Voters in Oregon, Alaska and the District of Columbia approved laws legalizing recreational marijuana yesterday.  Colorado and Washington first passed such laws in 2012.

Laws legalizing recreational marijuana reflect a growing acceptance of marijuana use by the American public as well as the federal government’s current position (since mid-2013) not to oppose state laws permitting marijuana for medical and recreational purposes.  Marijuana is the country’s most popular substance of abuse (after alcohol) and remains an illegal drug under federal law.

The Oregon and Alaska laws legalize recreational marijuana use and create a network of retail marijuana stores similar to those operating in Colorado and Washington.  The District of Columbia measure is more restrictive in that it permits individuals over the age of 21 to possess up to two ounces of marijuana for personal use and grow up to six marijuana plants at home.  Due to D.C.’s status as a district, not a state, its laws are subject to Congressional and Presidential approval.  It is unclear whether Congress and the President will approve this law, particularly when marijuana still is illegal under federal law.

There is some good news for employers, however.  The new laws in Alaska and D.C. explicitly state that nothing in those laws are intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.  Both laws also prohibit driving while under the influence of marijuana.

The Oregon law provides that the new marijuana law may not be construed to amend or affect in any way any state or federal law pertaining to employment matters, or to exempt a person from a federal law or obstruct the enforcement of a federal law.  There are also provisions permitting federal contractors and grantees to prohibit the manufacture, delivery, possession or use of marijuana to the extent necessary to satisfy the federal requirements for the grant or contract.

The Oregon law takes effect on July 1, 2015 and stores could open the following year.  Alaska’s law will become effective 90 days after the election is certified, followed by a nine-month period to create implementing regulations.

Employers in jurisdictions with medical marijuana laws or recreational marijuana laws should carefully consider their policies with respect to marijuana use.  While there is little risk under federal law, there may be certain risks under some state laws where marijuana use is permitted.  Those risks must be weighed against an employer’s need to operate a safe workplace.

A Michigan appellate court has held that an employee who holds a state medical marijuana card is not disqualified from receiving unemployment benefits after the employee has been terminated for failing a drug test, where the employee received a positive test result for marijuana or its metabolites.  Thus, the question we posed earlier this year, shortly after one of the three cases involved in the consolidated Court of Appeals decision was determined by a lower court — “Will Positive Medical Marijuana Test Result In Denial of Unemployment Benefit?” — has been answered in the negative.  Braska v. Challenge Mfg. Co. and Dep’t. of Licensing & Reg. Affairs, Unemployment Insurance Agency, (DLRA/UIA) No. 313932 (Kent Circuit Court); Kemp v. Hayes Green Beach Mem. Hosp. and DLRA, UIA, No. 315441 (Ingham Circuit Court); and Kudzia v. Avasi Services, Inc. and DLRA, UIA, No. 318344 (Macomb Circuit Court), decided October 24, 2014.

Each of the employees involved had a registration identification card under the Michigan Medical Marihuana Act (MMMA) and was fired based on a positive drug test result.  There was no evidence they used marijuana other than as permitted under the Act.  They had not appeared to be impaired at work.

The appeals court concluded that although the Michigan Employment Security Act (MESA), which authorized the payment of unemployment insurance, provided a disqualification for a suspension or termination resulting from a positive drug test, the MMMA preempted or trumped that statute by granting a qualifying patient “broad” immunity from “arrest, prosecution, or penalty in any manner, or den[ial of] any right or privilege, including but not limited to civil penalty…for the medical use of marijuana in accordance with this act….”

The Court found that a denial of unemployment benefits by a state actor, the DLRA/UIA, would constitute a proscribed “penalty” under the MMMA, since the claimants here otherwise met the threshold requirements for the receipt of unemployment benefits and the only reason they were disqualified was for their positive test results for marijuana.  Thus, the court held, the claimants had to forfeit their right to unemployment benefits simply because they used medical marijuana.

The court accordingly rejected a DLRA argument that disqualification was not a penalty; it was, it said, if a claimant otherwise satisfied the requirements for benefits.  In response to the agency’s argument that the court should distinguish between the act of failing a drug test from the medical use of marijuana, the court stated that it declined the “invitation to ignore the basis for the positive drug tests and engage in linguistic gymnastics in an attempt to avoid the plain language of the MMMA.”  The two were “inextricably intertwined,” the court said.

