The Biden Administration has released a Recovery-Ready Workplace Toolkit: Guidance and Resources for Private and Public Sector Employers. The Toolkit is part of Administration’s efforts to beat the opioid epidemic.   It provides information, tools, and resources to help employers effectively prevent and respond to substance misuse in the workforce and reduce its impact on employers and on the broader community. 

The Toolkit encourages employers to institute “Recovery Ready Workplaces” to help reduce the stigma of substance use disorders and promote employment opportunities for those recovering from those disorders. Among other things and as feasible, “recovery ready” employers will take actions and adopt policies to:

• Hire people in recovery, including those with a history of criminal justice system (CJS) involvement related to their substance use;

• Identify work-related risk factors for substance use and take steps to address them;

• Ensure employees have access to treatment, recovery supports and other services and supports they need;

• Delineate clear return-to-work polices to facilitate a successful transition back to the workplace following treatment or to manage work during treatment when an absence is not required;

• Offer appropriate medical or disability leave to receive treatment for injuries and other conditions leading to pain and to receive SUD treatment when needed;

• Provide for reasonable accommodations, such as scheduling flexibility or leave to permit receipt of outpatient treatment or recovery support services or to participate in mutual aid meetings, such as Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and SMART Recovery;

• Allow for temporary reassignment from certain safety-sensitive positions when needed;

• Plan for the return to work following SUD treatment or the continuation of work during treatment, providing needed reasonable accommodations and workplace supports, if available, and specifying expectations, milestones and time lines;

• Permit temporary or permanent modification of minor job requirements or reassignment to a vacant position as a reasonable accommodation when warranted;

• Support employee resource groups (ERGs) or other employee-led activities by or on behalf of employees in recovery from SUD; and,

• Facilitate access to peer recovery support services or peer mentoring in the workplace provided by recovering employees who volunteer to serve in such a role, by individuals employed to serve in that function, through an agreement with a recovery community organization (RCO) or other entity, or with the help of local volunteers.

The intent is to reduce the stigma around substance use disorders, provide employment opportunities, maintain safe workplaces, and demonstrate to employees that their employer supports individuals in recovery.

The new year is approaching quickly and employers must get ready for the new marijuana laws that will take effect in California and Washington. These laws are very different from other states’ marijuana laws. In our firm’s latest “We Get Work” podcast, Catherine Cano and I discuss what employers need to know about these laws. Please click on the link below to access the podcast:

California and Washington’s Controversial 2024 Marijuana Laws: Are You Ready? – Jackson Lewis

Joining 23 other states, Ohio has passed a recreational marijuana law. On November 7, 2023, Ohioans voted to pass an initiative legalizing and regulating the cultivation, sale, purchase, possession, use, and home growth of recreational marijuana. The new law does not require an employer to “accommodate an employee’s use, possession, or distribution of adult use cannabis.”

The ballot language allows the sale, purchase, and possession of marijuana by Ohio residents aged 21 and older. In December, adults can legally possess up to 2.5 ounces of marijuana, up to 15 grams of cannabis extract, and grow up to six marijuana plants in their primary residence or up to 12 plants per residence with two or more adult residents.

Ohioans purchasing recreational marijuana are subject to a 10 percent excise tax, along with state and local sales taxes. According to the ballot text, some of the revenue collected from these taxes will support social equity and jobs programs.

Ohio’s medical marijuana program remains in effect and unchanged by the new law.

The law will become effective 30 days after the election, on December 7, 2023. Further, the new law authorizes Ohio’s Department of Commerce to create rules for how the program will work.

Employer Rights

Like Ohio’s medical marijuana program, the new law does not require employers to permit or accommodate an employee’s use, possession, or distribution of marijuana. Further, employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse action against an individual because of the individual’s use, possession, or distribution of marijuana.

There is no cause of action under the new statute for employees or applicants based on any such action by an employer. This is true even if an employee’s marijuana use is lawful and off-duty.

The new law also permits employers to continue enforcing drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

For purposes of unemployment compensation, an employer has “just cause” to terminate an employee for use of marijuana in violation of the employer’s drug policy.

