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Committee Blog: Employee Privacy Guidelines In A Time Of COVID-19

By NCIA’s Human Resources Committee 

Privacy Guidelines

As employers across the country bring back their employees, coronavirus risks remain top of mind. These concerns are important to ensure both the safety of their employees and the ability of their businesses to remain open. No one wants their employees to experience a spike in infections, or to subsequently close down as a result. However, protecting employees and businesses from COVID-19 is not as simple as asking an employee if they are sick. Federal and state laws restrict the type of medical information an employer can require an employee to share, even during the pandemic.

Under the Federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”), medical inquiries are generally not allowed unless they are job-related and consistent with business necessity. Under this standard, medical inquiries are allowed if the employee poses a “direct threat” to him/herself or others because of a medical condition. FEHA regulations provide that factors to be considered when determining the merits of the direct threat defense include, but are not limited to:

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that potential harm will occur; and
  • the imminence of the potential harm.

FEHA regulations say that the analysis of these factors should be “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”

Unfortunately, this leaves the answer to whether employers may make medical inquiries or take temperatures “it depends.” Ultimately it becomes a business/risk tolerance decision. Asking employees questions about their medical condition and taking their temperatures may be more defensible if there has been documented exposure to COVID-19 in the workplace or a high rate of contagion in the community. 

The answer will also depend on what the Centers for Disease Control (“CDC”) determines. If the CDC makes a determination that COVID-19 is significantly more severe than the seasonal flu, it could pose a “direct threat.” Under the ADA, a direct threat is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” When the CDC advises testing, employers will have better standing to require it. CDC guidance is available here.

The Equal Employment Opportunity Commission has also issued specific COVID-19 guidance. The EEOC has advised employers that they may ask all employees who physically enter the workplace if they: (i) have COVID-19; (ii) have been tested for COVID-19; or (iii) are experiencing symptoms associated with COVID-19. Employers may also check the temperatures of employees entering the workplace. If an employee refuses to answer or refuses to submit to a temperature check, the employer may refuse to permit him or her to enter the workplace. However, employers should reassure refusing employees that the questions are simply designed to ensure workplace safety.

Employers may then single out individual employees for temperature checks or questioning only if the employer has a reasonable belief, based on objective evidence, that the employee has COVID-19 or symptoms associated with COVID-19. Employers may also ask employees if they have had contact with anyone who has been diagnosed with COVID-19 or who has symptoms of COVID-19.  

If a manager learns that an employee has COVID-19 or symptoms associated with COVID-19, the manager may disclose this information to which employees are necessary to take action consistent with CDC guidance. As a general rule, employers should try to limit the number of necessary employees” who know the employee’s identity. Everyone informed of the employee’s identity should be told to keep the information confidential. This includes telling others that an employee may be absent or working from home, but not explaining why.  

If employers do decide to take temps, there are multiple additional issues to consider: who will do the testing? What training? Will nonexempt employees be paid for their time undergoing testing? What will the employer do if the employee refuses? What information is recorded? All of these questions should be addressed in advance, and the answers should err on the side of caution. Tests should be simple, as non-invasive as possible, and as little data should be recorded as possible. Data for each employee should be recorded separately; an employer should not compile a single list of employees and their temperatures. An employer could, however, maintain a record of a single employees’ temperature of time. In other words, a single piece of paper could track an individual employee’s temperature history, but not the entire workforce’s temperature history.

In summary, employers must be careful to ensure their employees’ privacy rights remain respected and protected as they return to work. Employers may take reasonable precautions to ensure infected and at-risk individuals do not work, but must be careful in the questions they ask and the manner in which they record and keep the information. If a diagnosis is confirmed, employers must also be careful about who that information is shared with. Everyone wants a safe workplace; employers must simply keep in mind that a safe workplace is one that ensures an employee’s physical safety as well as their privacy.  

