Marijuana Buds & Joints

Author: justin

Author: justin

Right-to-Weed States: Assessing Impairment and Managing Employee Conduct in the Workplace

Posted on by justin

On May 9, 2023, the Washington state governor signed a law that will make it unlawful for employers to discriminate against hiring a person based on their marijuana usage, making Washington the latest state to become a right-to-weed state. With medical and recreational marijuana legalization spreading, a growing number of states are further implementing protections for employees who lawfully use marijuana or cannabis.

These developments continue to create challenges for employers seeking to enforce drug-testing and drug-free workplace policies. Moreover, even in right-to-weed states that have enacted employment protections for lawful and off-duty marijuana use, employers are not required to permit employees to use marijuana in the workplace or to work while impaired by or under the influence of marijuana or other drugs. Here are some key points on the ways in which employers, even in right-to-weed states, can regulate marijuana usage and maintain drug-free workplaces.

Quick Hits

  • Employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana.
  • Employers may be required to reasonably accommodate medical marijuana users, but that does not mean employers must permit users to be impaired while working.
  • Supervisors and managers can be trained to recognize the signs of marijuana impairment.

Impairment Is Still Prohibited

While the Americans with Disabilities Act and most state counterpart laws do not require employers to accommodate illegal drug use, employers may have to engage in the interactive process to determine whether a reasonable accommodation can be made for an employee’s off-duty marijuana use if the employee is disabled. Still, employers are not required to allow marijuana use at the workplace or allow employees to work “under the influence” of marijuana, just like with alcohol.

Medical Marijuana Cards Are Not Prescriptions

Generally, employers may not discriminate against individuals with a medical marijuana identification card because they: (i) possess the card, (ii) use medical marijuana off the employer’s premises during nonworking hours, or (iii) test positive for marijuana, unless there is evidence that the employees used or possessed marijuana while working or that the employees’ lawful off-duty use affects the employees’ ability to perform their jobs, affects the safety of others on the job, or conflicts with an occupational qualification reasonably related to the job. In other words, employees—including authorized medical marijuana users—may be prohibited (lawfully) from working while “under the influence” of marijuana by some employers.

Medical marijuana cards do not give employees permission to use marijuana on the job. In most states, medical marijuana authorization cards only entitle holders to purchase marijuana to treat a condition. They are not prescriptions that mandate dosages or frequency as prescriptions do with other drugs. Thus, to understand how to manage situations in which employees hold medical marijuana cards, employers may need to engage in the interactive process with these employees to determine whether they can reasonably accommodate the marijuana usage. But, again, reasonably accommodate does not mean employers must permit medical marijuana users to be “under the influence” while working.

Training Employees to Spot Impairment Is Key

Unlike alcohol, there is no standard test for marijuana that can prove current impairment. Marijuana users are typically “under the influence” between two and ten hours after usage, but some studies have shown impairment can last for twenty-four or more hours. But, even after the user is no longer under the influence, they can test positive for marijuana for weeks or longer. That said, employees may exhibit visual signs of impairment associated with being under the influence of marijuana—which differ from the signs of alcohol intoxication. Supervisors and managers can be trained to recognize when an employee may be under the influence of marijuana. Some states allow employers to designate a workplace impairment recognition expert (WIRE) who obtains specialized training to identify when an individual is impaired by marijuana.

It may be more difficult to visually observe when employees working remotely are impaired, but if there is reason to believe that an employee was impaired on the job because co-workers or customers who interacted with the employee reported it, that report itself can be evidence to show that the employee was impaired.

Next Steps

Employers may want to audit existing policies and procedures to confirm compliance with the changing landscape around marijuana usage. Employers may further want to consider training supervisors and managers to recognize the signs that employees are under the influence of marijuana, alcohol, or other drugs.

This article is based on a May 2023 presentation by Ogletree Deakins shareholders Aimee B. Parsons and Burton D. Garland, Jr. at the firm’s 2023 National Workplace Strategies Seminar in San Diego.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments in marijuana laws and will provide updates on the Drug Testing and Leaves of Absence blogs as additional information becomes available.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Majority of States Have Legalized Marijuana, but OSHA’s Post-Incident Drug-Testing Guidance Hasn’t Changed

Posted on by justin

As of May 1, 2023, marijuana had been legalized for medicinal or recreational use, or both, in thirty-eight states. Some 35–55 million Americans report using marijuana two or more times per month. According to published reports, drug tests administered by one large national testing laboratory returned the highest rate of marijuana positive tests since 1997. Accommodation, food services, and retail trade employees led the various industry sectors with an 8.1 percent positivity rate. Transportation and warehouse workers weren’t far behind at 6.4 percent. In addition to marijuana, there has been a push to legalize other drugs, such as in Oregon, where some “hard drugs” in small quantities have been decriminalized.

Quick Hits

  • With the increased decriminalization of marijuana use, a number of states have restricted or limited drug testing for marijuana.
  • Federal law has not changed, however; marijuana is still illegal, and drug testing is required to comply with a number of federal laws, including the Motor Carrier Safety Act.
  • OSHA allows an employer to drug test an employee who reports a work-related injury or illness, if the employer has an “objectively reasonable” basis for testing.