The court likewise rejected a contention that in upholding an award of benefits, the court would have to disregard the MMMA’s provision that employers are not required to accommodate the use of marijuana in the workplace, saying that the provision did not say that an employer is not required to accommodate the medical use of marijuana, including its “internal possession.”  Instead, the court concluded that only the ingestion of marijuana in any workplace or working while under the influence of marijuana need not be accommodated.  There was no evidence the claimants either ingested marijuana at work or worked under its influence, the court said.

The court rejected the DLRA’s reliance on a Sixth Circuit decision, Casias v. Wal-Mart, 695 F.3d 428 (6th Cir. 2012), to support its argument that the MMMA does not apply to private employers, stating such reliance was unpersuasive.  First, the court noted that federal court precedent is not binding on a state court.  Second, the issue was not whether a private employer violated the MMMA, as in Casias, but whether the Michigan Compensation Appellate Commission (MCAC), as a state actor, had done so.  There was no question the MMMA applied to that agency.

Accordingly, the appeals court upheld the lower court decisions reversing the decisions of the MCAC denying the claimants benefits.

Click here to read our colleague Noel P. Tripp’s blog about a recent decision rejecting three New York Police officers’ claims that they should have been paid for time spent in alcohol rehabilitation and counseling sessions.  Makinen v. City of New York, 2014 U.S. Dist. LEXIS 139732 (S.D.N.Y. Sept. 30, 2014).

The U.S. Department of Transportation (DOT) issued on September 30, 2014 a reminder to Medical Review Officers (MROs) concerning transportation employees’ use of prescription medications.  Specifically, the reminder addressed the process to be followed when verifying drug test results of employees who use prescription medications, as well as the MRO’s obligation to raise fitness-for-duty concerns to the employer.

A Medical Review Officer is a licensed physician who is knowledgeable about and has clinical experience in controlled substances abuse disorders, including detailed knowledge of alternative medical explanations for laboratory confirmed drug test results.  MROs review drug test results before the results are reported to the employer.  DOT’s reminder stated that when an employee’s drug test result is non-negative and the employee claims that the result is due to the use of prescription medication, the MRO is required to determine whether the medical explanation is legitimate.  The MRO must verify the authenticity of all records provided by the employee including, for example, contacting the employee’s pharmacy and the employee’s physician.

More significantly, DOT’s reminder stated that even if the MRO accepts the employee’s medical explanation and verifies the drug test result as negative, the MRO still may have a responsibility to raise fitness-for-duty considerations.  Specifically, under DOT regulations, a MRO must report drug test results and medical information that was learned as part of the verification process — without the employee’s consent — if, in the MRO’s reasonable medical judgment:  (1) the information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or, (2) the information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.

These guidelines are instructive even in the non-DOT context.  Many employers who conduct workplace drug and alcohol testing worry that MROs will give a pass to anyone who presents a prescription (this is especially true for medical marijuana).  Employers who employ safety-sensitive employees should ensure that their MROs will provide them with information (as permitted by applicable state law) if the employee is likely to pose a significant safety risk.  The employer then will need to conduct the direct threat analysis as required by the Americans with Disabilities Act (and comparable state laws) and may also need to consider other issues such as state medical marijuana laws.

Employees regulated by U.S. Department of Transportation (DOT) drug and alcohol testing regulations are required to report for drug or alcohol tests within a reasonable amount of time as determined by the employer. A failure to show up or significant delay in reporting for testing may be deemed a “refusal to test,” as a municipal transit system employee learned in a recent decision of a federal appeals court in New Orleans, rejecting his claim under the Americans With Disabilities Act (ADA) and analogous state law. Leaumont v. City of Alexandria, 2014 U.S. App. LEXIS 17930 (5th Cir., No. 14-30330, Sep. 18, 2014)(summary calendar).

The court held that a city bus department transit manager had no claim under the ADA for being suspended from safety-sensitive duties after he failed to report for a DOT-required random drug test and unsuccessfully sought to make it up the following day.

