U.S. Department of Health and Human Services Publishes Standards For Oral Fluid Drug Testing

The U.S. Department of Health and Human Services (DHHS) published scientific and technical guidelines for oral fluid drug testing in federal workplace drug testing programs in the Federal Register on October 25, 2019. The Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid (OFMG) allows federal executive branch agencies to collect and test oral fluid specimens, and establishes standards and technical requirements for oral fluid collection devices, including initial and confirmatory oral fluid drug test cut-off concentrations and methods, among other things. The Guidelines will take effect on January 1, 2020.

Some agencies, such as the Department of Transportation, are required to follow the Mandatory Guidelines in developing drug testing programs for their regulated industries. We anticipate that DOT’s operating agencies will implement regulations adopting the new Guidelines into their respective testing programs.

DHHS stated there are many reasons why oral fluid testing will be beneficial including: (1) urine testing often poses obstacles, such as adulteration and assessment of medical conditions preventing the production of a urine specimen; (2) oral fluid collection does not require secured restrooms or other special requirements that urine testing requires; (3) all oral fluid collections will be conducted under direct observation which should substantially lessen the risk of substitution and adulteration; (4) oral fluid collection saves time when compared to urine specimen collections; and, (5) oral fluid testing may provide more insight into recent drug use shortly before or at the time the specimen is collected.

Noting that the number of products on the market to adulterate urine specimens continues to proliferate, DHHS stated that the scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been established and it may be used with the same level of confidence that has been applied to urine testing.

A federal agency may collect oral fluid specimens for pre-employment, random, reasonable suspicion/cause, post-accident, return-to-duty and follow-up drug tests. The OFMG requires a specific volume of oral fluid to be collected and provides for split-specimen collections. Collectors must be trained to collect oral fluid specimens in accordance with the OFMG. There are requirements for oral fluid specimen collection devices and collection procedures, including procedures to be followed when a tested individual claims that he or she cannot provide an oral fluid specimen. DHHS-certified laboratories and Medical Review Officers must ensure that they follow the OFMG.

Oklahoma Court Holds That Positive Marijuana Drug Test Did Not Prove That Marijuana Caused Accident

An Oklahoma state court held that a positive post-accident drug test for marijuana did not prove that marijuana use caused the accident, and therefore the claimant was eligible for workers’ compensation benefits. Rose v. Berry Plastics Corp. et al., 2019 OK Civ. App. 55 (Ok. Civ. Ct. App. Oct. 16, 2019).

Claimant Dillon Rose’s left hand and wrist were crushed in a “guillotine” machine while working as a machine operator for his employer. He was subjected to a post-accident drug test and tested positive for marijuana and morphine.   Rose’s workers’ compensation claim initially was denied due to the positive drug test results. At a hearing before an administrative law judge (ALJ), Rose admitted that he smoked marijuana the night before the accident but denied that its use was a factor in the accident the next day. On the day of the accident, Rose worked for a few hours and testified that no supervisors remarked that he was or appeared to be impaired. While he acknowledged that putting his hand inside the machine was unsafe, he testified that he was “thinking clearly” and was not impaired. A manager employed by the employer testified that he had no knowledge of Rose being intoxicated. The ALJ ruled that the employer should provide medical treatment and temporary benefits.

The employer sought a review before the Workers’ Compensation Commission, which reversed and ruled that Rose was not entitled to benefits.

Upon review of the WCC decision, the state court ruled that the WCCC erred by concluding that Rose’s testimony was “self-serving.” Rather, the WCC was supposed to determine whether there was “clear and convincing evidence” to support the ALJ’s finding that intoxication had no causal relationship to the injury. There was no evidence to refute Rose’s statements about the circumstances of the accident.

The state court also held that the WCCC erred when it stated “we are not convinced” that Rose was clear-headed at the time of the accident and that the chemicals in his system may have affected his “judgment, physical and cognitive facilities at the time of the accident.” The court rejected the WCCC’s “inference that the mere presence of marijuana in Claimant’s blood stream inevitably means he was intoxicated. . . . the presence of an intoxicating substance in the blood does not automatically mean that person is intoxicated.”

The state court reversed and reinstated the ALJ’s order providing benefits to Rose.

Pennsylvania Public Policy Did Not Bar Termination of Nuclear Power Plant Employee Who Tested Positive For Alcohol

A federal district court in Pennsylvania held that public policy did not bar termination of a nuclear power plant employee who tested positive for alcohol. Bennett v. Talen Energy Corp. et al., No. 3:19cv521 (M.D. Pa. Oct. 11, 2019).

