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

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

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

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

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

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

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

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

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

FMCSA Waives Certain License Renewals, Medical Card Renewals, and Requires Reporting of Accidents For Drivers Operating Under Waiver

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration issued a “Waiver in Response to COVID-19 Emergency” on March 24, 2020 concerning renewals of licenses and medical certifications for holders of commercial drivers’ licenses (CDL), commercial learner’s permit (CLP) holders, and other interstate drivers operating commercial motor vehicles. The waiver took effect on March 20, 2020 and expires on June 30, 2020. It was initiated in response to the President’s declaration of a national emergency related to COVID-19.

Regulatory Provisions Waived

Among other things, FMCSA’s waiver:

  • Extends the validity of CDLs and CLPs due for renewal on and after March 1, 2020 until June 30, 2020.
  • Waives the requirement under 49 CFR 391.45 that CDL holders, CLP holders, and non-CDL drivers have a medical examination and certification, provided that they have proof of a valid medical certification that was issued for a period of 90 days or longer and that expired on or after March 1, 2020.
  • Waives the requirement under 49 CFR 383.71(h)(3) that, in order to maintain the medical certification status of “certified,” CDL or CLP holders provide the State Driver Licensing Agency with an original or copy of a subsequently issued medical examiner’s certificate, provided that they have proof of a valid medical certification that expired on or after March 1, 2020.
  • Waives the requirement under 49 CFR 383.73(o)(2) that the State Driver Licensing Agency change the CDL or CLP holder’s medical certification status to “not certified” upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification that expired on or after March 1, 2020.
  • Waives the requirements under 49 CFR 383.73(o)(4) that the State Driver Licensing Agency initiate a CDL or CLP downgrade upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification or medical variance that expired on or after March 1, 2020.

Terms, Conditions, and Restrictions of the Waiver

  1. This waiver does not apply to a CDL or CLP holder if the driver’s license expired before March 1, 2020.
  2. This waiver does not apply to a CDL or CLP holder if the driver’s privileges have been suspended or withdrawn for traffic offenses.
  3. Drivers claiming relief under this waiver from the requirement for a valid medical certificate must have proof of a valid medical certificate that expired on or after March 1, 2020, and carry a paper copy of their expired medical certificates.
  4. Drivers who cannot produce evidence of a prior medical certification that expired on or after March 1, 2020, are not covered under this waiver, including new drivers who have never obtained a medical certification.
  5. Drivers who, since their last medical certificate was issued, have been diagnosed with a medical condition that would disqualify the driver from operating in interstate commerce, or who, since their last medical certificate was issued, have developed a condition that requires an exemption or Skill Performance Evaluation from FMCSA are not covered under this waiver.
  6. This waiver does not apply to medical examiner’s certificates originally issued for less than 90 days.
  7. Notification to FMCSA of Accidents. Each motor carrier must notify FMCSA within 5 business days of an accident (as defined in 49 CFR 390.5), involving any CDL holder, CLP holder, or non-CDL driver operating under the terms of this waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry.)  Notification shall be by email to MCPSD@DOT.GOV. The notification must include the following information:
    • Date of the accident;
    • City or town, and State in which the accident occurred, or closest to the accident scene;
    • Driver’s name and license number;
    • Vehicle number and State license number;
    • Number of individuals suffering physical injury;
    • Number of fatalities;
    • The police-reported cause of the accident (if available at time of the report); and,
    • Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations.

FMCSA reserves the right to revoke this waiver for drivers’ involvement in accidents, motor carriers’ failure to report accidents, and drivers’ failure to comply with the restrictions of this waiver.

 

FMCSA Addresses Potential Disruptions To Drug And Alcohol Testing During COVID-19 Crisis

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration issued guidance on March 24, 2020 to address potential disruptions to mandated drug and alcohol testing during the COVID-19 crisis. The FMCSA guidance, which will remain in effect until June 30, 2020, states in pertinent part:

The Federal Motor Carrier Safety Administration (FMCSA) regulations provide reasonable flexibility to motor carrier employers and their drivers subject to testing under 49 CFR part 382 to address the COVID-19 national emergency. FMCSA is aware that, as described in ODAPC’s guidance, disruptions caused by the COVID-19 national emergency are interfering with, and in some cases, may be preventing, employer and driver compliance with current drug and alcohol testing requirements. In addition to the guidance provided by ODAPC, see below for further information specifically related to FMCSA’s testing requirements.

