The Government’s Results from the 2012 National Survey on Drug Use and Health: Summary of National Findings and Detailed Tables, finds that 8.9 percent of full-time employees and 12.5 percent of part-time employees, 18 years of age and older, are current illicit drug users, while 18.1 percent of unemployed adults in that age group are current illicit drug users.  The Survey, published by the Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health & Human Services, and is based on screening at nearly 154,000 addresses and interviews with more than 63,000 individuals, contains an ominous reminder for employers: “…most illicit drug users are employed.  Of the 21.5 million current illicit drug users aged 18 or older in 2012, 14.6 million (67.9 percent) were employed either full or part-time.”

Among other data contained in the 2012 Report of interest to employers are the following:

  • Among adults aged 50 to 64, current illicit drug use rates increased in the past decade.  For the 50 to 54 year-old age group, the rate jumped from 3.4 percent to 7.2 percent; for the 55 to 59 year-old age group, the rate spiked from 1.9 percent to 6.6 percent; and for the 60-64 year-old age group, the rate went from 1.1 percent (in 2003) to 3.3 percent.
  • Marijuana was the most commonly used illicit drug.  There were 18.9 million past month users in 2012.  In the preceding 5 years, the rate of current use increased from 5.8 to 7.3 percent, and the number of users rose from 14.5 million.  Daily or near daily use of marijuana increased from 5.1 million persons in 2007 to 7.6 million in 2012. 2.4 million were first-time users in the past year.
  • The number of past year heroin users increased significantly from 2007 (373 thousand) to 2012 (669 thousand).
  • The number of current cocaine users appears to have remained about the same in recent years (1.6 million age 12 and over in 2012, or 0.6 percent of the population) but are less than a decade ago.
  • The number of past month methamphetamine users decreased from 731 thousand in 2006 to 440 thousand in 2012.
  • In 2012, 1.9 million persons were past year first-time non-medical users of pain relievers.
  • In 2012, an estimated 22.2 million persons aged 12 or older were classified as dependent or abusing. Of these 2.8 million were dependent on or abusing both illicit drugs and alcohol, 4.5 million had such issues only with illicit drugs, and 14.9 million had such issues only with alcohol.
  • The number of persons with heroin dependence or abuse in 2012 (467 thousand) was approximately twice the number in 2002.
  • In 2012, of the 23.1 million persons 12 and older needing treatment for an illicit drug or alcohol problem, 20.6 million had not received treatment at a specialty facility in the past year.  Of the 1.1 million persons who said they felt they needed treatment for their drug or alcohol problem, only 347 thousand reported they made an effort to get treatment. The primary reason for not seeking treatment was a lack of insurance coverage and inability to pay the cost.

The Survey suggests the need for continued vigilance against workplace substance abuse.  An overwhelming percentage of drug abusers are employed.  The only sure way of detecting abuse and addressing it is by drug and alcohol testing using a lawful, common-sense policy.  While the popularity of certain illicit drugs may ebb and flow, drug and alcohol abuse continue to pose hazards to workplace safety and impede efficient operations.

One may wonder whether the prevalence of marijuana abuse in the study may be related to its legalization in a growing number of states—mostly for medical purposes but in two states, more generally—and the apparent ambivalence of the federal government over enforcement of the federal controlled substances law.  Any stigma seems to have diminished as its acceptability (and perhaps availability) has increased.  Heroin, a traditional drug of abuse, may have increased in popularity because of crackdowns on the misuse of prescription drugs.

Certain assumptions also may have to be questioned.  In particular, the conventional wisdom that employees “age out” of drug abuse appears to be on uncertain footing based on this study.  We see, too, that substance abuse rehabilitation is spotty at best.  For many, only the threat of loss of employment may propel them to enter a program that offers the chance to end a pattern of abuse and dependence.

Jackson Lewis attorneys are available to assist employers with substance abuse testing issues and in the preparation of substance abuse policies to comply with state and federal requirements.

