A federal court in Minnesota has ruled that Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA), Minn. Stat. Sections 950-957, does not apply to employees who work or are applying to work outside the state of Minnesota.  Olson v. Push, Inc., No. 14-1163 (ADM/JJK) (D. Minn. Aug. 19, 2014).  In Olson, the plaintiff resided in Minnesota and accepted an offer of employment in West Virginia from Push, a Wisconsin-based company.  Push originally asked Olson to submit to drug testing at a clinic in Wisconsin.  For convenience purposes, however, it allowed him to be tested in Minnesota. Push determined that the drug test result was “too diluted” and terminated his employment.  Under DATWA, Olson would have had the right to a confirmatory test, and possibly treatment, before termination, as well as many other protections, so he brought a lawsuit challenging the termination of his employment.  Push argued that DATWA did not apply and moved to dismiss the complaint.

Olson pointed to the language of the statute, which defines “employee” as “a person . . . who performs services for compensation, in whatever form, for an employer.”  “Employer,” in turn, is defined as “as a person or entity located or doing business in this state and having one or more employees[.]”  Although Push conceded it did business in Minnesota, it argued that, in the absence of extra-territorial language, DATWA must be interpreted as governing only in-state activity.  The court agreed, noting the general presumption against the extra-territorial application of a state’s statutes, as well as the Commerce Clause of the U.S. Constitution. It held that it would be “unreasonable to construe the phrase ‘doing business in’ as a broad, stand-alone qualification that applies to any employer who conducts any amount of business in Minnesota, regardless of where the employment is taking place.”  Finally, the court noted that “although Olson’s interpretation of the definition of ’employer’ might appear facially sound, it invites absurd or unjust results when DATWA’s requirements are viewed as a whole.”

The decision is a rare bit of good news for employers who might be facing lawsuits under this strict Minnesota statute.

This November, voters in California will decide whether to mandate drug and alcohol testing for doctors in the Golden State.

Proposition 46 – formally known as “Drug And Alcohol Testing Of Doctors.  Medical Negligence Lawsuits.  Initiative Statute.” – will appear on the ballot in California’s upcoming elections.  If passed, hospitals operating in the State will be required to randomly drug test all doctors “who are employees or contractors [of the hospital] or who have the privilege to admit patients [at the hospital].”  The proposition mandates hospitals report the name of any doctor who receives a positive test result to the California Medical Board.  The Board then would be required to suspend the doctor pending a Board investigation into the positive test result.  Under the proposition, the Board would have no choice but to discipline any doctor it finds was impaired while on duty, though mandated substance abuse treatment as a condition of licensure is considered an acceptable form of discipline.

In addition to the drug and alcohol testing requirements, Proposition 46 imposes an obligation on hospitals to affirmatively report to the Board any doctor suspected of practicing medicine while impaired by drugs or alcohol.  It also requires doctors consult with state prescription databases before prescribing controlled substances to patients.

Proposition 46 would make California the first state in the nation to require drug testing of doctors.  Though studies suggest at least one in ten doctors will suffer from addiction at some point during their career, neither the American Medical Association nor any other state ever has required doctors undergo mandatory drug or alcohol testing.

According to a recent article by The New York Times, Proposition 46 has a number of high-profile supporters, including Representative Nancy Pelosi and Senator Barbara Boxer, both Democrats of California.  The California Chamber of Commerce, the California chapter of Planned Parenthood, the Committee of Interns and Residents-SEIU and the Union of American Physicians and Dentists-AFSCME Local 206 are among the opponents of the proposition, which also would increase the State’s cap on awards for medical malpractice damages.

The National Labor Relations Board has held that a supermarket chain violated the National Labor Relations Act by terminating an employee who refused to submit to a drug test without first consulting a union representative, affirming an April 2013 decision by its Administrative Law Judge.  Ralphs Grocery Co., 361 NLRB No. 9 (July 31, 2014).