Against this backdrop of skyrocketing marijuana use, many states and localities where recreational marijuana has been legalized have implemented measures that restrict or limit drug testing in favor of indicia of impairment. Given the long presence of tetrahydrocannabinol (THC) metabolites, someone who used marijuana days or weeks earlier, while no longer impaired, can still test positive for marijuana. Moreover, it is not possible, with a drug test alone, to measure the level of impairment—it is only possible to determine that the person tested has that substance in his or her system. Some states and locales have all but eliminated preemployment drug testing as a result of the impossibility of correlating impairment with a certain level of metabolite. In some states even post-accident drug testing where there is no sign of impairment is not permitted.

In contrast, federal law has not changed and marijuana and other “drugs” are still illegal, and drug testing is still required to comply with federal laws such as the Motor Carrier Safety Act. In addition, drug testing of federal contractors is still required. But what about post-incident drug testing and the federal Occupational Safety and Health Administration (OSHA)?

In 2016, OSHA issued a standard interpretation related to 29 C.F.R. section 1904.35(b)(1)(i) and (iv) that broadly addressed two topics: safety incentive programs and post-accident drug testing. In short, as relates to post-incident drug testing, OSHA took the position in that memorandum that section 1904.35(b)(1)(iv) does not prohibit an employer from drug testing employees who report work-related injuries or illnesses if the employer has an “objectively reasonable” basis for testing, and the policy does not apply to drug testing employees for reasons other than injury reporting. The memo continued and stated that “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” If there was a reasonable basis for believing drug use by the employee could have contributed to the injury or illness, then OSHA would view the testing as “objectively reasonable” and not issue citations for testing the employee.

Though OSHA stated testing someone who had reported an injury or illness would be objectively reasonable, it also said:

When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed when the injury or illness occurred. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.

Thus, a host of factors beyond mere indicia of impairment are considered by OSHA in terms of whether the testing of an injured employee is reasonable or not. OSHA continued and said that testing someone whose injury could not have been caused by drug or alcohol use was likely a violation of 29 C.F.R. section 1904.35(b)(1)(iv).

In 2018, OSHA issued a second standard interpretation on the issue and stated: “The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.” That standard interpretation went into far less detail than the 2016 version, but it did offer the following examples of permissible workplace drug testing:

  • “Random drug testing.”
  • “Drug testing unrelated to the reporting of a work-related injury or illness.”
  • “Drug testing under a state workers’ compensation law.”
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule.”
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

OSHA has not cited a significant number of employers for post-incident drug testing, but given the apparent increased use of marijuana and the growing number of state restrictions prohibiting employers from testing, it is very possible that we will see OSHA begin to focus on and scrutinize employer post-incident drug testing. With that scrutiny, we are likely to see more citations and penalties.

Ogletree Deakins’ Drug Testing and Workplace Safety and Health practice groups will continue to monitor developments with respect to these and related policy topics and will provide updates on the Drug Testing and Workplace Safety and Health blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs. Please also follow us on LinkedIn and Twitter.

In addition, further information on federal, state, and major marijuana laws is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

New Washington State Law Will Protect Job Applicants From Discrimination Based on Off-Duty Marijuana Use

Posted on by justin

Employers in Washington will soon be prohibited from making hiring decisions based on preemployment testing for off-the-job cannabis use or test results showing nonpsychoactive cannabis metabolites in an applicant’s hair, blood, urine, or other bodily fluids. Washington’s new law, Senate Bill 5123, signed by Governor Jay Inslee on May 9, 2023, takes effect on January 1, 2024.

Quick Hits

  • Effective January 1, 2024, Washington employers will be prohibited from discriminating in initial hiring decisions based on job applicants’ lawful, off-the-job use of cannabis or test results indicating the presence of nonpsychoactive cannabis.
  • An employer may base initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
  • The law does not preempt state or federal laws requiring an applicant to be tested for controlled substances, and it does not apply to applicants seeking positions requiring a federal background investigation or security clearance, certain public safety positions, or certain safety-sensitive positions previously identified by the employer.

The law notes that recreational cannabis use was legalized in Washington in 2012, and that “[m]any tests for cannabis show only the presence of nonpsychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past, that have no correlation to an applicant’s future job performance.” Likening legal cannabis use to legal alcohol use, the Washington Legislature has removed some restrictions on job opportunities based on an applicant’s past use of cannabis.

Employers can still base hiring decisions on scientifically valid drug testing that screens for other types of controlled substances but not nonpsychoactive cannabis metabolites. An employer can also continue to use drug tests that detect a range of controlled substances, including cannabis, as long as the findings related to past cannabis use are not provided to the employer. Additionally, the law expressly excludes from its coverage other types of controlled-substance testing, “such as postaccident testing or testing because of a suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances.” Nothing in the law affects an employer’s right or obligation to maintain a drug and alcohol–free workplace, “or any other rights or obligations of [the] employer required by federal law or regulation.” Although not specifically addressed in the law, employer testing for more recent marijuana use or psychoactive cannabis metabolites may be valid and more indicative of impairment versus historical use.

Washington’s new law does not apply to job applicants seeking

  • positions requiring a federal government background investigation or security clearance;
  • certain law enforcement positions or fire department, first-responder, and corrections positions;
  • positions in the airline or aerospace industries; or
  • safety-sensitive positions “for which impairment while working presents a substantial risk of death,” which were “identified by the employer prior to an applicant’s application for employment.”

