U.S. DOT Issues Warning Regarding Use Of CBD Products By DOT-Regulated Employees

The U.S. Department of Transportation Office of Drug and Alcohol Policy Compliance published a notice on February 18, 2020 concerning the use of hemp and cannabidiol (CBD) products by safety-sensitive employees regulated by DOT’s agencies (including the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Administration, as well as the U.S. Coast Guard). Among other things, ODAPC stated the following:

“The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act.  Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances.  THC is the primary psychoactive component of marijuana.  Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products.  Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include:  pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

    1. The Department of Transportation requires testing for marijuana and not CBD.
    2.  The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.”  The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”  Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
    3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana.  Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”

Employer’s Request to Count Employee’s Prescription Medication Sufficient to Support Invasion of Privacy Claim

A federal court in Alabama held that an employer’s request to count an employee’s prescription medication – in connection with a drug test that the employee passed – supported the employee’s claim for invasion of privacy. Effinger v. Birmingham-Jefferson County Transit Authority, Case no. 2:19-cv-00766-KOB (N.D. Al. Jan. 23, 2020).

The plaintiff was a former employee employed as a bus driver for the Birmingham-Jefferson County Transit Authority. According to the bus driver, she was required to undergo a drug test that was labelled a “post-accident drug test” on a form that she was made to sign (even though she had not been involved in an accident). She then was required to submit to a directly-observed urine collection and suspended pending receipt of the drug test result.

A week later, the bus driver returned to work to discuss her drug test result, which she had passed. The employer required her to bring her medications with her. The bus driver brought empty containers for her birth control and another medication that was prescribed to be taken “as needed” when off-duty since her involvement in a bus accident five years earlier. The employer’s Human Resources representative told the bus driver that she was required to bring the actual medication to work so that the Human Resources representative could count it. The bus driver refused, because she thought that the handling of her medication would be unsanitary and unnecessary.

The bus driver’s employment subsequently was terminated, allegedly due to a perception that she was “mentally ill” and posed a “direct threat” of harm. She filed suit, alleging among other things that she was “regarded as” disabled, and that the request to count her medication constituted an invasion of privacy.

The employer made a motion for judgment on the pleadings which the court denied. Specifically, the court held that the bus driver adequately pled that she was terminated based on a perception that she was disabled, i.e., mentally ill.   Moreover, she adequately pled her invasion of privacy claim. The court held that “a reasonable person could find that a coerced investigation of medication meant to be ingested, constitutes a highly offensive intrusion into personal affairs that would cause outrage or mental suffering.” In addition, a reasonable person could find the request to count the medication suspect given that the bus driver already had passed the drug test.

DEA’s National Drug Threat Assessment Shows Marijuana Potency and Demand Increasing; Black Market Operations Thriving

The U.S. Department of Justice’s Drug Enforcement Administration published its 2019 National Drug Threat Assessment on January 30, 2020. The DEA’s annual report is a comprehensive strategic assessment of the threat posed to the United States by domestic and international drug trafficking and the abuse of drugs. It compiles data from many sources, including drug seizures, laboratory analyses, information on the involvement of organized criminal groups, and survey data provided to DEA by state and local law enforcement agencies across the country.

Highlights of the DEA’s report include the following:

