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2021 virtual kba
annual convention
details inside
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This issue of the Kentucky Bar Association’s
B&B-Bench & Bar was published in the VOL. 85, NO. 2
month of March.
COMMUNICATIONS &
PUBLICATIONS COMMITTEE
James P. Dady, Chair, Bellevue Contents
Paul Alley, Florence 2 President’s Page
Elizabeth M. Bass, Gallatin, Tenn. By Tom Kerrick
Rhonda J. Blackburn, Pikeville
Jenn L. Brinkley, Pensacola, Fla. 5 Annual Convention
Rachelle C. Bolton, Lexington
Frances E. Catron Cadle, Lexington Features: Employment Law
Elizabeth A. Deener, Lexington 8 Workers’ Compensation Meets Covid-19
Cathy W. Franck, Crestwood By Dale Hamblin
Lonita Baker Gaines, Louisville
William R. Garmer, Lexington 10 Cannabis and the Workplace: The Law Remains Unsettled
P. Franklin Heaberlin, Prestonsburg By Nick Birkenhauer and Erin Shaughnessy
Judith B. Hoge, Louisville 14 2021 Labor and Employment Law Outlook
Jessica R. C. Malloy, Louisville By Jay Inman
Eileen M. O'Brien, Lexington
Sandra J. Reeves, Corbin 18 Book Review: Our Rightful Place: A History of Women at
John Schaaf, Georgetown the University of Kentucky, 1880-1945
Gerald R. Toner, Louisville By Jennifer L. Brinkley
Sadhna True, Lexington
Zachary M. Van Vactor, Louisville Columns
Samuel W. Wardle, Louisville 20 Young Lawyers Division
Michele M. Whittington, Frankfort By Miranda D. Click
PUBLISHER 22 University of Kentucky J. David Rosenberg College of Law
John D. Meyers
24 Northern Kentucky University Salmon P. Chase College of Law
EDITOR
25 Effective Legal Writing
James P. Dady By Professor Jennifer Jolly-Ryan
MANAGING EDITOR 26 Law Practice Management
Megan L. Couch By Joe Davis
DESIGN & LAYOUT Bar News
Jesi L. Ebelhar 27 Judicial Nominating Commission Special Election Results
The B&B - Bench & Bar (ISSN-1521-6497) 28 Board of Governors Minutes
is published bi-monthly by the Kentucky Bar
Association, 514 West Main Street, Frankfort, 29 Student Writing Competition
KY 40601-1812. Periodicals Postage paid at
Frankfort, KY and additional mailing offices. 31 Law Day 2021
All manuscripts for publication should be sent
to the Managing Editor. Permission is granted Departments
for reproduction with credit. Publication of
any article or statement is not to be deemed an 32 Kentucky Lawyer Assistance Program
endorsement of the views expressed therein by
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the Kentucky Bar Association.
Subscription Price: $20 per year. Members 36 Continuing Legal Education
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BENCH & BAR | 1
PRESIDENT'S PAGE
Good
ADDRESSING
Mental Health
AMONG ATTORNEYS BY TOM KERRICK
W
hen I started my term, I wanted to focus on attorney In the KYLAP section of this edition of the Bench & Bar, there are
well-being. Candidly, I was thinking more along the lines pages with important phone numbers for the suicide hotline as well
of reducing attorneys’ stress levels and improving our qual- as other national, state and regional numbers, that offer immediate
ity of life. We introduced Lawyers Advocating Wellness (LAW) to confidential help. Please take advantage of these materials and the
KBA members in November 2020 and encouraged everyone to get many other resources the KBA has available for attorneys.
out during Thanksgiving weekend to walk, run, bike or anything to
get off the couch. Seventy-six of our members logged 11,794 active The outpouring of offers to help address this issue from individual
minutes over that weekend and we were off to a great start. We set members within the KBA and various organizations within the
up meditation sessions (557 members have viewed to date); yoga state has been nothing short of amazing.
sessions (495 members have viewed to date); over 700 members
watched the Neuroscience, Sleep and Well-Being program. Then Consequently, we recently created a Mental Health Collaboration
the Christmas holiday came, and we lost attorneys to death by group consisting of various Bar related organizations including but
suicide. The focus of LAW changed. not limited to Kentucky Justice Association, Kentucky Defense
Counsel, Lawyers Mutual Company of Kentucky, Young Lawyers
Immediately, the KBA staff, particularly Yvette Hourigan, director Division, KYLAP, Louisville Bar Association, Fayette County Bar
of the Kentucky Lawyer Assistance Program (KYLAP), and Mary Association, and the Northern Kentucky Bar Association, as well as
Beth Cutter, director of CLE, began searching for past programs
and future programs addressing the deeper issues of mental health,
depression and suicide. Kentucky Supreme Court Justice Debra
Lambert’s suicide prevention presentation from a couple of
years ago at the district Kentucky Law Update (KLU)
programs was promptly made available again, as well as
other free CLE on wellness, mindfulness and suicide
prevention. On February 12, we offered “What Every
Attorney Needs to Know about Depression, Anxiety,
and Suicide” presented by presidents of the Kentucky
Psychological Foundation and Association. On
February 18, we offered “QPR Suicide Gatekeeper
Training” by Kentucky’s State Suicide Prevention
Coordinator Beck Whipple. On February 26, “Over-
coming Perfectionism in the Legal Profession” was
presented to approximately 1,000 KBA members and
the speaker, Vitale Buford, has also agreed to speak at
our virtual annual convention.
Each of these programs began with an impactful statement
from Chief Justice John D. Minton Jr. concerning attorney
mental health. There are many more additional programs that the
KBA offers addressing these issues and the great thing is – most
of these are available for replay On-Demand through our LAW
or Mental Health Resource webpages. Many of us want to know,
and need to know, more about the risk factors and warning signs of
serious mental health matters, including suicide, and these programs
will certainly help.
2 | MARCH/APRIL 2021
Kentucky lawyers deserve steadfast support. Our team is devoted to serving your liability malpractice needs. For more information call us at 502-568-6100 or Submit for a quick quote at www.LMICK.com
PRESIDENT'S PAGE
various judge associations. We want to encourage you to continue
to make suggestions and volunteer as we attempt to address this
Proposed
horrific disease.
Finally, I want to introduce you to two other new ideas. First, the
Amendments
to the Rules of
KBA and I will be bringing a VIRTUAL town hall meeting to
each of our seven districts during late March and early April. This
will be an opportunity for a discussion and exchange of ideas as
Civil Procedure
to the issues within our profession and how the KBA can help its
members address these matters.