Plaintiff worked at a nuclear power plant as a production foreman. The Nuclear Regulatory Commission (“NRC”) requires all nuclear power plants to adopt Fitness For Duty (“FFD”) programs that address Unescorted Access (“UA”) requirements for employees that enter secure areas of a nuclear facility. In addition, drug and alcohol testing is required. On February 15, 2018, plaintiff submitted a urine sample under the FFD program, which revealed a blood alcohol level above the permitted level in violation of the program. As a result of the violation, plaintiff’s UA authorization was withdrawn for a minimum of 14 days, but the employer’s medical review officer assured plaintiff he would return to work before March 31, 2018. Instead, on March 23, 2018, plaintiff’s employment was terminated. Plaintiff also lost his UA status and could not get a job at another nuclear power plant.

Plaintiff filed suit, alleging wrongful termination in violation of Pennsylvania public policy. Specifically, he asserted that he was terminated after his first violation of the FFD program without being allowed to enter the employer’s Employee Assistance Program (“EAP”). In support of his position, plaintiff argued that Pennsylvania public policy favors allowing employees with alcohol or drug-related issues to complete treatment for first offenses before being terminated. He further argued that NRC regulations required NRC licensees to refer to an EAP employees who violated FFD protocol and restore the employees’ UA once the program is completed. The Court held that a plain reading of the regulation imposed no such duty, and therefore public policy did not require the employer to refer plaintiff to an EAP. Thus, the court dismissed his wrongful discharge claim.

Plaintiff also asserted a violation of NRC regulation 10 C.F.R. § 26.75, which provides that for the first violation of a FFD involving a drug or alcohol test, an employee’s UA must be terminated for a minimum of 14 days. An employer, however, may impose a more stringent sanction for a first-time violation. Since the employer did not enact a more stringent policy, Plaintiff argued that his UA badge should have been restored to him 14 days after his suspension. But the court stated that Pennsylvania courts and the Third Circuit have held that there is no private right of action for violations of the NRC regulations relating to drug testing and security clearance investigations and dismissed this claim as well.

National Safety Council States That “No Level of Cannabis Use Is Safe Or Acceptable” For Safety-Sensitive Positions

The National Safety Council, a nonprofit organization whose stated mission is to eliminate preventable deaths at work, in homes and communities through leadership, research, education and advocacy, published a Position/Policy Statement on October 21, 2019 addressing cannabis (marijuana) impairment in safety-sensitive positions. NSC stated that “it is clear that cannabis impacts psychomotor skills and cognitive ability,” and concluded that “there is no level of cannabis use that is safe or acceptable for employees who work in safety-sensitive positions.” (“Safety-sensitive” refers to jobs that impact the safety of the employee and the safety of others as a result of performing that job).

NSC stated that cannabis is the most widely consumed illicit substance worldwide. According to a 2018 study by the National Institute on Drug Abuse, employees who tested positive for cannabis had:

  • 55% more industrial incidents
  • 85% more injuries
  • 75% greater absenteeism compared to those who tested negative.

Noting that cannabis affects the body in a number of ways including disorientation, impaired judgment, lack of concentration, slowed fine motor skills and delayed decision-making, among others, NSC supports moving employees to non-safety-sensitive positions when they use marijuana for medical reasons. [We recommend consulting with counsel before doing so to ensure compliance with applicable laws].

While also noting that more research is needed to better understand the effects of cannabis, NSC stated that there is evidence that legalization or decriminalization of marijuana may increase vehicle crash rates and hospitalizations. It cited a Rocky Mountain High Intensity Drug Trafficking Area study that found the yearly rate of emergency department visits related to marijuana increased 52% after the legalization of recreational marijuana in Colorado. Another study done by the Insurance Institute for Highway Safety examined 2012-2016 police-reported crashes before and after the retail sales of cannabis began in Colorado, Oregon, and Washington. That study estimated that those three states combined saw a 5.2% increase in the rate of crashes per million vehicle registrations, compared with neighboring states that did not decriminalize or legalize marijuana sales. In 2017, the NSC Alcohol, Drug and Impairment Division issued a position statement concluding that cannabis degrades driving performance.

