Connecticut Public Policy Did Not Mandate Termination of Pot-Smoking Public Maintenance Worker

According to Connecticut’s highest court, the public policy of the state did not require the termination of a state employee who was caught smoking marijuana during work hours.  State of Connecticut v. Connecticut Employees Union Independent, (SC 19590) August 19, 2016 (official release date August 30, 2016).  Gregory Linhoff, a skilled maintenance worker at the University of Connecticut Health Center, was terminated after a police officer observed him smoking marijuana from a glass pipe in a state van with the door open.  Linhoff admitted smoking marijuana and surrendered about three quarters of an ounce of the drug.  He was terminated for violating the Health Center’s drug and alcohol policy as well as its smoke-free workplace policy.  In particular, the Health Center did not believe that Linhoff could be trusted to perform his duties independently on the evening shift, when he had keys to most of the buildings on the health center campus.  Linhoff and his union grieved the termination.

Linhoff was a 15-year employee with no prior performance problems.  At the grievance arbitration, Linhoff testified that he sought and completed treatment through the Health Center’s employee assistance program.  The arbitrator determined Linhoff engaged in misconduct.  However, the arbitrator concluded that termination was too harsh a penalty, citing Linhoff’s positive work history and the Health Center’s drug-free workplace policy, which permitted termination but did not mandate it.  Although Linhoff’s job duties raised some safety and security issues, the arbitrator did not believe that Linhoff posed a danger in the workplace.  The arbitrator modified the discipline to include a six-month, unpaid suspension and unannounced follow-up drug testing for one year.  A trial court granted the Health Center’s application to vacate the award on public policy grounds.

The Connecticut Supreme Court acknowledged the public policy exception to arbitral authority should be narrowly construed.  The Court also recognized Connecticut’s “well-defined and dominant” public policy against the possession and recreational use of marijuana in the workplace.  The Court then analyzed the four factors set forth in Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, 114 A.3d 114 (Conn. 2015), to determine whether this public policy required the Health Center to terminate Linhoff: (1) guidance from statutes, regulations, and other sources of the public policy at issue; (2) whether the public safety or the public trust is implicated by the employment at issue; (3) the “relative egregiousness” of the conduct; and (4) whether the employee is “incorrigible.”

Emphasizing that the relevant statutes and regulations allowed an “array of responses” to drug-related employee misconduct, and that Linhoff’s maintenance duties did not create a safety risk to the general public, the Court held that public policy did not mandate termination.  Additionally, the Court reiterated that judicial second-guessing of arbitral awards reinstating employees is very uncommon and reserved for extraordinary circumstances.  Finally, the Court stated that the employer was free to negotiate with the union to mandate termination after misconduct such as that at issue in this case.

DEA Denies Petitions To Reschedule Marijuana But Will Authorize More Marijuana Manufacturing To Foster Research

The federal Drug Enforcement Administration announced August 11, 2016 that it denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In addition, DEA announced a policy change designed to foster research by expanding the number of DEA-registered marijuana manufacturers, and issued a statement of principles concerning industrial hemp.

The CSA categorizes drugs into five categories depending on the drug’s acceptable medical use and the drug’s abuse or dependency potential. Schedule I drugs are defined as drugs with no currently accepted medical use and a high potential for abuse.  Schedule I drugs are considered the most dangerous and include marijuana, heroin, LSD and Ecstasy, among others.  Schedule II drugs are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.  Schedule II drugs include Vicodin, OxyContin, Demerol, cocaine, and methadone, among others.

In a letter dated August 11, 2016, Chuck Rosenberg, Acting Administrator of the DEA, explained that the CSA drug schedules do not constitute an “escalating ‘danger’ scale,” but rather, scheduling is determined by specific, statutory criteria based on medical and scientific evidence. Under the CSA, the Food and Drug Administration, in consultation with the National Institute on Drug Abuse, reviews, analyzes and assesses the medical and scientific data.  The FDA and DEA then make a determination based on a full review of the relevant scientific and medical literature regarding marijuana.

Marijuana Remains a Schedule I Drug.

In response to two petitions (submitted in 2009 and 2011) that sought to downgrade marijuana from a Schedule I drug to a Schedule II drug, Acting Administrator Rosenberg stated that marijuana will remain a Schedule I drug because the research does not yet support a reclassification. More specifically, the current medical and scientific evidence demonstrates that marijuana has no currently accepted medical use in treatment in the United States.  Acting Administrator Rosenberg stressed, however, that DEA supports legitimate medical and scientific research concerning the use of marijuana and will continue to do so.  He stated:  “If the scientific understanding about marijuana changes – and it could change – then the decision could change.”  DEA’s full responses to the petitions, including the medical and scientific data and analysis that was relied on, will be published in the Federal Register on August 12, 2016.

