May unemployment benefits be denied where an employee authorized to use medical marijuana under state law tests positive for the drug on a workplace substance abuse test, is fired under the employer’s zero tolerance policy, and seeks unemployment compensation?   

Michigan’s state Court of Appeals is being asked to provide an answer. 

Rick Braska, a fork-lift driver for Challenge Manufacturing Company in Grand Rapids, was required to take a routine drug test during an examination for an ankle injury.  A registered user under Michigan’s Medical Marihuana Act (spelled with an “h”), Braska, who reportedly suffered from back problems, received a positive test result for the substance, according to published reports.  He was terminated pursuant to his employer’s drug testing policy.   

Braska sought unemployment benefits.  The state Circuit Court in Kent County, siding with Braska, said he was entitled to them. 

The Company has now taken the case to the Court of Appeals, Michigan’s intermediate appellate court.  Braska v. Challenge Mfg. Co. and State of Michigan, Dept. of Licensing and Regulatory Affairs, Unemployment Insurance Agency, Court of Appeals No. 313932.  The state’s attorney general is said to be weighing in on the side of the employer.  And recently, the Michigan Chamber of Commerce has also filed an amicus brief.  Chamber President and CEO Rich Studley explained that the lower court’s decision “puts employers in a no-win situation.” If the lower court’s ruling is upheld, he said, “employers will be forced to either ignore known drug use and jeopardize workplace safety or discharge those employees and pay their unemployment benefits and, subsequently, higher unemployment taxes.” “Michigan Chamber Asks Court of Appeals to Protect Safe, Drug-Free Workplace”.  A Chamber spokesperson reportedly told the Detroit News that when the business group backed the law in 2008, it did so based on the idea that employers were not required to accommodate the use medical marijuana.  Advocates of medical marijuana also are speaking out on these cases, claiming that employees permitted by state law to use the drug should not be denied unemployment benefits for testing positive for the substance on a workplace drug test where, they argue, the workers are not impaired on the job.   

The Court of Appeals has not yet set a date for argument.  Another case, involving a hospital CT scan technician, who also possessed a state medical marijuana card and was fired after receiving a positive test result for the substance, and likewise sought unemployment benefits, is also slated to be considered by the court.

 

 

Major League Baseball and the Major League Baseball Players Association have negotiated changes to its current Joint Drug Treatment and Prevention Program to create the most stringent drug program in baseball history.

Our colleague, Gregg Clifton, at the Jackson Lewis Collegiate and Professional Sport Law Blog reports on a Major League Baseball Players Association accord on new drug testing requirements.

Nevada’s medical marijuana law, Nevada SB 374, takes effect on April 1, 2014.  What does the law mean for Nevada employers?  The law explicitly states that it does not “require any employer to allow the medical use of marijuana in the workplace.”  However, the law further states that it does not “require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:

(a)    Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or

(b)   Prohibit the employee from fulfilling any and all of his or her job responsibilities.”

It appears then, that if an employee’s use of medical marijuana would not pose any threat of harm, or pose an undue burden on the employer, and would not prevent the employee from performing his or her job, Nevada employers must consider reasonable accommodations for users of medical marijuana under state law.  But doesn’t this requirement contradict federal law?

Indeed, marijuana still is illegal under federal law and continues to remain classified as a Schedule I drug under the federal Controlled Substances Act.  Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and the absence of any accepted safety for use in medically supervised treatment.  State medical marijuana laws, such as Nevada’s, conflict with federal law and therefore pose significant challenges for employers.  This is particularly true in the context of drug testing.  For example, can employers refuse to hire applicants who test positive for marijuana even if they possess a medical marijuana identification card?

