A federal appeals court in Minnesota has held that the Minnesota drug testing statute applies to an applicant tested in Minnesota, even though the applicant was being hired for a job in another state.  Olson v. Push, Inc., No. 14-3160 (8th Cir. Feb. 22, 2016).

Push, Inc., a Wisconsin corporation, hired Olson, a Minnesota resident, for a job in West Virginia.  Olson accepted the job and underwent a pre-employment drug test in Minnesota.  He started working in West Virginia three days later.  When the drug test result came back as “dilute” five days later, Push treated it as a positive result and terminated Olson’s employment.

Olson filed suit in Minnesota, alleging violation of The Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), which prohibits an employer from terminating an employee for a first-time positive drug test result.  Given that Olson had already commenced working, he was no longer an applicant.  The law defines “employer” as “a person or entity located or doing business in [Minnesota] and having one or more employees.”

Push removed the action to federal court based on diversity jurisdiction.  Although Push conceded that it was “doing business” in Minnesota, the district court dismissed the complaint because it interpreted “doing business” under DATWA to mean “relevant business—namely, the employment for which [the entity] is conducting drug testing” and therefore DATWA did not apply.

The Eight Circuit Court of Appeals reversed, finding that:

DATWA contains no language limiting its application only to drug testing of those employees whoseemployment is directly related to an employer’s Minnesota business activities; rather, the legislature drafted DATWA broadly to encompass all employers that are located in Minnesota, and all employers that conduct business in Minnesota.  We also note that the Supreme Court of Minnesota would not read into a statute a requirement that the legislature has purposely or inadvertently omitted; thus, contrary to the district court’s interpretation, we decline to read into DATWA’s statutory definition of “employer” a requirement that there be a nexus between the drug testing and “relevant business.”

The Court further explained that “a broad construction of ‘employer’ is eminently compatible with DATWA’s purpose, which is to provide employees additional protections in relation to employer-requested drug and alcohol testing.  Moreover, in any case, the definition of “employer” is constrained by the bounds of due process.  In order for a state’s substantive law to be constitutionally applied in a particular case, the state must have a significant contact or a significant aggregation of contacts with the parties or the underlying facts giving rise to the litigation, creating a state interest, such that the application of its law is neither arbitrary nor fundamentally unfair.  In sum, the Court held that DATWA applied to this case because Push did business in Minnesota, hired a Minnesota resident and permitted the pre-employment drug test to be conducted in Minnesota.

Employers doing business in Minnesota and conducting drug testing in Minnesota should take note.  This case also highlights the importance of waiting for receipt of the pre-employment drug test result before permitting an applicant to begin working.

An employee who was allegedly fired for refusing to admit he had a substance abuse problem presented sufficient evidence to advance his claim under the “regarded as” prong of the Americans with Disabilities Act, according to a Massachusetts federal court. The employer denied terminating the employee or demanding that he admit having a substance abuse problem.  The Court granted summary judgment on the employee’s Massachusetts anti-discrimination law claim, applying pre-ADA amendment case law, but denied summary judgment on the ADA claim. Izzo v. Genesco, Inc. d/b/a LIDS, Case No. 14-cv-13607-ADB (D. Mass. Mar. 22, 2016).

Plaintiff was hired in 2006 and was promoted several times before becoming manager of the employer’s Braintree, MA. store. During 2012, the Braintree store performed poorly, as evidenced by flagging sales. Plaintiff alleged that during a store visit in August 2012, his supervisor demanded that Plaintiff admit to having a substance abuse problem.  Plaintiff further alleged his supervisor told him he would be terminated if he did not admit to abusing drugs.  When Plaintiff refused to comply with the direction, the supervisor allegedly followed through on the threat and terminated him.

Defendant disputed Plaintiff’s account, and maintained Plaintiff had resigned. Plaintiff’s supervisor testified that he was concerned about Plaintiff and tried to determine if Plaintiff was experiencing personal problems.  The supervisor claimed he reminded Plaintiff about the company’s Employee Assistance Program (EAP) that offered treatment programs for drugs and alcohol.  The supervisor also testified that he offered Plaintiff a leave of absence.  According to the supervisor, Plaintiff put down his keys and walked out.  The supervisor’s account was supported by a phone log memorializing a conversation between the supervisor and the Human Resources Department the day of the incident, as well as testimony of another store manager.

