Maine Recreational Marijuana Law Limits Workplace Drug Testing As Well As Disciplinary Consequences Imposed By Employers

A provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use, as of February 1, 2018. This law effectively prevents Maine employers from testing for marijuana for pre-employment purposes.  The law also affects employers who employ employees subject to federal drug and alcohol testing regulations as well as those employers who are exempt from complying with Maine’s drug testing law.

Background

Maine voters approved the recreational marijuana law in November 2016. The law originally was scheduled to take effect on January 30, 2017. However, emergency legislation passed three days before that date delayed implementation of certain provisions of the law while the legislature reviewed and revised provisions on the retail sales of marijuana. Once the legislature did so, the Governor, on November 3, 2017, vetoed the law. The legislature sustained the Governor’s veto.

However, despite the veto, portions of the recreational marijuana law that were not under review were scheduled to take effect on February 1, 2018. As no action was taken prior to that date to delay or stop implementation of those provisions, they went into effect as scheduled.

Employer Provisions

One of the provisions that took effect on February 1 provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace. Further, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace.

However, the law prohibits employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.” This language presents a problem for employers that conduct drug testing, because a drug test does not reveal where someone may have used marijuana. It is impossible to learn from a drug test result whether marijuana was “consumed outside the employer’s property,” because marijuana can stay in the human body for days or weeks.

The Maine Department of Labor is taking the position that employers may not test for marijuana as part of a pre-employment drug test. However, the Department has stated that probable cause (i.e., reasonable suspicion) drug testing for marijuana still is permissible in Maine, because the recreational marijuana law allows employers to discipline employees who are under the influence of marijuana in the workplace.

Impact On Employers Who Are Exempt From Compliance with Maine Drug Testing Law

Employers with employees who are subject to federally mandated drug and alcohol testing regulations already are exempt from compliance with Maine’s drug testing statute with regard to those employees as well as their non-federally regulated employees. 26 Maine Rev. Stat. § 681(8). These employers, however, are not exempt from Maine’s recreational marijuana law. While federal regulations (such as the U.S. Department of Transportation’s drug and alcohol testing regulations) require testing for marijuana, they do not address the employment consequences for testing positive (other than requiring the employee to stop performing safety-sensitive functions). Employers regulated by the Department of Transportation, therefore, must consider what employment consequences will be imposed for positive marijuana test results, keeping in mind that the Maine recreational marijuana law does not permit employers to take adverse actions based on off-premises marijuana use. Additionally, these employers may not test their non-federally regulated employees for marijuana as part of any type of drug test (e.g., pre-employment, post-accident, and random), other than a drug test based on reasonable suspicion in Maine.

Employers that conduct drug testing in Maine should review their drug and alcohol testing policies and ensure compliance with the requirements of the Maine recreational marijuana law. Jackson Lewis attorneys are available to assist employers with this and other workplace issues.

Vermont’s Governor Signs Recreational Marijuana Law

Vermont’s Governor Phil Scott signed a recreational marijuana law on January 22, 2018. The law is the first recreational marijuana law to be enacted by a state legislature without a ballot initiative.  It will take effect on July 1, 2018.

The law eliminates all penalties for possession of one ounce or less of marijuana and permits a person who is 21 years of age or older to grow up to two mature and four immature marijuana plants. However, marijuana may not be consumed in a public place, such as streets, parks, public buildings, places of public accommodation and places where the use of tobacco products is prohibited.  The law also does not protect individuals from prosecution for being under the influence while operating a motor vehicle or consuming marijuana while operating a motor vehicle.

The law does not create a retail marketplace for marijuana.

Importantly for employers, the law provides that it shall not be construed to do any of the following:

  • Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
  • Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
  • Create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
  • Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s premises.

The Governor’s Marijuana Advisory Commission has been directed to report on adopting a comprehensive regulatory structure for legalizing and licensing the marijuana market on or before December 15, 2018, in order to revise drug laws that have a disparate impact on racial minorities, help prevent access to marijuana by youths, better control the safety and quality of marijuana being consumed by Vermonters, substantially reduce the illegal marijuana market, and use revenues to support substance use prevention and education and enforcement of impaired driving laws.

 

Employee’s Refusal to Take Drug Test Could Not Support Age and Gender Discrimination Claims

A federal court in Massachusetts dismissed the age and gender discrimination claims of a long-term employee who was fired after he refused to take a “reasonable suspicion” drug test. Tombeno v. FedEx Corporate Services, Inc., CV. No. 16-cv-40008-TSH (D. Mass. Jan. 9, 2018).

