Employee’s Request To Revise Drug Policy To Address CBD Use Was Not A Reasonable Accommodation

A federal court in Tennessee dismissed an employee’s lawsuit in which she claimed that her employer should have changed its drug policy to allow CBD use. Hamric v. City of Murfreesboro, Case No. 3:18-cv-01239 (September 10, 2020).

The City of Murfreesboro hired Hamric as a Cultural Arts Program Specialist in August of 2015. Her job duties included teaching children’s art classes and teaching adult artist development courses, among other things. The position subjected Hamric to pre-employment drug testing, for cause testing, random testing and testing for promotions into safety-sensitive positions.

During her employment, Hamric told her supervisor that she used cannabidiol (CBD) to treat anxiety, chronic fatigue syndrome and fibromyalgia, although she did not have a formal medical recommendation to do so.

In 2018, Hamric was recommended for a promotion and was required to pass a drug test. She tested positive for marijuana and blamed the result on her use of CBD.

When Hamric was advised that she likely would be terminated for the failed drug test, she resigned. In her resignation letter, she stated that the city should revise its drug policy to address CBD use. She later filed suit alleging that she was discriminated against on the basis of her disability in violation of the Americans with Disabilities Act as well as the Tennessee Disability Act.

The court dismissed the discriminatory discharge claim because none of the decision-makers were aware that Hamric was disabled. Her failure-to-accommodate claim also was dismissed because she failed to provide evidence that her request to revise the drug policy was necessary to enable her to perform her essential job functions.

U.S. Department of Health and Human Services Proposes Guidelines for Hair Drug Testing

The Substance Abuse and Mental Health Services Administration (SAMHSA), U.S. Department of Health and Human Services (DHHS), proposed scientific and technical guidelines for hair drug testing in federal workplace drug testing programs in the Federal Register on September 10, 2020. The proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Hair (HMG) will allow federal executive branch agencies to collect and test hair specimens for pre-employment drug tests and random drug tests.

Hair has a longer window of drug detection than urine. Hair is easily collected, transported and stored, and is also more difficult to substitute and/or adulterate than urine since collections are performed under direct observation. Hair testing will be limited to pre-employment testing and random testing because hair grows slowly. Drugs generally are not detected in hair for 5 to 7 days after ingestion, so hair testing is not appropriate for reasonable suspicion testing and post-accident testing. DHHS seeks comments as to whether hair testing may be used for return-to-duty or follow-up testing.

A federal agency choosing to test hair specimens must authorize collection and testing of at least one other specimen (e.g., urine or oral fluid) that is authorized under the Mandatory Guidelines For Federal Workplace Drug Testing Programs, and provide procedures whereby the alternate specimen is used in the event that a donor is unable to provide a sufficient amount of hair for faith-based or medical reasons, or due to an in sufficient amount or length of hair.

The collection process proposed by DHHS provides that the hair specimen will be collected by a trained collector under direct observation. The HMG collection procedure requires that a single hair specimen (at least 100 mg of hair) be obtained from the crown of the donor’s head and as close to the scalp as possible. The specimen is divided into two specimens (A and B) that are placed into separate specimen collection containers. DHHS also proposes collecting another specimen simultaneously (urine or oral fluid). This is intended to protect the workers who are tested because hair testing has been subjected to legal challenges in the past. For this reason, DHHS is specifically requesting comments on advances in the science of hair testing that adequately address the limitations of hair testing and elucidate the extent to which hair color, external contamination and other factors will affect hair tests and the interpretation of hair test results. DHHS also is seeking comments as to whether hair tests that are positive for marijuana should be excluded from the requirement to test an alternate authorized specimen.

SAMHSA will accept comments for the next 60 days electronically at http://www.regulations.gov, or by regular mail or overnight mail to SAMHSA, Center for Substance Abuse Prevention, Division of Workplace Programs, 5600 Fishers Lane, Room 16N02, Rockville, MD 20857.

Directly-Observed Urine Collections Do Not Constitute Invasion of Privacy Where Employees Consented to Drug Testing

The Supreme Court of Ohio held that an at-will employee has no cause of action for common law invasion of privacy after the employer required the employee to submit to a directly-observed urine collection drug test.  Lunsford v. Sterilite of Ohio, LLC, slip op. No. 2020-Ohio-4193 (August 26, 2020).

