Oklahoma Voters Pass Broad Medical Marijuana Law with Anti-Discrimination Provisions

Oklahoma became the 30th state to pass a medical marijuana law after voters approved it on June 26, 2018. The law gives broad discretion to physicians in prescribing medical marijuana, which should make it fairly easy to obtain. Additionally, the law restricts employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result. The law takes effect on July 26, 2018.

The law will be implemented quickly. It gives the Oklahoma State Department of Health until July 26, 2018 to make available on its website applications for medical marijuana licenses/caregiver licenses, dispensary licenses, commercial grower licenses, and processing licenses. It also requires the Oklahoma State Department of Health to establish by August 25, 2018, a regulatory office to receive these applications. Applications are to be approved/denied within fourteen days of receipt. A medical marijuana license will be valid for two years. Temporary licenses, which are valid for 30 days, may also be requested.

No “Qualifying Medical Conditions” Specified

A medical marijuana license application must be signed by an Oklahoma Board certified physician. However, unlike most other state medical marijuana laws, there are no “qualifying medical conditions” required to make a patient eligible for medical marijuana use. Rather, the license must be recommended “according to the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication.”

Oklahoma’s governor, Mary Fallin, stated after the election results were clear that the new law “is written so loosely that it opens the door for basically recreational marijuana.” Prior to the election, Gov. Fallin stated that she planned on calling a special session of the legislature if voters passed the measure.

Medical marijuana license holders will be permitted to legally possess up to three ounces of marijuana on their person and up to eight ounces in their residence (as well as specified amounts of edible marijuana, concentrated marijuana, and plants). The law permits the issuance of a license to applicants 18 years or older, but also has provisions to allow applicants under the age of 18 to obtain a license.

Implications for Employers

The law provides protection to medical marijuana license holders against discrimination in the workplace. Absent the “imminent” loss of a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in the hiring, termination or other term or condition of employment based on:

  1. The individual’s status as a medical marijuana license holder; or,
  2. Employers may take action against a holder of a medical marijuana license holder if the holders uses or possesses marijuana while in the holder’s place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components [emphasis added].

Employers in Oklahoma should consult with counsel regarding the implications of this new medical marijuana law and should update their drug testing policies.

FDA Approves Marijuana-Based Drug For the First Time

The U.S. Food and Drug Administration approved June 25, 2018 a prescription drug made from marijuana for the first time. The drug, known as Epidiolex, is approved to treat seizures in two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome, in patients two years of age and older.

Epidiolex is made from cannabidiol, or CBD, which is a chemical component of the Cannabis sativa plant, more commonly known as marijuana. CBD does not cause intoxication or euphoria that comes with the use of tetrahydrocannabinol (THC) which is the main psychoactive ingredient of marijuana.

Under the federal Controlled Substances Act, marijuana (including CBD) currently is classified as a Schedule I drug. 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.

Before sales of Epidiolex commence, the Drug Enforcement Administration must formally reclassify CBD into a different category so that it may be used for medical purposes. That decision is expected within 90 days.

It is possible that the FDA’s approval of this drug could be a first step toward the eventual reclassification of marijuana. In 2016, the DEA denied petitions to reschedule marijuana from a Schedule I drug to a Schedule II drug, because the research did not yet support a reclassification. At that time, the DEA stated that the current medical and scientific evidence demonstrated that marijuana has no currently accepted medical use in treatment in the United States.  (Click here for our blog post on that decision). However, the DEA also stated that it supported legitimate medical and scientific research concerning the use of marijuana and that if the scientific understanding about marijuana changed, the DEA’s decision also could change.

 

Vermont Attorney General Publishes Guide to Marijuana in the Workplace

Vermont’s recreational marijuana law will take effect on July 1, 2018. (Click here for our previous blog summarizing this law and its impact on employers).  On June 14, 2018, the Vermont Office of the Attorney General published the Guide to Vermont’s Laws on Marijuana in the Workplace. The Guide provides employers with an overview of the changes to Vermont’s marijuana laws, and summarizes existing employment laws relating to drug testing in the workplace.