Recommended actions for FMCSA-regulated employers unable to conduct:

  • Random Testing You are required by 49 CFR 382.305(k) to ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. DOT guidance further recommends that you perform random selections and tests at least quarterly. For further guidance see https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Best_Practices_for_DOT_Random_Drug_and_Alcohol_Testing_508CLN.pdf.  If, due to disruptions caused by the COVID-19 national emergency, you are unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing, and 10% for alcohol testing, you should make up the tests by the end of the year.  You should document in writing the specific reasons why you were unable to conduct tests on drivers randomly selected, and any actions taken to locate an alternative collection site or other testing resources.
  • Pre-Employment Testing If you are unable to conduct a pre-employment controlled substances test, in accordance with 49 CFR 382.301(a), you cannot allow a prospective employee to perform DOT safety sensitive functions until you receive a negative pre-employment test result, unless the exception in 49 CFR 382.301(b) applies.
  • Post-Accident Testing You are required to test each driver for alcohol and controlled substances as soon as practicable following an accident as required by 49 CFR 382.303. However, if you are unable to administer an alcohol test within 8 hours following the accident, or a controlled substance test within 32 hours following the accident, due to disruptions caused by the COVID-19 national emergency, you must document in writing the specific reasons why the test could not be conducted, as currently required. See 49 CFR 382.303(d) and FMCSA Guidance at: https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/commercial-motor-vehicle-operator-involved-accident-which
  • Reasonable suspicion testing – You should document in writing the specific reasons why the test could not be conducted as required; include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. This documentation should be provided in addition to the documentation of the observations leading to a test, as required by 49 CFR 382.307(f). Follow current regulations addressing situations in which reasonable suspicion testing is not conducted, set forth in 49 CFR 382.307(e)(1), (2).
  • Return-to-duty (RTD) testing – In accordance with 49 CFR 40.305(a), you must not allow the driver to perform any safety-sensitive functions, as defined in 49 CFR 382.107, until the RTD test is conducted and there is a negative result.
  • Follow-up testing –  If testing cannot be completed, you should document in writing the specific reasons why the testing could not be conducted as in accordance with the follow-up testing plan; you should include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. You should conduct the test as soon as practicable.

FMCSA-Regulated Employees:

Please follow the ODAPC guidance, as set forth below, and available at: https://www.transportation.gov/odapc/compliance-with-dot-drug-and-alcohol-testing-regulations.

  • If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
  • If you have COVID-19-related concerns about testing, you should discuss them with your employer. FMCSA joins ODAPC in suggesting that employers respond to employee concerns in a sensitive and respectful way.

As a reminder, it is the employer’s responsibility to evaluate the circumstances of what may be considered an employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).

U.S. DOT Issues Guidance Regarding Drug And Alcohol Testing During COVID-19 Crisis

The U.S. Department of Transportation Office of Drug and Alcohol Policy Compliance issued guidance on March 23, 2020 to provide clarity with respect to existing requirements for DOT-mandated drug and alcohol testing during the COVID-19 crisis. DOT agencies include the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Administration. In short, DOT drug and alcohol testing requirements remain in effect.  The ODAPC guidance states, in pertinent part:

For DOT-Regulated Employers:

  • As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. [How to conduct testing is found in 49 CFR Part 40 (see https://www.transportation.gov/odapc/part40 ), while who gets tested and when (along with drug and alcohol-related training requirements) can be found in the applicable DOT modal regulations (see https://www.transportation.gov/odapc/agencies)].
  • However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP).  You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available. [As a reminder, point-of-collection testing or instant tests are not authorized in DOT drug testing (see https://www.transportation.gov/odapc/part40/40-210)].
  • If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed.  If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations.  Links to the modal regulations and their respective web pages can be found at https://www.transportation.gov/odapc/agencies.
  • If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply.  For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).
  • Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment.  Employers should review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
  • As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).  However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites.  DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
  • Employers should revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions.  For example, these plans should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency.  Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.

