New York State Announces Expanded App To Locate Substance Abuse Treatment Programs

Governor Andrew M. Cuomo today announced the launch of a newly upgraded web-based search tool to help connect New York State residents struggling with addiction to treatment. The OASAS Treatment Availability Dashboard application allows New Yorkers to access any service in the New York State Office of Alcoholism and Substance Abuse Services continuum of care, including crisis, residential, inpatient, and now — outpatient and opioid treatment programs. By using the online and mobile-friendly platform, any New Yorker, including treatment providers, care coordinators, and health insurance professionals, can easily find a treatment bed or other available services, anywhere in the state and in real time.

Through the newly expanded application available at FindAddictionTreatment.ny.gov, visitors can find up-to-date information on available treatment beds, outpatient services and opioid treatment programs anywhere in the state, 24 hours a day, seven days a week. The application’s search feature includes proximity searches that return reports on available treatment within three, five, 10, 25 and 50 miles of the searcher’s location. Queries are simple and customizable allowing for searches by location, gender of the patient, age, city, county or zip code as specified by the user.  Those searching on the system are also given the telephone number of every program that is returned by a search. Patients are encouraged to call ahead to confirm the availability of a treatment slot. Mobile users can simply click on the treatment provider’s phone number to call the provider.

Additional resources are available by calling the state’s toll-free, 24-hour, 7-day-a-week HOPEline at 1-877-8-HOPENY (1-877-846-7369) or by texting HOPENY (Short Code 467369).

Federal Court Upholds NLRB Decision Finding That Employee Had Right To Physical Presence of Union Representative Before Consenting To Drug Test

A federal appeals court upheld November 16, 2016 the decision of the National Labor Relations Board (NLRB) that an employer violated Section 8(a)(1) of the National Labor Relations Act by denying an employee the right to the physical presence of a union representative before consenting to take a drug test, and by discharging him for refusing to take the test without a union representative present.  Manhattan Beer Distributors LLC v. National Labor Relations Board, Nos. 15-2845, 15-3099 (2d Cir. Nov. 16, 2016).

The Court stated that the NLRB’s decision was supported by substantial evidence and that it reasonably construed the NLRA in light of relevant judicial and administrative precedent. The NLRB’s award of reinstatement and back pay also was upheld.

We previously blogged about the facts of this case here.  In short, the employer wanted to send its employee for “reasonable suspicion” drug testing because he “reeked of the smell of marijuana.” The employee requested the presence of his union steward, but it was the union steward’s day off.  The employee spoke with the union steward on the telephone and then stated that he would not consent to the drug test without union representation.  The employer discharged him for refusing to take the drug test.  In Ralph’s Grocery Co., 361 NLRB No. 9 (2014), discussed here, the NLRB held that “an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test.”  The NLRB, and the Second Circuit, followed that precedent here.

When employers have “reasonable suspicion” to drug or alcohol test an employee, timing is critical. The more time that passes, the more likely the employee will test negative.  This case highlights the tension between an employer’s need to enforce its drug testing policy by conducting timely drug and alcohol tests, and the represented employee’s right to the physical presence of a union representative prior to consenting to test (and thereby potentially delaying the testing).  Employers of represented employees should review their policies and procedures to address these issues.

$1.6 Million EEOC Settlement Highlights Dangers of Making Assumptions About Employees’ Use of Medications

The EEOC entered into a Consent Decree on November 15, 2016, settling a case alleging violations of the Americans with Disabilities Act for $1.6 million. The EEOC claimed that the employer took adverse actions against applicants and employees with actual or perceived disabilities on the basis that the employer believed the individuals posed safety threats.  However, according to EEOC, those actions were taken without actually assessing the individual’s ability to perform the required tasks.  One of the plaintiffs, for example, was not hired after the employer learned that she took medication for a traumatic brain injury.  Click here to read the full article.

This settlement highlights the dangers of making assumptions about applicants’ or employees’ use of medications without conducting the “direct threat” analysis required by the Americans With Disabilities Act and comparable state laws.  An individualized assessment must be conducted before an employer can conclude that the applicant’s or employee’s use of medication poses a direct threat of harm in the workplace.

Seven States Pass New Marijuana Laws On Election Day

Election Day 2016 saw voters approve new marijuana laws in seven states. There are now a total of 28 states (plus the District of Columbia) with medical marijuana laws and 8 states (plus the District of Columbia) with recreational marijuana laws. Arizona’s proposed recreational marijuana law did not pass.  Read the full article on Jackson Lewis’ website.

