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. . . .”

Delaware State Court Holds That Medical Marijuana User May Proceed With Lawsuit Against Employer

A Delaware state court has held that a medical marijuana user may proceed with a lawsuit against his former employer after his employment was terminated due to a positive drug test result for marijuana. Chance v. Kraft Heinz Foods Co., C.A. No. K18C-01-056 NEP (Del. Super. Ct. Dec. 17, 2018).

Jeremiah Chance worked for Kraft Heinz as a Yard Equipment Operator. He suffered from various back problems and obtained a medical marijuana card in 2016. In August 2016, Chance was involved in an accident at work and was required to undergo a drug test. He tested positive for marijuana and informed the Medical Review Officer that he used medical marijuana. His employment was terminated.

Chance initially filed a complaint in which he alleged discrimination due to medical marijuana use and OSHA retaliation. He subsequently amended his complaint, alleging (i) violations of the Delaware Medical Marijuana Act (DMMA); (ii) violations of the Americans with Disabilities Act (ADA); (iii) violation of the Delaware Whistleblowers’ Protection Act; and, (iv) common law wrongful termination. Kraft Heinz moved to dismiss all of the claims.

In particular, Chance relied on the anti-discrimination provision of the DMMA, which provides that: “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment . . . if the discrimination is based upon either of the following: a. The person’s status as a cardholder; or b. A registered qualifying patient’s positive drug test for marijuana . . . unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during his hours of employment.”

Kraft Heinz argued that federal law preempts the DMMA because under the federal Controlled Substances Act, marijuana is illegal. The Court, however, found persuasive the opinions of the courts in Noffsinger v. SSC Niantic Operating Co., LLC, 273 F. Supp.3d 326 (D. Conn. 2017) and Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 (R.I. Super. May 23, 2017). Those Connecticut and Rhode Island cases held that there was no conflict between the federal Controlled Substances Act and the state medical marijuana laws at issue. (Our blog posts discussing those cases can be found here, here, and here).

The Chance Court started its analysis of the preemption issue by noting that the Controlled Substances Act “does not make it illegal to employ someone who uses marijuana, nor does it purport to regulate employment matters within this context.” The Court stated that the anti-discrimination provisions of the DMMA do not pose an obstacle to the objectives of Congress and do not require employers to participate in illegal activity. Rather, the DMMA only prohibits employers from discriminating against employees based upon medical marijuana use.   The Court therefore rejected the employer’s preemption argument.

Moreover, the Court held that a private right of action is implied in the DMMA, because the DMMA provides no specific remedy for qualifying marijuana patients who are terminated from employment for failing drug tests. Without an implied private right of action, the Court reasoned, the anti-discrimination provision of the DMMA would be devoid of purpose within the broader context of the statute. Chance therefore was permitted to proceed with his claim alleging that his termination violated the DMMA.

The Court dismissed Chance’s ADA claim because he did not initially allege that he was terminated due to a disability; rather, he alleged only that he was terminated due to his medical marijuana use.

This case is the third in the last two years to hold that the federal Controlled Substances Act does not preempt state medical marijuana anti-discrimination provisions. Employers who operate in states where the medical marijuana law prohibits employment discrimination should take note and should consider revising policies that purport to rely on marijuana’s classification as an illegal drug under federal law.

Voters in Three States Approve Marijuana Laws on Election Day

Three states approved new marijuana laws on Election Day 2018. Voters approved medical marijuana laws in Missouri and Utah, while Michigan voters approved a recreational marijuana law.

Michigan: Recreational Marijuana

Michigan Proposal 1 was passed by a majority (approximately 55% “Yes” and 45% “No”).

Proposal 1, the Michigan Regulation and Taxation of Marijuana Act, legalizes recreational marijuana in the state for adults 21 years of age or older. The law generally will allow adults to possess, use, purchase, transport, or process up to 2.5 ounces of marijuana (which cannot include more than 15 grams of marijuana concentrate). Adults also may possess, store, and process up to 10 ounces of marijuana in their residence, as well as marijuana produced by marijuana plants cultivated on the premises. Adults may cultivate up to 12 marijuana plants in their homes.

The law does not impose any obligations on employers with respect to recreational marijuana use. The law states that it does not:

  • Require employers to “permit or accommodate” recreational marijuana use, possession, or engage in other conduct authorized by the law in any workplace or on the employer’s property;
  • Prohibit employers from disciplining an employee for violating the employer’s workplace drug policy or for working “while under the influence” of marijuana; and
  • Prevent employers from “refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana.”