The law also “does not preempt state or federal laws requiring an applicant to be tested for controlled substances.” This includes laws requiring testing, or a way that testing is to be performed, “as a condition of employment, receiving federal funding or federal licensing–related benefits, or as required by a federal contract.”

California enacted a similar law last year that will go into effect on January 1, 2024. With the ongoing passage of state laws legalizing cannabis, it is likely that additional laws prohibiting preemployment testing for cannabis will follow across the country. In addition, a growing number of large employers have already enacted policies that do not subject prospective employees to preemployment testing for cannabis in states in which the drug is legal, citing access to an expanded pool of talent as motivation for such policies.

Key Takeaways

Employers in Washington may want to review their drug-testing policies to ensure that they are in compliance with the new law. Employers must ensure that any preemployment drug test does not screen for the presence of nonpsychoactive cannabis metabolites or, if a test does screen for such substances, that they do not receive communications regarding the detection of nonpsychoactive cannabis metabolites. If employers will continue to test employees for the presence of psychoactive cannabis metabolites to detect on-the-job use, they may want to consult their testing facilities/laboratories to ensure that the test methodologies relied upon will only screen for the presence of tetrahydrocannabinol (THC) rather than for the presence of nonpsychoactive cannabis metabolites.

Employers may also want to start updating job postings for positions they consider “safety sensitive,” where impairment could result in significant injury or death, to reflect such a designation in order to comply with the law’s requirement that these positions be identified prior to an applicant’s applying.

Finally, employers may want to ensure that their policies reflect that use or being under the influence of marijuana in the workplace or during working hours continues to be prohibited.

Ogletree Deakins’ Seattle office will continue to monitor developments and provide updates on the Drug Testing and Washington blogs Further information on federal, state, and major marijuana laws is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Medical Marijuana in Your Suitcase? How One Basketball Player’s Conviction Raises Concerns for Employers

Posted on by justin

On October 25, 2022, U.S. professional basketball player Brittney Griner lost her bid in a Russian appeals court to overturn a nine-year sentence for attempting to smuggle illegal drugs into Russia. According to reports, Griner, a Women’s National Basketball Association star and two-time Olympic gold medalist, was arrested at a Russian airport in February 2022 while attempting to enter the country to play professional basketball with vaporizer cartridges containing less than one gram of hashish oil, a product derived from marijuana. Griner reportedly has a prescription for medical marijuana in Arizona, but marijuana, including medical marijuana, remains illegal in Russia.

The U.S. Department of State has classified Griner as “wrongfully detained,” a designation that means the United States will act more aggressively to secure her release.

Griner’s situation may be special given the political situation between the countries involved. At the same time, it may serve as a reminder to employers of the risks to employees traveling for work with marijuana given the drug’s varying legal status from country to country and even state to state within the United States.

Varying Legal Status of Marijuana

Currently, recreational marijuana, or cannabis, is legal in twenty-one U.S. states plus the District of Columbia, while medical marijuana is legal in many more. The drug is illegal to import, manufacture, distribute, and possess under the Controlled Substances Act as a Schedule I controlled substance—a designation for drugs considered to have the high potential for abuse and no accepted medical use.

Around the globe, there are similar differences in the status of marijuana. While most countries continue to ban marijuana, some have limited enforcement, and several countries, such as Canada, have legalized recreational use on a national level. Many others, mostly those in Europe and South America, have legalized medical marijuana. On the other hand, some countries have strict drug laws and impose harsh penalties for marijuana possession.

The World Anti-Doping Agency (WADA) also treats marijuana as a prohibited substance for athletes competing in international sports as marijuana and cannabinoids are on the prohibited list under the World Anti-Doping Code, which seeks to harmonize international anti-doping efforts around the world. However, in 2019, WADA exempted cannabidiol (CBD), a chemical derived from marijuana that differs from the psychoactive compound tetrahydrocannabinol (THC).

Immigration Consequences for Non-U.S. Citizens

While recreational or medical use of marijuana is legal in many states, marijuana remains a controlled substance under federal law. Therefore, marijuana-related activity, such as lawful employment in the cannabis industry, possession, sale, purchase, or formally admitting to marijuana use can lead to immigration consequences for noncitizens, even if the activity is carried out in a state where marijuana is legal. Additionally, the mere admission of conduct related to marijuana can also result in failing to establish the good moral character required to obtain U.S. citizenship through naturalization. Non-U.S. citizens include lawful permanent residents (also referred to as “green card holders”), visitors, students, work visa holders, and dependents of work visa holders.

Flying in the United States

When flying in the United States, the Transportation Security Administration (TSA) does generally allow the transport of personal medical marijuana in certain situations. The TSA does warn that marijuana and certain cannabis-infused products, including some CBD oil, remain illegal under federal law. The 2018 federal farm bill made an exception “for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA.”

The TSA states that it does not specifically search for marijuana or other illegal drugs, but that if any illegal substances are found during screening, the agency “will refer the matter to a law enforcement officer.” Despite the farm bill, there have been reports of travelers in recent years being arrested and detained in some U.S. states where marijuana is illegal after marijuana or marijuana products were discovered in their luggage.

