Oregon is first state to decriminalize certain narcotics.

Author: justin

Author: justin

New Measures in Oregon Decriminalize Certain Narcotics and Legalize Psilocybin Therapy

Posted on by justin

Oregon voters approved two groundbreaking measures in the 2020 election season to become the first state in the nation to decriminalize personal possession of small amounts of certain controlled substances (Measure 110) and legalize the therapeutic usage of psilocybin in a controlled therapy setting (Measure 109). Many employers may be wondering what these measures mean and how their workplaces and existing employment policies might be impacted.

Measure 110

Oregon voters approved Measure 110, titled the Drug Addiction Treatment and Recovery Act, making personal noncommercial possession of a small amount of a controlled substance in Schedules I-IV no more than a Class E violation resulting in a maximum fine of $100. Measure 110 also establishes a drug addiction treatment and recovery program funded in part by the state’s marijuana tax revenue and state prison savings. Measure 110 goes into effect on February 1, 2021. The measure does not apply retroactively to past convictions.

Some notable Schedules I–IV controlled substances specifically mentioned in Measure 110 that will be reclassified to a Class E violation include the following:

  • Heroin
  • Methamphetamine
  • Cocaine
  • LSD
  • MDMA
  • Oxycodone
  • Methadone

An individual caught with possession will be issued a citation for a fine up to $100. If an individual fails to pay the fine, it appears that he or she will suffer little consequence as failing to do so will “not be a basis for further penalties or for a term of incarceration.” An individual can have the fine waived if he or she completes a health assessment within 45 days of receiving the citation. The individual is not required to undergo addiction recovery treatment, but rather must complete only the health assessment to have the fine waived. Health assessments must be conducted through addiction recovery centers and include substance use disorder screenings performed by certified alcohol and drug counselors. Upon completion of a health assessment, the individual may express a desire to undergo treatment, at which point a case manager must work with the individual to design an “Individual Intervention Plan” for treatment.

An individual who manufactures or distributes illegal drugs is still subject to a criminal penalty. An individual with two or more prior convictions for unlawful possession of a usable quantity of a controlled substance is subject to a criminal penalty if convicted of possession a third time.

Measure 109

Oregon voters also approved Measure 109, titled the Oregon Psilocybin Services Act, authorizing the Oregon Health Authority (OHA) to create a program to permit licensed service providers to administer psilocybin-producing mushroom and fungi products to individuals 21 years of age or older in therapeutic settings. While Measure 109 prohibits the possession, manufacturing, and consumption of psilocybin outside of service centers, Measure 110 makes the personal or noncommercial possession of psilocybin no more than a Class E violation with a maximum penalty of a $100 fine or a completed health assessment. The OHA has a two-year period to develop the psilocybin program and create regulations governing the purchase, possession, and consumption of psilocybin at psilocybin service centers.

Impact on Employers of Individuals With Professional and Occupational Licenses

Measure 110 will impact the regulation of occupational and professional licenses. Section 670.280 of the Oregon Revised Statutes sets forth standards for the denial, suspension, or revocation of an occupational or professional license. This section includes the regulation of licenses for nurses, nursing assistants, teachers, psychologists, therapists, dentists, and pharmacists, among others. An employer of one of these licensed individuals may want to be aware that convictions for drug offenses under Measure 110 may no longer lead to a licensing board’s denial, suspension, or revocation of the individual’s occupational or professional license.

Measure 110 limits the ability of a licensing board, commission, or agency to deny an occupational or professional license or impose discipline on a licensee who has a conviction for a Class E violation (e.g., possession of methamphetamine, heroin, etc.). The limitation exists because Measure 110 amends ORS 670.280 to create a “rebuttable presumption” that an applicant’s or licensee’s existing or prior conviction of a Class E violation “does not” render the person unfit to obtain or hold a license. Measure 110 also amends ORS 670.280 to create a “rebuttable presumption” that such a conviction also “is not related to the fitness and ability” of the applicant or licensee to engage in the activity for which the license is required. For example, if a nurse or teacher is convicted of possessing a personal amount of methamphetamine, the licensing board will have to overcome Measure 110’s “rebuttable presumption” to deny, revoke, or suspend the individual’s license.

Impact on Employer Hiring and Drug Testing Practices

Measure 109 and Measure 110 will not impact an Oregon employer’s ability to consider an applicant’s conviction history when making a hiring decision. Subject to Oregon’s and Portland’s respective “ban the box” laws, an employer may still consider criminal convictions—including reclassified convictions under Measure 110—when making hiring decisions.