Next

Ohio employers should consider whether their current drug policies continue to serve their business needs. Employers also should carefully review drug policies to ensure compliance with Ohio and federal law and make sure their policies are communicated clearly to employees and enforced consistently.

On October 7, 2023 Governor Newsom signed Senate Bill (SB) 700, which makes it unlawful under the Fair Employment and Housing Act (FEHA) for an employer to discriminate against a job applicant based on information regarding prior use of cannabis that is learned from a criminal history.

However, SB 700 does not preempt state or federal laws requiring an applicant to be tested for controlled substances, nor is an employer prohibited from asking about an applicant’s criminal history as long as in compliance with state law requirements.  

This change takes effect on January 1, 2024.

As a reminder, in 2022, the California legislature passed Assembly Bill (AB) 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. AB 2188 also takes effect on January 1, 2024.  There is an exemption for the building and construction trades.

If you have questions about SB 700 or related issues, contact a Jackson Lewis attorney to discuss.

The District of Columbia is joining the increasing number of jurisdictions providing greater protections for private employees who use marijuana off-duty, during non-work hours. Such development remains in contrast with federal law, which still classifies marijuana as a controlled substance, prohibiting both possession and use of marijuana.

In addition to protections for private employees, the D.C. Cannabis Employment Protections Amendment Act of 2022 (C.E.P.A.A.) imposes new obligations on private employers to inform employees of the new laws. D.C. Law 24-190 §§ 100 et seq.; tentatively D.C. Code §§ 32-921.01 through .08. The C.E.P.A.A. goes into effect July 13, 2023.

Highlights for D.C. Employers

Under C.E.P.A.A., employers will be prohibited from taking personnel actions against an individual for cannabis or marijuana use off-premises during non-work hours.

Employers are permitted to take action related to such use, however, if the employee is designated as safety sensitive, a federal contract or statute prohibits marijuana use, or the employee used or possessed marijuana at the employer’s premises or during work hours.

Drug-Testing

The presence of cannabinoid metabolites in an employer-required or requested drug test may be used to justify adverse action if the employee is impaired by the use of cannabis at the place of employment or during work hours.

Cannabis impairment is exemplified by the employee manifesting specific, articulable symptoms that substantially decreases or lessens the employee’s performance of duties or such symptoms interfere with the employer’s ability to maintain a safe and healthy workplace. This will alter the availability of pre-employment drug testing for many private employers in the District of Columbia.

Safety Sensitive-Designated Positions

Employers must provide notice to their employees of the new protections within 60 days of July 13 or upon hire.

The notice requirement includes informing employees if their position has been designated as safety sensitive, among other requirements. Safety-sensitive positions are those reasonably foreseeable that, if the employee performs the position under the influence of drugs or alcohol, the person could cause actual, immediate, and serious bodily injury or loss of life to themself or others. The following are statutory examples of safety sensitive positions:

(A)    Security services such as police or security that involves the custody, handling, or use of weapons; 
(B)    Regular or frequent operation of a motor vehicle or other heavy or dangerous machinery;
(C)    Regular or frequent work on an active construction site; 
(D)    Regular or frequent work near gas or utility lines; 
(E)    Regular or frequent work involving hazardous material; 
(F)    Supervision of those who reside in an institutional or custodial environment; or 
(G)    Administration of medication, performance or supervision of surgeries, or other medical treatment requiring professional credentials.

Notice of Reporting Requirements

Employees may report alleged noncompliance with the C.E.P.A.A. within one year to the D.C. Office of Human Rights.

Administrative requirements for recreational and medical marijuana users differ under the new law. Recreational marijuana users are required to exhaust their administrative remedies under the C.E.P.A.A. before bringing private cause of action. Medical marijuana patients are not required to exhaust administrative remedies, but they cannot bring a private cause of action directly to the court if they have initiated an administrative complaint with the D.C. Office of Human Rights alleging the same noncompliance.