Secondly, we will have our very first VIRTUAL annual convention
The Supreme Court of Kentucky is considering
on May 12-14. We have absolutely top notch national speakers –
amendments to the Rules of Civil Procedure and
Mary Matalin and James Carville, Jr., speaking on “All’s Fair: Love,
invites members of the Bar to submit written
War and Politics;” Jay Bilas, an attorney and the leading national
comments. The following rules are currently up
commentator on college basketball; and, Jody Armour and Jon
for consideration:
Wiener will speak on their book/movie “The Chicago Seven Trial
in light of Today’s Protest Movements.” • Mediation – new rules CR 99 and CR 100
COVID and this crazy pandemic have required the KBA to do Written comments should be submitted
many things differently, but we want you to know we are still here electronically to ruleamendments@kycourts.net.
and want to work with you to address our profession’s issues and All comments must be received by April 30, 2021.
demands.
To view the proposed amendments, visit:
https://cdn.ymaws.com/www.kybar.org/resource/
resmgr/docs/CR99CR100MediationRules.pdf
4 | MARCH/APRIL 2021
OUT OF THE ABUNDANCE OF CAUTION, the Kentucky Bar Association (KBA)
Board of Governors decided, that the 2021 KBA Annual Convention, originally scheduled
to be held in Lexington, May 12-14, will be held VIRTUALLY .
The 2021 KBA Annual Convention Planning Committee chaired by Amelia M. Adams and
Matthew P. Cook, as well as the CLE Planning Committee chaired by Christine L. Stanley,
are committed to bringing our members an outstanding lineup of speakers and topics, and
discovering innovative ways for us to connect remotely.
Attorneys who register and attend our 2021 Virtual Annual Convention will receive up
to 21 HOURS OF CLE FOR THE EXCEPTIONAL PRICE OF $250 .
• Attendees will have access to four live sessions each day as well as
additional, prerecorded, On Demand sessions. These On Demand sessions
will be available to registered attendees until June 30, 2021. Not all of the
live sessions will be available On Demand after the scheduled presentation is
over. These programs may only be viewed live by registered attendees at their
scheduled presentation times. Those sessions include Jay Bilas, Professor
Jody Armour & Jon Wiener and James Carville & Mary Matlin.
REGISTER NOW to attend the 2021 KBA Virtual Annual
Convention and unlock your ticket
for an exceptional convention featuring a variety of topics and unique events.
VISIT WWW.KYBAR.ORG/2021AC, FOR
MORE INFORMATION AND TO REGISTER NOW!
BENCH & BAR | 5
WEDNESDAY 5.12.21 *SPOTLIGHT*
11am –12pm edt 12:05–1:05pm edt
SUPREME COURT RULES HEARING ENGINEERING JUSTICE
Chief Justice John D. Minton, Jr. A MODERN SOLUTION FOR
Deputy Chief Justice Lisabeth T. Hughes AN ANTIQUATED SYSTEM
Justice Robert B. Conley DAVID LEE WINDECHER
Justice Michelle M. Keller
Justice Debra Hembree Lambert
Justice Christopher Shea Nickell
* F E AT U R E *
Justice Laurance B. VanMeter
Kelly Stephens (Moderator) 1:25–2:25pm edt
THE CHICAGO SEVEN TRIAL
1:10–1:25pm edt IN LIGHT OF TODAY'S
PROTEST MOVEMENTS
MENTS
KBA PRESIDENT’S PROFESSOR JODY ARMOUR
WELCOME ER
AND JON WIENER
Christine L. Stanley (Moderator)
2:30–3:30pm edt
TEN YEARS AFTER:
WHAT IS THE STATUS OF THE PRERECORDED
RECOMMENDATIONS CONTAINED IN
THE ABA’S KENTUCKY ASSESSMENT
ZOOM SESSIONS AVAILABLE ALL DAY
• The Current Status and Future of Pretrial Release and Detention: A
REPORT ON THE DEATH PENALTY? Discussion with Prosecutors & Judges About Alternatives to Cash Bail
• Handling the Challenges of Pre-Trial and Trial Practice Both Ethically
THURSDAY
and Professionally
• Diversity, Equity, and Inclusion Initiatives in Legal Education: A View
5.13.21
from the Kentucky Law Schools
11am –12pm edt
WHY DIVERSITY AND *SPOTLIGHT*
INCLUSION MATTER – THE 12:05–1:05pm edt
CLIENT’S PERSPECTIVE OVERCOMING PERFECTIONISM
Kimberly S. Amrine IN THE LEGAL PROFESSION
Dawn Franklin Croft VITALE BUFORD
Robert M. Croft Amelia Adams (Moderator)
Thalethia B. Routt
* F E AT U R E * PRERECORDED
1:10–2:10pm edt ZOOM SESSIONS
AVAILABLE ALL DAY
ALL’S FAIR: • Healthcare During and After the Pandemic
LOVE, WAR AND POLITICS
JAMES CARVILLE AND MARY MATALIN • Data Breach 101: Everything You
Thomas N. Kerrick (Moderator) Need to Know
• Bankruptcy: Effects of Pandemic, Best
2:15–3:15pm edt Practices, and Issues for New Practitioners
CURRENT TOPICS IN KENTUCKY
AGRICULTURE
RYAN QUARLES AND JOSEPH BILBY
6 | MARCH/APRIL 2021FRIDAY 5.14.21 *SPOTLIGHT*
12:05–1:05pm edt
11am –12pm edt
KENTUCKY SUPREME COURT REVIEW A GLIMPSE INTO REPRE-
William R. Garmer R. Kenyon Meyer SENTING A PROFESSIONAL
Representative Jason Nemes Lori Shelburne SPORTS FRANCHISE
J. Guthrie True GREG KIRSTEIN
Amelia Adams (Moderator)
* F E AT U R E *
1:30–2:30pm edt PRERECORDED ZOOM SESSIONS
AVAILABLE ALL DAY
60 MINUTES • Mindfulness Tools for Ethical Attorneys: How
WITH JAY BILAS Meditation Can Help You Build and Maintain
JAY BILAS an Ethical and Sustainable Law Practice
Matt Cook (Moderator)
• Pandemics, Pensions, and Policing – Current Issues
in Kentucky Municipal Law
2:45–3:45pm edt
• Planning for the Inevitable
KENTUCKY ELECTION LAW UPDATE
SECRETARY OF STATE MICHAEL G. ADAMS
PUBLIC SERVICE PROJECT:
THE LUNA LIBRARY AND
A COAT TO KEEP THE COLD AWAY
Each year the Kentucky Bar Association selects a local organization
to serve as our public service project during our annual convention.
Even though our convention will be held virtually this year, we did
not want to lose the tradition of this time-honored event. The
2021 KBA Annual Convention Planning Committee selected
two programs created by local Lexingtonian Devine Carama,
who currently serves as the director of Believing In Forever Inc.
