Author: justin

Author: justin

California Bill Proposes to Prohibit Employment Discrimination Against Marijuana Users

Posted on by justin

A bill recently introduced in the California Assembly proposes to prohibit discrimination against employees who use cannabis off the job.

The legislation, Assembly Bill (AB) No. 2188, would amend California’s employment antidiscrimination law, the Fair Employment and Housing Act (FEHA), and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.” AB 2188 would also prevent discrimination against an applicant or employee who fails a drug test detecting “nonpsychoactive cannabis metabolites in their urine, blood, hair, or bodily fluids.”

The bill would not permit an employee “to be impaired by, or to use cannabis on the job” or affect “the rights or obligations of an employer to maintain a drug and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code.” (Hyperlink added.)

AB 2188 includes carveouts for the building and construction trades, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces. Its provisions also exclude occupations that are required by federal or state laws to be tested for controlled substances.

If enacted, AB 2188 would be the first California law providing workplace protection to users of cannabis.

California’s Proposition 215 legalized the medical use of marijuana in 1996. The law did not provide workplace protections for off-duty, off-premises medical marijuana use. In 2008, in Ross v. RagingWire Telecommunications, Inc., the Supreme Court of California determined that a disabled individual who used medical marijuana was not protected under the FEHA.

In 2016, California voters approved Proposition 64, which legalized the recreational use of marijuana. Proposition 64 purported to leave employers’ workplace rights undisturbed. The legislative initiative stated that its purpose and intent, among other objectives, was to “[a]llow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The initiative also provided that nothing in it would be “construed or interpreted to amend, repeal, affect, restrict, or preempt … [t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace.”

The California Chamber of Commerce opposes AB 2188. In an April 23, 2022, letter published on its website, the CalChamber stated its concerns:

AB 2188 … outlaws utilizing metabolite-based testing for marijuana by making any discipline based on a metabolite test a violation under FEHA. We have concerns about the feasibility and cost of the alternative tests pushed by AB 2188—specifically, saliva and impairment-based testing. These tests are relatively new, and we are concerned about their reliability in identifying marijuana use. In addition, we have concerns with the efficacy of saliva-based testing for marijuana consumed in an edible form.

The CalChamber also raised concerns in the letter that AB 2188, if enacted, would limit or eliminate preemployment testing for marijuana and make workplace discipline for reasonable suspicion impairment more difficult and subject to litigation.

AB 2188 is currently under committee review in the California Assembly. The bill will need to pass both houses of the California Legislature before it lands on the governor’s desk. The governor has until September 30, 2022, to sign or veto bills.

Ogletree Deakins will continue to monitor developments with respect to the legislation and will post updates on the California and Drug Testing 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.

 

DOJ Emphasizes Need for Individualized Assessments in Finding Indiana Nursing Board Violated ADA

Posted on by justin

On March 25, 2022, the U.S. Department of Justice (DOJ) found the Indiana State Board of Nursing violated Title II of the Americans with Disabilities Act (ADA) when it refused to allow a nurse taking medicine prescribed to treat opioid use disorder (OUD) from participating in the Indiana State Nursing Assistance Program (ISNAP). ISNAP rehabilitates and monitors nurses with drug or alcohol addiction, and participation in the program is typically required to maintain or reinstate an active nursing license necessary for employment.

Background

To treat her OUD, the nurse’s doctor had prescribed buprenorphine, which helped diminish the effects of physical dependency on opioids. The nurse described the medication as “lifesaving, allowing her to function completely normally, be a good mother …, and feel whole again.” But the ISNAP was “an abstinence based program,” and to participate, nurses were required to taper off any medicine used for OUD. The nurse’s doctor determined the nurse should not taper off buprenorphine, believing if she stopped, there was a significant risk of relapse. Her physician’s conclusion was consistent with advice from the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration, which has cautioned that “patients who discontinue OUD medication generally return to illicit opioid use.”

Notwithstanding her doctor’s recommendation, and other medical authority, the Indiana State Board of Nursing informed the nurse that she would have to taper off buprenorphine within three months after enrolling in ISNAP. As a result, the nurse did not enroll in ISNAP.

The DOJ’s Analysis and Conclusion

The DOJ first addressed whether the nurse was a qualified individual with a disability under the ADA, which does not protect current illegal drug users. When the nurse applied to participate in ISNAP, she had been rehabilitated successfully and she no longer illegally used drugs. Thus, the DOJ found she was a qualified individual with a disability.

The DOJ reviewed and discussed substantial medical research regarding medications used to treat OUD and noted that tapering off such medications works for some persons, but not others.