Employer Penalties for Noncompliance

If the employer if found to have violated the C.E.P.A.A., the director of the D.C. Office of Human Rights may order the employer to do any of the following:

•    Pay civil penalties, half of which awarded to complainant and half deposited to the General Fund of D.C.; 

o    1–30 employees: up to $1,000 per violation
o    31–99 employees: up to $2,500 per violation
o    100+ employees: up to $5,000 per violation

•    Pay double the civil penalties listed above if the employer is found to be noncompliant in the past year; 
•    Pay the employee’s lost wages; 
•    Undergo training or any other equitable relief to undo the adverse employment action; and 
•    Pay reasonable attorneys’ fees and costs.

In a private cause of action, a court may institute the civil penalties above and:

•    Payment of lost wages; 
•    Payment of compensatory damages; 
•    Equitable relief as appropriate; and 
•    Payment of reasonable attorneys’ fees and costs.

D.C. employers should amend their workplace designations and policies in accordance with the changes mandated by the D.C. Cannabis Employment Protections Amendment Act.

(Summer law clerk Heather Kemp contributed significantly to this post.)

Under a new Minnesota law legalizing recreational marijuana, beginning August 1, 2023, individuals 21 years of age or older may possess or transport up to two ounces of cannabis flower in public and to possess up to two pounds of cannabis flower in the individual’s private residence, among other things.

Minnesota has had a medical cannabis law since 2014 that prohibits discrimination against medical cannabis patients. Now, the state will protect all employee off-duty use of cannabis as of August 1, 2023.

Protections for Off-Duty Use

The new law amends Minnesota’s Consumable Products Act (CPA), which prohibits employers from disciplining or discharging employees (or refusing to hire applicants) who use “lawful consumable products” outside of work.

Effective August 1, 2023, the term “lawful consumable products” will specifically include cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products, as such terms are defined by Minnesota law. The law goes even further to explicitly provide that the aforementioned products are considered lawful consumable products under Minnesota law “regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful.”

However, nothing in the newly amended CPA prohibits employers from taking action against employees who use, possess, sell, transfer, or are otherwise impaired by such lawful products while working, while on work premises, or while operating an employer’s vehicles, machines, or equipment. Similarly, employers may continue prohibiting the use of such products if failing to do so would violate another federal or state law or regulation or cause the employer to lose money or any licensing-related benefit under federal law or regulations.

The existing exceptions to the general prohibition on employer restrictions of lawful consumable products during nonworking hours outlined in the CPA will remain in place.

Updates to Drug and Alcohol Testing in the Workplace Act

Effective August 1, 2023, the law makes substantial changes to the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), which already imposes significant restrictions on employer drug testing. The changes apply to cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products.

Generally, employers may no longer require or request pre-employment cannabis testing or refuse to hire an applicant solely because the applicant tested positive for cannabis on a pre-employment test. Similarly, employers may no longer require routine physical examination cannabis testing for most positions nor can they require cannabis testing on an arbitrary or capricious basis.

However, employers may continue pre-employment and routine physical examination cannabis testing for the following positions:

  • A safety-sensitive position (i.e., a job in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person);
  • A peace officer position;
  • A firefighter position;
  • A position requiring face-to-face care, training, education, supervision, counseling, consultation or medical assistance to: children, vulnerable adults, or patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition;
  • A position requiring a commercial driver’s license or requiring an employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of a job applicant or an employee;
  • A position of employment funded by a federal grant; or
  • Any other position for which federal law requires testing of a job applicant for cannabis.

For the above positions, employers can continue treating cannabis like other drugs for purposes of DATWA.

Employers may continue random cannabis testing for safety-sensitive positions and professional athletes subject to a collective bargaining agreement that permits random testing.

Employers may also continue reasonable suspicion cannabis testing (which includes post-accident testing) and treatment program cannabis testing (as defined by the law) for all employees.

Unless otherwise provided by state or federal law, employers are not required to permit or accommodate cannabis use, possession, impairment, transfer, or sale while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment. However, employers may only enact and enforce rules regarding cannabis use, transfer, sale, possession, or impairment while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, and the policy must contain the minimum information required by DATWA.

