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.

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.