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.

U.S. Department of Health and Human Services Publishes Standards For Oral Fluid Drug Testing

The U.S. Department of Health and Human Services (DHHS) published scientific and technical guidelines for oral fluid drug testing in federal workplace drug testing programs in the Federal Register on October 25, 2019. The Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid (OFMG) allows federal executive branch agencies to collect and test oral fluid specimens, and establishes standards and technical requirements for oral fluid collection devices, including initial and confirmatory oral fluid drug test cut-off concentrations and methods, among other things. The Guidelines will take effect on January 1, 2020.

Some agencies, such as the Department of Transportation, are required to follow the Mandatory Guidelines in developing drug testing programs for their regulated industries. We anticipate that DOT’s operating agencies will implement regulations adopting the new Guidelines into their respective testing programs.

DHHS stated there are many reasons why oral fluid testing will be beneficial including: (1) urine testing often poses obstacles, such as adulteration and assessment of medical conditions preventing the production of a urine specimen; (2) oral fluid collection does not require secured restrooms or other special requirements that urine testing requires; (3) all oral fluid collections will be conducted under direct observation which should substantially lessen the risk of substitution and adulteration; (4) oral fluid collection saves time when compared to urine specimen collections; and, (5) oral fluid testing may provide more insight into recent drug use shortly before or at the time the specimen is collected.

Noting that the number of products on the market to adulterate urine specimens continues to proliferate, DHHS stated that the scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been established and it may be used with the same level of confidence that has been applied to urine testing.

A federal agency may collect oral fluid specimens for pre-employment, random, reasonable suspicion/cause, post-accident, return-to-duty and follow-up drug tests. The OFMG requires a specific volume of oral fluid to be collected and provides for split-specimen collections. Collectors must be trained to collect oral fluid specimens in accordance with the OFMG. There are requirements for oral fluid specimen collection devices and collection procedures, including procedures to be followed when a tested individual claims that he or she cannot provide an oral fluid specimen. DHHS-certified laboratories and Medical Review Officers must ensure that they follow the OFMG.

Oklahoma Court Holds That Positive Marijuana Drug Test Did Not Prove That Marijuana Caused Accident

An Oklahoma state court held that a positive post-accident drug test for marijuana did not prove that marijuana use caused the accident, and therefore the claimant was eligible for workers’ compensation benefits. Rose v. Berry Plastics Corp. et al., 2019 OK Civ. App. 55 (Ok. Civ. Ct. App. Oct. 16, 2019).

Claimant Dillon Rose’s left hand and wrist were crushed in a “guillotine” machine while working as a machine operator for his employer. He was subjected to a post-accident drug test and tested positive for marijuana and morphine.   Rose’s workers’ compensation claim initially was denied due to the positive drug test results. At a hearing before an administrative law judge (ALJ), Rose admitted that he smoked marijuana the night before the accident but denied that its use was a factor in the accident the next day. On the day of the accident, Rose worked for a few hours and testified that no supervisors remarked that he was or appeared to be impaired. While he acknowledged that putting his hand inside the machine was unsafe, he testified that he was “thinking clearly” and was not impaired. A manager employed by the employer testified that he had no knowledge of Rose being intoxicated. The ALJ ruled that the employer should provide medical treatment and temporary benefits.

The employer sought a review before the Workers’ Compensation Commission, which reversed and ruled that Rose was not entitled to benefits.

Upon review of the WCC decision, the state court ruled that the WCCC erred by concluding that Rose’s testimony was “self-serving.” Rather, the WCC was supposed to determine whether there was “clear and convincing evidence” to support the ALJ’s finding that intoxication had no causal relationship to the injury. There was no evidence to refute Rose’s statements about the circumstances of the accident.

The state court also held that the WCCC erred when it stated “we are not convinced” that Rose was clear-headed at the time of the accident and that the chemicals in his system may have affected his “judgment, physical and cognitive facilities at the time of the accident.” The court rejected the WCCC’s “inference that the mere presence of marijuana in Claimant’s blood stream inevitably means he was intoxicated. . . . the presence of an intoxicating substance in the blood does not automatically mean that person is intoxicated.”

The state court reversed and reinstated the ALJ’s order providing benefits to Rose.

Pennsylvania Public Policy Did Not Bar Termination of Nuclear Power Plant Employee Who Tested Positive For Alcohol

A federal district court in Pennsylvania held that public policy did not bar termination of a nuclear power plant employee who tested positive for alcohol. Bennett v. Talen Energy Corp. et al., No. 3:19cv521 (M.D. Pa. Oct. 11, 2019).

