The Federal Motor Carrier Safety Administration announced on March 13, 2020 that due to the COVID-19 outbreak, an emergency exists that warrants an exemption from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations for certain motor carriers and their drivers.  Specifically, the Emergency Declaration provides regulatory relief for commercial motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for: (1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; (2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants; (3) food for emergency restocking of stores; (4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19; (5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and (6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response. Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390 through 399, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399. However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location. Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

The Emergency Declaration does not provide exemptions from the drug and alcohol use testing requirements (49 CFR Part 382), the commercial driver’s license requirements (49 CFR Part 383), the financial responsibility (insurance) requirements (49 CFR Part 387), the hazardous material regulations (49 CFR Parts 100-180), applicable size and weight requirements, or any other portion of the regulations not specifically exempted under to 49 CFR § 390.23.

The Emergency Declaration is effective until the termination of the emergency or until 11:59 P.M. (ET) on April 12, 2020, whichever occurs sooner.

The New Jersey Supreme Court affirmed an appellate court ruling allowing a medical marijuana user to proceed with his disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”).  Wild v. Carriage Funeral Holdings, Inc., No. 082836 (Mar. 10, 2020).

The plaintiff, a cancer patient and lawful user of medical marijuana, was involved in a motor vehicle accident while at work. He told a hospital physician that he possessed a license to use medical marijuana; however, the physician decided not to order a drug test because “it was clear” that the plaintiff was not under the influence of marijuana at that time.  The plaintiff subsequently was required to submit to drug testing by his employer before returning to work. The employer claimed it terminated the plaintiff’s employment due to his failure to disclose his lawful use of marijuana, not the positive drug test result.

The plaintiff filed a suit alleging disability discrimination and failure to accommodate under the LAD. At that time, the state medical marijuana law (Compassionate Use Medical Marijuana Act, “CUMMA”) did not provide employment protections to users of medical marijuana.

The trial court granted the employer’s motion to dismiss after determining that the CUMMA “does not contain employment-related protections for licensed users of medical marijuana.” But the Appellate Division reversed, as we discussed in our earlier blog post, Medical Marijuana Users May Not Be Discriminated Against In New Jersey.  After that decision, the CUMMA was amended expressly to prohibit employers from taking adverse employment actions against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient. See our article on the amendment, New Jersey Amends Medical Marijuana Law to Provide Job Protections, Include Drug Testing Procedures.

The New Jersey Supreme Court affirmed the Appellate Division’s ruling, concluding that the plaintiff stated a LAD claim that was sufficient to survive a motion to dismiss. Specifically, the plaintiff’s discrimination claims “derived in part from [the plaintiff’s] assertion that, outside the workplace, he lawfully used medical marijuana” for medical reasons, that is, to treat the symptoms of his cancer.  Moreover, there is no conflict between the CUMMA and the LAD, although there are two provisions of the CUMMA that could affect a plaintiff’s claim in certain settings, specifically: (1) the CUMMA does not require an employer to accommodate an employee’s use of medical marijuana in the workplace; and (2) CUMMA does not require an employer to permit any person to “operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.”

The Court’s decision reminds employers to ensure company policies and protocols regarding medical marijuana meet the requirements in the CUMMA (now known as the Jake Honig Compassionate Use Medical Cannabis Act). More importantly, this case serves as a caution to employers that regardless of the language in a state’s medical marijuana statute, a plaintiff may assert a disability discrimination claim in connection with their disability and related use of medical marijuana. Proper policies, compliant protocols, and training for management and human resources professionals are recommended to avoid potential claims.

The U.S. Food and Drug Administration repeated its warning to the public about the potential risks of using CBD products in a statement released on March 5, 2020, FDA Advances Work Related to Cannabidiol Products with Focus on Protecting Public Health, Providing Market Clarity.

The FDA has been evaluating the safety of CBD products for the last year. There are many CBD products on the market such as oil drops, capsules, syrups, food products (such as chocolate bars and teas), cosmetics and other topical lotions and creams, as well as products marketed for pets and other animals. However, the FDA remains concerned that some people wrongly think that the myriad of CBD products on the market have been evaluated by the FDA and determined to be safe, or that using CBD “can’t hurt.” Aside from one prescription drug approved to treat two rare forms of epilepsy, no other CBD products have been evaluated or approved by the FDA.

In particular, the agency recently updated the public on concerns about potential harm from CBD products, including potential liver injury, interactions with other drugs and male reproductive toxicity, as well as side effects such as drowsiness. In addition, little is known about the potential effects of sustained and/or cumulative use of CBD, co-administration with other medicines, or the risks to vulnerable populations like children, pregnant and lactating women, the elderly, unborn children and certain animal populations. The FDA stated that it is “not at a point where we can conclude that unapproved CBD products are safe for use. We encourage Americans to consult with their health care providers before using CBD products.”

The FDA seeks reliable and high-quality scientific research and data regarding CBD and has re-opened its public docket established last year for submission of such research and data.

Another issue that was not addressed by the FDA but which should be noted by users of CBD products is that due to the unregulated nature of these products, they may contain THC – the psychoactive component of marijuana. THC is what causes a positive drug test result for marijuana. A CBD user may test positive for THC on a drug test, even if the user believes that the CBD product has little or no THC in it.

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.”

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.

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.

 

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

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.

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.

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.