Federal Court Dismisses Employer’s Claims For Indemnification and Contribution Against Drug Testing Vendor After False Positive Drug Test Result

A federal court in South Dakota granted a motion to strike and a motion to dismiss filed by the Equal Employment Opportunity Commission (“EEOC”) and the laboratory that conducted drug tests for the Defendant employer, holding that the employer was not entitled to seek indemnification or contribution from the laboratory for damages based on a false positive drug test result. EEOC v. M.G. Oil Company, No. 4:16-4131-KES, (D.S.D. August 10, 2017).

On April 8, 2013, Kim Mullaney applied for a job with Happy Jack’s, which is owned by M.G. Oil Company, and was offered a position contingent on a negative drug test. M.G. Oil had contracted with Testpoint Paramedical to analyze the drug tests of prospective employees and inform it whether a test result was negative or positive, after review by a medical review officer.  A medical review officer is a licensed physician who analyzes drug test results and considers whether a positive test result could have been caused by the use of lawful medications.  On April 9, 2013, M.G. Oil sent Mullaney’s drug test to Testpoint for analysis and Testpoint reported that Mullaney’s test was positive.  Assuming that Testpoint had sent the positive test to a medical review officer to determine whether there was a valid legal reason for the positive result, M.G. Oil withdrew its offer of employment to Mullaney.  Mullaney asserted that she was a disabled person under the Americans with Disabilities Act (“ADA”) and that the positive test result was due to a prescription painkiller she took for back pain.  M.G. Oil refused to reconsider its decision.

Mullaney filed a claim of discrimination under the ADA with the EEOC and, after an investigation and failed attempts at resolution, the EEOC brought suit against M.G. Oil. M.G. Oil filed a third-party complaint against Testpoint asserting that it was liable for all or part of any judgment because it had breached its contract with M.G. Oil and was negligent.  Specifically, M.G. Oil asserted that Testpoint was liable because it failed to send Mullaney’s positive drug test to a medical review officer to determine whether there was a valid legal reason for the result prior to reporting the results to M.G. Oil.

The EEOC moved to strike the third-party complaint, and Testpoint moved to dismiss for failure to state a claim. Both argued that claims for indemnity and contribution are not permitted under Title I of the ADA based on the Supreme Court’s holding in Northwest Airlines v. Transport Workers Union, 451 U.S. 77 (1981).  In Northwest Airlines, the Supreme Court determined that a claim for contribution could not be pursued by employers in federal court under Title VII. Northwest Airlines establishes that the right to contribution under a federal statute may be created in two ways: (1) by express or implied language in the statute; and (2) by federal common law. Id. at 90.  The Supreme Court held that neither of those requirements was satisfied in that case.

The EEOC and Testpoint argued that the holding in Northwest Airlines applied to ADA claims because of the similarities in the statutes and the fact that they have the same enforcement provisions.  The Court agreed.  Relying on the Supreme Court’s decision in Northwest Airlines, the Court noted that the “enforcement provisions of the ADA and Title VII do not exist to protect employers, nor do they provide employers with the option to transfer liability by indemnification or contribution.”  As a result, the third-party complaint was dismissed.

This decision underscores how important it is for employers to scrutinize the practices of the vendors they rely upon for drug and alcohol testing services, including collection facilities, laboratories and medical review officers. Employers should confirm, in writing, all policies and procedures that drug testing vendors are expected to follow.

Federal Law Does Not Preempt Connecticut Medical Marijuana Law Employment Discrimination Prohibition

Federal law does not preempt the Connecticut medical marijuana statute’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test, the U.S. District Court for the District of Connecticut has held. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr. (D. Conn. Aug. 8, 2017). This is a case of first impression that may have potentially sweeping implications for employers who conduct workplace drug testing.  The court also held that the Connecticut Palliative Use of Marijuana Act (PUMA) provides a private right of action for individuals claiming to be discriminated against as a result of their qualifying patient status, that PUMA’s anti-discrimination provision does not violate the Equal Protection Clause, and that employers regulated by federal laws are not exempt from the state statute’s discrimination prohibitions.

