Georgia became the twenty-fourth state to enact a medical marijuana law. On April 16, 2015, Governor Nathan Deal signed legislation that immediately legalizes the use of a low-potency form of cannabis oil for medicinal uses. The new law, House Bill 1, known as “Haleigh’s Hope Act,” permits patients suffering from cancer, Crohn’s disease, Lou Gehrig’s disease, mitochondrial disease, multiple sclerosis, Parkinson’s disease, seizure disorders and sickle cell disease to possess up to 20 ounces of “low THC oil.” The low THC oil can contain no more than 5 percent tetrahydrocannabinol, or THC, the psychoactive agent in marijuana. Smoking marijuana is not permitted under the law.

Although the law is effective immediately, the Department of Public Health must promulgate rules and regulations for the establishment and operation of the patient registration process and dispensing of registry cards to individuals and caregivers. The law creates a Georgia Commission on Medical Cannabis which shall establish comprehensive recommendations regarding the potential regulation of medical cannabis in the state, among other things.

Unlike many other medical marijuana laws enacted in the last three years, the Georgia law contains no language protecting medical marijuana users from employment discrimination. Indeed, the law provides considerable protections to employers. It states that: “Nothing in this article shall require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in any form, or to affect the ability of an employer to have a written zero tolerance policy prohibiting the on-duty, and off-duty, use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in such employee’s system while at work.”

The New York Times reported on April 18, 2015 that employees increasingly are abusing stimulants used to treat attention deficit hyperactivity disorder to be more productive at work.

Prescription stimulants have a calming and “focusing” effect on individuals with A.D.H.D., a disorder marked by severe impulsivity and inattention. The Times article stated that while reliable data quantifying how many Americans misuse stimulants does not exist, dozens of people in many different professions admitted in interviews that they misuse A.D.H.D. drugs such as Adderall, Ritalin, Vyvanse and Concerta to improve work performance. Stimulants generally suppress appetite, increase wakefulness, and increase focus and attention.

Users who were interviewed said that they got pills by feigning symptoms of A.D.H.D. to physicians who casually write prescriptions without proper evaluations. Others got them from friends or dealers. Most interviewees spoke on the condition of anonymity for fear of losing their jobs or access to the medication. Obtaining stimulants without a prescription is a federal crime.

Many young workers insist that using prescription stimulants to increase productivity is required in order to get hired and to be competitive in the marketplace. One woman interviewed stated that use of prescription stimulants is “necessary for the survival of the best and the smartest and the highest-achieving people.”

According to the National Institute on Drug Abuse, prescription stimulants do not enhance learning or thinking ability when taken by people who do not actually have A.D.H.D., although they do promote wakefulness.  Addiction to stimulants is also a potential consequence for anyone taking them without medical supervision.  Addiction most likely occurs because stimulants, when taken in doses and routes other than those prescribed by a doctor, can induce a rapid rise in dopamine in the brain. Furthermore, if stimulants are abused chronically, withdrawal symptoms—including fatigue, depression, and disturbed sleep patterns—can result when a person stops taking them.

Governor Andrew M. Cuomo issued a health alert on April 16, 2015 warning New Yorkers that a recent increase in the use of synthetic marijuana has caused more than 160 people to be hospitalized since April 8th.

Synthetic marijuana consists of plant material coated by chemicals which mimic THC, the active component of marijuana. Popularly known as “K2” or “Spice,” it often is marketed as legal products such as incense, herbal mixtures or potpourri to disguise the true purpose of the substance. The sale and possession of synthetic marijuana has been banned in New York since 2012 under Department of Health regulations. Anyone selling these synthetic drugs can be charged with possession of an illicit substance which is punishable with a fine up to $500, or 15 days in jail, or a civil penalty of up to $2,000 per violation.

Calls to New York State poison control centers due to the use of synthetic marijuana increased dramatically in the last two weeks. Users of the synthetic mixtures typically experience symptoms that include agitation, anxiety, nausea, vomiting, high blood pressure, tremors, seizures, hallucinations, paranoia and violent behavior. These effects can be similar to phencyclidine, or PCP. Synthetic drugs are dangerous because it is impossible to know exactly which chemical compounds are contained in the product.

New York State Office of Alcoholism and Substance Abuse Services Commissioner Arlene Gonzalez-Sanchez said, “These substances are artificially manufactured drugs that change brain function. Young people may be fooled into thinking that these substances are safe because they are sold over the counter or are in colorful packaging, but they are not made for human consumption. They are dangerous and can have significant, long-term effects on the brain.”

The Department of Transportation published a final rule in the Federal Register effective April 13, 2015 concerning the use of the electronic version of the Federal Drug Testing Custody and Control Form (eCCF).