There have been a handful of legal challenges to medical marijuana laws in other states (California, Colorado, Michigan, Montana, Oregon and Washington) and thus far, the outcomes have been favorable for employers.  Some of these courts have recognized that state law cannot permit that which is impermissible under federal law.  For example:

  • In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.2d 158 (Or. 2010), the Supreme Court of Oregon held that Oregon employers are not obligated to accommodate employees’ medical use of marijuana, even when that use is linked to a disabling medical condition and allowed under state law.  Specifically, the Court concluded that while the State may lawfully exempt medical marijuana users from state criminal liability, it may not authorize conduct that directly conflicts with federal law.
  • The California Supreme Court similarly has held that “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users.”  Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 204 (Cal. 2008).
  • More recently, the Colorado Court of Appeals upheld the firing of a quadriplegic man for off-duty medical marijuana use, finding that, because marijuana is illegal under federal law, employees have no protection under state law to use it at any time.  Coats v. Dish Network LLC, 303 P.2d 147 (Colo. Ct. App. 2013) (this case will be reviewed by the Colorado Supreme Court).

While employers have been successful in medical marijuana lawsuits to date, the proliferation of state medical marijuana laws and recreational marijuana laws surely will lead to more litigation.  Employers should be cognizant of the laws in the states in which they operate before deciding on a course of action with respect to medical marijuana users.

AN ASSORTMENT OF MARIJUANA AND OTHER DRUG ABUSE HAPPENINGS…. HEROIN USE IS SURGING as governmental efforts mount to halt prescription drug abuse, UPI reports.  With prescription opioids and other drugs getting harder to obtain, a study in the New England Journal of Medicine says heroin use has risen nearly100 percent in the past decade.  And UPI also says that a National Drug Intelligence Center report showed use of the drug increased 79% between 2007 and 2012, with 80% of users saying they had experience with prescription drugs.  Many users are employed.

ILLINOIS’ MEDICAL MARIJUANA LAW IS SPAWNING NEW RULES FOR IMPAIRED DRIVING, although rules to implement the new law itself are still awaited.  According to a report in the Peoria Star-Journal, the State Public Health Department’s draft rules require anyone who accepts a state medical marijuana registry card to agree not to drive while impaired and to consent to a field sobriety test requested by a police officer, although having a card is not grounds for making the request. Refusal to test can result in a 12-month suspension of driving privileges and revocation of the driver’s registry card.  A test result showing signs of impairment can result in 6-month driver license suspension.  There is no state law threshold for marijuana intoxication; according to the report, the presence of any marijuana metabolites would make a motorist subject to DUI prosecution.  The proposals have been sent to the Legislature’s Joint Committee on Administrative Rules.   Matt Buedel, “Marijuana Law, Vehicle Code In Conflict,” The Peoria Star Journal, Feb. 16, 2014.  Meanwhile, according to the state medical marijuana law’s sponsor, Rep. Lou Lang (D-Skokie), employers will be able to keep their drug-free workplace policies. “Whatever rules employers have at their workplace can stay in place,” he is quoted as saying. “We were very specific that if you have a drug-free workplace, it can remain drug free.” See Rockford Register Star, March 8, 2014.  (Medical Marijuana Zero Tolerance). 

THE NLRB SETTLES FIRST CASES INVOLVING THE LEGAL MARIJUANA INDUSTRY, in an agreement with Wellness Connections, Maine’s largest medical marijuana dispenser, over charges arising out of a year long dispute with the United Food and Commercial Workers Union, which has been seeking to organize the firm’s employees.  Although the union had issued a press release suggesting that the agency was about to prosecute the firm in agency compliant proceedings, absent settlement, a National Labor Relations Board representative in Boston said there were “a number of inaccuracies” in the union’s account, according to an article in Lewiston (Me.) Sun Journal.   See Koenig & Farwell, “NLRB Becomes Involved In Labor Dispute With Auburn Medical Marijuana Grower,”  Medical marijuana dispensaries were legalized in Maine in 2009.  


The Federal Aviation Administration (“FAA”) announced last week that it is considering expanding its current drug and alcohol testing regulations to require testing of certain foreign repair and maintenance workers performing work for U.S. air carriers.