The DOJ concluded the “prohibition on ISNAP participants’ use of OUD medication … penalized [the nurse] for her disability and was not justified by any individualized medical assessment.” (Emphasis added.) The DOJ also determined:

ISNAP’s policy requiring [the nurse] to stop using buprenorphine is not necessary to ensure that she achieve rehabilitation and monitoring for the illegal use of opioids. On the contrary, [the nurse] was prescribed buprenorphine because she had struggled to remain sober without the assistance of OUD medication. Her treatment experience and needs align with medical research ….

The Indiana State Board of Nursing’s Response to the DOJ’s Findings

The Indiana State Board of Nursing responded to the DOJ findings on March 30, 2022, posting a notice informing the public of its intent “to promulgate rules … to remove the ‘abstinence based’ requirement from its [ISNAP], and to require evidence-based treatment.” Stated another way, the Board plans to promulgate rules to assess future applicants’ admission into ISNAP based on the evidence, medical and otherwise, specific to each applicant’s situation.

Key Takeaways

Analyzing the specific facts and circumstances of each situation is fundamental to determining a covered entity’s obligations under the ADA. The ADA compels private employers and public and private entities to consider potential reasonable accommodations or modifications of a rule or process for an individual with a disability. The fact-specific analysis may result in no change (i.e., upholding the rule or process), a modification to the rule or process, or some other outcome or solution.

 
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.

 

Mississippi Approves Medical Marijuana: What a Long, Strange Trip It’s Been

Posted on by justin

Rarely are we able to combine the Grateful Dead and Mississippi in the same sentence, but the band once said, what a long strange trip it’s been.

In November 2020, Mississippi voters overwhelmingly approved Initiative Measure No. 65, a citizen-driven ballot initiative. Initiative Measure No. 65 would have amended the Mississippi Constitution to create a state medical marijuana program. However, on May 14, 2021, the Mississippi Supreme Court overturned Initiative Measure No. 65, ruling that the state election law governing voter ballot initiatives was out-of-date and unworkable.

The Mississippi legislature thereafter began working to pass a medical marijuana bill. On January 26, 2022, the Mississippi legislature approved Senate Bill 2095, the “Mississippi Medical Cannabis Act.” Mississippi Governor Tate Reeves signed the bill into law on February 2, 2022. The act goes into effect immediately.

The act lists twenty medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Mississippi, including cancer, Crohn’s disease, post-traumatic stress disorder, any “chronic, terminal, or debilitating” condition producing chronic pain, and “any other condition” that may be added by the Mississippi Department of Health in the future. The act makes clear that it prohibits “smoking medical [marijuana] in a public place or in a motor vehicle.”

Importantly, unlike many other state medical marijuana legalization laws, the Mississippi act does not contain any express employment protections for medical marijuana cardholders. With respect to employment, the act specifically states that it does not:

  • require an employer, health insurer, or workers’ compensation insurer to pay or reimburse for costs associated with medical marijuana use;
  • require an employer to permit, accommodate, or allow the use of medical marijuana by employees;
  • require an employer to modify any job or working conditions of employees who are medical marijuana cardholders;
  • prohibit employers from refusing to hire applicants who are medical marijuana cardholders, or taking adverse employment action against employees who are medical marijuana cardholders, based either in whole or in part on the individual’s medical marijuana use, and irrespective of impairment;
  • prohibit employers from establishing and enforcing drug testing or drug-free workplace policies;
  • interfere with federal regulations or restrictions governing drug testing, such as U.S. Department of Transportation regulations;
  • provide for an express, legal cause of action for an individual to file a legal claim against an employer “for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions or privileges of employment due to the individual’s medical use of medical cannabis”; and
  • impact the workers’ compensation premium discount available to Mississippi employers that establish a drug-free workplace program in accordance with state law.

Key Takeaways

The absence of express employment protection language in the act suggests that Mississippi employers could take adverse employment action against employees with medical marijuana cards with minimal risk of violating the act. However, Mississippi employers may want to remain mindful that even if taking action against employee-cardholders for their medical use of marijuana is lawful under the act, cardholders may pursue disability discrimination and accommodation claims related to their medical use of marijuana. Individuals must have a qualifying medical condition to receive a medical marijuana card, and any of the twenty medical conditions that would make an individual eligible for a card in Mississippi likely would be considered a disability under laws such as the Americans with Disabilities Act (ADA). Courts and administrative agencies around the country have regularly determined that medical marijuana cardholders may assert disability discrimination and accommodation claims under state law and, in some instances, the ADA. Therefore, Mississippi employers should closely monitor this issue going forward.

With marijuana legalization being a new development in Mississippi, court guidance and interpretation of the act and related disability discrimination and accommodation claims will be critical.

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.

