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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to a new Quest Diagnostic Study analyzing workplace drug test results in 2021, employers saw the highest rate of positive drug test results in twenty years. The study was based on more than 11 million urine, hair and oral fluid drug tests collected during calendar year 2021.  Of the seventeen industries tracked, all but mining saw an increase in overall positivity rates from 2017 to 2021.  Although the overall positivity rates rose by only 1.8% since 2020, they were 12% higher than in 2017 and have risen steadily over the past five years.

Not surprisingly, positive marijuana test rates continue to increase.  Positive urine drug tests for marijuana climbed to the highest rate ever recorded.  Over five years, positivity for marijuana in the general U.S. workforce increased 50%.  Positive marijuana test results doubled or more than doubled in six of the seventeen industries tracked: Transportation and Warehousing; Finance and Insurance; Utilities; Accommodations and Food Services; Retail Trade; and Professional, Scientific, and Technical Services.  Accommodations and Food Services topped the lists with a 7.5 % marijuana positivity rate.

The Retail Trade industry saw the highest overall drug positivity rate at 7% and also saw a 55.6% increase in positive methamphetamine drug tests between 2017 and 2021.

Encouragingly, the positivity rates for heroin and other opioids over the past year decreased or stayed the same across all workforces.

The overall positivity rate for the federally mandated, safety-sensitive workforce (which includes federal employees and certain transportation industry employees) increased in 2021, with notable increases in positive rates for marijuana, amphetamines and cocaine.

Most concerning, over the last five years, all industries experienced a 17.4% increase in positive test results for pre-employment drug tests and a 26% increase in positive test results for post-accident drug tests.  Similarly, in the federally mandated safety-sensitive workforce, pre-employment positivity increased 9.5% since 2017 while post-accident positivity increased 41.9% during that time.

 

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The U.S. Department of Transportation (DOT) published in the Federal Register on February 28, 2022 a notice of proposed rulemaking for oral fluid drug testing of transportation employees covered by federal regulations.  DOT stated that the addition of oral fluid drug testing will give employers a choice to help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the drug testing program.  The proposed rules also are intended to harmonize with the Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid established by the U.S. Department of Health and Human Services in 2020.  Comments on the notice of proposed rulemaking should be submitted by March 30, 2022.

DOT is not proposing to eliminate urine testing; rather, oral fluid testing will be an alternative.  Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use.  Most significantly, DOT’s proposed rule states that the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection for marijuana is 3 to 67 days.  DOT invites comments on the accuracy of these windows of detection.  If accurate, oral fluid testing will provide employers with a method for detecting recent use of marijuana, which will be beneficial for reasonable suspicion testing and post-accident testing.

DOT also proposes training criteria for oral fluid collectors, provides requirements for oral fluid collection sites, sets forth steps that operators of collection sites and collectors must take to protect the security and integrity of oral fluid collections, and outlines the steps for oral fluid collections.  Initial and confirmatory cut-off concentrations for drugs are proposed, and the rules require enough oral fluid to be collected in two separate tubes.  Because oral fluid testing is new, DOT seeks comments on many issues including who should be permitted to collect oral fluid specimens, whether Medical Review Officers should receive additional training for reviewing oral fluid tests, how to handle situations where insufficient oral fluid is provided by the tested individual, among others.

The addition of another specimen for drug testing also will be useful in the event that a second collection is required (e.g., insufficient quantity of urine, temperature is out of range, or insufficient saliva).  While a urine specimen and oral fluid specimen may not be collected at the same time, a different specimen may be collected when there is a problem with an initial specimen collection.  DOT seeks comment as to who should decide whether a different specimen should be collected, and how employers and collection sites should communicate about it.

DOT further proposes allowing Substance Abuse Professionals to conduct evaluations virtually, and to allow direct observation of urine collections by licensed or certified medical professionals when a collector of the same gender is not available.

A federal court in Pennsylvania dismissed the legal claims asserted by a former employee who tested positive for marijuana on a random drug test and who attributed the test result to CBD use.  Lehenky v. Toshiba America Energy Systems Corporation, No. 20-cv-4573 (E.D. PA. February 22, 2022).

The employee alleged that in 2018, she was diagnosed with an inflammatory autoimmune connective tissue disease.  She began using a CBD product after hearing about its effectiveness. She never reported her medical condition, or the use of the CBD product, to her employer.  The employer’s drug and alcohol policy required employees to report the use of medications that could be deemed “illegal” prior to being drug tested.  In January 2019, the employee was selected for a random drug test under the employer’s drug testing policy that had been in effect since at least 2016. One day after taking the drug test, the employee provided a letter from her doctor that stated only that she was treated with CBD which “may have a low level of THC.”  THC is the psychoactive substance in marijuana which can cause a positive drug test result.

