The U.S. Solicitor General filed a brief  in the U.S. Supreme Court December 16, 2015 opposing Nebraska and Oklahoma’s challenge to Colorado’s legalization of marijuana. Last December, the states of Nebraska and Oklahoma filed a motion in the U.S. Supreme Court seeking permission to file suit against the state of Colorado, arguing that Colorado’s legalization of marijuana is unconstitutional. They argue that the “legal” marijuana in Colorado overflows into its neighboring states, creating law enforcement problems for those states.  Among other things, Nebraska and Oklahoma argue that Colorado’s law is preempted by federal law which provides that marijuana is illegal.  We blogged about that motion here.

In May, the Supreme Court invited the U.S. Solicitor General to file a brief expressing the view of the United States. The Solicitor General now states that the United States opposes Nebraska and Oklahoma’s motion on the following grounds:

  • The Supreme Court should not exercise original jurisdiction because Colorado has not directed or authorized injury to its neighboring states. Where a state permits – but does not direct or approve – injury to another party, the Court typically declines to exercise original jurisdiction. There is no direct injury to Nebraska and Oklahoma inflicted by Colorado; rather, Nebraska and Oklahoma argue that third parties will commit criminal offenses in their states by bringing marijuana purchased in Colorado into their states.
  • Because the Colorado law only permits individuals to possess one ounce or less of marijuana, it is not likely that Nebraska and Oklahoma are suffering great loss or serious injury in terms of law enforcement expenditures.
  • Neither the Supremacy Clause nor the Controlled Substances Act provide a private cause of action.
  • Nebraska and Oklahoma could sue in a district court action.

Nebraska and Oklahoma will have an opportunity to respond to the brief before the Supreme Court makes its decision.

The Solicitor General’s brief is being touted as a show of the federal government’s support for legalization of marijuana.  According to the White House’s Office on National Drug Control Policy, however, “the Administration steadfastly opposes legalization of marijuana and other drugs because legalization would increase the availability and use of illicit drugs, and pose significant health and safety risks to all Americans, particularly young people.”

President Obama signed the Fixing America’s Surface Transportation (FAST) Act on December 4, 2015, a law that funds improvements to the nation’s roads, bridges, transit systems, and rail transportation network for a period of five years.

Among other things, the FAST Act directs the U.S. Department of Health and Human Services (DHHS) to issue scientific and technical guidelines for the use of hair testing for drugs for commercial motor vehicle drivers within one year of enactment of the Act. Once DHHS does so, motor carriers regulated by the Federal Motor Carrier Safety Administration will be permitted to use hair testing for drugs for pre-employment purposes as well as for random drug tests, if the driver was subject to hair testing for pre-employment purposes. Drivers with established religious beliefs that prohibit the cutting or removal of hair shall be exempt from hair testing.

Hair testing differs from urine testing in that there is a longer “look-back” period, i.e., hair testing will show whether an individual has used drugs within the last 90 days. Hair testing cannot determine very recent use, however – because hair grows slowly – so hair testing cannot be used for reasonable suspicion drug tests or post-accident testing.

Some trade groups opposed the hair testing provision, arguing that hair testing is not reliable and may be racially biased.

Another Washington court has held that an employer lawfully may terminate an employee for using marijuana, even when the employee had a prescription and used it off-duty. Swaw v. Safeway, Inc., No. C15-939 (W.D. Wash. Nov. 20, 2015).

After a workplace injury, Safeway tested its employee, Swaw, for drugs. Swaw tested positive for marijuana due to the use of medical marijuana outside of work, subject to a valid prescription. Safeway terminated him for testing positive for a controlled substance on the job or on company premises, pursuant to its drug-free workplace policy. Safeway’s policy defined “controlled substance” to include “all chemical substances or drugs listed in any controlled substances acts or regulations applicable under federal, state or local laws.” Swaw brought suit, alleging his former employer unlawfully discriminated against him on the basis of a disability because the employee’s medical marijuana use was pursuant to a valid prescription. In addition, he argued that he was treated more harshly than employees found to be intoxicated by alcohol at work. (Washington has both medical marijuana and recreational marijuana laws).