Mr. Carama has two initiatives that he focuses on during the
year, “The Luna Library” and “A Coat to Keep the Cold Away.”
His website explains, “ In memory of my daughter, I'm creating
a library in inner city Lexington, KY called ‘The Luna Library’,
which will be made of children's books K-12 with an African
American history or Black character focus. Members wishing
to support “The Luna Library” can do so by purchasing a book
directly from the organization’s wishlist on Amazon. The
books will be shipped directly to Mr. Carama.
The other initiative that is being highlighted as part of this
year’s public service project is, “A Coat to Keep the Cold Away.”
Each year Mr. Carama provides new coats to thousands of
children in the Lexington area. For a full description on this
initiative, visit Mr. Carama’s website. To participate in this
initiative as part of our public service project, consider
making a monetary donation when completing your 2021
Virtual KBA Annual Convention registration form.
Believing in Forever website: www.believinginforever.com
Amazon wishlist:
www.amazon.com/hz/wishlist/genericItemsPage/
RGVLFW5IT3AS?_encoding=UTF8&type=wishlist
BENCH & BAR | 7features:
EMPLOYMENT LAW
WORKERS’ COMPENSATION
MEE TS COVID-19 BY DALE HAMBLIN
C
OVID-19. A designation for some present iteration, KRS Chapter 342.1 Ini- any communicable disease unless the risk
extraterrestrial body? Perhaps a tially, the act contemplated only traumatic of contracting the disease is increased
secret government operation involv- workplace injuries but, over time, came to by the nature of employment.2 While an
ing a famous British spy? Of course not. It include narrowly defined occupational dis- “occupational disease” does mean a disease
is a word, a designation, that has forced its eases. It now faces a new challenge, one that arising out of and in the course and scope
way into everyday speech. A way of describ- would not have been conceivable two years of employment3, the statutory definition
ing a specific novel coronavirus. Not all that ago; the impact of COVID-19. of occupational disease has been narrowly
long ago, few of us would have known it defined and is subject to specific conditions
referred to a virus of any type and even less The workers’ compensation system was not and limitations beyond the scope of this
of us would have cared. No longer. It rep- designed to address the adverse impact of a article.4
resents a virus that has affected the lives viral pandemic on the workforce; yet, it has
of everyone throughout the world. It has been called upon to do exactly that for the On March 6, 2020, Governor Andy
affected commerce and altered the way we past nine months. Like most other states’ Beshear issued Executive Order 2020-215
go about our daily lives. In doing so, it has compensation systems, the Kentucky work- declaring a state of emergency in the Com-
exposed employees and employers alike to ers’ compensation program has wrestled monwealth of Kentucky in response to the
risk unlike any faced before and it is making with the issues brought on by COVID-19 COVID-19 pandemic. On April 9, 2020,
its impact felt throughout Kentucky. from both an administrative and program- Governor Beshear issued Executive Order
matic standpoint. 2020-277, which entitled employees to
While the purpose of workers’ compensa- payment of temporary total disability ben-
tion legislation is the subject of several court As a basic matter, to receive compensation efits pursuant to KRS 342.730(1)(a) when
opinions, at its heart, workers’ compensa- benefits an employee must have a work-re- removed from work by a physician due to
tion represents a “grand bargain” between lated injury or occupational disease. The occupational exposure to COVID-19.5 On
employees and employers. In short, employ- “injury” must be a traumatic event (or April 15, 2020, the Commissioner of the
ees receive defined wage replacement and series of events) arising out of and in the Department of Workers’ Claims (“Com-
medical benefits for workplace injuries and course of employment and be the proximate missioner”) issued guidance regarding the
occupational diseases while employers are cause of a harmful change in the human scope and application of Executive Order
relieved from traditional tort liability. Ken- organism as evidenced by objective med- 2020-277. In short, the guidance confirmed
tucky’s workers’ compensation system has ical findings. By definition, “injury” does that the Order applied only to payment of
faced and overcome many challenges as it not include the effects of the natural aging temporary total disability benefits prospec-
evolved from its inception in 1914 to the process and, specifically, does not include tively from April 9, 2020, did not extend
8 | MARCH/APRIL 2021benefits to workers not otherwise subject compensation benefits for permanent dis- to take the vaccine constitute the failure to
to coverage under the Workers’ Com- ability are predicated on impairment ratings follow medical advice? A good lawyer can
pensation Act, and provided examples of assigned by physicians applying the Amer- and will raise a plethora of issues stemming
evidentiary considerations in determining ican Medical Association’s Guides to the from this pandemic, its cause and cures.
compensability.6 Evaluation of Permanent Impairment (5th However, outside of guidance currently
Ed).8 At this point, there is insufficient offered and programmatic changes made
What impact has this had on Kentucky’s medical data to determine the extent, if any, to accommodate a no-contact world, the
workers’ compensation system? Employers to which COVID-19 will result in perma- Department is unlikely to issue guidance
are required to report to the Department nent functional impairment ratable under regarding those types of issues.
work-related injuries that result in absence the Guides. As a consequence, while the
from work for more than one day,7 includ- impact of COVID-19 on claims for indem- The Department of Workers’ Claims is, at
ing COVID-19 related work absences nity and medical benefits will become more its core, an administrative court system. It
stemming from both actual infection clear in time, it is difficult if not impossible strives very hard to be and remain neutral in
and exposure-related quarantine. As of to predict at this time. that role. The Department’s reach is limited
this writing, more than 11,000 COVID- to and its boundaries set by KRS Chapter
19 related reports have been filed with To make the prediction more difficult, at 342. Many of the issues that arise from this
the DWC; however, only a handful of the time of this writing, a COVID-19 vac- current pandemic exceed the scope of those
those have resulted in a claim filed for cine has just become available, though not boundaries and the Department will not
adjudication. yet to the public-at-large. What influence venture into them.
the availability of this vaccine may have
The long-term impact of COVID-19 on the spread of the disease is unknown.
related claims on the workers’ compensa- New issues arise with its existence. For
tion system remains an unknown for now instance, can an employer mandate that an
because COVID-19’s effect on the human employee take the vaccine as a condition ABOUT THE
organism is still being discovered. Workers’ of employment? Can an employee’s refusal AUTHOR
DALE HAMBLIN
graduated from
the University of
Louisville Louis
D. Brandeis
School of Law
and was admit-
ted to the Bar in
1998. He was in private practice before
joining the Department of Workers’ Claims
in 2006 where he has held various titles,
including general counsel and his current
title, assistant general counsel/attorney
manager.
ENDNOTES
1 Wells v. Jefferson County, 255 S.W.2d 462 Ky.
1953); KRS 342.690.