 

Philadelphia Ban on Pre-Hire Marijuana Testing Takes Effect on January 1, 2022

Posted on by justin

On January 1, 2022, Philadelphia’s ordinance, titled, “Prohibition on Testing for Marijuana as a Condition for Employment,” Phila. Code § 9-5500, et seq., will take effect. The ordinance—which was passed by the Philadelphia City Council on April 22, 2021, and signed into law by Mayor Jim Kenney on April 28, 2021—states that in the City of Philadelphia it “shall be an unlawful employment practice for an employer, labor organization, employment agency or agent thereof” to require a prospective employee to submit to pre-employment marijuana testing as a condition of employment. The ordinance does not address marijuana testing with respect to current employees, and it does not prohibit an employer from disciplining an employee for being under the influence of marijuana while working or possessing marijuana in the workplace.

While the ordinance’s ban will affect many Philadelphia employers, the ordinance details several enumerated exceptions to the prohibition on pre-hire marijuana testing. For example, the ordinance excludes certain categories of positions, permitting continued pre-employment marijuana testing for the following:

  • “Police officer or other law enforcement positions”
  • “Any position requiring a commercial driver’s license”
  • “Any position requiring the supervision or care of children, medical patients, [or] disabled or other vulnerable individuals”

In addition, the ban on pre-employment marijuana testing does not apply to “[a]ny position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency and set forth in regulations pursuant to [the ordinance].” (Emphasis added.) As this fourth exception appears to require a prior determination by the enforcement agency—the Philadelphia Commission on Human Relations—Philadelphia employers may want to wait for and review the regulations prior to relying upon this exception.

Finally, the ordinance states that the ban on pre-hire marijuana testing does not apply where: (1) the employer is required to test for marijuana pursuant to a federal or state statute, regulation, or order; (2) drug testing is required by a contract or grant between an employer and the federal government as a condition of receiving said contract or grant; or (3) a valid collective bargaining agreement specifically addresses pre-employment drug testing of applicants.

As the effective date of the ordinance is fast approaching, employers may want to ensure that their talent acquisition and human resources personnel responsible for hiring in Philadelphia are aware of the ordinance’s restrictions on pre-employment testing for marijuana in advance of January 1, 2022. Philadelphia employers may also want to conduct reviews of pre-hire documents and materials to ensure that references to pre-employment marijuana testing have been removed, unless the materials specifically relate to a position covered by one of the ordinance’s delineated exceptions.

Ogletree Deakins will continue to closely monitor the implementation of this ordinance, as well as the release of any associated regulations, and will provide updates on the Pennsylvania and Drug Testing blogs. 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.

 

Pennsylvania Court Holds Medical Marijuana Act Allows Employees to Sue for Discrimination

Posted on by justin

On August 5, 2021, the Superior Court of Pennsylvania held for the first time that Pennsylvania’s Medical Marijuana Act (MMA) allows an employee to sue his or her employer for taking an adverse employment action based on the employee’s status as a certified user of medical marijuana. In Palmiter v. Commonwealth Health Systems, Inc., et al., the superior court affirmed the decision of the Court of Common Pleas of Lackawanna County, allowing the employee’s MMA claim to proceed. In so holding, the superior court found that the MMA as a whole and the statute’s employment provision, 35 P.S. § 10231.2103(b) (Section 2103), indicate that Pennsylvania’s legislature intended to create an implied private right of action for aggrieved employees. Although this decision clarifies employee rights and employer obligations under the MMA, additional key questions still remain.

Background

In 2017, Pamela Palmiter began working as a medical assistant for Medical Associates of NEPA. In December 2018, Palmiter became licensed to use medical marijuana within the Commonwealth of Pennsylvania due to chronic pain, migraines, and persistent fatigue. Around that time, the defendant hospital acquired Medical Associates of NEPA. Palmiter alleged that, despite this acquisition, her superiors had assured her that she would maintain her job and seniority. Palmiter applied for the position of certified medical assistant with the hospital in January 2019 and was notified that she was “a new employee of [the Hospital].” Later that month, however, Palmiter submitted to a pre-employment drug test and tested positive for marijuana. Although Palmiter claimed that she had shared her medical marijuana certification with the drug-testing laboratory, the hospital allegedly terminated her employment due to the positive drug screen.

Palmiter filed a lawsuit against the hospital in the Court of Common Pleas of Lackawanna County, alleging a violation of the MMA’s Section 2103, wrongful discharge in violation of public policy, and various other claims. The hospital unsuccessfully sought an early dismissal of Palmiter’s MMA and wrongful termination claims. In reaching its decision, the Court of Common Pleas of Lackawanna County determined, as a matter of first impression, that Section 2103 of the MMA contained an implied private right of action that allowed Palmiter to bring suit.