If an employee uses, possesses, sells, transfers or is impaired by cannabis while working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment, the employer can discipline, discharge or take other adverse action:

  • If, as a result of consuming cannabis, the employee does not possess that clearness of intellect and control of self that the employee otherwise would have;
  • If cannabis testing verifies the presence of cannabis following a confirmatory test;
  • If the employer’s written work rules for cannabis apply to such conduct and the policy complies with DATWA; or
  • If the employer is otherwise authorized or required to do so under state or federal law or regulations, or if a failure to do so would cause an employer to lose a monetary of licensing-related benefit under federal law or regulations.

However, employers should keep in mind that DATWA requires employers to offer rehabilitation in lieu of termination to employees who test positive for drugs or alcohol for the first time, including cannabis.

Given the intricacies of DATWA, employers should consult with counsel about updating their drug testing policies to comply with the changes.

A Quest Diagnostics analysis published on May 18, 2023 found that positive post-accident marijuana tests were at the highest level in 25 years in 2022. Positive post-accident tests increased to 7.3%, an increase of 9% compared to 6.7% in 2021. Positive post-accident tests have been steadily increasing since 2012, with a 204.2% increase over a ten-year period.

According to Quest Diagnostics, the increase in positive tests corresponds to the legalization of marijuana (whether for medical or recreational purposes) in most states across the country.

Despite the increase in positive marijuana tests, the overall drug positive rate based on nine million urine tests remained at 4.6%, the same as in 2021 and the highest rate since 2001. Positivity for marijuana increased 10.3%, an increase to 4.3% compared to 3.9% in 2021. Positivity for amphetamines (both prescribed and illicit) also increased 15.4%, up to 1.5% from 1.3% in 2021.

Positive rates increased in most industries, with the highest increases in the Accommodation and Food Services, Retail Trade, and Finance and Insurance industries. Positive rates increased in states with legalized recreational marijuana (5.7%) and medical marijuana (3.9%), and in those that have not legalized marijuana (3.1%), but positive rates were higher in states with legalized marijuana.

More workers in federally mandated safety-sensitive jobs tested positive for marijuana and amphetamines with positivity rates for safety-sensitive workers increasing to 0.98% for marijuana and 0.75% for amphetamines, a 14% and 8.7% increase respectively.

Post-accident positivity when compared to pre-employment tests for marijuana and cocaine was higher by 58.7% and 230%, respectively, over five years (2018 to 2022). Positivity for heroin (6-AM) in urine tests decreased in the last five years.

The U.S. Department of Transportation (DOT) published new regulations in the Federal Register on May 2, 2023 that will allow covered employers to use oral fluid testing for drugs.  While the new rules technically become effective on June 1, 2023, employers may not conduct oral fluid testing until the U.S. Department of Health and Human Services (DHHS) certifies at least two laboratories to conduct such testing (one to serve as a primary laboratory and one to serve as a split-specimen laboratory). 

DOT-regulated employers should start planning now for the use of oral fluid drug testing once it becomes available.  Among other things:

  • Employers will have to revise their written drug and alcohol testing policies, if the policy specifically states that urine is the only specimen authorized for drug testing.  Policies will need to be updated to read “urine and/or oral fluid.” 
  • If the employer authorizes oral fluid testing, the policy will need to state the testing events (e.g., pre-employment, reasonable suspicion/cause, post-accident, random, return-to-duty, follow-up) for which an oral fluid collection will occur.  An employer can use one or the other, but not both, at the beginning of the testing event.  However, if there is a problem in the collection that necessitates a second collection (e.g., insufficient quantity of urine, temperature out of range, or insufficient saliva), then a different specimen type could be chosen by the employer (i.e., through a standing order or a discussion with the collector) or its service agent (i.e., if there is no standing order and the service agent cannot contact the DER [designated employer representative]) to complete the collection process for the testing event.
  • Similarly, the policy will need to state whether oral fluid collections will be authorized for shy bladder situations and direct observation collections.
  • Oral fluid collections must be available for directly observed collections for transgender and nonbinary individuals.
  • Employees do not have the option to choose the testing methodology.
  • Employers must ensure that they have a business relationship with oral fluid collectors and labs, whether directly or through service agents.
  • Employers should have a standing order in place with each collection site, so that they know what kind of collection the employer wants performed (urine or oral fluid) and when.
  • Employers will need to use DHHS-certified laboratories for oral fluid testing.  Point-of-collection testing or instant tests are not authorized.
  • DERs are required to be available to collectors 24-7, but that is especially important now to ensure that collectors are carrying out the employer’s standing orders as well as other issues that may come up.
  • It has always been the employer’s responsibility to determine when a refusal has occurred at the collection site.  A collector may advise that something appears to be a refusal, but the final determination is the employer’s.

