The U.S. Department of Transportation Federal Motor Carrier Safety Administration issued a “Clearinghouse Update” on May 27, 2021 reminding commercial motor vehicle drivers who are regulated by the FMCSA that they should exercise caution when considering whether to use hemp and cannabidiol (CBD) products.  Specifically, the update stated that it is important for all employees who perform safety-sensitive functions, including CDL drivers, to know:

  1.   The U.S. Department of Transportation requires testing for marijuana and not CBD.
  2.   The labeling of many CBD products may be misleading because the products could contain higher levels of tetrahydrocannabinol (THC) than what’s stated on the product label.
  3.   The U.S. DOT’s Drug and Alcohol Testing Regulation, 49 CFR Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason.
  4.   CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.
  5.   Since the use of CBD products could lead to a positive drug test result, U.S. DOT-regulated CDL drivers should exercise caution when considering whether to use CBD products.

The U.S. DOT’s “CBD Notice” may be viewed here.

Alabama Governor Kay Ivey signed legislation legalizing medical cannabis on May 17, 2021. Known as the Darren Wesley “Ato” Hall Compassion Act, the law permits the use of medical cannabis to treat certain medical conditions including Crohn’s disease, depression, epilepsy, HIV/AIDs, panic disorder, Parkinson’s disease, persistent nausea, post-traumatic stress disorder, chronic or intractable pain, among others.  The law was effective immediately upon signing by the Governor, although medical cannabis will not become available for at least a year.

Medical cannabis may be used in a variety of forms including oral tablet, capsule or tincture; gel, oil, cream or other topical preparations; suppository; transdermal patch; nebulizer; liquid oil for administration using an inhaler.  Medical cannabis may not be used by smoking or vaping, or by consuming food products such as cookies or candies.  In addition, the law does not permit recreational marijuana use.

The medical cannabis law contains many favorable provisions for employers.  Specifically:

  1. Employers are not required to permit, accommodate, or allow the use of medical cannabis, or to modify any job or working conditions of any employee who engages in the use of medical cannabis or for any reason seeks to engage in the use of medical cannabis.
  2. Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment as a result, in whole or in part, of that individual’s use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the use of medical cannabis.
  3. Employers are not prohibited from establishing or enforcing a drug testing policy, including, but not limited to, a policy that prohibits the use of medical cannabis in the workplace or from implementing a drug-free workforce program established in connection with the state workers’ compensation premium discount law.
  4. Employers are not prohibited from adopting an employment policy requiring its employees to notify the employer if an employee possesses a medical cannabis card.
  5. The law does not interfere with, impair, or impede, any federal restrictions on employment, including, but not limited to, regulations adopted by the U.S Department of Transportation.
  6. The law does not permit, authorize, or establish any individual’s right to commence or undertake any legal action against an employer for refusing to hire, discharging, tenure, terms, conditions, or privileges of employment due to the individual’s use of medical cannabis.
  7. The law does not require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse an individual for costs associated with the use of medical cannabis.
  8. The law does not affect, alter, or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace policy certified by the state’s workers’ compensation premium discount law.
  9. The law does not affect, alter, or otherwise impact an employer’s right to deny, or establish legal defenses to, the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit or to cooperate with a drug test, as provided in the state workers’ compensation premium discount law.
  10. An individual who is discharged from employment because of that individual’s use of medical cannabis, or refusal to submit to or cooperate with a drug test, shall be legally conclusively presumed to have been discharged for misconduct if the condition of the workers’ compensation premium discount law are met.

Alabama employers should review the law to determine whether any revisions to drug and alcohol testing policies or other workplace policies will be necessary.

The Mississippi Supreme Court held on May 14, 2021 that a citizen initiative to legalize medical marijuana violated the Mississippi Constitution.  The decision turned on the loss of a congressional district due to the 2000 Census.  Butler v. Watson, Case No. 2020-IA-01199-SCT (May 14, 2021).

