A federal court in Pennsylvania granted an employer’s motion for summary judgment dismissing a former employee’s Pennsylvania Medical Marijuana Act (PMMA) claim because he could not show that his termination was premised solely on his status as a certified user of medical marijuana.  Matthew Reynolds v. Willert Mfg. Co., LLC, No. 5:21-cv-01208 (E.D. Pa. October 19, 2021).

The employee received a conditional offer of employment contingent upon the successful completion of a drug test and began working on October 16, 2020.  The drug test was performed off-site by a third-party vendor.  Upon submitting to the drug test, the employee informed the individual performing the drug screening that he was a medical marijuana patient.  After testing positive for marijuana, he also informed the medical review officer (MRO) of his status as a medical marijuana patient.  The MRO reported the positive drug test results to the employer but did not mention the employee’s status as a medical marijuana patient.  Based on the positive drug test result, the employer terminated the employee on November 5, 2020.  Immediately after his termination, the employee informed the employer—for the first time—that he was a medical marijuana patient.  The employer declined to reverse its termination decision based on the newly obtained information that the now former employee was a registered medical marijuana patient.

In February 2021, the employee filed a state court action for discrimination pursuant to the PMMA.  The employer subsequently removed the action to federal court and moved for summary judgment asserting that the “uncontroverted facts indicate that” the employer’s decision to terminate the employee was not based solely on the employee’s status as a medical marijuana patient.

The Court agreed with the employer, reasoning that the PMMA “indicates that it prohibits discrimination ‘solely on the basis of such employee’s status as an individual who is certified to use medical marijuana,’” and does not explicitly or implicitly protect against discrimination on the basis of a positive marijuana drug test result.  The Court reasoned that to prevail on a discrimination claim under the PMMA, the employee “must show (1) he was discriminated against on the basis of his status as a cardholder, and (2) that but for his status, he would not have been terminated.”  Because there was no evidence that the employer was aware of the employee’s status as a medical marijuana patient prior to his termination, the Court could not logically conclude that the termination was based upon such status.

In an attempt to impute the testing site’s knowledge of the employee’s status as a medical marijuana patient to the employer, the employee argued that the testing site was an agent of the employer.  The Court rejected this argument, explaining that an agency relationship exists only where an agreement creates a fiduciary relationship between the two parties.

The Court further opined that even if the employee “could show his termination was motivated by his status as a medical marijuana user, [the employee] failed to provide facts that would allow a reasonable jury to find that his status was the sole basis of his termination.  Accordingly, the Court granted the employer’s motion for summary judgment.

The New York Department of Labor (“DOL”) recently published guidance and FAQs entitled “Adult Use Cannabis And The Workplace – New York Labor Law 201-D” to address questions related to the Marijuana Regulation and Taxation Act (“MRTA”).  MRTA legalized marijuana use and possession for adults who are 21 and older, effective March 31, 2021, and amended New York Labor Law Section 201-d, the legal activities law.  New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property.

Some of the key takeaways from the DOL Guidance include:

  • Drug testing for marijuana is not permitted except in very limited circumstances (e.g., the test is required by law);
  • A drug test result cannot serve as a basis for an employer’s conclusion that an employee was impaired by marijuana;
  • The smell of marijuana, by itself, is not evidence of “articulable symptoms of impairment.”

Pertinent excerpts of the DOL’s Guidance and FAQs are set forth below:

Permitted Employer Actions

Employers may take employment actions related to the use of cannabis based on the following:

  1. The employer is/was required to take such action by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. The employer would be in violation of federal law;
  3. The employer would lose a federal contract or federal funding;
  4. The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties;
  5. The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and health workplace as required by state and federal workplace safety laws.

Frequently Asked Questions

Can an employer take action against an employee for using cannabis on the job?

An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:

  • Decrease or lessen the performance of their duties of tasks
  • Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws.

What are articulable symptoms of impairment?

There is no dispositive and complete list of symptoms of impairment.  Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened.  Employers are cautioned that such articulable symptoms may also be an indicate that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer.  For example, the operation of heavy machinery in an unsafe and reckless manner maybe considered an articulable symptom of impairment.

What cannot be cited by an employer as articulable symptoms of impairment?

Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment.  Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited.  However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or using employer property.

Can employers use drug testing as a basis for an articulable symptom of impairment?

No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment.

Can I fire an employee for having a noticeable odor of cannabis?

The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-d.

Can an employer test for cannabis?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-d(4-a) or other applicable laws.

Can an employer drug test an employee if federal law allows for drug testing?

No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.  (See e.g., neither the Drug-Free Workplace Act nor the rules adopted thereunder authorizes drug testing of employees.)  However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position.

