As we barrel into 2023, it is worth a look back at last year. Employment law issues in 2022 were diverse, ranging from federal COVID-19 vaccine mandates (yes, that was last year) to state laws on CBD and diversity and inclusion. And, of course, we blogged on it all! To celebrate the year gone by, here are 3 of our top blog posts from last year, and some brief updates on where those issues stand now and where they might be headed:

#3 – Kicking off our countdown is a collaboration blog post with our cannabis practice group: Don’t Fire Me! I’m Drug Free! It Was CBD! Indiana Court Examines Termination for Use of Hemp Oil. CBD, THC, and other cannabis issues are a hot topic. As of now, marijuana is still a Schedule I drug, meaning that it is illegal under federal law. Therefore, the Americans with Disabilities Act does not protect medical marijuana users as disabled, and you may generally still terminate employees who fail a drug test for marijuana. So, where do items such as CBD and THC fall? You can purchase CBD legally in all U.S. states, but most states still have laws making THC illegal. However, both CBD and THC can trigger a positive drug test. Is it OK to act against employees if they fail a marijuana drug test but only used CBD or THC? In this blog post, we discussed an Indiana federal court case in which an employee was terminated after failing a marijuana drug test but claimed he had only used CBD oil. The court sided with the employer, holding that, while CBD is legal, the ADA does not prohibit testing for legal substances, and the employer reasonably relied on the drug test when terminating him. It does not appear that the employee has appealed this judgment. We addressed a similar issue in another blog this year, Now I Know My CBDs. There, we discussed a Louisiana federal court case in which an employee who took CBD for migraines was terminated after testing positive for marijuana. Unlike the Indiana federal court, this court held that there were too many factual issues to side with the employer at this stage, largely because the employer previously knew of her CBD use for migraines and did not allow the employee to explain the drug test results.

As you can see, courts’ holdings will vary depending on the facts and the court. And, most states now allow medical marijuana use, which has created further confusion on these issues. Until federal law and state law are on the same page, keep these things in mind: (1) Always check your state law on marijuana use and see if employees are given any sort of protections, (2) administer drug tests equitably to avoid any appearance of, or lawsuit alleging, discrimination, and (3) be careful about terminating employees for one positive drug test when you know the employee openly uses CBD, especially for a medical purpose.

#2 – Florida’s “Stop Woke” Bill was the subject of our next two hottest blog posts: This bill aimed to outlaw certain types of diversity, equity, and inclusion training in the workplace, such as training that individuals by virtue of their race or sex were inherently racist or, on the flip side, morally superior. Another example of prohibited training was teaching that an individual’s character or status “as either privileged or oppressed” is necessarily determined by race, sex, color, or national origin. This bill ultimately became law and garnered much public attention. a federal district court quickly slowed the bill’s roll and deemed it unconstitutional partially because it violated the right to free speech and favored one side of disputed issues while suppressing the other. So, for the time being, this law is enjoined and unenforceable. However, Florida has appealed the injunction, and that appeal is still pending. Stay tuned for what the Eleventh Circuit will do. Until then, Florida employers can implement their DEI measures without fear of consequences. if the challenge to the injunction is successful and the law is reinstated, we could see other states attempt to introduce similar laws.

#1 – Rounding out our Top 3 is a blog post on COVID-19 vaccine mandates: To Mandate Vax or Not, That Is the Question. Unsurprisingly, this issue received quite a few clicks. As you may recall, President Biden issued an Executive Order mandating vaccination of federal contractor employees. For a while, we were in somewhat of a holding pattern, with legal challenges to the mandate rising up in almost every corner of the country. A Missouri federal district court enjoined enforcement of the order, and multiple other federal district courts did the same, including the Southern District of Georgia, Western District of Kentucky, Middle District of Florida, and District of Arizona. as recently as this month, the Fifth Circuit followed in their footsteps and affirmed an injunction of the mandate. Since courts have seemingly disproved of these vaccine mandates, and with COVID-19cases improving, we are not predicting any resurgence of these issues. However, a few COVID-19 vaccine-related items to keep in mind: If you are requiring employees to be vaccinated, always administer that requirement equally, and remember that some individuals may need a religious or disability-related exemption. Additionally, some states have introduced laws restricting employers’ abilities to require vaccinations or take action against employees who are not vaccinated, so be sure to check your state law.  

2022 was a wild ride, and only time will tell what’s to come in 2023. Stay tuned to find out! See you in the new year.