Last year New York became the first state to enact a law mandating that doctors and pharmacists track patients’ prescription medication history.  The tracking system, known as I-STOP – Internet System for Tracking Over-Prescribing – went into full effect on August 27, 2013, and now requires doctors to consult a database of a patient’s prescription medication history before prescribing a Schedule II, III or IV controlled substance.  According to New York State Attorney General Eric T. Schneiderman, the “goal of I-STOP is to enable doctors and pharmacists to provide prescription pain medications, and other controlled substances, to patients who truly need them.  At the same time, it will arm them with the necessary data to detect potentially dangerous drug interactions, identify patterns of abuse by patients, doctors and pharmacists, help those who suffer from crippling addictions and prevent potential addiction before it starts.”  I-STOP also is expected to assist in patient care by providing a doctor with a patient’s accurate and up-to-date controlled substance prescription history; eliminate the problem of stolen and forged prescriptions being used to obtain controlled substances from pharmacies; crack down on illegal “doc-shopping”–the practice of visiting several different doctors and pharmacies for prescription drugs; facilitate prosecutions of crooked doctors; and achieve significant savings for public and private health insurance programs.

In addition to requiring physicians to consult the database before prescribing certain drugs, I-STOP requires real-time reporting by pharmacists when filling prescriptions for most controlled substances.  This makes New York only the second state (after Oklahoma) to require real-time reporting.

Additionally, by December 2014, controlled substances will only be available via e-prescription in New York.  It is hoped that this will “nearly eliminate” the problem of forged or stolen prescriptions—used both by addicts and criminal organizations obtaining pills to resell on the street.

I-STOP also mandated the rescheduling of hydrocodone to Schedule II, which ended automatic refills for this highly addictive and abused drug.

The U.S. Department of Justice announced August 29, 2013 that it will not challenge state laws recently enacted in Colorado and Washington State legalizing marijuana, as long as those laws do not conflict with certain federal enforcement priorities.  A memorandum to all United States Attorneys across the country from Deputy Attorney General James M. Cole stated that although the Department is committed to enforcing the federal Controlled Substances Act (which categorizes marijuana as a Schedule I illegal drug having a high potential for abuse and no currently accepted medical use in treatment in the U.S.), the Department also is committed to “using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent and rational way.”  Specifically, the Department’s enforcement priorities are as follows:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and,
  • Preventing marijuana possession or use on federal property.

The Department further stated that it expects Colorado and Washington State “to establish strict regulatory schemes that protect the eight federal interests” identified above.  “These schemes must be tough in practice, not just on paper, and include strong, stated-based enforcement efforts, backed by adequate funding.  Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.  But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.”

For now, the federal government defers its position on pre-emption (i.e., federal law stating that marijuana is illegal pre-empts state laws providing that it is legal).  It remains to be seen whether Colorado’s and Washington’s regulatory schemes will satisfy federal prosecutors.

A federal court in Denver has held that an employee who was fired after testing positive for marijuana was not protected by the state’s anti-discrimination laws, even though Colorado has legalized the use of medical marijuana.  (Curry v. MillerCoors, Inc., 12-cv-02471 (JLK) (D. Colo. 2013)).

MillerCoors terminated Paul Curry after he tested positive for marijuana use during a routine drug test administered by the company.  Curry, who suffers from hepatitis C and osteoarthritis, is licensed by the State of Colorado to use medical marijuana pursuant to Colorado’s Medical Marijuana Amendment, colloquially known as “Amendment 20”.

Following his termination, Curry filed a complaint in United States District Court accusing the Chicago-based brewer of discriminating against him on the basis of his disability.  According to Curry, he was terminated “because of the treatment [medical marijuana] that [he] was using to manage the symptoms of his disabling medical conditions.”  Curry also claimed he was discriminated against for engaging in lawful activity and that MillerCoors’s drug testing policy invaded his right to privacy.

According to District Judge John Kane, however, MillerCoors was simply enforcing its long-established drug-free workplace policy.  Regardless of Mr. Curry’s medical condition, the Court held, “[Colorado’s] anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.”

As to Curry’s claim he was discriminated against for engaging in lawful activity, the Court followed a recent ruling by the Colorado Court of Appeals expressly rejecting the proposition that medical marijuana use constitutes “lawful activity” for purposes of the state’s anti-discrimination law.  Instead, according to the Court of Appeals (and adopted by Judge Kane), “lawful activity” is that which is lawful under both federal and state law.  Since marijuana use is still illegal under federal law, Curry’s termination was not discriminatory.

