Missouri Employer Had Just Cause To Terminate Union Employee Who Tested Positive For Marijuana, Despite Lack of Workplace Impairment

A Missouri-based manufacturer of animal pharmaceuticals had just cause to terminate a 37-year employee who tested positive for marijuana despite the union’s argument that the employee’s personal use of CBD oil and marijuana did not cause impairment at work.  Virbac Corporation and International Brotherhood of Electrical Workers, Local 1, (January 10, 2020) (Horn, Arb.)

The employer required the employee, a maintenance electrician and member of the company’s safety committee, to submit to a drug test as part of a return-to-duty physical following a 47-day medical leave of absence. The employer’s policy required drug testing at the end of any medical leave lasting more than 30 days. The employee tested positive for marijuana. He admitted that he used marijuana during his medical leave to help him sleep and he further admitted that he used CBD oil to help with arthritis and chronic back pain. However, the employee was not a licensed medical marijuana user under Missouri law.

The drug test was subject to confirmatory testing, and a Medical Review Officer attempted to reach the employee before certifying the results. Due to the employee’s failure to respond, the Medical Review Officer reported the test result as positive. The employer then suspended the employee pending investigation, giving the employee an opportunity to provide documentation to explain the test result. The employee failed to do so, and the employer terminated the employee.

The employer routinely terminated employees when they tested positive for drugs, including marijuana.  The employee was familiar with the 30-day drug testing rule and had been tested under that rule once before, without complaint.

The employee filed two union grievances regarding the termination. During the initial grievance meetings, the employee claimed he tested positive for marijuana due to lawful CBD oil use. However, during the arbitration, the employee admitted that he smoked marijuana both before he was tested and after he was tested and returned to work. The employee’s medical records also revealed that he asked his doctor about medical marijuana, but the employee’s doctor suspected he was attempting to “further his addiction.”

The arbitrator determined that the employer met its burden of showing just cause, reasoning that the legalization of marijuana “whether medicinal or recreational,” does not require employers to embrace the use of “legal” marijuana products. The arbitrator further found that the Department of Human Health and Services’ testing thresholds are “effective, lawful and enforceable,” and do not require “impairment.” The arbitrator recognized the employee’s significant tenure with the company, but ultimately found the employee’s dishonesty regarding his marijuana use was an aggravating circumstance and that his behavior was particularly egregious given his role on the safety committee.

Although the union setting is unique, this decision reinforces the importance of ensuring employees have notice of the employer’s position on marijuana and CBD products (recognizing any state law obligations), and to enforce a drug and alcohol testing policy consistently.

How New Jersey’s Recreational Marijuana Law Significantly Affects Workplace Drug Testing

New Jersey Governor Phil Murphy signed into law three marijuana reform bills on February 22, 2021. The first, New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (A21), legalizes and regulates cannabis use and possession for adults who are 21 and older. Two other laws decriminalize marijuana and hashish possession (A1897) and clarify marijuana and cannabis use and possession penalties for individuals younger than 21 years old (S3454).

Recreational Marijuana Law and Impact on Employers

New Jersey voters approved legalized recreational marijuana by ballot initiative on Election Day 2020. Now, that bill has been signed into law, although many provisions will not be operative for some time. The law creates a Cannabis Regulatory Commission to regulate the use, purchase, sale, and production of cannabis, among other things. The Commission will have 180 days (or 45 days from the date that all members of the Commission are appointed) to adopt rules and regulations to implement the law. It is generally expected that it will take at least a year before legalized cannabis is available in New Jersey.

The law permits anyone age 21 or older to possess, use, and purchase small amounts of cannabis. For purposes of the recreational marijuana law, the term “cannabis” excludes medical marijuana dispensed under the Jake Honig Compassionate Use Medical Cannabis Act, as well as hemp products under the New Jersey Hemp Farming Act.

