportunity to find and get rid of potential liability.  At the least, it is a chance to educate all of your employees.

OK, Steve, I’m doing all that. I have a great policy, I am training, I am raising the issue, and I still got a complaint.  Now what do I do?

Well, if you look at the news without any critical analysis it would seem that you just go fire the accused, right?  WRONG!  A couple thing here:  first, by the time a big story hits the headlines you can bet a lot of investigating has been done.  You don’t fire a multi-million dollar a year employee without having done some looking into the allegations against him or her.  And what about Congress you say?  Well that is different and we are focusing on the workplace remember?  So let’s go back to the EEOC for some help on what we do once we have reason to believe we have an issue:

When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. See Waltman v. International Paper Co., 875 F.2d at 479 (appropriateness of remedial action will depend on the severity and persistence of the harassment and the effectiveness of any initial remedial steps). Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10, 44 EPD ¶ 37,557 (5th Cir. 1987) (the employer’s remedy may be ‘assessed proportionately to the seriousness of the offense’). The employer should make follow-up inquiries to ensure the harassment has not resumed and the victim has not suffered retaliation.

See https://www.eeoc.gov/policy/docs/currentissues.html.

Let’s break down what the EEOC is saying here. The key is INVESTIGATE.  First thing to remember is you don’t have to have an actual complaint to have an obligation to investigate.  If you receive a complaint or “otherwise learn” of alleged harassment. Investigate.  Anonymous complaint?  Investigate.  Think there is something going on?  Investigate.  Get an actual complaint?  Investigate.  And that means investigate, it does not mean just fire the accused.  Again, that is the key:  INVESTIGATE.

Once the investigation is done, if you determine harassment occurred, you take prompt appropriate remedial action to see that the harassment stops.

And what good does all this do you?

When an employer asserts it has taken remedial action, the Commission will investigate to determine whether the action was appropriate and, more important, effective. The EEOC investigator should, of course, conduct an independent investigation of the harassment claim, and the Commission will reach its own conclusion as to whether the law has been violated. If the Commission finds that the harassment has been eliminated, all victims made whole, and preventive measures instituted, the Commission normally will administratively close the charge because of the employer’s prompt remedial action.

See https://www.eeoc.gov/policy/docs/currentissues.html.

And that is the moral of the story.  If you have the right culture, if you put the preventive measures in place, and if you investigate and take prompt appropriate remedial action when you have an issue, you can avoid liability.

Oh, and people might actually want to work for you too.

If you are a business and you need a policy or training or any other help with this, drop me a line.

So Where are We Now? Medical Marijuana and Employment in Michigan.

“I’ve been thinking about this, Mr. Hand.  If I’m here and you’re here, doesn’t that make it our time?  Certainly, there’s nothing wrong with a little feast on our time.”

 Jeff Spicoli – Fast Times at Ridgemont High.

I’m telling you, it took me longer to find a quote somehow related to marijuana I could use in this thing then it did to do the research on the state of the law.  Spicoli, the lovable stoner from Fast Times at Ridgemont High, was the best I could do.  And he makes a point—if I’m at work and my boss is at work, doesn’t that make it our time and not just my boss’s time?  And don’t I have a right to take my medication so that I am not in pain on my time, or our time or whatever we are going to call work time?  Why do I ask?  Because when it comes to the use of medical marijuana, that question is getting a bit harder to answer than it used to be.

We are going to talk about the law in Michigan.  And we do that for two reasons.  First, I practice in Michigan.  Second, Michigan is on the verge of having a whole new flood of legal Medical Marijuana dispensaries.  Now, we are not going to talk about dispensaries and licensing and any of that other stuff; we are going to talk about medical marijuana and employment.

Let’s start with the statue.  The Michigan Medical Marihuana Act is what we are talking about here.  (Ok, before you say anything about the spelling, I did not spell marijuana that way, the state did, what a bunch of squares, right?)  The Act, among other things, provides for the use of medical marijuana under state law and “provide[s] protections for the medical use of marihuana” when recommended by a physician for “debilitating medical conditions.”  Section 4 of the Act specifically states:  “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana. . . .”