The law is expected to take effect in December 2018 (10 days after the results are certified). The Michigan Department of Licensing and Regulatory Affairs must begin accepting applications for marijuana establishments within 12 months of the law’s effective date.

Missouri: Medical Marijuana

Missouri Amendment 2 was passed by a majority (approximately 65% “Yes” and 35% “No”).

The law will go into effect on December 6, 2018, but it will be months before medical marijuana is available in the state. The Missouri Department of Health and Senior Services will have up to 210 days from the effective date of the law to begin accepting applications for identification cards from qualifying patients and caregivers. The department also will have 240 days from the effective date to start accepting applications from medical marijuana testing facilities, dispensaries, cultivation facilities, and the like.

“Qualifying medical conditions” for purposes of obtaining a medical marijuana card, include:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • Certain migraines;
  • Chronic medical conditions that cause severe, persistent pain or persistent muscle spasms;
  • Debilitating psychiatric disorders, such as post-traumatic distress disorder;
  • HIV;
  • Any terminal illness; and
  • Any other condition that a physician determines to be chronic or debilitating.

The law allows qualifying patients to utilize marijuana in numerous ways, including smoking or vaporizing marijuana, applying ointments or balms, consuming “marijuana-infused food products,” ingesting teas, oils, or other marijuana-infused products, and any method recommended by the qualifying patient’s physician.

The law states that it does not create a cause of action against employers for wrongful discharge or discrimination based on:

  1. An employer’s prohibition against employees or prospective employees being “under the influence of marijuana while at work”; or
  2. An employer issuing discipline, up to and including termination from employment, to an employee for “working or attempting to work while under the influence of marijuana.” The law is otherwise silent on employers’ obligations with respect to medical marijuana users.

The law’s language concerning employers’ obligations is troubling, because there is no definition of “under the influence of marijuana at work.” The best way for an employer to make this determination is to conduct drug testing, but a drug test cannot pinpoint the exact time that an individual used marijuana; rather, it will indicate that there was some usage in the last few days or weeks. Missouri employers, therefore, should exercise caution when addressing positive drug tests involving medical marijuana users, especially when the drug test is not a “reasonable suspicion” test.

Utah: Medical Marijuana

Utah Proposition 2 was passed by a majority (approximately 53% “Yes” and 47% “No”). To receive approval to use medical cannabis under Proposition 2, the Utah Medical Cannabis Act, a person must have one of the conditions listed as a “qualifying illness” and receive a physician’s recommendation. The law requires the Utah Department of Health to begin issuing medical cannabis cards by no later than March 1, 2020. The law does not expressly include any provisions related to employers.

The law defines “qualifying illnesses,” for purposes of obtaining a medical cannabis card, to include “HIV, acquired immune deficiency syndrome or an autoimmune disorder; Alzheimer’s disease; amyotrophic lateral sclerosis; cancer, cachexia, or a condition manifest by physical wasting, nausea, or malnutrition associated with chronic disease; Crohn’s disease, ulcerative colitis, or a similar gastrointestinal disorder; epilepsy or a similar condition that causes persistent and debilitating seizures; multiple sclerosis or a similar condition that causes persistent and debilitating muscle spasms; post-traumatic stress disorder; autism; and a rare condition or disease that affects less than 200,000 persons in the United States, as defined … by the Federal Food, Drug, and Cosmetic Act.”

In addition, individuals who suffer from chronic and debilitating pain may have a “qualifying illness” if they are unable to utilize opiate-based pain medication due to certain medical risks. Individuals who suffer from an illness that is not identified as a “qualifying illness” may seek approval to obtain a medical cannabis card from the Compassionate Use Board.

The law prohibits medical cannabis card holders from smoking marijuana or using a device that “facilitates cannabis combustion at a temperature greater than 750 degrees Fahrenheit.” Cannabis processing facilities are restricted from producing products that look like candy or otherwise intended to appeal to children.

Proposition 2 has been subject to extensive debate within the state. The law will become effective on December 1, 2018 (five days after the Governor expects to certify the results). However, the Governor has expressed his intent to call a special legislative session to consider and approve a “compromise” bill that would replace the ballot initiative.

