Please click here to read our colleagues’ article New York State Enacted Budget Includes Opioid Legislation. As part of the 2018-2019 New York State Budget, the Governor and the Legislature have agreed to a package of legislation addressing the opioid crisis in New York that includes requiring opioid manufacturers and distributors to help fund treatment programs. Among other things, the legislation imposes limits on the use of prescription opioids and contains provisions that would add Fentanyl analogs, synthetic cannabinoids, and cannabimimetic agents to the list of Schedule I controlled substances under New York’s Public Health Law.
Although Iowa’s drug testing statute was enacted more than 30 years ago, it is still considered one of the most difficult laws in the country for purposes of employer compliance. The 10-page law includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. Available remedies under the statute include reinstatement, back pay, and equitable relief such as attorneys’ fees. See Iowa Code Section 730.5.
The legislature has amended the statute periodically over the years. In 2017, an amendment clarified that hair follicle testing is appropriate only for pre-employment drug testing. The Governor signed another amendment into law in late-March 2018, which will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. Prior to the 2018 amendment, employers could not take action for alcohol test results below .04 BAC. The amendment is effective July 1, 2018.
Employers easily can violate the technical aspects of the law. For example, in 2012, the Iowa Court of Appeals held that an employer violated the statute when it provided an employee with a hand-delivered notice of her positive test results instead of sending it by certified mail as required by the statute. See Skipton v. S&J Tube, Inc., 822 N.W.2d 122 (Iowa Ct. App. 2012). The notice also omitted the cost of a confirmatory re-test.
There has been an increase in lawsuits alleging violations of the statute in the past several months. Since October 2017, at least five new lawsuits have been filed alleging violations of the Iowa drug testing law.
Some of these lawsuits have alleged claims for wrongful discharge in violation of public policy based on the alleged violation of the drug testing statute. The viability of a wrongful discharge in violation of public policy claim is significant because it expands the range of potential damages a plaintiff can recover. Specifically, the Iowa Supreme Court has held that punitive damages may be awarded in wrongful discharge cases. See Jasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009). In a recent case before the Iowa District Court for Delaware County, the employer conceded violating the drug testing statute but argued that the drug testing statute was the exclusive remedy. The court disagreed and granted summary judgment to the plaintiff on her wrongful discharge claim. See Ferguson v. Sanders, et al., Case: LACV008271 (Jan. 17, 2018). A jury later awarded the plaintiff $57,606 in damages, including $12,000 in pain and suffering.
Employers who conduct drug testing in Iowa must ensure that their policy complies with the law and should consider consulting with counsel before taking adverse employment actions based on drug or alcohol test results.
The Food and Drug Administration requested comments in a notice published in the Federal Register on April 9, 2018 concerning the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use” of five marijuana-related substances: cannabis plant and resin; extracts and tinctures of cannabis; delta-9-tetrahydrocannabinol (THC); stereoisomers of THC; and cannabidiol (CBD). The comments will be considered in preparing a response from the United States to the World Health Organization (WHO)’s request for information regarding “the legitimate use, harmful use, status of national control and potential impact of international control” for each of these substances.
The WHO’s Expert Committee on Drug Dependence (ECDD) will be meeting in Geneva from June 4 to 8, 2018, for a special session to review cannabis and its potential to cause dependence, abuse and harm to health as well as its potential therapeutic applications. WHO will make recommendations to the United Nations Secretary-General on the need for a level of international control of these substances. In advance of the June session, the WHO is asking United Nations member states to share their evaluations of cannabis, so the comments received by the FDA will be considered in the scientific and medical evaluations the U.S. submits. WHO is expected to make its official recommendation to the U.N.’s Commission on Narcotic Drugs in mid-2018.
The ECDD also will discuss potential changes to how marijuana is scheduled. The U.N. Single Convention on Narcotic Drugs currently lists marijuana as a Schedule I drug, the classification given to drugs with the highest potential for abuse and no medicinal value. Marijuana never has been subject to formal international review since first being placed in Schedule I of the international agreement enacted in 1961.
Under the United States federal Controlled Substances Act, marijuana is considered a Schedule I drug, meaning that it has (1) a high potential for abuse; (2) no currently accepted medical use in treatment in the United States, and, (3) a lack of accepted safety for use of the drug or other substance under medical supervision. CBD also is a Schedule I drug in the United States.