While Measure 110 does not apply retroactively to past convictions, individuals will likely start seeking to expunge their past convictions. An employer considering whether to hire an applicant may want to keep in mind that Oregon law still prohibits an employer from discriminating against an applicant or employee on the basis of an expunged juvenile record, unless the decision is based on a bona fide occupational qualification that is reasonably necessary for normal business operations.

Measure 109 and Measure 110 do not impact an Oregon employer’s drug testing or drug-free workplace practices. Schedules I–IV controlled substances remain illegal under federal law and neither measure requires an employer to tolerate on-the-job drug possession, reporting to work impaired, or continued employment of an individual who violates an employer’s legally compliant drug testing or drug-free workplace policies.

Impact on Employer Disability Accommodation Processes

Measure 109’s legalization of psilocybin for therapeutic usage to treat various conditions such as depression, post-traumatic stress disorder, and anxiety raises concerns about the interplay between Measure 109 and disability discrimination laws. In the future, an employer may face disability claims when taking adverse action against an employee who undergoes therapeutic usage of psilocybin and violates the employer’s drug testing or drug-free workplace policies.

Measure 109 does not address how an employer should handle accommodation requests from an employee who undergoes psilocybin treatment. Since Measure 109 will not be implemented for another two years, it is possible that the issue will be addressed in the OHA’s regulations once they are published. Nonetheless, the Oregon Supreme Court’s decision in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 348 Or. 159 (2010), suggests that an Oregon employer would not have to accommodate an employee’s therapeutic usage of psilocybin. In Emerald Steel Fabricators, the Oregon Supreme Court held that an employer did not need to engage in the interactive process or accommodate an employee for the use of medical marijuana. The court found that marijuana—a Schedule I controlled substance—remains illegal under federal law and thus federal law preempts Oregon’s medical marijuana laws. Like marijuana, psilocybin is also a Schedule I substance under the federal Controlled Substances Act and remains illegal under federal law. As such, it is likely that courts will follow Emerald Steel Fabricators and find that an Oregon employer need not engage in an interactive process or otherwise accommodate an employee’s therapeutic usage of psilocybin.

Overall, these measures make unprecedented changes to drug enforcement laws but have less of an impact on employer workplace policies and practices. That said, employers may want to take steps to ensure they remain in compliance with existing drug testing, ban-the-box, and disability accommodation laws.

 
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 Ballot Initiatives Approved in Five States: What This Budding Trend Means for Employers

Posted on by justin

On November 3, 2020, five states had initiatives on the ballot to legalize the recreational and/or medical use of marijuana, and all five initiatives easily passed. Arizona, Montana, and New Jersey voted in favor of legalizing the possession and recreational use of marijuana for adults aged 21 years and older. In addition, South Dakota became the first state to legalize both medical and recreational marijuana at the same time. Mississippi voted to legalize medical marijuana. Employers may want to consider the impact of these new laws, as well as watch for new developments.

Arizona

Voters in Arizona decisively passed Proposition 207, the Smart and Safe Arizona Act, to legalize recreational marijuana. Before the election, we urged employers to keep an eye on Proposition 207 and to consider reviewing their substance abuse policies. Now, both medical and recreational marijuana are officially legal in the state of Arizona. The newest law will impose a 16 percent tax on recreational marijuana sales to fund public programs across the state. Recreational marijuana sales can begin in early 2021 once the Arizona Department of Health Services issues business licenses.

Proposition 207 appears to preserve employers’ ability to maintain and enforce zero-tolerance drug-free workplace policies. Although the statute does not provide any explicit job protections for employees, employers may still want to review their drug policies, decide whether to continue to enforce zero-tolerance policies for marijuana, and consider how policy decisions may affect the ability to attract and retain talent. Employers that decide not to allow off-duty use of legal recreational marijuana may want to ensure their policies accurately reflect this and that employees understand the policies. Otherwise, employers may risk losing good employees due to a misunderstanding of company policies.

For more information, please join us for our upcoming webinar, “Arizona’s Legalization of Recreational Marijuana: What Employers Need to Know,” on Monday, November 23, 2020, from 12:00 p.m. to 1:00 p.m. MST). Register for this timely program here.

Mississippi

Mississippi voters overwhelmingly approved Initiative Measure No. 65—a citizen-driven ballot initiative. Initiative Measure No. 65 will amend the Mississippi Constitution to create a state medical marijuana program. The program, which reflects a traditional medical marijuana law, lists over 20 qualifying conditions for medical marijuana cardholder status. The program will allow physicians to certify medical marijuana treatment for individuals who suffer from qualifying conditions. The deadline for the program to be operational is August 15, 2021.