Lastly, the Court dismissed Curry’s claim for invasion of privacy.  MillerCoors requires employees who are medical marijuana patients to report their status to the Company.  As Curry admitted he never disclosed to the Company his status as a medical marijuana user, however, “there was no intrusion.”  The Court also rejected Curry’s argument that the drug test, administered by oral swab, was an unlawful physical invasion.

Employers policies should note this case was decided under Colorado, not federal, law and that Amendment 20 specifically states employers need not “accommodate the medical use of marijuana in any work place.”  It is too soon to tell how courts in other states or jurisdictions will handle similar claims by employees or applicants claiming they were subject to discrimination because of their use of medical marijuana.

An employee who twice failed to complete a substance abuse treatment program was not protected by either the Americans with Disabilities Act or the Family and Medical Leave Act, according to the Fifth Circuit Court of Appeals.  Shirley v. Precision Castparts et al (5th Cir. August 12, 2013).   The employer terminated the employee for leaving a treatment program prior to being properly discharged, as required by its drug free workplace policy.

The plaintiff was not protected by the ADA because he was a “current user of illegal drugs,” according to the court. An individual who has used illegal drugs “in the weeks (or even months) preceding the adverse employment action” may be deemed “currently engaging” in that use, the court explained. This is consistent with a Tenth Circuit decision we posted about previously. See “Former Drug User May Be Current Drug User Under the ADA.”

The court also rejected the plaintiff’s claim that he was entitled to the ADA’s safe harbor for individuals who have successfully completed a supervised rehabilitation program and is no longer engaging in the illegal use of drugs. In rejecting this argument, the court held that “the mere fact that an employee has entered a rehabilitation program does not automatically bring that employee within the safe harbor’s protection.” The court said that only individuals “who have been drug-free for a significant period of time” can obtain protection from the safe harbor.

The court also rejected the plaintiff’s claim that his employer violated the FMLA by failing to reinstate him after his stint in rehabilitation. The court explained that the right to reinstatement is not guaranteed, that the plaintiff was terminated for violating the company’s drug-free workplace policy, and to conclude that the plaintiff was denied an FMLA right to which he was entitled “strains credulity to the breaking point.”

On August 1, 2013, Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act, making Illinois the 20th state to legalize medical marijuana.  The law provides for a four year pilot program allowing individuals with certain medical conditions – including cancer and multiple sclerosis – access to medical marijuana, pending approval by their doctors and the Illinois Department of Public Health.  The law goes into effect January 1, 2014.

The Illinois bill specifically prohibits employers from “penalizing” an individual for “his or her status as a registered qualifying patient.” However, no cause of action will exist against an employer who terminates or disciplines an employee who, based upon the employer’s good faith belief, used or possessed marijuana on the employer’s premises and/or was impaired while working on the employer’s premises.  While it is too soon to tell how Illinois courts will interpret these provisions, Illinois employers with drug testing programs should consult with legal counsel to discuss how this provision may affect future testing.

The Minnesota Supreme Court has ruled that a claim for wrongful discharge under Minnesota’s Drug and Alcohol Testing in the Workplace Act (“DATWA”) is subject to a six year statute of limitations.  Because DATWA, codified at Minn. Stat. Section 181.951 et seq., does not contain an explicit limitations provision, the applicable limitations period has long been uncertain. In Sipe v. STS Manufacturing, Inc., No. A11-2082 (July 31, 2013), the Court ruled that claims under DATWA  fall under the state’s six-year statute of limitations for actions, “upon a liability created by a statute, other than those arising upon a penalty or forfeiture or where a shorter period is provided by section 541.07.” The Court held that the exception provided in section 541.07 of Minnesota statutes, which would have resulted in a two-year limitation period, did not apply, thereby overruling a decision from the Minnesota Court of Appeals.

The decision is important for employers doing business in Minnesota because it increases exposure for lawsuits under DATWA. Compliance with Minnesota’s drug and alcohol testing requirements is already very difficult. Employers must have a written policy in place that meets strict criteria. The law also provides that employees who test positive for drugs or alcohol for the first time must be allowed to attend treatment and to return to work if they successfully complete a treatment program.  Damages for technical non-compliance can include lost wages, reinstatement, emotional distress, attorney’s fees and punitive damages. Employers in Minnesota should take this occasion to review their drug and alcohol testing policies and procedures for compliance. 