The employee tested positive for marijuana and her employment was terminated pursuant to the employer’s policy.  The employee asserted claims of disability discrimination under the Americans with Disabilities Act and the Pennsylvania Human Relations Act.

The court dismissed the employee’s claims for a number of reasons including that the employer did not know the employee was disabled, the employee was not qualified for her position due to the illegal drug use, and there were no facts showing that the employer “regarded” the employee as an illegal drug user.  The court also held that the drug testing policy did not impose a disparate impact on qualified persons with disabilities.  Finally, the court held that a drug test to detect the illegal use of drugs did not constitute an impermissible medical inquiry.

This case highlights the fact that the use of CBD products can cause positive drug test results for marijuana.  While CBD products are marketed and sold everywhere, they are not yet regulated by the U.S. Food and Drug Administration.  These products may claim to have no THC in them or low levels of THC in them, which may or may not be true.  Even at low levels, prolonged use of these products can cause positive marijuana test results.

Some states have laws permitting the medical use of CBD products for certain medical conditions.  Employers should consult with counsel to ensure their drug and alcohol policies address the use of CBD products appropriately under applicable laws.

A federal court in Ohio denied summary judgment to both parties where an employer refused to hire an applicant who used opioid medication as a forklift driver.  The court held that there were disputed issues of fact as to whether the parties participated in the interactive process in good faith and whether the applicant’s opioid use rendered him unsafe to perform the job.  Hartmann v. Graham Packaging, L.P., No. 1:19-cv-488 (S.D. Ohio January 25, 2022).

Hartmann applied for a job as a forklift driver.  He used prescription opioids for pain relief, along with several other medications, which he disclosed during his initial interview.  The employer asked him to provide a doctor’s note that the use of his medications would not create a safety concern.  The applicant’s doctor provided such a note.

The applicant subsequently passed the pre-employment drug test, but the test result was marked “safety-sensitive.”  The applicant was asked to provide another doctor’s note, which he did.  The second doctor’s note was substantially similar to the first one.  The parties disagreed as to what the second note was supposed to address.  The employer discussed the matter further with the applicant and ultimately did not hire him because his medications were a “safety hazard.”

The applicant asserted claims under the Americans with Disabilities Act and Ohio state law.  Both parties moved for summary judgment.

The applicant argued that he was “regarded as” disabled by the employer. The employer argued that it was unaware of the applicant’s disability; rather, it was only aware of the medications he used.  However, the court stated that the negative side effects of medication were enough to constitute an impairment for purposes of the ADA.  It was undisputed that the employer did not hire the applicant due to its belief that the side effects of the applicant’s medication rendered him unable to operate a forklift safely.  That sufficed to show that the applicant was disabled for purposes of a “regarded as” claim.

However, the court found that there was an issue of fact as to whether the applicant was “otherwise qualified” to perform the essential functions of the job.  Although the applicant claimed that he could perform all of the essential job functions, the employer argued that his opioid regimen rendered him a risk to the “health and safety” of others.  But the court stated that it was not clear whether the employer conducted an “individualized inquiry” concerning the applicant’s ability to perform the job duties safely.  While the employer had internal discussions regarding the applicant’s medications and doctor’s notes, the details of those discussions were vague. Moreover, it was unclear whether the employer asked for a more specific doctor’s note which the applicant failed to provide, or, whether the employer failed to specify exactly what it needed the applicant to provide in terms of medical documentation.  As a result of the disputed issues of fact, the Court denied summary judgment.

This case highlights the importance of engaging in the interactive process in good faith, on an individualized case-by-case basis, when addressing the use of prescription medications by applicants and employees in safety-sensitive jobs.

Mississippi Governor Tate Reeves signed legislation legalizing medical cannabis on February 2, 2022. Known as the “Mississippi Medical Cannabis Act”, the law permits the use of medical cannabis to treat certain debilitating medical conditions including cancer, Parkinson’s disease, Huntington’s disease, muscular dystrophy, HIV/AIDS, hepatitis, ALS, Crohn’s disease, ulcerative colitis, sickle-cell anemia, Alzheimer’s disease, dementia, post-traumatic stress disorder, autism,  cachexia or wasting syndrome, chronic pain, severe or intractable nausea, seizures, severe and persistent muscle spasms, among others.  The law was effective immediately upon signing by the Governor, although medical cannabis will not become available for months.

Medical cannabis products will include cannabis flower, cannabis extracts, edible cannabis products, beverages, topical products, ointments, oils, tinctures and suppositories.