In approving Initiative Measure No. 65, voters rejected a more restrictive measure (Alternative Initiative Measure No. 65A) proposed by the Mississippi Legislature. The legislature’s proposal would have limited medical marijuana access only to terminally ill patients and those with undefined “debilitating medical conditions.”

Importantly, Initiative Measure No. 65 does not contain any express protections for applicants for employment or employees, nor does it prohibit testing for marijuana. Such protections, which are often referred to as “antidiscrimination provisions,” typically prohibit discrimination against medical marijuana cardholders based on their cardholder status. While Mississippi’s new medical marijuana law does not contain an antidiscrimination provision, employers may want to be careful when handling medical marijuana issues to ensure that they are not running afoul of disability discrimination laws.

Montana

Montana voters passed Statutory Initiative 190 (I-190) and Constitutional Initiative 118 (CI-118), which legalized the possession, purchase, and use of 1 ounce or less of marijuana or 8 grams or less of marijuana concentrate by persons over the age 21. Neither law provides express protections for job applicants or employees or prohibits testing for marijuana. Specifically, I-190 permits employers to discipline, discharge, or refuse to hire an employee or job applicant for violating a workplace drug policy or being under the influence of marijuana while working. Both laws are similar to the current Montana Medical Marijuana Act—which also does not provide employment protections for medical marijuana cardholders in Montana. The new laws are set to go into effect on January 1, 2021.

New Jersey

New Jersey citizens voted overwhelmingly (by a 2-to-1 margin) in support of Public Question No. 1, which asked whether they approved of amending the New Jersey Constitution to legalize the possession and recreational use of marijuana for adults aged 21 and older in New Jersey. While Public Question No. 1 does not contain express protections for applicants for employment or employees who use recreational marijuana, and while marijuana remains an illegal drug under federal law, employers doing business in New Jersey can continue to expect issues associated with marijuana to cause headaches at the workplace.

For instance, the Jake Honig Compassionate Use of Medical Cannabis Act, which Governor Phil Murphy signed into law on July 2, 2019, and which replaced New Jersey’s former Compassionate Use of Medical Marijuana Act (CUMMA), contains several express employment protections for medical marijuana users. First, the Honig Act makes it unlawful for an employer to take any adverse employment action against an employee who is a registered qualifying patient “based solely on” the employee’s status as a user of medical marijuana. The Honig Act also establishes a procedure that an employer must follow when an applicant or employee tests positive for marijuana.

If an applicant or employee tests positive for marijuana, the employer is required to (1) provide written notice of the right to provide a valid medical explanation for the test result and (2) offer an opportunity to present a valid medical explanation for the result. The applicant or employee then has three working days after receipt of the written notice to explain the result or request a retest of the original sample at the individual’s own expense. A valid medical explanation for the result may include an authorization for medical marijuana issued by a health care practitioner or proof of registration with the Cannabis Regulatory Commission. In addition, the Honig Act includes a carve-out which permits an employer to take an adverse employment action against a medical marijuana user if the employer’s accommodation of the applicant’s or employee’s use of medical marijuana “would cause the employer to be in violation of federal law … or … would result in the loss of a federal contract or federal funding.”

Interestingly, however, the Honig Act is silent as to whether an employer can take adverse employment action against an employee who nonetheless provides a valid medical explanation for the result. To date, no New Jersey court has addressed the issue of whether an employer can enforce a “zero tolerance” or “drug-free workplace” policy against medical marijuana users. Likewise, a New Jersey court has not squarely decided the issue of whether an employer has an obligation to accommodate the use of medical marijuana by its applicants or employees.

Presumably, however, if an applicant or employee were unable to provide a valid medical explanation for a positive drug test, the employer would be justified in taking adverse employment action against the applicant or employee for the use of an illegal drug. This would likely remain true even though New Jersey will legalize the recreational use of marijuana by adults age 21 and older effective January 1, 2021, pursuant to Public Question No. 1. In this regard, it is worth noting that, unlike some other states, New Jersey does not have any off-duty conduct law that protects employees from adverse employment action based on their off-duty conduct. Thus, it is unlikely that an applicant or employee could assert a claim against an employer for having been subjected to adverse employment action because of a failed drug test due to the recreational use of marijuana, particularly since marijuana remains an illegal drug under federal law. Similarly, nothing about New Jersey’s efforts to legalize the recreational use of marijuana would appear to restrict an employer from maintaining policies prohibiting, or authorizing adverse employment action based on, the possession or use of intoxicating substances during work hours or on workplace premises outside of work hours. However, an employer that maintains “zero tolerance” or “drug-free workplace” policies may want to tread carefully in light of Public Question No. 1’s amendment to the New Jersey Constitution and the requirements and restrictions of the Honig Act.