International Travelers

Traveling internationally can pose additional risks. According to U.S. law, it is illegal to import any amount of marijuana or drug paraphernalia into the United States. In April 2021, U.S. Customs and Border Protection issued a reminder to the public that those caught with marijuana entering the United States face several consequences, including federal civil penalties of up to $1,000.

It is further illegal to transport marijuana across many international borders, even if marijuana is legal in the destination country. For instance, the government of Canada, which legalized recreational marijuana in 2018, warns travelers that it is illegal to transport marijuana or cannabis products, including edibles, cannabis extracts, and topical ointments, across the border into Canada, no matter how much travelers are carrying or whether they are authorized to use medical marijuana in any form.

Further, not only have many countries not followed the legalization trend, they impose strict penalties for violations. Singapore, for example, a popular location for many U.S. multinationals, punishes possession or consumption of cannabis with up to ten years of imprisonment or $20,000 or both. And those who illegally traffic, import, or export cannabis may face the death penalty.

The U.S. Department of State warns travelers that they are subject to the local laws and regulations of a country they are visiting and that those laws and potential penalties might differ from those in the United States. Travelers who are arrested or detained abroad may have to be connected with the U.S. Embassy in that country, which, depending on the country, may be able to provide various services, such as providing a list of local attorneys who can represent the traveler.

Key Takeaways

Despite the growing legalization of medical and recreational marijuana, the drug remains illegal under U.S. federal law, in many states, and in most countries around the globe. Employers with employees who regularly travel for work, especially multinational employers with employees who must travel internationally frequently, may want to consider employment policies to ban these drugs during travel. They may also want to consider warnings to employees about the risks of travel with marijuana products even if employees are licensed medical marijuana users.

Further, employers may want to evaluate broader potential risks before asking or requiring employees to travel to certain countries currently undergoing conflict or that have tense relations with the United States.

Ogletree Deakins’ Cross-Border Practice Group and Immigration Practice Group will continue to monitor and report on developments with travel issues will post updates on the firm’s Cross-Border and Immigration blogs. Important information for employers is also available via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Maryland and Missouri Pass Recreational Marijuana, Missouri Adds Medical Marijuana Cardholder Employment Protections

Posted on by justin

On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders. At the same time, voters in three other states—Arkansas, North Dakota, and South Dakota—rejected similar ballot measures.


Marijuana and Psychedelic Mushrooms State Laws

Maryland Question 4

Voters in Maryland overwhelmingly approved Question 4 with nearly 66 percent of the vote to amend the state constitution to allow for recreational marijuana use by those 21 years of age or older.

Accompanying legislation passed by the state legislature, House Bill (HB) 837, will go into effect due to the voter approval of the referendum. HB 837 specifically allows the possession and personal use of up to 1.5 ounces of marijuana or 12 grams of concentrated marijuana beginning on July 1, 2023. The bill further extends decriminalization of marijuana until that date and would provide for the expungement of criminal offenses made legal by the act. However, the bill would prohibit the smoking of marijuana in places where smoking of tobacco products is prohibited, including indoor places of employment.

Impact on Employer

Beyond generally legalizing marijuana for recreational purposes, HB 837 does little to address employer rights to prohibit employees from using recreational marijuana. As such, Maryland employers may still be able to enforce workplace drug policies and testing programs even if the referendum passes. However, employers in Maryland should remain mindful of potential disability discrimination and accommodation considerations when handling employment issues involving medical marijuana cardholders.

Missouri Amendment 3

Voters in Missouri passed Amendment 3 with 53 percent voting in favor and 47 percent voting against, according to the Missouri Secretary of State. The measure revises and amends the state’s existing medical marijuana provisions, as well as permits those twenty-one years old and older to legally possess, purchase, consume, and cultivate marijuana for recreational purposes. However, most importantly, the measure amends the state’s medical marijuana provisions. It is set to take effect on December 8, 2022.

Beyond legalizing marijuana for nonmedical purposes, the measure provides employment protections for medical marijuana users. Specifically, Missouri’s medical marijuana law will soon prohibit employers from discriminating against an employee because he or she: (1) possesses a medical marijuana identification card; (2) lawfully uses marijuana off the employer’s premises during nonworking hours; or (3) tests positive for marijuana unless the employee was using, possessing, or under the influence of marijuana while at work.

Impact on Employers

Amendment 3 does not prevent employers from generally enforcing drug and alcohol-free workplace policies or from testing for marijuana. Moreover, it does not permit employees to be under the influence of marijuana at work, and it does not provide employment protections for recreational marijuana users. Nevertheless, the amendment is relevant to employers because of the changes it makes to Missouri’s existing medical marijuana law. The added employment protections for medical marijuana cardholders will create new challenges for Missouri employers in dealing with workplace marijuana issues—the possibility of legal claims arising directly from the medical marijuana law itself.

Key Takeaways

The legalization of marijuana for recreational personal use continues to slowly spread across the United States though the recent elections shows that the population in certain areas of the country remain hesitant to legalize marijuana. Broader legalization could create additional challenges for employers in seeking to maintain drug-free workplaces. Employers in Maryland and Missouri may want to review their drug use policies in light of the new recreational marijuana legalization measures.