Can employers prohibit use of cannabis during meal or break periods?

Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.  Such periods of time are still considered “work hours” if the employee leaves the worksite.

Can employers prohibit use of cannabis during periods in which an employee is on-call?

Yes, employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”

For remote employees, can employer prohibit use in the “worksite”?

The Department of labor does not consider an employee’s private residence being used for remote work a “worksite” within the meaning of Labor Law Section 201-d.  However, an employer may take action if an employee is exhibiting articulable symptoms of impairment during work hours as described above and may institute a general policy prohibiting use during working hours.

Can employers prohibit use when the employee uses a company vehicle?

Yes, employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.

The Drug Enforcement Administration issued a public safety alert on September 27, 2021 to warn Americans of the alarming increase in the lethality and availability of fake prescription pills containing fentanyl and methamphetamine.  Calling its public safety campaign “One Pill Can Kill,” the DEA’s first public safety alert in six years seeks to raise public awareness of a significant nationwide surge in counterfeit pills that are mass-produced by criminal drug networks in labs, deceptively marketed as legitimate prescription pills, and are killing unsuspecting Americans at an unprecedented rate.

According to the DEA, counterfeit pills are illegally manufactured by criminal drug networks and are made to look like real prescription opioid medications such as oxycodone (Oxycontin®, Percocet®), hydrocodone (Vicodin®), and alprazolam (Xanax®); or stimulants like amphetamines (Adderall®). Fake prescription pills are widely accessible and often sold on social media and e-commerce platforms – making them available to anyone with a smartphone, including minors.

The DEA reports that counterfeit pills have been seized in every U.S. state in unprecedented quantities. More than 9.5 million counterfeit pills were seized so far this year, which is more than the last two years combined. DEA laboratory testing revealed a dramatic rise in the number of counterfeit pills containing at least two milligrams of fentanyl, which is considered a lethal dose.

According to the Centers for Disease Control and Prevention, more than 93,000 people died from a drug overdose in the United States in 2020.  Synthetic opioids like fentanyl are the primary driver of this record increase.

The DEA warns the public to take only those medications that are prescribed by a trusted medical professional and dispensed by a licensed pharmacist.  Any pills not meeting this standard should be considered unsafe and potentially deadly.

A federal court in Indiana dismissed the disability discrimination and retaliation claims of a DOT-regulated driver who failed a random drug test due to prescription opioid use, holding that he did not sufficiently adhere to the employer’s policy or DOT regulations when he failed to produce a Safety Concern Letter from the prescribing physician.  Ross v. FedEx Freight, No. 1:20-cv-00642-JMS-MJD (S.D. Ind. September 21, 2021).

The driver was prescribed pain medication in 2014 following a dental procedure.  At that time, pursuant to the employer’s policy and DOT regulations, the driver disclosed the prescription to the employer and provided documentation of the prescription.  The driver then was instructed to take a day off from work if he needed to take the pain medication.

DOT regulations also required that the driver regularly undergo DOT medical examinations and disclose, by way of Medical Examination Report Forms, the use of any medications which could negatively impact his ability to safely operate a vehicle.  Between 2016 and the time of his termination, the driver did not disclose the use of any prescription medication on his DOT Medical Examination Report Forms.

On March 30, 2019, the driver took the pain medication that was prescribed to him five years earlier.  The next day, on April 1, 2019, he tested positive for opioid use on a DOT-required random drug test.  Prior to taking the test, the driver disclosed to the medical review officer (“MRO”) that he had taken pain medication prescribed to him in 2014.  Pursuant to the employer’s policy and DOT regulations, the MRO directed the driver to provide a Safety Concern Letter from the driver’s prescribing physician which, among other things, would confirm that the medication should not pose a safety risk and that the driver’s use of the medication was being monitored by a medical professional.  However, the driver’s prescribing physician had since retired and physicians who continued to work in the practice would not provide such a letter because the medication was prescribed five years earlier.  As a result of the driver’s failure to provide the necessary documentation to support his use of a controlled substance, the employer terminated the driver.

In February 2020, the driver filed a federal action for, among other things, retaliation, disability discrimination, and failure to accommodate under the Americans With Disabilities Act, 42 U.S.C. § 12112, et seq.  The employer moved for summary judgement on all claims, arguing that the driver could not establish a prima facie case for disability or retaliation because, in part, the employee failed to adhere to the employer’s drug and alcohol testing policy.