Background

The Mississippi Constitution allows amendments in two different ways: (1) by the Mississippi Legislature with a vote from qualified electors; or (2) by citizen initiative.  On November 3, 2020, the Secretary of State placed Initiative 65 on the ballot so that Mississippians could weigh in on the issue of medical marijuana.  Mississippians voted overwhelmingly (74.1%) to adopt Initiative 65 thus leading the path towards legalization of medical marijuana use in the state.

Why Did the Supreme Court Nullify the Vote?

Mississippi’s Constitution was enacted in 1890.  According to the Constitution, a citizen initiative to amend the Constitution must include signatures of qualified electors of each congressional district.  The signatures, however, cannot exceed one-fifth of the total number of required signatures.  If the proposed initiative contains signatures from a single congressional district exceeding the one-fifth limitation, the Secretary of State cannot consider those signatures before placing an initiative on the ballot.

At the time of the enactment of the Mississippi Constitution, Mississippi had five congressional seats in the United States of House of Representatives.  The effect of the twenty percent cap, tied to five congressional districts, was that no more than twenty percent of the total number of required signatures would come from each congressional district. The system guaranteed that each congressional district would be equally a part of the process.

Along came the 2000 Census and federal court intervention.  Mississippi lost a representative due to the results of the 2000 census and the Permanent Reapportionment Act of 1929.  When Mississippi failed to redraw its congressional districts to be in line with the Census, the federal courts intervened and redrew the districts for the State in 2002.  Since that time, Mississippi has had only four congressional districts.  However, the Constitution never was amended to change the number of signatures required to place a citizen initiative on the ballot.

After an exhaustive analysis of the Constitutional requirements for a citizen initiative, the Court found that the Secretary of State did not have the authority to place the initiative on the ballot when only four districts submitted signatures.   It was impossible for the Secretary of State to follow the Mississippi Constitution to disregard signatures of qualified electors in excess of twenty percent of the total from any one district.  “In other words, twenty multiplied by four equals only eighty.”  The Court nullified the overwhelming vote to legalize medical marijuana use in Mississippi, noting that the ballot initiative process “cannot work in a world where Mississippi has fewer than five representatives in Congress.”

What Comes Next?

What comes next is anyone’s guess.  The Mississippi Legislature has proposed to legalize medical marijuana use in the past few years; however, the proposals never made it out of committee to a floor vote.  Given the overwhelming vote, it is quite possible that the Mississippi Legislature will take it upon themselves to amend Mississippi’s Constitution and those proposals will get out of committee to a floor vote.

The city of Philadelphia, PA. has enacted a law prohibiting employers from testing for marijuana as a condition of employment, effective January 1, 2022.

The new Chapter 9-4700 of the Philadelphia Code states that except as otherwise provided by law, or as provided in the exceptions (listed below) that it is unlawful for an employer, labor organization, employment agency or agent thereof to require a prospective employee to submit to marijuana testing as a condition of employment.

There are exception in the law for individuals working in certain jobs or professions:

  1. Police officers or other law enforcement positions;
  2. Any position requiring a commercial driver’s license;
  3. Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
  4. Any position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to this Chapter.

The new law also states that it does not apply to drug testing that is required by:

  1. Any federal or state statute, regulation or order that requires drug testing of prospective employees for purposes of safety or security;
  2. Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer than requires drug testing of prospective employees as a condition of receiving the contract or grant; or
  3. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Philadelphia employers should watch for the regulations to be implemented by the agency with enforcement responsibility concerning the types of jobs that “could significantly impact the health or safety of other employees or members of the public.”  In addition, employers should review their drug and alcohol testing policies and be ready to make any required changes prior to January 1, 2022.

A federal court in California dismissed the disability discrimination claims of a job applicant who failed a pre-employment drug test due to medical marijuana use, holding that he did not sufficiently prove that he was disabled.  More specifically, the court concluded that the applicant’s “subjective belief” that he suffered from “chronic back pain” was insufficient to establish that he was disabled for purposes of the California Fair Employment and Housing Act (“FEHA”) where he failed to “provide any supporting documentation . . . to substantiate the nature of his purported physical disability or any consequent restrictions or limitations on his ability to perform his work.” Espindola v. Wismettac Asian Foods, Inc., No. 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021).