Alcoholism is covered under the ADA, regardless of whether the employee is a recovering alcoholic or a current user. However, the same is not true for illegal drug users.  Employees who are “currently engaging in the illegal use of drugs” are not covered under the ADA.  On the other hand, recovering addicts who are not currently engaging in illegal drug use may be covered.  The ADA also protects employees who are not engaging in the illegal use of drugs but are “erroneously regarded” as doing so.

The Court denied Defendant’s motion for summary judgment on Plaintiff’s ADA claim. The Court found Plaintiff satisfied his prima facie case, because there were factual disputes as to whether Plaintiff’s supervisor erroneously perceived him as a current drug user and whether Plaintiff was terminated or resigned.  Defendant argued summary judgment was still appropriate based on Plaintiff’s poor performance.  The Court disagreed, stating, “Though it is undisputed that [Plaintiff’s] work performance was lacking…it is disputed whether this was the reason he was let go.”

This case serves as a reminder that employers must tread carefully when addressing suspected employee substance abuse, as the ADA’s protection in this area is expansive.

Although an employee clearly refused a drug test under an employer’s drug and alcohol policy, an appellate court in Alabama remanded the case to the trial court because the employer’s policy did not clearly define the testing methods to be utilized, which was an important component of determining the employee’s eligibility for unemployment benefits. Austal USA, LLC v. Ala. Dep’t of Lab., No. CV-15-900034 (Ala. Civ. App. Mar. 18, 2016).

Kenneth Johnson was employed as an electrician by Austal USA, LLC, which builds ships for the U.S. Navy. Pursuant to Austal’s “Drugs and Alcohol Zero Tolerance Policy,” Johnson was selected for a random drug test.  The drug policy provided that refusing to test will lead to immediate termination.  Johnson’s initial drug screen, conducted on the Company’s premises, was positive for amphetamines and methamphetamines. Austal immediately offered Johnson a second test, provided at the company’s own expense, at an outside medical clinic.  Johnson refused and was terminated.

Johnson filed for unemployment benefits, which the Department of Labor initially approved. Austal appealed and the Department of Labor’s decision was affirmed.  Austal then filed suit in court and a trial court granted the Department of Labor’s summary judgment motion.  The trial court relied on the uncontested fact that Johnson’s failed initial test did not comply with U.S. Department of Transportation regulations.  Under Alabama Civil Regulations, “refusal to submit to or cooperate with a blood or urine test after previous warning” may result in disqualification of unemployment compensation if that test is DOT-compliant (or the employer utilizes other reliable testing standards).

On appeal, the Department of Labor argued that there must be a confirmed positive test result in order for an employee to be disqualified from receiving unemployment benefits. Austal argued that Johnson was terminated because he refused the second drug test, and the Court of Civil Appeals noted that Johnson received the employer’s drug policy which warned him that refusing a drug test would lead to termination.  Because the record was clear that Johnson failed to cooperate with the second drug test and was aware that it would result in his termination, the trial court erred by granting the Department of Labor’s motion for summary judgment.

However, the Court of Civil Appeals remanded for further litigation regarding the procedure to be followed for the second test. Despite testimony from an Austal manager that second tests are administered pursuant to DOT regulations, the employer’s Policy “[was] completely devoid of an established procedure for the physical administration of a drug test.”  Specifically, the policy did not mention that employees would be required to submit to a second test after an initial on-site positive test result, and the policy further did not clarify whether the second test was performed on the original specimen or on a new specimen.  This lack of clarity required remand to the trial court to determine whether the refused test complied with DOT standards or was “otherwise reliable.”

This case highlights one of the many reasons why employers should have clear, detailed drug and alcohol testing policies, including a description of the testing methods to be followed. When a testing policy is silent or vague on a particular issue, a court is likely to refer the issue to the finder of fact.

The U.S. Supreme Court denied a motion filed by the states of Nebraska and Oklahoma for leave to file a complaint against the state of Colorado, challenging that State’s legalization of marijuana. The Supreme Court denied the motion without opinion or explanation on March 21, 2016.

