The U.S. Food and Drug Administration announced on October 24, 2013 that it intends to recommend that products containing hydrocodone should be reclassified from Schedule III to Schedule II of the federal Controlled Substances Act, to increase controls on the use and misuse of opioid products.  Hydrocodone is a narcotic pain reliever that is found in drugs such as Vicodin and Lortab.  The FDA has become increasingly concerned about the nationwide epidemic of prescription painkiller abuse, and has made efforts to address this problem.  (See our blog post “FDA Takes Steps to Address Epidemic Levels of Prescription Painkiller Abuse” dated May 3, 2013).

Schedule II of the Controlled Substances Act is a more restrictive schedule than Schedule III.  The scheduling system, which is overseen by the U.S. Drug Enforcement Administration, classifies drugs into five distinct categories, or schedules, depending on a drug’s accepted medical use and its potential for abuse and addiction.  The abuse rate is considered a significant factor in the scheduling of a drug.  Schedule I drugs are the most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence.  Schedule II drugs are drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.  Schedule III drugs are drugs with a moderate to low potential for physical and psychological dependence.

The FDA’s proposed schedule change will require patients to take prescriptions for hydrocodone-based pain pills to a pharmacy, rather than having a doctor call it in.  In addition, the proposed schedule change will reduce the number of refills patients could obtain without seeing a physician again.  Current rules allow patients to refill hydrocodone-based prescriptions five times during any six-month period before having to return to a doctor for a new prescription.

The FDA expects to submit its formal recommendation to the U.S. Department of Health and Human Services in early December 2013.  The recommendation is then expected to be adopted by the U.S. Drug Enforcement Administration in 2014.

In a case of first impression, a federal court in Maryland ruled recently that the state’s drug and alcohol testing statute prohibits private employers from conducting breath alcohol tests on its employees.   Whye, et al v. Concentra Health Services, Inc., 12-cv-3432 (ELH) (D. Md. Sept. 24, 2013).

As employees of Vector Security, Inc., Wendell Whye and William Trout underwent periodic, random breath alcohol testing, pursuant to the Company’s substance abuse policy.  The tests, which were administered by third-party testing provider Concentra Health Services, Inc., required Plaintiffs “breathe deeply for several minutes [into a breath testing device] so as to produce alveolar or ‘deep lung’ breath for chemical analysis.”  The breath samples were not preserved and, in the event of a positive test result, could not be later retested for accuracy.

While neither employee tested positive for alcohol, nor did Vector ever take disciplinary action against them based on test results, Whye and Trout filed suit against Concentra on behalf of themselves and others similarly situated, alleging the breath alcohol tests were illegal under Maryland law.  Conceding that Maryland’s testing statute does not provide a private right of action, the Plaintiffs alleged common law claims for invasion of privacy and fraud.

Hon. Ellen Lipton Hollander analyzed whether Maryland’s testing statute permits the use of breath alcohol testing.  Since the Maryland courts had not yet considered this issue, Judge Lipton reviewed both the plain language of the statute and its regulatory framework.  In doing so, the Court held the Maryland legislature intended to only permit testing of the specimens specifically enumerated in the statute, i.e. blood, urine, hair and saliva.  The Court relied heavily on the statute’s legislative history, finding significant the fact that the legislature had on four occasions unsuccessfully attempted to amend the law to add breath as an enumerated specimen.  Further, a declaratory ruling from the Maryland Department of Health and Mental Hygiene, which administers the testing law, had held previously that employers may not require job-related breath testing.

In addition to finding breath alcohol tests per se illegal, the Court found the tests administered by Concentra were specifically unlawful, as they did not allow for the retesting of breath specimens.

Though the Court held the breath tests were unlawful, it dismissed with prejudice Plaintiffs’ invasion of privacy claim, stating “the employees had no privacy interest in the information sought by breath testing.”  Plaintiffs’ fraud claim was also dismissed, though the Court allowed Plaintiffs fourteen days with which to amend their Complaint and allege Concentra made a deliberately false representation with the intent to deceive.  The Court noted, however, that the named Plaintiffs did not have any damages, as neither was subject to discipline by Vector.