Recreational Marijuana

Under Vermont’s recreational marijuana law, individuals will no longer face criminal penalties for possessing: (i) up to an ounce of marijuana or five grams of hashish; and (ii) two mature and four immature marijuana plants. But employers still maintain certain rights:

  • Employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace;
  • Employers may prohibit or otherwise regulate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on their premises;
  • Employers may adopt policies prohibiting the use of marijuana in the workplace; and
  • The law does not create a legal cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees.

Medical Marijuana

Vermont’s medical marijuana law permits individuals with certain debilitating medical conditions to use and possess medical marijuana. However, this law prohibits medical marijuana users from being under the influence of marijuana in a workplace or place of employment, or while driving a motor vehicle or operating heavy machinery or handling a dangerous instrumentality. It is therefore permissible for employers to have policies banning the use or possession of medical marijuana at work or being under the influence of medical marijuana at work.

Current Users of Illegal Drugs May Be Protected As Disabled

Despite the provisions listed above that appear helpful to employers, the Guide reminds employers that under Vermont’s Fair Employment Practices Act (“VFEPA”), it is unlawful for an employer, employment agency, or labor organization to discriminate against a “qualified individual with a disability.” Like the federal Americans with Disabilities Act, VFEPA protects recovering and recovered substance abusers.  According to the Guide, however, VFEPA differs from the ADA, with regard to current illegal drug use. The ADA does not protect current users of illegal drugs. Under VFEPA, employees’ current illegal drug use does not automatically disqualify the employee from protection under Vermont’s disability laws unless that use: (i) prevents them from performing the duties of their job, or (ii) constitutes a “direct threat to the property and safety of others.” Thus, Vermont law protects workers who can safely do their jobs, even if they are currently struggling to overcome addiction.

Additionally, if an employer becomes aware that an employee or applicant is a medical marijuana cardholder, the law may treat the employer as being on notice that the employee or applicant has a disability. Even if the employer does not learn of the specific debilitating condition, the employer will gain an understanding that the employee has a medical condition that is sufficiently debilitating to grant the employee the right to obtain marijuana from a state medical marijuana dispensary. Employers must be careful that employment decisions are not based on any actual or perceived underlying disability that may be related to the medical marijuana use.

Conflict With the Recreational Marijuana Law?

Vermont’s disability law may appear to conflict with the recreational marijuana law (specifically, the recreational marijuana law states that employers cannot be sued for enforcing a no-marijuana policy, even with regard to off-duty use). The Guide states that there is no conflict between the two laws because the recreational marijuana law states that it does not create a new legal claim for employees who are fired for violating a policy prohibiting marijuana use. So if an applicant or employee has a valid claim of disability discrimination related to medical use of marijuana, it is not barred by the recreational marijuana law.

Vermont’s Drug Testing Law

Finally, the Guide addresses Vermont’s drug testing law. Employers should note that Vermont has a restrictive drug testing law, which permits pre-employment testing and probable cause testing only. Automatic post-accident testing and random testing are prohibited. The law requires employers to have a written drug testing policy, use laboratories approved by the Vermont Department of Health, have all drug test results reviewed by a Medical Review Officer, among many other technical details. In addition, termination of employees is not permitted for a first-time positive test result; rather, the employee must be offered an opportunity to participate in an Employee Assistance Program and may be discharged only if he or she refuses to participate or subsequently tests positive after completing rehabilitation.

Employers still are permitted to test for marijuana once the recreational marijuana law takes effect on July 1, 2018, but are reminded not to take adverse employment actions that may lead to disability discrimination claims.

Maine’s New Recreational Marijuana Law Permits Employers to Enforce Policies Restricting Use

Maine’s new recreational marijuana law permits employers to enforce workplace policies restricting the use of marijuana and to take disciplinary action in accordance with those workplace policies. The new law, which took effect on May 2, 2018, replaced one that had been the subject of controversy, particularly with regard to certain employer-related provisions.

Background

Certain provisions of Maine’s original recreational marijuana law took effect on February 1, 2018. Among other things, the law prohibited employers from refusing to employ a person who used marijuana outside of the employer’s property. That language, in effect, would bar employers from refusing to hire an applicant who tested positive for marijuana. (For more on the old law, see our article, Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers.)

