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)).

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.