The recreational marijuana law has several provisions that affect employers:

  • Employers may not refuse to hire or employ an individual who uses cannabis, unless failing to do so would place the employer in violation of a federal contract or cause it to lose federal funding.
  • Employers still are permitted to maintain drug- and alcohol-free workplaces and are not required to accommodate the use, possession, sale, or transfer of cannabis in the workplace and may prohibit being under the influence or intoxication during work hours.
  • Employers may not take adverse action against applicants or employees who use cannabis, or solely because the applicant or employee tests positive for cannabinoid metabolites. The law defines “adverse employment action” as refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.
  • However, employers still may require employees to undergo reasonable suspicion testing, post-accident testing, random testing, and pre-employment testing, as long as the drug test includes scientifically reliable testing of blood, urine, or saliva, and a physical evaluation in order to determine an employee’s state of impairment. The physical evaluation must be conducted by an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof, related to the use of cannabis. The Commission, in consultation with the Police Training Commission, must prescribe standards for a Workplace Impairment Recognition Expert, who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and for assisting in the investigation of workplace accidents. Workplace Impairment Recognition Experts will be certified by the Commission. In accordance with these requirements, employers may use the results of the drugs when determining appropriate employment actions.

Decriminalization of Marijuana Law and Impact on Employers

Employers are not permitted to consider when making an employment decision and cannot require an applicant to reveal or take any adverse action against an applicant solely on the basis of any arrest, charge, or conviction for certain types of marijuana and hashish offenses.

Employers who violate this provision will be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. These penalties are the sole remedy provided for violations of this provision. It does not create a private right of action against an employer by an aggrieved person.

Practical Considerations

The provisions that affect employers are not immediately operative, and it is hoped the Commission’s rules and regulations will clarify the restrictions on workplace drug testing and the actions that employers may take in response to marijuana drug tests.

In the interim, New Jersey employers should review their drug and alcohol testing policies to decide whether they will continue to test for marijuana and, if so, under what circumstances. Supervisors should be trained to make reasonable suspicion determinations and thought should be given to which individuals the employer will designate as Workplace Impairment Recognition Experts.

DOT Random Drug and Alcohol Testing Rates for 2021

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2021.  The random test rates did not change for 2021.

 

Agency 2021 Random Drug Testing Rate 2021 Random Alcohol Testing Rate
Federal Aviation Administration

 

25% 10%
Federal Motor Carrier Administration

 

50% 10%
Federal Railway Administration

 

25%  covered service 10%  covered service
Federal Railway Administration 50% maintenance-of-way 25% maintenance-of-way
Federal Transit Administration

 

50% 10%
Pipeline and Hazardous Materials Safety Administration

 

50% N/A
United States Coast Guard

 

50% N/A

 

 

Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination And Retaliation Claims

A federal court in Pennsylvania held that a medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.   Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Jan. 7, 2021).

The employer terminated the employee’s employment after she tested positive for marijuana on a return-to-duty drug test. The employee’s medical marijuana card was expired at the time she tested positive. However, she subsequently renewed it and provided a doctor’s note stating her positive test was consistent with her prescription (pre-expiration).

In September 2020, the employer moved to dismiss the employee’s claims for violation of the Pennsylvania Medical Marijuana Act (MMA), disability discrimination and retaliation. See Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020). The court denied the motion with respect to the MMA claim, but dismissed without prejudice disability discrimination and retaliation claims due the employee’s failure to exhaust her administrative remedies. We blogged about that decision here.

After exhausting her administrative remedies under the Pennsylvania Human Rights Act (PHRA) and Philadelphia Fair Practice Ordinance (PFPO), the employee re-asserted her disability discrimination and retaliation claims. The employee specifically claimed the employer failed to accommodate her disability and terminated her employment in retaliation for requesting accommodations.

Again, the employer moved to dismiss the claims. First, the employer argued that the employee’s medical marijuana use could not constitute a disability under the PHRA and that using marijuana is not a reasonable accommodation. The court rejected these arguments, reasoning that the employee alleged a specific medical condition (herniated disc and related spinal injuries) and her disability was not solely based on using medical marijuana. The court also found that she had requested several accommodations other than marijuana use — some of which the employer had granted in the past — and that the employer failed to engage in the interactive process.