OSHA Clarifies Its Position On Post-Accident Drug Testing; States That “Most Instances of Workplace Drug Testing Are Permissible”

In a memorandum to Regional Administrators dated October 11, 2018, OSHA clarified the agency’s position as to whether certain types of drug testing would be considered violations of 29 C.F.R. §1904.35(b)(1)(iv). That regulation prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness. As we discussed in an earlier blog post, OSHA previously published commentary stating that employers could not use “drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Instead, employers were limited to drug testing when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury.

In the October 11, 2018, memorandum, however, OSHA stated that:

“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

OSHA further stated that “most instances of workplace drug testing are permissible.” Examples of permissible drug testing include:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

The memorandum concluded by saying that to the extent any other interpretive documents could be construed as inconsistent with the position articulated here, this memorandum supersedes them.

OSHA’s memorandum is welcome news for employers because it is now clear that employers need not analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident. Instead, broad post-accident drug and alcohol testing is permitted (subject to applicable laws that may have different requirements) as long as all employees whose conduct could have contributed to the accident are tested.

Police Officer’s Disclosure of Adderall Prescription Insufficient to Support Disability Discrimination Claim

A police officer who disclosed his Adderall prescription to his supervisor was unable to state a claim for discrimination based on an actual or perceived disability under the Americans with Disabilities Act or Pennsylvania Human Rights Act. Jeannot v. Philadelphia Housing Authority, et al, Case No. 18-1977 (E.D. Pa. Oct. 2, 2018).

The officer’s lawsuit stemmed from his termination following a reasonable suspicion drug test. The officer, who worked the night shift, filled an Adderall prescription at a drugstore during his shift on the night in question. He claimed that his partner secretly recorded him during a response to a domestic disturbance call, and was away from the patrol car speaking on the phone for a significant amount of time. The officer subsequently was required to return to police headquarters. When he arrived, he was told to go home early.

The following day, the officer’s supervisor visited his home and informed the officer that he was under investigation and that he was required to undergo reasonable suspicion drug testing. The housing authority terminated the officer’s employment within a few weeks of the test. The officer claimed that he disclosed his Adderall prescription to his supervisor during his employment, and that he had a note from his doctor stating that his use of Adderall would not impact his ability to perform his job duties.

The lawsuit alleged that the housing authority discriminated against the officer based on his disability, regarded him as disabled, failed to accommodate his disability, and retaliated against him. The housing authority moved to dismiss the officer’s ADA and PHRA claims for failure to state a claim.

The “lynch pin” of the officer’s “regarded as” claim, was that his supervisor had knowledge of his Adderall prescription. The court first highlighted several cases holding that an employer’s knowledge of an impairment alone is insufficient to establish a “regarded as” claim. The court reasoned, “If an employer’s knowledge of an impairment is insufficient on its own to demonstrate it regarded the employee as disabled, then surely knowledge an employee is taking medication is insufficient as well. To conclude otherwise would allow any individual who provides notice to his employer that he is taking a particular medication, without any additional factual allegations, to establish a prima facie case of regarded as disability discrimination.” Because the employee failed to allege any facts regarding how the officer’s supervisors reacted to or perceived him, the court dismissed the “regarded as” claim without prejudice.

The court also determined that the complaint did not allege sufficient facts to establish the existence of an actual disability. Although the officer claimed he was prescribed Adderall to help him maintain focus and concentration, he did not affirmatively state that he had any problems with focus or concentration. The court also held that the officer’s failure to allege a disability was fatal to his failure to accommodate claim. The officer’s retaliation failed, because he did not allege any facts to show that he engaged in protected activity prior to his termination.

Marijuana-Based Drug Is Placed On Schedule V of Controlled Substances Act

The U.S. Department of Justice and Drug Enforcement Administration announced on September 27, 2018 that Epidiolex, a cannabis-based drug approved by the Food & Drug Administration, is being placed in Schedule V of the federal Controlled Substances Act, the least restrictive schedule of the CSA. This is the first time that any marijuana-based drug has been approved by a federal agency for lawful medical use.

As we discussed in our earlier blog post, the FDA announced in June that it approved Epidiolex for the treatment of seizures associated with two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome, in patients two years of age and older. Epidiolex contains cannabidiol (CBD), a chemical component of the cannabis plant (otherwise known as marijuana).  The CBD in Epidiolex is extracted from the cannabis plant and is the first FDA-approved drug to contain a purified extract from the plant.

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.

It is possible that the scheduling of Epidiolex as a Schedule V 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.  It appears that the DEA may be changing its position. In today’s announcement, the DEA stated that “marijuana and CBD derived from marijuana remain against the law, except for the limited circumstances that it has been determined there is a medically approved benefit. In those instances, such as here, the drug will be made appropriately available to the public for medical use.”