The hospital appealed, arguing that the Pennsylvania General Assembly did not intend to create a private cause of action under the MMA. In support of this argument, the hospital noted that the employment provision of the MMA does not contain any limitations period for an aggrieved employee to bring a claim, nor does it indicate what (if any) damages might be available to an employee. Additionally, the hospital noted that the Pennsylvania Department of Health (DOH) bears sweeping responsibility for implementation and enforcement of the MMA, and argued that the MMA conferred exclusive enforcement jurisdiction to the DOH.

Although the superior court acknowledged that Section 2103 lacks any limitations period or damages provisions, it found that those omissions were not dispositive. As the MMA is remedial in nature, the court found that the statute should be given a liberal construction and viewed Section 2103 as containing “rights-creating language” for the benefit of employees prescribed medical marijuana. The court also found that the DOH did not have exclusive enforcement authority over the MMA, and noted that Section 2103 contains rights for employers as well, such as the ability to discipline employees who are under the influence of medical marijuana in the workplace. As a result of this analysis, the superior court determined that the General Assembly intended to allow employees to bring private suit against their employers for violations of Section 2103. Accordingly, the superior court affirmed the trial court’s decision allowing Palmiter’s MMA claim to proceed.

Finally, the superior court held that the trial court did not err in refusing to dismiss Palmiter’s claim of wrongful discharge in violation of public policy. Although the hospital argued that Pennsylvania had never recognized a claim for wrongful discharge based on the results of a drug test, the superior court opined that medical marijuana should be viewed as more akin to a “prescription drug.” In light of these holdings, the superior court remanded the case to the Court of Common Pleas for further proceedings.

Key Takeaways

Although the Court of Common Pleas and the United States District Court for the Eastern District of Pennsylvania had previously reached similar conclusions as the superior court in Palmiter, this appellate decision of first impression will carry significant weight with state and federal courts across the Commonwealth moving forward. Unfortunately, as MMA cases continue to increase, key questions remain about the statute and the risks to employers, such as the relevant statute of limitations and damages available in Section 2103 claims. As a result, Pennsylvania employers may want to stay abreast of the latest developments in this fast-moving area of the law.

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.

 

Virginia’s Recreational Marijuana Legislation and New Employee Medicinal Use Protections

Posted on by justin

On April 21, 2021, Virginia Governor Ralph Northam signed into law House Bill No. 2312 and Senate Bill No. 1406, moving the date of recreational marijuana legalization in Virginia up to July 1, 2021. The legalization movement, which has increased in momentum in the Commonwealth since Democrats gained a majority in the legislature, culminated in February 2021, when the General Assembly passed recreational legalization measures with an effective date of January 2024. The substance of these measures, which remains largely unchanged in the final legislative text, permits the recreational use of marijuana by adults who are at least 21 years old, allows for wholesale and retail sale of marijuana, and allows home cultivation and personal use of marijuana (up to four plants for personal use). Recent amendments that both chambers of the Virginia General Assembly approved on April 7, 2021, modify the statutory provisions legalizing personal possession, gifting, and personal cultivation of marijuana by adults—moving the effective date up significantly from January 2024, to July 1, 2021.  The remaining portions of the legislation, which address various aspects of the wholesale and retail sale of marijuana, remain set for a delayed effective date of January 1, 2024. The legislation is a watershed moment for marijuana legalization advocates, but it does not expressly prohibit employers from restricting or monitoring the recreational use of marijuana by their employees.

Related Protections for Employees’ Medicinal Use of Cannabis Oil

Virginia employers may want to be mindful of a related measure, House Bill No. 1862, passed in March 2021, and effective July 1, 2021, which prohibits an employer from discharging, disciplining, or discriminating against an employee based on the employee’s lawful use of cannabis oil pursuant to a valid written certification for the use of such oil for the treatment of a diagnosed condition or disease.

Under the new law, “[c]annabis oil” is defined as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of the Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol [THC] per dose.” Importantly, cannabis oil should not be confused with popular CBD products that are widely available at retail stores without a prescription and purportedly contain extremely low amounts of THC—the chemical associated with marijuana’s psychoactive effects. Because the new law encompasses cannabis oil products that include THC, employers may no longer rely on a positive test for marijuana as the basis for discipline without first evaluating whether the positive result is associated with the protected medicinal use of cannabis oil.

Virginia employers may also want to be mindful of the enumerated exceptions to the protections for medicinal use of cannabis oil by employees. The new cannabis oil law does not:

  • “restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours”;
  • “require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding”; and
  • “require any defense industrial base sector employer or prospective employer, as defined by the U.S. Cybersecurity and Infrastructure Security Agency, to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”

These carve-outs do not expressly address safety-sensitive positions, which are often granted an exception from legislation protecting medical marijuana cardholder status due to the hazardous nature of the work involved and/or dangerous work conditions. Although the new cannabis oil law does not expressly refer to “safety-sensitive” positions, employers required to comply with federal regulations involving safety-sensitive positions (e.g., Department of Transportation-regulated drivers) may be able to rely upon the “violation of federal law” exception. However, the strength and scope of this exception remains unclear, and employers may want to navigate these issues carefully as the new cannabis oil protections are enforced. As the July 1, 2021, effective date draws near, Virginia employers may want to evaluate applicable federal regulations to address potential conflicts that could arise from employees engaging in off-duty recreational marijuana use or in the medicinal use of cannabis oil.

