Maine Delays Implementation of Certain Provisions of Recreational Marijuana Law

Last November, Maine was one of four states in which voters approved a new recreational marijuana law. Maine’s law took effect on January 30, 2017; however, emergency legislation passed on January 27, 2017 delayed the implementation of certain provisions of the law.  Specifically, the emergency legislation:

  • Delayed the effective date of most of the provisions of the law (including the anti-discrimination provisions, discussed below) until February 1, 2018, so that the state licensing authority can establish and implement regulations concerning retail sales of marijuana;
  • Clarified that possession of a usable amount of marijuana by a juvenile is a crime, unless the juvenile is authorized to possess medical marijuana; and,
  • Prohibits possession of any edible retail marijuana products until February 1, 2018.

Maine’s recreational marijuana law provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing or marijuana in the workplace, and also are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.  But the law prohibits employers from “refusing to employ a person solely because that person consumed marijuana outside the employer’s property.”  This language is problematic for employers who conduct drug testing because a drug test does not reveal when or where someone used marijuana.  It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property” because marijuana can stay in the human body for days or even weeks.  This language will make it difficult for Maine employers to conduct drug testing for marijuana, particularly in the pre-employment context.  Even if a Maine employer suspects that an employee is “under the influence of marijuana in the workplace,” the drug test result will not provide conclusive proof that the marijuana was consumed at work.

The Maine legislature has formed a committee to consider implementation of the recreational marijuana law and it is hoped that the anti-discrimination language will be revised.

Applicant Who Failed Pre-Employment Drug Test Could Not Show That Public Employer Violated Her Due Process Rights or Title VII

A federal district court recently dismissed a lawsuit in which a job applicant challenged a public employer’s decision to withdraw an offer of employment after the individual tested positive for cocaine on a pre-employment drug test.  Turner v. Richmond Public Schools, et al., No. 3:16-cv-256 (E.D.VA., March 28, 2017).  The federal action sought to recover damages for (1) the violation of Plaintiff’s Due Process rights under the Fourteenth Amendment to the United States Constitution; and (2) disparate treatment based on race and gender in violations of Title VII.

Plaintiff, an African American female, applied for a position as an Instructional Data Specialist with Defendant Richmond Public Schools.  After receiving a conditional offer of employment, Plaintiff submitted a urine sample for drug and alcohol screening; the test returned positive for cocaine.  Based on the test results, Richmond Public Schools rescinded Plaintiff’s offer of employment. Plaintiff requested reconsideration of the decision based on her concerns with the drug test procedures, disparate treatment between Plaintiff and other employees who had tested positive for drugs, and the lack of due process afforded to Plaintiff.

To state a viable due process claim, Plaintiff was required to show that she had a constitutionally protected liberty or property interest.  Plaintiff ultimately failed to state sufficient facts reasonably to claim that she held any liberty or property interest at issue in the action. The District Court determined that the conditional offer of employment could not support Plaintiff’s claim of entitlement to employment because Plaintiff had no reasonable expectation of entitlement to the job at the time Richmond Public Schools rescinded the employment offer.  Additionally, the District Court found that Plaintiff failed to state a claim under the “stigma-plus” standard, set forth by the U.S. Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), necessary to establish a deprivation of liberty within the meaning of the Due Process Clause. The District Court explained that Plaintiff failed to identify any false statements made by Richmond Public Schools that placed a stigma on Plaintiff’s reputation and that were made in conjunction with Richmond Public Schools’ determination to rescind the employment offer.

Similarly, the District Court determined that Plaintiff’s complaint lacked specific factual allegations sufficient to state a claim for race or gender discrimination under Title VII.  Plaintiff alleged that there were instances in which white male employees tested positive for drugs but were not terminated.  The District Court distinguished Plaintiff’s situation, however, from white male employees because Plaintiff was not yet an employee at the time of her drug test and, thus, could not compare herself to employees of Richmond Public Schools who may have tested positive for drugs. The District Court also found that Plaintiff failed to identify any facts indicating that she and her comparators dealt with the same supervisors, were subject to the same standards or performed the same functions for the employer.

For the reasons stated, the District Court dismissed Plaintiff’s action in its entirety. Notably, Plaintiff did not assert a claim that the drug test constituted an unlawful search and seizure in violation of the Fourth Amendment, which is the most common claim asserted against public employers in the drug testing context.

