Occupations Governed by Federal Regulation Remain Guarded Against State Medical Marijuana Non-Discrimination Laws

A growing number of states have passed anti-discrimination laws pertaining to medical marijuana use. While medical marijuana is becoming widely legalized under state law, marijuana and its most identifiable active chemical, THC, remain listed as Schedule I drugs under the federal Controlled Substances Act. Still, the legalized marijuana market, and the science behind the research and development of new products, has come a long way. The marijuana industry now mass produces widely available extracts, oils, and edible products all with varying potency. Unfortunately, state laws pertaining to the use of marijuana and THC-based products are under-developed, vary from state-to-state, often conflict, and are subject to a great deal of misinformation, especially on social media. This rapid market development combined with the lack of clear guidance is fertile ground for unintentional violations of law by employees and employers alike.

Federal Regulations May Prohibit Marijuana Use in States Where Legal

One area where employees and employers should be particularly mindful is with respect to positions that are regulated according to federal law. These positions usually involve federal money, federal contractors, and safety sensitive positions that cross state lines. For example, the Federal Motor Carrier Safety Administration (FMCSA) regulates interstate commercial trucking. The FMCSA and the U.S. Department of Transportation have published guidance stating “a person is not physically qualified to drive a [Commercial Motor Vehicle] if he or she uses any Schedule I controlled substance such as marijuana.” 49 CFR §§ 391.11(b)(4) and 391.41(b)(12)) (emphasis added). In other words, even if an employer is based in a state where medical marijuana is medicinally and recreationally legal under state law, federal regulation may prohibit employees from using marijuana products if they drive commercial motor vehicles or engage in other federally regulated professions.

Occupation Specific Prohibition in Recreationally Legal State

Some occupations outright ban the use of marijuana for particular occupations as a matter of state law, regardless of whether other state law permits medicinal or recreational marijuana use. Recently, a Nevada driver sued his employer after the taxi company discovered that he routinely used marijuana products and terminated his employment. The plaintiff alleged that he was using marijuana to treat a medical condition. Nevada has legalized marijuana for medicinal and recreational purposes. Nevada’s statutes also prohibits a Nevada employer from discriminating against an employee for the lawful use of any product while not on employer time. Notwithstanding these state laws, Nevada’s Legislature also adopted FMCSA drug-use regulations specifically for taxicab motor carriers. That meant that even though marijuana is lawful in Nevada, state law also prohibited any person from operating a taxicab while using marijuana, even off-the-clock.

Employers Across Multiple Industries Are Effected

Some effected industries include transportation, energy, defense, and federal contracting. To make things even more confusing, these prohibitions could also differ from state to state. Also, if an occupation involves the handling, use, transfer, or sale of firearms, those professions may too be off limits to medical marijuana users according to a recent letter from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF). Moreover, even if some of the earliest adopting states permit employers to regulate marijuana use in the workplace, these prohibitions naturally implicate federal and state drug testing laws as well.

Employers Should Not Guess

The current legal state of medical and recreational marijuana use in the workplace is in flux. Thus, it is critical to have competent legal counsel versed in the most recent state and national marijuana developments to guide employers. Employers should consult with competent legal counsel in the jurisdictions in which they operate to determine if they are compliant with state and federal law. Jackson Lewis attorneys are available to assist employers with these and other workplace issues.

Nevada Will Ban Pre-Employment Marijuana Testing On January 1, 2020

Beginning on January 1, 2020, it will be illegal to conduct pre-employment drug testing for marijuana in the state of Nevada. Assembly Bill No. 132 was signed into law by the governor on June 5, 2019. This makes Nevada the first state to enact such a law (although New York City became the first city to enact such a law, as we discussed in previous blog posts).

The law provides that it “is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” A “screening test” is defined to mean a test of a person’s blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug. The law does not apply to applicants who apply for positions as firefighters, emergency medical technicans, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others.”

The law further provides that if an employer requires an employee to submit to a drug test within the first 30 days of employment, the employee shall have the right to submit to an additional drug test, at his or her own expense, to rebut the results of the initial test. The employer “shall accept and give appropriate consideration to the result of such a screening test.”

The law does not apply if it conflicts with the provisions of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law, and further does not apply to positions funded by a federal grant.

Employers should review and revise their pre-employment drug testing policies prior to January 1, 2020. In addition to removing marijuana from the testing panel, employers should review their job descriptions to determine which positions may be exempt from the law because they “could adversely affect the safety of others.”