2 KRS 342.010(1).
3 KRS 342.0011(2).
4 KRS 324.0011(3).
5 https://governor.ky.gov/covid19
6 http://labor.ky.gov/comp/Pages/default.
aspx#COVID19_Issues
7 KRS 342.038(1).
8 KRS 342.0011(35), 342.0011(36),
342.0011(37), 342.730(1)(b).
BENCH & BAR | 9features:
EMPLOYMENT LAW
cannabis and the workplace:
The Law Remains Unsettled
BY NICK BIRKENHAUER AND ERIN SHAUGHNESSY
I
n the early 20th century, states across of the law, such as employment law, have LAWS OF KENTUCKY AND
the country began to pass laws prohib- yet to follow. This along with the lack of any SURROUNDING STATES
iting and criminalizing cannabis, more successful federal legalization, has created a Kentucky, Ohio, and Illinois represent three
commonly known as marijuana. In 1970, patchwork of state laws regarding legalized examples of the types of cannabis laws one
the federal Controlled Substances Act cannabis usage and the workplace. Without sees across the country.
was enacted which classified cannabis as a comprehensive federal legislation, employ-
Schedule I drug with a high potential for ers must rely on state laws when dealing KENTUCKY
abuse and no accepted medical use and pro- with cannabis use among their employees. Kentucky has a long history of allow-
hibited its use.1 It was not until 1996 that For large national corporations, this means ing the cultivation of industrial hemp.5
states began to make efforts to legalize can- that their policies may be different state-to- However, it was not until 2014 that the
nabis, with California passing Proposition state since state laws addressing this issue General Assembly legalized non-psy-
215 which legalized the use of cannabis for tend to vary, if they exist at all. choactive CBD oil with a doctor’s order.6
medical purposes.2 CBD differs from marijuana in that it
Kentucky has been no stranger to legal- does not cause a high. 7 Legalization
Since the passage of Proposition 215, ization efforts and the legal consequences efforts expanded in 2017 when the Gen-
almost every state in the nation has legal- of liberalized cannabis laws. This article eral Assembly legalized the consumption
ized cannabis for recreational or medicinal considers the laws of Kentucky and other and retail sale of hemp and hemp-derived
use or legalized the use of cannabidiol states, including Ohio and Illinois, which CBD products that contain 0.3 percent
(CBD) products.3 The majority of these have, respectively, legalized cannabis for of tetrahydrocannabinol (THC) or less.8
actions have taken place within in the past medicinal and recreational use. This article
10 years. Currently, only two states in the will also examine the interaction of employ- OHIO
nation, Idaho and Nebraska, still com- ment law with these states legalization Ohio passed the Medical Marijuana Con-
pletely prohibit the use of cannabis.4 efforts. Finally, this article will examine trol Program in 2016.9 Under this program,
legislative efforts made in the past two years medical marijuana is permitted for medic-
Though legalization efforts have resulted in in Kentucky to expand legalized usage and inal use for patients with a qualifying
changes to state criminal laws, other areas clarify employment laws.
10 | MARCH/APRIL 2021cannabis concentrate and cannabis infused Many employers continue to maintain drug
products.17 Illinois still limits where canna- free workplace policies related to the use of
bis can be used. Use is prohibited in public drugs (including cannabis) in and outside
places, in cars, on school grounds, and of the workplace.28 Drug free workplace
around individuals under the age of 21.18 policies pose some problems in states where
In addition, persons, businesses, landlords, medicinal cannabis is legal. In these states,
and colleges can prohibit use on private whether or not employers are able to keep
property.19 Along with the expanded legal- these policies in place will likely depend
ization, the law also qualified hundreds of on that state’s anti-discrimination laws.29
thousands of Illinoisans for expungement However, some states, like Kentucky, have
of low-level possession convictions.20 not updated their anti-discrimination stat-
utes to address the use of legal cannabis.
INTERACTION WITH
WORKPLACE POLICIES In light of expanding legalization, it poses
The legalization of cannabis has had a the questions of how companies have
significant impact on the workplace and changed. As mentioned above, many con-
workplace policies. However, employ- tinue to maintain drug free workplace
ment laws have not quite kept up with the policies.30 However, others have linked their
widespread legalization of cannabis across drug usage policies to job performance and
the country. This has created questions for employees are only disciplined for failed
many employers about the policies they drug tests when it is clear that their pro-
have addressing cannabis use both in and ductivity has been negatively impacted.31
outside of the workplace. We will examine
some of these policies below and analyze DRUG SCREENS
the impact of legalization efforts and Drug screens do not always end at the
employment laws on these policies. hiring process. Some states, like Kentucky,
have regulations that permit employers to
THE HIRING PROCESS AND drug test potential and current employees
ZERO TOLERANCE POLICIES in order to maintain drug free workplace
One common aspect of the hiring process is certification.32 In addition, some employ-
medical condition and a prescription from pre-employment drug testing. Most states ers have policies giving them the right to
a doctor.10 Some of the qualifying condi- still permit pre-employment drug screens, drug test based on a standard of reasonable
tions include cancer, post-traumatic stress and the results can be determinative in the suspicion.33
disorder, chronic or severe pain, Parkinson’s hiring process. However, some states and
disease, Alzheimer’s disease, multiple scle- cities have begun to restrict what actions The problem with these policies in light of
rosis, and Tourette syndrome.11 Patients an employer can take as a result of a pos- expanded legalization of cannabis are the
with a prescription must be registered to itive screen.21 New York City has banned drug tests themselves and what those tests
purchase, possess, and use the medicinal employers from conducting pre-employ- reveal about the individual’s usage. Testing
marijuana with the State Board of Phar- ment screens for marijuana. 22 Nevada for impairment from cannabis use is diffi-
macy and can legally possess up to a 90-day has banned employers from refusing to cult because it cannot be determined if it
supply.12 The program permits cannabis to hire based on a positive pre-employment occurred on the job or after hours.34
be consumed in a form that can be vapor- screen for marijuana.23 New Jersey extends
ized, as opposed to ignited, or as tinctures, to applicants who test positive in a pre-em- This brings up questions about what symp-
patches, or oils.13 ployment screen the chance to present a toms or behaviors reasonable suspicion tests
legitimate medical explanation for the should be based upon. Employers can use
ILLINOIS result.24 a list of factors including, but not lim-
The Illinois Cannabis Regulation and Tax ited to: odors; questionable movements,
Act, which legalized recreational use of can- These bans do not, however, extend to fed- twitching, or staggering; dilated or watery
nabis, took effect on January 1, 2020.14 The eral agencies and occupations governed by eyes; flushed, confused or blank facial
law permits consumers who are 21 years federal regulation because they are subject expressions; slurred speech or inability to
or older to buy marijuana from licensed to federal law.25 Multiple industries are verbalize; argumentative, irritable or drowsy
sellers without a medical marijuana card.15 affected including transportation, energy, behavior; sleeping on the job, falling uncon-
Illinois residents are allowed to possess 30 defense, and federal contracting.26 Employ- scious or otherwise being unresponsive;
grams of cannabis flower, while visitors ers within these industries and federal or a report of drug usage from a reliable
to the state are allowed to possess half agencies can refuse to hire an applicant if a source.35
that much.16 There are also legal limits on drug screen comes back positive.27
BENCH & BAR | 11features:
EMPLOYMENT LAW
DISCRIMINATION Substances Act.43 Some federal courts have in the 2020 Session, but the bill failed.56
Anti-discrimination laws have also been also ruled that the ADA does not require Shauna’s Law had not been reintroduced
affected by expanded legalization, and many an accommodation for medical marijuana.44 this year at press time.