Cannabis, also known as marijuana, refers to the dried leaves, flowers, stems, and seeds from the Cannabis sativa or Cannabis indica plant. It is a complex plant substance containing multiple cannabinoids and other compounds, including the psychoactive chemical THC and other structurally similar compounds. The principal cannabinoids in the cannabis plant include THC, CBD, and cannabinol. Marijuana is the most commonly used illicit drug in the United States.
Any change in marijuana’s classification under international drug control treaties may influence the way marijuana is classified in the United States. Employers who are opposed to marijuana legalization should consider submitting comments.
Anyone may comment online by clicking here (click on “Comment Now”), or by sending a comment by mail (click on the link to obtain the address). Comments are due by April 23, 2018.
A federal court in New York dismissed all claims asserted by a recovering alcoholic under the Americans with Disabilities Act and the Rehabilitation Act for numerous reasons including that he did not show he was “disabled.” Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs., No. 16-cv-9769 (S.D.N.Y. March 13, 2018).
Plaintiff, a recovering alcoholic, was a former Addictions Counselor Assistant at the Creedmoor Addiction Treatment Center. He sued his employer, New York State Office of Alcoholism and Substance Abuse Services (“OASAS”) alleging he was harassed, discriminated and retaliated against in violation of the ADA and Rehabilitation Act. Specifically, he alleged that he was passed over for a promotion, denied a transfer, and assigned “jobs nobody wants to do.” He further alleged that he suffered adverse actions in retaliation for both internal complaints he made about purported violations of his clients’ rights, and for a subsequent federal action he filed in 2015. In his view, OASAS “created a hostile work environment” such by giving him negative evaluations, instructing him to confiscate clients’ property, and denying the clients visitation rights.
The Court held that Plaintiff failed to state facts sufficiently connecting his “alleged” disability to his “laundry list of workplace grievances.” The Court centered its analysis on whether Plaintiff adequately pleaded that he was “disabled” under the ADA and Rehabilitation Act. Plaintiff failed to allege that his supervisors regarded him as having a disability or even that they were aware of his alcoholism. He further failed to allege that he had a record of a substantially limiting impairment. The court stated that Plaintiff assumed that he is disabled with the meaning of federal law because he identifies as a “recovering alcoholic.” While alcoholism is recognized as an “impairment” under federal law, “more than a physical or mental impairment is required to satisfy the definition of disability.” A plaintiff must also allege facts showing that his or her status as a recovering addict “substantially limits” one of his or her “major life activities.” Because Plaintiff failed to plead such facts, his disability discrimination and failure to accommodate claims were dismissed.
As to the retaliation claims, the Court concluded that even if Plaintiff could prove that the employer took an “adverse action” against him, he failed to plead facts showing that any alleged adverse action was “because” of his opposition to any unlawful employment practice. Retaliation claims require a plaintiff to allege facts showing a “but-for” causal connection. Plaintiff’s conclusory allegations that the employer took various adverse actions against him in response to his complaints about purported violations of clients’ rights was not sufficient. Additionally, the temporal time frame between the filing of his federal action in April 2015 and the purported adverse actions said to occur in February 2016 was too remote, by itself, to raise an inference of but-for causation.
Similarly, Plaintiff’s hostile work environment claims failed because his collective examples of alleged hostility and workplace abuse fell short of the standard, and his allegations did not establish that the alleged hostile conduct occurred on account of his alleged disability. Accordingly, all of Plaintiff’s claims were dismissed.
Effective February 1, 2018, a provision in Maine’s recreational marijuana law impacts workplace drug testing. As we previously blogged here, the law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. On its face, this law effectively prevents Maine employers from testing for marijuana for pre-employment purposes, and has other impacts as well.
After previous indications of clear guidance on the seeming conflict between this new provision and existing Maine drug testing statues and guidance, the Maine Department of Labor recently issued the following public comments regarding the impact of the recreational marijuana law:
In Maine, marijuana is still on the list of what can be tested. Testing is only allowed if a company has a drug testing policy that has been approved by the Maine Department of Labor (MDOL). The Department cannot provide legal advice and we encourage employers to consult with private legal counsel regarding the law. Additionally, since the recreational law is overseen by the Maine Department of Agriculture and medical marijuana law is overseen by Maine Department of Health and Human Services, MDOL can approve testing based on our own law but we cannot say whether taking disciplinary action or refusing to hire someone will violate their laws, which is why the Department recommends seeking legal guidance prior to making those decisions.
Maine employers therefore must continue to make their own informed decisions concerning whether (and when) they should continue to test for marijuana, and whether they can take disciplinary actions for positive marijuana test results. Employers should review their drug testing policies, and consult with counsel, to determine what course of action to take.
