From hairstyle discrimination protection and worker classification to medical marijuana’s increasing presence in Louisiana workplaces, there are many legal changes employers and employees need to be aware of in 2023.
Discrimination based on hair
Becoming the 19th state to do so, Louisiana officially now protects employees, public or private, from discrimination based on cultural hairstyles, according to a new amendment under the Louisiana Employment Discrimination Law. The state’s version of the CROWN ACT (Creating a Respectful and Open World for Natural Hair), is one of the most significant changes in employment law for 2023, according to multiple people familiar with the matter.
Prior to this amendment, employees in Louisiana would have to use alternative protected avenues such as religion or racial discrimination if they wanted to protect their right to wear certain hairstyles. Under the new amendment, an employer cannot refuse to hire someone because of “natural, protective, or cultural hairstyle,” defined as “afros, dreadlocks, twists, locs braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance.”
New Orleans had a version of this amendment in place, but now the protection reaches statewide. Now, if employers want to contest hairstyles, they must be able to prove a hairstyle is a safety hazard, such as preventing a worker from being able to wear personal protection equipment.
“In general, the regulatory landscape is really difficult right now for employers, because you’re not only tracking the federal law and how its interpreted in my jurisdiction here, but also what is the state law and then what is the local law,” said Dr. Kathlyn Perez of Perez Law LLC on the CROWN ACT bouncing from New Orleans to the state.
Although stalled in the senate, the United States House of Representatives passed its own CROWN Act in March 2022.
Medical marijuana in the workplace
As the use of cannabis increasingly becomes mainstream, states like Louisiana — where only approved medical use is legal — are looking to expand the rights of consumers. This is resulting in changing employment laws.
Although medical marijuana is legal in the state of Louisiana, it is not protected by the Americans with Disabilities Act (ADA), meaning Louisiana employers can still terminate employees who use medical marijuana without violating federal discrimination laws. Louisiana is one of the nation’s 14 at-will employment states, meaning an employee can be terminated at any time without reason.
Regarding medical marijuana in the workplace, Fred Preis, senior partner at Breazeale Sachse & Wilson expressed concern given what he sees as the possibility for ADA guidelines at the state level to change.
“We’re treading lightly in the advice we give,” he said.
Louisiana Gov. John Bel Edwards responded to this lack of federal protection for medical marijuana users last June by prohibiting state employers from subjecting an employee to negative employment consequences if the employee tests positive for THC, as long as they’re a registered medical cannabis patient with a marijuana recommendation from a licensed physician.
These protections could soon be expanded to Louisiana’s private sector employees because the state is currently discussing and drafting legislation to that end, said Magdalen Blessey Bickford, a New Orleans attorney with McGlinchey Stafford.
Louisiana recently expanded the number of conditions that satisfy the requirement for a medical marijuana recommendation — a technicality that protects doctors since they are only making “recommendations,” not writing prescriptions.
In December, the Employment and Medical Marijuana Task Force approved more than a dozen guidelines to the state Legislature protecting workers who use medical marijuana. On the opposing side, a member representing the Louisiana Association of Business and Industry (LABI), Troy Prevot, expressed his discontent with the Legislature’s guidelines in arguments claiming they would cause further confusion on the issue.
Although a slew of state employees are protected against any negative employment consequences “based solely” on a positive drug test for marijuana as long as they have a licensed physician’s recommendation, not all state employees are incorporated into the codification. Excluded from the protection are emergency medical and firefighting services, law enforcement employees, public safety employees and officials, and any state employee of the horse-racing commission.
Viewing this as a “significant first step” in protecting employee medical marijuana use, Hal Ungar, a labor and employment lawyer with Ogletree Deakins, is expecting similar legislation to come for private employees. He said it also remains to be seen “how the courts will reconcile this protection with the ADA case law declaring ADA protections inapplicable to medical marijuana because it is a federal, schedule I narcotic,” adding, “It appears a reckoning is coming on these issues.”
Independent contractors
Another national employment conversation with an increased local presence is the dispute of worker classification of independent contractors versus an employee.
“It’s very attractive for employers to [label workers as independent contractors],” said Rachel Wisdom, an employment lawyer at Stone Pigman. “[It’s a] very common error.”
Not only is the continual question of worker classification present in New Orleans, but the Department of Labor is also increasingly interested in this form of employer violation that is a “persistent growing problem” as they’re stepping up their enforcement in this arena, according to Wisdom.
The reoccurring problem regarding worker classification is that while most government workers are considered employees, each agency has a different definition of what makes an independent contractor.
“That’s been the issue of the decade,” said Sid Lewis, partner and leader of the Labor and Employment Practice Group at Jones Walker. Preis added there is a strong argument at the state level that independent contractors should be treated as employees.
While the classification of workers is relevant to all industries, the healthcare sector especially grapples with the situation due to the workforce shortages sparked by the COVID-19 pandemic. Hospitals and healthcare facilities are desperate to hire workers in this post-COVID era, resulting in the increased use of contractors.
Furthermore, Perez said some nurses and other healthcare workers can often make more money as independent contractors as opposed to being employed full-time by one facility, which exacerbates the healthcare industry’s worker shortage and the strain on many healthcare personnel. Even those not directly employed by the healthcare system are impacted by this, as this scenario has caused the price of health care to rise.
Pregnancy accommodations
With the overturning of Roe v. Wade this summer, Louisiana’s pregnancy accommodations law was thrust back into the spotlight, reminding those in the state that although pregnancy isn’t considered a federal disability, it is at the state level, meaning pregnant Louisianians can receive reasonable accommodations to extend their pregnancy leave beyond their maternal/paternal care.
“I haven’t seen much on [Louisiana’s pregnancy accommodations law] yet, but I think we’ll start seeing claims,” said Sid Lewis.
Employee remote work in other states
According to Perez, employers shouldn’t be worried about their employees adopting the trend of “quiet quitting,” but rather “quiet moving,” when employees take advantage of their lax office requirements and work remotely elsewhere.
She said neither employers nor employees fully understand the legal ramifications of having an employee in a different state from a business.
“You as the employer are responsible for complying with laws of where the employees are clocking in and out, even if the business is based where employees are not,” said Phillip Giorlando of Breazeale Sachse & Wilson LLP’s New Orleans office.
Although this is more readily applicable to employers in tech fields, traditional in-person industries like health care are even impacted, too — Perez said telehealth has already made this legal question a thorny issue.
When employees are working remotely in a different state than their employer, the employer may be liable for the employee’s state leave requirements, as well as minimum wage, disclosures and many more provisions. This is one of the reasons behind why some job applications today that claim to be remote nonetheless have a disclosure that they may only hire remote employees based in certain states, of which Louisiana is frequently not included.