Background

According to the allegations in her complaint, Katelin Noffsinger is a registered qualifying patient who has used medical marijuana since 2015, when she was first prescribed a daily dose of Marinol (synthetic marijuana in capsule form) to treat symptoms related to post-traumatic stress disorder (PTSD).

In July 2016, Noffsinger was given a verbal offer for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut. Shortly thereafter, she was asked to undergo a routine pre-employment drug screen. Noffsinger then disclosed to Bride Brook that she was diagnosed with PTSD and that she took prescription marijuana as a “qualifying patient” under PUMA. Noffsinger provided Bride Brook a copy of her patient registration certificate, explaining that she only took Marinol in the evenings, before bed, and thus would not be impaired during the workday. Noffsinger offered to provide additional information if necessary, though none was requested by Bride Brook. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because she tested positive for marijuana.

Noffsinger filed a complaint in state court, alleging a violation of PUMA’s anti-discrimination provision. The provision states, “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” After removing the case to federal court on the basis of diversity jurisdiction, Bride Brook moved to dismiss Noffsinger’s complaint. The court denied the motion for these reasons:

No Federal Preemption

Bride Brook argued that PUMA is preempted by the Controlled Substances Act (CSA), Americans with Disabilities Act (ADA), and Food, Drug and Cosmetic Act (FDCA) based on the theory of “obstacle preemption,” under which state laws are preempted or invalidated if they “stand as an obstacle to the objectives of Congress.” To prove obstacle preemption, a party must show the state law creates an “actual conflict” with an overriding federal purpose and objective — mere tension is generally insufficient. Here, the court held that PUMA did not pose a conflict with any of the cited federal statutes:

  • CSA: Bride Brook argued that an actual conflict exists between PUMA (which affirmatively authorizes the medical use, possession, sale and distribution of marijuana) and the CSA (which classifies marijuana as a Schedule I substance with no known medicinal purpose and thus makes it a federal crime to use, possess, or distribute marijuana). The court rejected this argument as “overbroad,” holding that, because Noffsinger’s claim is limited to PUMA’s anti-discrimination provision (as opposed to seeking enforcement of the statute as a whole), Bride Brook must prove a conflict between that specific provision and the CSA, not between the CSA and PUMA more generally. The court held that no such conflict exists because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. It noted the limited nature of its inquiry distinguished this case from cases in other states that held CSA preempted the state’s medical marijuana law, as none of those state statutes had specific provisions prohibiting employment discrimination and thus required a broad preemption analysis.
  • ADA: Bride Brook argued that PUMA’s anti-discrimination provision was preempted by the ADA, which expressly excludes current users of illegal drugs from the ADA’s definition of a qualified individual with a disability. The ADA also provides that employers may test applicants and employees for illegal drug use and may prohibit the illegal use of drugs in the workplace. The court held that the ADA’s requirements regarding workplace drug use were irrelevant, as PUMA does not authorize individuals to use marijuana while at work (nor did Noffsinger request permission to do so). Moreover, the court reasoned that the ADA’s silence on an employer’s ability to prohibit the use of illegal drugs outside of the workplace “is a powerful indication that the ADA was not meant to regulate non-workplace activity, must less to preclude the States from doing so.” Finally, the court noted PUMA’s anti-discrimination provision was protected by the ADA’s savings clause, which states the ADA shall not be “construed to invalidate … [any State law] that provides greater or equal protection for the rights of individuals with disabilities ….”
  • FDCA: The court dismissed Bride Brook’s argument that PUMA was preempted by the FDCA, which prohibits the sale or distribution of medications that have not been approved by the Food and Drug Administration. As with the CSA, the court held the FDCA does not regulate employment and thus does not preempt PUMA’s employment-related provisions.

