Governor Gavin Newsome signed into law September 19, 2022 several measures relating to marijuana, including one that prohibits employment discrimination based on off-duty use of marijuana.  The law takes effect on January 1, 2024.

The law will prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment, if the discrimination is based on:

  • The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
  • An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

The law further notes that:

Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.  After THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite.  These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks. . . . While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.

As science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.  These alternative tests include impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.

The law does not further define “nonpsychoactive cannabis metabolites” and it is unclear what “alternative tests” are being referred to as “tests that do not rely on the presence of nonpsychoactive cannabis metabolites.”  While drug tests are being developed to detect recent use of cannabis, at the present time, such tests are not available.

The law does not apply to employees in the building and construction trades.  It also does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or equivalent regulations applicable to other agencies.  The law also does not preempt state or federal laws requiring drug testing of applicants and employees, including law and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Employers should review their drug testing policies to ensure that their practices will comply with the new law by the time it takes effect

The New Jersey Cannabis Regulatory Commission published guidance on September 9, 2022, for employers to address marijuana impairment in the workplace.  The guidance does not, however, provide the long-awaited certification standards for Workplace Impairment Recognition Experts.

In February 2021, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalized adult use recreational marijuana.  The law allows employers to conduct drug testing for marijuana as long as the drug test includes scientifically reliable testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the use of cannabis. The Commission, in consultation with the Police Training Commission, is to prescribe standards for a Workplace Impairment Recognition Expert (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and for assisting in the investigation of workplace accidents. WIRES will be certified by the Commission.

The September 9th Guidance states that the New Jersey Cannabis Regulatory Commission still is formulating standards for WIRES.  In the meantime, the Commission stated that CREAMMA “does not impede the ability of employers to continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug-free workplace policy.”

The Commission further stated that a scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action. In order to demonstrate physical signs or other evidence of impairment sufficient to support an adverse employment action against an employee for suspected cannabis use or impairment during an employee’s prescribed work hours employers may:

  • Designate an interim staff member to assist with making determinations of suspected cannabis use during an employee’s prescribed work hours. This employee should be sufficiently trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report; and, may be a third-party contractor.
  • Utilize a uniform Reasonable Suspicion Observation Report (see sample form provided by the Commission) that documents the behavior, physical signs, and evidence that support the employer’s determination that an employee is reasonably suspected of being under the influence during an employee’s prescribed work hours. The employer should establish a Standard Operating Procedure for completing such a report that includes: (1) the employee’s manager or supervisor or an employee at the manager or supervisor level; and, (2) an interim staff member that has been designated to assist with determining whether an employee is reasonably suspected of being impaired during an employee’s prescribed work hours, or a second manager or supervisor.

Although the Commission provided a sample Reasonable Suspicion Observation Report, if employers already utilize a Reasonable Suspicion Observation Report to determine when drug testing is necessary, they may continue to do so.

Additionally, the Commission stated that an employer may use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.

Finally, the Guidance noted that CREAMMA contains certain exceptions for employers subject to federal contracts, as well as drug testing mandated by federal law, rules and regulations.

Employers should review their drug testing policies to ensure that their practices are consistent with the new Guidance.

The U.S. Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA) published a proposed draft Medical Examiner’s Handbook (MEH), including updates to the Medical Advisory Criteria, in the Federal Register on August 16, 2022.  The FMCSA’s regulations provide the basic driver physical qualification standards for commercial motor vehicle (CMV) drivers, in 49 CFR 391.41 through 391.49. DOT Medical Examiners currently make physical qualification determinations on a case-by-case basis and may consider guidance to assist with making those determinations.

FMCSA stated that the goal of the updated MEH and related Medical Advisory Criteria is to provide information about regulatory requirements and guidance for Medical Examiners to consider when making physical qualification determinations in conjunction with established best medical practices. The revised Medical Advisory Criteria, in addition to being included in the MEH, would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA is proposing to update both the MEH and Medical Advisory Criteria and seeks public comment on these documents until September 30, 2022.  The draft MEH may be viewed here.

Use of CBD with 0.3% THC or Less Is Not Automatically Disqualifying

Under FMCSA regulation 49 CFR 391.41(b)(12)(i), CMV drivers are not permitted to be physically qualified when using Schedule I drugs under any circumstances. The federal Controlled Substances Act lists marijuana, including marijuana extracts containing greater than 0.3% delta-9-tetrahydrocannabinol (THC), as Schedule I drugs and substances. A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational or medical use.

However, under current federal law cannabidiol (CBD) products containing less than 0.3% THC are not considered Schedule I substances; therefore, their use by a CMV driver is not grounds to automatically preclude physical qualification of the driver under §391.41(b)(12)(i).

FMCSA emphasized that the U.S. Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain CBD, so there is no federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.

FMCSA now proposes that each driver should be evaluated on a case-by-case basis and encourages Medical Examiners to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. Medical Examiners may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process, if it is deemed to be helpful in determining whether a driver is using a prohibited substance, such as a CBD product that contains more than 0.3% THC.

