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.

Rhode Island Court Upholds “Reasonable Grounds” Drug Testing Even Where There Is Another Possible Explanation For Employee’s Behaviors

The Rhode Island Supreme Court affirmed the dismissal of a lawsuit against an employer who terminated an employee for refusing to submit to a reasonable suspicion drug test, even though the employee’s odd behaviors could have been attributable to pain or other things. Colpitts v. W.B. Mason Co., Inc., No. 2018-337-Appeal (R.I. May 29, 2020).

The plaintiff, Michael Colpitts, claimed that his former employer required him to take a drug test, allegedly without “reasonable grounds” as required by the Rhode Island drug testing law, R.I. Gen. Laws § 28-6.5-1(a)(1). That law permits testing when the “employer has reasonable grounds to believe, based on specific aspects of the employee’s job performance and specific contemporaneous documented observations, concerning the employee’s appearance, behavior or speech that the employee may be under the influence of a controlled substance, which may be impairing his or her ability to perform his or her job.”

Colpitts was employed as a supply delivery driver for W.B. Mason. He began using medical marijuana for pain as well as post-traumatic stress disorder in 2017, but he testified that he never used marijuana while working and never was impaired at work. He also did not disclose to his employer in 2017 that he had begun using medical marijuana. On March 5, 2018, Colpitts alleged that he injured his arm and back while effecting a delivery as part of his job. When he returned to the worksite and reported his injury, he was questioned by his supervisor and the branch manager. They determined that he might be impaired due to their observations that Colpitts: was stuttering and swearing excessively, was “jumping all over the place,” was confused and had difficulty describing his injuries, did not speak in complete sentences, was staggering and bending over, and stating “I’m f***ed up,” among other things. After his supervisor and branch manager advised Colpitts that he would have to go for drug testing, he insisted that he was “fine” and “got very agitated.” On the way to the collection facility, Colpitts disclosed that he used medical marijuana and that he would probably test positive for marijuana. Once he arrived at the collection facility, Colpitts refused to be drug tested but agreed to an alcohol test. The alcohol test was negative. His employment was terminated because he violated Company policy by refusing the drug test.

After a trial, the court ruled in favor of the employer, finding the employer’s witnesses to be credible and further finding that Colpitts’ “incoherent recitation,” “volatile behavior,” and “the use of profanity” was sufficient to support “reasonable grounds” for drug testing under Rhode Island law.

On appeal, Colpitts argued that there was no evidence that he was under the influence of drugs, and that his behaviors were due to the pain that resulted from his injuries. The Supreme Court held that the trial justice did not abuse her discretion in ruling in favor of the employer. Moreover, the Supreme Court did not agree with Colpitts’ argument that because his behavior “could” have been pain-related, there was no basis for drug testing. Even if his odd behavior had been due to pain, rather than drugs, the employer still had reasonable grounds to believe that Colpitts may have been under the influence of drugs. The Rhode Island drug testing statute does not require an employer to be certain that an employee is under the influence of drugs or alcohol.

Pennsylvania Court Allows Unemployment Benefits For CBD User

A Pennsylvania court affirmed an order of the Unemployment Compensation Board of Review holding a claimant to be eligible for unemployment benefits after her employer terminated her employment for testing positive for marijuana. Washington Health System v. Unemployment Compensation Board of Review, No. 886 C.D. 2019 (May 11, 2020).

The Claimant was employed as a licensed Occupational Therapist and was subject to random testing under her employer’s drug and alcohol testing policy. On March 26, 2018, she was required to undergo a random drug test, which was positive for marijuana (according to her employer). Prior to the test, Claimant disclosed that she used cannabidiol (CBD) that she purchased over-the-counter to manage her cancer-related symptoms. The employer notified Claimant that she tested positive for marijuana and terminated her employment.

The employer did not submit the drug test result into evidence during the unemployment proceeding; however, Claimant testified that she was told that she tested positive for marijuana. Claimant denied using marijuana, but admitted that she used CBD and asserted that the use of CBD is “legal.” Claimant further testified that a doctor told her that CBD could cause a “false positive” test result for marijuana.

The Board of Review held that it was the employer’s burden to prove that the Claimant violated the drug and alcohol testing policy. It stated that the use of CBD oil with a THC concentration of .3% or less would be legal. Given that there was no evidence of the drug test result or the THC concentration in Claimant’s test result, the Board found that she was eligible for unemployment benefits.

The Court affirmed for the same reasons. Although the employer tried to argue that Claimant “admitted” she tested positive, she merely testified that she was told she tested positive. The drug test result was not entered into evidence. Moreover, the Claimant denied any illegal drug use. Therefore the employer failed to carry its burden of proof.

In addition, the Court stated that the employer failed to show that the ingestion of CBD oil would have affected the Claimant’s ability to perform her job safely, and failed to prove that CBD is a prohibited controlled substance.