Plaintiff worked at a nuclear power plant as a production foreman. The Nuclear Regulatory Commission (“NRC”) requires all nuclear power plants to adopt Fitness For Duty (“FFD”) programs that address Unescorted Access (“UA”) requirements for employees that enter secure areas of a nuclear facility. In addition, drug and alcohol testing is required. On February 15, 2018, plaintiff submitted a urine sample under the FFD program, which revealed a blood alcohol level above the permitted level in violation of the program. As a result of the violation, plaintiff’s UA authorization was withdrawn for a minimum of 14 days, but the employer’s medical review officer assured plaintiff he would return to work before March 31, 2018. Instead, on March 23, 2018, plaintiff’s employment was terminated. Plaintiff also lost his UA status and could not get a job at another nuclear power plant.

Plaintiff filed suit, alleging wrongful termination in violation of Pennsylvania public policy. Specifically, he asserted that he was terminated after his first violation of the FFD program without being allowed to enter the employer’s Employee Assistance Program (“EAP”). In support of his position, plaintiff argued that Pennsylvania public policy favors allowing employees with alcohol or drug-related issues to complete treatment for first offenses before being terminated. He further argued that NRC regulations required NRC licensees to refer to an EAP employees who violated FFD protocol and restore the employees’ UA once the program is completed. The Court held that a plain reading of the regulation imposed no such duty, and therefore public policy did not require the employer to refer plaintiff to an EAP. Thus, the court dismissed his wrongful discharge claim.

Plaintiff also asserted a violation of NRC regulation 10 C.F.R. § 26.75, which provides that for the first violation of a FFD involving a drug or alcohol test, an employee’s UA must be terminated for a minimum of 14 days. An employer, however, may impose a more stringent sanction for a first-time violation. Since the employer did not enact a more stringent policy, Plaintiff argued that his UA badge should have been restored to him 14 days after his suspension. But the court stated that Pennsylvania courts and the Third Circuit have held that there is no private right of action for violations of the NRC regulations relating to drug testing and security clearance investigations and dismissed this claim as well.

National Safety Council States That “No Level of Cannabis Use Is Safe Or Acceptable” For Safety-Sensitive Positions

The National Safety Council, a nonprofit organization whose stated mission is to eliminate preventable deaths at work, in homes and communities through leadership, research, education and advocacy, published a Position/Policy Statement on October 21, 2019 addressing cannabis (marijuana) impairment in safety-sensitive positions. NSC stated that “it is clear that cannabis impacts psychomotor skills and cognitive ability,” and concluded that “there is no level of cannabis use that is safe or acceptable for employees who work in safety-sensitive positions.” (“Safety-sensitive” refers to jobs that impact the safety of the employee and the safety of others as a result of performing that job).

NSC stated that cannabis is the most widely consumed illicit substance worldwide. According to a 2018 study by the National Institute on Drug Abuse, employees who tested positive for cannabis had:

  • 55% more industrial incidents
  • 85% more injuries
  • 75% greater absenteeism compared to those who tested negative.

Noting that cannabis affects the body in a number of ways including disorientation, impaired judgment, lack of concentration, slowed fine motor skills and delayed decision-making, among others, NSC supports moving employees to non-safety-sensitive positions when they use marijuana for medical reasons. [We recommend consulting with counsel before doing so to ensure compliance with applicable laws].

While also noting that more research is needed to better understand the effects of cannabis, NSC stated that there is evidence that legalization or decriminalization of marijuana may increase vehicle crash rates and hospitalizations. It cited a Rocky Mountain High Intensity Drug Trafficking Area study that found the yearly rate of emergency department visits related to marijuana increased 52% after the legalization of recreational marijuana in Colorado. Another study done by the Insurance Institute for Highway Safety examined 2012-2016 police-reported crashes before and after the retail sales of cannabis began in Colorado, Oregon, and Washington. That study estimated that those three states combined saw a 5.2% increase in the rate of crashes per million vehicle registrations, compared with neighboring states that did not decriminalize or legalize marijuana sales. In 2017, the NSC Alcohol, Drug and Impairment Division issued a position statement concluding that cannabis degrades driving performance.

Although NSC acknowledged that the amount of THC detectable in the body does not directly correlate to a degree of impairment, NSC believes that it is unsafe to be under the influence of cannabis while working in a safety-sensitive position due to the increased risk of injury or death to the operator and others.

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