Ogletree Deakins will continue to monitor developments with respect to marijuana legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. In addition, further information on federal, state, and major marijuana laws and guidance on compliance with the same is available via the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes. Important information for employers is also available via the firm’s webinar and podcast programs.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Colorado Voters Pass Proposition to Allow Regulated Use of Psychedelic Mushrooms

Posted on by justin

On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older. The passage makes Colorado, which was one of the first states to legalize recreational marijuana, the second state to allow the use of psychedelics behind Oregon.

Proposition 122, or the “Natural Medicine Health Act of 2022,” passed with 53 percent of Colorado voters supporting the initiative to 47 percent who voted against, according to the unofficial results released by Colorado’s secretary of state.

The measure will decriminalize psychedelic mushrooms and by 2024 will allow the supervised use of two of the drugs found in the mushrooms, psilocybin and psilocin, at state-regulated “healing centers.” The initiative further establishes the “Natural Medicine Advisory Board” to explore and evaluate ongoing research into psychedelic drugs and their potential health benefits and make recommendations to the legislature and other state entities.

The initiative comes amid growing scientific research on the potential medical benefits of psychedelic drugs in treating mental health conditions, particularly depression, anxiety, and post-traumatic stress disorder (PTSD).

Impact for Employers

The passage of Proposition 122 could increase employers concerns with employees working under the influence of these drugs. Thus, the proposition may be an impetus for employers to review and revise their drug testing and drug-free workplace policies. The Natural Medicine Health Act states that it should not be construed “to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, or growing of natural medicines in the workplace.” This may allow employers to continue to enforce zero-tolerance policies regarding the use of psychedelics. For comparison, Colorado law does not require employers to accommodate the use of marijuana in the workplace and the Colorado Supreme Court has held that employees are not protected from discharge by the state’s employment law protections for lawful, off-duty conduct due to marijuana’s continued illegal status under federal law.

Ogletree Deakins will continue to monitor developments with respect to drug legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

California Passes Bill Protecting Employees’ Off-Duty Marijuana Use

Posted on by justin

California employers may soon be barred from discharging employees or refusing to hire individuals based on their off-duty use of marijuana, under a new bill headed to the governor’s desk. On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which would prohibit employers from discriminating against “a person in hiring, termination, or any term or condition of employment” based on “the person’s use of cannabis off the job and away from the workplace.”

AB 2188—which amends the California Fair Employment and Housing Act (FEHA), the state’s employment antidiscrimination law—will further make it an unlawful employment practice to discriminate against an individual based on “an employer-required drug screening test” that detects the presence of “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The bill passed the Senate on August 29, 2022, and a day later, passed a concurrence vote in the Assembly, sending it to California Governor Gavin Newsom for approval. The governor has until September 30, 2022, to sign or veto bills. If approved, the bill would take effect on January 1, 2024.

While recreational use of marijuana, or cannabis, has been legal in the Golden State since 2016 and medical marijuana has been legal since 1996, the bill, if approved by Governor Newsom, will be the first law in the state to specifically provide workplace protections for recreational and medical marijuana users.

However, AB 2188 will still allow employers to restrict marijuana use on the job. The bill would not allow employees “to possess, to be impaired by, or to use, cannabis on the job.” The bill also states that nothing contained in it “affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace” or “any other rights or obligations of an employer specified by federal law or regulation.”

Additionally, the bill includes carve outs for employees in “the building and construction trades” and for applicants or employees for federal jobs requiring clearance from the U.S. Department of Defense.

Business groups opposed AB 2188 over concerns that it will limit or eliminate drug testing for marijuana in the workplace and make it more difficult to discipline for reasonable impairment on the job from marijuana. These concerns are heightened due to questions over the feasibility, costs, and reliability of impairment tests compared to traditional drug screens for metabolites.

California was the first state to legalize medical marijuana with Proposition 215 in 1996, but that law did not provide workplace protections for use. Surprisingly, even with courts around the country becoming more employee-friendly with marijuana issues, California has remained more employer-friendly in its court decisions. In 2008, the Supreme Court of California ruled that a disabled individual who used medical marijuana was not protected under the FEHA, and in 2016, the United States District Court for the Eastern District of California issued a similar ruling.

In 2016, California voters approved Proposition 64 to legalize recreational marijuana. That proposition purported to keep intact the rights of public and private employers to enforce workplace anti-drug policies. Meanwhile, courts in at least two other states, Nevada and Colorado, have found that workplace protections for lawful, off-duty conduct more generally, do not apply to marijuana use because marijuana is still classified as a Schedule I controlled substance under the federal Controlled Substances Act.

Key Takeaways

AB 2188 would make California the latest in a growing list of states, including New York, with legalized marijuana to enact workplace protections for its use outside of work. Still, the bill, if approved by the governor, would permit employers to continue to enforce drug- and alcohol-free workplace polices and continue to test for marijuana impairment so long as the tests are not focused on “nonpsychoactive” chemicals in the body. Nonetheless, the implementation of such tests presents a challenge for employers and creates questions about employers’ ability to enforce workplace policies and discipline employees who are impaired on the job. If ultimately approved by the governor, California employers may want to review and update their workplace drug policies and their drug screening protocols.