A personnel analyst for the City notified the employee that he had had to take a random drug test that day pursuant to the City’s substance abuse policy, but the employee did not report for a specimen collection. The next day he called the analyst to tell her he had forgotten to report for the test. She set up another test for the following day, which the employee attended and at which he provided a specimen, which tested negative. Nevertheless, his failure to appear at the originally scheduled test was deemed a “refusal to test.” He was suspended from performing safety-sensitive duties and was told he would be eligible for reinstatement only after a substance abuse professional evaluated him and deemed him eligible to return to work and he provided a negative drug test sample. A few weeks later the employee complied and was returned to his safety-sensitive duties.

The employee then brought state court suit for compensatory damages and to expunge his personnel record of the missed test incident, but the suit was removed to federal court as stating a claim under the ADA (as well as state anti-discrimination law), a conclusion in which the circuit court concurred.

The court of appeals found that a discrimination claim could not succeed under the ADA or state law in these circumstances. The plaintiff employee no longer was a “qualified” individual for the safety-sensitive job he had held, as a matter of law, once he failed to appear for the original random drug test, because DOT regulations forbade an employee who refused to submit to a required drug test to continue to perform such duties, 49 CFR § 655.49(a) (Federal Transit Administration regulations). Furthermore, the regulations also prohibited the employee from returning to those duties until approved to do so by a substance abuse professional and submitting a negative drug test result. 49 CFR § 40.305(a).

The court noted that DOT regulations define a “refusal to test” as a “[f]ail[ure] to appear for any test … within a reasonable time, as determined by the employer, consistent with the applicable DOT agency regulations, after being directed to do so by the employer.” 40 CFR § 40.191(a)(1)(emphasis added). Here, the employer’s substance abuse policy required the employee to “report immediately to the collection site” after being notified of a test. Although the court of appeals agreed with the lower court that under “certain hypothetical circumstances” a direction to report “immediately” upon being notified might prove unreasonable, it concluded “it is not unreasonable to require the employee to report within the same day he is notified.” The employee failed to do that.

The court made short work of the employee’s remaining arguments. It found his claimed “unforeseen circumstances” exception to the requirement to report for testing as directed by the employer unsupported by any case law; and even if there were such an exception, the court said, merely forgetting to show up, which the employee conceded was the reason for his refusal, would not satisfy it. Neither could the employee point to any authority supporting his position that by scheduling a second test, the city waived or nullified the federal reporting-for-test requirement. The court of appeals affirmed summary judgment in favor of the City.

Employers’ substance abuse policies should address the amount of time employees will be given to report for a random drug test, and should ensure that managers are trained to enforce those rules. A failure to report or excessive delay in reporting for drug and alcohol testing must be treated as a refusal to test under DOT regulations, and should be treated in a similar manner in non-DOT testing .

Blanket policies prohibiting alcoholic employees from consuming alcohol permanently – whether on-duty or off-duty – violate the Americans with Disabilities Act (ADA), according to the Equal Employment Opportunity Commission (EEOC) in an informal discussion letter dated August 28, 2014.

The representative of a union whose members are employed by a public utility that operates nuclear power plants regulated by the U.S. Nuclear Regulatory Commission asked the EEOC whether it is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment.  Pursuant to NRC regulations, the employer is required to implement procedures for screening employees it intends to grant unescorted access to secured or critical areas of nuclear power plants to assure that they are “trustworthy and reliable” and do not constitute “an unreasonable risk to public health and safety or the common defense and security, including the potential to create radiological sabotage.”

The union and the employer entered into a “two strikes and you are out” agreement that provided that the employer would conduct certain types of drug and alcohol tests of all employees and could discharge any employee after a second confirmed positive alcohol test at work.  The employer also imposed an additional requirement on employees who were referred (or referred themselves) to the Employee Assistance Program for alcohol counseling:  to permanently abstain from drinking on and off the job as a condition of being granted or maintaining security access.