In December 2014, Nebraska and Oklahoma moved for leave to file a complaint against Colorado, arguing that Colorado’s legalization of marijuana was unconstitutional. They contended, among other things, that the state’s marijuana legalization program violated the federal Controlled Substances Act, which makes the cultivation, trafficking and possession of marijuana unlawful and that federal law is controlling under the U.S. Constitution.  They further argued that Colorado’s “legal” marijuana flowed into their neighboring states, creating a variety of law enforcement problems.  Nebraska and Oklahoma invoked a rarely used constitutional provision giving the High Court original jurisdiction over suits between states.  They sought a declaration that the Colorado legalization program was unconstitutional.

Justices Thomas and Alito filed a dissenting opinion from the denial of the motion for leave to file a complaint. Writing the dissent, Justice Thomas stated that the Supreme Court has original jurisdiction over controversies between States and that federal law does not give the Court discretion to decline cases within its original jurisdiction, even though the Court has long exercised such discretion.  Finding that the Court’s discretionary approach to exercising original jurisdiction was “questionable,” and because the plaintiff States made a reasonable case that the dispute fell within the Court’s original jurisdiction, Justice Thomas stated that he would have granted the plaintiff States leave to file the complaint.

It appears, however, that litigation between these States still is possible. Nebraska Attorney General Doug Peterson stated that “the Supreme Court has not held that Colorado’s unconstitutional facilitation of marijuana industrialization is legal and the court’s decision does not bar additional challenges to Colorado’s scheme in federal district court.”

On the federal level, it is now up to Congress to decide the federal government’s position with regard to marijuana. The Compassionate Access, Research Expansion, and Respect States (CARERS) Act of 2015 – which seeks to downgrade marijuana from a Schedule I to a Schedule II drug (among other things) — has languished in committee since March 2015.

 

The Montana Supreme Court has upheld against a state constitutional challenge the State’s 2011 Montana Marijuana Act, a new statutory framework embodying the State’s effort to limit abuses resulting from the 2004 Medical Marijuana Act, which was established by voter initiation. Montana Cannabis Industry Ass’n v. The State of Montana, 2016 Mont. LEXIS 168 (Feb. 25, 2016).  The decision could benefit employers by limiting the availability of marijuana among persons not authorized to use it for medical purposes.

Relying principally on a substantive due process analysis, the Supreme Court vacated a state district court’s injunctions against: (1) a provision in the 2011 law that requires the Department of Health and Human Resources to notify the Board of Medical Examiners of any physician who certifies 25 or more patients in a year for medical marijuana; (2) a provision limiting to three the number of registered patients providers of marijuana and marijuana-infused products can assist; and (3) a prohibition against providers advertising “marijuana or marijuana-related products in any medium, including electronic media”.  Contrary to the lower court, it found these statutory prohibitions to be constitutional on their face.

The Supreme Court, however, declared to be unconstitutional under the equal protection and due process clauses of the Montana constitution a prohibition against providers accepting remuneration for their products or services relating to medical marijuana. The statute barred providers from accepting reimbursement from a medical marijuana cardholder for more than the provider’s application or renewal fee for a registry identification card, and from accepting “anything of value, including monetary remuneration, for any services or products provided to a registered cardholder,” and from buying or selling marijuana plants or products.  The court was concerned that a complete prohibition against compensation bore no rational relationship to the Legislation’s apparent objective of preventing large-scale marijuana production operations from serving as fronts for illegal drug trafficking that could funnel money to cartels, gangs and other criminal enterprises.  Such restriction also would be “invidious,” the court found, because even when medical marijuana was approved by a physician, “it would have no commercially available source of supply.”  The court permanently enjoined enforcement of these provisions.

The State Supreme Court affirmed the lower court in upholding the facial validity of the new law’s provision prohibiting probationers from becoming registered cardholders and a provision allowing warrantless inspections of medical marijuana providers’ business by the Department and law enforcement agencies.

The court’s decision generally sustaining the revised Medical Marijuana Act’s provisions should help employers by limiting the likelihood of marijuana abuse. It bears noting that although the legality of the state law in the face of the federal Controlled Substances Act (which makes marijuana illegal as a Schedule I drug) was not before the court, the court’s opinion repeatedly referenced this “elephant in the room,” and it likely informed much of the court’s opinion.

