New Mexico Amends Medical Marijuana Law To Provide Employment Protections

The New Mexico medical marijuana law has been amended to provide employment protections to employees and applicants. The amendments were signed into law by the governor on April 4, 2019.

The law now provides that “unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under [the medical marijuana law].” The law also expanded the definition of a “debilitating medical condition” for which individuals may use medical marijuana.

Employers still are permitted, however, to take adverse employment actions against an employee for “the use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.” The law does not define what “impaired by” means, and does not address positive drug test results.  In addition, medical marijuana users are not protected from criminal prosecution or civil penalty for possession or use of marijuana in the workplace.

These new employment protections do not apply to employees deemed by the employer to work in a safety-sensitive position. “Safety-sensitive position” is defined to mean a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.

New Mexico employers should review their drug testing policies to determine whether any revisions are warranted and should train the appropriate managers to respond to employment issues involving medical marijuana, such as requests for accommodations and positive drug test results.

New York City Will Ban Pre-Employment Marijuana Testing in 2020

The New York City Council passed a law on April 9, 2019 that will prohibit employers from conducting pre-employment drug testing for marijuana. The law is expected to be signed by the mayor and will take effect one year later. This law is the first of its kind in the United States.

The new law will amend the New York City Human Rights Law and provides that: “Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” Tetrahydrocannabinols, or THC, is the main psychoactive component of marijuana.

The law will not apply to applicants for certain types of jobs, including:

  • Police officers or peace officers, or other jobs with law enforcement or investigative functions at the department of investigation;
  • Positions requiring compliance with Section 3321 of the New York City Building Code or Section 220-h of the Labor Law (pertaining to certain types of construction and maintenance jobs);
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in Social Services Law Section 488(15) (certain individuals with physical and cognitive disabilities);
  • Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.

There are additional exclusions. The law specifically does not apply drug testing required by:

  • Any regulations promulgated by the U.S. Department of Transportation that require pre-employment drug testing, as well as any state or city regulations that adopt the DOT rules;
  • Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Once the law is signed by the mayor, additional rules and regulations are expected to be implemented. Given that the law will not take effect for one year, New York City employers will have time to revise their drug testing policies, employment applications and other pertinent documents.

DOT-Regulated Truck Driver’s Claims Dismissed Because He Could Not Prove “Shy Bladder” Condition

An employer lawfully terminated a commercial motor vehicle driver after the driver was unable to provide a sufficient amount of urine during a random drug test and could not prove that he had a medical condition that would have prevented him from providing the specimen. Beller v. Wal-Mart Transp., LLC, No. 17-cv-530, 2019 U.S. Dist. LEXIS 52887 (S.D. Ohio Mar. 28, 2019).

Plaintiff was a commercial motor vehicle driver subject to the U.S. Department of Transportation’s drug and alcohol testing regulations. In May 2016 he was selected for a random drug test. Plaintiff was unable to provide a sufficient amount of urine for the test within the time period specified by DOT regulations. The clinic notified the employer that Plaintiff was unable to provide a urine specimen on demand, and Plaintiff was suspended. The employer consulted with the Medical Review Officer (“MRO”), and Plaintiff then was directed “to obtain within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen.” 49 C.F.R. § 40.193(c).

Plaintiff was examined by a physician who was board certified in family medicine and had experience evaluating shy bladder issues. The physician was required to determine whether there was “an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of breath or urine specimen” as outlined in the DOT regulations. 49 C.F.R. § 40.193(d)(1). During the evaluation, Plaintiff did not mention that he had any trouble urinating and he had no history of prostate problems. The physician concluded that Plaintiff did not have a medical condition preventing him from providing a sufficient urine specimen. The MRO reviewed the results and agreed with the physician’s findings. Pursuant to DOT regulations and the employer’s policy, Plaintiff’s specimen result was marked as a “Refusal to [T]est”, and his employment was terminated.

After his termination, Plaintiff made two subsequent attempts to submit documentation from his own primary care physician and a urologist to show that he did in fact suffer from a medical condition, prostatic hyperplasia disability, which prevented him from providing a sufficient amount of urine on demand. The employer refused to accept the subsequent findings.

Plaintiff filed a lawsuit alleging, among other claims, disability discrimination, including failure to accommodate his disability, in violation of the Americans with Disabilities Act.

