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Penelope Phillips, Felhaber Larson
Penelope Phillips, Felhaber Larson

The POWER 30: Penelope Phillips

The complexity of the employment law field is aptly explained by the lists of practice areas on the Minneapolis firm of Felhaber Larson’s website. It covers the field from the Americans with Disabilities Act to wrongful termination. It explains why representing employers is starting to involve more advice and training and somewhat less litigation, according to Penelope Phillips. Focusing on compliance is the “preventive medicine” approach to the law, she said.

Federal and state laws accompanied by extensive regulations provide ample grounds for confusion. Complaints about workplace practices then lead to more employer reaction, and that leads to retaliation, Phillips explained.

Life has become crazier over the past two years of COVID issues, Phillips said. Employers are dealing with state and federal law, the Centers for Disease Control and Prevention, the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services, she said. The latter governs institutions who receive Medicare funding and that includes long-term care and hospitals, many of Felhaber’s clients.

The field of vaccinations is fraught, Phillips said. The CDC requires vaccinations but employees may seek exemptions for sincerely held religious beliefs or medical reasons. Exemptions come with their own problems, including specific medical grounds that also require a doctor’s signature. Medical grounds may be limited to allergic reactions to the vaccine.

She helps clients navigate the conflicts arising from the layers of regulation, Phillips said. It’s a little too soon to evaluate what employers have learned from COVID-19, but one is the importance and also the challenge of flexible work arrangements for employees, including leave opportunities, she said.

Another topic raises questions for employers, and that is medical marijuana at work. While medical marijuana use at work is protected by Minnesota law, the Drug and Alcohol testing in the Workplace Act
(DATWA), Minn. Stat. sec. 181.950 et seq. gives outdated ways to test at work for inappropriate marijuana use, upon reasonable suspicion. The Legislature needs to bring that law up to date, Phillips said.

The law doesn’t include criteria for being under the influence of marijuana at work, Phillips said. An employee taking medical marijuana will have it in his or her body but there is no defined standard for intoxication, she explained.