employers’ policies that address the adverse
actions an employer can take against an LEGISLATIVE DEVELOPMENTS More recently, the General Assembly con-
employee or potential employee for can- IN KENTUCKY sidered an amendment to the Kentucky
nabis use will need to be analyzed in light Since the legalization of CBD in 2014, the Civil Rights Act. Senate Bill 65 was intro-
of state anti-discrimination statutes. General Assembly has considered a number duced during the 2020 General Assembly.57
of bills to legalize medical marijuana and The bill would amend KRS § 344.040 to
First, employers should consider how the liberalize employment laws on the subject. make it unlawful for an employer to dis-
statutes affect on-duty use. Some state criminate against an individual because the
laws are clear that employers do not have FURTHER LEGALIZATION individual uses hemp-derived products.58
to tolerate cannabis use, whether legal or A bill was filed in 2015 to legalize medical The bill did not pass and has not been
not, during work hours.36 This means that marijuana but failed to pass out of com- introduced in the 2021 Session.
employers can take adverse action against mittee.45 The same concept easily passed
employees who use cannabis on the job or the House in the 2020 Legislative Session, CONCLUSION
who arrive at work under its influence.37 but consideration in the Senate was halted The past 10 years have seen widespread
by the COVID-19 pandemic.46 The bill cannabis legalization efforts across the
Second, employers should consider how included restrictions on who can possess country, whether that be states taking the
the statutes affect off-duty medicinal use and use medical marijuana and where it can first steps towards legalization or expand
of cannabis. States are split on this cate- be used.47 In January 2021, co-sponsors in ing laws previously enacted on the sub-
gory. Some prohibit taking adverse actions both houses reintroduced a bill calling for ject. While there is likely still a long road
against employees that engage in legalized legalized medical marijuana.48 The bill was ahead before we begin to see any sort of
medicinal use of cannabis while off-duty.38 pending at press time. uniformity among states in regard to their
Others, such as Ohio, allow employers to employment laws in light of legalization,
fire employees for off-duty use.39 Still others, Governor Beshear expressed support for there may be a glimmer of light at the end
such as Kentucky, have not addressed the the legalization of medical marijuana in his of the tunnel. With the advent of a new
issue. 2021 State of the Commonwealth Address administration and a slight tilt toward
but feels that a tax is necessary for the the Democrats in Congress, there is the
Third, employers should analyze the affect industry to be properly regulated.49 Such potential for a shift in the direction toward
of off-duty recreational use of cannabis. a tax would not necessarily be placed on federal legalization.59 While it is unlikely
While it is true that 15 states and the Dis- the consumer.50 Instead, it could be levied that such legislation would be a top priority
trict of Columbia have legalized or are in when pharmaceutical companies purchase for Congress or the Biden administration,
the process of legalizing recreational use of harvested crops for processing, but many there is no doubt that federal legalization
cannabis, only Maine provides protection lawmakers oppose such a tax.51 would play a pivotal role in streamlining
from discrimination based solely on the off- state laws across the country.
duty recreational use of marijuana.40 EMPLOYMENT RELATED ENDNOTES
The General Assembly in recent sessions 1 21 U.S.C. § 812
AMERICANS WITH has also considered bills that address 2 Compassionate Use Act of 1996, Cal. Health &
DISABILITIES ACT (ADA) AND employment related concerns that have Safety Code § 11362.5.
3 Medical Marijuana Laws, NORML, https://
DISABILITY ACCOMMODATION arisen since the legalization of CBD.
norml.org/laws/medical-laws/ (last visited Jan.
Finally, the last area to be examined in 16, 2021); Legalization, NORML, https://
light of expanded legalization is the ADA In 2019, Senate Bill 83, otherwise known norml.org/laws/legalization/ (last visited Jan.
and disability accommodations. Because as Shauna’s Law was introduced.52 Shauna’s 16, 2021).
4 Id.
marijuana is still considered a controlled Law was named for an EMT from Powell
5 Talbott, First Hemp Crop, Ky Historical Society,
substance under federal law, marijuana County, Ky., who was terminated after https://explorekyhistory.ky.gov/items/show/108
usage, even for medical purposes, is not THC from use of CBD was detected in (last visited Jan. 16, 2021).
protected under the ADA.41 her system.53 Shauna’s Law would create 6 S.B. 124, 2014 Leg., Reg. Sess. (Ky. 2014).
7 Peter Grinspoon, Cannabidiol (CBD) – what
an appeals process for public employees
we know and what we don’t, Harvard Health
The term “individual with a disability” does who may fail a drug test and violate their Publishing (Aug. 24, 2018), https://www.
not include an individual who is currently employers drug policies.54 The violation health.harvard.edu/blog/cannabidiol-cbd-what-
engaging in the illegal use of drugs, when would be set aside if the employee can we-know-and-what-we-dont-2018082414476
(last visited Jan. 16, 2021).
the covered entity acts on the basis of such produce a receipt for an industrial hemp
8 H.B. 333, 2017 Leg., Reg. Sess. (Ky. 2017).
use.42 Illegal use of drugs is defined as the product and as long as what is detected in 9 H.B. 523, 131st Gen. Assemb., Reg. Sess.
use of drugs, the possession or distribution screen corresponds with the product pur- (Ohio 2016).
of which is unlawful under the Controlled chased.55 Shauna’s Law was reintroduced 10 H.B. 523, 131st Gen. Assemb., Reg. Sess.
(Ohio 2016).
12 | MARCH/APRIL 2021ABOUT THE AUTHOR
NICK BIRKENHAUER is a partner practicing in DBL Law’s
Employment and Labor Practice Group. He has extensive expe- 41 Yvette Farnsworth Baker, Do Disability Laws
Cover Medical Marijuana Use, SHRM (Oct. 22,
rience assisting employers of all sizes and across many industries 2018), https://www.shrm.org/resourcesand-
with all aspects of human resources and employment law. In tools/legal-and-compliance/state-and-local-up-
addition to his employment law practice, he has broad busi- dates/pages/state-disability-laws-medical-mari-
ness and commercial litigation experience. He obtained his J.D. juana.aspx (last visited Jan. 16, 2021).