This guidance does not impact FMCSA’s drug and alcohol testing regulations.  Use of a CBD product does not excuse a positive marijuana drug test result.

Use of Suboxone and Similar Drugs Is Not Automatically Disqualifying

FMCSA received a large number of inquiries related to Suboxone (a Schedule III drug under federal law, meaning that it has a lower potential for abuse than Schedule I and II drugs).  Treatment with Suboxone and other drugs that contain buprenorphine and naloxone, as well as methadone, are not identified in the FMCSA regulations as precluding medical certification for operating a CMV. FMCSA relies on the Medical Examiner to evaluate and determine whether a driver treated with Suboxone singularly or in combination with other medications should be issued a medical certificate. The Medical Examiner should obtain the opinion of the prescribing licensed medical practitioner who is familiar with the driver’s health history as to whether treatment with Suboxone will or will not adversely affect the driver’s ability to safely operate a CMV. The final medical certification determination, however, rests with the Medical Examiner who is familiar with the duties, responsibilities, and physical and mental demands of CMV driving and non-driving tasks.

Due to the proliferation of state and local laws legalizing marijuana and protecting off-duty use, employers are struggling with whether it makes sense to continue to drug test for marijuana.  Earlier this month I was privileged to record a podcast with the Disability Management Employer Coalition on the topic of “To Test or Not: Employers Question Value of Including Marijuana in Drug Panels.”  In this 30-minute podcast, we discuss the pros and cons of drug testing for marijuana and the legal implications of doing so.  You can listen to the podcast here:

In addition, I wrote a related article that was published in the July/August issue of @work magazine, which you can find here:  Compliance Showcase: Legalized Marijuana in the Workplace – Disability Management Employer Coalition (DMEC).

The Supreme Court of Nevada upheld the dismissal of a lawsuit by an employee who was terminated after testing positive for marijuana on a post-accident drug test.  The Court rejected the employee’s claims that his use of marijuana outside of work hours was “lawful use” under state law.  Ceballos v. NP Palace, LLC, No. 82797 (Nev. Aug. 11, 2022).

The employee worked as a table games dealer at a casino.  After he slipped and fell in the break room, he was required to take a post-accident drug test.  He tested positive for marijuana and his employer terminated his employment.  He subsequently filed suit.

The employee’s first claim alleged that his termination violated the state’s lawful products law.  That law prohibits employers from discharging an employee “because the employee engaged in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.”  The employee argued that he did not use marijuana at work; and because marijuana was decriminalized in Nevada in 2017, his off-duty use was lawful.  The court stated that it had to decide whether off-duty use of marijuana is “lawful” under Nevada state law.

The court held that because marijuana remains illegal under federal law, the employee’s off-duty use of marijuana could not have been “lawful use.”  The court explained that if the legislature intended to protect all off-duty use of marijuana, it could have included the phrase “under state law” in the statute, but it did not.

The employee’s second claim alleged a common law tortious discharge claim based on a public policy violation.  The Court rejected this claim as the case did not fall into the category of “rare and exceptional cases where the employer’s conduct violates strong and compelling public policy.”  Among other things, Nevada’s recreational marijuana law permits employers to adopt and enforce workplace policies prohibiting or restricting the use of marijuana.  If the state legislature had wanted to protect all off-duty use of marijuana, it could have done so.

Rhode Island Governor Dan McKee signed a bill legalizing recreational marijuana in the state on May 25, 2022.  The new law took effect immediately.  Adults age 21 and older now can possess up to an ounce of cannabis, may grow cannabis within their primary residence (up to certain limits) and possess up to 10 ounces of cannabis in addition to live plants. Retail sales may begin as early as December 1, 2022.

The law states that employers are not required to accommodate the use or possession of marijuana, or being under the influence of marijuana, in any workplace or other location where the employee is performing work (including remote work).

Employers are permitted to refuse to hire, terminate, discipline or take other employment action based on an individual’s violation of a workplace drug policy or because the individual was working while under the influence of cannabis. However, employers are generally prohibited from terminating or taking disciplinary action against an employee “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”

There are exceptions if off-duty use is prohibited by the terms of a collective bargaining agreement or if the employer is a federal contractor or otherwise subject to a federal law or regulation such that the failure to terminate or discipline the employee would cause the employer to lose a monetary or licensing benefit under the law or regulation.

In addition, if an employee works in a job, occupation or profession that is “hazardous, dangerous or essential to public welfare and safety,” an employer may adopt and implement policies that prohibit the use or consumption of cannabis within the 24-hour period prior to a scheduled work shift or assignment. Examples of work that falls under this exception include: operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation, the use of explosives, public safety first responder jobs, and emergency and surgical medical personnel.  [But note that drivers of commercial motor vehicles who are subject to the U.S. Department of Transportation’s drug and alcohol testing regulations never may use marijuana and will be disqualified from driving if they test positive for marijuana].

The law also provides for automatic expungement of certain civil and criminal convictions related to the possession of marijuana.  All eligible records will be expunged by July 1, 2024. Employers may not require an employee to disclose a sealed or expunged offense unless otherwise required by law.