Although NSC acknowledged that the amount of THC detectable in the body does not directly correlate to a degree of impairment, NSC believes that it is unsafe to be under the influence of cannabis while working in a safety-sensitive position due to the increased risk of injury or death to the operator and others.

Federal Appeals Court Holds Test For Illegal Drugs Is Not An Impermissible Medical Examination, Even If Test May Reveal Lawful Drug Use

A federal appeals court upheld the termination of an employee who tested positive for amphetamines on a random drug test – despite his claim that the result was due to over-the-counter drug use – and rejected his arguments that the random drug test was an impermissible medical examination and that the Medical Review Officer’s questions constituted an impermissible disability-related inquiry. Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir. Oct. 16, 2019).

Phillips 66 Co., the employer, conducted a random drug test on its employee, Richard Turner. Three days later, Mr. Turner was involved in a workplace accident and submitted to a post-accident drug test. On the day of the post-accident test, the employer learned that Mr. Turner had tested positive for amphetamines on the random drug test. Mr. Turner advised the Medical Review Officer (MRO) that the positive random drug test was due to his use of over-the-counter Sudafed, which his treating physician confirmed in writing. Phillips 66 terminated Mr. Turner’s employment under its policy providing that if an employee tests positive for drugs, his or her employment will be terminated. Mr. Turner appealed the termination decision pursuant to the Company’s policy. He submitted to a hair test at an independent laboratory and that test was negative. In addition, the results of his post-accident test also were negative. A confirmatory re-test of Mr. Turner’s original random urine specimen, however, confirmed that that test result was positive for amphetamines.

Phillips 66 denied Mr. Turner’s appeal and upheld the termination. Thereafter, Mr. Turner filed a discrimination charge with the Equal Employment Opportunity Commission, alleging disability discrimination in violation of the Americans With Disabilities Act (ADA). The EEOC dismissed the charge. Mr. Turner then filed a complaint alleging that: (1) he was subjected to an impermissible medical examination and disability-related inquiry; (2) he was terminated due to a disability (allergies); (3) he was “regarded as” disabled; (4) the drug testing violated the Oklahoma drug testing law. The district court granted summary judgment to Phillips 66 on each of Mr. Turner’s ADA claims. Mr. Turner appealed.

The Tenth Circuit Court of Appeals affirmed the district court’s grant of summary judgment to Phillips 66.

First, the court rejected Mr. Turner’s argument that his drug test and discussion with the MRO about his medications violated the ADA. Mr. Turner argued that, because he tested positive for amphetamines due to taking an over-the-counter medication, the employer’s drug test “was not for illegal use of drugs as permitted by [the ADA], but went beyond that to legal and appropriate use.” Mr. Turner further argued that the drug test was a medical examination that required Phillips 66 to show that it was “job-related and consistent with business necessity” under the ADA. The court disagreed, holding that a drug test does not become a medical examination simply because the drug test revealed the potential use of legal drugs. The court similarly rejected Mr. Turner’s argument that the MRO’s discussion with him about his use of medications violated the ADA as being an impermissible disability-related inquiry.

Second, the court rejected Mr. Turner’s argument that the district court erred in granting summary judgment to Phillips 66 on his “traditional” and “regarded as” ADA disability discrimination claims. The court affirmed the district court’s determination that Phillips 66 had set forth a legitimate, non-discriminatory reason for Mr. Turner’s termination—that is, his positive drug test—and that Mr. Turner had failed to show pretext. While Mr. Turner attempted to argue that he did not need to show pretext as his evidence was direct, the court rejected that argument, finding that it did not meet the requirement that direct evidence must show, without inference, that the employment action was taken as a result of the employee’s disability. Because Mr. Turner failed to articulate or even argue pretext, the court held that his disability discrimination claims under the ADA failed.

New Connecticut Law Requires Policy on Opioid Antagonists at Colleges, Universities

Connecticut has enacted changes to its opioid laws that include requiring institutions of higher education to implement a policy on the availability and use of opioid antagonists for students and staff.

Public Act No. 19-191, “An Act Addressing Opioid Use,” makes various other revisions to the state’s opioid use prevention and treatment statutes, as well as creates new legislation.

By January 1, 2020, presidents of institutions of higher education in Connecticut must develop, implement, obtain approval from the state Department of Consumer Protection, and post on the institution’s website a policy on the availability and use of “opioid antagonists” by students and employees.  Opioid antagonists are defined as “naloxone hydrochloride or any other similarly acting and equally safe drug approved by the federal Food and Drug Administration for treatment of a drug overdose.” Naloxone hydrochloride is commonly known by the brand name “Narcan.”