42 42 U.S.C. § 12210.
from Northern Kentucky University Salmon P. Chase College 43 Id.
of Law, and his B.A. from Washington and Lee University. He is 44 James v. City of Costa Mesa, 700 F.3d 394 (9th
admitted to practice law in Kentucky and Ohio, the U.S. District Cir. 2012); Gordon v. Swift Transportation Ser-
Court, Eastern and Western Districts of Kentucky, and the U.S. vices, LLC, 2020 WL 1668275 (W.D. Ky. April
3, 2020).
Court of Appeals for the Sixth Circuit. 45 H.B. 3, 2015 Leg., Reg. Sess. (Ky. 2015); S.B.
40, 2015 Leg., Reg. Sess. (Ky. 2015); see Ryland
ERIN SHAUGHNESSY is an attorney in DBL Law’s Civil Lit- Barton, Kentucky State Senator Pushing
igation Group. She earned her J.D., magna cum laude, from the Marijuana Legalization, WFPL News (Dec.
21, 2015), https://wfpl.org/bill-would-legal-
University of Louisville Louis D. Brandeis School of Law. She ize-marijuana-dedicate-revenue-for-education/
earned her B.S., summa cum laude, from Murray State University. (last visited Jan. 16, 2021).
She is admitted to practice law in Kentucky and Indiana, the 46 Joe Sonka, House passes medical marijuana bill
U.S. District Court, Eastern and Western Districts of Kentucky, in first approval of its kind in Kentucky, Courier
Journal (Feb. 20, 2020), https://www.couri-
and the U.S. District Court, Northern and Southern Districts er-journal.com/story/news/politics/ky-legisla-
of Indiana. ture/2020/02/20/kentucky-house-passes-med-
ical-marijuana-bill-historic-vote/4819639002/
(last visited Jan. 16, 2021).; Jacob Mulliken,
11 Id. ployers Are Reacting to the Legalization of Mar- Lawmaker reintroducing medical marijuana
12 Id. ijuana, Business News Daily ( June 10, 2020), bill, Owensboro Messenger-Inquirer (Dec. 13,
13 Id. https://www.businessnewsdaily.com/9386-le- 2020), https://www.messenger-inquirer.com/
14 Cannabis Regulation and Tax Act, 410 Ill. gal-marijuana-employment-practices.html (last news/local/lawmaker-reintroducing-medi-
Comp. Stat. Ann. 705 (2019). visited Jan. 16, 2021). cal-marijuana-bill/article_f17bceef-5649-5381-
15 Id. 29 See Patrick J. McMahon, Zero Tolerance for Zero 8b64-e81d314b2a36.html (last visited Jan. 16,
16 Id. Tolerance Marijuana Policies?, National Law 2021).
17 Id. Review, Vol. X, No. 41 (Feb. 10, 2020), https:// 47 H.B. 136, 2020 Leg., Reg. Sess. (Ky. 2020).
18 Id. www.natlawreview.com/article/zero-toler- 48 Kyle Jaeger, Kentucky Lawmakers File Bill to
19 Id. ance-zero-tolerance-marijuana-policies (last Legalize Medical Marijuana As Governor Steps
20 Id.; Robert McCoppin, Getting marijuana visited Jan. 16, 2021). Up Call For Reform, Marijuana Moment ( Jan.
convictions expunged in Illinois: What you need 30 Freedman, supra note 28. 8, 2021), https://www.marijuanamoment.net/
to know about the process, Chicago Tribune 31 Id. kentucky-lawmakers-file-bill-to-legalize-med-
(Aug. 30, 2019), https://www.chicagotribune. 32 See 802 KAR 25:280. ical-marijuana-as-governor-steps-up-call-for-
com/marijuana/illinois/ct-cb-weed-convic- 33 Lisa Nagele-Piazza, Workplace Drug Testing: reform/ (last visited Jan. 16, 2021).; H.B. 136,
tion-expunged-illinois-20190917-o2jrwf- Can Employers Still Screen for Marijuana, 2021 Leg., Reg. Sess. (Ky. 2021); S.B. 92, 2021
43trefbnb54efohdmwzu-story.html (last visited SHRM ( Jan. 21, 2020), https://www.shrm. Leg., Reg. Sess. (Ky. 2021).
Jan. 26, 2021). org/resourcesandtools/legal-and-compliance/ 49 See Jaeger, supra note 48; Ben Adlin, Top Ken-
21 Tamara Lytle, Marijuana and the Workplace: It’s state-and-local-updates/pages/can-employ- tucky Lawmakers Open to Medical Marijuana But
Complicated, SHRM (Aug. 28, 2019), https:// ers-still-test-for-marijuana.aspx (last visited Jan. Sour On Governor’s Plan To Tax It, Marijuana
www.shrm.org/hr-today/news/hr-magazine/ 16, 2021). Moment ( Jan. 6, 2021), https://www.marijua-
fall2019/pages/marijuana-and-the-work- 34 Freedman, supra note 28. namoment.net/top-kentucky-lawmakers-open-
place-its-complicated.aspx (last visited Jan. 16, 35 Nagele-Piazza, supra note 33; see also 802 to-medical-marijuana-but-sour-on-governors-
2021). KAR 25:280. plan-to-tax-it/ (last visited Jan. 16, 2021).
22 2019 N.Y.C. Local Law No. 91, N.Y.C. Ad- 36 See Timothy A. Hilton & Jenna Brof- 50 Id.
min Code § 8-107(31)(b). sky, Guidelines for Employers as More States 51 Id.
23 Nev. Rev. Stat. Ann. § 613.132. Legalize Marijuana, Husch Blackwell (Nov. 52 S.B. 83, 2019 Leg., Reg. Sess. (Ky. 2019).
24 Jake Honig Compassionate Use Medical 10, 2020), https://www.huschblackwell.com/ 53 Bridgett Howard, “Shauna’s Law” About CBD
Cannabis Act, N.J. Stat. Ann. § 6I-1 et seq. newsandinsights/guidelines-for-employ- Use By State Employees To Be Part of Next
25 See U.S. Office of Personnel Management, ers-as-more-states-legalize-marijuana (last Legislative Session, LEX 18 ( Jan. 22, 2019),
Federal Laws and Policies Prohibiting Mari- visited Jan. 16, 2021). https://www.lex18.com/news/covering-ken-
juana Use (May 26, 2015); Lisa A. McClane 37 Id. tucky/2019/01/22/shaunas-law-about-cbd-use-
& Donald P. Paradiso, Occupations Governed 38 State Laws Protecting Marijuana Users’ Employ- by-state-employees-to-be-part-of-next-legisla-
by Federal Regulation Remain Guarded Against ment Rights, NORML, https://www.canorml. tive-session/ (last visited Jan. 16, 2021).