Private Cause of Action

Bride Brook also moved to dismiss the Complaint on the grounds that PUMA does not provide for a private right of action. While the parties agreed that PUMA does not specifically allow for such a right, the court nevertheless held that such a right was implied, based on an analysis of the statute, legislative history, and applicable Connecticut precedent. Without a private right of action, the court held, PUMA’s anti-discrimination provision would have no practical effect because there is no other enforcement mechanism.

No Broad Exemption for Federal Contractors, Other Federally Regulated Employers

Bride Brook argued that it was exempt from PUMA’s anti-discrimination provision, which prohibits employers from terminating or refusing to hire a qualifying patient “unless required by federal law or required to obtain federal funding.” (Emphasis added.) As a nursing facility, Bride Brook is subject to federal regulations that require compliance with federal laws, and, as marijuana is illegal under federal law, Bride Brook reasoned it would be in violation of these regulations if it hired Noffsinger, a known marijuana user.  The court characterized this argument as “border[ing] on the absurd.” It held that “the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA” or any other federal law.

Equal Protection Clause

In the event PUMA was not preempted by federal statute and allowed for a private right of action, Bride Brook argued that the statute nevertheless violates the Equal Protection Clause, as it requires employers to treat medical marijuana users differently than similarly situated recreational marijuana users. Dismissing the argument as “frivolous,” the court held that Connecticut’s legislature could rationally distinguish employees who use marijuana for medicinal purposes under a physician’s supervision from “people who use marijuana at their whim to get high.”

Implications for Employers

Noffsinger complicates an already complicated landscape for employers who conduct drug testing for marijuana, particularly as the decision marks the third time in four months that a court has ruled against employers in drug testing cases involving medical marijuana users. (The others were Massachusetts and Rhode Island state courts.)  Noffsinger is the first time a federal court has considered whether the CSA preempts a state medical marijuana law’s anti-discrimination provision, and the result is a warning to employers with policies that include categorical denial or termination of employment because of a positive drug test. Employers in Connecticut and elsewhere should consider the marijuana laws affecting their workplaces now, before an issue arises.

Claim of Massachusetts Employee Fired for Medical Marijuana Use May Proceed, State High Court Rules

An employee fired after she tested positive for marijuana on a test administered in the hiring process should be able to proceed with her “handicap discrimination” claim under Massachusetts’ anti-discrimination statute, the Massachusetts Supreme Judicial Court has ruled. Barbuto v. Advantage Sales & Marketing, LLC, SJC -12226 (July 17, 2017). The Court’s ruling partially overturned the lower court’s decision to grant the employer’s motion to dismiss.

The state high court decision means the search continues for clarity in balancing safety in the workplace with the ever-growing number of workers seeking to continue use of medicinal marijuana in accordance with state laws.

Background

The plaintiff, Christina Barbuto, possessed a valid medical marijuana prescription under Massachusetts law to treat Crohn’s disease. She shared these facts with her prospective employer Advantage Sales and Marketing, LLC. ASM administered a urinalysis drug test and permitted Barbuto to begin work before receiving her drug test result. When ASM found out Barbuto failed the test, testing positive for marijuana, it terminated her employment.

Barbuto then brought suit against ASM alleging:

  1. disability discrimination/failure to accommodate in violation of Massachusetts law;
  2. invasion of privacy;
  3. termination in violation of public policy; and
  4. claims that ASM violated Massachusetts’ medical marijuana statute.

ASM moved to dismiss the suit. The Superior Court dismissed all of Barbuto’s claims, except for her invasion of privacy claim. The decision was viewed as consistent with other jurisdictions and as providing necessary clarity for Massachusetts employers.

Supreme Judicial Court Decision

On Barbuto’s appeal, the Massachusetts Supreme Judicial Court, relying upon its reading of the Commonwealth’s anti-discrimination statute, medicinal marijuana legislation, and state agency regulations, overturned the Superior Court’s dismissal of Barbuto’s disability discrimination/failure to accommodate claim under Massachusetts law. It affirmed the remaining portions of the lower court’s decision, including a finding that the Commonwealth’s medicinal marijuana statute did not contain an implied private right of action.