Seems pretty clear.  You can’t fire someone for using medical marijuana, end of story, right? Not so fast dude!  You see, section 7 of the Act states:  “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”  Oh, so now I can fire somebody for using medical marijuana, right?

I’m confused, are you?  So how is this going to work?  Well, the courts are going to decide, and they have.

In Casias v. Wal-Mart Stores, Inc.,  (which I wrote about here), the court held that an employer could fire an employee who tested positive for marijuana during an employer required drug test even if that employee had a card.  Judge Jonker stated:  “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment.  Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  Judge Jonker went on to note that the employee’s public policy argument would “confer on medical marijuana patients, rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.”  Judge Jonker also stated:  “Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.”  The case was appealed and the Sixth Circuit agreed:  “We agree with the district court and find that the MMMA does not impose restrictions on private employers, such as Wal-Mart.”

I can hear you asking now, “So Steve, why are we having this conversation?  Doesn’t that settle it, I can fire my employees if they test positive for marijuana?  Well?  Doesn’t it?”

Yes, it does, sort of.  That is the law in Michigan right now.  But there are a couple of things I want you to be aware of.  First, other states are going in different directions.

On May 3, 2017 the Superior Court in the State of Rhode Island broke with what most other courts, including Judge Jonker and the 6th Circuit, have done and found that an employer’s enforcement of a neutral drug testing policy to deny employment to an applicant was a violation of the Rhode Island state law.  Before I start with this, I just have to point out one really cool thing.  The judge started the case with this quote:

“I get high with a little help from my friends”

—The Beatles, 1967

Come on, you have to love a judge that starts his or her opinion with a quote from the Beatles.

Anyway, Plaintiff Christine Callaghan brought an action against Defendants Darlington Fabrics Corporation alleging employment discrimination with respect to hiring for an internship position because she held a medical marijuana card.   Ms. Callaghan was a masters student and she wanted an internship.  During her interview Ms. Callaghan disclosed that she held a medical marijuana card.  The interview concluded shortly thereafter.  A couple of days later, the company HR rep and another employee had a conference call with Ms. Callaghan and asked her if she was currently using medical marijuana.  She said yes.  The HR rep responded by informing Ms. Callaghan that a positive test would “prevent the Company from hiring her.”  Ms. Callaghan told the HR rep that she was allergic to many other painkillers and that she would neither use marijuana at work or bring it to the workplace.  That did not seem to matter to the company.

Now the Rhode Island Law states:  “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”   Sound familiar?  The Michigan law states “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to . . . penalty in any manner, or denied any right or privilege, including but not limited to . . . disciplinary action by a business . . . for the medical use of marihuana . . . .”  Other than Michigan not being able to spell marijuana, sounds pretty close to me.

The Rhode Island Court also pointed out “also relevant to this inquiry. Section 21-28.6-7(b)(2) states that “[n]othing in this chapter shall be construed to require . . . [a]n employer to accommodate the medical use of marijuana in any workplace.”  Again, sounds a lot like Michigan.  Remember, “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”

But the Rhode Island Court did went the other way.  First, they implied a private right of action into the Rhode Island statute that allowed Ms. Callaghan to sue in the first place and then the Court held:  “Plaintiff was denied the opportunity to apply for a job with Defendants because she believed she could not pass the pre-employment drug test.   Plaintiff did inform Defendants that she was a medical marijuana cardholder and that she would obey state law and not bring marijuana into the workplace.  Defendants do not contest that they denied her employment based on the fact that she could not pass the drug screening. Therefore, Defendants have violated the []Act.  As a result, the Court grants Plaintiff’s motion for summary judgment and correspondingly denies Defendants’ motion.”

You can see the case here and Wow!

But again, you ask, what has that got to do with Michigan? Well, we have to deal with Braska v Challenge Manufacturing.  I have written about this one before too.  See it here.