New York Offers Tax Credit To Employers Who Hire Recovering Substance Abusers

In an effort to combat the ongoing opioid crisis and substance abuse, New York State’s Budget for Fiscal Year 2020 includes the nation’s first tax incentive program for certified employers who hire people recovering from substance use disorders in full-time or part-time positions. The purpose of the Recovery Tax Credit program is two-fold: to create a recovery-oriented culture in business and local communities, as well as encourage growth by increasing employment opportunities.

Beginning in 2020, certified employers will receive a maximum credit of $2,000 for each eligible individual they hire who has worked a minimum of 500 hours. The State can allocate up to $2 million annually for the program. An eligible individual means an individual with a substance use disorder who is in a state of wellness free from the signs and symptoms of active addiction that has demonstrated to the employer’s satisfaction that he or she has completed a course of treatment for such substance use disorder.

To claim credit for eligible individuals employed during the preceding calendar year, an employer must apply annually to the New York State Office of Alcoholism and Substance Abuse Services by January 15. Applications for the first year of the program are due by January 15, 2021 for eligible individuals employed during the 2020 tax year. In addition to the program eligibility requirements set forth in the legislation, the employer must demonstrate that it provides a recovery supportive environment evidenced by a formal working relationship with a local recovery community organization. If the application is approved, a certificate of tax credit will be issued by March 31.

The Office of Alcoholism and Substance Abuse Services will administer the Recovery Tax Credit program in conjunction with the Department of Taxation and Finance.

Update: New York City’s Ban On Pre-Employment Marijuana Testing Will Take Effect on May 10, 2020

We previously blogged about the law passed by the New York City Council on April 9, 2019 that will prohibit employers from conducting pre-employment drug testing for marijuana. Because the law was not signed or vetoed by Mayor de Blasio within 30 days of passage, it became law on May 10, 2019. The law provides that it will take effect one year later. New York City employers therefore have until May 10, 2020 to get ready to comply with this law, which is the first of its kind in the United States. Click here to read our earlier blog discussing this law in more detail.

 

 

FMCSA Clearinghouse Rules Take Effect On January 6, 2020: Are You Ready?

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration’s Clearinghouse will become operational on January 6, 2020, and FMCSA-regulated employers must be ready to comply with the Clearinghouse requirements on that date. The FMCSA Clearinghouse is an electronic database that will contain information about commercial motor vehicle drivers’ drug and alcohol program violations. Although the Clearinghouse rule actually took effect on January 4, 2017, the implementation date for FMCSA-regulated employers is January 6, 2020.  See 49 CFR Part 382, Subpart G, among others.

The Clearinghouse rule requires FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, consortia/third-party administrators and other service agents to report to the Clearinghouse information related to violations of FMCSA’s drug and alcohol testing regulations by current and prospective employees. In addition:

  • Employers must query the Clearinghouse for current and prospective employees’ drug and alcohol program violations before permitting those employees to operate a commercial motor vehicle on public roads.
  • Employers are required to query the Clearinghouse annually for each driver they currently employ.
  • State driver licensing agencies will be required to query the Clearinghouse whenever a CDL (commercial driver’s license) is issued, renewed, transferred or upgraded.

Here are the important dates that FMCSA-regulated employers must be aware of, and steps to take to prepare for compliance:

Fall 2019:

Register with the Clearinghouse. Employers (and their service agents) should log on to the FMCSA Clearinghouse to register with the Clearinghouse and become familiar with the site. See: https://clearinghouse.fmcsa.dot.gov/. Clearinghouse registration is valid for five years, unless cancelled or revoked.

Revise Drug and Alcohol Testing Policy. In addition, FMCSA regulations require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver-applicants that the following information will be reported to the Clearinghouse:

  • A verified positive, adulterated, or substituted drug test result;
  • An alcohol confirmation test with a concentration of 0.04 or higher;
  • A refusal to submit to a drug or alcohol test;
  • An employer’s report of actual knowledge, as defined at 49 CFR § 382.107;
  • On duty alcohol use pursuant to 49 CFR § 382.205;
  • Pre-duty alcohol use pursuant to 49 CFR § 382.207;
  • Alcohol use following an accident pursuant to 49 CFR § 382.209;
  • Drug use pursuant to 49 CFR § 382.213;
  • A SAP’s report of the successful completion of the return-to-duty process;
  • A negative return-to-duty test; and,
  • An employer’s report of completion of follow-up testing.