In reviving Barbuto’s discrimination claims, the Court expressly rejected the employer’s argument that, because marijuana is illegal under federal law, requiring an employer to accommodate medical marijuana use is per se unreasonable.

Instead, the Court held that, at a minimum, ASM owed Barbuto an obligation to engage in an interactive dialogue concerning her ongoing medicinal marijuana use before terminating her employment. The Court did not foreclose the possibility that accommodating medicinal marijuana use could pose an undue hardship on the employer (citing examples of associated significant safety risks or potential loss of contracts), but left that issue open for the employer to prove at a later date.

Lessons for Employers

This ruling provides a cautionary tale to employers, especially those operating in states where medical marijuana laws have not yet been fully tested through litigation.

Employers should review their written policies and practices, as well as coordinate with their third-party drug testing entities about how they wish to handle positive marijuana tests.

This ruling also should prompt employers to consider providing new or refresher training to managers and human resources professionals on how to address hiring, drug testing, performance discussions, and termination decisions when the employee involved is a medical marijuana user, including when a decision should be “pushed up the chain” before being made.

While courts in other jurisdictions with similar medicinal marijuana legislation may reach a different result on this issue, all employers should note this development and consider their approach to medical marijuana issues.

Florida Governor Signs Medical Marijuana Law

Last November, Florida voters overwhelmingly voted to amend the Florida Constitution to permit the use of medical marijuana. The constitutional amendment went into effect on January 3, 2017, and required regulations to be implemented no later than July 3, 2017. On June 9, 2017, the Florida Senate passed a bill relating to medical use of marijuana, and Governor Rick Scott signed it on June 23, 2017, rendering it effective.

“Qualifying Conditions” under the medical marijuana law include cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease, multiple sclerosis, chronic nonmalignant pain, and comparable medical conditions. The law provides that “medical use” does not include possession, use, or administration of marijuana that was not purchased or acquired from a medical marijuana treatment center.  The law also also does not permit smoking of medical marijuana; instead, medical marijuana products can be consumed as edibles, vaping, oils, sprays or tinctures.  Florida and national news outlets have already reported that legal challenges to the law are likely, specifically with respect to the prohibition against smoking marijuana.

Significantly, the law includes several employer-friendly provisions:

  • The term “medical use” does not include use at a qualified patient’s place of employment, except when permitted by his or her employer.
  • The law does not limit the ability of an employer “to establish, continue, or enforce a drug-free workplace program or policy.”
  • Employers are not required to “accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.”
  • Medical marijuana is not reimbursable under the Florida Workers’ Compensation Law.
  • Most significantly, the law “does not create a cause of action against an employer for wrongful discharge or discrimination.”

Florida employers should review their drug and alcohol policies to determine whether any revisions are needed to comply with the new law.

Casino Employee’s ADA Claims Dismissed Due to Current Drug Use

A federal court in Nevada dismissed a casino employee’s American with Disabilities Act (“ADA”) claims — even though he had been treated for substance abuse in the past — because he admitted to current drug use which is not protected under the ADA. Scott v. Harrah’s LLC, No. 2:17-cv-01066-APG-VCF (D. Nev. May 9, 2017).

Donald A. Scott Jr. (“Scott”) worked at Harrah’s Hotel & Casino (“Harrah’s”) from 2006 to 2015. In 2014, Scott informed Harrah’s that he suffered from drug addiction.  In response to Scott’s admission, Harrah’s adjusted his work schedule so that he could seek treatment.  Scott voluntarily sought treatment and rehabilitation services in 2014 and again in November 2015.  In December 2015, Harrah’s randomly drug tested Scott and suspended him without pay pending the results.  The results came back positive and Scott admitted to using marijuana approximately 2 to 3 weeks before the test.  Consequently, Scott’s employment was terminated.  He filed suit against Harrah’s for disability discrimination, wrongful termination and retaliation under the ADA.