Expanded Prohibition on Applicant Questions Related to Marijuana Crimes

Virginia’s marijuana legalization legislation modifies the existing ban on requiring a Virginia job applicant to disclose information related to an arrest, criminal charge, or conviction for simple possession of marijuana (i.e., possession of less than one ounce of marijuana), which was decriminalized on May 21, 2020. The recent modification expands the prohibition to include requests for information from an applicant related to any arrest, criminal charge, or conviction for the sale, transfer, distribution, or possession with the intent to sell, give, or distribute less than one ounce of marijuana. Virginia employers may want to review their recruitment and hiring procedures to ensure compliance with the expanded prohibition.

Sweeping Changes for Recreational Marijuana Use in Virginia

The remaining portions of Virginia’s recreational marijuana legislation do not directly impact employers, but the following broad changes will certainly affect Virginia enterprises operating (or preparing to operate) in the marijuana industry:

  • legalization of the possession of marijuana (up to one ounce) by adults who are 21 years of age and older;
  • establishment of the Virginia Cannabis Control Authority and a regulatory structure for the cultivation, manufacture, wholesale distribution, and retail sale of marijuana and marijuana products;
  • a grant of authority to Virginia localities to establish licensing requirements for retail and wholesale marijuana establishments within such localities;
  • a grant of additional authority to Virginia localities to establish licensing requirements for the home cultivation of marijuana for personal use; and
  • creation of tax revenue (estimated in the hundreds of millions of dollars) at the state and local levels.

The legislation also takes aim at entrenched systemic inequities affecting historically marginalized communities (particularly the African-American community) that have been “disproportionately policed for marijuana crimes” through drug-related police encounters, arrests, and convictions. These social provisions include the following:

  • Preferential access to retail and manufacturing licenses for
    • individuals (or their immediate family members) who have been convicted of marijuana-related crimes;
    • graduates of Virginia’s historically black colleges and universities; and
    • individuals living in “economically distressed” neighborhoods or neighborhoods that have experienced disproportionately high rates of marijuana-related arrests.
  • Elimination of civil and criminal penalties for possession of marijuana (up to one once) by adults who are 21 years of age or older
  • Requirement that the Virginia state police determine, by July 1, 2025, which marijuana-related misdemeanor offenses will be automatically expunged from the state’s record system
  • Permission for petitions for expungement of certain records of marijuana-related felony convictions (and juvenile delinquency adjudications)
  • Limitations on the dissemination of criminal record information relating to certain marijuana-related offenses
  • Investment in “educational and vocational resources for historically marginalized persons”
  • Creation and investment in social programs focused on curbing substance abuse and promoting health and wellness initiatives

Worker Protections Added to Final Legalization Bill

The final legislative text also includes provisions that authorize the newly established Virginia Cannabis Control Authority to suspend or revoke a licensee’s marijuana-related business license if the licensee

  • interferes with “union organizing efforts by employees”;
  • fails to pay employees “prevailing wages as determined by the U.S. Department of Labor”; or
  • classifies “more than 10 percent of its workers as independent contractors” when such workers are not “owners in a worker-owned cooperative.”

The inclusion of labor and employment–related provisions in marijuana legalization legislation appears to reflect Governor Northam’s interest in using the marijuana legalization measures to bolster protections for employees and organized labor. Virginia employers operating (or planning to operate) in the marijuana industry may want to review their current labor, wage, and classification procedures to ensure compliance with these new guidelines.

Key Takeaways

Virginia’s legalization measures place the state among the 16 states and the District of Columbia have legalized marijuana for adult recreational use. Vermont, Illinois, and New York have similarly used legislative action to regulate and tax the recreational use and retail sale of marijuana. As the wave of legalization continues to swell, employers throughout the United States may want to monitor closely state legislative activity for marijuana policy changes.

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.

 

Alabama Legislature Approves Medical Marijuana: Roll Tide! (and a Joint?)

Posted on by justin

On May 6, 2021, the Alabama legislature approved a medical marijuana legalization bill. Senate Bill (SB) 46, more commonly known as the Darren Wesley ‘Ato’ Hall Compassion Act, will now go to Governor Kay Ivey for final approval. Governor Ivey has not indicated that she will veto the bill, although a spokesperson for Governor Ivey has stated that she “look[s] forward to thoroughly reviewing it.”