For more information, please join us for our upcoming webinar, “What New Jersey’s Legalization of Recreational Marijuana Means for Employers,” on Tuesday, November 17, 2020, from 2:00 p.m. to 3:00 p.m. EST. Register for this upcoming program here.

South Dakota

Voters in South Dakota made their state the first to approve both recreational and medical marijuana measures simultaneously. South Dakota Constitutional Amendment A, the Marijuana Legalization Initiative, allows for the recreational use of marijuana for individuals 21 years and older (and for possession of up to 1 ounce). South Dakota residents who do not live in a jurisdiction containing a licensed, retail marijuana dispensary may grow up to three marijuana plants in a private residence. The amendment does not contain protections for employees’ use of marijuana, and it specifically allows employers to continue to restrict the recreational use of marijuana by their employees.

South Dakotans also passed Initiated Measure 26, which will establish a medical marijuana program for individuals with “debilitating medical condition[s]” and allow for possession of up to three ounces of marijuana. Unlike Constitutional Amendment A (which does not establish affirmative rights for recreational users), Initiated Measure 26 mandates that “qualifying patient[s]” who are prescribed medical marijuana be afforded the same rights that they would have under state and local law if their prescriptions were for, instead of marijuana, a “pharmaceutical medication”—including with respect to “[a]ny interaction[s] with [their] employer[s]” and “[d]rug testing by [their] employers.”

While the protections of Initiated Measure 26 appear to prohibit employers from specifically targeting medical marijuana patients, including for the purposes of drug testing, the measure allows employers to prohibit employees from ingesting marijuana in the workplace and/or from working “while under the influence of cannabis.” The new law attempts to define “under the influence” by stating that medical marijuana patients may not be considered under the influence “solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment.” The subjective nature of this definition may cause some confusion down the road.

South Dakota employers may want to be careful not to treat medical marijuana patients differently from other employees, keeping in mind that the law permits employers to prohibit the use of marijuana in the workplace (though the question of what constitutes working while “under the influence” may arise).

 

 
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.

 

PTC Launches New eTEST Scheduler

Posted on by justin

Pipeline Testing Consortium, Inc. has recently launched their new eTEST drug and alcohol test scheduler. Available for use to all PTC members, this fully electronic drug test scheduler allows users to schedule a drug or alcohol test for anyone in the United States without the need for a drug testing kit or paper chain of custody form.

The eTEST module was created specifically with the simple goal of scheduling a drug test easy. Clients can quickly schedule a drug and/or alcohol test on their employees at over 2500 collection sites around the United States. “The current off-the-shelf resources available in the industry were too universal in their offerings and made their services hard to navigate and understand.” says Jeff Martens, manager of PTC, “We’ve developed an amazing, easy to use system that is catered to each clients’ specific drug and alcohol program.”  The eTEST system is linked to the FormFox platform allowing drug and alcohol tests to be performed at any FormFox equipped collection site.

Scheduling an eTEST is done in just four steps:

  1. Enter the donor’s information.
    Choose from the employees in your current drug program to automatically populate the requested donor information or add new donors.
  2. Choose the test needed. 
    The type of testing available is specific to each client which helps users avoid conducting a test outside the scope of their drug policy. Quick links are also embedded in various sections of PTC Online allowing the user to schedule a test on a specific employee with the push of a button.
  3. Select the collection site.
    Choose from 2000+ sites across the US. Save default settings to a particular location. Collection site information is updated daily.
  4. Notify the donor. 
    Donors are sent collection details via email or text and can walk into any eTEST approved collection site with their electronic instructions.

Furthermore, an eTEST quick-link icon can be found next to applicable employees on our random selection page. This awesome feature pre-loads all known employee information AND the random test required into the eTEST system, further making the scheduling process quick and easy.

Tracking capabilities are built into the eTEST system so users are aware of collection times and dates, with notifications of completed collections sent to the scheduler.

PTC has also developed a mobile friendly version called eTEST MOBILE, allowing those working remotely to quickly schedule a test from their mobile device. eTEST MOBILE is accessed via the login button.

For more information about eTEST and other PTC exclusive services, contact us below or call 800-294-8758.

Marijuana Legalization Update for 2020: A Primer on the Latest Medicinal and Recreational Use News

Posted on by justin

In the past several years, marijuana legalization has become an increasingly difficult issue for employers to navigate. Marijuana legalization raises challenging workplace questions related to drug testing, disability accommodation, workplace safety, hiring, and employment termination, among other issues. Because of the fast-evolving nature of marijuana laws, and the wide variance in laws and protections from state to state, employers have struggled to keep up.

