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Fifth Third Banking Alleges Potential Fraud by Employees

A group of former employees may be behind a cyberattack on banking company, Fifth Third. The company has released very little information thus far regarding the exposure to their sensitive data. The data that was potentially stolen was banking information from potentially over a hundred clients. The clients who were affected have already been contacted by Fifth Third as they are still trying to get to the bottom of the issue at hand. Fifth Third then made clear to consumers that this was not a cyberattack, rather an attempt by former employees to steal sensitive information and hurt the company they once worked for.

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One Step Closer to Banning Genetic Material for Use in Insurance (Florida)

Insurers in the state of Florida have been making efforts to be able to use genetic information to dictate insurance policies. This could include changing policies due to certain risks the genetic findings could unveil or canceling policies all together. The bill to stop that plan has passed through the Senate Judiciary Committee and awaits further approval. There is already state and federal law in place stipulating health insurers may not use genetic info for pricing and coverage. The Florida House of Representatives tried to create a loophole in those existing laws in early January by passing a bill that would take genetic info from existing medical records and use it to estimate mortality risk. If both houses pass the bill in Florida to ban the use of genetic information, they will join a handful of states to already do so.

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Marijuana Use in the Workplace

As marijuana laws continue to evolve at the state level, we are receiving more and more requests for guidance on how to address this concern as part of your risk management program. Below are the state law statuses from Pennsylvania and neighboring states as well as the official position of the National Safety Council:

National Safety Council (NSC)

The NSC says more research is needed on cannabis to determine how it affects users and their ability to function when under the influence. However, their policy statement noted that employees who tested positive for cannabis had 55 percent more industrial accidents, 85 percent more injuries and 75 percent greater absenteeism compared to those who tested negative.

"NSC believes it is unsafe to be under the influence of cannabis while working in safety-sensitive positions due to the increased risk of injury or death to the operator and others. Research is clear that cannabis impacts psychomotor skills and cognitive ability," the NSC said. "However, the amount of THC detectable in the body does not directly correlate to a degree of impairment. At this time, NSC believes there is no level of cannabis use that is safe or acceptable for employees who work in safety-sensitive positions."

To help create a drug-free workplace, the NSC says employers should:

• have a drug policy that includes proper management training to make managers more likely to enforce the policy;
• access to support for employees with drug problems;
• clearly define use and possession parameters for employees;
• establish OSHA compliant rules for post-accident testing;
• update the policy frequently to keep up with changing laws and attitudes.

Pennsylvania Medical Marijuana Act

According to the Pennsylvania Medical Marijuana Act, a resident of Pennsylvania suffering from a serious medical condition may use marijuana to treat his or her condition(s) with a physician’s certification.

Employees are held to the following prohibitions:

• Employees are prohibited from operating or being in physical control of any of the following while under the influence with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum:
o Chemicals which require a permit issued by the federal government or a state government, or by an agency of the federal government or a state government.
o High-voltage electricity or any other public utility.
• Employees are prohibited from any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical marijuana.
• Employees are prohibited from performing any task that the employer deems life-threatening, to either the employee or any of the employees of the Company, while under the influence of medical marijuana. This prohibition is not an adverse employment decision even if the prohibition results in financial harm for the employee.
• Employees are prohibited from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana. The prohibition is not an adverse employment decision even if the prohibition results in financial harm for the employee.

The employer is not permitted to discharge, threaten and refuse to hire, or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location, or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

The employer is not required to:
• make any accommodation of the use of medical marijuana;
• limit its ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position;
• commit any act that would violate federal law.

New Jersey Compassionate Use of Medical Marijuana Act (CUMMA)

Currently, employers have no obligation under New Jersey law to accommodate cannabis usage. With regard to medical cannabis, New Jersey’s Compassionate Use of Medical Marijuana Act (CUMMA) states that, “nothing in this act shall be construed to require … any employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14 (emphasis added). As a result, employers are not required to grant any request to accommodate workplace medical cannabis use, even from a registered patient with a valid medical cannabis ID card from the New Jersey Department of Health.

Generally, under CUMMA, employers are permitted to issue discipline to employees who use cannabis within the workplace in violation of drug and alcohol-free workplace policies.

Following the lead of several other states, the New Jersey Legislature recently introduced two bills designed to create workplace protections for medical marijuana patients in the state of New Jersey. On February 4, 2016 and May 9, 2016, two bills (Assembly Bill 2482 and Senate Bill 2161) were introduced in the New Jersey Legislature that, if enacted, would amend the NJCUMMA and prohibit employers from taking any adverse employment action against an employee based on either the employee’s status as a registry identification cardholder or the employee’s positive drug test for marijuana, unless the employer could establish that the lawful use of medical marijuana impaired the employee’s ability to perform his or her job responsibilities.

Further, if an employee or applicant were to test positive for marijuana, both bills would require that the employee or job applicant be offered an opportunity to present a legitimate medical explanation for the positive test result and provided written notice of their right to explain the same. To date, however, neither bill has been voted out of committee.

Delaware Medical Marijuana Act

(3) Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:

a. The person's status as a cardholder; or
b. A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.
c. No school, landlord, or employer may be penalized or denied any benefit under state law for enrolling, leasing to, or employing a cardholder.

§4907A - Acts not required, acts not prohibited.

(a) Nothing in this chapter requires:
(3) An employer to allow the ingestion of marijuana in any workplace or to allow any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana.

New York - Compassionate Care Act

Rules for employers: Employers may not discriminate against applicants or employees based on status as a medical marijuana patient, but they may enforce a policy that prohibits employees from working while impaired by marijuana. Employers with four or more employees must also provide reasonable accommodations to medical marijuana users. Employers are not required to take any action that would cause them to violate federal law or lose a federal contract or funding.

Non-discrimination. Being a certified patient shall be deemed to be having a "disability" under article fifteen of the executive law (human rights law), section forty-c of the civil rights law, sections 240.00, 485.00, and 485.05 of the penal law, and section 200.50 of the criminal procedure law. This subdivision shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance. This subdivision shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.

Maryland

Maryland has passed legislation permitting the use of marijuana for medicinal purposes. However, this legislation does not prevent employers from testing for marijuana use and does not protect employees that test positive for any reason.

So what else should you do?

• Require employees to acknowledge, in writing, that any medicinal marijuana use is legitimate and won’t be used in the workplace or in a way that may affect their work;
• Review existing policies to update language with state law to clarify ambiguous language—prohibiting “illegal drugs” may create confusion regarding whether legal medicinal marijuana is permitted;
• Review the nature of your workplace and determine your tolerance for marijuana use outside of work and what the consequences of an employee testing positive for marijuana will be. For example, jobs that require employees to operate machinery or handle dangerous tools or substances may be concerned with the safety of employees and others as well as their own liability. Employees that work on federal contracts are still prohibited from using marijuana;
• Caution employees that they may not be under the influence or possess marijuana in the workplace;
• Consider your current drug testing policy and whether it is still useful in light of changing legislation. Ensure that your drug testing policies are in compliance with applicable laws;
• Continue to monitor changes regarding the use of marijuana in state and federal legislation, as well as court opinions.
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