Vittorio Razi, a produce manager represented by a union, was observed by supervisors to be acting in an agitated, anxious and nervous state.  Razi exhibited slurred speech, would not make eye contact, spoke rapidly and in an animated fashion, had difficulty using the company computer and struggled to kneel down to tie his shoes.  Based on these observations, the Store Director concluded Razi was under the influence of some type of substance and wanted to send him for a drug and alcohol test.  After being informed of this, Razi refused to submit to the test and subsequently was advised by the Store Director that his refusal to submit would be grounds for immediate termination.  At this point, Razi said he wanted to contact a union representative.   The Store Director told Razi that although he possessed no right to union representation, he would be allowed to try to contact a union representative anyway.  Razi was unable to reach a union representative and, after approximately ten to fifteen minutes, the Store Director again requested Razi’s submission to a test.  In spite of warnings from the Store Director that the refusal to submit to a test would result in Razi’s discharge from employment, Razi refused, was suspended, and ultimately, was terminated.  The employer explained that its action was based on Razi’s insubordination, and because the employee’s refusal to submit was deemed to be an automatic positive test result, also warranting discharge.

A three-member Board panel agreed with the ALJ’s finding, and the panel majority agreed with his make-whole remedy. The NLRB found that the reason for Razi’s suspension and discharge was “inextricably linked” to his assertion of Weingarten rights to union representation, rights that the Company had interfered with unlawfully.  Under NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee, upon request, has the right to have a union representative present during an employer’s investigatory interview where the employee reasonably believes it may result in disciplinary action.  The Board agreed with the ALJ that the Company took disciplinary action against Razi for refusing to take the drug and alcohol test, as ordered.

The Board rejected the Company’s argument that Razi’s refusal to take the drug and alcohol test constituted insubordination, as well as an automatic positive test result, warranting discipline.   “There is simply no way to divorce Razi’s refusal from his assertion of his Weingarten rights…,” the Board stated.  By relying on Razi’s refusal to take the test as a basis for discipline, the Respondent, it said, penalized Razi for refusing to waive his right to union representation, irrespective of whether it considered his refusal to be insubordination or an automatic positive test result.”

NLRB member Harry Johnson partially dissented from the Board’s decision, concluding that Razi was suspended and discharged because of the Company’s belief that Razi was intoxicated, and not as a result of hostility toward Razi’s request for union representation.  As a result, Johnson reasoned, the suspension and discharge were not unlawful and a make-whole remedy would be inappropriate.  Further, Johnson made the point (previously raised by this Blog – NLRB ALJ Stifles Drug Testing Process By Allowing Union Representation Before Test) that sobriety test results are time-sensitive.  Johnson noted the Company’s legitimate interest in moving forward with its investigation, citing the argument that the “exercise of Weingarten rights may not interfere with legitimate employer prerogatives.”  While the majority also allowed that the Company had such a valid interest, it made no attempt to reconcile this position with its decision.

The Board’s decision makes clear that Weingarten rights apply to unionized employees faced with for-cause drug tests.  Employers should ensure that these employees are able contact a union representative at the earliest possible time so as to obtain assistance while minimizing delay of any drug and alcohol tests to be performed.

The Maine Department of Labor announced July 29, 2014 that it seeks the input of Maine businesses and other organizations regarding the current state law governing drug and alcohol testing in the workplace.  Businesses interested in participating in the survey must contact the department to receive a survey invitation; invitations are limited to one per business or organization.

During the last legislative session, the department proposed LD 1669, “An Act To Standardize and Simplify the Process for Employers to Provide a Drug-free Workplace,” which did not pass; however, during the discussions, a number of issues were raised concerning drug testing in the workplace.  As a result, the department seeks feedback to formulate future changes to the law and its rules to address employer and employee concerns.  Governor Paul R. LePage stated:  “The department wants to make the right changes to ensure that employers and their customers, other employees and equipment are protected from dangerous situations.  This survey will help them do that.  I encourage all employers, whether they drug test or not, to participate in this survey.”

The department has solicited participation in the survey from all employers with approved drug testing policies, insurance providers and organizations with a relationship to the issue, including medical marijuana organizations and providers.  Those interested in taking the survey should e-mail Mark Dawson, mark.dawson@maine.gov, in the Maine Bureau of Labor Standards.  The online survey takes about 30 minutes to answer.  It asks questions about different provisions of the law and asks for suggested changes.  The survey will be available online through August 15, 2014.