The required policy must:

  1. Designate a medical professional or public safety professional to oversee the purchase, storage, and distribution of opioid antagonists on each of its campuses;
  2. Identify the location(s) on each of its campuses where the opioid antagonists are stored, which location(s) will be made known and accessible to students and employees;
  3. Require maintenance of the supply of opioid antagonists in accordance with the manufacturer’s guidelines; and
  4. Require a representative of the institution to call 911 or notify a local emergency medical services provider prior to, during, or as soon as practicable after each use of an opioid antagonist on the institution’s campus that is reported to the institution or observed by a medical professional or public safety professional, unless the person to whom the opioid antagonist was administered has already received medical treatment for the opioid-related drug overdose.

The law also creates new requirements for practitioners, pharmacists, paramedics, and registered drug manufacturers and wholesalers.

FMCSA Clearinghouse Registration Is Now Open; Clearinghouse Goes Live on January 6, 2020

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced on October 1, 2019 that Clearinghouse registration is now open. The FMCSA Clearinghouse is an electronic database that will contain information about commercial motor vehicle drivers’ drug and alcohol program violations. The Clearinghouse will become operational on January 6, 2020, and FMCSA-regulated employers must be ready to comply with the Clearinghouse requirements on that date. Authorized users may now visit https://clearinghouse.fmcsa.dot.gov/register to create a user account and become familiar with the site.

The Clearinghouse rule requires FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, consortia/third-party administrators and other service agents to report to the Clearinghouse information related to violations of FMCSA’s drug and alcohol testing regulations by current and prospective employees. Beginning on January 6, 2020, FMCSA-regulated employers must be prepared to do the following:

Queries of New Hires/Transfers: Employers must query the Clearinghouse before allowing a newly-hired commercial motor vehicle driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers must sign a consent form allowing the employer to do so.

Annual Queries of Current Employees. Employers must query the Clearinghouse at least once per year for each driver they currently employ. Drivers must sign a consent form allowing the employer to do so. The employer must maintain records of all queries and information obtained in response to the query, for a period of three years. (As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement).

Reporting of Drug and Alcohol Program Violations. Employers must report drivers’ drug and alcohol program violations (listed below) to the Clearinghouse within three business days after the employer learns of the information.

Employers must prohibit drivers who have violated FMCSA’s drug and alcohol program regulations from performing safety-sensitive duties unless the driver has complied with the return-to-duty process set forth at 49 CFR Part 40, Subpart O.

Revise Drug and Alcohol Testing Policies. In addition to registering with the Clearinghouse, FMCSA regulations require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver applicants that the following information will be reported to the Clearinghouse:

  • A verified positive, adulterated, or substituted drug test result;
  • An alcohol confirmation test with a concentration of 0.04 or higher;
  • A refusal to submit to a drug or alcohol test;
  • An employer’s report of actual knowledge, as defined at 49 CFR § 382.107;
  • On duty alcohol use pursuant to 49 CFR § 382.205;
  • Pre-duty alcohol use pursuant to 49 CFR § 382.207;
  • Alcohol use following an accident pursuant to 49 CFR § 382.209;
  • Drug use pursuant to 49 CFR § 382.213;
  • A SAP’s report of the successful completion of the return-to-duty process;
  • A negative return-to-duty test; and,
  • An employer’s report of completion of follow-up testing.

Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense).

New Jersey’s Amended Medical Marijuana Law Provides Job Protections And Includes Drug Testing Procedures

New Jersey Governor Phil Murphy signed into law on July 2, 2019 the Jake Honig Compassionate Use Medical Cannabis Act (“CUMCA”) to expand patient access to medical marijuana and to reform the State’s medical marijuana program. The law amends the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:61-2 et seq., (and changes its name to the Jake Honig Compassionate Use Medical Cannabis Act). The CUMCA makes several substantive changes to New Jersey’s medical marijuana program, including providing job protections to medical marijuana users and creating new drug testing procedures. The law took effect upon signing.

Prior to this amendment, the CUMCA did not explicitly require employers to accommodate medical marijuana use, and provided that nothing in the law required an employer to accommodate an employee’s use of medical marijuana. However, recent New Jersey case law suggested that New Jersey’s anti-discrimination statute, the New Jersey Law Against Discrimination, may require employers to accommodate medical marijuana use to treat a disability. See Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019), which we blogged about here.