An employee who refused to stop using morphine and would not engage in the interactive process with his employer could not survive summary judgment on his disability discrimination and retaliation claims under the Americans with Disabilities Act. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).
The employee, a production manager in a manufacturing environment, worked around heavy machinery. Although the employee spent only a small portion of his time actually working on the machinery (10-20%), the environment was dangerous. The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours. The employee did not have a prescription for Vicodin and obtained pills from coworkers and family members. He also used morphine other than as directed by his prescription on at least one occasion. Although the employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely, the employee failed to do so. The employee’s opioid use was unknown by the employer for several months.
The employer eventually received a report that the employee had requested a Vicodin from a coworker a few weeks earlier. The employer required the employee to submit to a drug test, and he tested positive for hydrocodone (the opioid found in Vicodin). The employer referred the employee to its Employee Assistance Program and put the employee on leave pending a work release from his physician.
During the employee’s leave, he disclosed his morphine prescription. The employer asked the employee to confer with his doctor about whether there were any alternative treatment options to opioids. Without consulting his physician, the employee told the employer that he needed to stay on his medication and refused to stop taking morphine. The employer indicated the employee could not remain employed if he was using morphine, and the employee’s employment ended following this conversation. (During his deposition, the employee admitted that the label on his prescription morphine warned against operating heavy machinery).
The employee subsequently filed suit, alleging disability discrimination and retaliation. The employer moved for summary judgment, arguing that the employee caused a breakdown in the interactive process by failing to discuss alternative treatments with his doctor. The employee argued that he could safely perform his job while using morphine, and that the employer failed to conduct a direct threat analysis before denying the request. The court agreed with the employer, however, holding that the employee impeded the employer’s ability to investigate the extent of his disability and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication could reasonably accommodate his disability. Holding that an employer “has the ability to confirm or disprove the employee’s statement[s]” regarding his disability and medical treatment, the court granted summary judgment on the disability discrimination and retaliation claims.
This decision serves as a reminder that an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims. However, employers also must ensure that they conduct individualized assessments, and should not make assumptions about the use of certain drugs without medical evidence.
A federal district court in the Southern District of New York rejected a constitutional challenge to marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act (“CSA”). Washington, et al. v. Jefferson Beauregard Sessions, III, et. al., 17 Civ. 5625 (AKH) (S.D.N.Y. Feb. 26, 2018).
Plaintiffs consisted of a group of individual medical marijuana users and the Cannabis Cultural Association, Inc. (“Association”). They sued the U.S. Attorney General and others, arguing that the CSA’s classification of marijuana as a Schedule I drug – the highest level of classification – is unconstitutional.
The CSA classifies drugs into five different categories, or schedules. These classifications determine the severity of possible criminal penalties as well as the type of controls imposed. Schedule I drugs have (1) a high potential for abuse; (2) no currently accepted medical use in treatment in the United States, and, (3) a lack of accepted safety for use of the drug or other substance under medical supervision. 21 U.S.C. § 812(b)(1). The U.S. Attorney General has the authority to classify or reclassify drugs to the various CSA schedules; however, the Attorney General has delegated this authority to the Drug Enforcement Agency. Interested parties may petition the DEA to reclassify drugs, consistent with medical and scientific data provided by the U.S. Department of Health and Human Services. If a petitioner receives an adverse ruling from DEA, the petitioner may seek judicial review. The DEA most recently denied petitions to reschedule marijuana in 2016.
Plaintiffs raised several constitutional arguments in support of their attempt to have the Court rule that the federal government’s ban on marijuana is unlawful. The arguments ranged from claims that the federal government lacked a rational basis for classifying marijuana as a Schedule I substance to allegations that this classification violated the First Amendment because one of the plaintiffs could not travel to speak with Congress about decriminalization of medical marijuana as doing do would have required her to fly on an airplane and enter a federal building, thereby, risking potential arrest for marijuana possession.
While the plaintiffs raised a myriad of arguments in support of their claims that the federal government’s position on marijuana is unconstitutional, the Court rejected all of them. Among other things, the Court held that there is an administrative remedy available to those seeking to reclassify marijuana under the CSA — petitioning the DEA — yet plaintiffs did not avail themselves of this remedy. The Court further noted that it was not irrational for Congress to have classified marijuana as a Schedule I drug, and that the Second Circuit previously held that Congress had a rational basis to do so. Most recently, in August 2016, the DEA denied petitions to reschedule marijuana, due to its “various psychoactive effects,” its potential to cause a “decrease in IQ and general neuropsychological performance,” and its potential effects on prenatal development.