The Court dismissed all of Swaw’s claims, holding that Washington law does not impose upon employers a duty to accommodate medical marijuana in drug-free workplaces. In addition, the Court was unconvinced by the employee’s claim that he was subject to disparate discipline when compared to employees who were intoxicated by alcohol. The Court noted that, unlike alcohol, marijuana remains a controlled substance that is illegal under federal law. Because users of an illegal intoxicant are not a protected class, the employee could not state a claim for employment discrimination on the basis of a disability. The Court cited to a Washington Supreme Court case rejecting an employee’s claims for wrongful termination, holding that the state Medical Use of Marijuana Act does not provide a civil cause of action for wrongful termination based on the employee’s authorized medical marijuana use, Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586 (Wash. June 9, 2011) – discussed here.

An employee who took time off under the Family and Medical Leave Act (“FMLA”) and then proceeded to become highly intoxicated –resulting in his arrest for driving while intoxicated—could not show that his termination constituted FMLA interference, FMLA retaliation or a violation of the Americans with Disabilities Act. Capps v. Mondelez Global LLC, Case No. 14-CV-04331 (E.D. PA. Nov. 24, 2015).

Capps was employed as a mixing technician for Mondelez, a food company. In 2002, he was diagnosed with a degenerative bone disease, and subsequently had both of his hips replaced. He was certified to take intermittent FMLA leave when he experienced episodes of inflammation, requiring full bed rest.

Capps took FMLA leave on February 11 and 12, 2013 due to pain in his hips. He worked on February 13. The next day, he left a message stating that he would be late for work due to leg pain. Later that day, he called in again stating that he would be taking a full FMLA day because the pain had not subsided. That evening Capps went to a pub, became intoxicated, and was arrested on his way home for driving while intoxicated. The police took Capps to a local hospital for a blood test, which showed his blood alcohol level to be 0.339%, more than four times the legal limit. Capps was released from jail the next day at 2:30 a.m. He was supposed to report to work later that day, but took another FMLA day due to leg pain. He returned to work on February 18 and did not report the DUI to anyone.

Nearly a year later, the Human Resources Manager found a newspaper article in his mailbox reporting Capps’ DUI arrest and conviction a year earlier. Upon reviewing the court record, the company learned that Capps’ arrest and court dates appeared to coincide with dates that he took as FMLA leave. Capps was terminated due to dishonesty and misuse of his FMLA leave.

Capps asserted FMLA interference and retaliation claims as well as a disability discrimination claim. The Court dismissed his FMLA claims because the evidence showed that the company had an honest belief that Capps violated the company’s FMLA policy by taking leave when he actually was intoxicated and in jail. Capps failed to provide any evidence that demonstrated any discriminatory animus. As to his failure-to-accommodate claim, the Court held that a request to take FMLA leave is not a request for an accommodation because an employee who needs an accommodation must be able to perform the job. Because Capps could not work while on FMLA leave, he could not argue that the employer failed to accommodate him at work.  All of his claims were dismissed.

A deaf employee who tested positive for hydrocodone – but could not produce a prescription for the drug – was not discriminated against due to his disability when his employer fired him.  Phillips v. PPG Industries, Inc., Case No. 5:14-CV-1274 (N.D. Alabama Nov. 24, 2015).

Phillips was employed as a “finisher” in a manufacturing facility that manufactured windshields and windows for the commercial, regional and military aviation industries. He lost his hearing when he was 20 years old. PPG had a drug testing policy that provided that the first time an employee tested positive for drugs, the employee would be required to enter into a “Rehabilitation Agreement” in order to remain employed. Among other things, such an agreement required follow-up drug testing after the completion of a treatment program. Any subsequent positive drug test results would lead to termination of employment.

Phillips failed a drug test in 2000 and was subject to a Rehabilitation Agreement. He was required to undergo follow-up drug testing for a period of five years and understood that his employment could be terminated if he tested positive a second time. After that five-year period ended, Phillips continued to be selected periodically for random testing pursuant to company policy.

In May 2013, Phillips was selected for a random drug test and was given a hair test. The test result was positive for hydrocodone, but Phillips did not have a prescription for hydrocodone. His employment was terminated.

Phillips asserted that he was subjected to disability discrimination in violation of the Americans with Disabilities Act because he was subjected to drug testing more frequently than non-disabled employees and because he was terminated for failing the drug test when non-disabled employees were not. His claims were dismissed because: (1) he was not a qualified individual with a disability due to his current illegal use of drugs; (2) he could not show that his termination was linked in any way to his hearing loss; and (3) he could not show that any non-disabled employees were not terminated for failing a second drug test.