State Medical Marijuana Non-Discriminaton org/employment/state-laws-protecting-med- 54 S.B. 83, 2019 Leg., Reg. Sess. (Ky. 2019).
Laws, Jackson Lewis ( June 11, 2019), https:// ical-marijuana-patients-employment-rights/ 55 Id.
www.drugtestlawadvisor.com/2019/06/occu- (last visited Jan. 16, 2021). 56 S.B. 96, 2020 Leg., Reg. Sess. (Ky. 2020).
pations-governed-by-federal-regulation-re- 39 Lisa Nagele-Piazza, Marijuana and the 57 S.B. 65, 2020 Leg., Reg. Sess. (Ky. 2020).
main-guarded-against-state-medical-marijua- Workplace: What’s New for 2020?, SHRM ( Jan. 58 Id.
na-non-discrimination-laws/ (last visited Jan. 17, 2020), https://www.shrm.org/resourcesand- 59 Natalie Fertig, Democractic-led Senate could
16, 2021). tools/legal-and-compliance/state-and-local- clear path to marijuana legalization, Politico
26 See McClane & Paradiso, supra note 25. updates/pages/marijuana-and-the-workplace- ( Jan. 8, 2021), https://www.politico.com/
27 See supra note 25. new-for-2020.aspx (last visited Jan. 16, 2021). news/2021/01/08/senate-democrats-mari-
28 Max Freedman, Cannabis at Work: How Em- 40 Me. Rev. Stat. Ann. tit. 28-B, § 112. juana-legislation-456074 (last visited Jan. 16,
2021).
BENCH & BAR | 13features:
EMPLOYMENT LAW
2021 Labor and
Employment Law
Outlook BY JAY INMAN
W
ith the first and ongoing steps of a new federal administra- The “joint employer” emphasis will be especially interesting here in
tion following a politically-charged presidential election the Commonwealth, as we have been labeled as having a so-called
and facing continued challenges from COVID-19, 2021 joint-employer “shield law,” specifically the 2017 amendment to
promises to be chock-full of labor and employment challenges for KRS § 337.010(e): “Notwithstanding any voluntary agreement
attorneys advising employers and litigating in the practice area. This entered into between the United States Department of Labor and
article sets out some of the key issues and challenges to anticipate a franchisee, neither a franchisee nor a franchisee’s employee shall
in the new year. be deemed to be an employee of the franchisor for any purpose
under this chapter.” Kentucky practitioners should keep a close eye
THE NEW ADMINISTRATION on these important labor and employment areas.
As President Joseph R. Biden, Jr., begins his first term early in 2021,
he brings the promise of a more labor-friendly focus to Cabinet While President Biden’s expected Labor Secretary nominee, Mayor
appointments and initiatives, reflecting a key shift from the out- Marty Walsh of Boston, has not articulated his priorities at the time
going Republican administration. This focus by the president will of this writing, his pro-labor background suggests he will emphasize
be all the more evident in that the House of Representatives has a union priorities, including further encouragement of unionization
Democratic majority and the Senate stands at a 50/50 split, assum- and collective bargaining through such measures as shorter turn-
ing the two independent Senators continue to align themselves with around (or “quickie,” as they have been coined) elections, originally
Democratic leadership, as they have historically. introduced in the NLRB rules during the Obama administration.
The Labor Cabinet will likely lean into the “persuader rule” from
Key target areas for the new administration will begin with pro- the Obama administration as well, requiring employers to report
viding additional COVID-19 relief to individuals and businesses, the activity of third-party consultants in supporting employers to
a focus discussed in the next section; revisiting the “joint employer” defeat union organizing campaigns.1 President Biden’s platform
standard, with a focus on permitting the concept to reach beyond during the 2020 election also included the prospect of barring “right
entities with direct control of other entities; and as recent efforts in to work” laws,2 like the one signed into law in Kentucky in 2017.3
California and other states have forecast, reshaping the definition Specifically, the administration’s goal is to repeal the provisions
of “independent contractor” in order to place more individuals in an of the Labor Management Relations Act of 1947, known as the
“employee” status, with all the rights associated with it. These areas Taft-Hartley Act, that authorize “right to work” laws. The coming
of the law will continue to see numerous legal challenges amidst administration will present many challenges and opportunities for
shifting statutory and regulatory requirements. Kentucky practitioners in labor and employment law.
14 | MARCH/APRIL 2021In addition to considering potential policy initiatives and legal potential harm from the risk, and the likelihood that the potential
developments, we should not forget the important progress being harm will actually occur. Even under a mandatory policy, however,
made in who has a seat at the table to lead such initiatives and exceptions must be allowed where the vaccine would exacerbate
developments – current advancements in representation impact a disability or certain medical conditions, and another area for
the foundation of our practice, as well as the most visible work- exceptions is when vaccination would go against an employee’s
place in our nation. As part of the Biden administration, Kamala sincerely held religious beliefs. Before excluding any employee from
Harris became the nation’s first woman and first woman of color the workplace, employers should carefully analyze potential accom-
to be elected Vice President. Whatever one’s political affiliation, modations, such as remote work, and review federal, state, and local
and whether one supported the Biden-Harris ticket or another laws for any protected rights the employee may have. Whether
ticket during the election, the significance of our nation’s firsts in mandatory or voluntary, the vaccine’s entrance into the workplace
this regard should not be lost on any of us. Just last year, Rachelle will almost certainly result in significant litigation.
Williams Dodson’s “Why Black Women Matter”4 made a powerful
statement about the talent and diversity in our Kentucky bar, and Beyond vaccinations, practitioners should be alert to ongoing devel-
now children of all backgrounds can see themselves reflected in opments with regard to various leave requirements and benefits
officials at the highest levels of government, developing the laws related to COVID-19. Just as we faced speedy implementation
and policy that shape all of our lives. of the Families First Coronavirus Relief Act (FFCRA) in 2020,7
with its sections focusing on emergency sick leave and temporarily
CONTINUED COVID-19 CHALLENGES expanding who qualifies for FMLA relief, 2021 will bring more
In 2020, the COVID-19 pandemic gripped our nation, bringing challenges. The FFCRA benefits became voluntary for employers
serious illness and death to our doorsteps. As readers know all too in 2021, as the mandatory provisions expired at the end of 2020.
well, the legal environment required deep and broad knowledge all President Biden has already proposed reinstituting a number of
at once, with the nimbleness to change course quickly when legal the FFCRA provisions, with adaptations, in his COVID-19 relief
and regulatory schemes were often in rapid flux. As our nation con- plan,8 including limiting any exemptions, such as the exemption
tinues to deal with COVID-19, the challenges of 2021 promise to for small employers. One area to watch closely is the healthcare
focus on re-entry into the workplace and the rebuilding of business provider exemption, which the Department of Labor already mod-
connections, and once again, we will need to be ready. ified in 2020 in partial response to a U.S. District Court for the
Early in 2021, we have already seen consid-
erable debate regarding COVID-19 vaccines
in the workplace, including whether such vac-
cines can or should be required by employers.