Tombeno worked for FedEx for 22 years as a Business Development Sales Executive. When hired, he signed an agreement permitting the Company to conduct drug and alcohol testing.  Tombeno and his supervisor sometimes drove together for business purposes.  On one occasion his supervisor approached Tombeno’s car and smelled marijuana.  The supervisor sought guidance from Human Resources and a few days later Tombeno was advised to report for drug testing.  He was told that if he refused he could be terminated.  Tombeno subsequently admitted that he was aware of that fact.  Despite knowing he could be terminated, Tombeno refused the drug test.  His employment was terminated.  He was 63 years old at that time.

Tombeno asserted that he was discriminated against due to his age because his replacement was younger and did not perform as well as he did. But the court held that there was no nexus between this assertion and the reason for his termination.

Tombeno also asserted that he was discriminated against due to his gender because his supervisor (a woman) terminated two other men. However, they were terminated for different reasons than Tombeno, and, he could not show any similarly-situated women who had been treated better.

Tombeno’s other claims also were dismissed.

Employers should ensure that their drug and alcohol policies contain language making it clear that refusals to submit to drug and alcohol testing will lead to termination.

U.S. Department of Justice Ends Obama-Era Marijuana Policy

Three days after retail sales of marijuana became legal in California, U.S. Attorney General Jeff Sessions announced today a new marijuana enforcement policy which rescinds long-standing policy set by the Obama Administration.

In a one-page memorandum, Mr. Sessions stated that marijuana is an illegal and dangerous drug, and directed all U.S. Attorneys to enforce the laws enacted by Congress and to follow “well-established principles” when pursuing prosecutions related to marijuana activities. These principles “require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

The memorandum rescinded, effective immediately, guidance set during the Obama Administration including memoranda written by James M. Cole that articulated a hands-off approach with regard to marijuana prosecutions. The Cole Memorandum issued in 2013 noted that while the Department of Justice was committed to the enforcement of the Controlled Substances Act (which makes marijuana illegal), it also was committed to using its limited investigative and prosecutorial resources to address only the most significant threats.  DOJ’s enforcement priorities at that time included:  preventing the distribution of marijuana to minors; preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; and, preventing violence and the use of firearms in the cultivation and distribution of marijuana; among other things.  Outside of those enforcement priorities, DOJ expressed its willingness to rely on state and local governments that enacted marijuana laws to implement “strong and effective regulatory and enforcement systems that will address the threat that those state laws could pose to public safety, public health, and other law enforcement interests.”

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” said Attorney General Sessions. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

It is not immediately clear how the new DOJ policy will be implemented, particularly in light of the fact that President Trump publicly supported medical marijuana in the past, and stated that marijuana legalization should be addressed by the states. Currently, eight states and the District of Columbia have legalized recreational marijuana, and 29 states and the District of Columbia have legalized medical marijuana.

PHMSA Raises Random Drug Testing Rate to 50% for 2018

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration announced December 8, 2017 that during calendar year 2018, the minimum random drug testing rate will be increased to 50%.

Operators of gas, hazardous liquid, and carbon dioxide pipelines and operators of liquefied natural gas facilities must randomly select and test a percentage of all covered employees for prohibited drug use. The minimum annual random drug testing rate was 25% of all covered employees for calendar year 2017.  However, the PHMSA regulations require the Administrator to raise the minimum annual random drug testing rate from 25% to 50% of all covered employees when the data obtained from the Management Information System reports (required to be filed by covered entities under PHMSA regulations) indicate the positive test rate is equal to or greater than 1%.  In calendar year 2016, the random drug test positive test rate was greater than 1%.  Therefore, the PHMSA minimum annual random drug testing rate shall be 50% of all covered employees for calendar year 2018.

U.S. Department of Transportation Publishes Guidance For Updating Drug and Alcohol Testing Policies

The drug testing panel utilized by the U.S. Department of Transportation’s operating agencies will change on January 1, 2018. (Click here to read our blog post on that change).  DOT published guidance on December 1, 2017 to assist employers with regard to updating their drug and alcohol testing policies.  The guidance states as follows:

“The Federal Transit Administration, Federal Motor Carrier Safety Administration, Federal Aviation Administration, Pipeline and Hazardous Materials Safety Administration, Federal Railroad Administration, and U.S. Coast Guard take this position:

There is no need for employers to make any changes if their current DOT policies refer to adhering to “… Part 40.” However, there are exceptions when an employer’s DOT policy lists the following optional information:

  • If sub-categories of drugs tested under the 5-panel are listed – for example, if a policy lists “Opiates (codeine, heroin, & morphine)” and/or “Amphetamines (amphetamine, methamphetamine, MDMA, MDA, MDEA), then “Opiates“ needs to change to “Opioids (codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone, hydromorphone)” and “MDEA” will need to be removed from the list under Amphetamines.  If however, employers would like to delete the sub-categories of drugs, doing so will also be acceptable.
  • Likewise, if cut-off levels are listed in current policies, employers must update those cut-off levels. Again, employers may simply delete the cut-off levels completely and be in compliance if the DOT policy refers to adhering to “… Part 40.”
  • While these DOT Agencies and USCG suggest that employers provide written notice to employees about their updated DOT policies, doing so is an employer’s prerogative.”