The employer also argued the employee’s report of medical marijuana usage could not constitute protected activity for purposes of the employee’s retaliation claim.  But the court found that the employee’s request to split her time between work and home constituted a request for a reasonable accommodation and was sufficient to satisfy her burden on a motion to dismiss. The court further reasoned that it did not matter whether the employee’s medical marijuana usage fell outside of the PHRA’s definition of disability or handicap, because the employee only needed to show that she requested an accommodation in good faith. Her retaliation claim was not contingent on showing an actual disability.

Although the decision is in the early stages of the case, it highlights the fact that medical marijuana use is often intertwined with reasonable accommodation requests and may subject employers to disability discrimination and retaliation claims.

Pennsylvania Court Affirms Unemployment Benefits for Medical Marijuana User

A Pennsylvania Appeals Court affirmed an order granting unemployment benefits to a medical marijuana user who was terminated by his employer for a positive drug test.  The Pittsburgh Water and Sewer Auth. v. Unemployment Comp. Bd. of Review, Case No. 228 C.D. 2020 (Commw. Ct. Pa. Nov. 18, 2020).

The employee was employed as a customer service representative for four months.  The Pittsburgh Water and Sewer Authority (“Authority”) maintained a Drug and Alcohol Free Workplace Policy that prohibited the use of illegal drugs on or off duty, including marijuana, and included random drug testing.  The Policy, however, permitted the use of legal drugs that did not affect safety or job performance and defined “legal drug” as “prescription medications. . .that have been legally obtained”.  During the employee’s orientation, Human Resources explained that if an employee was selected for a drug screening, the employee would have an opportunity to verify his or her prescriptions that may impact the drug test results.  If the employee demonstrated the drug was lawfully prescribed, the test results would not be reported to the Authority.

Pursuant to the Policy, the Authority selected the employee for a random drug screening and he tested positive for marijuana.  The employee then submitted a copy of his medical marijuana patient identification card to the Medical Review Officer (“MRO”) who reviewed the positive drug test result.  The MRO forwarded the positive drug test result to the Authority.  The Authority terminated the employee on the grounds that marijuana is illegal under federal law.

The employee’s claim for unemployment benefits initially was denied on the grounds that he violated the Authority’s Drug Policy.  On appeal, however, the Unemployment Compensation Board of Review overturned the denial and determined that the employee was not disqualified for benefits under Section 402(e.1) of Pennsylvania’s Unemployment Compensation Law (relating to discharge for “failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy”).  The UCBR held that the employer’s policy stated that an employee’s positive drug test result would be excused if the employee possessed a prescription for lawful medication, and if the employer did not intend for that provision to cover medical marijuana, the policy should have said so.

In affirming the UCBR’s decision, the Court determined that the applicable unemployment compensation laws only require compliance with the employer’s drug policy.  Here, the employer’s policy with regard to the use of medical marijuana was ambiguous.  Because the employee provided the MRO with his valid patient identification card to explain his use of prescribed medical marijuana, the Court could not conclude that the MRO’s reporting of the employee’s drug test as a positive result was in accordance with the Authority’s Drug Policy.  Accordingly, the Court held the UCBR did not err by granting unemployment compensation benefits to the employee.

Employers should review their drug and alcohol policies to address the use of medical marijuana and its impact on drug test results.

Voters in Five States Approve Marijuana Ballot Initiatives on Election Day

Voters in Arizona, Mississippi, Montana, New Jersey, and South Dakota approved laws to legalize marijuana on Election Day 2020. Recreational marijuana was approved in Arizona, Montana, and New Jersey, while Mississippi voters approved medical marijuana. South Dakota voters approved both medical and recreational marijuana ballot initiatives.