If Governor Ivey signs the bill, it will go into effect immediately.

The bill lists 16 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Alabama, such as Crohn’s disease, depression, epilepsy, panic disorder, post-traumatic stress disorder, or “any condition” causing chronic pain where other treatment, including with opioids, have been ineffective.

Notably, the bill defines “medical cannabis” to exclude products that can be smoked and vaped, and marijuana-infused food products and to include other products such as oral tablets, gels, oils, creams, patches, or lozenges.

Importantly, unlike many other state medical marijuana legalization laws, the bill does not contain any express employment protections for medical marijuana cardholders. Instead, the bill’s language is employer-friendly in nature. With respect to employment, the bill specifically states that the bill does not:

  • Require an employer to permit, accommodate, or allow the use of medical marijuana;
  • Require an employer to modify job or work conditions for applicants or employees who use medical marijuana;
  • Prohibit employers from taking adverse employment action against medical marijuana cardholders, based either wholly or in part on the individual’s medical marijuana use, and irrespective of impairment;
  • Prohibit employers from establishing and enforcing drug testing, drug-free workplace, or similar policies;
  • Prohibit employers from requiring medical marijuana cardholders to notify employers of medical marijuana cardholder status;
  • Interfere with federal regulations or restrictions, such as U.S. Department of Transportation regulations; and
  • Provide for an express, legal cause of action for an individual to file a legal claim against an employer.

Key Takeaways

In the absence of express employment protection language within the bill, employers likely may take adverse employment action against medical marijuana cardholders with minimal risk of violating the bill. However, Alabama employers may want to remain mindful that even if taking action against cardholders is lawful, cardholders may pursue disability discrimination and accommodation claims related to their marijuana use. Individuals must have a qualifying medical condition in order to be authorized to receive a medical marijuana card, and any of the 16 medical conditions that would make an individual eligible for a card likely would be considered a disability under disability discrimination laws such as the Americans with Disabilities Act (ADA). Courts and administrative agencies around the country have regularly determined that medical marijuana cardholders may assert disability claims under state disability discrimination laws and, in some instances, the ADA. Therefore, Alabama employers should closely monitor this issue going forward.

With marijuana legalization being a new development in Alabama, court guidance and interpretation of the bill and related disability discrimination and accommodation claims will be critical.

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.

 

Marijuana Laws Affecting the Workplace: Tools Employers Can Use to Stay Ahead During High Times

Posted on by justin

As Judge Richard A. Licht (quoting a slightly more famous source) said in a 2017 court opinion: “I get high with a little help from my friends.” Four years later, employers may be asking themselves which of their employees are getting high and what can they do about it.

States have been busy when it comes to marijuana laws. Before the mid-2010s, employers tended not to worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are over, and state marijuana legalization laws continue to affect how employers can run their workplaces.

In 2020, and even as state legislatures were unable to proceed with typical legislative sessions due to the COVID-19 pandemic, two states (Mississippi and South Dakota) approved voter ballot initiatives legalizing medical marijuana and four states (Arizona, Montana, New Jersey, and South Dakota) legalized recreational marijuana. Already in 2021, New Mexico, New York, and Virginia have passed laws legalizing recreational marijuana, and other state legislatures are still considering medical or recreational marijuana legalization laws or amendments to existing laws to create employment protections or otherwise expand the coverage of existing laws. These include Alabama, California, Connecticut, District of Columbia, Florida, Hawaii, Kansas, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, and Texas.

Even employers in jurisdictions that haven’t yet legalized marijuana for any purpose, should take note that change is likely coming. If a state has legalized marijuana but maintained an employer-friendly landscape, that could also change. For many states, the legalization of marijuana has followed a predictable timeline. First, these states legalize cannabidiol (CBD) and other low- tetrahydrocannabinol (THC) products. Then, they legalize medical marijuana, sometimes with employment protections for medical marijuana cardholders and sometimes not. Then, they amend existing medical marijuana laws to add employment protections. Finally, they legalize recreational marijuana. Perhaps most worrisome for employers are new provisions in New Jersey’s and New York’s laws that provide recreational marijuana users with direct or indirect employment protections.

As this trend continues, it will be challenging for employers to stay ahead of developments and compliant with state and federal laws. Employers may have employment-related concerns stemming from the legalization of marijuana and the possibility of employees being in the workplace while under the influence. These concerns extend beyond the nuances of the marijuana laws themselves and include disability discrimination and accommodation issues, drug testing rights and responsibilities, state and federal statutory and regulatory compliance matters, workplace safety questions, varied obligations pertaining to government contractors, workers’ compensation implications, employee privacy protections, and more. The differences in laws from state to state make it even more difficult for employers, which must develop policies and procedures that are compliant in each jurisdiction where they have employees and worksites. To further complicate matters, federal and state disability discrimination and accommodation requirements apply across the board.

