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Author: Yelmy Gray

Author: Yelmy Gray

Medical Marijuana Usage Is Not Protected Under the ADA, Vermont Federal Court Rules

Posted on by Yelmy Gray

On February 14, 2024, a judge of the U.S. District Court for the District of Vermont dismissed a plaintiff’s Americans with Disabilities Act (ADA) discrimination and failure-to-accommodate case, holding that his medical marijuana usage was not protected under the ADA (Skoric v. Marble Valley Regional Transit District).

Quick Hits

  • A federal district judge in Vermont ruled that the ADA does not protect medical marijuana usage.
  • Under the federal Controlled Substances Act, marijuana has “no currently accepted medical use” and therefore does not fall under the supervised use exception of the ADA.

Marble Valley Regional Transit District terminated Ivo Skoric’s employment after he failed a random drug test. According to his lawsuit, Skoric has a medical marijuana prescription to treat chronic pain and depression. Following his dismissal, Skoric sought unemployment benefits from the Vermont Department of Labor, which were denied.

Skoric filed his lawsuit pro se, alleging claims under the ADA for discrimination and failure to accommodate against Marble Valley, as well as seeking the denied unemployment benefits from the Vermont DOL. The unemployment claim was dismissed by the court for lack of subject matter jurisdiction.

In regards to the ADA claims, Marble Valley argued in its motion to dismiss that Skoric could not state a claim for either disability discrimination or failure to accommodate because he alleged that he was discharged for testing positive for marijuana on a random drug test, not because of his underlying disabilities. Marble Valley also argued that Skoric was not a qualified individual with a disability under the ADA because marijuana is an illegal drug under the federal Controlled Substances Act.

The ADA establishes that “a qualified individual with a disability shall not include any employee … who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” Marble Valley argued that Skoric’s marijuana usage falls under this provision, because it is a Schedule I illegal substance under the Controlled Substances Act. Skoric, on the other hand, relied on a different provision of the ADA, which allows for use of illegal drugs “taken under supervision by a licensed health care professional.” Because he has a medical marijuana card, Skoric argued that he was using marijuana under the supervision of a doctor and thus protected by the ADA.

The court did not agree. In reaching its holding, the court cited other district court opinions, as well as a Ninth Circuit Court of Appeals decision, which concluded that medical marijuana use does not fall within the supervised-use exception of the ADA, and therefore outside the protections of the ADA. Citing United States v. Oakland Cannabis Buyers’ Co-op, the court further reasoned that because marijuana has “no currently accepted medical use” under the Controlled Substances Act, a medical marijuana patient is not a “‘qualified individual with a disability’” under the supervised-use exception of the ADA.

Next Steps

The opinion may seem like a knockout punch for employers doing business in Vermont that want to drug test their employees and take adverse action as a result of a negative drug test. However, employers may want to note that Vermont Statute Title 21, Chapter 5, Section 513, flatly prohibits random drug testing. The statute also requires that employers put employees through an employee assistance program (or comparable rehabilitation program) prior to termination of employment.

Employers may also want to note that this was a federal ADA case and, in turn, the “federally illegal” status of marijuana was likely a more pertinent consideration for the district court. State courts, especially in states like Vermont that have employee-friendly marijuana laws, may come out the other way when interpreting their own state anti–disability discrimination laws. In addition, numerous state courts across the country have recognized disability claims under state disability laws, and, at least in a smaller handful of states, the federal ADA. However, disability claims are always very fact-specific in nature.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments with respect to state drug testing laws and will publish updates on the Drug Testing and State Developments blogs as additional information becomes available.

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

Ohio Becomes 24th State to Legalize Recreational Use of Marijuana: 7 Key Considerations for Employers

Posted on by Yelmy Gray

On November 7, 2023, Ohio voters made Ohio the twenty-fourth state in the United States to legalize the recreational possession and use of marijuana. Ohio Revised Code (R.C.) Section 3780, which is subject to amendment by the Ohio General Assembly, will go into effect on December 7, 2023, but it will take months to establish regulations that more clearly define the law’s requirements.

Quick Hits

  • On November 7, 2023, Ohio became the twenty-fourth state in the United States to legalize the recreational possession and use of marijuana.
  • Effective December 7, 2023, individuals aged twenty-one and older will be able to possess and use marijuana in Ohio, though the contours of the law will be further defined by Ohio’s legislative and regulatory processes.
  • The law does not yet contain anti-discrimination or employment protection provisions related to adult marijuana use.

For employers, Ohio’s law does not contain an anti-discrimination or employment protection provision for marijuana, as some states’ marijuana laws do. In those states, employers may not discriminate or otherwise take adverse employment action against employees based solely on medical marijuana cardholder status or recreational marijuana use. Likewise, the statute does not currently provide any provisions to reduce employment barriers for past users of marijuana, such as requiring past convictions to be sealed, expunged, or otherwise not considered in the hiring process.