Unlike vaccines for other conditions, such as Talk to us about LEGAL MALPRACTICE
polio, the Food and Drug Administration
approved COVID-19 vaccines through an And learn why lawyers throughout Kentucky refer their legal
emergency use authorization (EUA) proce- Malpractice cases to William F. McMurry and Associates
dure, rather than its usual approval process,
and this is one of many wrinkles. In order to Building referral relationships based on
gain full approval, there must be “substan- confidence and trust.
tial evidence” of a vaccine’s efficacy; in the
case of EUA, a “may be effective” standard
William F. McMurry is Board Certified
is employed, which arguably provides a less
secure footing for employers in determin- as a Legal Malpractice Trial Specialist
ing whether to mandate vaccinations.5 On By the American Board of Professional
December 16, 2020, the Equal Employment Liability Attorneys (ABPLA.org)
Opportunity Commission updated its guid-
ance, providing that, in general, an employer The ABPLA is accredited by the ABA
can establish a mandatory vaccination policy to certify specialist in the field of
if it is job-related or if remaining unvacci- Legal Malpractice – SCR 3.130(7.40)
nated would pose a direct threat to other
employees, customers or themselves; this is a Email Bill@CourtroomLaw.com
solid starting place.6 Practitioners should be Call 502-326-9000
mindful that the “direct threat” conclusion is
not automatic, and careful analysis requires William F. McMurry will personally handle each case while
individualized consideration of factors such some services may be provided by others.
as the imminence and duration of the antic-
ipated risk, the nature and severity of the
BENCH & BAR | 15features:
EMPLOYMENT LAW
Southern District of New York decision striking part of the exemp- divides. We have to address the challenges posed by the pandemic
tion as overbroad.9 The Biden administration has begun discussing ourselves to provide our best advice, counsel, and advocacy to clients.
the possibility of eliminating the healthcare provider exemption
completely,10 which will raise any number of urgent questions for CONCLUSION
healthcare employers concerned about keeping their facilities ade- It’s an exciting time to practice labor and employment law in
quately staffed during the pandemic. Kentucky, but also one that comes with many serious issues and
challenges. Successful practice in the area will continue to require
Additionally, we should anticipate a continued uptick in COVID- full-time commitment, deep experience, and original thinking.
19-related employment litigation, as parties advance their positions
regarding pandemic-related employment actions, such as furloughs
and layoffs. Per my firm’s freely available national COVID-19 lit-
igation tracker,11 from March 12, 2020 through January 19, 2021, ABOUT THE AUTHOR
1,573 lawsuits (including 137 class actions) have been filed against JAY INMAN is a shareholder in
employers arising from alleged labor and employment law violations Littler Mendelson, P.S.C.’s Ken-
related to COVID-19. In Kentucky, the data show 15 federal court tucky office, where he represents
cases and 21 state court cases, totaling 36 altogether. This number management in all aspects of
may appear modest, but of course does not include the numerous labor and employment law, with
charges that have been filed before administrative agencies, such a particular focus on complex and
as the Kentucky Labor Cabinet, Equal Employment Opportunity appellate litigation.
Commission, and Kentucky Commission on Human Rights. In
courts, the most prevalent pursued claims thus far in the Common-
wealth include disability discrimination, violations of the FFCRA,
and retaliation. ENDNOTES
1 Interpretation of the “Advice” Exemption in Section 203(c) of the La-
Finally, as the COVID-19 pandemic continues and, for many of us, bor-Management Reporting & Disclosure Act, 81 Fed. Reg. 15924 (Mar.
24, 2016).
we continue to work remotely, we should be all the more mindful
2 See The Biden Plan for Strengthening Worker Organizing, Collective
of each other’s well-being, taking care of each other. The Centers Bargaining, and Unions, https://joebiden.com/empowerworkers.
for Disease Control maintains a resource focused on coping with 3 KRS § 336.130(3).
the stress of a pandemic, with helpful tips and ideas.12 More than 4 Rachelle Williams Dodson, Why Black Women Matter in the Workplace, Ky.
Bar Ass’n Bench & Bar, July/Aug. 2020, at 6.
a resource sheet, we need each other – genuine human connection
5 Emergency Use Authorization of Medical Products & Related Authorities,
made by taking time to reach out and talk with each other support- 82 Fed. Reg. 4362 ( Jan. 13, 2017).
ively. This is a serious labor and employment law issue in our own 6 EEOC, What You Should Know About COVID-19 and the ADA, the
workplaces, where we have lost too many colleagues and friends, Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/
what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-
seen too much depression and lost hope, and experienced too many
other-eeo-laws (Dec. 16, 2020).
7 Families First Coronavirus Response Act, Pub.
L. 116–127, 134 Stat. 177 (codified in scattered
sections of the U.S. Code) (2020).
8 President Joseph R. Biden, Jr., National Strategy
for the COVID-19 Response and Pandemic
Preparedness, https://www.whitehouse.gov/
wp-content/uploads/2021/01/National-Strate-
gy-for-the-COVID-19-Response-and-Pandem-
ic-Preparedness.pdf ( Jan. 2021).
9 New York v. U.S. Dep’t of Labor, No. 20-CV-3020
( JPO) (S.D.N.Y. Aug. 3, 2020); Paid Leave
Under the Families First Coronavirus Response
Act, 85 Fed. Reg. 57677 (Sept. 16, 2020).
10 Jim Paretti & Michael J. Lotito, President-Elect
Biden Releases COVID-19 Economic Stimulus Pro-
posal, https://www.littler.com/publication-press/
publication/president-elect-biden-releas-
es-covid-19-economic-stimulus-proposal ( Jan.
19, 2021).
11 Littler Mendelson, COVID-19 Labor & Em-
ployment Litigation Tracker, https://www.littler.
com/publication-press/publication/covid-19-la-
bor-employment-litigation-tracker.
12 CDC, Coping with Stress, https://www.cdc.gov/
coronavirus/2019-ncov/daily-life-coping/manag-
ing-stress-anxiety.html.
16 | MARCH/APRIL 2021You can also read