The employer extended an offer of employment to the applicant (who lived in Florida) for an executive level position at their location in California.  Pursuant to the offer letter, the applicant’s employment was at-will and subject to the policies set forth in the employer’s Employee HandbookThe Handbook outlined the employer’s drug testing policy and, specifically, its pre-employment drug testing policy.  The employer did not provide the applicant with a copy of the Handbook nor did the employer explicitly state that the offer of employment was contingent upon passing the pre-employment drug test.

After the applicant’s acceptance of the offer of employment, but prior to starting the position, the employer informed the applicant that he must submit to pre-employment drug testing. The applicant requested the testing be delayed because he had contractors working in his home in Florida and he was going overseas to visit his mother.  The employer obliged and delayed the drug test.  A few days later, the applicant sought a medical marijuana card in Florida.  The drug test was delayed until the applicant’s first day on the job in California.  Prior to his first day of work, he never told anyone that he used medical marijuana or that he was disabled.

While completing the completed the onboarding paperwork, the applicant signed a drug testing consent form.  After completing this paperwork, the applicant informed the employer’s CEO that he suffered from “chronic back pain” and that he had obtained a medical marijuana card from the State of Florida.  As proof that he was prescribed marijuana to treat his purported condition, the applicant submitted correspondence from the Florida Department of Health which confirmed the applicant’s approval for a medical marijuana card.  The correspondence, however, did not contain any information regarding the applicant’s underlying medical condition, or the criteria used in deciding whether to issue a medical marijuana card.

A few days later, the applicant submitted to the pre-employment drug test and tested positive for marijuana.  Upon receipt of the drug test results, the employer terminated the applicant’s employment.

The applicant filed a federal action for, among other things, retaliation and disability discrimination under the FEHA for wrongful termination, failure to accommodate, and failure to engage in the interactive process.  The employer moved for summary judgement on all claims arguing that the applicant could not establish a prima facie case for disability under the FEHA because the mere reporting of subjective symptoms is not sufficient to establish a disability under the FEHA.

The Court agreed with the employer, noting that the applicant failed to provide any supporting documentation that would establish that “his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline,” nor did he “provide any explanation or detail concerning how his chronic back pain limited his ability to work.”   The Court also noted that during the short time that the applicant worked for the employer, he worked full days and completed multiple projects without incident, further demonstrating that the applicant’s purported disability did not impact his ability to work. Moreover, the applicant never made any specific request for an accommodation.

The applicant also argued that the pre-employment drug test was illegal because it was conducted after he commenced working and was used as a pretext to fire him for his disability.  The Court rejected these arguments.  The applicant was advised before his employment started that he would be required to submit to pre-employment drug testing and even was granted a delay in testing at his own request.

Accordingly, the Court granted the employer’s motion for summary judgment in its entirety.

The New Jersey Supreme Court ruled that an employer and its workers’ compensation carrier must reimburse an injured worker for his medical marijuana expenses.  Hager v. M&K Construction, 2021 N.J. LEXIS 332 (N.J. April 13, 2021).

Hager suffered a back injury in a work-related accident in 2001.  He underwent surgeries and used opioid medications for chronic pain.  In 2016, Hager enrolled in New Jersey’s medical marijuana program and began using medical marijuana both for pain treatment and to overcome an opioid addiction.  His marijuana prescription cost him more than $600 per month.  A workers’ compensation court ordered the employer to reimburse Hager for the ongoing costs of his medical marijuana costs.  An appellate court affirmed that order.

The employer made several arguments as to why it should not be required to pay for the employee’s medical marijuana expenses.  All were rejected by the New Jersey Supreme Court.

First, the court ruled that the federal Controlled Substances Act (CSA) did not preempt the state’s medical marijuana law, nor would it subject the employer to potential federal criminal liability for aiding-and-abetting.  The CSA is the federal law that makes marijuana illegal.  Despite its illegal status, the court noted that the U.S. Department of Justice has deprioritized marijuana prosecutions and that Congress has prohibited the DOJ from using allocated funds to prevent states from implementing their medical marijuana laws.  The court therefore concluded that the medical marijuana law did not create an obstacle to the accomplishment of congressional objectives and therefore there was no preemption.  In addition, the court was unpersuaded by the employer’s argument that it would be “aiding and abetting” a crime by assisting in Hager’s possession of marijuana which is illegal under the CSA.  Observing that the employer “has gone to great pains” to oppose Hager’s marijuana use – as evidenced by the litigation – reimbursing him for medical marijuana expenses was not aiding his possession of marijuana.  Rather, it was compelled by a court order.  Given the employer’s lack of intent, there was no aiding and abetting of a crime.