DEA Will Accept Applications From Marijuana Manufacturers to Grow Marijuana for Researchers.

DEA also announced a policy change whereby marijuana manufacturers may apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes. For nearly 50 years, the U.S. has relied on a single grower to produce marijuana used in federally-funded research.  Under the DEA’s new system, additional marijuana growers may apply for DEA approval to grow marijuana to supply researchers.

DEA Issues Statement of Principles on Industrial Hemp.

The U.S. Department of Agriculture, in consultation with the DEA and the FDA, announced guidelines for entities who participate in the growth and cultivation of industrial hemp under the 2014 Farm Bill which allowed for universities and state departments of agriculture to begin cultivating hemp for limited purposes. Although hemp comes from the cannabis plant – as does marijuana – it generally contains smaller amounts of the psychoactive component tetrahydrocannabinol (THC).  Industrial hemp can be used to make food, fuel, fabric, plastics, construction materials, textiles and paper, among other things. In recent years, many state legislatures have enacted laws to promote the development of industrial hemp production.  The DEA’s statement of principles is intended to clarify how federal law applies to these activities.

What This Means For Employers.

For now, the state of the law with regard to marijuana has not changed. Marijuana remains illegal under federal law, even though some states have enacted laws permitting the use of medical marijuana and recreational marijuana in certain circumstances.  Employers still are faced with deciding whether to follow federal law or to comply with state laws, particularly in those states that prohibit employment discrimination against medical marijuana users. Employers should assess the legal risks in the states in which they operate and consult with counsel to create appropriate strategies to address medical and recreational marijuana in the workplace.

Ohio’s Employer-Friendly Medical Marijuana Law Takes Effect September 6, 2016

Ohio’s new medical marijuana law becomes effective on September 6, 2016, although it may take up to two years for implementing regulations to be written and for dispensaries and the patient registry to become operational. House Bill 523, the “Ohio Medical Marijuana Control Program,” allows people with certain medical conditions, upon the recommendation of a physician, to purchase and use medical marijuana.  Qualifying medical conditions include AIDS, amyotrophic lateral sclerosis (ALS), Alzheimer’s disease, cancer, Crohn’s disease, epilepsy or seizure disorders, multiple sclerosis, chronic or intractable pain, Parkinson’s disease, and PTSD, among others.

The law allows the use of marijuana in the form of oils, edibles, plant material, tinctures, patches and vapor, but does not permit smoking of marijuana.  Patients who use medical marijuana are prohibited from operating a vehicle while under the influence of marijuana.

Of the many states that have medical marijuana laws, the Ohio medical marijuana law is one of the most employer-friendly.  Specifically:

  • Employers still have the right to establish and enforce a zero-tolerance drug policy or drug testing policy, and the new law does not give employees the right to sue their employer for taking action against them related to the use of medical marijuana;
  • Employers are not required to permit or accommodate an employee’s use, possession or distribution of medical marijuana;
  • Employers can still terminate an employee or refuse to hire an applicant because of use, possession or distribution of medical marijuana even if he or she is using marijuana off-duty and in compliance with the statute;
  • For purposes of unemployment compensation, an employer has “just cause” to fire an employee for use of medical marijuana in violation of the employer’s drug policy;
  • Employers still may obtain workers’ compensation premium discounts for participation in the state’s drug-free workplace program; and,
  • An employee may be deemed ineligible for workers’ compensation benefits if the employee was under the influence of marijuana at the time of the injury and that use was a cause of the injury, even if the marijuana use was recommended by a physician.

Employers should take this opportunity to review their drug policies to make it clear that, even though Ohio law permits the use of medical marijuana, it is not tolerated in the workplace and that disciplinary action will be taken for violations of the policy even where the marijuana was used off-duty and prescribed by a physician. This is particularly true because marijuana still is illegal under federal law.  If the U.S. Drug Enforcement Administration takes action to reschedule marijuana from a Schedule I drug to a Schedule II drug (under the Controlled Substances Act), employers may need to re-evaluate their policies to comply with the requirements of the Americans with Disabilities Act and comparable state laws.