Less than two months before New York’s Compassionate Care Act of 2014 was supposed to make medical marijuana available to qualified patients, Governor Andrew Cuomo has signed a measure (A. 7060, S. 5086) creating “an expedited pathway” to the drug for the seriously ill. The purpose of the measure, according to its legislative findings and intent, is to “establish an emergency program to provide appropriate medical marihuana for certain patients for whom delay in the patient’s certified medical use of marihuana poses a serious risk to the patient’s life or health,” because “emergency action is needed before the full medical marihuana program under [the 2014 CCA] is implemented, to protect the life and health of these patients.”

The law, signed November 11, authorizes special medical certifications for use of the drug where a patient’s serious condition is progressive and degenerative or delay in the patient’s certified medical use of marijuana poses a serious risk to the patient’s life or health. The State Health Department is tasked with preparing necessary forms and regulations containing expedited procedures for special certification. It may require an applicant to submit additional documentation establishing the clinical basis for the special certification. Expedited registration of registered organizations also is authorized, to speed up the availability of the drug for medical use. Applicants for registration who currently are producing or providing medical marijuana (or have a history of doing so) in compliance with the laws of another jurisdiction, among others, shall be given a preference.

Assemblyman Richard Gottfried (D-Manhattan), a principal sponsor of the bill, cited “glitches” in the State Health Department’s roll-out of the 2014 CCA that was causing delays in making the drug available, as justifying the measure. Gottfried said in a statement that the new law “is designed to get medicine to the neediest patients, including young children, as quickly as possible. It gives the Health Department flexibility to modify requirements of the current law and regulations to speed up production and distribution to patients with the most critical need. For the most seriously ill patients, even minor delays — a day, a week, a month — are life-changing.”

Under the 2014 CCA, five companies were licensed last summer to grow and sell medical marijuana. Although they appeared to be following the Health Department’s schedule for making the drug available under an 18-month timetable, some medical marijuana advocates thought the process was too slow.

The Governor, announcing his approval, reportedly said the new law would require the Health Department to register more organizations to produce the drug “as soon as practicable” and to waive “tight controls” of the 2014 CCA, although he did not elaborate.

Some lawmakers expressed reservations about the emergency measure. Sen. Diane Savino (D -Kings, Richmond), a sponsor of the 2014 CCA, had urged her colleagues to vote no, fearing the bill might trigger litigation putting implementation of the original law at risk. The Governor reportedly also cautioned that the new program should comport with 2013 guidelines established by the U.S. Justice Department (the so-called “Cole Memo”), tolerating as a matter of prosecutorial discretion state medical marijuana programs with sound regulatory systems, but prohibiting interstate commerce in the drug, as federal law still prohibits its use.   More about New York’s 2014 medical marijuana law may be found here.

 

A federal court in Utah upheld the termination of an employee who did not disclose his use of prescription medication in accordance with his employer’s policy.  Angel v. Lisbon Valley Mining Co., Case No. 2:14-CV-00733 (D. Utah Nov. 23, 2015).

Angel was employed as a haul truck driver at Lisbon Valley Mining Co., a copper mine. When he interviewed for the job, he was given a copy of the company’s prescription drug policy which he read and signed. The policy provided that employees taking prescription drugs that may impair their ability to safely perform their jobs must inform human resources of the use of such medications, and obtain a release from the company’s occupational physician authorizing the employee to work and specifying any work restrictions before the employee may return to work. The policy further provided that an employee’s failure to disclose that the employee is taking such prescription medications could result in immediate termination.

Approximately two months after his hire, Angel was selected for random drug testing and tested positive for Oxycodone. He stated that he had been taking that medication for about a month, while continuing to work, and without notifying human resources or presenting a copy of the prescription to human resources or obtaining a work release from the company’s occupational physician – all in violation of the prescription drug policy. Angel was terminated for his failure to comply with the company’s policy. The Company routinely discharged all employees who failed to comply with the prescription drug policy.

Angel asserted disability discrimination claims and a retaliation claim under the Americans with Disabilities Act (“ADA”). While he admitted that he never informed the company that he had a disability, he argued that after the positive drug test result, he advised the company that he took Oxycodone for back pain. The Court held that this statement was not enough to put the company on notice that Angel was disabled, and therefore his purported disability could not have been a determining factor in the decision to terminate his employment.

