Maine Department of Labor Provides No Guidance Concerning the Impact of the State’s Recreational Marijuana Law on Workplace Drug Testing

Effective February 1, 2018, a provision in Maine’s recreational marijuana law impacts workplace drug testing. As we previously blogged here, the law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. On its face, this law effectively prevents Maine employers from testing for marijuana for pre-employment purposes, and has other impacts as well.

After previous indications of clear guidance on the seeming conflict between this new provision and existing Maine drug testing statues and guidance, the Maine Department of Labor recently issued the following public comments regarding the impact of the recreational marijuana law:

In Maine, marijuana is still on the list of what can be tested.  Testing is only allowed if a company has a drug testing policy that has been approved by the Maine Department of Labor (MDOL).  The Department cannot provide legal advice and we encourage employers to consult with private legal counsel regarding the law.  Additionally, since the recreational law is overseen by the Maine Department of Agriculture and medical marijuana law is overseen by Maine Department of Health and Human Services, MDOL can approve testing based on our own law but we cannot say whether taking disciplinary action or refusing to hire someone will violate their laws, which is why the Department recommends seeking legal guidance prior to making those decisions.

Maine employers therefore must continue to make their own informed decisions concerning whether (and when) they should continue to test for marijuana, and whether they can take disciplinary actions for positive marijuana test results. Employers should review their drug testing policies, and consult with counsel, to determine what course of action to take.

Employee’s Failure to Engage in Interactive Process to Address His Use of Opioids Dooms His ADA Claims

An employee who refused to stop using morphine and would not engage in the interactive process with his employer could not survive summary judgment on his disability discrimination and retaliation claims under the Americans with Disabilities Act. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).

The employee, a production manager in a manufacturing environment, worked around heavy machinery. Although the employee spent only a small portion of his time actually working on the machinery (10-20%), the environment was dangerous. The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours. The employee did not have a prescription for Vicodin and obtained pills from coworkers and family members. He also used morphine other than as directed by his prescription on at least one occasion. Although the employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely, the employee failed to do so.  The employee’s opioid use was unknown by the employer for several months.

The employer eventually received a report that the employee had requested a Vicodin from a coworker a few weeks earlier. The employer required the employee to submit to a drug test, and he tested positive for hydrocodone (the opioid found in Vicodin). The employer referred the employee to its Employee Assistance Program and put the employee on leave pending a work release from his physician.

During the employee’s leave, he disclosed his morphine prescription. The employer asked the employee to confer with his doctor about whether there were any alternative treatment options to opioids. Without consulting his physician, the employee told the employer that he needed to stay on his medication and refused to stop taking morphine. The employer indicated the employee could not remain employed if he was using morphine, and the employee’s employment ended following this conversation.  (During his deposition, the employee admitted that the label on his prescription morphine warned against operating heavy machinery).

The employee subsequently filed suit, alleging disability discrimination and retaliation. The employer moved for summary judgment, arguing that the employee caused a breakdown in the interactive process by failing to discuss alternative treatments with his doctor. The employee argued that he could safely perform his job while using morphine, and that the employer failed to conduct a direct threat analysis before denying the request. The court agreed with the employer, however, holding that the employee impeded the employer’s ability to investigate the extent of his disability and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication could reasonably accommodate his disability. Holding that an employer “has the ability to confirm or disprove the employee’s statement[s]” regarding his disability and medical treatment, the court granted summary judgment on the disability discrimination and retaliation claims.

This decision serves as a reminder that an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.  However, employers also must ensure that they conduct individualized assessments, and should not make assumptions about the use of certain drugs without medical evidence.

Federal Court Rejects Constitutional Challenge To Marijuana’s Classification As Schedule I Drug

A federal district court in the Southern District of New York rejected a constitutional challenge to marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act (“CSA”). Washington, et al. v. Jefferson Beauregard Sessions, III, et. al., 17 Civ. 5625 (AKH) (S.D.N.Y. Feb. 26, 2018).

Plaintiffs consisted of a group of individual medical marijuana users and the Cannabis Cultural Association, Inc. (“Association”). They sued the U.S. Attorney General and others, arguing that the CSA’s classification of marijuana as a Schedule I drug – the highest level of classification – is unconstitutional.