Ogletree Deakins will continue to monitor developments with respect to the legislation and will post updates on the California and Drug Testing blogs. In addition, further information on federal, state, and major marijuana laws is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes, and via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Nevada High Court Rules Recreational Marijuana Is Not ‘Lawful Off-Duty Conduct’

Posted on by justin

In a decision issued on August 11, 2022, the Nevada Supreme Court declined to recognize recreational marijuana use as a “lawful” activity for purposes of the state’s law providing employment protections for “lawful activities” or “lawful off-duty conduct” outside of work.

The court reasoned, in Ceballos v. NP Palace, LLC, that while recreational marijuana use is legal in Nevada, marijuana possession remains illegal under federal law as it is still classified as a Schedule I controlled substance under the federal Controlled Substances Act. For the same reasons, the court ruled that a wrongful termination claim could not be supported on public policy grounds.

Danny Ceballos, a former table games dealer at the Las Vegas Station Hotel & Casino, suffered a minor workplace injury in June 2020. After his injury, Ceballos tested positive for marijuana on a post-accident drug screen. Palace Station later terminated his employment. Ceballos filed a lawsuit against Palace Station alleging his discharge violated Nevada Revised Statutes § 613.333, which is sometimes referred to as Nevada’s “lawful off-duty conduct” law, and for wrongful termination in violation of public policy.

In his lawsuit, Ceballos argued that he was not impaired during his work shift when he was injured and that he had not used marijuana within the 24 hours prior. NRS § 613.333 states that an employer may not discharge an employee “because the employee engages in the lawful use in [Nevada] of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.”

However, in dismissing the lawsuit in favor of Palace Station, the Nevada Supreme Court reasoned that NRS § 613.333 contemplates the use of a product that is “lawful under both state and federal law, not just lawful under Nevada law.” (Emphasis added.) Since marijuana remains illegal under federal law, Ceballos cannot rely on NRS § 613.333 to support a claim arising out of his termination of employment, the court ruled.

To further support its decision, the court relied on a 2015 Colorado Supreme Court case, Coats v. Dish Network, LLC, which similarly determined that recreational marijuana use could not be deemed “lawful” activity even though recreational marijuana use is legal in Colorado, because of marijuana’s status as a Schedule I controlled substance.

The court further ruled that Ceballos could not support a wrongful termination claim for public policy reasons, noting that such “tortious discharge” cases are limited only to cases in which the termination “violates strong and compelling public policy.” The court stated that Ceballos’s case “differ[ed] fundamentally” from those cases. Here, the issue centered on his personal right to use marijuana recreationally, which besides being illegal under federal law, did not concern a “public dimension” such as employer-coerced criminal conduct, workers’ compensation for on-the-job injuries, or public service like jury duty or whistleblowing.

In a possible call-out to the Nevada legislature, the court explained that the interplay between adult recreational marijuana use and employment law authorizes employers to adopt and enforce policies restricting use that affects its workplace. The court stated that had the legislature “meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so.”

Key Takeaways

The Nevada Supreme Court’s holding means that, currently, employers in Nevada are not required to accommodate an employee’s recreational use of marijuana. The case is further notable because it holds, specifically, that Nevada’s “lawful off-duty conduct” statute does not protect employees’ recreational marijuana use, at least for now. However, the holding would be called into question if marijuana is legalized on the federal level, or Nevada’s statutes are revised to specifically protect recreational use, as in New York (e.g., New York Labor Law § 201-d) or to accommodate recreational use.

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Minnesota Legalizes the Consumption of THC Edibles – How Can Multistate Employers React to This Growing National Trend?

Posted on by justin

On June 2, 2022, Minnesota Governor Tim Walz signed House File (H.F.) 4065 into law, a measure that provides clarity regarding hemp-derived consumables stemming from the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill. Notably, this law now allows the sale and consumption of “edible cannabinoid” products containing no “more than five milligrams of any tetrahydrocannabinol [THC] in a single serving, or more than a total of 50 milligrams of any [THC] per package.” Notwithstanding the above, marijuana is still illegal in Minnesota; only the THC derived from hemp—in certain amounts—is now legal to consume.

This law is noteworthy as Minnesota, along with numerous other states, begins the slow and gradual process of legalizing marijuana and/or hemp. For example:

  • South Dakota briefly legalized the use of marijuana until its law was ruled unconstitutional by the South Dakota Supreme Court (but a new amendment may be on future ballots).
  • The effective date of Virginia’s recreational marijuana law was moved up from 2024 to 2021.
  • In May 2022, Rhode Island enacted the Rhode Island Cannabis Act, loosening marijuana restrictions.
  • Marijuana legalization amendments are frequently showing up on ballots in state elections.
  • State legislatures are increasingly debating marijuana legalization legislation. For example, a Minnesota bill (Senate File [S.F.] 757) recently gained support but ultimately failed.

For multistate employers, the web of various laws with differing requirements presents a complex problem in tracking these swift changes and ensuring compliance with the laws with respect to drug testing programs, for several reasons.