Angel also argued that the company failed to accommodate him by excusing the positive drug test result. The Court noted again that Angel never put the company on notice that he was disabled and never asked for any accommodation. Moreover, the Court observed that reasonable accommodation is always prospective, not retroactive.

Finally, as to Angel’s retaliation claim, the Court held that Angel did not engage in any “protected activity” and could not establish any causal connection between his termination and any alleged protected activity. All of his claims were dismissed.

This case highlights the importance of having a written policy requiring “safety-sensitive” employees (i.e., those with dangerous job duties) to report the use of prescription medications that may impair the ability to perform their job duties safely – before reporting to work while using such medications and before being selected for drug testing. Such reporting triggers an employer’s obligation to engage in the “interactive dialogue” required by the ADA to determine potential reasonable accommodation.  In this case, it was undisputed that the employee was aware of the policy and that he did not comply with it. If the employer did not have such a clear policy that was distributed to all employees — and that permitted it to take disciplinary action for violating the policy — the result may have been different. Employers must be careful, however, not to apply such policies to non-safety-sensitive employees because there is no business justification to do so.

In the last three years, the Equal Employment Opportunity Commission has filed numerous lawsuits against employers who take adverse actions against applicants and employees who use prescription medications. In accordance with that trend, EEOC filed suit on November 3, 2015 against an employer who purportedly refused to hire a recovering drug addict using methadone, alleging violations of the Americans with Disabilities Act (“ADA”).  EEOC v. Randstad, US, LP, 1:15-cv-03354 (D. MD. Nov. 3, 2015).

EEOC alleges that April Cox is a recovering heroin addict who has been enrolled in a supervised methadone treatment program since at least 2011. She undergoes monthly counseling and urine drug testing and is using methadone as part of her treatment. In January 2015, Cox applied for a job as a production laborer. When she was asked to submit to a pre-employment drug test, Cox disclosed that she was in a methadone treatment program and could provide proof of treatment if necessary. A manager stated that “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” Cox subsequently provided the employer with information from her treatment clinic confirming that she had no restrictions other than that she could not work as a truck driver or airline pilot. Cox never was asked to take the drug test and was not hired, due to her use of methadone.

EEOC alleges ADA violations as follows: (1) Cox is disabled because she is a recovering substance abuser; (2) Cox has a record of a disability; and, (3) Cox was “regarded as” having a disability based on her methadone use. EEOC seeks injunctive relief, back pay, pain and suffering, and punitive damages, among other things.

This is not the first time that the EEOC has commenced litigation on behalf of methadone users. According to the EEOC’s website:

  • In 2012, EEOC settled a lawsuit for $37,500 in which it alleged that an employer refused to hire an applicant who used methadone; and,
  • In 2011, EEOC settled a lawsuit for $85,000 in which it alleged that an employer refused to hire an applicant due to his use of methadone and without conducting an “individualized assessment” to determine whether the applicant could perform the job safely.

Additionally, EEOC has obtained settlements on behalf of individuals using other types of prescription medications:

  • April 2015 — $59,000 settlement of suit alleging that an employer terminated an employee for using prescription medications to treat chronic pain;
  • 2013 — $50,000 settlement of suit alleging that an employer fired an employee for taking bipolar medication;
  • 2013 — $25,000 settlement of suit alleging that an employer asked applicants whether they were taking any medications and to identify those medications;
  • 2012 — $750,000 settlement of suit alleging that an employer drug tested employees for prescription medications and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications adversely affected the employees’ job performances;
  • 2012 –$146,000 settlement of suit alleging that an employer refused to hire applicants and placed employees on leave due to the use of prescribed narcotic medications;
  • 2012 — $80,000 settlement of suit alleging that an employer refused to hire an applicant due to her use of prescribed medication for epilepsy; and,
  • 2010 — $32,500 settlement of suit alleging that an employer refused to hire an applicant due to the applicant’s use of prescription medication.

We have previously blogged about the growing nationwide heroin epidemic.  Employers should be careful not to discriminate against applicants or employees who use prescription drugs such as methadone to treat their heroin addiction (as well as other prescription medications for other medical conditions). Instead, employers should consider on a case-by-case basis whether the applicant or employee can perform the essential functions of the job with or without a reasonable accommodation and without posing a direct threat of harm to themselves or others in the workplace. In addition, employers who drug test for prescription medications must ensure review of positive drug test results by a Medical Review Officer and take steps to ensure that they do not take adverse employment actions based on incorrect or stereotyped assumptions about certain types of drugs.