Medical Marijuana

  1. Mississippi – Mississippi Ballot Measure 1 passed, with 68% voting “yes” and 32% voting “no.” Ballot Measure 1 asked voters to generally cast a vote for “either measure” Initiative 65 or Alternative 65A, or against both measures. Voters who cast a vote for “either measure” were then required to cast an additional vote for their preferred measure. Mississippi voters passed Initiative 65 with 74% voting for it and 23% voting for Alternative 65A.*

Initiative 65 allows the medical use of marijuana by patients who suffer from qualifying medical conditions. Qualified medical marijuana patients may possess up to 2.5 ounces of medical marijuana. The new law does not permit a qualifying patient to be “subject to criminal or civil sanctions for the use of medical marijuana.” However, it does not require “accommodation for the use of medical marijuana or require any on-site use of medical marijuana” in any place of employment. It also does not affect any “existing drug testing laws, regulations, or rules.”

The Mississippi State Department of Health has the authority to implement, administer, and enforce the law. It is required to issue final rules and regulations regarding medical marijuana by July 1, 2021. The Department must begin issuing medical marijuana identification cards and treatment center licenses no later than August 15, 2021.

  1. South Dakota – South Dakota’s Initiated Measure 26 passed, with 69% voting “yes” and 31% voting “no.” The new law allows the medical use of marijuana by patients who suffer from a debilitating medical condition. Medical marijuana card holders may possess up to three ounces of marijuana and cultivate marijuana plants. The law goes into effect July 1, 2021, but it may take up to a year before medical marijuana is available in the state.

Under the new law, medical marijuana cardholders are entitled to “all the same rights under state and local laws” as the person would be afforded if they were prescribed a pharmaceutical medication as it pertains to: (1) any interaction with a person’s employer; (2) drug testing by a person’s employer; and (3) drug testing required by any state or local law, agency, or government official.

The new law requires the South Dakota Department of Health to issue regulations regarding medical marijuana within 120 days after the law goes into effect (October 29, 2021) and to begin issuing registry identification cards to qualifying patients within 140 days after the law goes into effect (November 18, 2021).

The new law does not apply to employers to the extent it would conflict with the employer’s obligations under federal law or regulation or if it would disqualify an employer from a monetary or licensing-related benefit under federal law or regulation.

Although employers may discipline employees for ingesting marijuana in the workplace or for working while under the influence of marijuana, employers may not consider a qualifying patient to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in “insufficient concentration to cause impairment.” Employers in South Dakota should take note of this language because there is no universally accepted concentration of marijuana that proves “impairment.”

Recreational Marijuana

  1. Arizona – The Smart and Safe Arizona Act passed with nearly 60% voting “yes” and 40% voting “no.” Under the Smart and Safe Arizona Act, individuals 21 years of age or older may lawfully use and purchase less than one ounce of marijuana (except, not more than five grams may be in the form of marijuana concentrate) and may cultivate up to six marijuana plants for personal use at the individuals’ primary residence (subject to certain restrictions). The new law does not include a delayed effective date, but it will likely be several months before Arizonans can purchase recreational marijuana.

The new law requires the Arizona Department of Health Services to begin accepting applications for marijuana establishment licenses from “early applicants” beginning January 19, 2021 through March 9, 2021. Licenses will be issued to qualified applicants within 60 days of receiving an application.

The new law does not restrict the rights of employers to “maintain a drug-and-alcohol free workplace” or prevent employers from having workplace policies “restricting the use of marijuana by employees or prospective employees.” It also does not require employers to “allow or accommodate the use, consumption, possession, transfer, display, transportation sale or cultivation of marijuana in a place of employment,” nor does it restrict employers from prohibiting or regulating marijuana use that occurs on or in their properties.

Arizona passed the Arizona Medical Marijuana Act in 2010, prohibiting employers from discriminating against medical marijuana patients. The recreational marijuana law expressly states that is it not intended to limit any privilege or right of a qualifying patient under the Arizona Medical Marijuana Act.