In light of the new protections for off-duty use of marijuana in Rhode Island, affected employers should ensure their drug testing policies and procedures comply with the law.

The Centers for Disease Control and Prevention (CDC) published data on May 11, 2022 concluding that drug overdoses in 2021 reached the highest levels on record.  CDC stated that an estimated 107,622 drug overdose deaths occurred in the United States in 2021, largely driven by opioids.  This figure is a 15% increase over the number of overdose deaths in 2020, and a 49% increase in the number of overdose deaths in 2019.  66% of overdose deaths in 2021 involved synthetic opioids such as fentanyl.

Relatedly, the Drug Enforcement Administration made May 10, 2022 the first-ever Fentanyl Awareness Day, intended to educate individuals around the dangerous threat that fentanyl poses to the safety, health, and national security of Americans.  According to the DEA, fentanyl is a synthetic opioid that is approximately 50 times more potent than heroin and 100 times more potent than morphine.  It is classified as a Schedule II narcotic under the federal Controlled Substances Act and is inexpensive, widely available, and highly addictive. Drug traffickers are increasingly mixing fentanyl with other illicit drugs—in powder and pill form—to drive addiction and create repeat customers. Many people who overdose do not even know that they are taking fentanyl.

According to the National Institute on Drug Abuse, fentanyl typically is used to treat pain especially after surgery.  It is also sometimes used to treat patients with chronic pain who are physically tolerant to other opioids.  In prescription form, fentanyl is available as fentanyl “lollipops”, effervescent tablets, sublingual tablets, sublingual sprays, nasal sprays, transdermal patches and injectable formulations.

Fentanyl is not part of a standard 5-panel drug test.  Many employers assume that a generic opioid or opiate test will include synthetic or semi-synthetic opioids, but it does not.  Employers who wish to test for fentanyl must ask their drug testing vendors to test for it separately from the generic opioid panel.

The U.S. Department of Justice (DOJ) published guidance on April 5, 2022 explaining how The Americans with Disabilities Act (ADA) protects people who are in treatment or recovery for opioid use disorder (OUD), including those who take prescription medications as part of that treatment.

The guidance states that individuals in treatment or recovery from opioid use disorder are disabled under the ADA unless they are currently engaged in illegal drug use.  These individuals may be prescribed medications such as methadone, buprenorphine (Suboxone) or naltrexone, among others.  Employers may not discriminate against employees who are in treatment for OUD and who use such medications.  Additionally, employees with a past history of OUD have a “record of” a disability and are protected from discrimination.  The ADA also protects from discrimination those who have a known association or relationship with someone who has a disability such as OUD.

With regard to drug testing, the guidance states that although employers may test for illegal drug use, they may not terminate or deny employment to individuals legally using medication prescribed for OUD unless the use of such medication renders the individual unable to safely or effectively perform the job, or otherwise disqualifies them under another federal law.

In a press release, DOJ stated that “the publication is part of the department’s comprehensive response to the opioid crisis, which promotes prevention, enforcement and treatment.”  DOJ’s press release listed several lawsuits that the Civil Rights Division is pursuing as well as settlements obtained on behalf of individuals with OUD who were discriminated against due to their disability.

Employers should review their anti-discrimination policies and reasonable accommodation policies to ensure that supervisors are trained to recognize that recovering and recovered substance abusers are disabled and may request accommodations under the ADA and comparable state laws.

A federal court in Indiana dismissed an employee’s lawsuit after he tested positive for marijuana due to alleged CBD use and claimed that his termination was discriminatory on the basis of a disability.  Rocchio v. E&B Paving, LLC, and Int’l Union of Operating Engineers Local 103, Case No. 1:20-cv-00417 (S.D. Indiana March 31, 2022).

Rocchio was an engineer who was subject to random drug testing under his employer’s drug testing policy.  The policy required testing for marijuana and also provided for termination in the event of a positive drug test result.

In July 2019 Rocchio was required to take a random drug test and tested positive for marijuana.  He claimed that the positive test result was due to his use of CBD oil.  His employment was terminated in accordance with the Company’s policy.

Rocchio alleged that the employer and the union violated the Americans with Disabilities Act by terminating him and failing to rehire him.  While Rocchio did not dispute that an employer may prohibit illegal drug use, he argued that it violated the ADA to take an adverse employment action against him due to the use of a legal drug.  The court disagreed because there was no evidence that the employer knew that Rocchio was using CBD oil rather than marijuana at the time it made the termination decision.  The employer terminated Rocchio based on objective drug test results that indicated the presence of marijuana compounds.  Although Rocchio claimed that he told the third-party administrator (of the drug testing program) that he was using CBD oil, there was no evidence that that information was provided to the employer.

Rocchio also argued that the employer’s policy of terminating all employees who test positive “categorically regards” them as users of illegal drugs and also regards them as disabled because safety was the rationale for the drug testing policy.  The court stated that “it did not follow” that an employer who conducts drug testing believes that everyone who tests positive is disabled under the ADA.  Moreover, there was no evidence that the employer believed that Rocchio was disabled, or that he was terminated because of any perceived disability.