 

 

Employer’s Honest Belief That Employee Violated Drug Testing Policy Defeated ADA Claims

An employer that terminated an employee based on its honest belief the employee violated its drug policy was entitled to summary judgment on the employee’s Americans with Disabilities Act claim, according to a Kentucky federal court. The court also granted summary judgment to the employer on the employee’s failure to accommodate and wrongful discharge claims. Adkins v. Excel Mining, LLC, 7:15-cv-00133-ART-EBA (E.D. Ky. Oct. 4, 2016).

Defendant maintained a zero-tolerance drug policy, which prohibited employees from using prescription drugs without a prescription. The policy had one exception: if the employee disclosed prescription drug use to Defendant, the employee could continue working if the employee’s doctor said it was safe to do so.

Plaintiff failed a random drug test, testing positive for both prescription drugs and alcohol. Defendant allowed Plaintiff to undergo treatment for alcohol dependency.  During his six-day in-patient treatment stay, Plaintiff’s doctors prescribed oxazepam, a prescription drug that treats alcohol-withdrawal symptoms.

Plaintiff subsequently returned to work and provided Defendant with his discharge papers. Plaintiff also named the prescriptions he was prescribed during treatment.  However, neither the discharge papers nor Plaintiff mentioned oxazepam.  Plaintiff took another drug test and tested positive for oxazepam.  Defendant called the drug testing lab, and learned that oxazepam should clear a user’s system within three days.  Defendant concluded that the drug should have cleared his system by the time he failed the drug test.  Defendant terminated Plaintiff’s employment for violating its drug testing policy.

Plaintiff claimed Defendant violated the ADA and the Kentucky Human Rights Act, and that it terminated him in violation of public policy. Plaintiff specifically claimed he was terminated because he is an alcoholic.  The Court hinted that Plaintiff may not be “an individual with a disability” because the ADA excludes current users of illegal drugs.  However, it decided that Plaintiff’s claim failed on other grounds.

The Court first rejected Plaintiff’s argument that the timing alone between his treatment and his termination could carry the day. The Court then focused on the honest belief doctrine.  The Court held Defendant was only required to “make an informed and considered decision based on the facts before it,” even if the belief is ultimately “mistaken, foolish, trivial, or baseless.”  The Court concluded the Defendant’s reliance on the drug testing laboratory’s advice and the discharge papers (which did not list oxazepam) supported its honest belief Plaintiff violated its drug policy.  Thus, summary judgment was appropriate and the case was dismissed.

OSHA Publishes Guidance For Conducting Post-Accident Drug And Alcohol Testing Without Violating The Electronic Recordkeeping Rule’s Retaliation Provision

The Occupational Safety and Health Administration published a memorandum on October 19, 2016 that explains statements made about post-accident drug and alcohol testing in its commentary to the Electronic Recordkeeping Rule, i.e.,Improve Tracking of Workplace Injuries and Illnesses,” which was published in May.  Among other things, the rule prohibits retaliation against employees who report workplace injuries and illnesses.

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 post-accident or post-injury drug and alcohol testing is permitted by employers. 

In the October 19, 2016 memorandum, OSHA stated that it will not issue citations for drug testing conducted under federal or state laws, or under state workers’ compensation laws.  This is good news for employers who conduct drug and alcohol testing required by federal law, or in accordance with state laws, including state workers’ compensation premium reduction laws.

Importantly, OSHA stated that “[t]he general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”  The Electronic Recordkeeping rule does not prohibit employers from drug testing employees “who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting.” The rule only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, OSHA’s central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If so, it would be objectively reasonable to subject the employee to a drug test. When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.

OSHA offered this example: A crane accident injures several employees working nearby but not the operator. The employer does not know the cause of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate the retaliation provision.

Conversely, OSHA stated that drug testing an employee whose injury could not possibly have been caused by drug use would likely violate the retaliation provision of the rule. For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.

Finally, OSHA stated that it will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, OSHA will only consider this factor for alcohol tests but not drug tests.

Employers should review their drug and alcohol testing policies to ensure that their post-accident drug and alcohol testing provisions comply with all applicable laws as well as OSHA’s new guidance.

Massachusetts State Court Rejects Medical Marijuana Suit

In another win for employers with regard to medical marijuana use by employees, a Massachusetts state court rejected a former employee’s legal claims under the state’s medical marijuana law. Barbuto v. Advantage Sales and Marketing, LLC, et al., No. 15-02677 (Mass. Sup. Ct. May 31, 2016).

The plaintiff, Christina Barbuto, possessed a valid medical marijuana prescription under Massachusetts law to treat Crohn’s disease. When her employer, Advantage Sales and Marketing, LLC (“ASM”), terminated Barbuto’s employment after testing positive for marijuana, she then brought suit 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.

