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.

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

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

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

No “Qualifying Medical Conditions” Specified

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

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

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

Implications for Employers

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

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

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

FDA Approves Marijuana-Based Drug For the First Time

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

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

Under the federal Controlled Substances Act, marijuana (including CBD) currently is classified as a Schedule I drug. The CSA categorizes drugs into five categories depending on the drug’s acceptable medical use and the drug’s abuse or dependency potential. Schedule I drugs are defined as drugs with no currently accepted medical use and a high potential for abuse.  Schedule I drugs are considered the most dangerous and include marijuana, heroin, LSD and Ecstasy, among others.

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

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

 

Vermont Attorney General Publishes Guide to Marijuana in the Workplace

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

Recreational Marijuana

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

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

Medical Marijuana

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

Current Users of Illegal Drugs May Be Protected As Disabled

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

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

Conflict With the Recreational Marijuana Law?

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

Vermont’s Drug Testing Law

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

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

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

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

Background

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

New Law

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

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

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

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

Impact on Employers

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

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