The state of Washington will prohibit employers from making hiring decisions based on off-duty use of cannabis or positive pre-employment drug test results that find an applicant to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. The new law (SB 5123) takes effect on January 1, 2024.

Noting that recreational cannabis was legalized in Washington in 2012 and that it should now be treated like alcohol (also a legal substance), the new law is intended to prevent restricting job opportunities based on an applicant’s past use of cannabis.

Cannabis metabolites can stay in the body for long periods of time and most drug tests will detect nonpsychoactive cannabis metabolites for up to 30 days after use. Past use of marijuana has no correlation to an applicant’s future job performance given that marijuana is a legal substance.

The law does not prohibit employers from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. Like a similar California law that also will take effect in 2024, the Washington law contains no explanation of what is meant by “nonpsychoactive cannabis metabolites” and, presently, there are no drug tests that can distinguish between psychoactive metabolites (those that create a “high”) and nonpsychoactive metabolites. If no such drug tests are developed by January 1, 2024, Washington employers will not be able to test for marijuana on pre-employment drug tests.

The law further states that it does not prohibit employers from maintaining a drug and alcohol-free workplace and does not affect any other rights or obligations of an employer required by federal law or regulation.

Employers still may drug test for marijuana on tests other than pre-employment, such as post-accident and reasonable suspicion. Additionally, employers still may test for other drugs, as well as alcohol.

The law does not apply to applicants seeking:

  • Positions requiring a federal government background investigation or security clearance;
  • Certain law enforcement positions;
  • Certain fire department positions;
  • First responders (including 911 dispatchers) positions;
  • Corrections officers positions;
  • Positions in the airline or aerospace industries;
  • Safety-sensitive positions for which impairment while working presents a substantial risk of death. Such safety-sensitive positions must be identified by the employer prior to the applicant’s application for employment.

The law does not preempt state or federal laws requiring an applicant to be tested for drugs. This includes testing that is related to the receipt of federal funding or federal licensing-related benefits or as required by a federal contract.

It is permissible to test applicants for cannabis, as along as the test result is not provided to the employer.

Washington employers should review their drug and alcohol testing policies to ensure that they will comply with the law as of January 1, 2024.

Delaware became the latest state to legalize recreational marijuana on April 23, 2023 when the state’s Governor failed to veto two bills that allow for the legalization of marijuana, effective immediately.  Individuals who are 21 years of age and older may possess and use up to one ounce of marijuana.  It will be taxed in a manner similar to alcohol.

The law provides that nothing in the law is “intended to impact or impose any requirement or restriction on employers with respect to terms and conditions of employment including but not limited to accommodation, policies or discipline.”  This means that employers in Delaware do not have to permit marijuana use at work or during work time and still may drug test for marijuana and take disciplinary action for positive test results. 

Employers should bear in mind, however, that the use of medical marijuana still is protected under Delaware law, as it has been since 2011. The new recreational marijuana law does not change the rights of users of medical marijuana.  Specifically, the Delaware Medical Marijuana Act provides, in pertinent part, 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. [t]he 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.”

Delaware joins a growing list of states that have adult-use recreational marijuana laws.  Employers should review their drug and alcohol policies frequently to ensure that they are complying with all applicable state and local marijuana laws.