The Court stated that drug addiction that “substantially limits” one or more major life activities of an individual is a recognized disability under the ADA. Individuals who have successfully completed or are participating in a drug rehabilitation program are protected. However, the phrase “individual with a disability” specifically excludes an “individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C. §12210(a).    Furthermore, the phrase “currently engaging” is not limited to the use of drugs on the day of the test.  Indeed, the Court noted that the Ninth Circuit has interpreted the “currently engaging” language to mean “employees who have not refrained from using drugs for a significant period of time.”

Because Scott had admitted to using drugs within a few weeks of the drug test, the Court found that he was actively engaging in prohibited conduct at the time of his termination.  Therefore, Scott was not a qualified individual under the ADA and the Court dismissed his complaint with prejudice.

Employer’s Refusal to Hire Medical Marijuana User Violates State Law, Rhode Island State Court Holds

Employers cannot refuse to hire a medical marijuana cardholder, even if the individual admittedly would not pass the employer’s pre-employment drug test required of all applicants, a Rhode Island state court has held under the state medical marijuana law. Callaghan v. Darlington Fabrics Corp., et al., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017). The court granted summary judgment to the plaintiff-applicant.

The plaintiff had applied for a paid internship with the employer and disclosed that she had a medical marijuana card and would not pass the employer’s required pre-employment drug test. The employer’s policy prohibited only the use of drugs on company property. It did not state that a positive drug test result would lead to withdrawal of a job offer.  When she was not hired, the plaintiff sued the employer under the Rhode Island medical marijuana law, the Hawkins-Slater Act, as well as the state’s disability discrimination statute, for refusing to hire her.

The Hawkins-Slater Act provides, “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”  The Act, however, also provides, “Nothing in this chapter shall be construed to require … [a]n employer to accommodate the medical use of marijuana in any workplace.”

In a 32-page opinion that opened with a Beatles quote on getting high, the Rhode Island Superior Court granted summary judgment to the plaintiff.  The court held the Act created an implied private right of action in large part because, without such an implied private right, the law’s prohibition on refusing to employ an individual solely because of his or her status as a medical marijuana cardholder would be rendered meaningless.  The court rejected the employer’s argument that the law permitted a distinction between refusing to hire because of cardholder status (admittedly unlawful under the Act’s plain language) and refusing to hire because of an inability to pass a mandatory pre-employment drug screen, urging the court to interpret the Act to prohibit employers from refusing to hire under both scenarios.

Referencing the employer’s own policy language, the court also rejected the argument that employers had no obligation to accommodate medical marijuana use under the Act on the premise that the Act distinguishes between the medical and nonmedical use of marijuana. While the court agreed that employers are not required to tolerate employees who report for work under the influence of marijuana, it held the Act expressly states that an employer may not refuse to employ a person due to his or her status as a medical marijuana cardholder. Therefore, the court ruled the employer violated the Act in refusing to hire the plaintiff even though she admittedly could not pass the pre-employment drug test.

As to the applicant’s disability discrimination claim under state law, the court rejected the employer’s argument that, having no knowledge of the plaintiff’s disability, it could not have discriminated against her. The court ruled that discrimination could be shown “against a class of disabled people — namely, those people with disabilities best treated by medical marijuana.” It also concluded medical marijuana users are not precluded from bringing a state law disability discrimination claim, despite that: (1) the law disclaims protections to those who seek remedies based on his or her illegal drug use; and (2) marijuana remains illegal under federal law.

Further, despite relevant case law from other states and the U.S. Supreme Court, the court also rejected the defendants’ argument that federal law (i.e., the Controlled Substances Act) preempted state law. Unpersuaded by the fact that marijuana remains illegal under federal law at all times and for all purposes, the court held it was not “physically impossible” to comply with both federal and state laws. It stated that Rhode Island’s law governs only marijuana use in the workplace and that “what an employee does on his or her off time does not impose any responsibility on the employer.” The court also emphasized the fact that Congress has passed spending bills in the past few years prohibiting the Department of Justice from using federal funds to prevent states from implementing their own laws with regard to medical marijuana.