The COVID-19 pandemic put a halt to many state legislative or citizen-driven initiative efforts to legalize marijuana for either medicinal or recreational purposes, or to expand current marijuana legalization, including in Alabama, Arkansas, Florida, Kentucky, Idaho, Missouri, and North Dakota.

However, several states will have the opportunity in November 2020 to vote on marijuana legalization through ballot initiatives and state constitutional amendments. In addition, the United States House of Representatives will soon vote on legislation that would remove marijuana from Schedule I of the Controlled Substances Act.

Here is a roundup of marijuana legalization efforts that could affect employers as we head into 2021.

National

The United States House of Representatives is set to vote in September 2020 on the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 (H.R. 3884). The bill, among other things, would remove cannabis as a Schedule I controlled substance and, in turn, essentially decriminalize marijuana at the federal level. While this is an intriguing development, regardless of the results of the House vote, it seems unlikely that the bill will be able to advance through the United States Senate given its current makeup. Perhaps the more important takeaway from this development is that federal decriminalization of marijuana could be an issue that gains momentum in the coming years.

Arizona

Proposition 207 (the Smart and Safe Arizona Act) would legalize the possession and recreational (i.e., nonmedicinal) use of marijuana by adults age 21 and over in Arizona. Proposition 207 does not contain any express protections for applicants for employment or employees, and it does not prohibit employers from testing for marijuana. If passed, Proposition 207 would join the current Arizona Medical Marijuana Act—which does contain employment protections for medical marijuana cardholders in Arizona.

If Arizona voters approve Proposition 207, the deadline for Arizona lawmakers to establish regulations governing the Arizona recreational marijuana industry would be April 5, 2021.

Mississippi

Initiative Measure No. 65 and Alternative Initiative Measure No. 65A (House Concurrent Resolution 39) represent two versions of a medical marijuana amendment to the Mississippi Constitution. Initiative Measure No. 65 is a citizen-driven ballot initiative, whereas Alternative Initiative Measure No. 65A was referred to the ballot as an alternative measure by the Mississippi Legislature. While both measures would amend the state constitution to create a state medical marijuana program, Alternative Initiative Measure No. 65A is less specific in its language, meaning that the state legislature would subsequently be able to include further details as to its scope.

Importantly, Alternative Initiative Measure No. 65A would limit medical marijuana access only to “qualified persons with debilitating medical conditions” and restrict “[t]he smoking of marijuana products … to the treatment of qualified persons who have terminal medical conditions.” In contrast, Initiative Measure No. 65 reflects a more traditional medical marijuana law and lists more than 20 qualifying conditions for cardholder status. Neither option contains any express protections for applicants for employment or employees, nor prohibits testing for marijuana.

If Initiative Measure No. 65 is passed, the deadline for the medical marijuana program to be operational would be August 15, 2021. Alternative Initiative Measure No. 65A does not contain a similar deadline.

Montana

Statutory Initiative No. 190 (I-190) and Constitutional Initiative No. 118 (CI-118) would legalize the possession and recreational use of marijuana for adults age 21 and over in Montana. I-190 and CI-118 do not contain any express protections for applicants for employment or employees, and they do not prohibit testing for marijuana. If passed, I-190 and CI-118 would join the current Montana Medical Marijuana Act—which also does not provide employment protections for medical marijuana cardholders in Montana.

If passed, the most relevant portions of I-190 and CI-118 would go into effect on January 1, 2021.

Nebraska

The Nebraska Medical Cannabis Constitutional Amendment would amend the Nebraska Constitution to legalize marijuana for medicinal purposes and would authorize the Nebraska Legislature to develop laws, rules, and regulations to govern the medical marijuana program. The ballot initiative does not contain any express protections for applicants for employment or employees, and it does not prohibit testing for marijuana.

Notably, the ballot initiative is currently being challenged in Nebraska state court. The Nebraska Supreme Court will determine whether the initiative violates state rules requiring ballot initiatives to focus on a “single subject.” Whether the initiative stays on the ballot for Nebraska voters remains to be seen.

New Jersey

Public Question No. 1 would add an amendment to the Constitution of the State of New Jersey to legalize the possession and recreational use of marijuana for adults age 21 and over in New Jersey. Public Question No. 1 does not contain any express protections for applicants for employment or employees, and it does not prohibit testing for marijuana. If passed, Public Question No. 1 would take its place alongside the current Jake Honig Compassionate Use Medical Cannabis Act—which does contain employment protections for medical marijuana cardholders in New Jersey.