  • Marijuana remains the most commonly used illicit drug in the United States. Most states that have legalized marijuana have placed no limits on the Tetrahydrocannabinol (THC) potency of marijuana or its associated concentrate products. (THC is the psychoactive component of marijuana). Consequently, THC potency continues to increase, as does demand. Mexico remains the most significant foreign source for marijuana available in the U.S., but domestic marijuana production and availability continues to rise. Black market marijuana production by criminal trafficking organizations continues to increase, predominantly in states that have legalized marijuana. The popularity of marijuana use, the demand for increasingly potent marijuana and marijuana products, the potential for substantial profit, and the perception of little risk entice diverse traffickers and criminal organizations to cultivate and distribute illegal marijuana throughout the U.S.
  • Drug poisoning deaths are the leading cause of injury death in the U.S. In 2017, drug poisoning deaths reached their highest recorded level (information for 2018 and 2019 was not available) and, every year since 2011, have outnumbered deaths by firearms, motor vehicle crashes, suicide and homicide.
  • Fentanyl and other highly potent synthetic opioids – primarily from China and Mexico – continue to be the most lethal category of illicit substances misused in the U.S. Fentanyl continues to be sold as counterfeit prescription pills as traffickers are increasingly selling fentanyl to users both alone and as an adulterant, leading to rising fentanyl-related deaths.
  • Heroin-related overdose deaths remain at high levels in the U.S., due to continued use and availability. Heroin-only overdose deaths declined in 2017, while heroin-fentanyl overdose deaths continued to climb.
  • Controlled Prescription Drugs are still responsible for most drug overdose deaths and are the second most commonly abused substances in the U.S.
  • Methamphetamine remains widely available, with traffickers attempting to create new customers by expanding into new, non-traditional methamphetamine markets such as the Northeast, or other bases with new product forms.
  • Cocaine is a resurgent threat in the U.S. and cocaine-involved overdose deaths continue to climb, primarily due to the continued spread of fentanyl into the cocaine supply.

 

DOT Random Drug and Alcohol Testing Rates for 2020

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2020. The Federal Motor Carrier Safety Administration has raised its random drug testing rate to 50% for 2020. All other random testing rates remain unchanged from 2019.

 

Agency 2020 Random Drug Testing Rate 2020 Random Alcohol Testing Rate
Federal Aviation Administration

 

25% 10%
Federal Motor Carrier Administration

 

50% 10%
Federal Railway Administration

 

25% covered service 10% covered service
Federal Railway Administration 50% maintenance-of-way 25% maintenance-of-way
Federal Transit Administration

 

50% 10%
Pipeline and Hazardous Materials Safety Administration

 

50% N/A
United States Coast Guard*

 

50% N/A

* part of Dept. of Homeland Security

Pennsylvania Court Holds Employees May Sue Under Medical Marijuana Act

A Pennsylvania state court held that the state’s Medical Marijuana Act creates a private right of action for medical marijuana users to sue their employers. Pamela Palmiter v. Commonwealth Health Systems, Inc., Civ. Action No. 19 CV 1315 (Pa. Ct. C.P. Lackawanna County, Nov. 22, 2019).

The employee, Pamela Palmiter, was employed as a medical assistant. To treat her chronic pain, migraines and persistent fatigue, she became a medical marijuana patient in accordance with Pennsylvania law in December 2018. She immediately informed her employer. The employer was being acquired by another entity, and Ms. Palmiter claims that she was told her use of medical marijuana would not affect her employment. In connection with the acquisition, Ms. Palmiter was required to undergo a drug test. Soon thereafter, she was advised that she was not permitted to work because of her drug test result.

Ms. Palmiter asserted claims for violation of the Pennsylvania Medical Marijuana Act (“MMA”), breach of contract, invasion of privacy, violation of public policy, and intrusion on seclusion. The employer argued that Ms. Palmiter could not pursue a private right of action under the MMA, that she had no employment contract, and that there was no public policy violation, among other things.

The MMA provides that “[n]o employer may discharge . . . or otherwise discriminate or retaliate against an employee . . . solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” Because the law does not expressly grant or deny a private right of action to an aggrieved employee, the court undertook a 3-part analysis to determine whether the statute provides a private remedy. Specifically: (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. Among other things, the court found persuasive cases in other states ruling that there was an implied cause of action under the state medical marijuana law. E.g., Noffsinger v. SSC Niantic Operating Co, LLC, (D. Conn. 2017); Callaghan v. Darlington Fabrics Corp., (R.I. Super. 2017); Chance v. Kraft Heinz Foods Co., (Del. Super. 2018); Whitmire v. Wal-Mart Stores, Inc., (D. Ariz. 2019). Like these other courts, the Pennsylvania court held that “[w]ithout the availability of an implied right of action for an employee who is fired solely for being certified as a medical marijuana user, the anti-discrimination directive in [the MMA] would be rendered impotent.”