State Laws

First, many of the state laws concerning marijuana and hemp differ fairly considerably. Some states only allow hemp, some states only allow marijuana for certain medical purposes (and each state varies in those purposes as well), while other states have legalized and regulated marijuana in general. These divergent requirements, which are changing rapidly, present a complex compliance challenge for fast-paced multistate employers. (For an overview of the current state of marijuana legalization, please see Ogletree Deakins’ State Law Maps resource.)

Drug Testing

Second, while keeping track of all of these differing requirements is a challenge, it is even more difficult when employers have drug testing programs in more than one state. Most commonly, employers conduct preemployment, reasonable suspicion, and safety-sensitive (random) drug tests in their programs, all of which become a compliance nightmare due to the changing landscape of laws. Here are a few considerations with respect to each type of test and how Minnesota’s new law and other states’ laws may impact an employer’s drug testing programs.

  • Preemployment testing. Minnesota’s new law creates additional questions and considerations surrounding preemployment testing. Employers may find that more and more candidates test “positive” for low levels of THC from the lawful consumption of products containing THC. For example, the individual may have consumed a lawful hemp product (which is legal), which still contains a low level of THC, causing the employee to test positive. This is even more problematic, as many drug tests do not state the level of the THC in someone’s blood and only typically state “positive” or “negative.” Not only may this result limit the pool of qualified applicants for a position, it may present discrimination and accommodation issues as well for individuals lawfully using THC products for a specific medical reason. For example, in Minnesota, employers may not discriminate against an employee based on his or her status on the Minnesota Medical Cannabis Registry. Refusing to hire an individual based on a “positive” test may also subject an employer to liability if the employee holds a medical cannabis card and explains the reasons for the positive test to the employer with the same.
  • Reasonable suspicion. The new Minnesota law does not appear to create any new questions or concerns regarding reasonable suspicion tests. While employees are able to consume lawful products in their free time, employees may not be under the influence of legal or illegal drugs while working. Employers may want to consider implementing a specific reasonable suspicion protocol/process, which may include checklists, interviews, and other documentation to ensure the reasons for the test are documented and supported.
  • Safety-sensitive/random drug testing. While many states’ laws differ regarding when and how employers may require safety-sensitive employees to submit to a drug test, Minnesota provides a good case study in light of the new law. Under Minnesota law, and after a positive test result, employees “must be given written notice of the right to explain the positive test and the employer may request that the employee or job applicant indicate any over-the-counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result.” The employee may then “submit information to the employer, in addition to any information already submitted … to explain that result.” Accordingly, if an employee tests “positive” for THC, employers may learn more about the employee’s use and make an employment decision based upon the explanation provided by the employee. The challenge for employers in this scenario will be to ensure they are making consistent employment decisions based on their policies and practices and ensuring such decisions are not being made on a basis that violates the law.

Given this change in the law, more employees may begin testing positive for THC due to the broad legality of hemp products and the increasing legalization of marijuana in general. Accordingly, it may be time for employers to revisit their drug testing programs and how they view the use of THC for the employee population. More simply, the laws of yesterday may create issues for employers today.

Conclusion

Given the complex issues described above, employers may want to consider reevaluating their drug testing programs. As more states begin legalizing marijuana and loosening restrictions around hemp products, employers may want to engage in a broader conversation about testing for THC and whether it makes business sense (or is required under the law) to do so.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.

Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

Excusing False Positive Drug Test Caused by CBD Use May Be a Reasonable Accommodation, Says U.S. District Court in Louisiana

Posted on by justin

A federal district court in Louisiana, in Huber v. Blue Cross & Blue Shield of Florida, Inc., recently denied an employer’s motion for summary judgment in an Americans with Disabilities Act (ADA) and Louisiana Employment Discrimination Law (LEDL) case, finding, among other things, that accounting for and excusing a false positive drug test resulting from extended cannabidiol (CBD) use may be a reasonable accommodation.

Background

Michelle Huber, an IT business analyst who worked remotely for Blue Cross and Blue Shield of Florida, Inc. (BCBS), suffered from recurrent debilitating migraines for which she received an accommodation beginning in 2006 and took frequent leave under the Family and Medical Leave Act (FMLA) from 2014 through 2016. In 2016, Huber was diagnosed with hemiplegic migraines, which cause one-sided weakness and total impairment for up to three days. In 2017, her doctor recommended “non-psychoactive hemp-based CBD oil” to manage her migraines. While using CBD oil, Huber’s migraines improved, and so did her work performance. In fact, Huber was promoted, received “five out of five” performance ratings, and reduced her overall FMLA leave after starting a CBD regimen.

In 2019, Huber was informed that she would be required to take a drug test due to federal contract requirements. Huber reminded her supervisor of her disability, that her medications included CBD oil, and that due to her promotion she was not covered by the federal contract at issue. Huber’s supervisor instructed her to “play along” and take the drug test anyway because the results would not have any bearing on her job. Despite these assurances, the employer terminated Huber’s employment after she failed the drug test for tetrahydrocannabinol (THC)—the psychoactive compound in marijuana.

Huber filed suit alleging that BCBS violated the ADA and LEDL by terminating her employment based on her disability, by failing to accommodate her disability, and by intentionally interfering with her rights under the ADA. BCBS filed a motion for summary judgment, arguing that Huber was not a “qualified individual” under the ADA or LEDL because passing a drug test was a requirement for the job, and that its stated reasons for her discharge—her failing the drug test—was not a pretext for unlawful discrimination. U.S. District Judge Mary Ann Vial Lemmon denied summary judgment on all claims.