President Trump Signs Measure That Will Allow Broader Drug Testing of Applicants For Unemployment Benefits

President Trump signed a Congressional Joint Resolution March 31 that will permit states to pass measures allowing for broader drug testing of applicants for unemployment benefits. The resolution nullified a U.S. Department of Labor final rule issued in August 2016 that permitted states to enact legislation to conduct drug testing of applicants for unemployment benefits “for whom suitable work is available only in an occupation that regularly conducts drug testing.”  In effect, the final rule limited such drug testing to applicants in occupations where drug testing was required, such as U.S. Department of Transportation-regulated jobs, and other jobs where drug testing was required under state or federal law.  Now, with the President’s approval of the Joint Resolution, there is no such limitation.

Federal Appeals Court Upholds Dismissal of Public Employee For Failing Random Drug Test

The Unified Government of Wyandotte County/Kansas City, Kansas did not violate a public employee’s Fourth Amendment rights by requiring the employee to submit to a random drug test or by terminating his employment when he tested positive for cocaine, according to a recent decision by the U.S. Court of Appeals for the Tenth Circuit.  Washington v. Unified Government of Wyandotte County, Kansas, 847 F.3d 1192 (10th Cir. 2017).

Roberick Washington was employed as a lieutenant at the Wyandotte County Juvenile Detention Center.  Because the Unified Government classified the lieutenant position as safety-sensitive, Washington was required to submit to periodic, unannounced drug tests.  While the Unified Government’s drug and alcohol testing policy stated that “failure to pass a drug or alcohol test is just cause for discipline including discharge,” an internal Human Resources guide recommended suspension for those employees testing positive for the first time.

In 2012, Washington was selected for a random drug test and was fired after testing positive for cocaine.  He subsequently sued the Unified Government, alleging that the random drug test violated his Fourth Amendment rights against unreasonable searches; that the Unified Government deprived him of his constitutional interest in continued employment; and, that the Unified Government breached an implied contract by terminating his employment and not suspending him as suggested by the Human Resources guide.  The Unified Government moved for summary judgment, which the District Court for the District of Kansas granted.

The Tenth Circuit upheld the District Court’s grant of summary judgment.  With regard to Washington’s Fourth Amendment claim, the Tenth Circuit held that the Unified Government’s search (i.e., random drug test) was reasonable given the safety-sensitive nature of the lieutenant position, noting that random testing by public employers is defensible where the tested individuals would threaten workplace or public safety.  The Unified Government argued that it administered random drug testing to juvenile lieutenants to “ensure the safety and welfare of the children housed in the Juvenile Detention Center.”  While Washington argued that there existed material issues of fact about whether the position actually was safety-sensitive – according to Washington, his responsibilities largely were administrative – the Court disagreed, noting that Washington was required to report to the detention facility floor in certain emergency situations, and that he filled in for “undeniably safety-sensitive” positions when other employees were late or absent.  That he only “sporadically” filled in for these “undeniably safety-sensitive” positions was irrelevant, as the Court held “the frequency or regularity . . . does not affect our conclusion, since his on-call status made paramount his preparedness.”  The Court did note, however, that its analysis might change if Washington’s job duties “were entirely administrative, or if he were not employed in a juvenile corrective facility.”

With regard to his claim that the Unified Government deprived Washington of his constitutional right to continued employment, the Court held that public employment in Kansas is presumptively at-will, and that the HR guide did not limit this at-will status, as the guide included a disclaimer that it did “not modify the status of employees as employees-at-will or in any way restrict the Unified Government’s right to bypass the disciplinary procedures suggested.”  For those reasons, the Court also upheld dismissal of the breach of implied contract claim.

Employee Suspected of Drug Diversion Could Not Establish “Regarded as Disabled” Claim

An appellate court recently affirmed summary judgment in favor of a hospital that terminated the employment of a nurse for diverting medications, rejecting her claim that she had been perceived to be a drug addict by her employer. Demastus v. University Health System, Inc., No. E2016-00375-COA-R3-CV (Tenn. Ct. of Appeals March 2, 2017).