New Law

Emergency legislation enacted by the Maine legislature was vetoed by the Governor, but the legislature overrode the veto. LD 1719, “An Act to Implement a Regulatory Structure for Adult Use Marijuana,” which took effect on May 2, 2018, provides that, except as otherwise provided in the Maine Medical Use of Marijuana Act:

  1. Marijuana in workplace. An employer is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or cultivation of marijuana or marijuana products in the workplace;
  2. Workplace policies regarding marijuana use. An employer may enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment; and
  3. Discipline of employees. An employer may discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.

The new law removes the prior law’s prohibition on employers taking disciplinary action for marijuana use away from the employer’s premises.

Maine’s drug testing law requires employer drug testing policies to be approved by the Maine Bureau of Labor Standards (with some limited exceptions). The Bureau’s model drug testing policies still include testing for marijuana and permit disciplinary action for positive test results.

Impact on Employers

Employers that conduct drug testing in Maine should review their drug and alcohol testing policies (again) to consider whether they wish to make any changes to address the new Maine recreational marijuana law.

New York State Enacted Budget Includes Opioid Legislation

Please click here to read our colleagues’ article New York State Enacted Budget Includes Opioid Legislation.  As part of the 2018-2019 New York State Budget, the Governor and the Legislature have agreed to a package of legislation addressing the opioid crisis in New York that includes requiring opioid manufacturers and distributors to help fund treatment programs.  Among other things, the legislation imposes limits on the use of prescription opioids and contains provisions that would add Fentanyl analogs, synthetic cannabinoids, and cannabimimetic agents to the list of Schedule I controlled substances under New York’s Public Health Law.

Iowa Drug Testing Law Amended; Lawsuits on the Rise

Although Iowa’s drug testing statute was enacted more than 30 years ago, it is still considered one of the most difficult laws in the country for purposes of employer compliance. The 10-page law includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. Available remedies under the statute include reinstatement, back pay, and equitable relief such as attorneys’ fees. See Iowa Code Section 730.5.

The legislature has amended the statute periodically over the years. In 2017, an amendment clarified that hair follicle testing is appropriate only for pre-employment drug testing. The Governor signed another amendment into law in late-March 2018, which will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. Prior to the 2018 amendment, employers could not take action for alcohol test results below .04 BAC. The amendment is effective July 1, 2018.

Employers easily can violate the technical aspects of the law. For example, in 2012, the Iowa Court of Appeals held that an employer violated the statute when it provided an employee with a hand-delivered notice of her positive test results instead of sending it by certified mail as required by the statute. See Skipton v. S&J Tube, Inc., 822 N.W.2d 122 (Iowa Ct. App. 2012). The notice also omitted the cost of a confirmatory re-test.

There has been an increase in lawsuits alleging violations of the statute in the past several months. Since October 2017, at least five new lawsuits have been filed alleging violations of the Iowa drug testing law.

Some of these lawsuits have alleged claims for wrongful discharge in violation of public policy based on the alleged violation of the drug testing statute. The viability of a wrongful discharge in violation of public policy claim is significant because it expands the range of potential damages a plaintiff can recover. Specifically, the Iowa Supreme Court has held that punitive damages may be awarded in wrongful discharge cases. See Jasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009).  In a recent case before the Iowa District Court for Delaware County, the employer conceded violating the drug testing statute but argued that the drug testing statute was the exclusive remedy.  The court disagreed and granted summary judgment to the plaintiff on her wrongful discharge claim. See Ferguson v. Sanders, et al., Case: LACV008271 (Jan. 17, 2018). A jury later awarded the plaintiff $57,606 in damages, including $12,000 in pain and suffering.

Employers who conduct drug testing in Iowa must ensure that their policy complies with the law and should consider consulting with counsel before taking adverse employment actions based on drug or alcohol test results.

FDA Seeks Comments on Potential Marijuana Reclassification Under International Drug Control Treaty

The Food and Drug Administration requested comments in a notice published in the Federal Register on April 9, 2018 concerning the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use” of five marijuana-related substances: cannabis plant and resin; extracts and tinctures of cannabis; delta-9-tetrahydrocannabinol (THC); stereoisomers of THC; and cannabidiol (CBD).  The comments will be considered in preparing a response from the United States to the World Health Organization (WHO)’s request for information regarding “the legitimate use, harmful use, status of national control and potential impact of international control” for each of these substances.