Connecticut Court Holds That Refusing To Hire Medical Marijuana User Constitutes Employment Discrimination

A federal court in Connecticut has held that refusing to hire a medical marijuana user who tested positive on a pre-employment drug test violates the state’s medical marijuana law. The Court granted summary judgment to the applicant on her claim for employment discrimination but declined to award her attorneys’ fees or punitive damages. The Court also dismissed her claim for negligent infliction of emotional distress. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018).

Background

Plaintiff Katelin Noffsinger accepted a job offer from Bride Brook, which was contingent on passing a pre-employment drug test. Noffsinger advised that she was a registered qualifying patient who has used medical marijuana since 2015, when she began using it to treat post-traumatic stress disorder. When the drug test came back positive for marijuana, she was not hired because the employer followed federal law holding that marijuana is illegal.

Noffsinger filed a complaint in state court, alleging, among other things, a violation of the Connecticut Palliative Use of Marijuana Act (“PUMA”)’s anti-discrimination provision. The provision states, “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.”

Bride Brook made a motion to dismiss. As discussed in our earlier blog post about this case, the Court held that: (1) PUMA provides a private right of action to aggrieved medical marijuana patients; and, (2) federal law does not preempt PUMA’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., 273 F.Supp.3d 326 (D. Conn. Aug. 8, 2017). After that decision, the case proceeded with discovery, and then both parties moved for summary judgment.

Federal Drug-Free Workplace Act Did Not Require Withdrawal of the Job Offer

Bride Brook argued that PUMA provides for an exception from the anti-discrimination provision when “required by federal law or required to obtain federal funding.” It argued that the federal Drug-Free Workplace Act barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The Court rejected that argument because the Drug-Free Workplace Act does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty.

Similarly, the Court rejected the argument that hiring Noffsinger would violate the False Claims Act, holding that it would not defraud the federal government to hire an employee who uses medical marijuana outside of work while off-duty.

Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user, but rather, it relied on the positive drug test result. The Court dismissed this argument because it would render a medical marijuana user’s protection under the statute a nullity.

While the Court held that the employer had engaged in employment discrimination, it declined to award Noffsinger attorneys’ fees or punitive damages because those types of damages are not expressly recoverable under PUMA. Additionally, the Court dismissed the claim for negligent infliction of emotional distress because the employer did not engage in “unreasonable conduct” and Noffsinger chose to give notice to her prior employer before she had advised Bride Brook of her medical marijuana use.

Implications for Employers

Noffsinger illustrates that employers (including federal contractors) should not rely solely on federal law or their status as a federal contractor when making employment decisions with regard to applicants and employees who use medical marijuana. Courts in Connecticut and certain other states will enforce state law discrimination prohibitions with regard to medical marijuana use.

Employers in Connecticut and elsewhere should consider the marijuana laws affecting their workplaces now, before an issue arises, and adjust their policies as necessary.

New Jersey Law Does Not Require Employers To Accommodate Medical Marijuana Users By Waiving Drug Tests

A federal court in New Jersey has held that neither the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) nor the New Jersey Law Against Discrimination (“NJLAD”) compels an employer to waive its requirements for employees to pass drug tests, even when those drug tests include testing for marijuana. Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J. August 10, 2018).

Plaintiff Cotto was employed as a forklift operator and injured himself by hitting his head on the roof of the forklift. His employer required him to take and pass a post-accident drug test as a condition of employment. He told his employer that he could not pass the drug test because he takes several medically-prescribed drugs, including medical marijuana as well as narcotics for pain management. The employer told him that they could not allow him to continue working there unless he tested negative for marijuana, and he remained on indefinite suspension as a consequence of not satisfying this condition of employment. Cotto argued that this requirement constituted disability discrimination in violation of the NJCUMMA and the NJLAD. In effect, Cotto sought the “reasonable accommodation” of requesting the employer to waive the requirement that he pass a drug test for marijuana. The employer moved to dismiss his claims.

The Court began its analysis by stating that marijuana continues to be illegal under federal law. New Jersey enacted the NJCUMMA in 2010 for the purpose of protecting medical marijuana patients from criminal prosecution and other civil penalties. However, the NJCUMMA explicitly provides that “nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” The Court further noted that the NJCUMMA is “less expansive than several other states” because there are no employment protections for medical marijuana users in the statute. Additionally, the Court stated that “most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions,” citing court decisions in California, Colorado, Michigan and New Mexico.