The complicated landscape for employers who conduct drug testing for marijuana is further complicated by Callaghan. An employee’s off-duty use of marijuana may cause the employee to test positive on a workplace drug test because marijuana may stay in the fatty tissues of the body for weeks. While Callaghan certainly will be appealed, the ever-swirling debate surrounding marijuana and a growing sense, in some quarters, that marijuana use is acceptable (both recreationally and medically) highlight the need for employers — in Rhode Island and elsewhere — to consider the marijuana laws affecting their workplaces and how they will handle the question before an actual issue arises.

New York’s Highest Court Asked to Decide Whether New York City Human Rights Law Protects Mistaken Perception of Alcoholism

New York’s highest court, the New York Court of Appeals, has been asked to decide the question of whether the New York City Human Rights Law permits a claim of disability discrimination based solely on a perception of untreated alcoholism. Makinen v. City of New York, et. al., Docket Nos. 16-973-cv(L), 16-1080-cv (XAP) (2d Cir., May 22, 2017).

The case concerned two former New York City police officers who were referred by family members for counseling related to alcohol abuse. In fact, the two police officers were not alcoholics.  The police officers sued the City of New York and others for disability discrimination under the New York City Human Rights Law (“NYCHRL”), arguing that the New York City Police Department regarded them as alcoholics, although they were not.  Defendants sought dismissal because the plain text of the law limited protection to recovered or recovering alcoholics.  Since the plaintiffs were neither, the defendants sought judgment in their favor both at summary judgment and post-trial.

The lower court, the Southern District of New York, held that individuals regarded as untreated alcoholics could bring a claim under NYCHRL, despite the law’s language limiting protections only to those alcoholics who had sought treatment. The lower Court reached this conclusion because analogous state and federal disability laws (the New York State Human Rights Law and the Americans with Disabilities Act) permit disability discrimination claims based on alcoholism, whether recovering or not, and specifically permit claims of “erroneously regarding” an individual to be a substance abuser (alcoholic) when he is not.  The Second Circuit struggled to balance the facts that:  (1) unlike state and federal law counterparts, the NYCHRL contains limiting language suggesting untreated alcoholics are not covered by the law; (2) the NYCHRL was created with the broad remedial purpose to provide plaintiffs comparable protections afforded under state and federal law; and, (3) the NYCHRL generally is construed “more liberally” than its state and federal counterparts.  Because the Second Circuit could not “predict with confidence” how the New York Court of Appeals would reconcile these issues, it deferred decision on the appeal and cross-appeal and certified this question to the New York Court of Appeals:  “Do sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

Employers, especially those in New York City, will await the New York Court of Appeals’ determination of this issue. However, employers in all locations should be attuned to the unique legal issues associated with employees struggling with alcohol or drug addiction, regardless of whether the employee is in treatment or not, or whether the addiction is real or perceived.   Employers should review policies and protocols so that they are equipped to deal with addiction (or perceived addiction) before these situations actually arise.

New Federal Railway Administration Requirements For Maintenance-Of-Way Workers Take Effect June 12, 2017

The U.S. Department of Transportation’s Federal Railroad Administration’s (“FRA”) final rule expanding drug and alcohol testing to maintenance-of-way (“MOW”) employees takes effect on June 12, 2017. MOW employees are “employees of a railroad, or of a contractor to a railroad, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts.” FRA has amended its regulations (set forth at 49 CFR Part 219) to expand the definition of “employees” to include employees, volunteers and probationary employees performing activities for a railroad or a contractor (including subcontractors) to a railroad.  Additionally FRA has adopted the term “regulated service” to encompass both “covered service” and MOW activities.  Performance of a “regulated service” makes an individual a “regulated employee” subject to Part 219, regardless of whether the individual is employed by a railroad or a contractor (including subcontractors) to a railroad.