January 6, 2020:

Queries of New Hires/Transfers: Employers must query the Clearinghouse before allowing a newly-hired commercial motor vehicle driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers must sign a consent form allowing the employer to do so.

Annual Queries of Current Employees. Employers must query the Clearinghouse at least once per year for each driver they currently employ. Drivers must sign a consent form allowing the employer to do so. The employer must maintain records of all queries and information obtained in response to the query, for a period of three years. (As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement).

Reporting of Drug and Alcohol Program Violations. Employers must report drivers’ drug and alcohol program violations (listed in the bullet points above) to the Clearinghouse within three business days after the employer learns of the information.

Employers must prohibit drivers who have violated FMCSA’s drug and alcohol program regulations from performing safety-sensitive duties unless the driver complies with the return-to-duty process set forth at 49 CFR Part 40, Subpart O (requiring SAP evaluation, possible treatment, return-to-duty testing and follow-up testing).

January 6, 2023:

Safety Performance History Investigations. In addition to the items listed above, employers also will be required to conduct the drug and alcohol testing portion of the safety performance history investigation of driver-applicants through the Clearinghouse. Employers still will be required to obtain the other information required by the safety performance history investigation regulations (e.g., accident history) directly from the driver-applicants’ previous DOT-regulated employers, because that information is not reported to the Clearinghouse.

Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense).

FMCSA-regulated employers should review and revise their drug and alcohol testing policies and become familiar with the Clearinghouse requirements before the implementation date.

New Mexico Amends Medical Marijuana Law To Provide Employment Protections

The New Mexico medical marijuana law has been amended to provide employment protections to employees and applicants. The amendments were signed into law by the governor on April 4, 2019.

The law now provides that “unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under [the medical marijuana law].” The law also expanded the definition of a “debilitating medical condition” for which individuals may use medical marijuana.

Employers still are permitted, however, to take adverse employment actions against an employee for “the use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.” The law does not define what “impaired by” means, and does not address positive drug test results.  In addition, medical marijuana users are not protected from criminal prosecution or civil penalty for possession or use of marijuana in the workplace.

These new employment protections do not apply to employees deemed by the employer to work in a safety-sensitive position. “Safety-sensitive position” is defined to mean a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.

New Mexico employers should review their drug testing policies to determine whether any revisions are warranted and should train the appropriate managers to respond to employment issues involving medical marijuana, such as requests for accommodations and positive drug test results.

New York City Will Ban Pre-Employment Marijuana Testing in 2020

The New York City Council passed a law on April 9, 2019 that will prohibit employers from conducting pre-employment drug testing for marijuana. The law is expected to be signed by the mayor and will take effect one year later. This law is the first of its kind in the United States.

The new law will amend the New York City Human Rights Law and provides that: “Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” Tetrahydrocannabinols, or THC, is the main psychoactive component of marijuana.

The law will not apply to applicants for certain types of jobs, including:

  • Police officers or peace officers, or other jobs with law enforcement or investigative functions at the department of investigation;
  • Positions requiring compliance with Section 3321 of the New York City Building Code or Section 220-h of the Labor Law (pertaining to certain types of construction and maintenance jobs);
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in Social Services Law Section 488(15) (certain individuals with physical and cognitive disabilities);
  • Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.

There are additional exclusions. The law specifically does not apply drug testing required by:

  • Any regulations promulgated by the U.S. Department of Transportation that require pre-employment drug testing, as well as any state or city regulations that adopt the DOT rules;
  • Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Once the law is signed by the mayor, additional rules and regulations are expected to be implemented. Given that the law will not take effect for one year, New York City employers will have time to revise their drug testing policies, employment applications and other pertinent documents.

DOT-Regulated Truck Driver’s Claims Dismissed Because He Could Not Prove “Shy Bladder” Condition

An employer lawfully terminated a commercial motor vehicle driver after the driver was unable to provide a sufficient amount of urine during a random drug test and could not prove that he had a medical condition that would have prevented him from providing the specimen. Beller v. Wal-Mart Transp., LLC, No. 17-cv-530, 2019 U.S. Dist. LEXIS 52887 (S.D. Ohio Mar. 28, 2019).