  1. Montana – Montana’s Initiative 90 and Constitutional Initiative 118 both passed with approximately 57% voting “yes” and 43% voting “no” for Initiative 90.  Effective January 1, 2021, individuals age 21 or older may possess, use, or transport one ounce or less of marijuana, and grow up to four mature marijuana plans and four seedlings on the grounds of a private residence. The Montana Constitution provides that a person 18 years of age or older is an adult for all purposes, except that a different legal age may be established for purchasing, consuming, or possessing alcoholic beverages. Effective October 1, 2021, the Montana Constitution will similarly permit a different legal age (i.e., 21 years of age or older) to be established for the purchase, consumption, or possession of marijuana.

Certain provisions of the new law go into effect on October 1, 2021, which is the deadline for the Department of Revenue to issue rules and regulations related to licensure of adult-use marijuana providers and dispensaries. The Department must begin accepting applications from dispensaries, providers, and manufacturers on or before January 1, 2022. However, for the first 12 months, the Department will only accept such applications from providers and dispensaries licensed under Montana’s medical marijuana statute.

The new law does not impose restrictions on employers. It states that is may not be construed to: (1) require an employer to permit or accommodate recreational marijuana use (or any other conduct permitted by the law) in any workplace or on the employer’s property; (2) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana; (3) prevent an employer from declining to hire, discharging, or otherwise taking adverse action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual’s violation of a workplace drug policy or intoxication by marijuana while working.

Montana has had a medical marijuana law since 2004.

  1. New Jersey – New Jersey’s Question 1 passed with 67% voting “yes” and only 33% voting “no.” Effective January 1, 2021, the New Jersey Constitution will be amended to legalize recreational use of marijuana for adults ages 21 and older. The constitutional amendment provides for the Cannabis Regulatory Commission to regulate recreational marijuana and subjects all retail sales of recreational marijuana products to state sales tax.

The Cannabis Regulatory Commission and New Jersey lawmakers will address the regulatory issues that will determine the amount individuals can possess legally, the requirements for operating dispensaries for sale of cannabis, and taxation by state and local authorities. This process is expected to take up to approximately one year.

New Jersey has approved the use of medical marijuana since 2013. Under 2019 amendments to the Jake Honig Compassionate Use Act, employers are not permitted to discriminate against those who use cannabis for medical reasons.

  1. South Dakota – South Dakota’s Constitutional Amendment A passed with 53% voting “yes” and 47% voting “no.” Effective July 1, 2021, the new law permits individuals 21 years of age or older to possess and use one ounce or less of marijuana and to grow up to six marijuana plants on the grounds of a private residence.

No later than April 1, 2022, the South Dakota Department of Revenue is required to issue rules and regulations related to the commercial sale, cultivation, and testing of marijuana. The new law also directs the legislature to pass laws regulating the cultivation, processing, and sale of hemp and medical marijuana by April 1, 2022.

The new law does not require employers to permit or accommodate conduct authorized by it. It also does not affect an employer’s ability to restrict the use of marijuana by employees.

Next Steps

Employers should review their drug and alcohol policies – especially drug and alcohol testing policies – for compliance with applicable state laws.

While marijuana remains a Schedule I drug under the federal Controlled Substances Act, the trend in the courts over the last three years is to disregard marijuana’s status under federal law and to enforce state laws instead (with the exception of federally regulated employees such as those regulated by the U.S. Department of Transportation).

Employers must be familiar with the marijuana laws in the states where they operate before taking employment actions against those who use marijuana.

Request For Medical Examination Was Permissible Under ADA After Positive Drug Test Result

A federal court in Indiana dismissed an employee’s claim that his employer did not have the right to request a medical examination after he tested positive for drugs and subsequently admitted that he was taking numerous prescription medications that could create a safety risk.  Beal v. Muncie Sanitary District, Case No. 1:19-cv-01506 (S.D. Ind. Oct. 22, 2020).