The new rule subjects MOW employees to a broader spectrum of drug and alcohol testing, including random testing, pre-employment testing, post-accident testing, return-to-duty testing, reasonable cause testing and reasonable suspicion testing.  While expansive testing has long been in place for other railroad workers, such as engineers and dispatchers, MOW employees previously were required to be tested only if they died after an accident.  The regulations contain certain exceptions for small railroads and their contractors.

Only MOW employees hired on or after June 12, 2017 are subject to pre-employment drug testing. (If a MOW employee is subject to both FRA and FMCSA regulations, only one pre-employment drug test is necessary).  Starting on the effective date, current MOW employees are subject to FRA’s initial minimum random drug testing rate of 50% and initial minimum alcohol testing rate of 25% (even though current FRA random test rates for other covered employees are 25% for drugs and 10% for alcohol).  This will require employers to create a separate random testing pool for MOW employees, both to allow those employees to be tested at the appropriate testing rates and to establish a separate database for MIS reporting.

FRA also has created a separate subpart for reasonable cause testing, to distinguish it from reasonable suspicion testing. Reasonable cause testing is triggered by certain types of incidents or rules violations.  It is not mandatory but may be elected by the railroad and if elected, all regulated employees must be notified that such testing will be conducted.  Reasonable suspicion testing, however, is mandatory and must be conducted when the railroad has reasonable suspicion to believe that the regulated employee has violated a drug or alcohol prohibition set forth in the regulations.

Employers subject to FRA drug and alcohol testing regulations must publish a written policy that must be distributed to each regulated employee.  The regulations contain a list of required items to be included in the policy.  Employers of MOW employees should ensure that they have written drug and alcohol testing policies that comply with FRA’s requirements effective June 12, 2017.

Quest Diagnostics Annual Survey Shows Drug Test Positivity Rates Continue to Climb

According to the annual Quest Diagnostics Drug Testing Index published yesterday, illicit drug use among U.S. employees continues to rise, resulting in the highest drug test positivity rates in the last 12 years.  This nationwide survey of more than 10 million workforce drug test results revealed:

  • Positive cocaine drug test results increased for a 4th straight year, resulting in a 12% increase in the general U.S. workforce in 2016.
  • Positive marijuana drug test results also increased among all three testing specimens (oral fluid, hair and urine). In Colorado and Washington (the first states to legalize recreational marijuana), positive marijuana test results increased 11% and 9% respectively, while the overall nationwide marijuana positivity rate increased 4%.
  • Similarly, since 2015, positive test results for amphetamines (including methamphetamines) increased by more than 8%. Positive test results for methamphetamines, in particular, increased 64% since 2012.
  • Heroin detection remained steady after four years of increases, while prescription opiate positivity declined slightly.

This increase in positive illicit drug test results occurred among both the general U.S. workforce and in safety-sensitive positions, such as pilots and truck drivers, for whom routine drug testing is mandatory under federal regulations.

Employers should consider whether they are equipped to respond to the upward trend in illicit drug use:

  • Consider whether your current drug testing practices adequately address the potential safety risks in your workplace. Review written drug testing policies and practices to ensure that they are up-to-date and compliant with all applicable federal, state and local testing requirements.
  • Merely conducting pre-employment drug testing may be insufficient. The Quest survey revealed that the positivity rate for cocaine in post–accident urine tests was more than twice that of pre-employment tests, indicating that employees may pass pre-employment tests, only to use illicit drugs during employment. Without adequate measures to detect illicit drug use during employment, employers (and employees) may be left vulnerable to workplace safety issues, and other negative impacts, arising out of workplace substance abuse.
  • The trend to legalize recreational marijuana continues in numerous states and will lead to more positive marijuana drug test results, as demonstrated by the increases in Colorado and Washington.
  • Training managers to identify potential illicit drug use at work and to enforce the Company’s drug testing policy is one of the greatest tools in addressing the myriad workplace issues posed by the use of illicit drugs.