The court dismissed Plaintiff’s claims. Among other things, Plaintiff argued that the employer failed to accommodate his recently-diagnosed benign prostatic hyperplasia disability when the employer failed to consider his urologist’s letter of proof of a medical condition precluding his ability to provide a urine specimen on demand. But Plaintiff failed to prove that the employer was aware or should have been aware of his disability prior to his termination. Indeed, the employer received the urologist’s letter well over a week after Plaintiff was terminated; and the employer had no obligation to participate in the interactive process once Plaintiff was terminated. Accordingly, Plaintiff’s failure to accommodate claim failed as a matter of law.

Medical Marijuana Users May Not Be Discriminated Against In New Jersey

A New Jersey appellate court has held that a disabled employee may sue his former employer under the New Jersey Law Against Discrimination (“NJLAD”) for alleged discrimination based on the employee’s use of medical marijuana. Wild v. Carriage Funeral Holdings, Inc., et al., Docket No. A-3072-17T3 (N.J. App. Div. Mar. 27, 2019). Although the New Jersey Compassionate Use Of Marijuana Act (“NJCUMMA”) does not prohibit employment discrimination based on medical marijuana use, the Court held that the NJCUMMA does not immunize “employers from obligations already imposed elsewhere [such as under the NJLAD].”

Plaintiff Wild, a licensed funeral director, brought an action against Carriage Funeral Holdings, Inc. and others alleging that he was unlawfully discriminated for his use of medical marijuana permitted by the NJCUMMA. A physician prescribed Wild medical marijuana as part of his treatment for cancer. In May 2016, Wild was involved in a car accident while working a funeral. Wild was taken to the hospital and claimed that the doctor who treated him stated that Wild was not under the influence of drugs or alcohol, so a blood test was not necessary. The day after the accident, Carriage advised that a blood test was required before he could return to work, and Wild’s father disclosed Wild’s use of medical marijuana. Later that evening, Wild submitted to a urine and breathalyzer test at a local urgent care facility. However, Wild never received the results of the tests and they were not made part of the record.

The next day, Wild returned to the funeral home to attend the services of a close friend’s family member. While there, he spoke to his employer about his off-work medical marijuana use to treat severe pain. The following week, Wild worked a funeral for a few hours and then went home because he was “very sore.” Several days later, Wild was informed that “corporate” was unable to “handle” his marijuana use and his employment “was being terminated because they found drugs in [his] system.” Thereafter, Carriage informed Wild in a letter that he was not terminated because of his drug use, but because he failed to disclose his use of a medication that might adversely affect his ability to perform his job duties in accordance with company policy.

Wild filed a lawsuit claiming that Carriage could not lawfully terminate his employment without violating NJLAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability in accordance with the NJCUMMA. In granting Carriage’s motion to dismiss, the lower court determined that the NJCUMMA “does not contain employment-related protections for licensed users of medical marijuana” and, as set forth in Wild’s allegations, the adverse employment action was taken due to a positive drug test and a violation of Carriage’s drug policy. However, the appeals court determined that Wild sufficiently pled the elements of a prima facie case for disability discrimination, reversed the lower court’s decision to dismiss, and remanded the case for further proceedings.

The appeals court explicitly held that there was no conflict between the NJLAD and the NJCUMMA. The NYCUMMA states that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” But the court held that this language “can mean only one thing: the [NJCUMMA] intended to cause no impact on existing employment rights.” Moreover, the NJCUMMA neither created new employment rights nor destroyed existing employment rights – and it certainly expressed no intent to alter the NJLAD. The court stated that “[i]t would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.”

Wild did not assert his claims under the NJCUMMA; rather, he asserted disability discrimination claims under NJLAD. Many of his allegations concerned his “disability,” without specific reference to his cancer or his medical marijuana use. At this early stage of the lawsuit, however, he was not required to prove his claims and those general allegations were enough to withstand a motion to dismiss.

The Wild court completely ignored a recent federal court decision in New Jersey, Cotto v. Ardagh Glass Packaging, 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018) (which we blogged about here). That court held that neither the NJLAD nor the NJCUMMA compels an employer to waive its requirements for employees to pass drug tests, even when those drug tests include testing for marijuana. The Cotto court found it significant that the NJCUMMA does not provide any employment protections for medical marijuana users, and predicted that the New Jersey judiciary would conclude that the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver. The Cotto court’s prediction apparently was wrong, although it is far from clear whether Wild will be able to prove his claims.

The important takeaway for employers is that even in states where the medical marijuana law offers no employment protections, disabled employees and applicants may refashion their legal claims as ordinary disability discrimination claims.