The District Court’s Decision

At issue in Huber’s wrongful termination claim was whether she was a qualified individual under the ADA or LEDL. The court found that whether Huber was qualified was a question for the jury because it was not clear that the federal contract applied to her, and even if it did, BCBS had failed to show that she was under the influence of illegal, non-prescribed controlled substances while working remotely. Huber submitted an affidavit averring that she had never used marijuana, and she submitted a letter from her doctor explaining that the CBD oil product she was taking could produce a false positive. BCBS’s medical review officer (MRO) testified the results “were too high to be a false positive,” but its own senior employee relations consultant testified that the MRO did not appear to have considered whether Huber’s fourteen other prescription medications in combination with her chronic health conditions, her body weight, and her extended use of CBD oil over several years could have caused her to metabolize CBD oil at a much slower rate than normal, resulting in the positive result. The court went on to explain that BCBS’s reliance on a 15 ng/mL cutoff for THC was below the low end of Louisiana’s statutory range of 50 – 100 ng/mL for THC concentrations that can have negative employment consequences.

The court also found fact issues regarding whether the reason for discharge—failing a drug test—was pretextual. BCBS argued that it had “accommodated [Huber’s] disability for over a decade,” that she had been granted leave under the FMLA and was able to take time off as needed, and that following the same round of testing that resulted in her discharge, two other non-disabled employees were terminated for positive drug screens, including one who claimed that his test result was a false positive caused by CBD oil. Huber argued that BCBS’s true motivation for her discharge was discriminatory because, she alleged, the company was trying to avoid future healthcare costs for her disability, which had already cost more than $700,000.

The court noted that Huber “pointed to evidence that even if [BCBS’s] proffered reason [were] true, an additional motivating factor could have been [her] disability, which ha[d] required [BCBS] to absorb extensive medical costs.”

“This theory,” the court stated, “together with the issue whether the drug test was actually required for [Huber’s] position, indicate outstanding issues of fact.”

The most interesting issue in the case is the failure-to-accommodate claim. BCBS conceded that Huber was a qualified individual with a disability and that it was aware of the limitations imposed by the disability. BCBS challenged whether it had failed to reasonably accommodate her known limitations. Huber asserted that BCBS had “failed to accommodate her by not allowing her to use medically prescribed, non-pyschoactive CBD oil to manage her migraines.” BCBS countered that argument by asserting that it never restricted Huber from taking CBD and that Huber was asking it to ignore a positive drug test result for THC. Excusing a positive test result is not a reasonable accommodation, BCBS argued, but a form of preferential treatment.

The court found that the accommodation sought by Huber—that she be allowed to use CBD oil to control her migraines—necessarily implied that a false positive caused by the CBD oil would not be held against her. “Thus, for the accommodation to be reasonable,” the court wrote, “[the] defendant must provide some way to account for and excuse a false positive.” The court noted that while BCBS had argued that Huber had been given an opportunity to provide additional information about her CBD use, it was not clear to the court that BCBS had actually considered the additional information provided by Huber to explain her positive test result. The court further stated that the employer had failed to provide a good-faith basis for its conclusion that Huber’s 90ng/mL result was a definitive positive result (not a false positive) though it fell within Louisiana’s statutory range of excusable levels when negative employment consequences might occur based on nanogram level. Accordingly, the court found a fact issue on the reasonable accommodation claim.

Lastly, the court allowed Huber’s ADA interference claim to advance, noting that the U.S. Court of Appeals for the Fifth Circuit has not yet articulated a specific test to state such a claim. The court explained that by using CBD oil to control her migraines, Huber “engaged in the enjoyment of a protected right” and “[a]n implied corollary of that accommodation is that the employer must make allowances for a false positive test caused by the CBD oil.”

Key Takeaways

First, it is important to keep in mind that this is a case involving the use of CBD oil—not medical marijuana, which has been permitted in Louisiana since 2019 and which is psychoactive because of the increased THC content. Nevertheless, CBD products contain trace amounts of THC (less than 0.3 percent). Because this is a CBD case, and not a marijuana case, the court was not required to reconcile the apparent conflict between the ADA, which does not recognize marijuana as a lawful prescription drug because it is a Schedule I controlled substance under federal anti-drug laws, and the LEDL, which does not replicate the ADA’s treatment of marijuana.

Second, with the growing popularity of CBD oil to treat a myriad of health issues including pain, anxiety, and sleep issues, employers may want to be prepared to address possible false-positive drug screens caused by trace amounts of THC in some CBD oils. Employers also may want to consider how to accommodate false-positive drug tests caused by the use of CBD oils, as explained by the district court. When evaluating a positive drug test for THC, employers may want to consider all relevant facts, including the employee’s medical history.

Finally, employers in Louisiana may want to consider Louisiana’s statutory range of 50 ng/mL – 100 ng/mL for THC concentrations before making negative employment decisions.

Ogletree Deakins will continue to monitor and report on developments with respect to the ever-changing landscape of drug testing in the era of legalized CBD and marijuana, both medical and recreational. Important information for employers is also available via the firm’s webinar and podcast programs.

 

 
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

 

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