Maine’s drug testing law differs from most other state drug testing laws because:  it requires employers to obtain approval of their written testing policies from the state department of labor before any testing may be conducted (and, employers are required to obtain employee “feedback” before submitting the policy for approval); it requires employers with 20 or more employees to have a state-certified Employee Assistance Program; it fully exempts employers who have any employees subject to federal drug testing regulations; post-accident testing is prohibited after a first work-related accident; and, employers with 20 or more employees are required to split the cost of substance abuse rehabilitation with an employee who has tested positive (unless the costs are covered by a group health insurance plan).  The Maine drug testing law also has very severe civil penalties and remedies for violations of the law.

The Governor of New York signed on July 7 New York’s Compassionate Care Act, which will permit limited use of medical marijuana by individuals suffering from covered medical conditions, making New York the 23rd state to legalize the use of medical marijuana.

Under the law, no more than five private organizations in the state will be licensed for the production and distribution of medical marijuana through up to four regulated dispensaries per organization.  The dispensaries must be wholly owned and operated by such licensed organization.  Additionally, in order to obtain and maintain its certification, each organization must enter into a labor peace agreement with a bona fide labor organization representing its employees.

Of relevance to employers, New York is one of only a few states that deems covered individuals (“certified patients”) to be “disabled” categorically under the state human rights laws.  To be covered, individuals must suffer from a “serious condition,” defined currently as having one of the following “severe debilitating or life-threatening conditions” (which the legislature has concluded is likely to respond favorably to the therapeutic or palliative benefits of marijuana):

  • cancer
  • HIV/AIDS
  • amyotrophic lateral sclerosis (ALS)
  • Parkinson’s disease
  • multiple sclerosis (MS)
  • damage to the nervous tissue of the spinal cord with      neurological indications of intractable spasticity
  • epilepsy
  • inflammatory bowel disease
  • neuropathies
  • Huntington’s disease

Individuals must be experiencing specific symptoms of a covered condition in order to be deemed to have a “serious condition.”  Individuals deemed to be “certified patients” (or their designated caregivers) can obtain a maximum of 30 days’ supply of marijuana (in a dosage determined by agency rulemaking or a certified physician) at a time, with refills permitted one week before the supply runs out.  Marijuana can only be possessed in its original packaging (except when being used), and it cannot be smoked, consumed, vaporized, or grown in a public place. Moreover, smoking is not considered a certified or lawful medical use under any circumstances.

While the law is effective immediately, the New York State Department of Health must promulgate regulations and has been given up to 18 months to issue or make effective registry identification cards for certified patients and designated caregivers, which will be necessary for obtaining medical marijuana.

The law does not prohibit employers from creating or enforcing existing policies that prohibit employees from performing their employment duties while impaired by medical marijuana, and it is not intended to result in violation of federal law or cause an employer’s federal contracts or funding to be jeopardized.  Nevertheless, the law will create challenges for employers as it relates to drug testing policies since it is unclear whether an employer must excuse or accommodate a positive drug test where the employee is a certified patient taking marijuana in approved forms.  Additionally, because covered patients are deemed “disabled” under the Human Rights Law, employers may need to engage in an interactive process with employees who reveal medical marijuana use to discuss potential accommodations.

A federal appeals court has upheld the dismissal of a commercial motor vehicle driver’s claims that his employer violated the Americans With Disabilities Act and the Family and Medical Leave Act when it fired him after learning of his alcoholism.  Sakari Jarvela v. Crete Carrier Corporation, Case No. 13-11601 (11th Cir. June 18, 2014).

The Department of Transportation’s (“DOT”) Federal Motor Carrier Safety Administration’s (“FMCSA”) regulations prohibit anyone with a “current clinical diagnosis of alcoholism” from driving commercial motor vehicles.  49 C.F.R. § 391.41(b)(13).  In addition, Crete had a company policy prohibiting the employment of anyone as a commercial motor vehicle driver if he or she had been diagnosed with alcoholism in the past five years.

Jarvela worked for Crete for several years before he was diagnosed with alcoholism in 2010 and sought leave to obtain treatment.  His request for FMLA leave was approved.  After being out of work for approximately one month, Jarvela sought to return to work.  Crete decided that Jarvela was no longer qualified to be a commercial motor vehicle driver, pursuant to FMCSA regulations and company policy.  His employment was terminated.