Second, the court rejected the employer’s argument that the medical marijuana was not a “reasonable or necessary” treatment under the New Jersey Workers’ Compensation Act.  The court held that medical marijuana may be found – subject to competent medical testimony – to constitute reasonable and necessary care under the New Jersey workers’ compensation scheme.  Hager presented medical testimony that he remained in chronic pain and that ongoing treatment was necessary.  Medical marijuana was deemed to be appropriate medical treatment as it provided pain relief and treated Hager’s addiction to opioids.

Finally, the court rejected the employer’s argument that it fit within an exception in the state’s medical marijuana law.  Specifically, the medical marijuana law provides that reimbursement for medical marijuana costs is not required of “a government medical assistance program or private health insurer.”  The employer claimed to be exempt under this provision.  However, the court held that the legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs.  The legislature could have explicitly exempted workers’ compensation carriers but did not do so. Therefore, there was no exemption from the reimbursement obligation.

2021 has brought a flurry of activity surrounding marijuana laws, particularly recreational marijuana use. The number of states approving recreational marijuana continues to grow.

New Mexico

On April 12, 2021, New Mexico Governor Michelle Lujan Grisham signed the state’s recreational marijuana bill. The New Mexico recreational marijuana law will take effect in late June 2021. Unlike the recent marijuana laws enacted in New York and New Jersey that provide employment protections for off-duty recreational marijuana users, the New Mexico law does not “prevent or infringe upon the rights of an employer to adopt and implement a written zero-tolerance policy regarding the use of cannabis products.”  The law permits employers to take adverse employment actions for the possession or use of marijuana at work or during work hours.  Additionally, the law specifically permits zero-tolerance policies that impose discipline or termination for a positive marijuana test result indicating any amount of THC. However, employers should take note that the law does not restrict rights afforded to medical marijuana users under state law.

Virginia

Effective July 1, 2021, individuals over the age of 21 can lawfully possess up to an ounce of marijuana in Virginia. The new law creates a Virginia Cannabis Control Authority which will implement regulations for the adult use of marijuana market.  In late March, Virginia also amended the state’s medical cannabis law to prohibit discrimination against lawful users of medical cannabis oil. The law, which becomes effective July 1, 2021, does not restrict employers from taking action based on workplace impairment due to use of cannabis oil. It also contains exceptions for employers if compliance with the law would result in a loss of a federal contract or federal funding, and for defense industrial base sector employers.

South Dakota

The fate of recreational marijuana is yet to be determined in South Dakota. As previously reported, voters approved both recreational and medical marijuana initiatives in November 2020. However, the South Dakota recreational measure was later struck down as unconstitutional. That ruling has been appealed, and the South Dakota Supreme Court will hear arguments on the issue later this month.

 

New York Governor Andrew Cuomo signed legislation legalizing recreational marijuana on March 31, 2021. The legalized use of marijuana is effective immediately, even though retail sales of marijuana are not expected to begin until mid-2022. This change potentially immediately impacts a New York employer’s ability to take adverse actions against applicants and employees based on recreational marijuana usage.

The Marihuana Regulation and Taxation Act (MRTA) legalizes and regulates cannabis use and possession for adults who are 21 and older. The MRTA creates a new Cannabis Law and consolidates the laws affecting recreational adult-use of cannabis, medical marijuana, and the cannabinoid hemp program. These programs will be overseen and regulated by a newly created Cannabis Control Board and the Office of Cannabis Management.

Effective immediately, adults who are 21 and older may possess up to three ounces of cannabis and up to 24 grams of concentrated cannabis and may use cannabis except as may otherwise be prohibited by state law.  The law does not permit driving while under the influence of cannabis or smoking cannabis in locations where smoking tobacco is prohibited. It also does not require any individual to engage in any conduct that violates federal law, among other things.