Plaintiff was a commercial motor vehicle driver subject to the U.S. Department of Transportation’s drug and alcohol testing regulations. In May 2016 he was selected for a random drug test. Plaintiff was unable to provide a sufficient amount of urine for the test within the time period specified by DOT regulations. The clinic notified the employer that Plaintiff was unable to provide a urine specimen on demand, and Plaintiff was suspended. The employer consulted with the Medical Review Officer (“MRO”), and Plaintiff then was directed “to obtain within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen.” 49 C.F.R. § 40.193(c).

Plaintiff was examined by a physician who was board certified in family medicine and had experience evaluating shy bladder issues. The physician was required to determine whether there was “an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of breath or urine specimen” as outlined in the DOT regulations. 49 C.F.R. § 40.193(d)(1). During the evaluation, Plaintiff did not mention that he had any trouble urinating and he had no history of prostate problems. The physician concluded that Plaintiff did not have a medical condition preventing him from providing a sufficient urine specimen. The MRO reviewed the results and agreed with the physician’s findings. Pursuant to DOT regulations and the employer’s policy, Plaintiff’s specimen result was marked as a “Refusal to [T]est”, and his employment was terminated.

After his termination, Plaintiff made two subsequent attempts to submit documentation from his own primary care physician and a urologist to show that he did in fact suffer from a medical condition, prostatic hyperplasia disability, which prevented him from providing a sufficient amount of urine on demand. The employer refused to accept the subsequent findings.

Plaintiff filed a lawsuit alleging, among other claims, disability discrimination, including failure to accommodate his disability, in violation of the Americans with Disabilities Act.

The court dismissed Plaintiff’s claims. Among other things, Plaintiff argued that the employer failed to accommodate his recently-diagnosed benign prostatic hyperplasia disability when the employer failed to consider his urologist’s letter of proof of a medical condition precluding his ability to provide a urine specimen on demand. But Plaintiff failed to prove that the employer was aware or should have been aware of his disability prior to his termination. Indeed, the employer received the urologist’s letter well over a week after Plaintiff was terminated; and the employer had no obligation to participate in the interactive process once Plaintiff was terminated. Accordingly, Plaintiff’s failure to accommodate claim failed as a matter of law.

Medical Marijuana Users May Not Be Discriminated Against In New Jersey

A New Jersey appellate court has held that a disabled employee may sue his former employer under the New Jersey Law Against Discrimination (“NJLAD”) for alleged discrimination based on the employee’s use of medical marijuana. Wild v. Carriage Funeral Holdings, Inc., et al., Docket No. A-3072-17T3 (N.J. App. Div. Mar. 27, 2019). Although the New Jersey Compassionate Use Of Marijuana Act (“NJCUMMA”) does not prohibit employment discrimination based on medical marijuana use, the Court held that the NJCUMMA does not immunize “employers from obligations already imposed elsewhere [such as under the NJLAD].”

Plaintiff Wild, a licensed funeral director, brought an action against Carriage Funeral Holdings, Inc. and others alleging that he was unlawfully discriminated for his use of medical marijuana permitted by the NJCUMMA. A physician prescribed Wild medical marijuana as part of his treatment for cancer. In May 2016, Wild was involved in a car accident while working a funeral. Wild was taken to the hospital and claimed that the doctor who treated him stated that Wild was not under the influence of drugs or alcohol, so a blood test was not necessary. The day after the accident, Carriage advised that a blood test was required before he could return to work, and Wild’s father disclosed Wild’s use of medical marijuana. Later that evening, Wild submitted to a urine and breathalyzer test at a local urgent care facility. However, Wild never received the results of the tests and they were not made part of the record.

The next day, Wild returned to the funeral home to attend the services of a close friend’s family member. While there, he spoke to his employer about his off-work medical marijuana use to treat severe pain. The following week, Wild worked a funeral for a few hours and then went home because he was “very sore.” Several days later, Wild was informed that “corporate” was unable to “handle” his marijuana use and his employment “was being terminated because they found drugs in [his] system.” Thereafter, Carriage informed Wild in a letter that he was not terminated because of his drug use, but because he failed to disclose his use of a medication that might adversely affect his ability to perform his job duties in accordance with company policy.