The EEOC rejected such a blanket rule – applied to all alcoholics or individuals perceived to be alcoholics – primarily because no individualized assessment was conducted.  Specifically, the ADA does not permit employers to apply qualification standards that screen out, or tend to screen out, individuals on the basis of disability unless they are job-related for the position in question and consistent with business necessity.  Because some of the employees subject to the rule did not have performance or work-related conduct issues, the employer could not show that the blanket rule was necessary to ensure the employees were “trustworthy and reliable.”  Even if it was appropriate to require some employees to abstain from alcohol, or to subject certain employees to more frequent alcohol testing, the employer would have to make such a determination by conducting an individualized assessment based on a particular employee’s history rather than requiring all employees who are alcoholics or perceived to be alcoholics never to drink as a condition of keeping their jobs.

The ADA also prohibits employers from using safety-based qualification standards to screen out individuals with disabilities without showing that such individuals pose a direct threat (i.e., a significant risk of substantial harm to the individual or others) that cannot be reduced or eliminated with a reasonable accommodation.  The EEOC stated that the employer may not merely speculate that employees who are alcoholics or are perceived to be alcoholics may one day come to work under the influence of alcohol.  If the employer has imposed the permanent abstinence rule based on safety concerns, it must demonstrate that the standard is necessary in order to avoid a direct threat, based on an individual’s present ability to safely perform the essential functions of the job.  Because it did not appear that the employer’s blanket rule allowed for an individualized assessment of the risks that a particular employee posed, it did not appear to meet the direct threat standard.

There may be other compelling reasons why employers should not prohibit off-duty alcohol consumption.  Some states, including Colorado and New York, have “lawful activities” laws, which provide that employers may not take action against employees for engaging in lawful activities while they are off-duty.  Employers should review their alcohol consumption policies to ensure compliance with all applicable laws.

A new study published by Quest Diagnostics reported an increase in the workforce drug test positivity rate for the first time in ten years, fueled primarily by marijuana and amphetamines.  The Quest Drug Testing Index (DTI) released on September 11, 2014 also showed a large increase in positive marijuana test results in Colorado and Washington, where “recreational” marijuana now is permitted.

The DTI involved the analysis of de-identified results from urine, oral fluid and hair drug tests performed by Quest Diagnostics workplace drug testing laboratories across the country.  The results were analyzed by three categories of workers: (1) employees with private companies (U.S. general workforce), (2) employees subject to federal drug testing rules (safety-sensitive workforce) and (3) a combination of both groups (combined U.S. workforce).

The DTI found a positivity rate of 3.7 percent for the 7.6 million urine drug tests in the combined U.S. workforce, an increase from 3.5 percent in 2012.  According to Quest, the relative increase of 5.7 percent is the first time the positivity rate for combined national workplace urine drug tests has increased since 2003.

In addition, marijuana continued to be the most commonly detected illicit drug, with its positivity rate increasing 6.2 percent in the combined U.S. workforce, 5.6 percent in the safety-sensitive workforce and 5 percent in the general U.S. workforce.  When the urine test data for the general workforce was examined at the state level, it indicated marijuana positivity rate increases in Colorado and Washington — the two states with “recreational use” laws — of 20 and 23 percent respectively.  These figures are significant when compared with the 5 percent average increase among the U.S. general workforce in all states.  DTI data also showed a significant increase in oral fluid tests for marijuana, with positivity rates increasing 27 percent over the prior year.

Quest’s study also showed that amphetamine use (and methamphetamine use in particular) is on the rise with amphetamine positivity results reaching their highest levels on record and methamphetamine positive rates at their highest levels since 2007 (across all specimen types).

The study did register a decrease in one area, with a decline in positive test rates for prescription opiates (e.g., hydrocodone and oxycodone) of 8.3% between 2013 and 2012.

As the country’s attitude toward marijuana use relaxes, and more laws permitting marijuana use are enacted, employers should brace themselves for the increased likelihood of positive employee drug test results.  Employers should review their policies and ensure that they are familiar with the laws governing drug testing and marijuana use in all states where they operate.

Are employers at risk in their ability to conduct lawful post-accident drug and alcohol tests?

Maybe.

At least that is the answer for the many employers who are subject to the Occupational Safety and Health Administration’s recordkeeping rule (29 CFR Part 1904).