DOT-regulated employers should review their drug and alcohol testing policies to determine whether any revisions are required to comply with the changes effective January 1, 2018.

U.S. Department of Transportation Expands Its Drug Testing Panel Effective January 1, 2018

The U.S. Department of Transportation announced in a rule published in the Federal Register on November 13, 2017, that, among other revisions to its drug and alcohol testing regulations, it will expand its drug testing panel to include four “semi-synthetic” opioid drugs: hydrocodone, hydromorphone, oxycodone and oxymorphone.  These changes are being made to harmonize DOT’s drug testing regulations with recent revisions to the U.S. Department of Health and Human Services’ Mandatory Guidelines for Federal Workplace Drug Testing Programs that took effect on October 1, 2017. The changes to DOT’s rules take effect on January 1, 2018.

DOT-regulated employers include those regulated by the Federal Motor Carrier Safety Administration, Federal Aviation Administration, Federal Railroad Administration, Federal Transit Administration, Pipeline and Hazardous Materials Safety Administration, and the United States Coast Guard.

Prescription Painkiller Epidemic

The addition of the semi-synthetic opioid drugs is intended to address the nationwide epidemic of prescription painkiller abuse. Hydrocodone, hydromorphone, oxycodone and oxymorphone are Schedule II controlled substances and are more commonly known as Vicodin, OxyContin, Lortab, Norco, Percocet and Dilaudid, among others.  DOT still refers to its drug testing panel as a 5-panel, but the term “opiates” is being changed to “opioids” and now will include these four synthetic substances in addition to heroin, morphine and codeine.  The Department of Health and Human Services explained that the four prescription pain medications were added to the standard testing panel because data indicates that although they are prescribed, they are the prescription pain medications that are most frequently used without medical authorization.

DOT regulations still permit the employee to produce a legitimate medical explanation for the presence of drugs in his/her system, but the Medical Review Officer is not permitted to question whether the prescribing physician should have prescribed the substance.

In addition, DOT will add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine (MDEA) as a confirmatory test analyte.

Drug Panel and Cut-off Concentrations

As of January 1, 2018, all DOT-regulated employers must utilize the following drug test panel and cut-off concentrations:

Drug                                                                Initial                          Confirmatory

Marijuana                                                       50  ng/ml                    15  ng/ml

Cocaine                                                           150  ng/ml                  100  ng/ml

Phencyclidine (PCP)                                       25    ng/ml                  25   ng/ml

Amphetamines                                               500 ng/ml                   250  ng/ml

(includes Methamphetamines, MDMA, MDA)

Opioids

Codeine/Morphine                                    2000 ng/ml                 2000 ng/ml

6-AM (Heroin)                                               10 ng/ml                     10 ng/ml

Hydrocodone/Hydromorphone              300 ng/ml                   300 ng/ml

Oxycodone/Oxymorphone                      100 ng/ml                   100 ng/ml

Other Revisions

DOT’s new rules also make certain technical amendments, clarify certain definitions and remove the requirement for employers and Consortium/Third Party Administrators to submit blind specimens. Among other things, the definition of “drugs” has been revised to include “opioids” instead of “opiates”, and the definitions of “evidential breath testing device” and “alcohol screening device” have been revised.

The regulation addressing direct observation collections is being revised to require service agents who learn that a direct observation collection should have been collected but was not, to inform the employer to direct the employee to have an immediate recollection under direct observation. (Previously this requirement applied only to collectors).

The regulation addressing MRO verification of valid prescription medication use also is being revised as follows:

You [the MRO] must also advise the employee that, before informing any third party about any medication the employee is using pursuant to a legally valid prescription consistent with the Controlled Substances Act, you will allow 5 business days from the date you report the verified negative result for the employee to have the prescribing physician contact you to determine if the medication can be changed to one that does not made the employee medically unqualified or does not pose a significant safety risk.  If, in your reasonable medical judgment, a medical qualification issue or a significant safety risk remains after you communicate with the employee’s prescribing physician or after 5 business days, whichever is shorter, you must follow §40.327. If, as the MRO, you receive information that eliminates the medical qualification issue or significant safety risk you must transmit this information to any third party to whom you previously provided information under §40.327.

DOT will require Medical Review Officers, Substance Abuse Professionals, Breath Alcohol Technicians and Screening Test Technicians to subscribe to the Office of Drug & Alcohol Policy & Compliance’s list-serve to receive ODAPC e-mail updates.