The court also held that the termination “implicates a clear mandate of public policy” because the law prohibits employers from using an employee’s status as a medical marijuana user as a basis for termination.

While this case is not binding on all other courts in Pennsylvania, employers should consider carefully all adverse employment decisions involving medical marijuana users.

New Jersey Court Orders Employer to Reimburse Worker for Medical Marijuana Expenses in Workers’ Compensation Case

In a case of first impression, the New Jersey Appellate Division held that it was appropriate for a workers’ compensation judge to order an employer to reimburse its employee for his medical marijuana expenses as part of his workers’ compensation case. Vincent Hager v. M&K Construction, Docket No. A-0102-18T3 (N.J. App. Div. January 13, 2020).

The employee, Vincent Hager, suffered an injury while working for M&K Construction in 2001, when a truck delivering concrete dumped the load onto him. Mr. Hager apparently suffered severe lower back pain that radiated through his legs, caused by herniated and annular discs in his spine, as well as nerve damage, causing chronic pain. The employee sought treatment, including spinal surgeries and opioid pain relief treatment, which were ultimately unsuccessful. M&K Construction and its insurer repeatedly denied workers’ compensation benefits.

As an alternative to opioid pain medication, Mr. Hager began treating with medical marijuana prescribed to him by an authorized physician. The use of medical marijuana provided pain relief to Mr. Hager, helped him sleep and curb his opioid pain medicine consumption. Mr. Hager paid approximately $616 per month out-of-pocket for his prescription, and his treating physician testified that he would need medical marijuana to manage his pain “for the rest of his life.” Other medical experts testified that Mr. Hager was partially disabled due to his workplace accident.

A workers’ compensation judge determined that Mr. Hager’s medical condition and consequences related to it were causally related to his accident at work; and that he exhibited permanent partial total disability of 65%, with 50% attributed to his orthopedic condition and 15% attributed to the effects of medical marijuana. The workers’ compensation judge ordered M&K Construction to reimburse petitioner for the costs of medical marijuana and any related expenses.

M&K Construction appealed, arguing that enforcement of the federal Controlled Substances Act (“CSA”)—which criminalizes the manufacture, possession, or distribution of marijuana and has no exception for medical marijuana—preempts the New Jersey Compassionate Use Medical Cannabis Act (“CUMMA”), because it is “impossible to comply with both statutes.” M&K Construction further argued that the CUMMA would require it to aid and abet the employee’s commission of a crime, that is, the possession of marijuana.

The New Jersey Appellate Division disagreed, determining that there was no conflict preemption between the CSA and the CUMMA, because “it is not physically impossible to comply with the CSA and the [CUMMA].” Rather, the Appellate Division found that “[u]nder the CSA, the possession, manufacture, and distribution of marijuana is a criminal and punishable offense. But an employer’s reimbursement of a registered [medical marijuana] patient’s use of medical marijuana does not require the employer to commit those offenses.” The Appellate Division also noted that the employer could not point to any evidence of federal prosecution of employers or insurance carriers for reimbursement of authorized medical marijuana treatment, and that a such speculative argument could not support a finding of conflict preemption. Moreover, the court noted that the federal government has not demonstrated any intention of enforcing the CSA in any state that has decriminalized marijuana.

The court similarly rejected M&K Construction’s argument that the CUMMA would require it to aid and abet the employee in the commission of a crime, reasoning that M&K Construction’s reimbursement of the employee’s medical marijuana costs will not satisfy the specific intent threshold needed for aiding and abetting liability. While the CUMMA expressly provides that a health insurer is not required to reimburse a person for the costs associated with medical marijuana, health insurance does not include workers’ compensation coverage.