The Court agreed with the employer, noting that the driver violated the employer’s policy and DOT regulations by “failing to provide a Safety Concern Letter addressing his use of the five-year-old prescription for opioids.”  Moreover, the driver never made any specific request for an accommodation.  With regard to the retaliation claim, the Court concluded that the driver could not establish that he engaged in any protected activity because he failed to disclose his use of pain medication on his DOT Medical Evaluation Report Forms for at least the prior three years.

Accordingly, the Court granted the employer’s motion for summary judgment in its entirety.

The U.S. Food and Drug Administration and the Centers for Disease Control and Prevention issued warnings to the public regarding the potential health risks of using Delta-8 THC products on September 14, 2021.

The FDA’s latest consumer update,  5 Things To Know About Delta-8 Tetrahydrocannabinol – Delta-8 THC, begins with a warning in large red letters: “DELTA-8 THC HAS SERIOUS HEALTH RISKS.”  The CDC’s Health Alert Network’s latest Health Advisory, Increases in Availability of Cannabis Products Containing Delta-8 THC and Reported Cases of Adverse Events, is intended to warn the public about the increased availability of cannabis products containing delta-8 THC and the potential for adverse events.  Among other things, the FDA and CDC are warning the public about:

  • An uptick in adverse event reports to the FDA and the nation’s poison control centers related to delta-8 THC products, due to insufficient or misleading labeling as well as the mistaken belief that these products are non-psychoactive;
  • Marketing, including online marketing of products, that is appealing to children (gummies and other products may look like candy);
  • Concerns regarding contamination of delta-8 THC products due to methods of manufacturing.

Background Provided by the CDC and Dangers of Delta-8 THC

According to the CDC, marijuana refers to all parts of the plant Cannabis sativa L., including flower, seeds, and extracts with more than 0.3% delta-9 tetrahydrocannabinol (THC) by dry weight. Any part of the cannabis plant containing 0.3% or less THC by dry weight is defined as hemp (which was legalized by the 2018 Farm Bill).  The cannabis plant contains more than 100 cannabinoids, including THC, which is psychoactive (i.e., impairing or mind-altering) and causes a “high”.  CBD is another active cannabinoid found in the cannabis plant that is not psychoactive and does not cause a “high”.

The term THC most often refers to delta-9 THC.  Delta-8 THC exists naturally in the cannabis plant in only small quantities and is estimated to be about 50-75% as psychoactive as delta-9 THC.  However, CBD can be synthetically converted into delta-8 THC through a chemical process. According to the FDA, after chemical alteration, the final delta-8 THC product may have potentially harmful by-products (contaminants) due to the chemicals used in the process, and there is uncertainty with respect to other potential contaminants that may be present or produced depending on the composition of the starting raw material. If consumed or inhaled, these chemicals can be harmful.

Delta-8 THC products are increasingly appearing in both marijuana and hemp marketplaces.  They are sometimes marketed as “weed light” or “diet weed.”  A wide variety of delta-8 THC-containing products have entered the marketplace, including, but not limited to, vapes, smokable hemp sprayed with delta-8 THC extract, distillates, tinctures, gummies, chocolates, and infused beverages.

The CDC states that the health effects of delta-8 THC have not yet been researched extensively and are not well-understood. However, delta-8 THC is psychoactive and may have similar risks of impairment as delta-9 THC. As such, products that contain delta-8 THC but are labeled with only delta-9 THC content rather than with total THC content likely underestimate the psychoactive potential of these products for consumers. In addition, delta-8 THC products are sold by a wide range of businesses that sell hemp and therefore may be confused with hemp or CBD products that are not intoxicating. Consumers who use these products may therefore experience unexpected or increased THC intoxication.

FDA Has Not Evaluated or Approved Delta-8 THC Products

 The FDA has not yet evaluated or approved delta-8 THC products for safe use. Some of the FDA’s concerns include variability in product formulations and product labeling, other cannabinoid and terpene content, and variable delta-8 THC concentrations. Additionally, some of these products may be labeled simply as “hemp products,” which may mislead consumers who associate “hemp” with “non-psychoactive.” The FDA also is concerned by the proliferation of products that contain delta-8 THC and are marketed for therapeutic or medical uses, although they have not been approved by the FDA. Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of federal law, but also can put consumers at risk, as these products have not been proven to be safe or effective.

 FDA and CDC Have Received Adverse Event Reports Involving Delta-8 THC Products

From December 2020 through July 2021, the FDA received adverse event reports from both consumers and law enforcement describing 22 patients who consumed delta-8 THC products; of these, 14 presented to a hospital or emergency room for treatment following the ingestion. Of the 22 patients, 19 experienced adverse events after ingesting delta-8 THC-containing food products (e.g., brownies, gummies). Adverse events included vomiting, hallucinations, trouble standing, and loss of consciousness.