NCIA’s Human Resources Committee is comprised of human resource practitioners devoted to bringing best practices to the cannabis industry. Their focus is educating and bringing awareness to misclassification of employees, promoting guidelines for employee safety, clarification on wage and hour issues in the industry and creating checklists to being a legitimate employer.

Committee Blog: Cannabis and COVID-19 – A Legal Perspective

By Sahar Ayinehsazian and Kelsey Middleton, Vicente Sederberg LLC
NCIA’s Banking & Financial Services Committee

As the COVID-19 pandemic continues to alter the day-to-day lives of humans across the globe in an unprecedented fashion, industries have made considerable adjustments to maintain their operations while protecting the health and safety of the workforce and the public. While some industries have had to cease operations to comply with “stay-at-home” orders, most states regulating cannabis have deemed cannabis essential, allowing cannabis businesses to continue operations during the COVID-19 quarantine period. The fact that cannabis was deemed essential in states such as California, Colorado, Illinois, and Michigan, demonstrates a major shift in public perception of cannabis and its utility. While challenges remain as they do for all industries, the cannabis industry appears poised to withstand the pandemic and to solidify its role in the economy. 

Despite being deemed essential, adult-use cannabis sales have begun decreasing in states such as California, Colorado, and Nevada. Washington, however, reported record sales in April highlighting the diversity of legal markets throughout the United States. States that derive considerable sales for cannabis tourism like Nevada and California may see losses due to travel restrictions and mandatory self-quarantine periods. Although early sales reports suggest that the industry is equipped to weather this crisis, April sales only reflect the market one month into the pandemic that is likely to extend through the summer and potentially into next year. Thus, much remains unknown about the industry’s potential to stave off the impacts of an increasingly likely economic recession. Still, reports show that demand for cannabis remains strong and could potentially increase as the nation grapples with the significant financial and emotional duress associated with the pandemic. 

States have taken proactive measures to ensure that patients and customers may safely access cannabis. States including California and Nevada have issued official guidance on best practices for cannabis businesses to observe to mitigate the spread of infection and preserve and promote public health. This guidance has largely prioritized the reduction of person-to-person interaction and adherence to heightened sanitation and hygiene protocols. Best practices for reducing person-to-person interaction include conducting sales by pick-up or delivery where possible, reducing the number of individuals allowed at the dispensary at any one time, and controlling the flow of visits to reduce the potential for exposure. Retailers have used space indicators like chalk, tape, and stanchions to demarcate 6-feet of separation between customers standing in line. Best practices for maximizing sanitation and hygiene include the promotion of contact-free systems such as tap-and-pay payment technology where possible, and the removal of handheld menus, tablets, and iPads, and aroma jars from dispensary surfaces. Retailers are advised to clean and sanitize commonly touched surfaces on a routine basis and to provide hand sanitizer to all employees and patrons in conspicuous locations to encourage frequent sanitization. Additionally, employers are required to monitor their employees’ health and hygiene practices. Employers should require any employer showing a COVID-19 related symptom to stay home from work. 

While some businesses can rely on federal stimulus programs such as SBA loans for COVID-19 related relief, cannabis businesses cannot. Despite being equally harmed by the pandemic as other law-abiding, tax-paying small business operators, cannabis operators are ineligible for such funding because the cultivation and sale of cannabis remains illegal under federal law. While cannabis businesses are not currently eligible for federal relief programs, it appears that cannabis businesses may be eligible to defer the deposit and payment of their share of Social Security tax. 

Nonetheless, as further proof of the growing bipartisan support for cannabis, multiple senators and congress members have requested that future COVID-19 relief packages include accessibility for cannabis businesses. One of the main reasons cited has been the cannabis industry being deemed “essential,” thereby allowing it to provide much-needed support to various states’ economies. 

While the details of a post-COVID-19 world remain to be seen, one thing is clear – cannabis will continue to play a growing and important role in the U.S. economy.  