The final rule allows DOT-regulated employers, collectors, laboratories and medical review officers to use the electronic version of the Federal Drug Testing Custody and Control Form for DOT-required drug testing purposes. Use of the eCCF is not required. Regulated entities may continue to use the paper CCF and must not use an eCCF until that regulated entity’s laboratory is approved to use an eCCF. Specifically, the laboratory must be approved to use an eCCF through SAMHSA’s National Laboratory Certification Program. Once the laboratory is approved, regulated employers may begin using the eCCF effective April 13, 2015.

The eCCF requires the collection and distribution of the same information that the paper CCF requires. When using an eCCF, employers must establish adequate confidentiality and security measures to ensure that confidential employee records are not available to unauthorized persons. This includes protecting the physical security of records, access controls, and computer security measure to safety confidential data in electronic form. Additionally, an employer who uses an eCCF must ensure that the collection site, the primary and split laboratories and Medical Review Officer have compatible systems, and that the employee and any other program participants in the testing process will receive a legible copy of the CCF.  Electronic signatures are permitted when using an eCCF, but not when using a paper CCF.

A Florida county park ranger was lawfully terminated from his job after he failed to take a drug test following a vehicular accident, where the county believed he had sustained an injury and where its drug testing policy provided that the county could require him to seek workers’ compensation medical treatment for the injury. Granting summary judgment to Manatee County in the ranger’s lawsuit for discrimination and, in part, for retaliation, allegedly in violation of the Age Discrimination in Employment act and the Florida Civil Rights Act, the United States District Court in Tampa concluded that the undisputed evidence showed that he was terminated for a legitimate, non-pretextual reason.

Alan Behrens was a passenger in a county truck driven by his supervisor when the truck was involved in a minor accident. County policy required the accident to be reported immediately and that post-accident drug and alcohol testing be conducted within 2 hours of the accident. Behrens was not scheduled to work again for another 6 days, but on the day he was to return he called in sick. Believing the absence was linked to the accident, the park ranger’s supervisor submitted, for the first time, a drug test referral form for Behrens based on a request for workers’ compensation. Behrens denied he requested workers’ compensation, but reported to a medical facility approved by the county for workers’ compensation claims, as “ordered” by his supervisor. Behrens waited for some time to be called in for his examination. He began to experience low blood sugar symptoms. The nurse who was escorting him quoted him as saying he felt a little hungry, that he was going out to eat half a sandwich which he had in his truck, and that he would return. He then left. The medical facility advised the County, however, that he did not return and closed the workers’ compensation claim. The County treated Behrens’s actions as a refusal to submit to a test. Behrens claimed he did not realize this conduct was a refusal. He was terminated for violating the drug testing policy, and brought suit after filing a charge with the EEOC.

The County’s zero-tolerance drug policy stated, in part, “[a]ny on-the-job injury, for which an employee requests or is required to seek Workers’ Compensation medical treatment, amounts to sufficient reasonable suspicion to require drug testing. All employees reporting for such medical treatment will submit to a drug/alcohol test as part of the evaluation.” Violations result in automatic termination.

The court concluded that the county had carried its burden of establishing that Behrens was terminated for a legitimate, non-discriminatory reason: Behrens was required by the county to seek medical treatment related to his involvement in the accident; that allowed the county to require his submission to a drug test, which it did; and, Behrens did not submit to a test. The county thus maintained it believed that Behrens had violated its policy and should be fired.

The court concluded the park ranger could not show the county’s reason for his dismissal was pretextual and unlawful. Behrens could not rely on his assertions that the policy was unfair or mistaken; rather, he had to show the county did not rely on the reasons it offered, and that it did not honestly believe he had violated its drug-free policy. Behrens could not do so, the court held. Behrens’ contentions about his beliefs – disclaiming workers compensation, not realizing he was refusing a drug test, lack of notification that the test was mandatory – “cast no doubt on the County’s motivations,” the court found. That the test allegedly was improper under the policy because it was not administered within 32 hours of the incident involving the truck also was of “no moment”; the county could reasonably interpret its policy as requiring a drug test in the course of seeking workers’ compensation independent of the requirement for post-accident testing, as was indicated by the language of the referral form. Likewise, the fact none of the terminations for non-compliance with the County’s drug policy were based on refusals to test failed to undermine the County’s assertion that a refusal resulted in termination on an automatic, non-discriminatory basis.