Amendment to Legal Activities Law

The most significant provisions for employers are the amendments to Section 201-d of the New York Labor Law. MRTA provides that an employer must adhere to policies regarding cannabis in accordance with Labor Law Section 201-d. This means that New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property. However, Section 201-d is amended to say that an employer would not be in violation of that law where the employer takes action related to the use of cannabis based on the following:

  1. The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. The employee is impaired by the use of cannabis; meaning, the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
  3. The employer’s actions would require such employer to commit an act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Changes to Medical Marijuana Law

Oversight of the state’s medical marijuana program will shift from the Department of Health to the Office of Cannabis Management. Any medical condition will qualify for medical marijuana use, as recommended by a medical practitioner, and the types of products that may be used will expand and marijuana can be sold to medical users in leaf/flower form.  Medical marijuana users will still be deemed to have a “disability” within the meaning of the New York Human Rights Law.

MRTA also provides that employees who use medical cannabis must be afforded the same rights, procedures, and protections that are available and applicable to injured workers under the workers’ compensation law, when such injured workers are prescribed medications that may prohibit, restrict, or require the modification of the performance of their job duties.

Driving Under the Influence

MRTA directs the state police to increase the number of trained and certified drug recognition experts and provide increased drug recognition awareness and advanced roadside impaired driving enforcement training.

The Department of Health is directed to conduct research to evaluate methodologies and technologies for the detection of cannabis-impaired driving and to present its findings to the legislature on or before December 31, 2022. Thereafter the Department of Health may promulgate rules and regulations to approve and certify a test to detect current cannabis impairment by operators of motor vehicles.

Practical Considerations

New York 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 so that disciplinary actions based on positive marijuana reasonable suspicion tests will be defensible.

The District Court of Connecticut dismissed employment discrimination claims asserted under the Americans with Disabilities Act (“ADA”) with regard to state authorized medical marijuana use.  Eccleston v. City of Waterbury, No. 3:19-cv-1614, 2021 U.S. Dist. LEXIS 52835 (D. Conn. Mar. 22, 2021).

The employee was employed as a firefighter by the City.  His employment was terminated after he tested positive for marijuana on a random drug test.  The employee argued that his test result should have been treated as a negative because he had a Connecticut Registration Certificate for medical marijuana use; however, the City discharged him due to his use of marijuana “such that it has endangered the health and wellbeing of others.”

The employee filed a federal action for disability discrimination under both the ADA and state medical marijuana laws.  The City moved to dismiss the employee’s ADA claims arguing that the statute specifically excludes “any employee . . . who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” Id. (quoting 42 U.S.C. § 12111(6); 21 U.S.C. § 812(b)(1)(a)-(c)).  The court noted that the ADA relies on the federal Controlled Substances Act to define “illegal drug use,” and under the Controlled Substances Act, marijuana is an illegal drug.

The City further argued that the employee’s marijuana use did not qualify for ADA protection under the supervision of a physician exception because the use of marijuana is still strictly prohibited under federal law.  The Court agreed with the City and concluded that the employee’s state-sanctioned use of medical marijuana was not protected by the ADA.

The Court further held that the employee failed to state a claim for discrimination based upon the illness underlying his medical marijuana state certification because he did not claim that he ever informed his employer of the medical condition.

Additionally, the employee asserted that his state certification to use medical marijuana entitled him to the reasonable accommodation of testing positive for marijuana with impunity.  The Court again disagreed, citing to several federal cases which relied upon the Controlled Substances Act’s “classification of marijuana as a Schedule I illegal substance to conclude that using marijuana is not a reasonable accommodation.”

With regard to the employee’s retaliation claim, the Court held that merely indicating to his employer that he was considering obtaining a medical marijuana card did not qualify as a protected activity under the ADA.

Accordingly, the Court dismissed the employee’s federal claims under the ADA and declined to exercise supplemental jurisdiction over the state law claims.  The state law claims were therefore dismissed without prejudice so the employee may refile in State court.

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.