A dissenting opinion noted, among other things, that the Court’s conclusions about the “legal” sale of CBD oil and its statements about the percentage of THC were irrelevant. The employer’s policy prohibited coming to work under the influence of drugs, and further defined that term as any amount of a drug that triggers a positive test result. Moreover, the dissent stated that Claimant’s subjective belief that CBD oil is “legal” was also irrelevant.

This case highlights the fact that there are conflicting opinions about whether CBD is a legal substance. Moreover, the widespread availability of CBD products leads many people to assume that these products are legal, when they have not yet been approved by the FDA and the amount of THC that they may contain is uncertain.  Employers should review the applicable laws in the states where they do business and should review their drug and alcohol testing policies to address CBD use by employees.

New York City Human Rights Law Ban On Pre-Employment Marijuana Testing Takes Effect

The New York City Commission on Human Rights issued a written reminder on May 8, 2020 that the law prohibiting pre-employment marijuana testing is effective on May 10, 2020.   In addition, the Commission stated that it is finalizing rules that will expand the list of exceptions to the law.  The Commission’s statement provided:

As of May 10, 2020, covered employers are not permitted to test job candidates for marijuana or tetrahydrocannabinols (THC) as a condition of employment. There are several exceptions, discussed further below, where testing job applicants for marijuana or THC for specific kinds of jobs is still permitted.

Q.  May an employer still test current employees for drug use, despite the prohibition on pre-employment testing for marijuana?

A.  Yes. The law prohibits employers from testing job applicants for marijuana or THC, with some exceptions. However, it does not change employers’ ability to drug test current employees.

Q.  May an employer discipline its employees for bringing drugs to the workplace or for coming to work under the influence of marijuana or THC?

A.  Yes. The law does not limit employers’ ability to ensure that their workplaces remain drug-free through policies, discipline, and other measures.

There are some exceptions to this law. Employers may require tests for job applicants applying for specific types of jobs. Testing is permissible where:

  1. Required by the U.S. Department of Transportation under 49 C.F.R. Part 40 or related state and local rules (e.g., flight crew and train dispatchers) (as defined in the applicable DOT rules);
  2. Required by the federal government as a condition of receiving a contract or grant;
  3. Required by federal or state law “for purposes of safety or security”;
  4. A collective bargaining agreement includes terms related to pre-employment drug testing of job applicants;
  5. The position falls into one of these categories:
  • Police officers
  • Peace officers (as defined in NY Criminal Procedure Law § 1.20)
  • Law enforcement or investigative positions at the NYC Department of Investigation
  • Positions covered by New York City Building Code § 3321, which covers certain workers at building sites
  • Positions covered by New York Labor Law § 220-h, which covers certain workers at public work sites
  • Positions requiring a commercial driver’s license
  • Positions supervising or caring for children
  • Positions supervising medical patients
  • Positions supervising vulnerable persons (as defined in NY Social Services Law § 488(15).

The Commission is finalizing rules that will expand the list of exceptions to include the following positions:

  • Positions that regularly work on active construction sites
  • Positions that regularly operate heavy machinery
  • Positions that regularly work on or near power or gas lines
  • Positions that drive motor vehicles on most work shifts
  • Positions that fuel an aircraft, provide information regarding aircraft weight and balance, or maintain or operate aircraft support equipment
  • Positions where drug impairment would pose an immediate risk of death or serious physical harm to the employee or to other people.

For claims arising between May 10, 2020 and the date when the rules are finalized, the Commission will not be filing enforcement actions related to the above-listed positions.

New York City employers should review their drug testing policies and practices and revise as necessary.

FMCSA Proposes New Licensing Rules To Prevent Driving By CMV Drivers With Drug and Alcohol Program Violations

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) published a notice of proposed rulemaking (NPRM) on April 28, 2020 seeking to prohibit State Driver’s Licensing Agencies (SDLAs) from issuing, renewing, upgrading, or transferring a commercial driver’s license (CDL) or commercial learner’s permit (CLP) for individuals prohibited from driving a commercial motor vehicle due to drug and alcohol program violations identified by the FMCSA’s Clearinghouse.

The FMCSA Clearinghouse is an electronic database that contains information about commercial motor vehicle drivers’ drug and alcohol program violations. It became operational on January 6, 2020 and within the first weeks of operation identified nearly 8,000 positive drug and alcohol test results. (Click here to read our earlier posts about the Clearinghouse). Prior to the establishment of the Clearinghouse, it was incumbent on drivers and their employers to ensure that drivers who violated the drug and alcohol program rules did not drive commercial motor vehicles. Now that the Clearinghouse is operational, both FMCSA and SDLAs have access to this information in real time.