 

To the drugs of abuse commonly plaguing employers, synthetic cannabinoids, such as K2 and Spice, and synthetic cathinodes, often label as “bath salts,” will have to be reckoned with.  Although the overwhelming majority of states have outlawed K2 and Spice, as well as bath salts, according to the National Council on State Legislatures, and although they have been added by legislation to Schedule I of the federal Controlled Substances Act,KSAT in San Antonio, an ABC affiliate, reminded employers recently that detecting them is not a given.  Employers need to check whether the laboratories they are using to analyze drug test results have the ability to test for these substances, KSAT cautioned.  The conventional tests used by laboratories to test for natural cannabis (delta 9-THC), for example, will not detect these synthetics. The chief operating officer of a chain of medical clinics in the San Antonio area, according to the station, described the problem as a “mushroom cloud [that] is exploding and getting more complicated.”

A spokesperson for a human resources consulting group in the area reportedly added, “The expansion of this type of testing is going to be a substantial tool for emplpyers.  If they can’t control the sale, they can at least deter the use.”

The Centers for Disease Control and Prevention (“CDC”) has published a new survey showing that prescription painkiller overdoses have increased sharply among women since 1999. Specifically, the CDC found that deaths from prescription painkiller overdoses among women have increased more than 400% since 1999, compared to 265% among men.  This rise relates to the increased prescribing of these drugs during the past decade.  Prescription painkillers include opioids such as OxyContin, Vicodin and Percoset.  The CDC’s survey also found that:

  • More than 5 times as many women died from prescription painkiller overdoses in 2010 as in 1999.
  • Women between the ages of 25 and 54 are more likely than other age groups to go to the emergency department from prescription painkiller misuse or abuse.  Women ages 45 to 54 have the highest risk of dying from a prescription painkiller overdose.
  • Non-Hispanic White and American Indian or Alaska Native women have the highest risk of dying from a prescription painkiller overdose.
  • Prescription painkillers are involved in 1 in 10 suicides among women.

The CDC study also gave these possible reasons to explain the increase:

  • Women are more likely to have chronic pain, be prescribed prescription painkillers, be given higher doses, and use them for longer time periods than men.
  • Women may become dependent on prescription painkillers more quickly than men.
  • Women may be more likely than men to engage in “doctor shopping” (obtaining prescriptions from multiple prescribers).
  • Abuse of prescription painkillers by pregnant women can put an infant at risk.  Cases of neonatal abstinence syndrome – which is a group of problems that can occur in newborns exposed to prescription painkillers or other drugs while in the womb – grew by almost 300% in the U.S. between 2000 and 2009.

New Hampshire’s legislature has set the stage for the Granite State to become the 19th State to legalize medical marijuana.  On June 26, 2013, the legislature approved  HB 573, also known as “Use of Cannabis for Therapeutic Purposes.”  The statute allows patients diagnosed with certain qualifying conditions (including cancer, multiple sclerosis, Chrohn’s disease, and HIV/AIDS) to possess up to two ounces of marijuana.  It will also establish four non-profit, state licensed medical marijuana dispensaries.

While the Democratic-controlled House and Republican-controlled Senate had both previously passed legislation legalizing medical marijuana, HB 573 is a compromise legislation that was necessary due to significant differences in each chamber’s bills.  The lawmakers reached a bicameral compromise in early June – agreeing to withdraw a controversial home cultivation provision and to remove post-traumatic stress disorder from the list of qualifying conditions in exchange for enacting a medical marijuana oversight commission.

New Hampshire Governor Maggie Hassan has stated publicly she intends to sign the legislation into law.  If so, medical marijuana dispensaries could open within the next eighteen months.

The bill provides some level of protection to employers with drug-free workplaces, stating specifically that it should not be construed to require “any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment . . . [and] shall in no way limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.”  Moreover, it does not provide any specific protections for employees who are terminated, disciplined, or refused hire because of failing a drug test or using medical marijuana.