The court further found that the employee’s use of medical marijuana was reasonable and necessary, because he suffered severe chronic pain and all other previous treatment modalities had failed to alleviate that pain. In addition, it allowed the employee to cease using opioids.

This case continues the trend of court rulings holding that marijuana’s status as an illegal drug under federal law is no obstacle to the enforcement of state medical marijuana laws. Employers should be aware of the legal issues that may arise when employees use medical marijuana in the jurisdictions in which they do business.

Iowa Drug Testing Statute Provides Exclusive Remedy For Violations; Separate Wrongful Discharge Claim Is Barred

Addressing a matter of first impression, the Iowa Supreme Court determined that “when a civil cause of action is provided by the legislature in the same statute that creates the public policy to be enforced, the civil cause of action is the exclusive remedy for violation of that statute.” Ferguson v. Exide Technologies, Inc., et al, Case No. 18-1600 (Iowa Dec. 13, 2019). Therefore, a plaintiff who brings a claim for a violation of the Iowa drug testing statute cannot also bring a wrongful discharge claim based on the same conduct.

The employee, a wet formation operator (who was required to lift up to 2300 car and tractor batteries in a single shift), sustained workplace injuries associated with repetitive lifting. After the employee was diagnosed with “tennis elbow” in both arms, the employer requested that she submit to a drug test pursuant to the employer’s drug testing policy. The employee refused to take the test. The employer terminated the employee’s employment the next day.

The employee subsequently filed a lawsuit alleging violation of the Iowa drug testing statute and a claim for wrongful discharge in violation of public policy. The employer admitted violating the drug testing statute but denied liability (the employee was reinstated). On summary judgment, the employer argued that the wrongful discharge claim was preempted by the Iowa drug testing statute. The district court disagreed, and granted summary judgment in favor of the employee on both claims. The case proceeded to a jury trial on damages.

A jury awarded the employee nearly $46,000 in back pay, $12,000 in emotional distress, and $35,000 in attorneys’ fees (associated only with the Iowa drug testing statute claim), which we blogged about here. Under the Iowa drug testing statute, an aggrieved employee only can recover back pay and attorneys’ fees. The employee could not have recovered emotional distress without the wrongful discharge claim.

On appeal, the Iowa Supreme Court reversed the district court, holding that the drug testing statute could not serve as the basis for a wrongful discharge claim. The Court analyzed its prior decisions involving wrongful discharge claims based on statutes that provide a remedy. The Court made a distinction between statutes that provide for administrative remedies and those that provide civil remedies, reasoning that administrative remedies “do not provide the level of protection, control and the right to process involved in the court system.”

The Court explained that the original purpose of the common law claim for wrongful discharge was to “provide a court remedy to enforce legislatively declared public policy.” If the legislature has already “weighed in on the issue” by providing a civil remedy in a statute, the wrongful discharge claim becomes “unnecessary.”

The Court affirmed the district court’s award of attorneys’ fees, but remanded the case with a direction to enter judgment in favor of the employer on the employee’s wrongful discharge claim, vacate the portions of the jury’s damage award that would be available under a common law tort theory, and uphold those portions authorized by the Iowa drug testing statute.

The Court’s decision is significant for Iowa employers. Wrongful discharge claims can expose an employer to back pay, emotional distress and punitive damages. An employee can also request a jury trial on a wrongful discharge claim, which is not available under some statutes, such as the drug testing law. This combination can have a tremendous impact on employers in Iowa, as six-figure emotional distress jury awards have become more commonplace throughout the state.

It is now clear that employees cannot double dip — when a statute provides for civil remedies, those remedies are exclusive. And, an employer’s risk under the notoriously complex Iowa drug testing law will not include emotional distress or punitive damages.