The Association also argued that the CSA violates the Equal Protection Clause because it was passed with racial animus. The Court held that the Association lacked standing to advance this claim and that it failed to show that a favorable decision would redress plaintiffs’ alleged injuries.
Employers navigating the ever-changing landscape of marijuana workplace issues should continue to monitor legal developments as we watch the push and pull between state and federal laws continue to play out in the courts. Employers are advised to get ahead of the issue, review applicable state laws, determine their company’s stance on medical marijuana, and set out a thoughtful plan to address potential issues resulting from positive marijuana drug test results before they happen.
Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law. To read the rest of this article, please visit our Disability, Leave & Health Management blog here.
A provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. This law effectively prevents Maine employers from testing for marijuana for pre-employment purposes. The law also affects employers who employ employees subject to federal drug and alcohol testing regulations as well as those employers who are exempt from complying with Maine’s drug testing law.
Maine voters approved the recreational marijuana law in November 2016. The law originally was scheduled to take effect on January 30, 2017. However, emergency legislation passed three days before that date delayed implementation of certain provisions of the law while the legislature reviewed and revised provisions on the retail sales of marijuana. Once the legislature did so, the Governor, on November 3, 2017, vetoed the law. The legislature sustained the Governor’s veto.
However, despite the veto, portions of the recreational marijuana law that were not under review were scheduled to take effect on February 1, 2018. As no action was taken prior to that date to delay or stop implementation of those provisions, they went into effect as scheduled.
One of the provisions that took effect on February 1 provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace. Further, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.
However, the law prohibits employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.” This language presents a problem for employers that conduct drug testing, because a drug test does not reveal where someone may have used marijuana. It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property,” because marijuana can stay in the human body for days or weeks.
The Maine Department of Labor is taking the position that employers may not test for marijuana as part of a pre-employment drug test. However, the Department has stated that probable cause (i.e., reasonable suspicion) drug testing for marijuana still is permissible in Maine, because the recreational marijuana law allows employers to discipline employees who are under the influence of marijuana in the workplace.
Impact On Employers Who Are Exempt From Compliance with Maine Drug Testing Law
Employers with employees who are subject to federally mandated drug and alcohol testing regulations already are exempt from compliance with Maine’s drug testing statute with regard to those employees as well as their non-federally regulated employees. 26 Maine Rev. Stat. § 681(8). These employers, however, are not exempt from Maine’s recreational marijuana law. While federal regulations (such as the U.S. Department of Transportation’s drug and alcohol testing regulations) require testing for marijuana, they do not address the employment consequences for testing positive (other than requiring the employee to stop performing safety-sensitive functions). Employers regulated by the Department of Transportation, therefore, must consider what employment consequences will be imposed for positive marijuana test results, keeping in mind that the Maine recreational marijuana law does not permit employers to take adverse actions based on off-premises marijuana use. Additionally, these employers may not test their non-federally regulated employees for marijuana as part of any type of drug test (e.g., pre-employment, post-accident, and random), other than a drug test based on reasonable suspicion in Maine.
Employers that conduct drug testing in Maine should review their drug and alcohol testing policies and ensure compliance with the requirements of the Maine recreational marijuana law. Jackson Lewis attorneys are available to assist employers with this and other workplace issues.
Vermont’s Governor Phil Scott signed a recreational marijuana law on January 22, 2018. The law is the first recreational marijuana law to be enacted by a state legislature without a ballot initiative. It will take effect on July 1, 2018.
The law eliminates all penalties for possession of one ounce or less of marijuana and permits a person who is 21 years of age or older to grow up to two mature and four immature marijuana plants. However, marijuana may not be consumed in a public place, such as streets, parks, public buildings, places of public accommodation and places where the use of tobacco products is prohibited. The law also does not protect individuals from prosecution for being under the influence while operating a motor vehicle or consuming marijuana while operating a motor vehicle.
The law does not create a retail marketplace for marijuana.
Importantly for employers, the law provides that it shall not be construed to do any of the following:
- Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
- Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
- Create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
- Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s premises.
The Governor’s Marijuana Advisory Commission has been directed to report on adopting a comprehensive regulatory structure for legalizing and licensing the marijuana market on or before December 15, 2018, in order to revise drug laws that have a disparate impact on racial minorities, help prevent access to marijuana by youths, better control the safety and quality of marijuana being consumed by Vermonters, substantially reduce the illegal marijuana market, and use revenues to support substance use prevention and education and enforcement of impaired driving laws.