DOT’s new regulations also confirm that no specimens, other than urine, may be tested for drugs. Only urine specimens screened and confirmed at HHS-certified laboratories are permitted; point-of-collection testing, or instant tests, are not authorized.

DOT-regulated employers should revise their drug and alcohol testing policies to conform to the regulations that are effective on January 1, 2018.

Governor’s Veto of Recreational Marijuana Law Upheld by Maine House

The Maine House of Representative upheld November 6, 2017 Governor Paul R. LePage’s veto of a bill to legalize and regulate recreational marijuana. The 74-62 vote fell 17 votes short of the two-thirds margin required to override the Governor’s veto.  The bill had been drafted by a special committee that was supposed to implement a law after Maine voters approved recreational marijuana in November 2016.

Currently seven states (and the District of Columbia) have recreational marijuana laws:  Alaska, California, Colorado, Massachusetts, Nevada, Oregon and Washington.

Maine Governor Vetoes Recreational Marijuana Law

Governor Paul R. LePage of Maine vetoed a bill to legalize and regulate marijuana on November 3, 2017. In a letter to the Maine Legislature, he urged the Legislature to “sustain this veto and continue to work to get this important law right.”  The legislature is schedule to vote on a veto override on November 6, 2017.

The governor cited several reasons for vetoing the bill, including the facts that:  marijuana still is illegal under federal law and it is unclear how the Trump administration views recreational marijuana; the regulations do not ensure consistency between the recreational marijuana program and the medical marijuana program; the bill’s unrealistic timelines will result in “hastily-crafted regulation”; and, marijuana-related traffic deaths and other crimes may increase if Maine’s law is not crafted and regulated properly.

In November 2016, Maine was one of four states in which voters approved new recreational marijuana laws. Maine’s law was to take effect on January 30, 2017; however, emergency legislation passed on January 27, 2017 delayed the implementation of the law until 2018 so that the state licensing authority could establish and implement regulations concerning the retail sales of marijuana, among other things.

 

New York’s Highest Court Rules That Perceived Alcoholics Are Not Protected Under New York City Human Rights Law

The New York Court of Appeals ruled that the New York City Human Rights Law (“NYCHRL”) does not permit a claim of disability discrimination based solely on a perception of untreated alcoholism. To sustain a claim, an individual must actually be a recovered (or recovering) alcoholic and no longer abusing alcohol. Makinen v. City of New York, 2017 NY Slip Op. 07208 (N.Y. October 17, 2017).

As we discussed in a previous blog post, two former New York City police officers were not alcoholics, but were falsely accused of abusing alcohol in the context of their respective child custody disputes. Those allegations were reported to the New York City Police Department. The NYPD gave the police officers mandatory referrals to the Department’s Counseling Services Unit where they were diagnosed with alcohol abuse and alcohol dependence. The officers accepted alcohol treatment in order to avoid disciplinary action, but maintained that they were not, in fact, alcoholics. In the subsequent litigation, all parties agreed that the officers “were not actually alcoholics.”

The police officers sued the City of New York and others for disability discrimination under the NYCHRL, arguing that the New York City Police Department regarded them as alcoholics, although they were not. The trial court allowed the officers to proceed with their claims, but on appeal, the Second Circuit Court of Appeals asked the New York Court of Appeals (New York State’s highest court) to certify the question as to whether the NYCHRL precludes a plaintiff from asserting a disability discrimination claim based solely on a perception of untreated alcoholism.

The New York Court of Appeals answered the question in the negative, holding that the “plain language” of the law limits protections only to those employees who (1) are recovering or have recovered from alcoholism, and, (2) are “currently free of such abuse.” The meaning of this plain language is that the NYCHRL “does not regulate employer actions motivated by concern with respect to the abuse of alcohol.”

In its decision, the Court recognized that this holding and the statutory language of the NYCHRL vary significantly from both state and federal law. Indeed, both the New York State Human Rights Law and the Americans with Disabilities Act afford protections to alcoholics even if still abusing alcohol – a fact all parties conceded. But the Court stated that it could not rewrite the statute, and that the City Council could amend the language of the law.

While this decision is a “win” for New York City employers, we can expect to see a legislative response amending this statutory language of the NYCHRL as a result of this decision. Additionally, employers in New York and elsewhere remain obligated under state and federal disability laws to treat employees struggling with alcohol or drug addiction like other disabled employees, regardless of whether the employee is in treatment or not, or whether the addiction is real or perceived.

Employers should review policies and practices keeping in mind that alcohol and substance abuse issues may be potential disabilities. Consider training managers on how to effectively communicate with employees facing alcohol or substance abuse issues. Such issues often arise post-accident or during performance and attendance discussions. If not properly trained to identify and address the potential disability issues, managers may inadvertently run afoul of protections for such employees.

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