FMCSA Raises Random Drug Testing Rate to 50% For 2020

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced on December 27, 2019 that beginning on January 1, 2020, the minimum annual percentage rate for random drug testing is 50% of the average number of driver positions. The minimum annual percentage rate for random alcohol testing will remain at 10%.

FMCSA-regulated employers also are reminded that compliance with the FMCSA Clearinghouse requirements begins on January 6, 2020. At that time, covered employers must be prepared to do the following:

Queries of New Hires/Transfers: Employers must query the Clearinghouse before allowing a newly-hired commercial motor vehicle driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers must sign a consent form allowing the employer to do so.

Annual Queries of Current Employees. Employers must query the Clearinghouse at least once per year for each driver they currently employ. Drivers must sign a consent form allowing the employer to do so. The employer must maintain records of all queries and information obtained in response to the query, for a period of three years. (As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement).

Reporting of Drug and Alcohol Program Violations. Employers must report drivers’ drug and alcohol program violations (listed in the bullet points above) to the Clearinghouse within three business days after the employer learns of the information.

Employers must prohibit drivers who have violated FMCSA’s drug and alcohol program regulations from performing safety-sensitive duties unless the driver has complied with the return-to-duty process set forth at 49 CFR Part 40, Subpart O.

Revise Drug and Alcohol Testing Policies. In addition to registering with the Clearinghouse, FMCSA regulations require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver applicants that the following information will be reported to the Clearinghouse:

  • A verified positive, adulterated, or substituted drug test result;
  • An alcohol confirmation test with a concentration of 0.04 or higher;
  • A refusal to submit to a drug or alcohol test;
  • An employer’s report of actual knowledge, as defined at 49 CFR § 382.107;
  • On duty alcohol use pursuant to 49 CFR § 382.205;
  • Pre-duty alcohol use pursuant to 49 CFR § 382.207;
  • Alcohol use following an accident pursuant to 49 CFR § 382.209;
  • Drug use pursuant to 49 CFR § 382.213;
  • A SAP’s report of the successful completion of the return-to-duty process;
  • A negative return-to-duty test; and,
  • An employer’s report of completion of follow-up testing.

Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense).

Illinois Legislature Clarifies Cannabis Act to Protect Employers Engaged in Workplace Marijuana Testing

Marijuana will become legal recreationally in the State of Illinois on January 1, 2020. The Cannabis Regulation and Tax Act, enacted last June, raised questions on the scope of marijuana drug testing that may be conducted by employers. On December 4, 2019, Governor J.B. Pritzker signed amendments to clarify workplace drug testing and other issues, including protections for an employer’s drug testing policy.

Cannabis Regulation and Tax Act

The Act allows Illinois residents at least 21 years old to possess up to 30 grams of marijuana flower and 5 grams of marijuana concentrate for personal use.

Clarification

Whether the Act allows an employer to maintain a zero-tolerance drug-free workplace policy had been under debate, especially in light of Illinois’ Right to Privacy in the Workplace Act, which prohibits an employer from disciplining an employee for his or her use of “lawful products” off-the-clock.

As amended by Senate Bill 1557 (Public Act 101-593), the Act does not create or imply a cause of action against an employer for:

Actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test. 410 ILCS 705/10-50(e)(1).

The new law makes clear that employers may continue conducting reasonable and nondiscriminatory pre- and post-hiring and random drug tests for marijuana. However, the new provision does not define “reasonable” or provide any further clarification on the interplay between the Act and the Right to Privacy in the Workplace Act. Still, the Act appears to control over the protections provided in the Right to Privacy in the Workplace Act, because of the caveat that:

Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. 820 ILCS 55/5(a).

Employers should review their drug testing policies and consider whether to conduct pre-employment, reasonable suspicion, post-accident, or random drug tests for marijuana after it becomes legal in Illinois on January 1.