Courts afford employers considerable discretion in interpreting their own published substance abuse policies. Here the employee’s disappearance after reporting to the medical facility for a workers’ compensation-related examination, including a drug test, as his supervisor directed, may have weighed heavily in the court’s decision because the test was authorized by the County’s policy, even if it was not a post-accident test. In general, employers seek to administer post-accident tests as soon as possible after the incident triggering the need for a test, so as to better assure the tests reflect the employee’s condition at the time of the accident. (Drivers covered by DOT substance abuse testing rules are required to be drug tested within 32 hours of an accident, as defined by the rules, and alcohol tested within 8 hours (but preferably within 2).) Employers also should be mindful of a proposed OSHA rule that may restrict post-injury drug and alcohol testing in the absence of reasonable suspicion. Although the county’s policy here stated that a referral for a workers’ compensation medical examination amounted to reasonable suspicion for testing, some states’ laws may prohibit substance abuse testing only for a claimed workers’ compensation injury.

More importantly, leaving a testing facility before giving a specimen for drug or alcohol testing constitutes a refusal to test under many workplace substance abuse policies. This case highlights the necessity of including a comprehensive definition of “refusing to submit” in a drug and alcohol testing policy, and communicating the policy clearly to employees. Employees should be made aware that if they do not submit to testing in the time and manner specified by the employer, they will be deemed to have refused the test and will be terminated.

 

A tip regarding employee on-the-job drug use by an unidentified source, relayed second-hand by a news reporter, is insufficient to establish individualized reasonable suspicion (required under the Fourth Amendment) to require a public employee to submit to a drug test, according to a recent decision by the United States District Court for the Eastern District of Michigan. Greer v. McCormick, 2015 U.S. Dist. LEXIS 31211 (E.D. Mich., Mar. 13, 2015).

Ralph Greer, Jr. was employed as a construction inspector by the Detroit Department of Water and Sewage (“DWSD”), a public employer. In September 2013, Greer was assigned to a project involving the repair of a water main. During the course of this project, a television reporter contacted DWSD’s Director of Public Relations to advise that “an anonymous source allegedly told him that some undescribed individual driving a DWSD vehicle was smoking marijuana in that vehicle.” The tipster alleged that photographic evidence existed, but refused to provide such evidence. Based on this tip, DWSD determined that the vehicle had been assigned to Greer on the day in question. Without any additional corroboration, Greer was instructed to submit to a urine drug test. Greer refused to undergo the test, following the advice of his union representative and was ultimately suspended and discharged. Greer grieved the discipline and was reinstated without lost wages and benefits. The arbitrator specifically stated that the decision did not address whether the discharge violated Greer’s Fourth Amendment rights.

Greer filed suit in the Eastern District of Michigan, this time naming the individual DWSD employees who ordered Greer’s submission to the drug test and who suspended and discharged Greer. Greer alleged that the defendants did not possess reasonable suspicion that Greer had engaged in illegal drug use while on the job. As a result, the drug test lacked any basis. In response to a motion to dismiss brought by the defendants, the Court concluded that the search (the drug test) was constitutionally impermissible. As a result, the defendants were not entitled to qualified immunity. At a minimum, DWSD was obligated to establish the reliability of the anonymous tip before conducting a search based on it. Because DWSD did not do so, the Court concluded that the anonymous tip did not provide the individualized reasonable suspicion sufficient to require Greer to submit to a urine drug test.

A federal district court dismissed the discrimination claims of an alcoholic individual who claimed that his former employer refused to rehire him after he completed alcohol rehabilitation. Alexander v. Washington Metropolitan Area Transit Authority, No. 12-cv-1959 (D.D.C. March 10, 2015).

Alexander was a former employee of the Washington Metropolitan Area Transit Authority (“WMATA”) who suffered from alcoholism for many years. In April 2007, Alexander tested positive on an alcohol test and was suspended and referred to the Employee Assistance Program. He was required to submit to periodic alcohol tests as a condition of his reinstatement. In January 2009, Alexander again tested positive for alcohol at work. His employment was terminated.

After completing an alcohol treatment program, Alexander reapplied for several positions at WMATA in April or May 2010, August 2011 and October 2011. He was not hired. Alexander filed a complaint with the Equal Employment Opportunity Commission, alleging that he was not hired because of his alcohol dependency, in violation of the Rehabilitation Act of 1973.

Alexander did not argue that he was disabled because he had a record of an impairment, or because he was “regarded as” disabled. Rather, he argued that he was disabled because he had a physical or mental impairment that substantially limited one or more major life activity. Specifically, he claimed that he had an impairment (alcoholism) that affected major life activities (ability to care for himself, walking, concentrating and sleeping). However, the court held that his claim failed because he did not establish how his alcoholism substantially limited any of those activities. His conclusory assertions alone were insufficient to establish that he was “an individual with a disability” and the court entered summary judgment on behalf of WMATA.