An employee terminated immediately upon his return from medical leave for alcohol rehabilitation presented sufficient evidence of discrimination under the Family and Medical Leave Act, Americans with Disabilities Act and Ohio state law to present his case to a jury, according to a federal court in Ohio. The employer claimed that the employee had been terminated for misappropriating company goods, but e-mail exchanges between several supervisors discussing Plaintiff’s alcoholism, as well as the timing of his termination, could show pretext. Lankford v. Reladyne, LLC, 32 AD Cases 959 (S.D. Ohio Nov. 19, 2015).

Plaintiff was a sales representative for Defendants, who provide motor supplies to car dealerships. On January 28, 2014, Plaintiff requested FMLA leave to attend an alcohol rehabilitation program.  Shortly before Plaintiff requested leave, one of Defendants’ employees informed them that Plaintiff had given free supplies to a customer in exchange for a free oil change given to Plaintiff’s mother.  On February 4, 2014, seven days after Plaintiff requested leave, Defendants investigated the incident and it was determined a meeting with Plaintiff was necessary upon his return to work.  At the meeting, Plaintiff denied any knowledge of how his mother came into possession of the coupons used for her free oil exchange.  Defendants nevertheless terminated Plaintiff, who subsequently brought suit for disability discrimination, unlawful FMLA interference and unlawful retaliation.

Defendants moved for summary judgment on each of Plaintiff’s claims, arguing they legitimately and non-discriminatorily terminated Plaintiff due to his misappropriation of company supplies. The Court rejected Defendants’ arguments, holding that Plaintiff produced sufficient circumstantial evidence for a reasonable jury to conclude Defendants’ offered justification for Plaintiff’s termination was merely pretext.  Among other things, the Court pointed to an email in which Defendants’ Vice President of Sales and Marketing, stated “we have too many signs to ignore and not proactively address,” after learning of Plaintiff’s request for leave.  In another statement, this VP also said “[the oil change] was not the only reason [Plaintiff] was fired.”  Plaintiff had received overwhelmingly positive reviews just six weeks earlier.  Relying on these facts as well as the temporal proximity between Plaintiffs medical leave and his termination, the Court denied Defendants’ motion for summary judgment.

An employer’s reliance on a positive alcohol test was held to be a legitimate and non-discriminatory basis for termination, despite the terminated employee’s argument that the test result was inaccurate.  Clark v. Boyd Tunica, Inc., 2016 U.S. Dist. LEXIS 35223 (N.D.  Miss. March 1, 2016).

Plaintiff, a line cook at Boyd Tunica, Inc., underwent a routine drug and alcohol test after breaking her ankle at work, as the Company’s Substance/Alcohol Abuse and Drug Testing Policy mandated testing of all employees injured on the job.  Although her blood test was negative, the urine screen indicated Plaintiff was “positive for alcohol at the level of .12%”  — well above the legal limit in Mississippi and in violation of Company policy, which prohibited employees from being under the influence of alcohol while at work.

After learning of the positive test result, Boyd Tunica’s management asked Plaintiff whether she was taking any medications “to determine if anything she was taking could have created a false positive.”  Plaintiff informed the Company that she was taking medication for her diabetes.  Boyd Tunica relayed this information to its testing laboratory, which confirmed that the “medication would have no effect on the test results, that the urine test for alcohol was more accurate than the blood test, and that the test result showing alcohol was accurate.”  The Company subsequently discharged Plaintiff for violating its zero-tolerance policy.  Plaintiff filed suit, alleging that the test results were inaccurate and could have been affected by her medication and that she actually was terminated because of her purported disability (her broken ankle).

The Court granted Boyd Tunica’s motion for summary judgment, noting that, among other things, the employer always terminated employees who tested positive for alcohol on the job.  The Court held that even if Plaintiff was able to establish a prima facie case of disability discrimination, “Federal Courts have consistently held that a failed drug [and alcohol] test is a legitimate, nondiscriminatory reason for adverse employment action.”  Plaintiff’s belief that the test results were inaccurate was irrelevant, as “an employer’s reliance on an erroneous result does not create a claim under the ADA absent an independent showing that the real reason for the firing was a disability.”  Here, the Court held Plaintiff could not establish Boyd Tunica’s reliance on the allegedly-false test results was pretext for discrimination, particularly in light of the fact Boyd Tunica provided Plaintiff with an opportunity to explain the positive test result and only terminated her employment after the laboratory confirmed that her medication could not have caused a false positive.