You see, Judge Jonker is a federal judge and the 6th Circuit is a federal court and their decisions when it comes to state law, while persuasive, are not binding on the state courts.  So what has Braska got to do with this?  Well, Braska involved an employee (actually three employees) who were terminated for testing positive for marijuana.  The Court had to decide whether an employee who possesses a registration identification card under the MMMA is disqualified from receiving unemployment benefits after the employee has been terminated for failing to pass a drug test.  Spoiler alert, the employees won and got the benefits.

So the Braska Court started with the proposition that the Michigan unemployment statute disqualifies people for benefits for “testing positive on a drug test, if the test was administered in a nondiscriminatory manner.”  Isn’t that what happened here?  The employees tested positive on a drug test administered in a nondiscriminatory manner or at least that is what the state argued.

So what’s up with that?  How come an employer has the right to fire the employee, the statute disqualifies them from getting benefits, but the employee can still get unemployment compensation?

Here is what the Michigan Court of Appeals said.  First, the court noted that the MMMA has a broad preemption provision which says:

 . . . ‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.’

So that disqualifier in the unemployment statute, yeah, it does not matter if the employee has a card and as long as the employee is not otherwise violating the MMMA by, for example, “being under the influence at work” or “using at work.”  Now using at work, that is easy, but being under the influence?   How do we know that?  Most drug testing policies state any positive test is under the influence and we don’t have cut off lines like we do with alcohol.  So what do we do?  Good question. But in Braska if did not matter because the state never alleged the employees were under the influence, only that they didn’t pass the test.

Second, the court noted that the MMMA says that people with cards who are using marijuana in accordance with the MMMA:

. . . ‘shall not’ . . . be denied any ‘right’ or ‘privilege,’ ‘including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau. . . .

And the court held:

Applying this definition to the present case, we conclude that denial of unemployment benefits under § 29(1)(m) constitutes a ‘penalty’ under the MMMA that was imposed upon claimants for their medical use of marijuana.

So, the summary is that the MMMA trumps the unemployment act and denying unemployment benefits just because of a positive test for someone who properly has a card is a penalty imposed by the state in violation of the MMMA.

But what about the Casias case?  Well, the court dealt with that too.  First, they basically said Casias is not binding on the Michigan Court of Appeals because this is a question of Michigan law and Casias was a federal case.  “The Casias decision is not binding precedent on this Court.  (noting that, “[o]n questions of state law, Michigan courts are not bound by foreign authority.” Then the court stated:

Moreover, unlike in Casias, in this case, we are not presented with the issue of whether the MMMA’s immunity clause applies in cases involving action solely by private employers.  The issue raised in this case is not whether the employers violated the MMMA because they terminated claimants.  The issue is whether, in denying unemployment benefits, the MCAC—a state actor—imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause.  When an individual is denied unemployment benefits, the employer’s conduct is not at issue, but rather, the denial involves state action.  See Vander Laan v Mulder, 178 Mich App 172, 176; 443 NW2d 491 (1989).

You see, ultimately the court decided that determining who gets or does not get unemployment is up to the state and not the employer and that makes Casias different.

So what does all of this mean?  Well, for now, those of us who work in Michigan can still fire an employee or even not hire an employee if they fail a drug test, even if they have a medical marijuana card.  I say for now, because it won’t be long before the Michigan courts are asked to answer this question.  And it is not altogether clear that they will follow the federal court’s logic.  And now that Rhode Island has gone the other way, it won’t be long before other states follow suit.  And for now, unless you can prove that the employee either used and work or is under the influence of marijuana (and how do you do that) when you do fire them they are going to get unemployment.

We will keep our eyes open to see what goes on in the courts and the legislature.  In the meantime, if you are an employer dealing with these issues and if you have questions give us a call.

Why? A Serious Health Condition under the FMLA – Part 8.

OK, this is it.  We are almost done with the definition of a serious health condition.  I’m serious.  Let’s deal with chronic conditions.  You know, the sorts of health conditions a person might get that just does not go away.  Like asthma or diabetes or epilepsy.  How do these kinds of conditions fit into the definition of a serious health condition?