Key Takeaways

Legal claims related to marijuana use have dramatically increased in the past few years, and employers that aren’t mindful of their obligations across all states may be vulnerable to a variety of claims. Employers may want to be mindful of existing employment protections regarding marijuana use and be ready to adapt their policies and procedures as more jurisdictions enact protections.

In light of the quickly-changing landscape regarding marijuana laws and related issues triggered by marijuana legalization, Ogletree Deakins has launched an innovative new product—OD Comply: Marijuana—to help employers comply with state marijuana, disability discrimination and accommodation, and marijuana-related drug testing laws. Our team of attorneys, all of whom are experienced in an array of issues regarding the legalization of marijuana and have hands-on experience litigating marijuana matters and providing business-centric counseling to employers—has developed this user-friendly and cost effective tool to provide state-by-state guidance on employers’ rights and responsibilities.

 

 
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 York Legalizes Recreational Marijuana: Altered States for Employers

Posted on by justin

On March 31, 2021, New York Governor Andrew Cuomo signed into law the Marihuana Regulation and Taxation Act (MRTA), which legalizes the adult recreational use of marijuana and revises Section 201-d of the New York Labor Law. The MRTA’s antidiscrimination employment provisions took effect immediately.

Under existing law, Section 201-d of the New York Labor Law prohibits discrimination in employment based on a person’s lawful, off-duty “[r]ecreational activities” or “[p]olitical activities.” The MRTA amends the law to make it unlawful for an employer to refuse to hire, discharge, or otherwise discriminate against persons who legally use cannabis before or after working hours, off the employer’s premises, and without the use of the employer’s property. The MRTA specifies, however, that an employer is not in violation of Section 201-d where:

  • “the employer’s actions [are] required by state or federal statute, regulation,” or other mandate;
  • “the employee is impaired by the use of cannabis” at work or while performing his or her job duties or using the employer’s equipment;
  • the employer’s actions would result in the employer violating federal law or losing a federal contract or federal funding.

The MRTA does not modify the existing provisions of Section 201-d, which state that an employer does not violate the law where the employer’s actions are based on a belief that they are “permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement,” or the belief that “the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.”

Testing and Possession at Work

Pursuant to the law, New York employers may still enact policies that prohibit marijuana use and possession in the workplace. The MRTA also does not forbid employers from testing applicants or employees for marijuana. (However, pre-employment screening for marijuana is generally prohibited in New York City under existing law.)

Further, an employer will not violate Section 201-d if it takes action against an employee because the employee is impaired by the use of cannabis. Pursuant to the MRTA, an employee is “impaired” when “the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law.”

It appears from the law (though it is less than clear) that an employer may not take disciplinary action against an applicant or employee based solely on a positive test for marijuana, absent evidence of impairment. It is also unclear how the existing protections available under Section 201-d for employer actions taken pursuant to an established substance or alcohol abuse program or workplace policy, professional contract, or collective bargaining agreement will be interpreted and applied in light of the MRTA.

Labor Peace Agreements

The law also requires any applicant for a license to grow, distribute, or sell cannabis products to enter a “labor peace agreement” with any union that seeks to organize its workers. Further, the New York State Office of Cannabis Management, which will take part in overseeing and regulating the legalization programs, will give licensing priority to unionized facilities or employers that already have these types of agreements in place.

Key Takeaways

Regulatory guidance regarding the MRTA is not yet available. In the meantime, given the uncertainty surrounding how Section 201-d protections interact with the MRTA, employers may wish to consider the benefits and drawbacks of testing for marijuana. An employer’s reliance on positive test results alone to take adverse action may be open to challenge because employees and job candidates can test positive for marijuana, even if they are not manifesting symptoms of impairment on the job.

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.

 

 
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.

 

Why You Should Audit Your Service Agents

Posted on by justin

Employers of safety-sensitive transportation employees play a vital role in ensuring the safety of their employees and the traveling public. Subsequently, these employers must comply with 49 CFR Part 40 and applicable DOT Agency regulations. The regulations require the employer to use trained professionals and organizations (ie. service agents) to accomplish meeting these requirements.

As the Designated Employer Representative (DER) for your company, you are one of several or possibly the sole individual responsible for overseeing your drug and alcohol testing program. Thus, it is imperative to utilize qualified, knowledgeable and compliant service agents.

Service Agents

According to the DOT drug and alcohol testing regulations, a service agent is defined as:

Any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet DOT qualifications, if applicable. Service agents are not employers for purposes of this part. (49 CFR Par 40.3)

So, what are they specifically? 