The WHO’s Expert Committee on Drug Dependence (ECDD) will be meeting in Geneva from June 4 to 8, 2018, for a special session to review cannabis and its potential to cause dependence, abuse and harm to health as well as its potential therapeutic applications. WHO will make recommendations to the United Nations Secretary-General on the need for a level of international control of these substances. In advance of the June session, the WHO is asking United Nations member states to share their evaluations of cannabis, so the comments received by the FDA will be considered in the scientific and medical evaluations the U.S. submits. WHO is expected to make its official recommendation to the U.N.’s Commission on Narcotic Drugs in mid-2018.

The ECDD also will discuss potential changes to how marijuana is scheduled. The U.N. Single Convention on Narcotic Drugs currently lists marijuana as a Schedule I drug, the classification given to drugs with the highest potential for abuse and no medicinal value. Marijuana never has been subject to formal international review since first being placed in Schedule I of the international agreement enacted in 1961.

Under the United States federal Controlled Substances Act, marijuana is considered a Schedule I drug, meaning that it has (1) a high potential for abuse; (2) no currently accepted medical use in treatment in the United States, and, (3) a lack of accepted safety for use of the drug or other substance under medical supervision. CBD also is a Schedule I drug in the United States.

Cannabis, also known as marijuana, refers to the dried leaves, flowers, stems, and seeds from the Cannabis sativa or Cannabis indica plant. It is a complex plant substance containing multiple cannabinoids and other compounds, including the psychoactive chemical THC and other structurally similar compounds.  The principal cannabinoids in the cannabis plant include THC, CBD, and cannabinol.  Marijuana is the most commonly used illicit drug in the United States.

Any change in marijuana’s classification under international drug control treaties may influence the way marijuana is classified in the United States.  Employers who are opposed to marijuana legalization should consider submitting comments.

Anyone may comment online by clicking here (click on “Comment Now”), or by sending a comment by mail (click on the link to obtain the address). Comments are due by April 23, 2018.

Recovering Alcoholic’s Claims Dismissed Because He Did Not Show He Was “Disabled”

A federal court in New York dismissed all claims asserted by a recovering alcoholic under the Americans with Disabilities Act and the Rehabilitation Act for numerous reasons including that he did not show he was “disabled.” Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs., No. 16-cv-9769 (S.D.N.Y. March 13, 2018).

Plaintiff, a recovering alcoholic, was a former Addictions Counselor Assistant at the Creedmoor Addiction Treatment Center. He sued his employer, New York State Office of Alcoholism and Substance Abuse Services (“OASAS”) alleging he was harassed, discriminated and retaliated against in violation of the ADA and Rehabilitation Act. Specifically, he alleged that he was passed over for a promotion, denied a transfer, and assigned “jobs nobody wants to do.” He further alleged that he suffered adverse actions in retaliation for both internal complaints he made about purported violations of his clients’ rights, and for a subsequent federal action he filed in 2015. In his view, OASAS “created a hostile work environment” such by giving him negative evaluations, instructing him to confiscate clients’ property, and denying the clients visitation rights.

The Court held that Plaintiff failed to state facts sufficiently connecting his “alleged” disability to his “laundry list of workplace grievances.” The Court centered its analysis on whether Plaintiff adequately pleaded that he was “disabled” under the ADA and Rehabilitation Act. Plaintiff failed to allege that his supervisors regarded him as having a disability or even that they were aware of his alcoholism.  He further failed to allege that he had a record of a substantially limiting impairment.  The court stated that Plaintiff assumed that he is disabled with the meaning of federal law because he identifies as a “recovering alcoholic.”  While alcoholism is recognized as an “impairment” under federal law, “more than a physical or mental impairment is required to satisfy the definition of disability.”  A plaintiff must also allege facts showing that his or her status as a recovering addict “substantially limits” one of his or her “major life activities.” Because Plaintiff failed to plead such facts, his disability discrimination and failure to accommodate claims were dismissed.