Let’s start with the definition again:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And back to §115 we go.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 CFR §825.115(c).

So we have three things we need for a condition to be “chronic” and we will start from the bottom and work our way up.  First, the condition may cause “episodic” incapacity.  You know, once in a while.  Like when the weather is bad (or really good he said dripping with sarcasm) and the employee gets an asthma attack.  The condition has to continue over an extended period of time – again, like asthma.  It doesn’t just go away with treatment. And finally, the condition requires periodic visits to the doctor.  And here is where it gets complicated.  You have to see the doctor at least twice per year.    What is twice per year?  According to Lusk v. Virginia Panel Corporation, Civil Action No. 5:13cvO79 (W.D. Vir. 2014), twice per year means that the employee saw a doctor at least twice in the year preceding her need for leave.

Lusk was not treated at all for her mental health condition in the year preceding her alleged FMLA leave on January 16, 2013, and neither did she have a certification from her doctor that she suffered from a chronic condition.  In short, given the evidence addressed at summary judgment, the court cannot conclude as a matter of law that plaintiff Lusk falls within this FMLA category.

So that isn’t a “chronic condition” under the FMLA.  And remember, the general doctor’s visit and three day incapacity rules don’t apply to chronic conditions just like they don’t apply to pregnancy.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

Let’s get a couple of more things out of the way.  You can also get time off for a “permanent or long-term condition,” which is different from a chronic condition and for “conditions requiring multiple treatments.”

(d) Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(e) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

29 CFR §825.115(d) & (e).

Why? A Serious Health Condition under the FMLA – Part 7.

We are still in section 115 of the Regulations but now we are going to talk about treatment as it relates to a pregnancy and “chronic conditions.”  You see, in addition to your regular old serious health condition that we have been discussing in the last six – yes, six – posts, an employee may also be eligible for leave for treatment for pregnancy or a chronic condition.  We will focus on pregnancy for this post and get to chronic conditions with the next one.

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Let’s start with pregnancy.  The Regulations say:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(b) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care. See also §825.120.

29 CFR §825.115(b).

Ok, so what does §825.120 say?  We are going to skip most of this, because we will deal with it when we come to that Regulation, but as it pertains to the mother giving birth:

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

* * *

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

So mom gets time off for any incapacity due to pregnancy.  The Reg goes on to say that the mother gets time off before the birth for “prenatal care or if her condition makes her unable to work.”  Say, for example, the doctor puts her on bed rest before the birth.  Or for prenatal care, like for doctor’s appointments before the birth.  She also gets time off for her own serious health condition following the birth of the child – say, complications from a difficult delivery or to recover after a C-section. And one more thing to keep in mind here, they have to have a doctor’s visit and the three day incapacity rules don’t apply here:  “The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.”  Out sick due to morning sickness – covered.  Don’t believe me?  Let’s go back to §115.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

 

Why? A Serious Health Condition under the FMLA – Part 6.

Yes, we are still talking about what a serious health condition is.  But now we are going to talk about a “regimen of continuing treatment.”

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

But this time, instead of the two treatments thing, we are going to discuss the “regimen of continuing treatment.”

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So just what is this “regimen of continuing treatment”?  Pretty simple actually:

* * *

A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

So it is prescription medication, or therapy or something you need the health care provider in order to get it, and not just drink plenty of fluids and take an aspirin.  Simple enough.

Next time, pregnancy.

Why? A Serious Health Condition under the FMLA – Part 5.

Back to a serious health condition and what it means.  As we always do, we will start out with a little refresher:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And of course we are talking about the continuing treatments part of that definition.  Remember, last time we left off with when the second of the two treatments have to take place.

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the second treatment has to take place within 30 days of the first day of incapacity.  I got sick on Monday the 1st.  Have to have two treatments by the 30th.  But who decides?  Do I just get to decide to go back to the doctor a second time and, voila, I have a serious health condition?  Nope, the doctor decides.