Sahar Ayinehsazian is an attorney in Vicente Sederberg‘s Los Angeles office, where she focuses on corporate transactions, cannabis banking, and regulations. With her specialized knowledge, Sahar helped to establish and currently co-leads Vicente Sederberg’s Banking and Financial Services Department. As a member of the National Cannabis Industry Association’s Banking Access Committee, Sahar also works on strategy and educational advocacy to enable state-licensed businesses to obtain accounts at depository institutions.

 

Kelsey Middleton is a Regulatory Specialist in Vicente Sederberg’s Los Angeles office, where she focuses on licensing and regulatory compliance. Kelsey is responsible for assisting a dynamic range of cannabis clients in obtaining state and local cannabis licenses, permits and approvals, and navigating the complex and rapidly evolving regulatory landscape of the cannabis industry. She routinely helps clients prepare the requisite applications and documentation for state and local licensing and permits, and facilitates communications with cannabis industry regulators to promote efficiency and compliance throughout the licensing process.

 Prior to joining VS, Kelsey interned at the Los Angeles Department of Cannabis Regulation where she analyzed proposed cannabis legislation and approaches for enhancing the efficacy of cannabis social equity programs. 

 Kelsey obtained her Juris Doctor from the UCLA School of Law, where she was the Co-Founder and Co-President of the Cannabis Law Association, and External Relations Chair of the Black Law Students Association.

 

 

 

 

 

From The Hill: The Emergency Cannabis Small Business Health and Safety Act

by Morgan Fox, NCIA’s Director of Media Relations

Legislation to give legal marijuana businesses, which have been declared essential in a majority of states with regulated cannabis markets, access to resources being made available by congressional COVID-19 emergency response packages was introduced in the House of Representatives last week by Rep. Earl Blumenauer (D-OR) and Rep. Ed Perlmutter (D-CO). 

The Emergency Cannabis Small Business Health and Safety Act would stop cannabis businesses and those that provide services to them from being excluded from further federal relief funding provided through the Small Business Administration (SBA).

Specifically, this bill would impact the following programs: Paycheck Protection Program (PPP), Economic Injury Disaster Loans (EIDL), and EIDL emergency grants. It would also protect SBA employees from prosecution for administering relief funds to cannabis businesses.

The full text of the bill is available here.

Under current policy, businesses that deal directly with cannabis production and sale, as well as many that provide services to them, are ineligible for most SBA programs. And the definition that the SBA uses to define which ancillary businesses are eligible is very vague. You can find a useful primer on federal relief eligibility from our friends at Vicente Sederberg LLP.

Let’s be clear: the fact that many cannabis businesses have been permitted to remain operating during this difficult time will not be enough to sustain the industry or allow for an effective and timely recovery once this nightmare is behind us. Lack of access to federal funds is just one of the many stressors facing cannabis businesses, which is why it is vital that we become eligible for relief as soon as possible.

Many indirect businesses have not been declared essential and have been forced to close. Cannabis businesses that have remained open must contend with declining sales, supply chain disruptions, onerous tax rates, lack of access to banking services, and the costs incurred by implementing additional health and safety measures to protect employees and customers.

Thankfully, the chorus of voices calling for fair access has been steadily growing. Earlier in April, Rep. Blumenauer and nearly three dozen of his colleagues sent a letter to House leadership urging them to make cannabis businesses eligible for SBA programs. Senators Jacky Rosen (D-NV) and Ron Wyden (D-OR) along with eight co-signers sent a similar letter to Senate leadership last week. They have been joined by cannabis industry advocates, the Marijuana Justice Coalition, the United Food and Commercial Workers International Union, state officials including Colorado Gov. Jared Polis, and others.

NCIA and our allies will continue to put pressure on Congress to treat cannabis businesses fairly during this crisis, but we need your help.

Please email and then call your congressional representatives today and ask them to support the legal (and essential) cannabis industry during this critical time. Talking points and instructions for calling your representatives are available on our website.