For DOT-Regulated Employees:

  • If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
  • If you have COVID-19-related concerns about testing, you should discuss them with your employer.
  • As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).

For Service Agents:

  • As a collector, BAT, laboratory, MRO, or SAP, you should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with State or local mandates related to COVID-19.  Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from State and local officials, and guidance from the Centers for Disease Control and Prevention (CDC).

You are encouraged to continue to monitor guidance from public health officials and to refer to official government channels for additional information related to COVID-19. The CDC provides helpful guidance and insight from medical professionals who closely monitor the virus. The CDC latest updates (https://www.cdc.gov/coronavirus/2019-ncov/index.html). Also for reference, the Occupational Safety and Health Administration has released guidance on preparing workplaces for COVID-19 (https://www.osha.gov/Publications/OSHA3990.pdf).

 

New York City Commission On Human Rights Proposes Exceptions To Prohibitions On Pre-Employment Marijuana Testing

The New York City Commission on Human Rights announced a notice of public hearing and opportunity to comment on a proposed rule providing exceptions to the prohibition on pre-employment marijuana testing that will take effect in the City on May 10, 2020.   Comments on the proposed rule may be submitted in writing by April 16, 2020, or may be made at a public hearing held on April 16, 2020 at 22 Reade Street, New York, New York.

As we discussed in an earlier blog post, the New York City Human Rights Law was amended last year to prohibit employers from conducting pre-employment testing for marijuana, effective May 10, 2020. While the law contains some exceptions, it also provided for additional exclusions for positions “with the potential to significantly impact the health or safety of employees or members of the public as determined by . . . (ii) the chairperson, and identified in regulations promulgated by the commission.”  Now, the Commission is proposing to amend its rules to clarify exceptions to the general prohibition on pre-employment testing for marijuana.

The proposed amendment to Chapter 2 of title 47 of the Rules of the City of New York would add a new section 2-07 that reads as follows:

Section 2-07 Exceptions to the General Prohibition on Preemployment Testing for Tetrahydrocannabinols or Marijuana

(a)  Exceptions Based on Significant Impact to Health or Safety: A position is deemed to significantly impact the health or safety of employees or members of the public and to be exempt from the prohibition on preemployment testing for tetrahydrocannabinols or marijuana under section 8-107(31) of the Administrative Code if:

    1. The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
    2. The position requires that an employee regularly operate heavy machinery;
    3. The position requires that an employee regularly work on power or gas utility lines;
    4. The position requires that an employee operate a motor vehicle on an approximately daily basis; or
    5. Impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm or the employee or to other people.

(b)  For purposes of this section, a “significant impact on health and safety” does not include concerns that a positive test for tetrahydrocannabinols or marijuana indicates a lack of trustworthiness or lack of moral character.

Anyone wishing to comment on the proposed rules may comment as follows:

  • Website: You can submit comments to the Commission through the NYC rules website at http://rules.cityofnewyork.us.
  • E-mail: You can e-mail comments to policy@cchr.nyc.gov.  Include a reference in the subject line to “Proposed Rules on Preemployment Testing For Marijuana.”
  • Mail:   You can mail comments to the Office of the Chair, New York City Commission on Human Rights, 22 Reade Street, New York New York 10007.
  • Fax: You can fax comments to Zoey Chenitz, Senior Policy Counsel, (646) 500-7330.
  • Speak at the Hearing: Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by emailing policy@cchr.nyc.gov. You can also sign up in the hearing room before the hearing begins on April 16, 2020. You can speak for up to three minutes.

Written comments must be submitted by April 16, 2020.