Sterilite is a private employer with a substance abuse policy that requires reasonable suspicion testing, post-accident testing and random testing.  The policy requires urine testing for drugs but is silent as to how the specimens will be collected.  According to the four plaintiffs (two current employees and two former employees), Sterilite began using the direct observation method in October 2016.  Under that method, a same-sex monitor was required to accompany the employee to the restroom to visually observe the employee produce the urine specimen.  Three of the plaintiffs were subjected to random testing while the fourth was subjected to a reasonable suspicion drug test.  All four signed a consent form which did not mention directly-observed collection of the urine specimens.  When they reported for testing, the employees were required to submit to directly-observed urine collections.  All four did so without objection.

The four employees asserted that the directly-observed urine collections violated their privacy because the direct observation method is “highly offensive to a person of ordinary sensibilities.”  Among other things, they argued that by way of comparison, the U.S. Department of Transportation requires directly-observed urine collections only in very specific circumstances, such as when an employee is suspected of tampering with the specimen.

The lower court dismissed the employees’ claims but an appellate court reversed, holding that the employees had a “reasonable expectation of privacy with regard to the exposure of their genitals.”  Sterilite and its drug testing vendor appealed.

The Supreme Court of Ohio held that the facts as alleged by the employees could not sustain a common law invasion of privacy claim, primarily because the employees consented to the drug testing.  Moreover, when the employees reported for testing and were told that the urine collections would be directly observed, they did not object.  In effect, the employees consented a second time when they did not object to the direct observation.  The employees argued that they did not consent because the alternative (if they had not agreed to direct observation) would have been termination.  The Court rejected this argument because the employees were employed at-will.

In a lengthy dissenting opinion, three justices stated that employees have a legitimate expectation of privacy when urinating and direct observation by a stranger is highly intrusive.  Whether Sterilite had a legitimate reason to use the direct observation method was an issue of fact that should not have been resolved through a motion to dismiss.

Quest Diagnostics Study Finds 16-Year High in Positive Workplace Drug Test Results for 2019

According to a new Quest Diagnostics study, employers saw the highest rate of positive workforce drug test results since 2003. As expected, marijuana was the most detected drug, including in states where marijuana remains illegal. The study reported a surge in positive results in the Midwest for cocaine, methamphetamine and marijuana. However, the report found a decline in positive opioid tests for 2019.

The Quest Diagnostics report provided encouraging results on the types of testing triggering positive results. As in prior years, for-cause testing produced the highest percentage of positive results, followed by follow-up and return-to-duty testing. The report also highlighted the industries producing the most positive results – the Retail Trade Industry had the overall highest positive rate and the Other Services category (grantmaking, advocacy, and providing personal services) also had a high rate. The Accommodation and Food Service category had the highest positive rate for marijuana.

While the opioid trend sounds promising, there is concern about how COVID-19 will influence substance use, including opioid use. As Quest Diagnostics observed, COVID-19 may “prove to be an accelerant” on the trend toward overall higher positivity rates. To that end, other sources have reported concern about opioid use during the COVID-19 pandemic. In July 2020, the National Institute on Drug Abuse presented “Effects of COVID-19 on the Opioid Crisis: Francis Collins with Nora Volkow.” Dr. Volkow expressed concern about a 20% spike in overdose reports. However, the numbers are not yet available.

Dr. Volkow explained that COVID-19 can impact recovery in many aspects, including potential loss of a support system, difficulty accessing treatment programs, and a decline in the number of individuals seeking treatment from the emergency room.

The National Institute of Environmental Health Sciences recently published Opioids and the Workplace: Prevention and Response. The institute reported that “in the last two months, at least 30 states have reported increases in opioid fatalities since the start of the pandemic.” The institute also identified multiple COVID-19 related factors that are likely driving these trends, including social isolation, home isolation (e.g., loss of in-person recovery meetings, anxiety, loss of contacts), work related stress (i.e., loss of income, inadequate safety measures, job loss or reduction in hours, fear of being infected with COVID-19 or infecting family members), and work-related ergonomics related to social distancing or remote work. The report also highlights the potential for different impacts in diverse communities.

Due to the COVID-19 pandemic, some employers have decreased or stopped conducting drug testing. However, as the country begins to re-open it may be a good time to reassess the best strategies to minimize drug use in the workplace. One part of the solution includes supporting employees who may be faced with stressful personal circumstances, including offering resources to deal with stress (such as employee assistance programs). It may also be a good time to review drug testing programs and consider how to make those programs more effective in the world of remote work.