Any Maryland employers conducting breath alcohol testing should cease immediately.  Although this decision is not binding on Maryland state courts, this opinion, as well as the Maryland Department of Health and Mental Hygiene’s declaratory ruling, indicates such testing is impermissible within the state.

An Iowa appellate court reversed an award of damages to an employee under the Americans with Disabilities Act (“ADA”) after the employee was discharged for refusing to submit to a post-accident drug test.  Phillip M. Brown v. Mystique Casino, No. 3-723, 13-0012 (Iowa App. Oct. 2, 2013).

The employee had taken a number of prescription painkillers throughout his employment, including hydrocodone, oxycodone and hydromorphone.  Due to safety issues associated with his job as a maintenance laborer, the employer prohibited the employee from using power tools or driving vehicles at one point during his employment.  At a subsequent time, the employee took a medical leave of absence while using the prescription painkillers and eventually returned to work.

Shortly after his return to work, the employee cut his finger while at work.  He was advised by a supervisor that he needed to go to the hospital to determine whether he needed stitches.  The Company’s drug and alcohol policy required a post-accident test because the employee suffered an injury at work.  The employee refused to submit to the drug test, even after he was advised that the test was for illegal drugs, not for prescription medications.  Because the employee continued to refuse, his employment was terminated.

The employee filed suit under the ADA, arguing that he was terminated based on his disability.  The case proceeded to a jury trial and the jury entered a verdict in the employee’s favor.  The employer filed a motion for a judgment notwithstanding the verdict, which was denied.

The appellate court reversed and dismissed the case.  Among other things, the court found that the employer had the right to subject the employee to a post-accident drug test under its policy, and noted that the employee testified that he was aware that refusing to test could be grounds for termination.  The court rejected the employee’s argument that the jury’s verdict was supported by “a theory that the company allowed him to return to work, then waited for him to suffer an injury, knowing he would be required to take a drug test and further knowing that he would refuse the drug test.”  The court held that there was no evidence supporting such a theory, and that there was no evidence that the drug test was merely a pretext for terminating the employee’s employment.

Employers should always include a provision in their substance abuse policies advising employees that refusing to test will lead to termination, and defining the types of conduct that constitute a “refusal to test.”

A Pennsylvania court has upheld a commercial motor vehicle driver’s eligibility to receive unemployment benefits where the Medical Review Officer (“MRO”) did not advise the driver of his right to request a split-specimen test, as required under the Federal Motor Carrier Safety Administration’s (“FMCSA”) regulations.  Carlisle Carrier Corporation v. Unemployment Compensation Board of Review, No. 567 C.D. 2013, 2013 Pa. Commw. Unpub. LEXIS 740 (Pa. Commw. Oct. 3, 2013).

The driver was discharged after testing positive for cocaine on a random drug test.  Pursuant to U.S. Department of Transportation (“DOT”) regulations, the driver should have been advised by the MRO that he had the right to request a split-specimen test within 72 hours of being notified of the positive test result.  49 C.F.R. §§ 40.153 & 40.171.

The driver testified that he was not so notified.  The employer did not call the MRO as a witness, but had a Human Resources employee testify about what “would” have happened when a driver tests positive.  The employer also argued that the driver had been trained on the Company’s drug and alcohol policy which discussed the right to request a split-specimen test.  The Court rejected the Human Resources employee’s testimony as hearsay, and held that the employer’s training on the drug policy did not satisfy the obligation under FMCSA regulations to notify the driver of his right to a split-specimen test within 72 hours of being notified of the positive test result.

The Court affirmed the order of the Unemployment Compensation Board of Review which affirmed a referee’s determination that the driver was eligible to receive unemployment compensation benefits.

This case serves as a reminder that DOT-regulated employers are ultimately responsible for compliance with all DOT drug and alcohol testing regulations, and are responsible for the actions taken by their service agents, including MROs.  49 C.F.R. § 40.15(c).

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.