The medical cannabis law contains many favorable provisions for employers.  Specifically:

  1. Employers are not required to permit or accommodate the medical use of medical cannabis, or to modify any job or working conditions or any employee who engages in the medical use of cannabis, or seeks to engage in the medical use of cannabis;
  2. Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment as a result, in whole or in part, of that individual’s medical use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis;
  3. Employers are not prohibited from establishing or enforcing a drug testing policy;
  4. Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.
  5. The law does not interfere with, impair or impede any federal requirements or regulations such as the U.S. Department of Transportation’s drug and alcohol testing regulations;
  6. The law does not permit, authorize or establish an individual’s right to commence or undertake any legal action against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis;
  7. Employers and their workers’ compensation carriers are not required to pay for or to reimburse an individual for the costs associated with the medical use of cannabis;
  8. The law does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code Section 71-3-201 et seq.;
  9. The law does not affect, alter or otherwise impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code Sections 71-3-7 and 71-3-121;
  10. The law does not authorize an individual to act with negligence, gross negligence, recklessness, in breach of any applicable professional or occupational standard of care, or to effect an intentional wrong, as a result, in whole or in part, of that individual’s medical use of medical cannabis;
  11. The law prohibits smoking and vaping medical cannabis in a public place or in a motor vehicle;
  12. The law prohibits operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, motor boat or other conveyance in a manner that would violate state or federal law as a result, in whole or in part, of that individual’s medical use of medical cannabis; and,
  13. The law does not create a private right of action by an employee against an employer.

Mississippi employers should review the law to determine whether any revisions to drug and alcohol testing policies or other workplace policies will be necessary.

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2022.  The random test rates did not change, except for maintenance-of-way workers under the Federal Railway Administration’s regulations.

 

Agency 2022 Random Drug Testing Rate 2022 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 25% maintenance-of-way 10% maintenance-of-way

Federal Transit Administration

 

 50% 10%

Pipeline and Hazardous Materials Safety Administration

 

 50% N/A

 

 

A federal court in Pennsylvania granted an employer’s motion for summary judgment dismissing a former employee’s Pennsylvania Medical Marijuana Act (PMMA) claim because he could not show that his termination was premised solely on his status as a certified user of medical marijuana.  Matthew Reynolds v. Willert Mfg. Co., LLC, No. 5:21-cv-01208 (E.D. Pa. October 19, 2021).

The employee received a conditional offer of employment contingent upon the successful completion of a drug test and began working on October 16, 2020.  The drug test was performed off-site by a third-party vendor.  Upon submitting to the drug test, the employee informed the individual performing the drug screening that he was a medical marijuana patient.  After testing positive for marijuana, he also informed the medical review officer (MRO) of his status as a medical marijuana patient.  The MRO reported the positive drug test results to the employer but did not mention the employee’s status as a medical marijuana patient.  Based on the positive drug test result, the employer terminated the employee on November 5, 2020.  Immediately after his termination, the employee informed the employer—for the first time—that he was a medical marijuana patient.  The employer declined to reverse its termination decision based on the newly obtained information that the now former employee was a registered medical marijuana patient.

In February 2021, the employee filed a state court action for discrimination pursuant to the PMMA.  The employer subsequently removed the action to federal court and moved for summary judgment asserting that the “uncontroverted facts indicate that” the employer’s decision to terminate the employee was not based solely on the employee’s status as a medical marijuana patient.

The Court agreed with the employer, reasoning that the PMMA “indicates that it prohibits discrimination ‘solely on the basis of such employee’s status as an individual who is certified to use medical marijuana,’” and does not explicitly or implicitly protect against discrimination on the basis of a positive marijuana drug test result.  The Court reasoned that to prevail on a discrimination claim under the PMMA, the employee “must show (1) he was discriminated against on the basis of his status as a cardholder, and (2) that but for his status, he would not have been terminated.”  Because there was no evidence that the employer was aware of the employee’s status as a medical marijuana patient prior to his termination, the Court could not logically conclude that the termination was based upon such status.

In an attempt to impute the testing site’s knowledge of the employee’s status as a medical marijuana patient to the employer, the employee argued that the testing site was an agent of the employer.  The Court rejected this argument, explaining that an agency relationship exists only where an agreement creates a fiduciary relationship between the two parties.

The Court further opined that even if the employee “could show his termination was motivated by his status as a medical marijuana user, [the employee] failed to provide facts that would allow a reasonable jury to find that his status was the sole basis of his termination.  Accordingly, the Court granted the employer’s motion for summary judgment.