Jarvela asserted claims under the ADA and FMLA, arguing that Crete discriminated against him due to his disability – alcoholism—and that the Company interfered with his FMLA rights and retaliated against him for exercising his FMLA rights.  The lower court disagreed and granted summary judgment to Crete.  The appellate court affirmed.

First, the appellate court held that Jarvela was not a “qualified individual” under the ADA because he was not physically qualified to drive under FMCSA regulations.  The Court observed that it is the employer’s burden to ensure that a driver meets all FMCSA physical qualification standards.  49 C.F.R. § 391.11(a).  Because FMCSA does not permit anyone with a “current clinical diagnosis of alcoholism” to drive, the employer must determine whether someone suffers from such a diagnosis.  Crete determined that Jarvela was not physically qualified to drive a commercial motor vehicle and neither the lower court nor the appellate court found fault with that conclusion.

The appellate court also upheld the dismissal of the FMLA interference and retaliation claims.  Jarvela’s FMLA interference claim failed because he would have been discharged regardless of whether he took FMLA leave.  The retaliation claim failed because he could not show that his termination was related to his FMLA leave.

This case is important to DOT-regulated employers, as it shows that the courts will uphold an employer’s judgment concerning a driver’s physical qualifications to drive a commercial motor vehicle.

Minnesota’s new Medical Cannabis Act, signed into law on May 29, 2014, differs from many other state medical marijuana laws in that it narrows the kind of medical cannabis permitted.  It also offers considerable protections to applicants and employees in the workplace.

The law does not cover marijuana that can be smoked.  It defines “medical cannabis” as any species of the genus cannabis plant that is “delivered in the form of” liquid, including but not limited to oil, pill, vaporized delivery which does not require the use of dried leaves or plant form, or any other method, excluding smoking, approved by the Minnesota Commissioner of Health.  So, a person using a marijuana cigarette is not protected by this law.

Qualifying patients must have a qualified medical condition from a list limited to the following: cancer, if the underlying condition or treatment produces severe or chronic pain, nausea, cachexia or severe wasting; glaucoma; HIV; Tourette’s; amyotrophic lateral sclerosis; seizures, including those characteristic of epilepsy; severe and persistent muscle spasms, including those characteristic of multiple sclerosis; Crohn’s disease; terminal illness, with a probable life expectancy of under one year, if the illness or treatment produces severe or chronic pain, nausea, cachexia or severe wasting.  The Commissioner may also approve other medical conditions or treatments.

The Act includes specific employment protections for qualified patients.  It states that “an employer may not discriminate against a person in hiring, termination or any term or condition of employment, or otherwise penalize a person,” if the discrimination is based upon the person’s status as a qualified patient or a qualified patient’s positive drug test for cannabis components or metabolites, “unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.”  This protection has an exception if the failure to discriminate “would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations[.]”  Of course, if an employee “used, possessed, or was impaired” by marijuana on the job, under many employer substance abuse policies, drug testing would be unnecessary prior to the imposition of discipline.

The consequences of the law for Minnesota employers seeking to maintain a drug-free workplace can be onerous.  Arguably, an applicant who is a qualified patient could not be rejected for testing positive for marijuana, even if he or she was applying to work in a safety-sensitive position (other than as a driver of a commercial motor vehicle, pilot or other position regulated by federal drug testing law).  Solace for employers may be found in the narrow restrictions on the population that can use medical cannabis, and the means by which the drug may be administered.  The total number of patients, especially those who are not completely disabled and can work, may remain low for the time being.  In fact, some patient advocates are refusing to participate or become enrolled because the act does not allow them to smoke marijuana leaf, although a drug test result cannot distinguish between use from smoking and the use of oil or vapor.

Drug testing in Minnesota is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”) which has strict requirements for testing, including the requirement of a compliant written policy and a prohibition on termination of employees who test positive for the first time unless they refuse or fail to attend and complete treatment.  The Medical Cannabis Act does not directly amend DATWA, but by de-criminalizing marijuana for qualified individuals under the criminal statutes upon which DATWA is built, it may limit the reach of the drug testing statute with regard to qualified patients under the Act.  Employers who drug test in Minnesota should take the opportunity to review and revise their policies to ensure compliance.