The CSA classifies drugs into five different categories, or schedules. These classifications determine the severity of possible criminal penalties as well as the type of controls imposed.  Schedule I drugs have (1) a high potential for abuse; (2) no currently accepted medical use in treatment in the United States, and, (3) a lack of accepted safety for use of the drug or other substance under medical supervision.  21 U.S.C. § 812(b)(1).  The U.S. Attorney General has the authority to classify or reclassify drugs to the various CSA schedules; however, the Attorney General has delegated this authority to the Drug Enforcement Agency.  Interested parties may petition the DEA to reclassify drugs, consistent with medical and scientific data provided by the U.S. Department of Health and Human Services.  If a petitioner receives an adverse ruling from DEA, the petitioner may seek judicial review.  The DEA most recently denied petitions to reschedule marijuana in 2016.

Plaintiffs raised several constitutional arguments in support of their attempt to have the Court rule that the federal government’s ban on marijuana is unlawful. The arguments ranged from claims that the federal government lacked a rational basis for classifying marijuana as a Schedule I substance to allegations that this classification violated the First Amendment because one of the plaintiffs could not travel to speak with Congress about decriminalization of medical marijuana as doing do would have required her to fly on an airplane and enter a federal building, thereby, risking potential arrest for marijuana possession.

While the plaintiffs raised a myriad of arguments in support of their claims that the federal government’s position on marijuana is unconstitutional, the Court rejected all of them. Among other things, the Court held that there is an administrative remedy available to those seeking to reclassify marijuana under the CSA — petitioning the DEA — yet plaintiffs did not avail themselves of this remedy.  The Court further noted that it was not irrational for Congress to have classified marijuana as a Schedule I drug, and that the Second Circuit previously held that Congress had a rational basis to do so.  Most recently, in August 2016, the DEA denied petitions to reschedule marijuana, due to its “various psychoactive effects,” its potential to cause a “decrease in IQ and general neuropsychological performance,” and its potential effects on prenatal development.

The Association also argued that the CSA violates the Equal Protection Clause because it was passed with racial animus. The Court held that the Association lacked standing to advance this claim and that it failed to show that a favorable decision would redress plaintiffs’ alleged injuries.

Employers navigating the ever-changing landscape of marijuana workplace issues should continue to monitor legal developments as we watch the push and pull between state and federal laws continue to play out in the courts. Employers are advised to get ahead of the issue, review applicable state laws, determine their company’s stance on medical marijuana, and set out a thoughtful plan to address potential issues resulting from positive marijuana drug test results before they happen.

Pending California Legislation Alert! Recently Introduced Bill Seeks to Protect Medicinal Marijuana Users from Employment Discrimination in California

Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.  To read the rest of this article, please visit our Disability, Leave & Health Management blog here.

Maine Recreational Marijuana Law Limits Workplace Drug Testing As Well As Disciplinary Consequences Imposed By Employers

A provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. This law effectively prevents Maine employers from testing for marijuana for pre-employment purposes.  The law also affects employers who employ employees subject to federal drug and alcohol testing regulations as well as those employers who are exempt from complying with Maine’s drug testing law.

Background

Maine voters approved the recreational marijuana law in November 2016. The law originally was scheduled to take effect on January 30, 2017. However, emergency legislation passed three days before that date delayed implementation of certain provisions of the law while the legislature reviewed and revised provisions on the retail sales of marijuana. Once the legislature did so, the Governor, on November 3, 2017, vetoed the law. The legislature sustained the Governor’s veto.

However, despite the veto, portions of the recreational marijuana law that were not under review were scheduled to take effect on February 1, 2018. As no action was taken prior to that date to delay or stop implementation of those provisions, they went into effect as scheduled.

Employer Provisions

One of the provisions that took effect on February 1 provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace. Further, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.

However, the law prohibits employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.” This language presents a problem for employers that conduct drug testing, because a drug test does not reveal where someone may have used marijuana. It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property,” because marijuana can stay in the human body for days or weeks.

The Maine Department of Labor is taking the position that employers may not test for marijuana as part of a pre-employment drug test. However, the Department has stated that probable cause (i.e., reasonable suspicion) drug testing for marijuana still is permissible in Maine, because the recreational marijuana law allows employers to discipline employees who are under the influence of marijuana in the workplace.