The employee worked in a maintenance position for the District, which provided water and environmental sanitary services to the city of Muncie.  His job required him to drive a truck and to operate heavy machinery.  On April 6, 2018, the employee was involved in a minor accident while driving his truck at work.  There were no injuries and no damage to the truck.  In accordance with the District’s policy, the employee was sent for post-accident drug and alcohol testing.  The employee tested positive for opiates, benzodiazepines and oxycodone.  The testing laboratory advised the District that there could be a safety risk associated with one or more of his medications.  The District allowed the employee to return to work but removed him from performing safety-sensitive functions.

The District thereafter issued a written reprimand to the employee for failing to disclose the use of potentially dangerous prescription medications prior to performing safety-sensitive functions.  The employee refused to sign the reprimand, but admitted that he was taking allopurinol, lorazepam, citalopram, propranolol, and hydrocodone.

The employee’s doctor cleared him to return to work, including the performance of safety-sensitive functions.  The District’s Medical Review Officer (MRO), however, disagreed.  (A MRO is a physician who reviews positive drug test results on behalf of an employer).  The MRO stated that the employee could return to safety-sensitive work if the doctor would change the dosage of one of his medications, and if the employee would agree not to take hydrocodone within 8 hours of work.  The employee’s doctor refused, stating that the employee would not be able “to function in normal life or hold a job.”

Because the employee’s doctor and the MRO disagreed, the District requested that the employee submit to a medical examination by a third-party physician.  When the employee refused, he was fired.

The employee then filed a lawsuit, alleging violations of the Americans With Disabilities Act of 1990 arising out of his termination, including discrimination, retaliation, and failure to accommodate his needs relating to his prescription medications.

Specifically, the employee claimed that forcing him to submit to a medical examination constituted disability discrimination.  The court disagreed, noting that the ADA permits medical examinations and inquiries when “job-related and consistent with business necessity.”  Because the drugs prescribed to the employee could impair his ability to perform his essential job functions (such as operating heavy machinery), it was reasonable for the District to ask him to submit to a medical examination.  Moreover, there also was a public safety risk because the employee was required to drive a truck.  Holding that the medical examination was permissible, the court stated, “[a]ny other ruling would force the District to untenably risk a negligence suit to avoid violating the ADA.”

Court Upholds Jury Verdict that Directly-Observed Urine Collections Did Not Constitute Constructive Discharge

A Washington appellate court upheld a jury’s verdict that an employer’s drug testing protocol requiring direct observation of urine collections did not invade an employee’s privacy and did not constitute a constructive discharge.  Ritchey v. Sound Recovery Centers, LLC, No. 53303-1-II (Wash. Ct. App. Oct. 20, 2020).

The employee, a licensed chemical dependency counselor, refused to submit to her employer’s new drug testing protocol that required employees to choose between two options: observed testing and unobserved testing. The first option (Option A) provided for “direct observation of the collection by an independent health professional of the same gender.” The second option (Option B) provided for “provision of a sample, in private, after visual inspection by an independent healthcare professional of the same gender. Disposable, sanitary gowns are provided by the center.”

After the employee refused, the employer asked her to leave the premises until she agreed to submit to testing. The employee never returned. The employer continued to pay the employee’s benefits for several weeks, but ultimately stopped after determining the employee was not going to return.

The employee then filed a lawsuit, alleging the employer failed to accommodate her Post-Traumatic Stress Disorder (PTSD) in violation of the Washington Law Against Discrimination, terminated her employment in violation of Washington public policy and wrongfully withheld her wages. The employee did not prevail on her failure to accommodate claim because she did not present sufficient medical evidence to support her argument that her PTSD required accommodation with respect to the drug testing protocols.

The employee also claimed that she was constructively discharged.  Specifically, she argued that the employer’s new drug testing protocol made her work conditions intolerable because she was required either to allow another person to view her genital area during urination (Option A) or submit to a strip search (Option B). She claimed that both options constituted an intolerable invasion of privacy and were objectionable to a reasonable person.