Laura Lee Demastus worked as a nurse for University Health System, Inc. (the “Hospital”) for three years. The Hospital became suspicious that Demastus was illegally diverting medications, after its computer records revealed that she checked medications out, but failed to record that the medications were administered to any patient or were destroyed.  The Hospital’s Compliance Officer began an investigation and uncovered several examples of missing medications, including oxycodone and benzodiazepines.  Demastus met with the Compliance Officer, and her supervisor, to discuss the allegations, but she was unable to explain or defend any of the suspicious transactions.  She stated that she did not have a drug abuse problem and also agreed to submit to a drug test.  Before the results of the drug test were provided to the Hospital, Demastus was terminated for gross misconduct.

Demastus subsequently filed a lawsuit against the Hospital under the Tennessee Disabilities Act (“TDA”), alleging that she had been discriminated against because the Hospital perceived her to have a drug addiction when she did not, and that she was wrongfully terminated due to that perception. The Hospital denied that it viewed Demastus as disabled or that it perceived her as having a current drug addiction, and instead, the Hospital cited the outcome of the investigation and Demastus’ inability to explain the missing medications as the sole reason for her termination.

The Court rejected Demastus’ claim because the definition of “disability” under applicable Tennessee law specifically excludes “current, illegal use of, or addiction to, a controlled substance.” Demastus therefore could not establish a prima facie case under the TDA whether she was terminated due to an actual drug addiction or the Hospital’s belief that she currently was addicted to drugs.

Even if Demastus had been able to establish a prima facie case of discrimination based on a perceived disability, the Court held that the Hospital’s evidence that Demastus had illegally diverted medications was a legitimate, nondiscriminatory reason for her termination, and Demastus offered no evidence of pretext.  Thus, summary judgment for the Hospital was appropriate.

The takeaway for employers in a situation such as this is to focus on the employee’s misconduct (theft, in this case), rather than on any actual or perceived disability.

U.S. Senators Seek Clarification From Department of Justice Regarding Federal Marijuana Enforcement Priorities

In light of White House Press Secretary Sean Spicer’s recent comments that the Department of Justice may seek “greater enforcement” of the federal laws prohibiting the recreational use of marijuana, eleven U.S. Senators sent a letter to U.S. Attorney General Jeff Sessions seeking clarification of the DOJ’s position. In a letter dated March 2, 2017, Senators Elizabeth Warren (D.-MA.), Lisa Murkowski (R.-AK.), Patty Murray (D.-WA.), Ron Wyden (D-OR.), Jeffrey Merkley (D.-OR.), Maria Cantwell (D-WA.), Edward Markey (D-MA.), Brian Schatz (D.-HI.), Catherine Cortez Masto (D.-NV.), Cory A. Booker (D.-N.J.), and Michael Bennet (D.-CO.) stated that:

“It is essential that states that have implemented any type of practical, effective marijuana policy receive immediate assurance from the DOJ that it will respect the ability of states to enforce thoughtful, sensible drug policies in ways that do not threaten the public’s health and safety. This ensures that state infrastructure, including tax revenue, small businesses, and jobs, can be protected; DOJ resources can be used most effectively; and most importantly, that marijuana can be properly regulated to improve public health and safety.”

More specifically, the U.S. Senators asked the Attorney General to continue to follow the policy set forth in the “Cole Memorandum.” The Cole Memorandum, issued by DOJ in 2013, articulated the federal government’s enforcement priorities with respect to marijuana, noting that while DOJ is committed to the enforcement of the Controlled Substances Act (which makes marijuana illegal), it also is committed to using its limited investigative and prosecutorial resources to address the most significant threats.  DOJ’s enforcement priorities include:  preventing the distribution of marijuana to minors; preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; and, preventing violence and the use of firearms in the cultivation and distribution of marijuana; among other things.  Outside of those enforcement priorities, DOJ expressed its willingness to rely on state and local governments who have enacted marijuana laws to implement “strong and effective regulatory and enforcement systems that will address the threat that those state laws could pose to public safety, public health, and other law enforcement interests.”

The Senators requested an opportunity to comment on any shift in policy from that expressed in the Cole Memorandum, to avoid disruption of existing regulation and enforcement efforts.

Currently, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington) and the District of Columbia have recreational marijuana laws, while twenty-eight states and the District of Columbia have medical marijuana laws.