Turning to the NJLAD, the Court 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. As a result, Cotto’s complaint failed to state a claim and his lawsuit was dismissed.

New Jersey Mandates Drug Testing Of Direct Support Staff

All applicants and employees working in any New Jersey Department of Human Services (“DHS”) funded, licensed or regulated program serving adults with developmental disabilities are subject to mandatory drug testing, effective May 1, 2018. Under the Stephen Komninos’ Law, New Jersey Public Law 2017, Chapter 238, covered employers are required to administer pre-employment, random and reasonable suspicion drug testing. The law does not require alcohol testing.

The law applies to “direct care staff members.” That term is not limited to those employees with direct care job responsibilities; it also is defined to include those “who may come into contact with individuals with developmental disabilities during the course of such employment.” In addition, DHS interprets the law to apply to volunteers as well.

According to guidance provided by DHS, DHS has partnered with Energetix Corp. (the “Vendor”) as the vendor to facilitate all aspects of its drug testing program and to conduct the drug testing. Drug testing will consist of urine screening for controlled dangerous substances including marijuana, cocaine, opiates (heroin, codeine, morphine and prescribed semi-synthetic opioids), amphetamines/methamphetamines and phencyclidine (PCP). The costs of all drug tests will be covered by DHS.

The types of drug tests to be conducted are:

  1. Pre-employment: All applicants must undergo pre-employment drug testing and receive a negative test result. A refusal to test means that the applicant will be removed from consideration for hire. As of June 15, 2018, an applicant or volunteer may not commence employment until the test result is received by the employer. For employees who were hired on or after May 1, 2018 and who were tested through the employer’s own drug testing vendor, the employee must be re-tested using the DHS vendor.
  2. Random: At least once per year, an employer must randomly drug test one or more current direct care staff members. The law provides that the person who is responsible for the “overall operation of the program, facility or living arrangement” has the discretion to determine the total number of direct care staff members who will be required to undergo random drug testing. However, DHS guidance provides that “it has been determined that 10% of a provider’s direct care employees will be tested annually.” Random samples will be identified quarterly through the Vendor and employers will need to ensure they update their direct care staff rosters to provide to the Vendor quarterly.
  3. “For Cause” or Reasonable Suspicion: Reasonable suspicion drug testing must be conducted if the direct care staff member’s immediate supervisor has reasonable suspicion to believe that the staff member is illegally using a controlled dangerous substance. Reasonable suspicion must be “[b]ased on the staff member’s visible impairment or professional misconduct which relates adversely to patient care and safety.” Once a supervisor determines that reasonable suspicion exists, he or she is required to report this information to his or her immediate supervisor “in a form and manner specified by the commissioner, and, if the latter concurs that there is reasonable suspicion to believe that a direct care staff member is illegally using a controlled dangerous substance, that supervisor shall notify the person who is responsible for the overall operation of the program, facility, or living arrangement, and request written approval therefrom to order the direct care staff member to undergo” a drug test. An employee cannot be drug tested “for cause” without the written approval of the person who is responsible for the overall operation of the program, facility, or living arrangement. The employer must maintain documentation for the basis of the test, including the written approval of the person responsible for the overall operation of the program, facility or living arrangement.

Employees who refuse to test must be terminated. If an employee tests positive, the employer has the discretion to terminate the employee or refer the employee for treatment. Treatment services are not the responsibility of DHS.

DHS Guidance provides that before any applicant is denied employment for a positive test, or any employee is terminated for a positive test, the applicant or employee will have an opportunity to speak with the Vendor’s medical review officer to discuss any relevant, legitimate medical explanations for the positive result, such as a current prescription. Applicants and employees will have 24 hours to respond to the medical review officer with their explanation or documentation before they are considered a “non-contact positive.” For employment purposes, the “non-contact positive” is considered a positive result and the employer then will take the applicable employment action.

The New Jersey Office of Licensing will check for documentation that the law was implemented by covered employers.

Employers covered by this law must inform all direct care staff members about the law’s new drug testing requirements. To do so, covered employers should create a written policy or revise existing drug testing policies to ensure that they comply with DHS’s new mandates for drug testing direct care staff, applicants and volunteers. Moreover, covered employers should train all supervisors on how to recognize and report behavior that qualifies as “reasonable suspicion” warranting a “for cause” drug test.

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