Minnesota also has a “lawful consumable products” act which prohibits employers from taking an adverse employment action against an employee who consumes lawful products on his or her own time.  It remains to be seen whether or how the Medical Cannabis Act will impact that statute, but the explicit protections in the new Act probably make an attempt to invoke the lawful consumable products act unnecessary or redundant, and possibly vulnerable to an argument that it has been preempted by the new Act insofar as medical marijuana is concerned.

The Act became effective upon enactment, but it will take time for a system to be created to allow the use of medical cannabis.  Minnesota is the 22nd state (plus the District of Columbia) to approve medical marijuana in some form.  Other states with some form of employee protection for use of medical marijuana include Connecticut, Illinois and Nevada, among others.

A New Mexico intermediate appellate court has affirmed a workers’ compensation judge’s determination that an employer and its workers’ compensation carrier are required to reimburse an employee for costs associated with the purchase of medical marijuana.  Vialpando v. Ben’s Auto. Servs. and Redwood Fire & Casualty, 2014-NMCA-32,920 (N.M. Court of Appeals, May 19, 2014).

Gregory Vialpando sustained a work-related lower back injury in June 2000 that required numerous surgical procedures.  By 2008, the workers’ compensation judge assigned to Vialpando’s case determined that Vialpando had reached “maximum medical improvement” for his physical and psychological conditions, and that he had a 99% permanent partial disability.

In 2007 the State of New Mexico passed the Lynn and Erin Compassionate Use Act, which created a program allowing for the use of medical marijuana.  Vialpando, who according to his doctor suffered “extremely high intensity, frequency, and duration of pain”, was certified by his doctor to participate in the Compassionate Use Act’s medical marijuana program.  Vialpando filed an application in 2013 for approval by the workers’ compensation judge of medical treatment for medical marijuana.  The workers’ compensation judge granted Vialpando’s request, holding that Vialpando was entitled to “ongoing and reasonable medical care” which included the use of medical marijuana.  The workers’ compensation judge ordered Vialpando to pay for the medical marijuana and required the employer and its workers’ compensation carrier to reimburse Vialpando for these costs.

The employer challenged the ruling, arguing that: (1) it was illegal and unenforceable under federal law and thereby also contrary to public policy; and (2) the Act and its regulations do not recognize reimbursement for medical marijuana.

Turning to the reimbursement issue first, the Court noted that the New Mexico Workers’ Compensation Act requires an employer to provide an injured worker “reasonable and necessary health care services from a health care provider.”  Rejecting the employer’s argument that a doctor who dispenses medical marijuana is not a “health care provider,” the Court interpreted “health care services” very broadly and focused on the “reasonable and necessary” requirement.  Given that Vialpando’s doctors recommended the services under a program authorized by the Compassionate Use Act, that was sufficient for the Court to conclude that medical marijuana is “reasonable and necessary” under the Workers’ Compensation Act.

The Court also rejected the employer’s arguments that marijuana is illegal under federal law and therefore reimbursing Vialpando would require it to violate federal law.  First, the Court stated that the employer did not challenge the legality of the Compassionate Use Act and did not identify any federal statute that it would be forced to violate.  Next, the Court rejected the argument that reimbursing Vialpando would violate public policy.  The Court noted that the “Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes,” and further noted that the Department of Justice has stated that it would defer its right to challenge laws in Colorado and Washington legalizing possession of marijuana.  Additionally, it was clear to the Court that New Mexico public policy clearly favors the use of medical marijuana.  For these reasons, the Court upheld the workers’ compensation judge’s ruling requiring the employer and its workers’ compensation carrier to reimburse Vialpando for medical marijuana expenses.

This case is one of the first court rulings to highlight the fact that although marijuana remains illegal under federal law, the federal government’s current position is that it will not oppose state medical and recreational marijuana laws.  Employers should take note and be cautious when opposing employees’ claims under these state laws.