In deciding whether an accommodation for medical marijuana was required, the Superior Court looked at the plain language of the medical marijuana statute at issue, as well as the state’s anti-discrimination statute generally, to conclude that there was no obligation under state law to accommodate such marijuana use. In reaching this conclusion, the Superior Court also noted federal precedent holding that disability discrimination does not extend to medical marijuana use because such use remains illegal under federal law.  Moreover, the Court held that the Massachusetts medical marijuana law provided no private right of action to employees, and that there was no clear public policy that would prevent an employer from discharging an employee who uses medical marijuana.

The Court did not, however, dismiss Barbuto’s invasion of privacy claim. In Massachusetts, courts will balance an employee’s privacy rights against the employer’s competing interest to determine whether employees are using drugs.  In general, employers do not violate employees’ privacy rights when the testing is being conducted to maintain workplace safety.  Here, Barbuto alleged that the drug test was unreasonable and inappropriate, given her job duties (which were not identified in the decision) and the type of business in which ASM is engaged.

While this decision is welcome news for Massachusetts employers, it also highlights that an employer must ensure that its drug and alcohol testing policy complies with all applicable laws. In states with privacy rights in the context of workplace drug testing, employers should not conduct “suspicion-less” testing such as post-accident testing and random testing, unless the employees to be tested are “safety-sensitive,” i.e., their job duties pose a threat to the health or safety of themselves or others if they were to perform the job while impaired by drugs or alcohol.

Eight States Will Vote On New Marijuana Laws On Election Day 2016

Currently, twenty-five states and the District of Columbia have medical marijuana laws, while four states and the District of Columbia have legalized marijuana for recreational use.  On Election Day 2016, eight more states will consider adopting such laws.  Here is a brief summary of those proposed laws, focusing on the implications for employers:

Medical Marijuana

  1. Arkansas – The Arkansas Medical Cannabis Act would allow the medical use of marijuana by patients who suffer from qualifying medical conditions. The law does not permit a qualifying patient to be “denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for medical use of cannabis in accordance with [the law].” In addition, “[a]n employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status as a Qualifying Patient.” However, the law does not require an employer to accommodate the use of marijuana in the workplace or to permit an employee to work while under the influence of marijuana. The law also prohibits undertaking any task while under the influence of marijuana “when doing so would constitute negligence or professional malpractice,” and further prohibits the operation of a vehicle while under the influence of marijuana.
  2. Florida – In Florida, a proposed constitutional amendment provides that individuals with certain debilitating medical conditions may use marijuana as prescribed by a physician. The law does not require employers to permit the use of marijuana in the workplace, and prohibits the operation of a vehicle while under the influence of marijuana.
  3. North Dakota – The North Dakota Compassionate Care Act would permit marijuana use by patients with debilitating medical conditions. The law states that medical marijuana users are not relieved from criminal prosecution or civil penalty for possession, use, distribution or transfer of marijuana in the workplace. In addition, medical marijuana users are not relieved from liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of marijuana.

Recreational Marijuana

  1. Arizona – Arizona’s Regulation and Taxation of Marijuana Act seeks to treat marijuana in a manner similar to alcohol. The law would permit individuals 21 and older to possess or use up to one ounce of marijuana and to possess up to six marijuana plants. However, the law does not require an employer to allow or accommodate the possession or consumption of marijuana or marijuana products in the workplace and does not affect the ability of an employer to enact and enforce workplace policies restricting the consumption of marijuana and marijuana products by employees. The law also does not prevent the imposition of civil or criminal penalties for operating a vehicle while under the influence of marijuana, or engaging in any task while impaired by marijuana that would constitute negligence or professional malpractice. But employers should take note that the law also states: “a person may not be penalized in this state for an action taken while under the influence of marijuana or a marijuana product solely because of the presence of metabolites or components of marijuana in the person’s body or in the urine, blood, saliva, hair or other tissue or fluid of the person’s body.”
  2. California – California’s Proposition 64, the Adult Use of Marijuana Act, would legalize the non-medical use and possession of up to one ounce of marijuana, up to 6 marijuana plants, and up to 8 grams of concentrated marijuana products for those 21 and older. The law states that it does not alter or amend the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace and to have policies prohibiting the use of marijuana by employee and applicants. The law further does not require employers to permit or accommodate the use of marijuana in the workplace, or prevent employers from complying with state or federal law. Smoking or ingesting marijuana is prohibited in public or while driving or riding in a vehicle.
  3. Maine – Maine’s Marijuana Legalization Act would permit individuals 21 and older to use and possess up to 2-1/2 ounces of marijuana and accessories, and to cultivate plants in the home, among other things. The law states that it does not require employers to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, the law will not impact an employer’s ability to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. Despite that language, however, the law prohibits employers from refusing to employ a person solely because that person consumed marijuana outside the employer’s property.
  4. Massachusetts – Massachusetts’ The Regulation and Taxation of Marijuana Act would permit individuals 21 and older to use or possess up to one ounce of marijuana, keep up to 10 ounces of marijuana at home, and to cultivate up to six marijuana plants. The law does not require an employer to permit or accommodate conduct allowed by the law and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees. The law also does not amend existing penalties for the operation of a vehicle or machinery while impaired by marijuana or marijuana products, or for performing a task while impaired by marijuana that would constitute negligence or professional malpractice.
  5. Nevada – Nevada’s Regulation and Taxation of Marijuana Act would permit individuals 21 and older to use or possess up to one ounce of marijuana, and possess or cultivate up to 6 marijuana plants. The law does not prohibit a public or private employer from maintaining, enacting and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under the law. Additionally, the law does not prevent the imposition of any civil or criminal penalty for operating a vehicle while impaired by marijuana, or undertaking any take under the influence of marijuana that constitutes negligence or professional malpractice.