The NPRM seeks to establish how, and when, SDLAs would access and use driver-specific information from the Clearinghouse to ensure that drivers who violate drug and alcohol rules stay off the road until they complete the DOT return-to-duty process set forth at 49 CFR Part 40, Subpart O. Currently, there is an information gap where a driver can continue to hold a valid CDL or CLP while prohibited from operating a commercial motor vehicle due to the drug or alcohol rule violation. The major provisions of the proposed rule are as follows:

  • Non-Issuance: If an SDLA’s query to the Clearinghouse prior to issuing, renewing, upgrading or transferring a CDL indicates the driver is prohibited from operating a commercial motor vehicle, the proposed rule would require the SDLA to deny the licensing transaction, resulting in non-issuance. A driver whose transaction is denied would have to reapply after completing the return-to-duty requirements.
  • FMCSA’s Preferred Enforcement Alternative – Mandatory Downgrade: Upon receiving a “push” notification from the Clearinghouse that a driver is prohibited from operating a commercial motor vehicle, the SDLA would be required to remove the CLP or CDL privilege of that driver. This downgrade (from “licensed” to “eligible”) would align the driver’s licensure status with his or her driving status under the regulations.
  • Alternative # 2 – Optional Notice of Prohibited Status: This option would permit, but not require, SDLAs to receive “push” notifications from the Clearinghouse when a driver is prohibited from driving due to a drug or alcohol violation. The SDLA would also be notified when the driver has completed the return-to-duty process and is able to resume operating a commercial motor vehicle. This option provides States with maximum flexibility to determine how to use Clearinghouse information to enhance enforcement of the driving prohibition.

The NPRM also would revise how an employer’s report of actual knowledge of a driver’s drug or alcohol use to the Clearinghouse, based on the issuance of a citation to the driver for DUI in a commercial motor vehicle, is handled. First, the employer’s report would remain in the Clearinghouse, regardless of whether the driver is ultimately convicted of the offense. The reason is that a driver violates Part 382, subpart B, when he or she receives a citation for a DUI in a commercial motor vehicle; a subsequent conviction carries separate consequences under Part 383. Second, drivers who are not convicted of the offense could petition FMCSA to add documentary evidence of that fact to their Clearinghouse record.

FMCSA is accepting public comments on the NPRM until June 29, 2020.

New York Employers: Engage In The Interactive Dialogue With Medical Marijuana Users

A New York state court denied summary judgment to an employer that terminated an employee for testing positive for marijuana, when the employee obtained a medical marijuana certification prior to the termination decision. Gordon v. Consolidated Edison, Inc., Index No. 152944/2019 (Sup. Ct. NY County Apr. 21, 2020).

Kathleen Gordon was subjected to a random drug test by her employer on December 21, 2016. She tested positive for marijuana and her employment was terminated on January 11, 2017. However, after she took the drug test but before she was terminated, she became a certified medical marijuana patient to treat her inflammatory bowel disease. Gordon asserted disability discrimination claims against her employer, specifically: violations of the New York Human Rights Law, New York City Human Rights Law, and the New York medical marijuana law. The New York medical marijuana law provides that medical marijuana users are disabled for purposes of the New York Human Rights Law, which prohibits discrimination against disabled employees.

The employer moved for summary judgment. Among other things, the employer argued that Gordon took the drug test before she became a medical marijuana patient. Moreover, Gordon admitted that she smoked marijuana on December 21, 2016, before obtaining the medical marijuana card several days later. The employer therefore determined that Gordon’s marijuana use (at the time of the drug test) was illegal marijuana use that violated the employer’s policies against illegal drug use. Additionally, the employer argued that it had a past practice of terminating employees for positive drug test results when they had been employed for six months or less (as Gordon was), although there was no express language in their drug testing policy to that effect. The employer also provided evidence that it did not take adverse employment actions against other employees who used medical marijuana.

Gordon argued that the employer knew about her irritable bowel syndrome as well as her plans to obtain a medical marijuana card and that it had an obligation to accommodate her, rather than terminating her employment.

The Court denied summary judgment to the employer on the termination claim because there were issues of fact as to the reasons why Gordon was terminated. Specifically, the Court stated that it was clear that the employer learned about Gordon’s disability (i.e., her medical marijuana certification) prior to the decision to terminate – even though she became certified after the drug test. Moreover, the employer’s policy did not expressly state that all employees who had been employed for six months or less would be terminated for a policy violation.

Additionally, the Court denied summary judgment on the reasonable accommodation claim because the employer did not show that it had engaged in any “interactive dialogue” with Gordon.

The employer further argued that accommodating Gordon would create an “undue hardship” because it would be required to violate the federal Drug-Free Workplace Act, which requires employers to prohibit illegal drug use by their employees. The court disagreed, holding that there were issues of fact, given that the employer did not terminate employees who violated the drug policy if they had been employed for more than six months.

While this case is not binding on all other courts in New York, employers should consider carefully all adverse employment decisions involving medical marijuana users, and should ensure that managers are trained to engage in the “interactive process” with disabled employees, including medical marijuana users. Additionally, employers should make sure that their written drug testing policies are clear, particularly as to disciplinary issues.

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