An employee’s request to provide medical documentation excusing a positive drug test could trigger an employer’s obligations to engage in the interactive process, according to a recent decision by the United States District Court for the Eastern District of Pennsylvania.  Jodi Hammel v. SOAR Corp., 2015 U.S. Dist. LEXIS 14361 (E.D.Pa. Feb. 6, 2015).

In August 2013, Jodi Hammel was terminated from her position as an administrative assistant shortly after SOAR Corp. learned Hammel had failed her pre-employment drug test.  (Though Hammel had taken a drug test as part of the Company’s hiring process, she was permitted to begin work before SOAR received the test results).  After learning of her positive test result, Hammel claims she informed a Company representative that she was taking pain medication for a degenerative disc disease and sciatica, and offered to provide medical documentation in support of her explanation.  Shortly thereafter, Hammel provided three doctors’ notes substantiating her medical condition and confirming her use of prescription medication.  Two days later, the Company terminated Hammel, purportedly because it learned Hammel had falsified her work history and employment references.

Hammel filed suit in the Eastern District of Pennsylvania, alleging SOAR violated the ADA by (among other claims) failing to accommodate her disability.  The Court denied SOAR’s motion for summary judgment, finding that a jury could have interpreted Plaintiff’s request to provide medical documentation excusing her drug test as a request for accommodation, thereby triggering SOAR’s legal obligation to engage in the interactive process.  Further, the Court found the Company’s failure to “take initiative” in response to Hammel’s request a possible sign of bad-faith.

Nebraska and Oklahoma have asked the U.S. Supreme Court to let them file suit against Colorado, challenging that State’s legalization of marijuana.  Colorado’s neighbors contend, among other things, that the state’s marijuana legalization program violates 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.  Nebraska and Oklahoma invoked a rarely used constitutional provision giving the High Court original jurisdiction over suits between states.  They seek a declaration that the Colorado legalization program is unconstitutional.

The case was filed by Nebraska Attorney General Jon Bruning and Oklahoma Attorney General Scott Pruitt.  In announcing the suit, Bruning said, “Federal law independently prohibits the production and sale of marijuana.  Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold on constitutional principles.”  He asserted further that Congress has enforced the principle that drugs “threaten the health and safety of our children and the trafficking of drugs is a national, interstate problem.”  Trafficking in neighboring states, the action contends, unnecessarily burdens states such as Nebraska, especially their criminal justice system.

Colorado’s Attorney General has stated that he intends to fight the suit.

The suit is likely to be a focus of controversy in the debate over legalization of marijuana.

Buried in the $1.1 trillion federal spending bill for 2015 — which Congress approved last weekend and which President Obama signed into law on December 16, 2014 — is a measure stating that federal funds may not be used by the U.S. Department of Justice (DOJ) to prevent certain states from implementing medical marijuana laws.  The measure provides:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

This prohibition has been widely touted in some media as signaling a reversal of the ban on medical marijuana under federal law.  It does not.  It merely restricts the use of funds in a one-year budget bill.  The bill does not exempt marijuana as an illegal Schedule I drug under the federal Controlled Substances Act.  (A Schedule I drug is one that has a high potential for abuse, lacks any accepted medical use, and lacks any accepted safety for use in medically supervised treatment.)

The inclusion of this provision follows an August 2013 U.S. Department of Justice announcement that, as a matter of prosecutorial discretion, DOJ would not use its limited resources to challenge state laws legalizing recreational marijuana, as long as the states implemented strong regulatory schemes to prevent crime.  We blogged about that policy shift here.

Notably, the budget bill’s list of states excludes New York, which passed a medical marijuana law in 2014 (that law is expected to take effect in late 2015).  It seems unlikely, however, that DOJ will enforce a different policy in New York than in the states listed in the budget bill.

What are the implications for employers?

As stated previously, marijuana remains illegal under federal law.  But because the current Administration will not be taking any action to prevent the implementation of medical marijuana and, we expect, recreational marijuana laws, there is a public perception that the federal government endorses these laws.  While the budget bill does not make marijuana legal under federal law, employers should review carefully the applicable medical and recreational marijuana laws in the states where they operate to determine whether these laws impose any obligations on employers (many do not).  In those states where the medical marijuana laws prohibit employment discrimination, employers should assess the risk in formulating their policies.  One risk, for example, is that state courts and state administrative agencies may choose to enforce state laws and ignore federal law when faced with these issues (particularly now that Congress has expressed  a “hands-off” approach).  Employers should be cognizant of the risks and consult with counsel to create appropriate strategies to address medical and recreational marijuana in the workplace.