West Virginia Governor Earl Ray Tomblin signed into law March 28, 2014 an amendment to the West Virginia Code requiring mandatory employer reporting to the West Virginia Office of Miners’ Health, Safety and Training (“OMHST”) whenever an applicant or employee, working in a safety-sensitive mining position, tests positive on a drug or alcohol test or refuses to test (including adulteration and substitution of test specimens).

The law, which took effect immediately, requires employers who employ or accept applications from “certified persons” who work in mines (persons qualified under the provisions of West Virginia Miners’ Health, Safety and Training law to perform such duties) to notify the director of OMHST within seven days, on a form supplied by the director of the OMHST, of any of the following:

(1)   a positive drug or alcohol test of a certified person, whether it be a pre-employment test, random test, reasonable suspicion test or post-accident test;

(2)   the refusal of a certified person to submit a sample;

(3)   a certified person possessing a substituted sample or an adulterated sample; or,

(4)   a certified person submitting a substituted sample or an adulterated sample.

Prior to the amendment mining employers were required only to provide notice to OMHST if they terminated an employee for one of the violations noted above.

An employer providing notice to OMHST for any of the above violations must also immediately and temporarily suspend all certificates held by the certified person at issue pending a hearing before an OMHST board of appeals.  Employers must include, when providing notice to OMHST, a copy of the laboratory test results showing the substances tested for and the results of the tests.  The law applies to both union and non-union employees.  Notice to OMHST concerning a certified person subject to a collective bargaining agreement may not result in the immediate temporary suspension, suspension or revocation of any certificate held by the certified person, until and unless the arbitration is concluded and the discharge is upheld.

The law already required that mining employers conduct random substance abuse testing and a pre-employment ten panel urine test that, at a minimum, tests for amphetamines, cannabinoids/THC, cocaine, opiates, phencyclidine (PCP), benzodiazepines, propoxyphene, methadone, barbiturates, and, synthetic narcotics.  All such pre-employment urine tests must collect split samples, collected by providers who are certified as complying with standards and procedures set forth in 49 C.F.R. Part 40 (U. S. Department of Transportation Regulations).  The law also requires that employers review their substance abuse screening program with all persons required to be tested at the time of employment, upon a change in the program and annually thereafter.

West Virginia mining employers should review and revise their drug testing policies to ensure compliance with the amended law.

A federal court in Florida has held that the City of Key West’s policy of drug testing all applicants for employment was applied to an applicant in an unconstitutional manner.  Karen Cabanas Voss v. City of Key West, Case No. 13-10106-CV-King (S.D. Fla. May 9, 2014).

The City of Key West conducts drug testing of all applicants, as well as “reasonable suspicion” testing of all employees, and random testing of employees in “public safety positions” (such as firefighters and police officers) and “safety-sensitive” positions (such as commercial drivers).  Voss applied for a job as a Solid Waste Coordinator, which primarily was an office job.  After she was offered the job, Voss was instructed to report for a pre-employment drug test.  She refused to do so and the City did not hire her based on her refusal to test.

Voss challenged the City’s drug testing policy, arguing that it was unconstitutional as applied to her.  Specifically, public employer drug testing which utilizes urinalysis is a “search” that falls within the ambit of the Fourth and Fourteenth Amendments.  To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.  However, the U.S. Supreme Court has recognized particularized exceptions where the government proffers a “special need” or “important governmental interest” which is furthered by the intrusion.  Voss argued that the City failed to make the required showing of a “special need” or “important governmental interest” which justified the invasion of her Fourth Amendment privacy interest.

The City attempted to establish a “special need” by arguing that it was generally interested in the “safe, effective and efficient delivery of public services.”  The Court rejected this “symbolic” interest as a “special need” and stated that a more specific showing was required.  The City then argued that the Solid Waste Coordinator position was “safety-sensitive.”  That argument also was rejected because the position consisted mostly of office duties, and the position was not subject to random testing (like all other safety-sensitive positions).  Finally, the Court rejected the City’s argument that pre-employment drug testing is reasonable because applicants can refrain from applying for positions that require pre-employment drug testing.  The Court again disagreed, stating that “there is no precedent in this circuit which holds that the government can violate a person’s rights under the Fourth Amendment so long as prior notice of the impending violation is given.”  Summary judgment was granted to Voss.