Email My Representative

Call My Representative

Here is a sample script you can use:

“Hi, I am calling/writing today to ask that you co-sponsor Congressmen Blumenauer and Perlmutter’s recently introduced Emergency Cannabis Small Business Health and Safety Act. This important piece of legislation would stop cannabis businesses and those that provide services to them from being excluded from further federal relief funding provided through the Small Business Administration. This current lack of access will undoubtedly lead to unnecessary layoffs, reduced hours, pay cuts, and furloughs for the workers of cannabis businesses who need support the most. As your constituent, I ask and urge that you sign on as a co-sponsor for this Act as soon as possible. Our industry, our businesses, and our employees cannot wait.”

The situation on Capitol Hill is extremely fluid as you might imagine. This bill could move forward as standalone legislation or could be incorporated into the next round of federal relief funds, which is being called CARES 2. Stay tuned for updates and be on the lookout for additional ways you can help us protect our essential industry.

 

Meet The Team: Tahir Johnson – NCIA’s Business Development Manager

With April 2020 marking a full year that I fully transitioned to working in the cannabis industry, it’s amazing to reflect on the past twelve months and the journey that brought me here. This time last year I decided to leave my job as an investment advisor for one of the largest banks in the country to turn full-time as a patient counselor at a medical dispensary in Maryland. I had started out there part-time but after just a few months I was certain that I had found my true calling in cannabis. The more I learned about policy, the medical benefits of the plant, and the history of the war on drugs the more I knew that I wanted to make a positive impact and to help shape the future of the industry. 

My first inclination that cannabis could be a viable industry had come years earlier in 2013 when I was still a financial advisor and saw GW Pharmaceuticals, a company that produced a cannabis-derived prescription drug, issue its Initial Public Offering. I was aware that medical cannabis had been legalized in California and a handful of other states by that time but never imagined I would end up working in the space. 

In 2018 shortly after Maryland introduced its medical program, my dad was diagnosed with an inflammatory disorder, and I recalled from a research report that I did in college that chronic pain was one of the top conditions that medical cannabis was used to treat. I encouraged him to get a medical cannabis recommendation and when he expressed concern, I offered to get mine as well to support him. Through that experience, I was introduced to the legal cannabis industry and began to pursue multiple opportunities from starting ancillary businesses and entering pitch competitions to applying for a license as a social equity applicant. 

As fate would have it I also met Kaliko Castille in April last year when he was in town for MCBA’s Lobby Day. I already knew about everything NCIA does to advance and advocate for the industry and thought that a role at this organization would be a dream come true. I let him know that I had applied for my current role which was just recently posted, not knowing that as Head of Growth at the time, the position would be in his department. Thankfully, I must have made a great first impression. 

With our Cannabis Business Summit taking place just weeks after I started at NCIA in July of last year, I was able to jump in feet first. Since then I’ve had the opportunity to interact with thousands of cannabis business owners and employees from every sector of the industry learning about their goals, success stories, and the challenges that they face. I’ve had the opportunity to see our Government Relations and Policy teams in action in Washington and interact with members of Congress. Nothing was more exciting than having a front-row seat as we watched the SAFE Banking Act, the first piece of stand-alone cannabis legislation pass in the House of Representatives, and knowing that I had worked alongside the team that made it happen! 

Given my background in finance, I often think about the economic impact that COVID-19 has had not only on the U.S. economy, but the cannabis industry specifically. I am so proud to be a part of NCIA and the work that we are doing to make sure that #CannabisIsEssential; asking that congressional leadership address the exclusion of state-legal cannabis and ancillary businesses from the recently passed CARES Act and the way that we are supporting our members. In addition to our federal efforts, our new digital marketing options will help our members get exposure for their businesses during a time where social distancing has put most conferences and events on hold.

Over the past few weeks I’ve had the opportunity to speak with many of our members and I know that our industry is resilient and will rise above this crisis. I’m hoping that the pandemic is over soon enough to see everyone out at the Midwest Cannabis Business Conference on my birthday weekend, August 26-27.

 

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