OSHA Announces 3-Month Delay in Enforcement of Electronic Recordkeeping Rule’s Retaliation Provision

Yesterday, OSHA announced that it would delay the effective date of one portion of the final rule, “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule. Specifically, OSHA has delayed enforcement of the anti-retaliation provision, 1904.35(b)(1)(iv), from August 10, 2016 until November 1, 2016.  Section 1904.35(b)(1)(iv) states, “[employers] must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”  According to the agency’s news release the delayed effective date will allow OSHA “to conduct additional outreach and provide educational materials and guidance for employers.”

The announcement was made after a coalition of industry groups and employers filed suit in federal court last week seeking to block OSHA from enforcing the new requirements. TEXO ABC/AGC v. Perez, No. 16-1998 (N.D. Tex. July 8, 2016).  Among other things, the lawsuit seeks a declaratory judgment that the new rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.

As we discussed in a previous blog post, “What OSHA’s Electronic Recordkeeping Rule Means for Workplace Post-Accident Drug and Alcohol Testing,” OSHA stated in the commentary to its new rule that: “the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Since the commentary was published in May, there has been much debate about whether any form of “automatic” (i.e., without reasonable suspicion) workplace post-accident or post-injury drug and alcohol testing would pass muster with OSHA.  We will continue to follow this issue and report on all new developments.   

Employer’s Honest Belief That Employee Could Not Perform Job Due to Use of Opioid Medications Did Not Constitute Disability Discrimination

An employer’s decision to bypass an employee for a position based on the employee’s use of opioids was not enough to prove the employee’s disability discrimination claim, according to the Sixth Circuit Court of Appeals. Ferrari v. Ford Motor Company, Case No. 15-1479 (6th Cir. June 23, 2016).  The Court affirmed summary judgment in favor of the employer on the employee’s disability discrimination claims, as well as his Family and Medical Leave Act retaliation claim.

Ford hired Gianni-Paolo Ferrari in 1996. A few years later, Ferrari sustained a workplace injury. Ford accommodated his “permanent” restrictions for nine years.  Ferrari’s doctor then suddenly removed his restrictions.  Ford’s doctor, however, maintained the restrictions, because earlier records showed that Ferrari was addicted to the opioids he took to manage his pain.  Ford’s doctor was unwilling to remove the restrictions without more information from Ferrari’s doctor.

Ferrari then applied for an apprenticeship. In advance of a pre-apprenticeship physical, Ferrari provided clearances from two doctors.  One doctor indicated that Ferrari was still taking opioids; the other did not address the issue.  This was contrary to Ferrari’s representation that he had been weaning himself off of opioids for three months.  Ford then received a doctor’s note stating Ferrari’s opioid use did not impact his ability to perform the apprenticeship duties.

Ford and Ferrari agreed he would get an independent medical examination. The IME noted that Ferrari’s claim to be off opioids for three months was inconsistent with his medical records.  The examiner concluded that if Ferrari was taking opioids, he would not allow Ferrari to resume unrestricted employment.  Ford’s doctor removed some restrictions, but maintained ladder-climbing and overhead-work restrictions.

The apprenticeship program decision-makers reviewed the restrictions, and bypassed Ferrari from participating in the program. However, Ford told Ferrari that he would be eligible once he weaned off opioids.  Ford also allowed him to work in a different position.  Ferrari filed suit based on this decision.

Ferrari claimed direct evidence of discrimination, because Ford “regarded him” as disabled based on his opioid use. To succeed on this claim, Ferrari had to show that Ford believed his opioid use limited his ability to perform a major life activity.  He alleged Ford regarded him as limited in his ability to perform the major life function of “working.”  To meet this burden, Ferrari had to prove that Ford believed he was unable to perform an entire class of jobs.  The Court reasoned that the inability to perform a single, particular job is not a “major life activity.”  Ford’s belief that Ferrari could not climb a ladder or work at heights was not enough to show Ford regarded Ferrari as disabled.

Ferrari also tried to establish a disability discrimination case using circumstantial evidence. The Court concluded the evidence showed that the apprenticeship decision-makers “honestly believed” that Ferrari had medically-based restrictions, and that Ford’s doctor honestly believed Ferrari was using opioids which could adversely impact his performance.  Therefore, Ferrari could not establish pretext and his claim was dismissed.

Federal Railroad Administration Expands Drug and Alcohol Testing For Maintenance-Of-Way Workers

The U.S. Department of Transportation’s Federal Railroad Administration (“FRA”) recently announced a final rule expanding drug and alcohol testing applicable to maintenance-of-way (“MOW”) employees, effective one year from the date of the rule’s publication (which has yet to be announced). MOW employees work directly on and around railway tracks and crossings, maintaining the tracks, bridges, roadways, signals and electric machinery to ensure trains have a clear path to pass through.  The new rule subjects these 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 rule was published pursuant to a congressional directive in the Rail Safety Improvement Act of 2008.