While the FAA has long required random drug and alcohol testing of workers responsible for maintaining and repairing aircrafts within the United States, it has never extended those provisions to cover foreign personnel.  According to the FAA, there are approximately 120 foreign repair shops responsible for repairing and maintaining planes flown by American carriers.

Enacting and enforcing a drug and alcohol testing program for foreign workers will not be a simple task, as any testing program would need to comply with both current FAA standards and the laws of the country where the repair shop is located.  If the FAA does move forward, it warned there could be “significant logistical issues and conflicts with local laws”  and “potentially significant costs [for the] industry.”

The FAA published its Advanced Notice of Proposed Rulemaking — a public notice issued by law when a federal agency is considering altering its rules or regulations — on March 13, 2014.  The Advanced Notice requests comments from the public (including interested foreign governments) to help inform the FAA’s “development of a proposed rule and the analysis of its economic impact.”  While the FAA welcomes all relevant information, the agency specifically is seeking information on, among other issues, which drugs are most “pervasively misused” in different countries; whether foreign countries have testing programs and, if so, whether they are administered by a national regulatory authority; whether any foreign law forbids random drug testing; and, how employers in foreign countries are able to confirm a positive drug or alcohol test.

The comment period ends on May 12, 2014.  A complete copy of the Advanced Notice of Proposed Rulemaking can be found here.

Commercial laboratories owe a duty of care to drug testing subjects and the failure to follow established procedures may be a violation of that duty in certain circumstances, according to a recent decision by the United States District Court for the District of Columbia.  Rodriguez v. Laboratory Corp. of America Holdings, d/b/a LabCorp, 2014 U.S. Dist. LEXIS 13505 (D.D.C. Feb. 4, 2014).  However, given that the employee could not demonstrate that his drug test results were inaccurate, his case was dismissed.

Florentino Rodriguez, a long-term employee of the District of Columbia, was required to submit to a random drug test pursuant to the District of Columbia’s Mandatory Drug and Alcohol Testing Program for Safety-Sensitive Positions.  Defendant LabCorp certified his test results as positive for the presence of marijuana metabolites, and he subsequently was terminated from his position as an Urban Park Ranger.

While Rodriguez did not deny that he used marijuana, he filed suit against LabCorp, alleging that the laboratory failed to follow government-mandated drug testing procedures and therefore improperly reported his positive result to his employer.   Specifically, he alleged LabCorp violated the District of Columbia Municipal Regulations (which incorporate the United States Department of Transportation drug testing provisions), by failing to confirm, in writing, whether Rodriguez had a positive initial urine screen.  According to the regulations, a laboratory can only report a drug test result as positive if the specimen exceeds the “cutoff concentrations” for both the initial screen and the confirmatory test.  The cutoff concentration for an initial screen of marijuana is 50 ng/mL.   Rodriguez claimed the report submitted by LabCorp to his employer failed to indicate whether LabCorp complied with these procedural requirements.  Therefore, LabCorp “denied [him] a fair test in compliance with . . . government procedures.”

In deciding Rodriguez’s negligence claim, the Court held that testing laboratories owe testing subjects a duty of care, as it “is entirely foreseeable that an employee who submits a specimen for drug testing will suffer adverse effects to his or her employment if the laboratory erroneously reports a positive result.”    However, the Court declined to decide the “open question” whether that duty requires strict compliance with quality control procedures.   Instead, it dismissed Rodriguez’s negligence claim on the basis that the report stated clearly that LabCorp conducted an initial screen of Rodriguez’s urine specimen and that such screen exceeded the 50 ng/mL cutoff concentration.  Therefore, there was no actual violation of procedure and Rodriguez’s claim could not withstand LabCorp’s motion to dismiss.

 

Pre-offer drug tests to determine the use of both legal and illegal drugs violated the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on March 6, 2014.  EEOC v. Grane Healthcare Co. and Ebensburg Care Center, LLC, d/b/a Cambria Care Center, CV No. 3:10-250 (W. Dist. Pa. Mar. 6, 2014).