Impact On Employers Who Are Exempt From Compliance with Maine Drug Testing Law

Employers with employees who are subject to federally mandated drug and alcohol testing regulations already are exempt from compliance with Maine’s drug testing statute with regard to those employees as well as their non-federally regulated employees. 26 Maine Rev. Stat. § 681(8). These employers, however, are not exempt from Maine’s recreational marijuana law. While federal regulations (such as the U.S. Department of Transportation’s drug and alcohol testing regulations) require testing for marijuana, they do not address the employment consequences for testing positive (other than requiring the employee to stop performing safety-sensitive functions). Employers regulated by the Department of Transportation, therefore, must consider what employment consequences will be imposed for positive marijuana test results, keeping in mind that the Maine recreational marijuana law does not permit employers to take adverse actions based on off-premises marijuana use. Additionally, these employers may not test their non-federally regulated employees for marijuana as part of any type of drug test (e.g., pre-employment, post-accident, and random), other than a drug test based on reasonable suspicion in Maine.

Employers that conduct drug testing in Maine should review their drug and alcohol testing policies and ensure compliance with the requirements of the Maine recreational marijuana law. Jackson Lewis attorneys are available to assist employers with this and other workplace issues.

Vermont’s Governor Signs Recreational Marijuana Law

Vermont’s Governor Phil Scott signed a recreational marijuana law on January 22, 2018. The law is the first recreational marijuana law to be enacted by a state legislature without a ballot initiative.  It will take effect on July 1, 2018.

The law eliminates all penalties for possession of one ounce or less of marijuana and permits a person who is 21 years of age or older to grow up to two mature and four immature marijuana plants. However, marijuana may not be consumed in a public place, such as streets, parks, public buildings, places of public accommodation and places where the use of tobacco products is prohibited.  The law also does not protect individuals from prosecution for being under the influence while operating a motor vehicle or consuming marijuana while operating a motor vehicle.

The law does not create a retail marketplace for marijuana.

Importantly for employers, the law provides that it shall not be construed to do any of the following:

  • Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
  • Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
  • Create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
  • Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s premises.

The Governor’s Marijuana Advisory Commission has been directed to report on adopting a comprehensive regulatory structure for legalizing and licensing the marijuana market on or before December 15, 2018, in order to revise drug laws that have a disparate impact on racial minorities, help prevent access to marijuana by youths, better control the safety and quality of marijuana being consumed by Vermonters, substantially reduce the illegal marijuana market, and use revenues to support substance use prevention and education and enforcement of impaired driving laws.

 

Employee’s Refusal to Take Drug Test Could Not Support Age and Gender Discrimination Claims

A federal court in Massachusetts dismissed the age and gender discrimination claims of a long-term employee who was fired after he refused to take a “reasonable suspicion” drug test. Tombeno v. FedEx Corporate Services, Inc., CV. No. 16-cv-40008-TSH (D. Mass. Jan. 9, 2018).

Tombeno worked for FedEx for 22 years as a Business Development Sales Executive. When hired, he signed an agreement permitting the Company to conduct drug and alcohol testing.  Tombeno and his supervisor sometimes drove together for business purposes.  On one occasion his supervisor approached Tombeno’s car and smelled marijuana.  The supervisor sought guidance from Human Resources and a few days later Tombeno was advised to report for drug testing.  He was told that if he refused he could be terminated.  Tombeno subsequently admitted that he was aware of that fact.  Despite knowing he could be terminated, Tombeno refused the drug test.  His employment was terminated.  He was 63 years old at that time.

Tombeno asserted that he was discriminated against due to his age because his replacement was younger and did not perform as well as he did. But the court held that there was no nexus between this assertion and the reason for his termination.

Tombeno also asserted that he was discriminated against due to his gender because his supervisor (a woman) terminated two other men. However, they were terminated for different reasons than Tombeno, and, he could not show any similarly-situated women who had been treated better.

Tombeno’s other claims also were dismissed.

Employers should ensure that their drug and alcohol policies contain language making it clear that refusals to submit to drug and alcohol testing will lead to termination.