The FRA also announced a final rule updating safety regulations for MOW employees. These regulations, effective April 1, 2017, include amendments to existing policies regarding roadway maintenance machinery and maintenance worker qualifications, among other things.

Termination For Conduct Caused By Side Effects of Prescription Medication Was Not Disability Discrimination

A federal court in Florida has upheld an employee’s termination due to her “inebriated” conduct that was caused by her use of prescription medications, holding that her discharge did not constitute disability discrimination. Caporicci v. Chipotle Mexican Grill, Inc., Case No. 8-14-cv-2131-T-36EAJ (M.D. Fla. May 27, 2016).

Lisa Caporicci worked for Chipotle as a crew member and had a long history of depression and bi-polar disorder. In April 2013 she informed her manager that she took medication for bi-polar disorder but did not mention any side effects or behavioral issues that might arise from taking the medication.

In May 2013, Caporicci began taking new medication because she was experiencing panic attacks. At that time, she requested a few days off and her request was granted.  She did not work for five days and returned on June 4, 2013.  Four days later, she reported for work in what appeared to be an inebriated state.  She was “very slow, messed up orders and was incoherent.”  Caporicci’s supervisor took her off the serving line and sent her home.  She was fired later that day, for violating Chipotle’s Drug and Alcohol Policy, which prohibits employees from reporting for work or being at work under the influence of alcohol, drugs or controlled substances, or with any detectable amount of alcohol, drugs or controlled substances in his or her system.  The policy further provides that if an employee takes prescription medication that may adversely affect the ability to perform the job, he/she must notify his/her manager prior to starting work.

Caporicci asserted disability discrimination claims under federal and state law, as well as FMLA interference and retaliation claims. Her FMLA claims were dismissed because she had been employed less than 12 months.  As to her disability discrimination claims, Caporicci argued that firing her for medication side effects was tantamount to firing her for her disability.

The Court noted that courts are split on the question of whether a termination based on conduct related to, or caused by, a disability constitutes unlawful discrimination. The majority position, which includes courts in the Eleventh Circuit, holds that an employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability.  Additionally, the U.S. Supreme Court discounted the minority position in Raytheon Company v. Hernandez, 540 U.S. 44, 55 n.6 (2003), stating:  “To the extent that [the Ninth Circuit] suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act.”

For these reasons, the Court followed the majority position and held that Caporicci’s termination was not discrimination based on her disability, but rather, it was the result of her employer’s application of a neutral policy which prohibited employees from reporting to work under the influence of drugs or alcohol.

Alcohol-Related Workplace Injuries Recordable, OSHA Says

Employers are not exempt from the Occupational Safety and Health Administration’s reporting rule for on-the-job injuries linked to alcohol intoxication even though the injured employee’s consumption of alcoholic beverages took place off the job.

The interpretation was outlined in a letter from Amanda Edens, head of OSHA’s Technical Support and Emergency Management Directorate, dated March 21, but released April 18.

In general, OSHA mandates employers to record any workplace injury that requires treatment beyond first aid. However, OSHA’s regulation at Section 1904.5(b)(2)(vi) states, “You are not required to record injuries and illnesses if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.”

The employer had asked OSHA whether a worker’s “self-medicating with alcohol for his non-work-related condition of alcoholism” qualified for the reporting exemption. Then a post-injury drug test revealed the worker was intoxicated.

According to Edens, OSHA health care professionals concluded the exception for self-medication does not apply because consuming alcohol “does not treat the disorder of alcoholism. Instead, drinking alcohol is a manifestation of the disorder.”

Although the case did not qualify for the exception, Edens explained when a situation would qualify. “Under this exception, an employee’s negative reactions to a medication brought from home to treat a non-work-related condition would not be considered a work-related illness, even though it first manifested at work.”

OSHA interpretive letters explain agency requirements as they apply to particular circumstances, but do not create additional employer obligations. Employers should consult with a Jackson Lewis attorney to determine whether and how their particular workplace situations are affected by this interpretation.

Failure to Hire DOT Driver After Positive Drug Test Result Leads To ADA Claim

A South Carolina company that hauls gasoline, diesel fuel and ethanol throughout the country will face an Americans with Disabilities Act suit brought by a rejected DOT driver applicant with a sleep disorder for which he was prescribed an amphetamine (Dexedrine), the U.S. Court of Appeals in Richmond has decided, reversing a lower’s court’s dismissal of John Lisotto’s lawsuit.  Lisotto v. New Prime, Inc.,   2016 U.S. App. LEXIS 8011 (4th Cir., No. 15-1273, decided May 3, 2016) (not officially reported).