  • Collectors – The individuals who collect the drug testing samples on your employee(s). These collections may be conducted at a medical facility, specialized business, or at your company locations by a person who performs collections on-site.
  • BATs and STTs – Breath Alcohol Technicians instruct and assist your employees in the alcohol testing process and operate an evidential breath testing (EBT) device. A Screening Test Technician also instructs and assist employees in the alcohol testing process but operate an alcohol screening device (ASD).
  • Laboratories – Laboratories test the samples provided by your employees that are obtained by collectors. These laboratories must be certified by the Department of Health and Human Services in order to process DOT samples. Testing is conducted using highly specialized equipment and standards that meet rigorous toxicological standards.
  • Medical Review Officers (MRO) – Licensed physicians who receive and review test results that are transmitted from the laboratory for an employer’s drug testing program. Considered the “gatekeeper” for the testing program, they are also responsible for evaluating medical explanations for certain drug test results.
  • Substance Abuse Professionals (SAP) – Trained professionals who evaluate employees that have violated a DOT drug and alcohol regulation (regarding a positive or refusal to test) and make recommendations concerning education, treatment, follow-up testing, and aftercare.
  • Consortium/Third Part Administrators (C/TPA) – Sometimes chosen by employers to assist them with their testing program. C/TPAs typically perform certain administrative tasks concerning an employer’s program. These functions may include consolidating the services of other service agents, like collectors, BATs, and laboratories; provide random testing pools, random selections, and other functions.

Since each of these agents play a major role in the quality and compliance of your drug and alcohol testing program, having an effective business relationship with them is imperative. Because of this, it is important that you periodically review (ie. audit) their services to ensure they are doing what is expected.  

Site Visits

Whenever possible, an actual on-site visit is a great evaluation tool. For instance, stop by a collection facility that you use often and ask to speak with the supervisor of the drug collectors and BAT/SSTs. Request documentation that the collectors and BAT/STTs have completed the required training? View calibration records pertaining to their breath alcohol machine and ask if they are following the manufacturer’s recommendations? Do they follow proper collection procedures by turning off the water, use a bluing agent, require the donor to remove unnecessary outer clothing and wash their hands, to name a few? Is the facility safe, clean, and well managed? How are they going to correct any issues that you find? It is important to remember that problems found at this point can later cause issues for the lab and MRO and possibly jeopardize a test.

Schedule a visit with your MRO and SAP(s) so they know a little about your company and what you do. These individuals can offer a lot of assistance and guidance for both you and your employees. 

Have you ever thought about visiting the offices of your C/TPA? You should. A premium C/TPA will welcome an on-site visit and be able to provide you a behind-the-scenes look at their operations. Ask to see the random selection process for your employees or how your test data is transmitted from the MRO to the C/TPA and then to you.

On-site visits provide a glimpse of how your service agents really operate. Not only are you ensuring your compliance but you’ll gain a lot of understanding in the process.

Desk Audits

When a site visit is not practical, a desk audit can be also be effective. Periodically call or email your service agents and request various documentation or discuss processes. What procedures does the service agent follow and how are problems handled? Is the laboratory that you use on the current List of Certified Labs? Does your MRO and SAP(s) have documentation showing they have met their required regulatory training? Is your MRO properly documenting the testing process and do they have records? If you are using a C/TPA, are they providing the services they promised and following the regulatory requirements? Can you obtain records quickly and is your information secure? If they bundle the services of other service agents, are they auditing them as well?

While not an exhaustive list, the point is to design an audit process that works for you and your company. Frequently ask questions regarding the actions conducted by your service agents – and document the process and your findings. If you find issues, request corrections and documentation. Most issues, if found, can be easily remedied and most service agents are happy to address those with you. However, if problems still persist then it may be time to find a different service agent. 

Service Agents Work for You!

In order for your audits to be effective, you as the Designated Employer Representative (DER) should be both knowledgeable of what these service agents are required to do and (to some degree) how they do it. That means, you must be knowledgeable with all the regulations your company is subject to. A working knowledge of each service agents role helps you identify when problems exist. Too many employers fail to know what their providers actually do for them. Many don’t even know who to contact!

You, as the employer, are ultimately responsible for following the regulations under your drug and alcohol program. As such, it is a good practice to conduct these reviews on an annual basis. During a regulatory audit, you may be asked to demonstrate that you have verified the processes and compliance of your service agents. Having documentation of an on-site visit or desk audit will show your due diligence.

Utilizing good service agents is critical in managing an effective and compliant drug and alcohol testing program! Conducting regular reviews on each only strengthens your program and provides significant peace of mind.

PTC conducts regular reviews of our service agents and dramatically reduces this burden for our clients.
For more information on how we can help you manage your organization’s drug and alcohol testing program,
please email Jeff Martens or call 800.294.8758 ext. 405.

Back to Top Arrowback to top