As to the retaliation claims, the Court concluded that even if Plaintiff could prove that the employer took an “adverse action” against him, he failed to plead facts showing that any alleged adverse action was “because” of his opposition to any unlawful employment practice. Retaliation claims require a plaintiff to allege facts showing a “but-for” causal connection. Plaintiff’s conclusory allegations that the employer took various adverse actions against him in response to his complaints about purported violations of clients’ rights was not sufficient. Additionally, the temporal time frame between the filing of his federal action in April 2015 and the purported adverse actions said to occur in February 2016 was too remote, by itself, to raise an inference of but-for causation.

Similarly, Plaintiff’s hostile work environment claims failed because his collective examples of alleged hostility and workplace abuse fell short of the standard, and his allegations did not establish that the alleged hostile conduct occurred on account of his alleged disability. Accordingly, all of Plaintiff’s claims were dismissed.

Maine Department of Labor Provides No Guidance Concerning the Impact of the State’s Recreational Marijuana Law on Workplace Drug Testing

Effective February 1, 2018, a provision in Maine’s recreational marijuana law impacts workplace drug testing. As we previously blogged here, the law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. On its face, this law effectively prevents Maine employers from testing for marijuana for pre-employment purposes, and has other impacts as well.

After previous indications of clear guidance on the seeming conflict between this new provision and existing Maine drug testing statues and guidance, the Maine Department of Labor recently issued the following public comments regarding the impact of the recreational marijuana law:

In Maine, marijuana is still on the list of what can be tested.  Testing is only allowed if a company has a drug testing policy that has been approved by the Maine Department of Labor (MDOL).  The Department cannot provide legal advice and we encourage employers to consult with private legal counsel regarding the law.  Additionally, since the recreational law is overseen by the Maine Department of Agriculture and medical marijuana law is overseen by Maine Department of Health and Human Services, MDOL can approve testing based on our own law but we cannot say whether taking disciplinary action or refusing to hire someone will violate their laws, which is why the Department recommends seeking legal guidance prior to making those decisions.

Maine employers therefore must continue to make their own informed decisions concerning whether (and when) they should continue to test for marijuana, and whether they can take disciplinary actions for positive marijuana test results. Employers should review their drug testing policies, and consult with counsel, to determine what course of action to take.

Employee’s Failure to Engage in Interactive Process to Address His Use of Opioids Dooms His ADA Claims

An employee who refused to stop using morphine and would not engage in the interactive process with his employer could not survive summary judgment on his disability discrimination and retaliation claims under the Americans with Disabilities Act. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).

The employee, a production manager in a manufacturing environment, worked around heavy machinery. Although the employee spent only a small portion of his time actually working on the machinery (10-20%), the environment was dangerous. The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours. The employee did not have a prescription for Vicodin and obtained pills from coworkers and family members. He also used morphine other than as directed by his prescription on at least one occasion. Although the employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely, the employee failed to do so.  The employee’s opioid use was unknown by the employer for several months.

The employer eventually received a report that the employee had requested a Vicodin from a coworker a few weeks earlier. The employer required the employee to submit to a drug test, and he tested positive for hydrocodone (the opioid found in Vicodin). The employer referred the employee to its Employee Assistance Program and put the employee on leave pending a work release from his physician.

During the employee’s leave, he disclosed his morphine prescription. The employer asked the employee to confer with his doctor about whether there were any alternative treatment options to opioids. Without consulting his physician, the employee told the employer that he needed to stay on his medication and refused to stop taking morphine. The employer indicated the employee could not remain employed if he was using morphine, and the employee’s employment ended following this conversation.  (During his deposition, the employee admitted that the label on his prescription morphine warned against operating heavy machinery).

The employee subsequently filed suit, alleging disability discrimination and retaliation. The employer moved for summary judgment, arguing that the employee caused a breakdown in the interactive process by failing to discuss alternative treatments with his doctor. The employee argued that he could safely perform his job while using morphine, and that the employer failed to conduct a direct threat analysis before denying the request. The court agreed with the employer, however, holding that the employee impeded the employer’s ability to investigate the extent of his disability and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication could reasonably accommodate his disability. Holding that an employer “has the ability to confirm or disprove the employee’s statement[s]” regarding his disability and medical treatment, the court granted summary judgment on the disability discrimination and retaliation claims.

This decision serves as a reminder that an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.  However, employers also must ensure that they conduct individualized assessments, and should not make assumptions about the use of certain drugs without medical evidence.

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