Court Upholds Dismissal of Employee Based on Refusal to Submit to Reasonable Suspicion Drug Test

The highest court in West Virginia recently affirmed the dismissal of a lawsuit in which an employee challenged the decision to terminate her employment after she refused to submit to a reasonable suspicion drug test. Layne v. Kanawha County Board of Education, No. 16-0407 (W.VA. Feb. 17, 2017).  The case highlights the right way to conduct reasonable suspicion testing, and illustrates the usefulness of such testing to employers.

Petitioner was a middle school sign language interpreter who was observed behaving erratically by five employees. Specifically, the employees observed the interpreter: (1) waiving her arms about as if she was fighting with someone; (2) chasing pieces of paper across the school’s parking lot; (3) staggering about a classroom; and, (4) leaving a bathroom that smelled like something had been lit on fire.  These observations were reported to the school principal, who then met with the interpreter and saw that she: (1) could not sit still; (2) had glassy eyes; (3) had dry mouth and was rambling; (4) was overly talkative and displayed “exaggerated politeness”; (5) displayed “quick moving” actions and “body contortions; could not hold her pen in her hand”; (6) had messy hair; (7) seemed fixated on items in her bag; and, (8) repeatedly asked the principal whether she appeared to be coherent.  The principal recorded these observations at the time on the school’s Reasonable Observation Checklist Form, consistent with the school’s written policy.  Concluding that the interpreter’s behavior was “drastically different” from her usual demeanor, the principal suspected that the interpreter was impaired and asked her to submit to a drug test.  When the interpreter refused, the consequences (i.e., disciplinary action) were explained and after refusing further, the school suspended the interpreter.  She subsequently was advised that failing to cooperate with the drug testing process is grounds for termination (as set forth in the school’s policy), and was notified that the school would not be renewing her employment contract.

During the litigation that followed, the interpreter argued that her behavior was attributable to several medical conditions, including scoliosis, anxiety and carpal tunnel syndrome. These arguments were rejected in the lower courts and the Supreme Court of Appeals found no error. The principal was familiar with the interpreter’s customary behavior (even with her stated medical conditions) and the principal concluded that her behavior on the date in question was “drastically different and unusual”.  That fact was a sufficient basis for reasonable suspicion drug testing.

Reasonable suspicion drug and alcohol testing can be a useful tool in managing employees who appear to be impaired at work. Employers who conduct such testing should:

  • Have a written drug and alcohol testing policy that clearly articulates the types of testing that will be conducted as well as the disciplinary consequences for refusing to test and testing positive;
  • Train managers to understand what constitutes reasonable suspicion. These decisions must be made as soon as possible after the observed behavior so that testing can be conducted in a timely manner. Untrained managers may not know what to do or may wait to take any action;
  • The key issue, as discussed in the case above, is to be able to articulate why the employee’s behavior is “drastically different” today, in comparison to the way the employee typically behaves;
  • Recording the observations at the time the conduct occurs is critical. It is helpful to create reasonable suspicion drug and alcohol test reports and/or checklists to assist with the contemporaneous documentation of the events; and,
  • An employee may provide excuses (such as an underlying medical condition) to avoid testing or disciplinary action. The employer still should proceed with the reasonable suspicion drug and alcohol testing if there is sufficient basis to do so.

Trump Administration May Enforce Federal Laws Prohibiting Non-Medical Use of Marijuana

In one of the Trump Administration’s first public statements on recreational marijuana, White House Press Secretary Sean Spicer stated in a press conference today that the Department of Justice may seek “greater enforcement” of the federal laws prohibiting the recreational use of marijuana.

Mr. Spicer said that there is “a big difference” between medical marijuana and recreational marijuana. He stated that President Trump understands the pain and suffering that people with debilitating illnesses endure and that medical marijuana brings them comfort.  He also noted that in the budget bill passed by Congress in 2014, the Department of Justice was not authorized to use federal funds to prosecute users of medical marijuana in the states where it is regulated.

But recreational marijuana is a different issue, Mr. Spicer said, particularly in light of the opioid crisis in this country. When pressed on how the White House will address recreational marijuana, Mr. Spicer deferred to the Department of Justice, stating that, “I do think you’ll see greater enforcement.”  The Department of Justice will be looking at the issue, and, “I believe they are going to continue to enforce the laws on the books with respect to recreational marijuana.”