If passed, Public Question No. 1 would go into effect on January 1, 2021.

South Dakota

Initiated Measure 26 would legalize marijuana for medicinal purposes. Initiated Measure 26 does not contain any express protections for applicants for employment or employees, and it does not prohibit testing for marijuana.

If passed, the deadline for the South Dakota Department of Health to enact rules implementing the medical marijuana program would be approximately October 29, 2021.

Constitutional Amendment A would legalize the possession and recreational use of marijuana for adults age 21 and over in South Dakota. Constitutional Amendment A does not contain any express protections for applicants for employment or employees, and it does not prohibit testing for marijuana.

Key Takeaways

Marijuana legalization continues to be a quickly moving area of the law. Employers may want to continue to monitor these developments with an expectation that legalization efforts will continue in the years to come.

 

 
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.

 

OSHA Issues COVID-19 Guidance for the Oil and Gas Industry

Posted on by justin

One of OSHA’s benchmarks for protecting employees from COVID-19 requires employers to assess their workplaces and determine whether job tasks place their employees at one of four levels of risk exposure: very high, high, medium, and lower risk. The agency recommends that employers conduct a hazard assessment to identify whether and how often workers may be in close contact (i.e., within six feet) to coworkers, supervisors, or other individuals at the job site.

The good news for the oil and gas industry is that OSHA does not anticipate a very high or high risk of exposure. According to the guidance, “[m]ost oil and gas drilling, servicing, production, distribution, and/or processing tasks are associated with lower or medium exposure risks.”  Examples of oil and gas work activities with a medium or lower risk include the following:

Medium-Risk Activities

  • “Oil and gas drilling, servicing, production, distribution, and/or processing tasks that require frequent close contact (within 6 feet) with coworkers, contractors, customers, or the general public.
  • Work in “frequent high-traffic areas,” such as control rooms, trailers, and doghouses.
  • “Traveling within facilities or between facilities when workers must share vehicles.”

Low-Risk Activities

  • “Oil and gas drilling, servicing, production, distribution, and/or processing tasks that do not require frequent close contact with other coworkers, contractors, customers, or the public.”
  • “Performing duties in non-public areas of oil and gas production and/or processing facilities, away from other workers or the public.”

Use Cloth Face Coverings

Regardless of the exposure risk level, OSHA advocates that all workers in the oil and gas industry wear cloth face coverings. The agency also recommends that workers wear face coverings “in common areas such as the drill deck, doghouse, control rooms, and office spaces in the trailers.”

Controls to Mitigate Medium Risk Activities at the Worksite

OSHA emphasizes social distancing as the primary method of mitigating worker exposure to COVID-19. This includes a recommendation to “[c]onfigure communal work environments (such as control rooms, jobsite trailers and/or doghouses) so that workers are spaced at least six feet apart, if possible.” If the nature of work makes social distancing infeasible, then the use of physical barriers between workers (such as strip curtains, plexiglass, or other impermeable dividers or partitions) are acceptable, so long as the barrier “does not create additional safety hazards (e.g., reduced visibility in/around work vehicles or other equipment).”

OSHA recommends that employers pay special attention to pedestal or hard-mounted fans to ensure they do not blow air directly from one employee to another. The agency also suggests that personal cooling fans be removed from the worksite to help reduce the spread of COVID-19.

Other suggestions from OSHA include the following:

  • Stagger shifts and break times, when possible, “to avoid congregations of workers in parking areas, locker and shower rooms, smoking areas, control rooms and other common areas.”
  • “Encourage … single-file movement with six feet between each worker through the facility/site, where possible.”
  • Utilize floor markings or signs (such as those used by supermarkets) to remind employees to maintain social distancing
  • “Designate workers to monitor and facilitate distancing.”
  • “Limit the number of personnel allowed in doghouses, control rooms, and other operating areas.”
  • “Limit meeting sizes and/or hold meetings virtually or using social distancing outside, if possible.”
  • “Remove or rearrange chairs and tables, or add partitions to tables, in break rooms, control rooms, and other areas workers may frequent to increase worker separation.”
  • “Identify alternative areas to accommodate overflow volume, such as training and conference rooms, or using outside tents for shaded break and lunch areas.”