U.S. Department of Justice Ends Obama-Era Marijuana Policy

Three days after retail sales of marijuana became legal in California, U.S. Attorney General Jeff Sessions announced today a new marijuana enforcement policy which rescinds long-standing policy set by the Obama Administration.

In a one-page memorandum, Mr. Sessions stated that marijuana is an illegal and dangerous drug, and directed all U.S. Attorneys to enforce the laws enacted by Congress and to follow “well-established principles” when pursuing prosecutions related to marijuana activities. These principles “require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

The memorandum rescinded, effective immediately, guidance set during the Obama Administration including memoranda written by James M. Cole that articulated a hands-off approach with regard to marijuana prosecutions. The Cole Memorandum issued in 2013 noted that while the Department of Justice was committed to the enforcement of the Controlled Substances Act (which makes marijuana illegal), it also was committed to using its limited investigative and prosecutorial resources to address only the most significant threats.  DOJ’s enforcement priorities at that time included:  preventing the distribution of marijuana to minors; preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; and, preventing violence and the use of firearms in the cultivation and distribution of marijuana; among other things.  Outside of those enforcement priorities, DOJ expressed its willingness to rely on state and local governments that enacted marijuana laws to implement “strong and effective regulatory and enforcement systems that will address the threat that those state laws could pose to public safety, public health, and other law enforcement interests.”

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” said Attorney General Sessions. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

It is not immediately clear how the new DOJ policy will be implemented, particularly in light of the fact that President Trump publicly supported medical marijuana in the past, and stated that marijuana legalization should be addressed by the states. Currently, eight states and the District of Columbia have legalized recreational marijuana, and 29 states and the District of Columbia have legalized medical marijuana.

PHMSA Raises Random Drug Testing Rate to 50% for 2018

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration announced December 8, 2017 that during calendar year 2018, the minimum random drug testing rate will be increased to 50%.

Operators of gas, hazardous liquid, and carbon dioxide pipelines and operators of liquefied natural gas facilities must randomly select and test a percentage of all covered employees for prohibited drug use. The minimum annual random drug testing rate was 25% of all covered employees for calendar year 2017.  However, the PHMSA regulations require the Administrator to raise the minimum annual random drug testing rate from 25% to 50% of all covered employees when the data obtained from the Management Information System reports (required to be filed by covered entities under PHMSA regulations) indicate the positive test rate is equal to or greater than 1%.  In calendar year 2016, the random drug test positive test rate was greater than 1%.  Therefore, the PHMSA minimum annual random drug testing rate shall be 50% of all covered employees for calendar year 2018.

U.S. Department of Transportation Publishes Guidance For Updating Drug and Alcohol Testing Policies

The drug testing panel utilized by the U.S. Department of Transportation’s operating agencies will change on January 1, 2018. (Click here to read our blog post on that change).  DOT published guidance on December 1, 2017 to assist employers with regard to updating their drug and alcohol testing policies.  The guidance states as follows:

“The Federal Transit Administration, Federal Motor Carrier Safety Administration, Federal Aviation Administration, Pipeline and Hazardous Materials Safety Administration, Federal Railroad Administration, and U.S. Coast Guard take this position:

There is no need for employers to make any changes if their current DOT policies refer to adhering to “… Part 40.” However, there are exceptions when an employer’s DOT policy lists the following optional information:

  • If sub-categories of drugs tested under the 5-panel are listed – for example, if a policy lists “Opiates (codeine, heroin, & morphine)” and/or “Amphetamines (amphetamine, methamphetamine, MDMA, MDA, MDEA), then “Opiates“ needs to change to “Opioids (codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone, hydromorphone)” and “MDEA” will need to be removed from the list under Amphetamines.  If however, employers would like to delete the sub-categories of drugs, doing so will also be acceptable.
  • Likewise, if cut-off levels are listed in current policies, employers must update those cut-off levels. Again, employers may simply delete the cut-off levels completely and be in compliance if the DOT policy refers to adhering to “… Part 40.”
  • While these DOT Agencies and USCG suggest that employers provide written notice to employees about their updated DOT policies, doing so is an employer’s prerogative.”

DOT-regulated employers should review their drug and alcohol testing policies to determine whether any revisions are required to comply with the changes effective January 1, 2018.

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