Possession Of A Medical Marijuana Card Alone Does Not Prove Marijuana Use, Appeals Court Holds

The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant’s disability discrimination claim because he did not state that he actually used marijuana at the time of his interview — even though he provided a copy of his medical marijuana card – and was not subjected to a drug test. Kamakeeaina v. Armstrong Produce, Ltd., 2019 U.S. Dist. LEXIS 50863 (9th Cir. March 22, 2019).

The plaintiff applied for a job as a Receiver/Forklift Operator with Armstrong Produce but was not hired. He alleged that he suffered from post-traumatic stress disorder and depression. After he received a conditional offer of employment, he was advised that he was required to pass an on-site drug test. He disclosed to the Human Resources Director that he was registered under Hawaii’s Medical Cannabis Program and presented a copy of his medical marijuana certification card. The H.R. Director stated that if he tested positive on the drug test, the employment offer would be withdrawn. Plaintiff allegedly stated that he understood that the job offer would be “taken off the table” if he failed the drug test. Subsequently, the job offer was withdrawn even though the drug test was not conducted.

Plaintiff asserted claims of age discrimination and disability discrimination, including the denial of a reasonable accommodation, and the employer moved to dismiss the complaint.

The employer argued that the disability discrimination claim should be dismissed because of Plaintiff’s use of marijuana. The Court denied the motion to dismiss on this basis, given that Plaintiff did not fail a drug test and did not admit to marijuana use. The employer believed that Plaintiff’s acknowledgment that the job offer would be “taken off the table” if he tested positive, constituted an admission that he would test positive on the drug test. But the parties disputed the implications of Plaintiff’s additional statement during the interview that he “wanted to be straight-up from the beginning and if I were to get the job, it’ll be a way easier transition for everyone involved.” The Court concluded that this statement indicated that Plaintiff did ­not think he would fail the drug test. Moreover, no drug test was conducted. There was no evidence, therefore, that Plaintiff actually had used marijuana.

The Court dismissed the failure to accommodate claim because it was not clear what accommodation was sought by Plaintiff. However, the Court gave Plaintiff leave to replead this claim.

The lesson for employers is this: although it may seem reasonable to assume that an applicant who possesses a medical marijuana card actually uses marijuana, the adverse employment action should be based on something more, such as a positive drug test result or an admission of drug use (assuming, of course, that applicable state law does not prohibit discrimination against medical marijuana users).

Drug Testing Laboratories May Be Sued For Negligence In South Carolina

The South Carolina Supreme Court held that laboratories who perform workplace drug tests on behalf of employers owe a duty of care to the individuals who are tested and may be sued for negligence for failing to properly and accurately perform the drug tests and report the results. Shaw v. Psychemedics Corp., App. Case No. 2017-002538 (S.C. March 20, 2019).

The plaintiff was a former employee of BMW who was subjected to random drug tests by his employer. BMW contracted with a laboratory to test hair samples of employees for drugs. Plaintiff was selected for a random drug test and his hair sample tested positive for cocaine. Plaintiff was permitted to submit a second hair test to the laboratory and the second test also was positive for cocaine. Plaintiff was fired by BMW.

Plaintiff maintained that he was not a drug user. He filed an action against the laboratory, alleging negligence and negligent supervision. The laboratory argued that it did not owe a duty of care to Plaintiff and could not be sued. The district court certified this question to be answered by the South Carolina Supreme Court.

The South Carolina Supreme Court answered the question in the affirmative. Specifically, the Court concluded that there were several bases to support a finding that a laboratory may be sued for negligence by an employee who was drug tested, including: (1) the laboratory’s contractual relationship with the employer; (2) the fact that the employee would suffer a direct economic injury, such as loss of employment, if the laboratory was negligent in testing the specimen; and, (3) public policy considerations, i.e., there is a significant public interest in ensuring accurate drug tests because countless employees are required to undergo drug testing as a condition of their employment.

The Court noted that the consequences of an erroneous drug test result can be devastating to an employee who may be terminated and unable to find other employment. The laboratory, on the other hand, would effectively be immunized from liability if the Court held that there is no duty of care to the tested employee. Additionally, the Court stated that the recognition of a duty of care advances a major policy goal of tort law: deterrence. A drug testing laboratory is more likely to ensure accuracy in its testing process if it owes a duty of care to the tested individuals.

Finally, the Court was persuaded by the fact that courts in New York, Pennsylvania and Wyoming have all determined that a drug testing facility owes a duty of care to the person subject to testing.