Carpooling or Use of Company Vehicles

Under the guidance, employers should “[e]ncourage workers to avoid carpooling to and from work and job sites, when possible.  However, this can be a challenge due to the nature of the oilfield industry, which often requires employees to travel to worksites far away from their homes. For example, traveling to a worksite 100 miles from a local yard is not uncommon for oilfield work in West Texas. Recognizing this reality, OSHA recommends the vehicle’s windows remain open to circulate air. The agency also suggests the following:

  • Wear cloth face coverings.
  • “Limit the number of people per vehicle as much as possible.”
  • “Encourage cohorting (grouping together) of workers to keep exposure groups as small as possible.”
  • “[M]aintain social distancing as much as possible.”

“[P]ractice proper hand hygiene, such as hand washing or, if soap and water are not readily available, use hand sanitizer that contains at least 60% alcohol, before entering the vehicle and when arriving at the destination.”

  • “Clean and disinfect commonly touched surfaces after each carpool or shuttle trip (e.g., door handles, handrails, [and] seatbelt buckles).”
  • “Encourage workers to follow coughing and sneezing etiquette when in the vehicle.”

Takeaways

  • Although the OSHA guidance did not mention the importance of daily COVID-19 prescreening efforts such as questionnaires and temperature checks, oil and gas employers may want to adopt these control methods.
  • Employers may want to ensure that daily cleaning includes regular disinfectant cleaning of oilfield equipment (such as tongs) and tools.
  • OSHA’s recommendations mean that oil and gas employers may need to intensify their heat illness prevention efforts this summer. The removal of personal fans and use of face coverings increases the heat load on employees. Among other things, oilfield employers may want to consider increasing the frequency of water breaks and bringing extra water to the worksite. In addition, employers may want to discontinue the use of common water dispensers, such as iced-down five-gallon coolers, and replace them with bottled water.
  • Rolling down the windows on the crew truck when driving to a location may not be a bad idea when temperatures cool down later this year, but for now employers may want to take into consideration the heat and often-dusty conditions in places like West Texas, where the heat index can soar above 110 degrees Fahrenheit. Most crews would presumably opt to keep the air conditioning on, and wear face coverings in the crew truck.
  • Partitions on the work floor may pose issues for employers. Crews and oilfield equipment (tongs, for example) frequently move around the work floor. Given the nature of the work, plexiglass partitions likely cannot be bolted into fixed positions on the work floor and could present a hazard. Strip curtains are an interesting idea, seemingly borrowed from OSHA’s meatpacking guidance. But where do employers hang them on a drilling or well servicing rig?
  • Oil and gas employers can focus their prevention efforts on universal precautions, such as promoting hand washing, practicing social distancing as much as possible, and when social distancing is not feasible, requiring the use of face coverings (subject to exceptions).

 

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.

Louisiana Expands Access to Medical Marijuana

Posted on by justin

In 2015, Louisiana passed a law authorizing the prescription of marijuana for the treatment of certain qualifying medical conditions, such as glaucoma, cancer, and spastic quadriplegia. In 2018, the statutory list of conditions was amended to include post-traumatic stress disorder, autism, and chronic pain. In the same amendment, the legislature designated the Louisiana Department of Agriculture and Forestry to oversee the production of medical marijuana. Since then, employers with operations and employees in Louisiana have been preparing for the new reality of managing marijuana in the workplace. These preparations are set to become even more challenging for Louisiana’s employers in light of new workplace realities and changes to the state’s medical marijuana law set to take effect in August 2020.

The Updated Louisiana Marijuana Law

On June 16, 2020, Louisiana Governor John Bel Edwards signed into law House Bill No. 819. Effective August 1, 2020, Louisianans’ ability legally to use marijuana to treat medical conditions will be greatly expanded. The law amends and reenacts current Louisiana laws addressing the use of medical marijuana. The newly enacted measure removes certain restrictions and requirements concerning who can recommend medicinal marijuana to patients and greatly expands the conditions for which doctors can legally recommend marijuana to their patients.

Significant Changes to Louisiana’s Current Marijuana Law

The first significant change to the current law deals with which doctors may legally recommend marijuana to Louisiana patients. Under current law, a doctor issuing a “recommendation” providing for the dispensing of marijuana to a patient for the treatment of one of the medical conditions enumerated under the law, must be certified or authorized by the Louisiana State Board of Medical Examiners to make such recommendations. The new law removes the certification prerequisite for doctors to recommend medical marijuana to their patients. Going forward, any doctor “licensed by and in good standing with the Louisiana Board of Medical Examiners” to practice medicine in Louisiana may recommend medical marijuana to his or her patients for the treatment of medical conditions.

Another substantial change brought about by the new law is the list of medical conditions that Louisiana doctors may legally treat with marijuana. The current law provides that medical marijuana is legally available for a finite list of 16 medical conditions: cancer, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), cachexia or wasting syndrome, seizure disorders, epilepsy, spasticity, Crohn’s disease, muscular dystrophy, multiple sclerosis, glaucoma, Parkinson’s disease, severe muscle spasms, intractable pain, post-traumatic stress disorder, and some conditions associated with autism spectrum disorder.