Even if all of these laws pass on Election Day, the legal landscape for employers will not change very much, particularly because marijuana still is illegal under federal law.  In most states, employers still are permitted to implement policies prohibiting the use of marijuana and may take adverse actions against those who use marijuana, even for medical reasons.  However, an increasing number of states are enacting laws prohibiting discrimination against medical marijuana users, and now it appears that at least two states – Arizona and Maine – are proposing laws that would provide workplace protections to recreational marijuana users in certain circumstances.  Employers should follow the Election Day results carefully and review their drug and alcohol testing policies to determine whether any modifications are required.

DEA Classifies U-47700, or “Pink”, As A Schedule I Drug

The Drug Enforcement Administration (“DEA”) announced September 7, 2016 that it intends to temporarily schedule the synthetic opioid known as U-47700 on Schedule I of the federal Controlled Substances Act because it poses an imminent hazard to the public safety. A final scheduling order will be made on or after October 7, 2016.  Schedule I drugs are drugs that have a high potential for abuse, no currently accepted medical use in treatment in the U.S., and a lack of accepted safety for use under medical supervision.

U-47700 is a synthetic opioid with morphine-like properties, and is commonly known as “pink” or “pinky.”  Although it has not been approved for human consumption, it is available on the internet, primarily from Chinese suppliers.  It has been growing in popularity with recreational drug users but the substance can be toxic even in small doses.  A number of states, including Ohio, Georgia and Wyoming, have made the drug illegal.

The DEA stated that it is aware of at least 15 confirmed fatalities resulting from the use of U-47700, but as many as 50 deaths have been reported nationwide as linked to the drug.  Only a few days after the DEA’s scheduling announcement, two 13-year-olds died in Utah on September 13, 2016. Local law enforcement believes their deaths are related to U-47700 and has warned the public because the drug is cheap and easily obtained on the internet.

New Survey Shows Positive Workplace Drug Test Results Are On The Rise, Especially For Heroin, Marijuana and Amphetamines

According to a new study published by Quest Diagnostics today, positive workplace drug test results have been increasing steadily every year since 2011, and made up 4% of all workplace drug test results in 2015.  The Quest Diagnostics Drug Testing Index — an annual survey of workplace drug test results — examined nearly 11 million drug test results in 2015. Some of the most significant findings of the survey include:

  • The rate of amphetamine, marijuana and heroin detection has increased every year for the past five years.
  • 45% of all U.S. workers who tested positive in 2015 showed evidence of marijuana use.
  • Positive test results for heroin increased 146% over the last four years, while positive test results for oxycodone decreased slightly.
  • Amphetamine positivity increased 44% since 2011.
  • Marijuana positivity increased 26% since 2011.
  • Post-accident positivity rates have increased 30% since 2011.
  • In oral fluid drug testing, the overall positivity rate increased 47% since 2011, driven primarily by large increases in positive marijuana results.
  • 9% of job applicants could not pass a pre-employment hair drug test in 2015.

Employers should take note of these statistics and ensure that their drug and alcohol testing policies address these issues adequately. Among other things, employers should ensure that their drug testing procedures include testing for the presence of 6-acetylmorphine to detect heroin.  Additionally, the increase in positive post-accident test results should concern employers and should prompt a review of post-accident drug and alcohol testing practices.  Finally, although the public continues to embrace medical marijuana and many states are moving to legalize marijuana use recreationally, this survey shows that marijuana use is increasing and will continue to be a problem in the workplace.

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