Defendants conducted pre-offer medical examinations along with drug tests.  Although the purpose of the drug tests was to determine illegal drug use (which is permissible under the ADA), four applicants who tested positive testified that their positive drug test results were due to the use of lawful prescription medications.  The EEOC argued that the pre-offer drug tests violated the ADA because the tests of the applicants’ urine specimens constituted a “medical examination” that elicited medical information about the applicants, even if the tests only were intended to detect evidence of illegal drug use.  Such “medical examinations” are impermissible at the pre-offer stage.

The Court held that the tests in this case clearly qualified as medical examinations under the ADA, particularly because each applicant’s urine specimen was tested not only for drugs but for other medical purposes – such as for glucose.  For this reason, the drug tests did not fall within the ADA’s exception for tests “to determine the illegal use of drugs.”

Employers are reminded that all pre-employment drug tests should be conducted post-offer.  Even if urine drug screens are conducted separately from other pre-employment medical examinations, there is always the possibility that an applicant might test positive due to the use of lawful prescription medications.  At the pre-offer stage, employers may not obtain or discuss such information with applicants because it could elicit information about an applicant’s medical condition.

A bill introduced February 18, 2014 in the U.S. House of Representatives would require registered manufacturers and distributors of controlled substances identified under the Controlled Substances Act to perform criminal background checks and drug testing for employees with access to controlled substances.

The measure, “Ensuring Patient Access and Effective Drug Enforcement Act of 2013” (H.R. 4069), introduced by Rep. Tom Marino (R-PA), and co-sponsored by Rep. Marsha Blackburn (R-TN), reportedly with backing from the National Community Pharmacists Association, the Health Distribution Management Association, and the National Association of Chain Drug Stores, would require registrants, as a condition of registration, “(A) to obtain a criminal background check on each of the registrant’s employees who has or will have access to facility areas where controlled substances under the registrant’s possession or control are stored, such as a cage, vault, or safe; and (B) to perform drug testing on each such employee in accordance with the Federal and State law.”   (See Zachary Brennan, “New US House bill would require drug testing for pharma employees,” in-Pharma Technologist.com, William Read Media SAS, 26 Feb. 2014.)  The background checks would have to be conducted at least every two years, and upon hire, once the bill was enacted.  “Drug testing,” according to the proposal, “means testing designed to detect the illegal use of a controlled substance.”  Civil penalty provisions for failing to comply with the new mandates are included in the law.  The Attorney General would have authority to issue regulations and guidelines to carry out the amendments.

The bill also establishes the “Combating Prescription Drug Abuse Working Group,” a panel composed of government, pharma, drug wholesalers and retailers, health care industry and benefit plan representatives with broad mandate to further the measure’s aim of combating prescription drug abuse and diversion by creating a “more collaborative partnership between drug manufacturers, wholesalers, retail pharmacies and federal enforcement and oversight agencies,” http://www.in-pharmatechnologist.com reports.  It should also help protect consumers against disruption in the prescription drug supply chain, its sponsors maintain.

The bill’s reference to testing “in accordance with Federal and State laws” is not altogether clear.  No laws require the testing of such employees generally, so it appears this phrase refers to legal limitations on the types of tests that may be conducted and the testing procedures involved.  Such questions presumably would be answered in regulations following enactment.

The bill has been referred to the House Energy and Commerce, and Judiciary Committees.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced February 12, 2014 a proposed rule to establish a federal Clearinghouse of drug and alcohol test result information for holders of commercial drivers’ licenses.  The primary purpose of the Clearinghouse is to assist FMCSA-regulated employers in screening applicants during the hiring process.  Under current law, prospective employers are required to obtain information about the applicant’s drug and alcohol test history directly from the applicant as well as the applicant’s former employers, to the extent that the applicant discloses them.  The clearinghouse was mandated by the Moving Ahead For Progress in the 21st Century Act, signed into law in July 2012.