 

FMCSA Suspends Certain Safety Rules In Response To COVID-19 Outbreak, Excluding Drug and Alcohol Testing

The Federal Motor Carrier Safety Administration announced on March 13, 2020 that due to the COVID-19 outbreak, an emergency exists that warrants an exemption from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations for certain motor carriers and their drivers.  Specifically, the Emergency Declaration provides regulatory relief for commercial motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for: (1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; (2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants; (3) food for emergency restocking of stores; (4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19; (5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and (6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response. Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390 through 399, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399. However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location. Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

The Emergency Declaration does not provide exemptions from the drug and alcohol use testing requirements (49 CFR Part 382), the commercial driver’s license requirements (49 CFR Part 383), the financial responsibility (insurance) requirements (49 CFR Part 387), the hazardous material regulations (49 CFR Parts 100-180), applicable size and weight requirements, or any other portion of the regulations not specifically exempted under to 49 CFR § 390.23.

The Emergency Declaration is effective until the termination of the emergency or until 11:59 P.M. (ET) on April 12, 2020, whichever occurs sooner.

New Jersey Medical Marijuana User May Proceed With Discrimination Claim

The New Jersey Supreme Court affirmed an appellate court ruling allowing a medical marijuana user to proceed with his disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”).  Wild v. Carriage Funeral Holdings, Inc., No. 082836 (Mar. 10, 2020).

The plaintiff, a cancer patient and lawful user of medical marijuana, was involved in a motor vehicle accident while at work. He told a hospital physician that he possessed a license to use medical marijuana; however, the physician decided not to order a drug test because “it was clear” that the plaintiff was not under the influence of marijuana at that time.  The plaintiff subsequently was required to submit to drug testing by his employer before returning to work. The employer claimed it terminated the plaintiff’s employment due to his failure to disclose his lawful use of marijuana, not the positive drug test result.

The plaintiff filed a suit alleging disability discrimination and failure to accommodate under the LAD. At that time, the state medical marijuana law (Compassionate Use Medical Marijuana Act, “CUMMA”) did not provide employment protections to users of medical marijuana.

The trial court granted the employer’s motion to dismiss after determining that the CUMMA “does not contain employment-related protections for licensed users of medical marijuana.” But the Appellate Division reversed, as we discussed in our earlier blog post, Medical Marijuana Users May Not Be Discriminated Against In New Jersey.  After that decision, the CUMMA was amended expressly to prohibit employers from taking adverse employment actions against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient. See our article on the amendment, New Jersey Amends Medical Marijuana Law to Provide Job Protections, Include Drug Testing Procedures.

The New Jersey Supreme Court affirmed the Appellate Division’s ruling, concluding that the plaintiff stated a LAD claim that was sufficient to survive a motion to dismiss. Specifically, the plaintiff’s discrimination claims “derived in part from [the plaintiff’s] assertion that, outside the workplace, he lawfully used medical marijuana” for medical reasons, that is, to treat the symptoms of his cancer.  Moreover, there is no conflict between the CUMMA and the LAD, although there are two provisions of the CUMMA that could affect a plaintiff’s claim in certain settings, specifically: (1) the CUMMA does not require an employer to accommodate an employee’s use of medical marijuana in the workplace; and (2) CUMMA does not require an employer to permit any person to “operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.”

The Court’s decision reminds employers to ensure company policies and protocols regarding medical marijuana meet the requirements in the CUMMA (now known as the Jake Honig Compassionate Use Medical Cannabis Act). More importantly, this case serves as a caution to employers that regardless of the language in a state’s medical marijuana statute, a plaintiff may assert a disability discrimination claim in connection with their disability and related use of medical marijuana. Proper policies, compliant protocols, and training for management and human resources professionals are recommended to avoid potential claims.

FDA Reiterates Potential Safety Risks of Using CBD Products

The U.S. Food and Drug Administration repeated its warning to the public about the potential risks of using CBD products in a statement released on March 5, 2020, FDA Advances Work Related to Cannabidiol Products with Focus on Protecting Public Health, Providing Market Clarity.