The CUMCA, as amended, endorses the New Jersey Appellate Division’s decision in Wild. The CUMCA now expressly prohibits an employer from taking any adverse employment action against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient. An “adverse employment action” is defined by the law as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”

However, the amendment does not “restrict an employer’s ability to prohibit or take adverse employment action for the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours.” Moreover, an employer is permitted to take an adverse employment action against a medical marijuana patient if the employer’s accommodation of the employee’s medical marijuana use would “violate federal law or result in the loss of a federal contract or federal funding.”

The CUMCA amendment does not prohibit drug testing, but creates new procedures to be followed when an employee or applicant has tested positive for marijuana. Specifically, the employer must give the employee or applicant written notice of the positive test result and an opportunity to provide a “legitimate medical explanation for the positive test result.” Thereafter, within three working days after the employee or applicant receives the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or may request retesting at the employee or applicant’s expense. The legitimate medical reason may include authorization for medical marijuana use by a health care provider, proof of registration for medical marijuana use, or both. Employers in New Jersey who conduct drug testing should review their testing policies to ensure compliance with the law.

New Jersey is among a growing list of states—including Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island, among others—that offer employment protections for authorized users of medical marijuana. Employers should consult legal counsel to navigate compliance with varying state and federal laws relating to marijuana use.

Court Dismisses ADA Claims Alleging “Excessive” Drug and Alcohol Testing

A federal court in New York dismissed a disability discrimination claim asserted under the Americans with Disabilities Act (ADA) based on allegedly “excessive” drug and alcohol testing of employees after they failed drug or alcohol tests required under the U.S. Department of Transportation (DOT)’s regulations. Vuono, et al. v. Consolidated Edison of New York, Inc., Case No. 1:18-cv-016365-VEC (S.D.N.Y. June 11, 2019).

The employer required the group of plaintiff-employees to submit to random drug and alcohol testing pursuant to DOT regulations. In addition, employees who tested positive were put in the employer’s “On Call” program, which required additional drug and alcohol testing, without advance notice of the tests. (Although the Court’s opinion does not make it clear, it appears that these “On Call” tests were follow-up drug and alcohol tests required under DOT regulations after a violation of a DOT drug and alcohol rule).

Seven current and former employees filed suit alleging disability discrimination. In their third amended complaint, they claimed were regarded as disabled under the ADA, and subjected to excessive drug and alcohol testing as a result. Significantly, the employees did not specify how frequently they were subjected to the On Call testing. They also alleged the tests were unlawful disability-related inquiries under the ADA. The employer moved to dismiss.

The Court held that the employees failed to state a claim because they were not subjected to an adverse employment action. In general, drug and alcohol testing by an employer is “not an adverse action” for purposes of a disability discrimination claim. Moreover, the complaint was devoid of facts alleging that the On Call testing was “so frequent and so invasive” that it was comparable to a demotion, pay cut, or other standard adverse employment action. Rather, it was a “mere inconvenience,” which is not actionable. The Court also rejected the employees’ argument that the embarrassment associated with the testing was sufficient to establish an adverse action. Because the employees failed to assert a viable claim after three attempts, the Court dismissed the claim with prejudice.

With respect to the employees’ unlawful disability-related inquiry claim, the Court concluded the allegations were insufficient to show the claim was timely filed (e.g., within 300 days of the administrative charge). However, the Court allowed six of the seven employees to amend the complaint to try to demonstrate that such allegations were not time-barred. But the Court also expressed skepticism that a drug or alcohol test constitutes a medical examination or inquiry under the ADA, primarily because a drug or alcohol test result does not “tend to reveal a disability.” Moreover, these employees are subject to DOT drug and alcohol testing regulations and the ADA expressly provides that drug and alcohol testing of DOT-regulated employees is permissible.

Illinois Legalizes Recreational Marijuana, Posing Challenges For Employers

The Illinois General Assembly passed the Cannabis Regulation and Tax Act (“the Act”) (HB 1438) on May 31, 2019, legalizing marijuana for recreational purposes. Governor J.B. Pritzker has stated he will sign the bill and it will take effect on January 1, 2020.  The Act will allow anyone over the age of 21 to possess, use, or buy marijuana.  More significantly, marijuana will be considered a “lawful product” for purposes of the Illinois Right to Privacy Act, which bars discrimination against employees and applicants for using lawful products off-duty and off of the employer’s premises.  For employers, the end of Illinois’ prohibition on recreational use invites a host of practical problems moving forward.