The FDA further reported that national poison control centers received 661 exposure cases of delta-8 THC products between January 2018 and July 31, 2021, 660 of which occurred between January 1, 2021, and July 31, 2021. Of the 661 exposure cases:

  • 41% involved unintentional exposure to delta-8 THC and 77% of these unintentional exposures affected pediatric patients less than 18 years of age.
  • 39% involved pediatric patients less than 18 years of age
  • 18% required hospitalizations, including children who required intensive care unit (ICU) admission following exposure to these products.

The CDC states that delta-8 THC intoxication can cause adverse effects similar to those observed during delta-9 THC intoxication and may include:

  • Lethargy
  • Uncoordinated movements and decreased psychomotor activity
  • Slurred speech
  • Increased heart rate progressing to slowed heart rate
  • Low blood pressure
  • Difficulty breathing
  • Sedation
  • Coma

The FDA states that it is actively working with federal and state partners to further address the concerns related to delta-8 THC products and is monitoring the market for product complaints, adverse events, and other emerging cannabis-derived products of potential concern.

Employers who are regulated by the U.S. Department of Transportation and their service agents (collectors, laboratories and Medical Review Officers) must ensure that they use the revised Federal Custody and Control Form (“CCF”) as of August 30, 2021.  The revised CCF can be viewed here.  Last year, the Office of Management and Budget approved the revised CCF but allowed use of the old form to continue through August 29, 2021.

Most of the changes in the revised CCF were made to accommodate the use of oral fluid specimens for Federal drug testing.  However, oral fluid drug testing has not yet been authorized for DOT-mandated drug testing.

If the old CCF is inadvertently used on or after August 30, 2021, it is a “correctable flaw” that requires the preparation of a Memorandum For the Record (“MFR”).  Under DOT regulation 49 CFR § 40.205(b)(2):

If the problem is the use of a non-Federal form or an expired Federal form, you must provide a signed statement (i.e., a memorandum for the record). It must state that the incorrect form contains all the information needed for a valid DOT drug test, and that the incorrect form was used inadvertently or as the only means of conducting a test, in circumstances beyond your control. The statement must also list the steps you have taken to prevent future use of non-Federal forms or expired Federal forms for DOT tests. For this flaw to be corrected, the test of the specimen must have occurred at a HHS-certified laboratory where it was tested consistent with the requirements of this part. You must supply this information on the same business day on which you are notified of the problem, transmitting it by fax or courier.

If the correction does not take place, the MRO is required to cancel the test.  49 CFR § 40.205(c).

DOT-regulated employers should consult with their drug testing vendors to ensure that the revised Federal CCF will be utilized on and after August 30, 2021.

The New Jersey Cannabis Regulatory Commission (the “Commission”) published the first set of rules and regulations on August 19, 2021 governing recreational cannabis use in New Jersey (“Personal-Use Cannabis Rules”) under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”).  Those regulations do not include standards for employers to utilize a Workplace Impairment Recognition Expert prior to conducting marijuana drug testing.

Marijuana was legalized for recreational purposes in New Jersey in February 2021.  (See our earlier blog post here).  Under CREAMMA, adult use of marijuana is legal and New Jersey employees are afforded certain protections with regard to off-duty use.  While employers are permitted to test for marijuana under certain circumstances, the CREAMMA imposes a new requirement that work-related marijuana testing include a physical examination conducted by an expert – a Workplace Impairment Recognition Expert (“WIRE”) – trained to recognize drug impairment.  CREAMMA further directs the Commission to establish a certification program for those experts.

The Commission’s 160-page Personal-Use Cannabis Rules largely address the cannabis industry and remain virtually silent as to employer drug testing.  However, the Personal-Use Rules do temporarily waive CREAMMA’s “physical examination” requirement until the Commission, in consultation with the Police Training Commission, “develops standards for a Workplace Impairment Recognition Expert certification.”  § 17:30-2.1 (e) of the Personal-Use Cannabis Rules.  Until then, employers are not required to conduct a physical evaluation of an employee for drug testing purposes.

The Commission did not indicate how long it will take to develop the certification standards or when employers can expect regulations addressing marijuana testing.  In the meantime, New Jersey employers who test or wish to test applicants and employees for marijuana use should consult with  counsel to review their drug testing policies and procedures.

The Pennsylvania Superior Court has found, as a matter of first impression, that medical marijuana users may maintain a private action under the Pennsylvania Medical Marijuana Act (MMA), including a wrongful discharge action.  See Scranton Quincy Clinic Company, LLC, et al. v. Pamela Palmiter, Case No. 498 MDA 2020 (Pa. Super. Ct. Aug. 5, 2021).  As we previously discussed in our summary of the trial court’s decision, the MMA expressly prohibits employers from discharging, or otherwise discriminating or retaliating against an employee solely on the basis  of the employee’s status as an individual who is certified to use medical marijuana. However, it does not create an express private right of action.