Attorney General Jeff Sessions did not reveal how he will approach recreational marijuana during his confirmation hearings last month. In response to a question from Sen. Patrick Leahy, Sessions stated that he “won’t commit to never enforcing federal law.”

Currently, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington) and the District of Columbia have recreational marijuana laws.

Refusal to Submit to Drug Testing Requires Evidence of Intent, in Kansas Workers’ Compensation Case

An appellate court in Kansas ruled that an insufficient urine specimen, without evidence of intent to thwart the drug test, is not a refusal to submit to a test for purposes of the Workers’ Compensation Act. Byers v. Acme Foundry, 2017 Kan. App. LEXIS 12 (KS. Court of Appeals January 27, 2017).

Mr. Byers was injured at work when a piece of metal struck his left elbow. He was taken to the emergency room for treatment.  After spending the majority of the day in the emergency room, Mr. Byers returned to his employer, Acme Foundry, with the intent of going home.  Upon his return to work, Mr. Byers was informed by Acme’s in-house nurse that, pursuant to Acme’s policy, he must submit to a post-accident drug test before he could leave. Mr. Byer was provided with a specimen cup and provided instructions on how much of a urine sample was needed in order for the test to be completed.  Mr. Byers provided a urine sample, but the amount was inadequate and did not register the temperature gauge on the cup. Acme’s representatives explained to Mr. Byers that they needed to get a temperature reading and that the specimen could not be used without one.  Mr. Byers walked out the door, even though he was advised that he could lose his job if he did so.

Acme’s in-house nurse then threw the urine sample in the trash. Mr. Byers subsequently was terminated for refusing to submit to the post-accident drug test.

The Administrative Law Judge determined that Byers had forfeited his benefits under the Workers’ Compensation Act because, by providing an insufficient urine sample, he had effectively refused to submit to a drug test at the request of his employer. However, the Court of Appeals found that the term “refusal,” as used in the statute, carried with it the elements of willfulness or intent not to comply with the drug test, and that the facts did not support a finding that Mr. Byers willfully or intentionally failed to comply with Acme’s request for a drug test.  Indeed, there was no evidence that Mr. Byers was under the influence of drugs or alcohol at the time of the accident, and no evidence that his actions caused the injury.  Moreover, the Court stated that Mr. Byers did provide a urine sample for testing when requested, but Acme did not even try to test it.  The fact that the sample was insufficient did not excuse the company from attempting to perform the test and did not support a finding that Mr. Byers willfully or intentionally failed to comply with the requirements of Acme’s post-accident testing policy.

Consequently, the Court of Appeals reversed the earlier decision and held that Byers was entitled to workers’ compensation benefits.

DOT To Add Synthetic Opioids To Its Drug Testing Panel

Today the U.S. Department of Transportation published a notice of proposed rulemaking in the Federal Register in which it proposes to amend its drug testing program regulation to add four synthetic opioids (hydrocodone, hydromorphone, oxymorphone and oxycodone) to its drug testing panel. DOT also proposes to add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine, (MDEA) as a confirmatory test analyte.

DOT explained that it will maintain the current five-panel test, but will change the name of the opiates category to “opioids” and will include the four new synthetic opioid drugs.

DOT also proposes to:

  • add a new provision indicating that only urine specimens are authorized to be used for drug testing under 49 CFR Part 40;
  • revise an existing provision to describe the procedure for discarding an original urine specimen under certain circumstances;
  • adding three new “fatal flaws” to the existing list of four “fatal flaws” currently found in Part 40;
  • remove Part 40 provisions requiring blind specimen testing;
  • add emphasis to an existing Part 40 provision prohibiting DNA testing of urine specimens;
  • add clarification of the term “prescription” during MRO review;
  • remove, modify and add some definitions to clarify the program and make it consistent with the DHHS Mandatory Guidelines, among other things.

The proposed revision of the drug testing panel is intended to harmonize with the revised Mandatory Guidelines established by the U.S. Department of Health and Human Services for federal drug testing programs for urine testing, issued on January 23, 2017.  DHHS has set an effective date of October 1, 2017 for compliance with its final revision.

DOT will accept comments to the notice of proposed rulemaking until March 24, 2017. Comments may be submitted by e-mail to http://www.regulations.gov.

 

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