The proposed rule would impose a number of requirements on FMCSA-regulated motor carrier employers, Medical Review Officers, Substance Abuse Professionals, consortia/third party administrators and laboratories supporting U.S. Department of Transportation testing programs, such as:

1.  FMCSA-regulated motor carrier employers:  Employers may not hire drivers without first conducting a search of the Clearinghouse for drug and alcohol violations.  After hire, employers must conduct annual searches of drivers’ drug and alcohol test result histories using the Clearinghouse.  In addition, employers must report to the Clearinghouse drivers’ positive, adulterated and substituted drug test results, positive alcohol test results, refusals to test, negative return-to-duty tests, reports of completion of follow-up testing, SAP reports and traffic citations for driving while under the influence of drugs or alcohol.  Employers also must modify their written substance abuse policies to notify drivers that such information will be reported to the Clearinghouse.

2.  Drivers:  Holders of commercial drivers’ licenses must notify, in writing, all of his or her employers if he or she violates DOT’s or FMCSA’s drug and alcohol testing regulations.

3.  Medical Review Officers:  MROs must report to the Clearinghouse within one business day all verified positive, adulterated, or substituted drug test results and refusals to test that require a determination by the MRO.

4.  Substance Abuse Professionals:  SAPs must report to the Clearinghouse information about drivers who begin and complete the return-to-duty process (required by DOT regulations when a driver violates certain drug or alcohol testing regulations).

5.  Laboratories:  Laboratories supporting DOT drug testing programs will be required to submit an annual, aggregate statistical summary of test results for each motor carrier for which the laboratory performs DOT required testing services.

6.  Consortia/Third Party Administrators:  C/TPAs acting on behalf of an employer who employs himself/herself must report to the Clearinghouse positive alcohol test results, negative return-to-duty tests, refusals to test, and reports that drivers have successfully completed all follow-up tests.

The proposed rule also contains provisions addressing who may access the Clearinghouse and the conditions under which the Clearinghouse may be accessed; a dispute resolution procedure to remedy administrative errors in a driver’s Clearinghouse record; fees to be collected by FMCSA from users of the Clearinghouse; and, proposed civil and criminal penalties for violations of Clearinghouse regulations.

Those who wish to submit comments on the proposed rule must do so within 60 days of the proposed rule’s publication in the Federal Register.

A federal appeals court held on February 14, 2014 that an employer did not retaliate against an employee when it discharged him for refusing to submit to a drug test after he initiated the filing of a workers’ compensation claim.  Phillips v. Continental Tire The Americas, LLC, No. 13-2199 (7th Cir. Feb. 14, 2014).

Phillips was required to submit to a drug test after stating his intention to file a workers’ compensation claim.  The Company’s written substance abuse policy required drug testing upon initiation of a workers’ compensation claim, among other circumstances.  The policy also provided that refusing to test was grounds for termination.  Phillips was informed that he had to submit to a drug test before he could submit his workers’ compensation claim.  He refused because he did not think that drug testing should be a consequence of filing a workers’ compensation claim.  His employment was terminated.

Phillips filed an action alleging retaliatory discharge.  To prevail, he needed to prove that his discharge was causally related to his pursuit of a workers’ compensation claim.  The lower court held that he could not do so, and the appellate court agreed.  It was undisputed that Phillips was discharged because he refused to submit to a drug test, not because he filed a workers’ compensation claim.  Moreover, the Company terminated other employees who refused to test, and did not discharge other employees who filed workers’ compensation claims.

Phillips further argued that the Company’s drug testing policy discouraged employees from filing workers’ compensation claims.  However, Phillips could not identify one employee who was discouraged from filing a workers’ compensation claim due to the drug testing requirement.  Additionally, the court noted that this discouragement argument was in tension with the Illinois Workers’ Compensation Act, which expressly contemplates drug and alcohol testing in connection with workers’ compensation claims.  Moreover, workplace drug testing is not against Illinois public policy, because the state’s medical marijuana law and its Human Rights Law both provide that employers may adopt and enforce drug testing policies.