OSHA, in a “Supplemental Notice of Proposed Rulemaking” published recently in the Federal Register, announced that it is considering clarifying a requirement that employee reporting of occupational injuries and illnesses be “reasonable and not unduly burdensome,” by prohibiting employers from disciplining or taking “adverse action” against employees for reporting injuries and illnesses to their employers under the recordkeeping rule.

In public meetings conducted by the agency on its original proposed change to the recordkeeping rule (mandating electronic recordkeeping and posting of employer data on OSHA’s website), OSHA recounted, “Adverse action mentioned by participants included … requiring an employee who reported an injury to undergo drug testing where there was no reason to suspect drug use….” OSHA has invited further comment on the “kinds of adverse actions that might lead an employee to decide not to report an injury or illness,” and thus make such data less reliable.  OSHA would make it a violation for an employer to discourage reporting of an injury or illness by an employee in this manner.

Injuries, however, generally are a result of workplace accidents.  Were such a rule adopted, many employers — including those in high risk industries who have the greatest reason to conduct post-accident testing — could be limited to substance abuse tests post-accident based only on reasonable suspicion, at least where an injury is reported.

OSHA does not concern itself with a problem that arises frequently where supervisors cannot observe the employee immediately prior to the event causing injury, and so, as a practical matter, may be unable to establish reasonable suspicion, as the comment suggests should be required.  Yet, a drug or alcohol test still may be warranted.  Neither does the agency address exactly how it would define “reasonable suspicion,” whether “reason to suspect drug use” may be based on an employee’s causation of an accident, even in part, by an act of commission or omission, or whether agency compliance officers would defer to employer decisions as to the existence of reasonable suspicion.

One concern is whether OSHA compliance officers, focused on conventional workplace hazards, might dismiss too quickly any finding of reasonable suspicion where, for example, a machine guarding issue was detected on the same equipment involved in the injury-producing accident.  The presence of an alleged hazard does not mean the employee was not also impaired at the time of the accident and that the impairment may not have played a part in causing injury.

Then there is the matter of existing state testing laws.  Many states have passed them, often with the specific intention of reducing workplace injuries and workers’ compensation costs.  In Minnesota, for instance, which since 1987 has had a “mandatory” law applicable to any employment-related drug testing conducted in the state, reasonable suspicion testing, among other things, may be established where “the employee sustained a personal injury, as that term is defined [elsewhere in the law], or has caused another employee to sustain a personal injury,” or where an employee “has caused a work-related accident or was operating or helping to operate machinery, equipment or vehicles involving a work-related accident.” (Minn. Stat. §181.951(subd. 5)).  And in Florida, which has a “voluntary” drug testing law to which employers must adhere if they wish to benefit from a reduction in their workers compensation insurance premiums, reasonable suspicion also may be based upon “Information that an employee has caused, contributed to, or been involved in an accident while at work.”  (Fla. Stat. §440.102(1)(n)(5)).  A covered accident is not excluded because it happens to result in injury to the employee.

Does OSHA seek to undermine these “reasonable suspicion” testing laws, and others, in a professed effort to “protect the integrity” of its recordkeeping data, while increasing the risk that employees who are using drugs illegally or are impaired by alcohol will escape detection and continue to work, even after an accident has taken place resulting in harm?  (Not all post-accident testing is based on resulting injury.)

OSHA is accepting comments on its proposed rule, as supplemented, through October 14, 2014.  We will keep you advised of developments.

A “reasonable suspicion” drug test triggered by an employer’s discovery of apparent drug paraphernalia did not violate a public employee’s Fourth Amendment rights to be free from unreasonable searches and seizures, a court in Arkansas has held.  Brotherton v. Hill, No. 4:12-cv-534 (E.D Ark. Sept. 4, 2014).

Brotherton worked as a boiler operator at the Arkansas Health Center, a nursing facility of the Arkansas Department of Human Services.  The parties did not dispute that his job duties were dangerous.  Under the Center’s drug and alcohol testing policy, boiler operators were subject to random testing and reasonable suspicion testing.  Reasonable suspicion testing typically is conducted when there is reason to believe that an employee is or may be using drugs or alcohol, based on observations of the employee’s appearance, behavior, speech and breath or body odors.