Oklahoma “Unity Bill” Clarifies Medical Marijuana Law, Includes Provisions Helpful To Employers

The Oklahoma Medical Marijuana and Patient Protection Act was signed into law by Oklahoma Governor Stitt on March 14, 2019. Better known as the medical marijuana “Unity Bill,” the law clarifies certain regulatory aspects of the state’s existing medical marijuana law, and includes certain provisions that will be helpful to Oklahoma employers. The law will take effect 90 days after the close of the legislative session.

As we discussed in a previous blog post, Oklahoma voters approved a medical marijuana law on June 26, 2018, and the law was implemented soon thereafter. Among other things, that law gave broad discretion to physicians in prescribing medical marijuana, and restricted 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 Unity Bill addresses a number of topics relating to the issuance of patient licenses, the creation of a medical marijuana use registry, and other regulatory issues related to medical marijuana. As the original medical marijuana law provided, the Unity Bill provides that employers may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of the applicant’s or employee’s status as a medical marijuana licensee. However, with respect to positive drug test results, the law now provides that an employer may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana, unless:

  1. The applicant or employee is not in possess of a valid medical marijuana license;
  2. The licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations [the law does not define “under the influence”];
  3. The position is one involving safety-sensitive job duties, as such term is defined in [the law].

“Safety-sensitive” is defined to mean any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:

  1. The handling, packaging, processing, storage, disposal or transport of hazardous materials;
  2. The operation of a motor vehicle, other vehicle, equipment, machinery or power tools;
  3. Repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage;
  4. Performing firefighting duties;
  5. The operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution;
  6. The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component;
  7. Dispensing pharmaceuticals;
  8. Carrying a firearm; or,
  9. Direct patient care or direct child care.

A positive drug test result is considered to be a drug test result that is at or above the cutoff concentration levels established by the U.S. Department of Transportation or Oklahoma law regarding being under the influence, whichever is lower.

Employers in Oklahoma are not required to permit or accommodate the use of medical marijuana at work or during work hours; are not prevented from having written drug testing policies that comply with the Oklahoma Standards For Workplace Drug and Alcohol Testing Act; and, are not required to reimburse an employee for costs associated with the use of medical marijuana.

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

Oregon Supreme Court Holds Employer Not Completely Immune Under Social Host Statute

Oregon’s highest court has held that although the state’s “social host” law protects certain persons from liability related to their actions taken as “hosts,” there is no similar insulation from liability for alleged tortious conduct committed while acting in another role, such as employer.  Schutz v. La Costita III, Inc., 364 Or. 536 (March 14, 2019).

Ashley Schutz worked for construction firm O’Brien Constructors, LLC, as a receptionist. Over the course of her three months on the job, she had declined multiple invitations by her supervisor (the owner’s son) to join him and other employees for after-work drinks. Despite her previous refusals, she felt pressured to accept an invitation so that her growth in the company would not be negatively impacted. Ultimately, she agreed to leave work early one evening to join her supervisor and coworkers at a nearby bar and restaurant. At the gathering, the supervisor encouraged the employees to drink and even teased another employee for attempting to leave after only two drinks. Schutz became extremely intoxicated and was later involved in a car accident, resulting in severe injuries.

Schutz brought a civil action for negligence against the restaurant (which was quickly dismissed under the social host statute), the supervisor, and the employer. Oregon’s social host law provides that a person who consumes alcoholic beverages does not have a cause of action against the person serving the alcoholic beverages, even when the person is visibly intoxicated. The law specifically does not bar claims “caused by negligent or intentional acts other than the service of alcoholic beverages to a visibly intoxicated patron or guest.”

The employer argued that Schutz’s claims were barred by the social host statute. Schutz, however, argued that her claims related to negligent acts other than the service of alcoholic beverages. Specifically, she alleged that the supervisor and had been negligent in: organizing an employee function where alcoholic beverages would be purchased and served; in pressuring her to attend the function by creating the impression that her advancement depended on the supervisor liking her; and, failing to warn her that excessive amounts of alcoholic beverages would be purchased and served. Schutz also alleged that the employer had been negligent in allowing the supervisor to arrange work-related activities that included the excessive consumption of alcohol; and, failing to adequately train the supervisor in terms of proper methods of improving work and employee relationships.