EEOC Issues Guidance on Opioid Addiction in Employment

The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on August 5, 2020, addressing accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or may be addicted to opioids. They provide employers insight into how the EEOC envisions information exchange and accommodation efforts.

Use and Misuse of Codeine, Oxycodone, and Other Opioids; Information for Employees is for employees. How Health Care Providers Can Help Current and Former Patients Who Have Used or Misused Opioids Stay Employed is for healthcare providers. The documents are in a question-and-answer format.

The stated purpose of both is to “provide clarity to the public regarding existing requirements under the law.” The guidance documents do not “have the force and effect of law” or “bind the public in any way.” They do not contain any new information about reasonable accommodations under the ADA, but may provide helpful technical assistance now as the opioid epidemic reportedly has worsened during the COVID-19 pandemic.  To read the full article on our website, please click here.

Delaware Court Upholds Denial of Workers’ Compensation Benefits for Medical Marijuana Costs

The compensability of medical marijuana costs for a workers’ compensation claim turns on an individualized inquiry of whether such treatment is reasonable and necessary, and not whether the use of medical marijuana is permissible under state law, according to the Delaware Superior Court.  Nobles-Roark v. Back Burner, Case No. N19A-11-001 ALR (Del. Superior Ct. July 28, 2020).  The court ruled in this case that the Industrial Accident Board (“IAB”) did not err by denying an employee’s claim for medical marijuana costs despite lawfully obtaining medical marijuana under state law.

The employee sustained a back injury at work and received various treatments for pain management, including medical marijuana. The employee then filed a petition for additional workers’ compensation benefits for expenses he paid for medical marijuana treatment. Under the Delaware workers’ compensation law, expenses for medical treatments are compensable if the medical treatment is “reasonable and necessary.”

At the IAB hearing, both the employer and employee presented medical expert testimony. The employer’s expert testified that the employee was not a good candidate for medical marijuana treatment due to unrelated health conditions. The IAB found the employer’s expert more credible and denied the employee’s claim. The employee appealed, arguing the IAB’s decision was inconsistent with the findings in the Delaware Medical Marijuana Act that marijuana has therapeutic value and that the IAB improperly accepted the employer’s expert testimony.

The court rejected the employee’s arguments. The court explained that the issue was not whether the employee may use medical marijuana, but whether he would have to pay for it himself.  Whether a medical treatment is “reasonable and necessary” under the Workers’ Compensation Law must be considered on an individual basis. Therefore, the state’s acknowledgement that medical marijuana is effective for treating some patients does not mandate a finding that it is effective for all patients. The court also concluded the IAB acted within its discretion by making credibility determinations to resolve the experts’ inconsistent conclusions.

FMCSA Announces It May Not Enforce Minimum Required Random Drug and Alcohol Test Rates During 2020

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration issued a Notice of Enforcement Discretion Determination on July 6, 2020 concerning random drug and alcohol testing during calendar year 2020. Due to the coronavirus pandemic, FMCSA stated that it recognizes that covered motor carriers may not be able to comply with certain testing requirements due to the ongoing impacts of the pandemic. For this reason, FMCSA:

. . . may exercise discretion to determine not to enforce the minimum annual percentage random testing rates for drugs and alcohol, and the requirement that each employer ensure the dates for administering random drug and alcohol tests are spread reasonably throughout the calendar year, as set forth in 49 CFR 382.305(b)(1) and (2) and 49 CFR 382.305(k), respectively. FMCSA emphasizes, however, that employers capable of meeting these requirements must continue to do so.

Employers must continue to select drivers at the required rate of 50% of their average number of driver position for controlled substances, and 10% for random alcohol testing during the calendar year 2020. If a test is unable to be completed due to the COVID-19 public health emergency, the motor carrier must maintain written documentation of the specific reasons for non-compliance. For example, employers should document closures or restricted use of testing facilities or the unavailability of testing personnel. Additionally, employers should document actions taken to identify alternative testing sites or other testing resources.

Similarly, employers who are unable to ensure that the dates for administering random controlled substances and alcohol tests are spread reasonably throughout the calendar year should document the specific reasons why they did not meet this requirement. For example, in addition to the lack of available testing facilities or personnel, there may be other factors, such as prolonged or intermittent driver furloughs due to the impacts of COVID-19.