This decision underscores the importance of treating all employees who test positive consistently and providing employees with the opportunity to explain a positive test result.  Typically, such review should be conducted by a Medical Review Officer who has the medical expertise to evaluate such claims appropriately.

A federal court in New Mexico dismissed the lawsuit of an employee who was fired after testing positive for marijuana, even though he used medical marijuana in accordance with state law. Garcia v. Tractor Supply Company, No. 15-cv-00735 (D.N.M. Jan. 7, 2016). The Court held that the employer did not violate New Mexico law or public policy by terminating a new hire for failing a drug test due to the employee’s medical marijuana use. The Court’s decision followed the holdings of similar cases in California, Colorado, Michigan, Oregon and Washington. Like those cases, the Court held that employers in New Mexico are under no duty to accommodate the use of medical marijuana by employees.

Rojerio Garcia applied for a position as a Team Leader with Tractor Supply Company. During the interview process, Mr. Garcia informed Tractor Supply’s hiring manager of his HIV/AIDS diagnosis, as well as his resulting participation in the New Mexico Medical Cannabis Program, pursuant to New Mexico’s Lynn and Erin Compassionate Use Act (“CUA”). Upon hire, Mr. Garcia was required to undergo a drug test, which was positive for cannabis metabolites. Tractor Supply thereafter terminated the employment of Mr. Garcia. Mr. Garcia filed a complaint in state court alleging that Tractor Supply terminated Mr. Garcia based on his “serious medical condition and his physicians’ recommendation to use medical marijuana.” Tractor Supply subsequently removed the lawsuit to federal court and moved to dismiss the case.

Addressing the “issue of first impression” in the District of New Mexico, the Court squarely rejected Mr. Garcia’s claims, relying primarily on the absence of affirmative language in the CUA requiring employer accommodation of medical marijuana cardholders. The Court rejected Mr. Garcia’s argument that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico and therefore required under the New Mexico Human Rights Act. Additionally, the Court rejected the argument that Mr. Garcia was terminated because of his serious medical condition, as “using marijuana is not a manifestation of HIV/AIDS.”

Instead, the Court found Tractor Supply’s arguments more persuasive, particularly its public policy argument. The Court stated:

“Were the Court to agree with Mr. Garcia, and require Tractor Supply to modify their drug-free policy to accommodate Mr. Garcia’s marijuana use, Tractor Supply, with stores in 49 states, would likely need to modify their drug-free policy for each state that has legalized marijuana, decriminalized marijuana, or created a medical marijuana program. Depending on the language of each state’s statute, Tractor Supply would potentially have to tailor their drug-free policy differently for each state permitting marijuana use in some form.”

In addition, the Court held that requiring Tractor Supply to accommodate Mr. Garcia’s illegal drug use would require it to permit conduct that is prohibited under the federal Controlled Substances Act.

This case is welcome news for employers in New Mexico and joins a growing body of case law dismissing employment discrimination claims of medical marijuana users.

With the beginning of a new year, it is time to make resolutions and review old, outdated workplace policies. Employers who conduct drug and alcohol testing should consider updating their drug and alcohol policies in 2016, particularly if they have not done so in several years. Here are the top 10 reasons why:

  1. Medical Marijuana Is Here To Stay – while marijuana still is illegal under federal law, the federal government is slowly backing away from that position and more and more states are enacting medical marijuana laws. Some of these state laws prohibit employers from discriminating against medical marijuana users. Employers should review all applicable medical marijuana laws carefully while considering the potential legal and safety risks.
  2. Educate Your Employees About the Dangers of Prescription Painkillers and Heroin. There has been a nationwide prescription painkiller epidemic for quite some time. Because these drugs are prescribed so freely by the medical profession, many people do not understand the dangers which include addiction and death. The National Safety Council urged employers last year to educate employees about the risks of using opioid pain medications while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation.  Employees also should be educated about the link between prescription painkiller abuse and heroin addiction, another nationwide epidemic.
  3. Consider Whether Your Drug Test Panel Is Effective. Do you still use the basic 5-panel, consisting of marijuana, amphetamines, cocaine, opiates and PCP? If yes, consider whether that panel really is effective, considering the prescription painkiller epidemic. Talk to your drug testing vendor to ascertain positivity rates for the popular illicit drugs in your geographical area, and consult with legal counsel to ensure that it is legal to expand the panel (some states have restrictions).
  4. If Testing For Prescription Drugs, Be Careful When Making Employment Decisions. Although employers may find it appropriate to expand their drug testing panels to include drugs such as prescription painkillers, they must ensure that they do not make adverse employment decisions based on erroneous ideas about those prescription drugs. We have previously blogged about the EEOC’s interest in suing employers who make adverse employment decisions based on incorrect assumptions about an applicant’s or employee’s use of prescription drugs (e.g., refusal to hire a methadone user). 
  5. Require “Safety-Sensitive” Employees to Report the Use of Prescription or Over-the-Counter Medications That Could Impact Safety. Employees in dangerous jobs should not report for work while using prescription or over-the-counter medications that could affect their ability to perform their jobs safely. This report will trigger the employer’s obligation to have an “interactive dialogue” with the employee (under the Americans with Disabilities Act and comparable state laws) to determine whether a reasonable accommodation is possible or whether the employee poses a “direct threat” to the health or safety of himself or others.
  6.  Do You Have a Comprehensive Definition of “Refusal to Test”? Many workplace drug and alcohol testing policies are deficient because employers do not clearly define what constitutes a refusal to test. For example, employees selected for drug testing often attempt to delay the test. Does your policy make it clear that employees who do not report for testing when selected for testing will be terminated?
  7.  Train Your Supervisors To Make Reasonable Suspicion Determinations. Do your supervisors effectively enforce your drug and alcohol testing policy? Do they really know what constitutes reasonable suspicion? Do you suspect that most of your supervisors just ignore the drug and alcohol policy? Update the policy to make supervisors’ responsibilities clear and train them to enforce the policy diligently and effectively.
  8. Is Your Post-Accident Testing Provision Effective? Many employers struggle with a clear description of the circumstances that will trigger a post-accident or post-incident drug or alcohol test. Some states restrict or prohibit post-accident testing. Even where it is permissible, a post-accident testing policy must be clearly written and consistently enforced.
  9. Customer Demands For Drug Testing Are On The Rise. More and more customers are demanding that employers drug test employees before the employees may access the customers’ premises to perform work. Consider how you will handle these situations, including employees who may refuse to test or test positive.
  10. Is It Legal? Employers must ensure that all provisions of their drug and alcohol testing policies comply with applicable federal, state and local laws. Failure to do so may lead to monetary damages and statutory penalties.

Motor carriers subject to Federal Motor Carrier Safety Administration drug and alcohol testing requirements in 2016 will have to conduct significantly fewer random drug tests for drivers of commercial motor vehicles (CMVs), including certain trucks and buses, and spend less money on that testing, the U.S. Department of Transportation agency said recently .

The FMCSA announced December 21 that beginning January 1, 2016 it was halving the minimum annual percentage rate for random controlled substances testing for CMV drivers from the current rate of 50%, to 25%, for each carrier’s average number of driver positions. The FMCSA estimates that motor carriers will save $50 million in mandated random drug tests on account of the rate reduction. The reduction was based on FMCSA MIS data reported by carriers showing that the positive test result rate for agency-regulated controlled substances testing for the years 2011, 2012 and 2013 fell below a 1.0 percent threshold, the agency said. The 10% percentage rate for random alcohol tests required by FMCSA will remain the same.

The reduced rate for random drug testing is not assured beyond next year. The FMCSA announcement said the 50% random controlled substances testing rate will be restored in the future if the FMCSA Administrator determines from data submitted by motor carriers that the reported positive rate in any calendar year equals or exceeds 1.0 percent, citing FMCSA regulations (49 CFR 382.305(e)(2)).