Shifting cultural acceptance of marijuana in general and of marijuana as a “lawful product” in Illinois should have employers considering whether subjecting applicants to marijuana drug tests will result in fewer capable and talented job applicants if competitors do not conduct pre-employment marijuana testing. Random and reasonable suspicion marijuana testing also may pose problems because a positive test result does not necessarily prove impairment at work or active marijuana usage as marijuana can stay in the body much longer than other drugs.

Other Provisions

Other provisions in the Act unaffected by the recent amendments contain additional protections and requirements for employers. For example, the Act does not interfere with an employer’s ability to receive government contracts or grants and workers in positions regulated by the Department of Transportation (DOT) are still subject to the DOT’s requirements.

All employers may prohibit impairment during work, as well as the possession and use of marijuana on their premises. However, an employer who elects to discipline an employee based on a good-faith belief the employee is under the influence of marijuana at work “must afford the employee a reasonable opportunity to contest the basis of the determination.”

Issues to Consider

Although “reasonable workplace drug policy” and “reasonable opportunity” are not defined in the Act, employers should consider certain issues in drafting or revising their drug-testing and drug-free workplace policies. These include:

  • Having a standalone drug testing policy that addresses the types of tests to be conducted, the discipline to be imposed for policy violations, and so on.
  • Reviewing the nature of the job duties involved to determine whether to subject a job applicant or employee to a drug test for marijuana. For individuals in safety-sensitive positions, including where public safety is at issue, random drug tests are more likely to be considered “reasonable” than for individuals working in a typical office environment.
  • Treading carefully with reasonable suspicion drug tests. Before subjecting an employee to a test for marijuana, establish a good-faith belief of impairment based on the employee’s “manifestation of specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others.” To this end, train supervisors to make reasonable suspicion determinations properly. All reasonable suspicion determinations should be documented.
  • If intending to discipline any employee on the basis that the employee is under the influence or impaired by marijuana, give the employee a reasonable opportunity to contest the basis of the determination. Employers should consider providing employees seven days to respond to a positive marijuana drug test result because of an allegation of on-the-job impairment, or involvement in an accident, before taking disciplinary action.
  • When dealing with employees who are prescribed medical marijuana, additional considerations may be at issue. (See our article on Illinois’ Compassionate Use of Medical Cannabis Program Act.)

Next

Given the complexity of the issues raised by the law, Illinois employers should review their drug-testing policies and practices to ensure they are compliant, provide supervisors with training on how to recognize impairment at work, and consult with counsel to determine the risks in testing for marijuana based on the employee’s job duties.

Jackson Lewis attorneys are available to answer any questions about the Act and to assist in crafting a drug-free workplace policy that best fits your business.

Drug and Alcohol Testing Policy Check-Up – Are You Ready for 2020?

2020 is on the horizon, and employers must be ready to comply with many new developments in the world of workplace drug and alcohol testing. Here is a summary of significant laws that will take effect in 2020 (and some that have already taken effect):

Illinois Recreational Marijuana LawThe Cannabis Regulation and Tax Act will go into effect on January 1, 2020. The Act will allow anyone over the age of 21 to possess, use, or buy marijuana. More significantly, marijuana will be considered a “lawful product” for purposes of the Illinois Right to Privacy Act, which bars discrimination against employees and applicants for using lawful products off-duty and off of the employer’s premises.

Although marijuana will be considered a “lawful product,” the Act expressly permits employers to conduct “reasonable suspicion” and post-accident drug testing for marijuana, in accordance with the requirements of the Act. Specifically, an employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

While it initially appeared that the Act did not authorize pre-employment marijuana testing or random marijuana testing, the Act was amended on December 4, 2019, to permit employers to drug test for marijuana on all of these tests and to take disciplinary action for positive marijuana test results.

Nevada Law Prohibiting Pre-Employment Marijuana Tests – Effective January 1, 2020, pre-employment drug testing for marijuana is illegal in the state of Nevada. The law does not apply to applicants who apply for positions as firefighters, emergency medical technicians, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others.”