Continuing treatment by a health care provider means any one of the following:

* * *

(iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

29 CFR §825.102.

OK, so the doctor decides.  But is it a serious health condition if the second treatment does not occur until after the employee is no longer sick?  Well, that might depend on where you live.  In Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005), the Court said the health condition must be sufficiently serious that it entails an absence of more than three consecutive calendar days during which the employee obtained treatment by a health care provider at least two times.  But in Summerville v. Esco Company, 52 F. Supp. 2d 804 (W.D. Mich. 1999), the court held “Rather, the regulation by its plain language merely requires two or more treatments, without distinguishing between treatments occurring during or after the initial period of incapacity.”

Clear as mud, right?  I’m going with the Summerville Court, but I live and practice (mostly) in Michigan.  You might want to talk to your labor lawyer before you decide to tell an employee they are not covered by the FMLA because they did not have two treatments while they were sick.

Oh, and one more thing – that whole 30 day thing for the second doctor’s visit?  Does not apply if there are “extenuating circumstances.”  What is an extenuating circumstance?

(5) The term extenuating circumstances in paragraph (a)(1) of this section means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period.

29 CFR .§825.115(a)(5).

See you next time when we will talk about a “regimen of continuing treatment.”

 

Why? A Serious Health Condition under the FMLA – Part 4.

Yes, yes, I know we are still talking about “serious health condition” and we have been for the last several posts.  But this is important stuff.  Most of your FMLA leaves are going to be for a serious health condition, either the employee’s or a family member’s.  So this might take a post or two more.

Let’s refresh:

According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

So last time we talked about the “three consecutive days” thing.  You remember:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So we have that down, right?  A period of incapacity that lasts more than three consecutive days.  But that is not it.  The section also says:  “that also involves”.

So in addition to the three consecutive days, you need “continuing treatment by a health care provider”.

The Regulation gives you basically two different situations and says that means:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

Id.

Well, let’s break that down.  We will start with number 1, that makes sense.

You can have “treatment two or more times”.  OK, easy enough, you have to be treated by the “health care provider” at least twice.   Hold it, what does “treatment” mean?  Funny you should ask, because there is a definition:

Continuing treatment by a health care provider means any one of the following:

* * *

(iii) The requirement in paragraphs (i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.

29 CFR §825.102.

OK, so treatment means an in-person visit with a health care provider.  But it must also mean more than that, right?  Yes it does.  Treatment also means:

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

Man, we are all over these Regulations just to get to one definition.  So, treatment means an in-person visit with a health care provider “to determine if a serious health condition exists and evaluations of the condition”.

Now let’s touch on that two or more times thing.  First, as you can see, the “first in-person treatment visit must take place within seven days of the first day of incapacity.”  So I got sick on Monday, as a threshold issue I need to see the doctor within seven days of Monday.

OK, I think that is enough for today.  It’s enough for me anyway.  We will talk about that second visit next time.

Why? A Serious Health Condition under the FMLA – Part 3.

Remember how short the last post was?  Not this one.

So let’s go back.  According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Last time we talked about “inpatient care”.  This time we are going to talk about “continuing treatment”.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the first thing we need for a serious health condition involving “continuing treatment” is a period of incapacity and treatment lasting “more than three consecutive full calendar days”.  So we start with incapacity.  Remember incapacity?

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

And you didn’t even remind me.  So we have to have “incapacity”, which means the employee basically can’t do what they would normally do during the day, and it has to last for more than three consecutive, full calendar days.  A couple of things to point out there:

The incapacity has to last for “more than three consecutive days.”  Out sick Monday, Wednesday and Thursday does not count.  Not consecutive days.  Second thing you need to note is that it is “full calendar days”.  If the employee went home early on Friday, was still sick Saturday and Sunday and comes back to work Monday, that is not a serious health condition.  Not because of the Saturday and Sunday – if the employee can’t do his normal daily activities, those days count (remember, it is “calendar” not “work” days).  It does not count because that is not three “full” days.  The employee worked part of Friday, so he was clearly not incapacitated for the full day Friday.

We will get into this more next time.

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