Wild filed a lawsuit claiming that Carriage could not lawfully terminate his employment without violating NJLAD, despite the results of his drug test, because he had a disability (cancer) and was legally treating that disability in accordance with the NJCUMMA. In granting Carriage’s motion to dismiss, the lower court determined that the NJCUMMA “does not contain employment-related protections for licensed users of medical marijuana” and, as set forth in Wild’s allegations, the adverse employment action was taken due to a positive drug test and a violation of Carriage’s drug policy. However, the appeals court determined that Wild sufficiently pled the elements of a prima facie case for disability discrimination, reversed the lower court’s decision to dismiss, and remanded the case for further proceedings.

The appeals court explicitly held that there was no conflict between the NJLAD and the NJCUMMA. The NYCUMMA states that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” But the court held that this language “can mean only one thing: the [NJCUMMA] intended to cause no impact on existing employment rights.” Moreover, the NJCUMMA neither created new employment rights nor destroyed existing employment rights – and it certainly expressed no intent to alter the NJLAD. The court stated that “[i]t would be ironic indeed if the Compassionate Use Act limited the Law Against Discrimination to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.”

Wild did not assert his claims under the NJCUMMA; rather, he asserted disability discrimination claims under NJLAD. Many of his allegations concerned his “disability,” without specific reference to his cancer or his medical marijuana use. At this early stage of the lawsuit, however, he was not required to prove his claims and those general allegations were enough to withstand a motion to dismiss.

The Wild court completely ignored a recent federal court decision in New Jersey, Cotto v. Ardagh Glass Packaging, 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018) (which we blogged about here). That court held that neither the NJLAD nor the NJCUMMA compels an employer to waive its requirements for employees to pass drug tests, even when those drug tests include testing for marijuana. The Cotto court found it significant that the NJCUMMA does not provide any employment protections for medical marijuana users, and predicted that the New Jersey judiciary would conclude that the NJLAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver. The Cotto court’s prediction apparently was wrong, although it is far from clear whether Wild will be able to prove his claims.

The important takeaway for employers is that even in states where the medical marijuana law offers no employment protections, disabled employees and applicants may refashion their legal claims as ordinary disability discrimination claims.

Possession Of A Medical Marijuana Card Alone Does Not Prove Marijuana Use, Appeals Court Holds

The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant’s disability discrimination claim because he did not state that he actually used marijuana at the time of his interview — even though he provided a copy of his medical marijuana card – and was not subjected to a drug test. Kamakeeaina v. Armstrong Produce, Ltd., 2019 U.S. Dist. LEXIS 50863 (9th Cir. March 22, 2019).

The plaintiff applied for a job as a Receiver/Forklift Operator with Armstrong Produce but was not hired. He alleged that he suffered from post-traumatic stress disorder and depression. After he received a conditional offer of employment, he was advised that he was required to pass an on-site drug test. He disclosed to the Human Resources Director that he was registered under Hawaii’s Medical Cannabis Program and presented a copy of his medical marijuana certification card. The H.R. Director stated that if he tested positive on the drug test, the employment offer would be withdrawn. Plaintiff allegedly stated that he understood that the job offer would be “taken off the table” if he failed the drug test. Subsequently, the job offer was withdrawn even though the drug test was not conducted.

Plaintiff asserted claims of age discrimination and disability discrimination, including the denial of a reasonable accommodation, and the employer moved to dismiss the complaint.

The employer argued that the disability discrimination claim should be dismissed because of Plaintiff’s use of marijuana. The Court denied the motion to dismiss on this basis, given that Plaintiff did not fail a drug test and did not admit to marijuana use. The employer believed that Plaintiff’s acknowledgment that the job offer would be “taken off the table” if he tested positive, constituted an admission that he would test positive on the drug test. But the parties disputed the implications of Plaintiff’s additional statement during the interview that he “wanted to be straight-up from the beginning and if I were to get the job, it’ll be a way easier transition for everyone involved.” The Court concluded that this statement indicated that Plaintiff did ­not think he would fail the drug test. Moreover, no drug test was conducted. There was no evidence, therefore, that Plaintiff actually had used marijuana.

The Court dismissed the failure to accommodate claim because it was not clear what accommodation was sought by Plaintiff. However, the Court gave Plaintiff leave to replead this claim.

The lesson for employers is this: although it may seem reasonable to assume that an applicant who possesses a medical marijuana card actually uses marijuana, the adverse employment action should be based on something more, such as a positive drug test result or an admission of drug use (assuming, of course, that applicable state law does not prohibit discrimination against medical marijuana users).

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