The law does not apply if it conflicts with the provisions of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law, and further does not apply to positions funded by a federal grant.

The law further provides that if an employer requires an employee to submit to a drug test within the first 30 days of employment, the employee shall have the right to submit to an additional drug test, at his or her own expense, to rebut the results of the initial test. The employer “shall accept and give appropriate consideration to the result of such a screening test.”

New York City Law Prohibiting Pre-Employment Marijuana Tests – Effective May 10, 2020, the New York City Human Rights Law will prohibit pre-employment marijuana drug tests. The law will not apply to applicants for certain types of jobs, including:

  • Police officers or peace officers, or other jobs with law enforcement or investigative functions at the department of investigation;
  • Positions requiring compliance with Section 3321 of the New York City Building Code or Section 220-h of the Labor Law (pertaining to certain types of construction and maintenance jobs);
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in Social Services Law Section 488(15) (certain individuals with physical and cognitive disabilities);
  • Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.

The law specifically does not apply drug testing required by:

  • Any regulations promulgated by the U.S. Department of Transportation that require pre-employment drug testing, as well as any state or city regulations that adopt the DOT rules;
  • Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

New Jersey Law Requires Written Notice To Individuals Who Test Positive For Marijuana – In New Jersey, the medical marijuana law was amended in July 2019 to prohibit employment discrimination against medical marijuana users. It is still permissible for New Jersey employers to prohibit marijuana use during work time and on Company premises. However, the law now requires employers to provide written notice to all applicants and employees who test positive for marijuana. The written notice must give the applicant or employee an opportunity to provide a “legitimate medical explanation for the positive test result.” Thereafter, within three working days after the employee or applicant receives the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or may request retesting of the original specimen at the employee or applicant’s expense. The legitimate medical reason may include authorization for medical marijuana use by a health care provider, proof of registration for medical marijuana use, or both.

Oklahoma’s Medical Marijuana Law Was AmendedOklahoma’s medical marijuana law was amended in August 2019 to clarify certain regulatory aspects of the state’s existing medical marijuana law. Under Oklahoma law, employers cannot refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of the applicant’s or employee’s status as a medical marijuana licensee. Moreover, an employer may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana, unless: (1) the applicant or employee is not in possession of a valid medical marijuana license; (2) the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations [the law does not define “under the influence”]; or, (3) the position is one involving safety-sensitive job duties. “Safety-sensitive” is defined to mean any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:

  • The handling, packaging, processing, storage, disposal or transport of hazardous materials;
  • The operation of a motor vehicle, other vehicle, equipment, machinery or power tools;
  • Repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage;
  • Performing firefighting duties;
  • The operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution;
  • The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component;
  • Dispensing pharmaceuticals;
  • Carrying a firearm; or,
  • Direct patient care or direct child care.

FMCSA Clearinghouse – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration’s Clearinghouse will become operational on January 6, 2020. Beginning on January 6, 2020, FMCSA-covered employers must use the Clearinghouse to report commercial motor vehicle drivers’ drug and alcohol program violations (identified in the final rule). They must also query the Clearinghouse for new hires upon hire and annually for current employees. Employers are required to revise their drug and alcohol testing policies to list the drug and alcohol violations that will be reported to the Clearinghouse.

Oral Fluid Testing Finally Approved by DHHS – After a long wait, the U.S. Department of Health and Human Services issued its Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid on October 25, 2019. The Guidelines establish standards for oral fluid drug testing for federal employees and will take effect on January 1, 2020. Because DOT is required to follow the Mandatory Guidelines in developing drug testing programs, we expect all of the DOT operating agencies to implement their own regulations adopting the oral fluid testing Guidelines sometime in 2020. Many employers will welcome oral fluid drug testing, as it is quicker than urine testing, offers less opportunity for adulterating or substituting specimens, and may provide more insight into recent drug use.

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