The Oregon Supreme Court framed the issue as whether “a server or social host is immune from liability only when alleged to be acting as a server or social host or also when alleged to be acting in another role, such as property owner or employer.” Schutz argued that the applicable statute extended immunity to social hosts only for acts involving the purchase or service of alcohol and permitted all other negligence claims. Conversely, the supervisor and employer argued that the statute extended immunity to all claims in which a plaintiff’s intoxication caused her injury, even when it is alleged that the social host committed a tortious act “other than the service of alcoholic beverages.”

To determine the intent of the statute, the Court conducted an extensive review of its text, the context, and its legislative history. The Court held that the statute precludes claims against servers and social hosts only for actions taken in their roles as such, but does not preclude claims for intentional or negligent acts in other roles. While immune from liability for their role as social host, the employer and supervisor were not immune from Schutz’s claims that they acted negligently in performing their roles as employer and supervisor.

Although the Court did not determine the merits of Schutz’s underlying negligence claims, Oregon employers should exercise caution and not assume they are immune in all respects when hosting an official or unofficial company function where alcohol is being served.

 

FTA and USCG Raise Random Drug Testing Rates to 50% for 2019

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2019. The Federal Transit Administration and the United States Coast Guard have raised their random drug testing rates to 50% for 2019. All other random testing rates remain unchanged from 2018.

Agency 2019 Random Drug Testing Rate 2019 Random Alcohol Testing Rate
Federal Aviation Administration 25% 10%
Federal Motor Carrier Administration 25% 10%
Federal Railway Administration 25% covered service 10% covered service
Federal Railway Administration 50% maintenance-of-way 25% maintenance-of-way
Federal Transit Administration 50% 10%
Pipeline and Hazardous Materials Safety Administration 50% N/A
United States Coast Guard 50% N/A

 

Federal Appeals Court Holds That Public School District May Drug Test Substitute Teacher Applicants

A federal appeals court has held that a public school district may drug test applicants for substitute teacher positions, concluding that such testing does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.  Friedenberg v. School Bd. Of Palm Beach County, 9:17-cv-80221-RLR (11th Cir. Dec. 20, 2018).

Joan Friedenberg applied for a position as a substitute teacher in the Palm Beach County School District. Among other things, the School District required her to take and pass a pre-employment drug test. She refused to do so. Friedenberg subsequently sued the School Board in federal court, claiming that the suspicionless drug testing of applicants violated the Fourth Amendment. She sought class action relief, describing the putative class as including “all job applicants for non-safety-sensitive positions with the Palm Beach County School District.” She sought declaratory and injunctive relief. The district court denied injunctive relief, noting that the School Board had established a “special need” to conduct drug testing of substitute teacher applicants because even “a momentary lapse of attention . . . could be the difference between life and death,” and that the balance of the interests weighed in the School Board’s favor. Friedenberg appealed.

In reviewing whether injunctive relief was appropriate, the Court first analyzed whether there was a substantial likelihood of success on the merits, i.e., whether the drug testing constituted an unreasonable search and seizure in violation of the Fourth Amendment. Given that the drug test was conducted without individualized suspicion, the School Board was required to demonstrate a “special need” to conduct the drug testing. The Court agreed with the School Board that a “special need” existed, given that the School Board has a “compelling interest in ensuring that teachers – including substitutes – are not habitual drug users.” Among other things, the Court focused on the safety-sensitive aspects of the substitute teacher’s job, including: being alone with students; monitoring students for safety purposes such as preventing or stopping fights; reporting and addressing hazards or other unsafe circumstances; detecting and promptly responding to student health issues; detecting and reporting student drug use or possession; and reporting suspected child abuse.

Once the “special need” was established, the Court then weighed the competing private and governmental interests implicated by the search. Noting that public school teachers “enter a heavily regulated field with diminished privacy expectations,” the Court examined the testing protocol adopted by the School District and the efficacy of the testing regime. The drug testing was performed in accordance with the requirements of the Florida Administrative Code, Fla. Admin. Code R. 59A-24.005(3), and pursuant to the School District’s written policy. The Court concluded that the urine drug testing regime was “minimally intrusive” and that the School District had a “compelling interest” in weeding out applicants who abuse drugs “in order to better achieve the basic safety and tutelary obligations of our schools.”

In sum, the Court held: “[a]s we see it, ensuring the safety of millions of schoolchildren in the mandatory supervision and care of the state, and ensuring and impressing a drug-free environment in our classrooms, are compelling concerns. Because we recognize today a special need to conduct such testing, and because the balance of interests weighs heavily in its favor, we hold that the suspicionless testing of substitute teacher applicants in Palm Beach County is permissible. . . .”

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