In November 2011, a supervisor found a cigarette lighter next to an aluminum pie pan in the men’s restroom used by Brotherton and other employees.  Burnt brown residue was in the pie pan.  The supervisor notified the safety officer — a former narcotics officer with many years’ experience in law enforcement.  The safety officer suspected drug use.  Brotherton, and all other maintenance employees on duty at the time, immediately were subjected to drug testing, even though there was no individualized suspicion as to any one of them.

Although Brotherton apparently tested negative and was not subjected to any adverse employment action, he objected to the testing on the grounds that it violated his Fourth Amendment rights prohibiting unreasonable searches and seizures.  The Court disagreed and dismissed his claim, holding that the Center had a compelling interest in ensuring that Brotherton performed his safety-sensitive duties “with a clear mind” and that the intrusion into his legitimate expectation of privacy was minimal.  More specifically, the Court rejected Brotherton’s complaint that he was detained after work for an hour in order to take the drug test, causing him to miss an appointment, and also rejected his complaint that the safety officer yelled at him when he asked to leave to go to his appointment.  The Court stated that these complaints did not make the drug test unreasonable.  Additionally, the facts that other employees used the men’s room and that the brown material in the pie pan tested negative for drugs did not diminish the reasonableness of the employer’s suspicions.

A Tennessee auto glass manufacturer will get a new trial to prove that drug tests it administered to its employees – including tests for prescription medications — were not “medical examinations” or “disability-related inquiries” under the Americans with Disabilities Act.  Bates v. Dura Automotive Systems, Inc., No. 11-6088 (6th Cir. August 26, 2014). 

In May 2007, Dura conducted plant-wide drug tests of all employees at its Lawrenceburg, Tennessee facility.  The drug tests screened for twelve substances:  amphetamines, barbiturates, benzodiazepines, cocaine, Ecstasy, marijuana, methadone, methamphetamines, opiates, oxycodone, phencyclidine, and propoxyphene – some of which appear in prescription medications.  If an employee tested positive and produced a valid prescription, the Medical Review Officer changed the final test result from positive to negative.  Dura disregarded the MRO’s revisions, opting to prohibit any employee from using “machine-restricted” drugs, i.e., medications that were packaged with warnings about operating machinery.  Employees were told to stop using these medications or they would be terminated.  Several employees were terminated and filed suit, alleging violations of the Americans with Disabilities Act.  A jury found for all but one of the plaintiffs and awarded compensatory and punitive damages in excess of $870,000.  Dura moved for judgment as a matter of law or a new trial, among other things.  The District Court denied Dura’s motions.

The Sixth Circuit Court of Appeals vacated the District Court’s judgment and remanded for a new trial on the issue of whether Dura’s drug tests constituted medical examinations or disability-related inquiries.  The appellate court concluded that a reasonable jury could decide these issues either way.  Specifically, the court held that “the evidence shows that Dura abstained from asking plaintiffs about their medical conditions, and only one plaintiff suggested that Dura directly asked her to identify the medications she was taking, albeit with conflicting testimony.”  Moreover, the plaintiffs offered no evidence showing how the drug test results revealed information to Dura about plaintiffs’ medical conditions.  In the absence of specific evidence connecting the drug test results to specific medical conditions, the court declined to hold that the drug test results constituted medical examinations or disability-related inquiries.  The court noted, however, that there were credibility issues to be resolved, given Dura’s insistence that it was not interested in the plaintiffs’ medical conditions, while other evidence showed that some terminated employees provided doctor’s notes stating that their use of prescription medications did not affect their work performance.

At the new trial, the district court will instruct the jury to decide whether the drug tests were medical examinations or disability-related inquiries in accordance with the ADA’s statutory definitions, as well as the definitions set forth in the EEOC’s Enforcement Guidance:  Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) Part B.2 (July 27, 2000) and the EEOC’s Enforcement Guidance:  Preemployment Disability-Related Questions & Medical Examinations (Oct. 10, 1995).  In particular, the appellate court emphasized the “test design factor,” i.e., whether the test is designed to reveal an impairment or the employee’s health.  This issue is a fact-sensitive inquiry.

Employers who test for prescription medications should review this case and ensure that their testing protocols are not intended to elicit information about employees’ medical conditions.