FMCSA further stated that this enforcement discretion determination was intended to provide reasonable flexibility while still meeting the Agency’s core safety mission. In addition, this Notice “creates no individual rights of action and establishes no precedent for future determinations.”

 

New York City Commission on Human Rights Issues Final Rule Regarding Exceptions to Ban on Pre-Employment Marijuana Tests

As discussed in our previous blog post, effective May 10, 2020, covered New York City employers are not permitted to test job candidates for marijuana or tetrahydrocannabinols (THC) as a condition of employment. The law, however, contains exceptions to this general prohibition on preemployment testing and an employer may require testing for job applicants applying for specific types of jobs.

On June 16, 2020, the New York City Commission on Human Rights issued the final rule clarifying the exception for positions deemed to “significantly impact the health or safety of employees or members of the public.” A position is exempt pursuant to this exception if:

  • The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
  • The position requires that an employee regularly operate heavy machinery;
  • The position requires that an employee regularly work on or near power or gas utility lines;
  • The position requires that an employee operate a motor vehicle on most work shifts;
  • The position requires work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment; or
  • Impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.

The text of the final rule, which becomes effective July 24, 2020, can be found here.

Louisiana Expands Access to Medical Marijuana

Louisiana’s governor signed into law on June 11, 2020 a measure amending the state’s medical marijuana law to make it easier for patients to obtain medical marijuana. The current version of Louisiana’s medical marijuana law permits use of medical marijuana to treat only certain specified illnesses. The new law provides that any licensed physician in Louisiana may prescribe medical marijuana “for therapeutic use to any patient clinically diagnosed as suffering from a debilitating medical condition.” The law gives physicians broad latitude to determine what they consider to be “debilitating” for a particular patient. The law takes effect on August 1, 2020.

The governor also signed two additional laws related to medical marijuana. House Bill 418 provides immunity from prosecution to “any facility that is licensed by the Louisiana Department of Health that has patients in its care using medical marijuana.” It further provides immunity from prosecution to physicians who prescribe medical marijuana to their patients. House Bill 211 facilitates the provision of financial services to state-licensed cannabis businesses and prohibits “penalizing” state banks and credit unions who provide such financial services. These laws also take effect on August 1, 2020.

FMCSA Extends Waiver Period For Certain Pre-Employment Drug Tests From 30 to 90 Days

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) announced on June 5, 2020 an extension of the waiver period that is available when a commercial motor vehicle driver has been out of the random testing pool for 30 days or more and then returns to work. Ordinarily, an absence of 30 days or more from the random testing pool triggers a pre-employment drug test upon returning to work. 49 CFR § 382.301. FMCSA now has extended this period to 90 days, given that many employers furloughed drivers during the pandemic but are starting to return employees to work.

FMCSA stated that: “[t]he administrative and cost burdens of pre-employment testing for furloughed drivers outside the random testing pool for more than 30 days falls on motor carrier employers at the very time they are attempting to return to expanded levels of operation. The Agency finds that temporary regulatory relief from this burden will aid in the economic recovery of motor carriers impacted by the COVID-19 public health emergency, without negatively impacting safety. FMCSA also concludes that this waiver will aid in the Nation’s overall economic recovery by enabling the efficient resumption of the transportation of people and cargo throughout the United States.”

This 90-day waiver period is in effect from June 5, 2020 through September 30, 2020.

Employers are reminded that if they wish to take advantage of the waiver (i.e., no drug test), they must comply with all of the requirements of 49 CFR § 382.301(b). Specifically, the employer must ensure that:

  1. The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days [now 90 days]; and
  2. While participating in that program, either:
    (i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
    (ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
  3. The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of 49 CFR Part 382 or the controlled substances use rule of another DOT agency within the previous six months.  Specifically, this last requirement means that the employer must conduct a query of the FMCSA Clearinghouse to ensure that there is no violation that would prevent the driver from performing safety-sensitive duties, and the employer must conduct the safety performance history investigation required by 49 CFR §§ 40.25, 382.413, and 391.23.

In addition, FMCSA requires employers to report accidents involving drivers who drive under this waiver. The report must be made by e-mail to MCPSD@DOT.GOV and must be made within 5 business days of the accident.

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