A district court concluded that Lisotto had failed to exhaust his administrative remedies before the Federal Motor Carrier Safety Administration and threw out his discrimination complaint.  However, the appeals court found the lower court had mischaracterized the issue as a conflict between physicians  over Lisotto’s physical qualifications to be a driver, for which FMCSA regulations provide administrative recourse (49 C.F.R. § 391.47 authorizes  the FMCSA to resolve “conflicts of medical evaluation” where the physician for the driver and the physician for the motor carrier disagree concerning a driver’s physical qualifications.)

That was not the case, the Fourth Circuit concluded.  There was no such disagreement.  As long as Lisotto took proper medication for his narcolepsy, he appeared to be qualified, according to the doctors.  Rather, the facts alleged here focused on the refusal to hire Lisotto based on his positive pre-employment drug test result and the company’s medical review officer’s actions in regard to that test result.  Specifically, the medical review officer allegedly did not communicate with Lisotto’s physician to determine whether there was a legitimate medical reason to explain the positive drug test result.  The Fourth Circuit concluded Lisotto’s complaint could “only be read to lodge an ADA claim” against the company based on alleged conduct leading up to its failure to hire him, and by its failure to hire him, even though he had provided documentation that his narcolepsy had been controlled by medications.  Lisotto’s complaint also alleged the company violated the ADA:  by failing to hire him because he tested positive for amphetamines on a FMCSA-required pre-employment drug test; by failing to accept his doctor’s explanation for his positive drug test result; by failing to proceed with the hiring process in light of information provided by his doctor and insisting that he change medications; by reporting a positive drug test result; and, by failing to correct the false drug test report made to FMCSA, DOT or others. The Fourth Circuit remanded the case for further proceedings.

A prospective employer’s alleged failure to address an applicant’s lawfully prescribed medications that control his medical condition, consistent with DOT and FMCSA regulations, may result in ADA claims. Under DOT regulations, carriers may be held responsible for the regulatory compliance by their service providers, such as MROs, even though they are independent contractors.

What OSHA’s Electronic Recordkeeping Rule Means For Workplace Post-Accident Drug and Alcohol Testing

Today, OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register.  A detailed discussion of the rule can be found here on our OSHA Law Blog.  In the final rule OSHA states that “blanket post-injury drug testing policies deter proper reporting” and concludes that:

the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.  For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.  Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.  In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.”

(Emphasis added).  The OSHA rule has no impact on post-accident testing mandated by federal regulations or permitted by state workers’ compensation laws (e.g., premium reduction laws).  The rule states that “[i]f an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.”  However, post-accident drug and alcohol testing is unregulated in many states.

Numerous questions about post-accident drug and alcohol testing are raised by the OSHA rule. For example:

  • While OSHA states that “reasonable suspicion” is not required for post-accident testing, it is not clear what OSHA means by stating that there should be a “reasonable possibility” that drug use was a “contributing factor” to the reported injury or illness.
  • It is unclear what OSHA means by “the drug test can accurately identify impairment caused by drug use.” In general, urine drug tests detect whether an individual has used drugs in the last 2 to 4 days.
  • OSHA states drug testing “that is designed in a way that may be perceived as punitive” may deter reporting of injuries. But how can an employer determine in advance the subjective perception of an employee to a particular drug test, and is this a valid standard in any case? Further, it may invite abuse to frustrate lawful testing: employees who know they are going to test positive may object to a post-accident drug test as “punitive” even if it is part of a well-designed drug and alcohol testing program that is intended to promote workplace safety.

OSHA intends to issue additional guidance concerning the new rule. Legal challenges to the rule also are anticipated.

In the interim, employers who conduct post-accident drug and/or alcohol testing should review their policies to ensure that they are not conducting overly broad “automatic” post-injury testing that could be viewed as a deterrent to injury reporting by employees. This is particularly true for injuries and illnesses that appear to have no plausible connection to drug or alcohol abuse, such as, for example: allergic reactions, animal or insect bites, back or muscle strains caused by overexertion, carpal tunnel syndrome, and diabetic episodes, among other things.

Due to the unsettled nature of the questions raised by the OSHA rule, employers who conduct post-accident drug and alcohol testing should follow this issue closely and should consult with counsel to determine whether their post-accident drug and alcohol testing programs comply with all applicable laws.

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