Background

Since 2014, marijuana has been legal in Illinois for medical purposes. With the Act’s recent passage, Illinois became the first state in the nation to legalize legislatively both possession and commercial sales of marijuana for recreational purposes. The Act, aimed at refocusing law enforcement’s attention on violent and property crimes, as well as generating revenue for the state, places cannabis in a category similar to alcohol, subject to a few exceptions.

Notwithstanding this legalization in Illinois, marijuana remains illegal under federal law. Under the Controlled Substances Act, marijuana is still classified as a Schedule I drug, which means that—per federal law—it has a high potential for abuse, it lacks any currently accepted medical use, and it lacks accepted safety for use under medical supervision. However, the federal government has allowed many states to pass and implement both medical marijuana and recreational marijuana laws without opposition.

General Provisions That Are Beneficial For Employers

At first glance, the Act contains a number of provisions that are helpful to employers who wish to maintain drug-free workplaces. Specifically, the Act provides that:

  • Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner. (“On-call” is defined to mean when the employee is scheduled with at least 24 hours’ notice by the employer to be on standby or otherwise responsible for performing work).
  • Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.
  • Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.

Addressing Impairment At Work

The Act permits employers to discipline employees who appear to be impaired by marijuana at work, as long as the employer complies with this provision:

  • An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

The Act does not define “reasonable opportunity” so it is unclear exactly what employers must offer to employees when there is reasonable suspicion of impairment at work.

No Cause of Action Against Employers

The Act also states that it shall not be construed to create or imply a cause of action for any person against an employer for:

  • Actions, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment, based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies;
  • Actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; or
  • Injury, loss or liability to a third party if the employer neither knew or had reason to know that the employee was impaired.

Exceptions

The Act does not apply to employees who are regulated by the U.S. Department of Transportation’s drug and alcohol testing regulations, and does not impact an employer’s ability to comply with federal or state laws or cause it to lose a federal or state contract or funding. The Act also does not enhance or diminish protections afforded by the Illinois Medical Marijuana Law or the Opioid Alternative Pilot Program.

Clarification That Marijuana Is Considered A “Lawful Product” Under State Law and Prohibition on Discrimination for Off-Duty, Off-Premises Use

While the above-mentioned provisions of the Act appear beneficial for employers, another part of the Act requires employers who conduct drug testing to take notice. The Act amends the Illinois Right to Privacy in the Workplace Act by defining “lawful products” to mean products that are legal under state law. This means that under the Right to Privacy Act, Illinois employers are prohibited from discriminating against applicants and employees who use “lawful products [i.e., marijuana] off the premises of the employer during nonworking and non-call hours.” (There is a limited exception for certain non-profit organizations). This language has a very significant impact on employers who conduct drug testing.

Impact on Employers’ Drug Testing Programs

The prohibition on discrimination for using “lawful products,” combined with the other provisions referred to above, makes it appear that drug testing for marijuana will no longer be permissible in Illinois unless the employer can demonstrate that the employee was impaired at work or during work time, or, was involved in an accident. This means that employers will be limited to “reasonable suspicion” and post-accident drug testing for marijuana, in accordance with the requirements now set forth in the Act.

Most drug tests are not able to pinpoint exactly when or where an individual used marijuana. For example, a urine drug test generally will detect marijuana used in the last several days, sometimes longer if the individual is a chronic user. Hair tests will detect marijuana use for up to 90 days. Because drug tests generally cannot detect current marijuana impairment, employers will be prohibited by the Illinois Right to Privacy Act from taking adverse actions for positive marijuana drug test results in most situations except for reasonable suspicion and post-accident. For a pre-employment drug test, the marijuana use always will be off-duty and off-premises, and therefore employers are prohibited from taking adverse actions against applicants who use marijuana. Similarly, random testing (which never involves individualized suspicion), employers likely cannot take adverse actions against employees who test positive for marijuana if the employer cannot demonstrate impairment at work.

Illinois employers should review their drug-testing policies and practices and consult with counsel to ensure compliance with federal and state laws. Jackson Lewis attorneys are available to assist and to answer any questions about the Act or compliance with current industry requirements.

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