While the Court remarked that the employer’s drug testing procedures were “intrusive” and “did invade the privacy of [its] employees to some extent,” it concluded the jury was in the best position to determine whether the testing procedures “made working conditions intolerable” and would have forced a reasonable person in the employee’s position to resign.  The employer presented evidence that 195 out of 197 employees completed the drug testing process without complaint.  The jury did not find that there was a constructive discharge and the Court upheld that finding.

Although the employer prevailed in this case, employers should remain mindful of employee privacy rights and discrimination laws when creating drug testing programs. Drug testing procedures that could be viewed as invasive are not appropriate for every employer.

Study Finds Surge In Misuse of Fentanyl, Heroin and Nonprescribed Opioids During COVID-19 Pandemic

According to a new Quest Diagnostics Health Trends study published on October 8, 2020, the misuse of fentanyl, heroin and nonprescribed opioids has increased during the COVID-19 pandemic.

The study analyzed more than 872,000 de-identified lab results from all 50 states and the District of Columbia.  The researchers compared drug positivity rates before the pandemic (from January 1, 2019 to March 14, 2020) with positivity rates during the first few months of the pandemic (March 15, 2020 to May 16, 2020).  Compared to the period before the pandemic, the drug positivity rates increased by 35% for nonprescribed fentanyl and by 44% for heroin.  Nonprescribed opioids increased by 10%.  Moreover, the study identified a significant increase in the positivity rate of combining other drugs with nonprescribed fentanyl during the pandemic.  Specifically, positives for nonprescribed fentanyl increased among samples that were also positive for amphetamines (89%), benzodiazepines (48%), cocaine (34%), and opiates (39%).

Additionally, during the early months of the pandemic, the rate of drug testing declined while the rate of overall misuse held steady.  Quest Diagnostics reported a drop in the rate of orders for clinical lab tests by about 70% weekly.  Conversely, the rate of misuse remained about the same – 49.4% at the height of the pandemic versus 49.9% prior to the pandemic.

COVID-19 has created an environment rife with stressors, i.e., financial insecurity, isolation, depression, and decreased access to health care, impacting those most at-risk for substance abuse disorders.  The foregoing data calls attention to the ongoing opioid epidemic which remains persistent during these unprecedented times.

Suspension of Employee Based on Marijuana Odor and Positive Test Result Did Not Violate CBA

A strong odor of marijuana was sufficient to constitute reasonable suspicion to test, and a positive drug test result constituted just cause for a ten-day suspension, an arbitrator ruled in denying an employee’s grievance.  ZF Active and Passive Safety and UAW, Local 1181, 20-2 ARB ¶ 7646 (Mar. 17, 2020).

The union and the employer, a manufacturing plant, were parties to a collective bargaining agreement (“CBA”) that permitted the employer to order a drug or alcohol test if the supervisor had reasonable suspicion to believe the employee may be under the influence of drugs or alcohol.  The CBA also provided for a 10-day suspension on the basis of usage.

Here, the employee brought work-related concerns to the attention of management and then went on a scheduled break.  After the employee returned from his break, the employee’s supervisors went to his work area to address his concerns.  The supervisors observed a strong smell of marijuana and ordered that he submit to a drug test in accordance with the CBA. When informed he would be sent out for drug testing, the employee admitted to Human Resources that he would test positive.  Predictably, the employee tested positive and thus, the employer imposed a 10-day suspension.

In challenging the suspension, the union argued that a combination of smelling marijuana and the positive test result were insufficient to justify the suspension because the CBA — in using the term “usage” — required evidence of impairment.  The arbitrator disagreed and determined “usage” was proven by the positive test results, i.e., a positive drug test can be equated with being under the influence regardless of the status of observational evidence.  Under the parties’ CBA, the employer had just cause to issue the 10-day suspension from a combination of smelling marijuana and the positive test result.  Accordingly, the arbitrator denied the employee’s grievance.

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