The FDA has been evaluating the safety of CBD products for the last year. There are many CBD products on the market such as oil drops, capsules, syrups, food products (such as chocolate bars and teas), cosmetics and other topical lotions and creams, as well as products marketed for pets and other animals. However, the FDA remains concerned that some people wrongly think that the myriad of CBD products on the market have been evaluated by the FDA and determined to be safe, or that using CBD “can’t hurt.” Aside from one prescription drug approved to treat two rare forms of epilepsy, no other CBD products have been evaluated or approved by the FDA.

In particular, the agency recently updated the public on concerns about potential harm from CBD products, including potential liver injury, interactions with other drugs and male reproductive toxicity, as well as side effects such as drowsiness. In addition, little is known about the potential effects of sustained and/or cumulative use of CBD, co-administration with other medicines, or the risks to vulnerable populations like children, pregnant and lactating women, the elderly, unborn children and certain animal populations. The FDA stated that it is “not at a point where we can conclude that unapproved CBD products are safe for use. We encourage Americans to consult with their health care providers before using CBD products.”

The FDA seeks reliable and high-quality scientific research and data regarding CBD and has re-opened its public docket established last year for submission of such research and data.

Another issue that was not addressed by the FDA but which should be noted by users of CBD products is that due to the unregulated nature of these products, they may contain THC – the psychoactive component of marijuana. THC is what causes a positive drug test result for marijuana. A CBD user may test positive for THC on a drug test, even if the user believes that the CBD product has little or no THC in it.

U.S. DOT Issues Warning Regarding Use Of CBD Products By DOT-Regulated Employees

The U.S. Department of Transportation Office of Drug and Alcohol Policy Compliance published a notice on February 18, 2020 concerning the use of hemp and cannabidiol (CBD) products by safety-sensitive employees regulated by DOT’s agencies (including the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Administration, as well as the U.S. Coast Guard). Among other things, ODAPC stated the following:

“The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act.  Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances.  THC is the primary psychoactive component of marijuana.  Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products.  Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include:  pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

    1. The 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 THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.”  The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”  Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
    3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, 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.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana.  Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”

Employer’s Request to Count Employee’s Prescription Medication Sufficient to Support Invasion of Privacy Claim

A federal court in Alabama held that an employer’s request to count an employee’s prescription medication – in connection with a drug test that the employee passed – supported the employee’s claim for invasion of privacy. Effinger v. Birmingham-Jefferson County Transit Authority, Case no. 2:19-cv-00766-KOB (N.D. Al. Jan. 23, 2020).

The plaintiff was a former employee employed as a bus driver for the Birmingham-Jefferson County Transit Authority. According to the bus driver, she was required to undergo a drug test that was labelled a “post-accident drug test” on a form that she was made to sign (even though she had not been involved in an accident). She then was required to submit to a directly-observed urine collection and suspended pending receipt of the drug test result.

A week later, the bus driver returned to work to discuss her drug test result, which she had passed. The employer required her to bring her medications with her. The bus driver brought empty containers for her birth control and another medication that was prescribed to be taken “as needed” when off-duty since her involvement in a bus accident five years earlier. The employer’s Human Resources representative told the bus driver that she was required to bring the actual medication to work so that the Human Resources representative could count it. The bus driver refused, because she thought that the handling of her medication would be unsanitary and unnecessary.

The bus driver’s employment subsequently was terminated, allegedly due to a perception that she was “mentally ill” and posed a “direct threat” of harm. She filed suit, alleging among other things that she was “regarded as” disabled, and that the request to count her medication constituted an invasion of privacy.

The employer made a motion for judgment on the pleadings which the court denied. Specifically, the court held that the bus driver adequately pled that she was terminated based on a perception that she was disabled, i.e., mentally ill.   Moreover, she adequately pled her invasion of privacy claim. The court held that “a reasonable person could find that a coerced investigation of medication meant to be ingested, constitutes a highly offensive intrusion into personal affairs that would cause outrage or mental suffering.” In addition, a reasonable person could find the request to count the medication suspect given that the bus driver already had passed the drug test.

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