West Virginia Enacts Law Permitting Broad Employment-Related Drug And Alcohol Testing

Workplace drug and alcohol testing in West Virginia traditionally has been scrutinized by the courts and has been available to employers in limited circumstances.  That will change dramatically this summer when the state’s new drug and alcohol testing law, the West Virginia Safer Workplace Act, takes effect.  Passed by the state legislature on April 8, 2017 and signed by the Governor on April 26, 2017, the Safer Workplace Act will significantly broaden the circumstances under which employers may conduct workplace drug and alcohol testing.  The law takes effect on July 7, 2017.

There are many key provisions that are beneficial to employers; however, employers must comply with all of the requirements of the statute in order to take advantage of its benefits.

First and foremost, employers who plan to test employees for drugs or alcohol are obligated to have a written policy that must be distributed to every employee subject to testing.  With a compliant written policy, employers are permitted to conduct drug and alcohol testing for a wide variety of legitimate employment-related reasons including: deterrence and/or detection of possible illegal drug use, on or off the job, or the abuse of alcohol or prescription drugs; investigation of possible impairment; investigation of accidents or employee misconduct; maintenance of safety; and, maintenance of productivity.

The Act mandates that any testing of employees must occur during, or immediately before or after, a regular work period.  Under the new law, drug and alcohol testing “is worked time for the purposes of compensation and benefits for current employees.”  Additionally, employers are required to “pay all actual costs for drug and/or alcohol testing” of both current and prospective employees.  If the required tests are conducted at a location away from the employee’s normal work site, the employer must also “provide transportation or . . . pay reasonable transportation costs to current employees.”

The Act also provides West Virginia employers with specific guidelines to be used during the testing process (including, for example, the use of a certified or approved laboratory; confirmatory testing by gas chromatography/mass spectrometry or another comparably reliable technique; allowing the tested individual to provide information that may be relevant to a positive test result; offering the tested individual the right to have a split specimen test at a different laboratory at his/her expense; among other things).

If a tested individual receives a confirmed positive drug or alcohol test result, or if a tested individual refuses to provide a specimen, the Act permits employers to take disciplinary and/or rehabilitative actions, such as: (1) a requirement that the employee enroll in an employer-provided or approved rehabilitation, treatment and/or counseling program; (2) suspension of the employee, with or without pay, for a designated period of time; (3) termination of employment; (4) refusal to hire a prospective employee; and/or, (5) other adverse employment action in conformance with the employer’s written policy and procedures, including any relevant collective bargaining agreement provisions.

Significantly, the Act permits employers to take action against “sensitive” employees who test positive.  A “sensitive” position is one in which an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage.  If such an employee tests positive for drugs or alcohol, an employer is permitted to permanently remove the employee from the sensitive position and transfer or reassign the employee to an available non-sensitive position with comparable pay and benefits, or may take any other action, including termination or other adverse employment action, consistent with the employer’s policy (provided there are no applicable contractual provisions that would prohibit such actions).

If a West Virginia employer establishes a policy and program in accordance with the requirements of the statute, there are additional benefits, including:

  • no cause of action by an applicant or employee who has been subjected to an adverse employment action as a result of a positive test result or a refusal to test (unless he/she can show the employer’s action was based on a false positive test result and the employer had knowledge that the result was in error but disregarded the truth);
  • an employee who tests positive may be terminated and forfeits his or her eligibility for unemployment compensation benefits and, if injured at the time of the intoxication, indemnity benefits under the Worker Compensation Laws. The employer’s policy must expressly notify employees of these provisions in order for an employer to utilize them.

It is imperative for West Virginia employers to have a written policy that complies with the requirements of the Safer Workplace Act in order to take advantage of the law’s many benefits.  Employers with operations in West Virginia should review their drug and alcohol policies and consult with counsel to make their policies compliant.

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