Once the changes take effect on August 1, 2020, the list of medical conditions legally treatable with marijuana will no longer be so finite. In addition to the 16 conditions doctors may currently treat with marijuana, the law will address “neurodegenerative diseases and conditions” including the following diseases and conditions that will qualify for treatment with marijuana: Alzheimer’s disease, amyotrophic lateral sclerosis ALS, Huntington’s disease, Lewy body dementia (LBD), motor neuron disease, Parkinson’s disease, and spinal muscular atrophy. The law will also incorporate four specified medical conditions that Louisiana doctors may also legally treat with marijuana: “traumatic brain injury,” concussions, “chronic pain associated with fibromyalgia,” and “chronic pain associated with sickle cell disease.”

Finally, the law sets forth two unspecified, general medical conditions that qualify for treatment with marijuana. Licensed doctors in Louisiana may recommend marijuana to their patients for the treatment of “any condition for which a patient is receiving hospice care or palliative care.” Louisiana doctors may also, in their discretion and medical opinion, recommend medical marijuana to patients for the treatment of “[a]ny condition.” While it is unclear what impact the current medical marijuana law has had on Louisiana workplaces, any impact is sure to broaden now that any medical doctor may treat “any condition” with marijuana.

Key Takeaways

Louisiana employers may want to take proactive steps to manage the reality of medical marijuana at work. Some of those steps include:

  • amending policies and job descriptions to prohibit drug addiction;
  • amending policies and job descriptions to prohibit impairment at work;
  • training supervisors to be alert to behaviors associated with marijuana intoxication; and
  • reviewing interview and onboarding materials for compliance with standards regarding medical inquiries.

 

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.

FMCSA Offers Flexible Solutions for Drug and Alcohol Testing During COVID-19 Outbreak

Posted on by justin

The COVID-19 pandemic is interrupting, and in many cases, preventing compliance with the Department of Transportation’s (DOT) drug and alcohol testing regulations. On March 23, 2020, DOT published guidance on compliance with DOT drug and alcohol regulations that clarified some existing legal requirements but offered little in the way of practical solutions. On March 25, 2020, however, the Federal Motor Carrier Safety Administration (FMCSA) published clear, flexible guidance specific to FMCSA’s testing requirements to aid FMCSA-regulated employers unable to comply with FMCSA’s testing requirements due to COVID-19.

If the COVID-19 national emergency delays or prevents compliance with the requirements described below, FMCSA offers the following guidance and recommendations:

  • Random testing. Normally, employers must ensure that the dates for administering random alcohol and controlled substances tests are spread throughout the year, and DOT guidance recommends that testing take place quarterly. But if disruptions caused by COVID-19 national emergency prevent random selections and tests sufficient to meet the random-testing rate for a given testing period in order to achieve the required 50 percent rate for drug testing and 10 percent for alcohol testing, employers can make up the tests by the end of the year. Employers “should document in writing” the reasons the tests were not completed and “any actions taken to locate … alternative collection site[s] or other testing resources.”
  • Pre-employment testing. Employers must conduct pre-employment controlled substances tests and receive negative results before permitting prospective employees to perform DOT safety sensitive functions.
  • Post-accident testing. Employers must test drivers for alcohol and controlled substances “as soon as practicable following an accident.” However, if an alcohol test cannot be administered within 8 hours following the accident, or a controlled substance test within 32 hours following the accident, “[employers] must document in writing the specific reasons why the test could not be conducted.”
  • Reasonable suspicion testing. Employers “should document in writing the specific reasons why the test could not be conducted as required” and provide details of efforts made to conduct the test, such as attempts to locate alternative collection sites. This documentation is required “in addition to the documentation of the observations leading to a test.”
  • Return-to-duty (RTD) testing. An employer must not allow a driver to perform any safety-sensitive functions until an RTD test has been conducted and a negative test result has been received.
  • Follow-up testing. If follow-up testing cannot be completed, the employer should document in writing the specific reasons why the testing could not be conducted in compliance with the follow-up testing plan and any efforts made to comply, such as trying to locate an alternate collection site. Employers should conduct the test as soon as possible thereafter.

It bears repeating that the FMCSA guidance applies only when COVID-19 has interfered with testing—these are not blanket exceptions to FMCSA’s drug and alcohol testing requirements. This guidance will remain in effect until June 30, 2020.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar 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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