A federal court in Georgia rejected an employee’s claim that his termination after a positive drug test result for barbiturates was discriminatory.  Roman v. Leggett and Platt, Inc., Case No. 3:14-CV-20 (M.D. Ga. Nov. 3, 2015).

Roman worked in a safety-sensitive position and was subject to random drug testing.  He tested positive for phenobarbital, which is a barbiturate.  Roman claimed that the positive test result was a false positive, and stated that he used Dilantin, an anticonvulsant which is used to treat epilepsy, as well as methotrexate.  His employer did not know that he had epilepsy prior to the drug test.  The certifying scientists at the employer’s drug testing company stated that Dilantin would not cause a positive test result for phenobarbital.  Roman’s employment therefore was terminated.

Roman asserted that he was discharged due to his disability, given that he was terminated shortly after the employer learned that he had epilepsy.  However, the court noted that the employer had a legitimate, non-discriminatory reason for the discharge – the positive drug test result – and there was no evidence that the employer retained other employees with unexcused positive test results, or that the employer retained other employees after the drug testing company stated that the prescription medication would not cause a false positive.

Roman further argued that the employer’s drug policy did not mandate termination for a positive drug test result.  Although the policy did not say that employees who test positive must be terminated, it did say that violators are “subject to immediate and severe disciplinary action, up to and including termination of employment for a first offense.”  Roman presented no evidence that the policy was applied to him in a discriminatory manner.

The Court also rejected Roman’s arguments that the employer’s drug testing policy was unreasonable, finding that:  Roman had been classified as a safety-sensitive employee before the employer knew that he had epilepsy; it was permissible for the employer to test for barbiturates; and, the Court would not second-guess the cut-off concentrations used by the employer to establish a positive test result.

This case highlights the importance of using a Medical Review Officer to review positive drug test results.  The employer relied on the medical expertise of the certifying scientists at its drug testing company to base its employment decision on the fact that the prescription medication being used by the employee could not have caused the positive drug test result.  Without a lawful prescription for a medication that could have caused a positive test result, the employee could not show that he had been discharged due to his purported disability.

 

During a visit to the state of West Virginia on October 21, 2015, President Obama addressed the country’s growing prescription drug abuse and heroin epidemic by announcing several efforts to address these issues.

The President’s actions focus on the increase in heroin-related overdoses in recent years – which nearly doubled between 2011 and 2013. According to the Administration, more Americans now die from drug overdoses than they do in motor vehicle accidents, and a majority of these deaths involve prescription medications. In 2012 alone, health care providers wrote 259 million prescriptions for opioid pain medications (which include hydrocodone, oxycodone, morphine and methadone among others). Heroin is a part of the same class of drugs and the link between prescription drug use and heroin use is clear, with four in five heroin users misusing prescription opioid pain medications.

The President issued a Memorandum to Federal Departments and Agencies which laid out two directives for federal agencies:

  • train agency doctors on the proper prescription of opioids and
  • identify barriers to medication-assisted treatment for opioid use disorders to develop action plans to improve access to treatment.

In addition, the Administration announced state, local and private sector efforts to address the epidemic from a variety of angles.  Specifically, over 40 provider groups (which include physicians, dentists, pharmacies, advanced practice registered nurses, physician assistants, physical therapists and educators) committed to:

  • Have more than 540,000 health care providers complete opioid prescriber training in the next two years;
  • Double the number of physicians certified to prescribe buprenorphine for opioid use disorder treatment, from 30,000 to 60,000 over the next three years;
  • Double the number of providers that prescribe naloxone–a drug that can reverse an opioid overdose;
  • Double the number of health care providers registered with their State Prescription Drug Monitoring Programs in the next two years; and
  • Reach more than 4 million health care providers with awareness messaging on opioid abuse, appropriate prescribing practices and actions providers can take to be a part of the solution in the next two years.

The White House published a fact sheet discussing these efforts in detail.

As we discussed in previous posts, employers should continue to educate their workforces on the risks involved with the use of prescription opioid medications and heroin abuse.  In addition, employers should consider whether a drug-testing program is appropriate for their workplaces in light of the growing epidemic.