The Court determined that the General Assembly “proclaimed a public policy” prohibiting employers from discriminating against medical marijuana users. Adopting the trial court’s reasoning, the Court further found an implied right under a three-part analysis: (1) whether the plaintiff is one of the class for whose “especial” benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny such a remedy; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a cause of action.

The Court also affirmed the trial court’s finding that the MMA can support a claim for wrongful discharge, explaining that the MMA does not provide statutory remedies for aggrieved employees through its administrative enforcement provisions, but the MMA evinces a clear public policy against termination of employment based on medical marijuana use off company premises.

In light of the Court’s decision, Pennsylvania employers should exercise caution when taking adverse action against medical marijuana users.

Registered and authorized patients of medical cannabis in Puerto Rico are considered a protected category for purposes of all employment laws under an amendment to the “Act to Manage the Study, Development and Investigation of Cannabis for Innovation, Applicable Norms and Limitations” signed by Governor Pedro R. Pierluisi on July 29, 2021.   The law took effect immediately.

Under the amendment, Puerto Rico Law 15-2021, employers may not discriminate against registered and authorized patients of medical cannabis in the recruitment, hiring, designation, or termination process or when imposing disciplinary actions.

Exceptions

The provisions of Law 15-2021 will not protect registered and authorized patients of medical cannabis if the employer can establish, by a preponderance of evidence, that:

  1. The use of medical cannabis represents a real threat of harm or danger to others or property;
  2. The use of medical cannabis interferes with the employee’s performance and functions;
  3. Permitting the use of medical cannabis would expose the employer to the risk of losing any license, permit, or certification related to any federal law, regulation, program, or fund; or
  4. The registered and authorized patient made use of or possess medical cannabis during working time or in the workplace without the employer’s written authorization.

Employers’ Protections for Hiring Medical Cannabis Patients

Law 15-2021 protects employers that hire registered and authorized medical cannabis patients from being penalized or denied a contract, license, permit, certification, benefits, or funds under the laws of the Commonwealth of Puerto Rico.

Implications

The provisions of Law 15-2021 are to be interpreted liberally in favor of the registered and authorized patients of medical cannabis.

Further, the Medical Cannabis Regulatory Board and the Department of Labor and Human Resources must adopt any regulations or administrative measures to ensure the effective implementation of Law 15-2021 by October 27, 2021.

Employers should revise their drug testing and discrimination policies to comply with Law 15-2021.

An employer’s failure to notify an employee of the cost of a confirmatory re-test of his original drug test specimen is a violation of the Iowa drug testing law.  Woods v. Charles Gabus Ford, Inc., Case No. 19-0002 (Iowa June 25, 2021).

The Iowa drug testing statute imposes many requirements on employers, including an obligation to notify current employees of confirmed positive test results. The notice must be provided in writing, by certified mail, return receipt requested, and it must inform the employee of the right to request a confirmatory retest of the sample as well as the cost imposed on the employee for the retest (different notice obligations are required for applicants).

In Woods, the employer terminated an employee for testing positive on an employer-required random drug test. The employer sent a letter to the employee informing him of the results of the drug test, his right to request a confirmatory retest, and that he would have to pay for a confirmatory retest. The employer did not specify the cost of the retest (which should be consistent with the employer’s cost for conducting the initial confirmatory test). The employer sent the letter via certified mail, without return receipt requested. The employee filed suit, alleging the employer failed to substantially comply with the notice provisions of the statute.

The Court explained that the “ultimate question” was whether the letter provided notice of the positive test result and a meaningful opportunity to consider whether to request a confirmatory retest.  Under this standard, the employer’s failure to specify the cost of the retest violated the statute. The Court reasoned that the cost of a retest is “vital information for making an informed decision.” It made no difference that the employee testified he might not have asked for a retest had he been informed of the cost – he was aggrieved under the statute because he could not make an informed decision.

As to the employer’s failure to send the letter return receipt requested, the court stated that there was no persuasive distinction between sending mail return receipt requested and sending it by certified mail. Rather, both conveyed the serious nature of the letter, and therefore sending the letter by certified mail substantially complied with the requirements of the Iowa drug testing law.

The Court also reasoned that back pay was appropriate because there was no way to know what the outcome of the retest would have been. The Court also remanded the case for a determination about whether front pay would be appropriate as well.

This case serves as another reminder that Iowa employers must strictly comply with the technical requirements of the state’s drug testing statute.