Strategically, Ohio employers should remain diligent in keeping marijuana issues within the lens of recreational use, rather than inadvertently obtaining knowledge of medical cardholder status, which could trigger disability considerations. By way of example, if an individual tests positive for marijuana and does not disclose medical cardholder status, employers may want to refrain from asking if the person is a cardholder. Stated more plainly, employers have greater flexibility in managing personnel issues with recreational users in Ohio than with medical cardholders.

Following are seven key considerations for employers as they evaluate their Ohio policies and practices in light of the new legislation:

  1. Employers may set their own rules regarding marijuana use, including maintaining zero-tolerance policies, without violating R.C. 3780.
  2. Employers may continue to discipline, refuse to hire, or discharge employees for marijuana use or for being under the influence of marijuana at work. Although the law does not require it, employers may wish to make the expectations clear in a written policy. However, employers may want to note that a drug test does not measure impairment.
  3. Employers may continue to prohibit marijuana use as part of their drug-free workplace programs and may continue to test applicants and current employees for marijuana use. However, employers will likely want to continue to evaluate positive marijuana tests carefully to determine the legal risk profile in each individual scenario. For more information regarding the federal Occupational Safety and Health Administration’s (OSHA) position regarding post-accident drug testing specifically, please see “Majority of States Have Legalized Marijuana, but OSHA’s Post-Incident Drug-Testing Guidance Hasn’t Changed.”
  4. An employer’s decision to terminate the employment of an employee for marijuana use under a workplace policy is considered “just cause” for purposes of unemployment compensation.
  5. Drug tests cannot yet accurately determine whether someone is under the influence of marijuana and have varying lookback windows of detection depending on the drug test specimen. Accordingly, decisions about whether an individual is under the influence at work require a combination of drug testing and trained observance in order to create a factual narrative and inference of impairment. Employers may want to make sure that supervisors are adequately trained in reasonable suspicion observations.
  6. Nothing in the law alters the U.S. Department of Transportation’s or the Federal Aviation Administration’s drug-free workplace requirements.
  7. Nothing in the law affects grant rebates or discounts for employers that participate in a drug-free workplace program for workers’ compensation.

Although Ohio is the most recent state to legalize the recreational use of marijuana (see Ogletree Deakins’ map below), the trend across the United States indicates a growing consensus for such legalization. As more states move to legalize marijuana, employers are faced with complex and wide-ranging workplace issues created by the growing patchwork of federal, state, and local laws. While some employers may view marijuana legalization as simply a drug-testing issue, laws governing marijuana cover a wide variety of topics, including statutory and regulatory compliance, disability discrimination, workplace safety and health, government contractor status, workers’ compensation, employee privacy, and public policy concerns.

Recreational Marijuana Map

Ogletree Deakins’ Drug Testing and Workplace Safety and Health practice groups will continue to monitor developments with respect to these and related policy topics and will provide updates on the Drug Testing and Workplace Safety and Health blogs as additional information becomes available. Further information on federal, state, and major marijuana laws is also available via the firm’s Client Portal.

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.

Stocking Naloxone in the Workplace: What Employers Need to Consider

Posted on by Yelmy Gray

It is well known that opioid overdoses have occurred at epidemic levels in the United States for years. According to the U.S. Centers for Disease Control and Prevention (CDC), opioid overdose deaths have increased from 21,089 in 2010, to 47,600 in 2017, to more than 80,000 in 2021 and 2022.

As the number of deaths has increased, so has the number of employees overdosing in the workplace. Employers are justifiably alarmed and want to do all they can to save lives. This may include stocking nonprescription naloxone nasal sprays in the workplace.

Quick Hits

  • The FDA’s recent approval of nonprescription over-the-counter naloxone nasal sprays makes the life-saving drugs more accessible to employers that want to have them on hand in case a worker overdoses in the workplace.
  • Both the CDC and the National Safety Council encourage employers to set up protocols for stocking and administering naloxone in the workplace.
  • OSHA does not yet have a standard for providing naloxone in the workplace, but NIOSH provides resources for employers considering whether to implement a naloxone availability and use program.

Naloxone is a medication used to rapidly reverse the effects of opioid overdose. Narcan and RiVive are two of the available nonprescription nasal spray versions of naloxone. On March 29, 2023, the U.S. Food and Drug Administration (FDA) approved Narcan for over-the-counter, nonprescription use, thereby making this life-saving medication much more accessible to employers. The FDA gave RiVive and a generic version the same approval in July 2023. Both the CDC and the National Safety Council (NSC) encourage workplaces to set up naloxone protocols.

As the adage says, with opportunity comes responsibility, and employers are understandably concerned about training, workplace safety considerations, and potential legal ramifications with regard to stocking and administering naloxone in the workplace.

Workplace Safety Implications

The Occupational Safety and Health Administration (OSHA) has not yet set a standard that deals with drug overdoses. However, the National Institute for Occupational Safety and Health (NIOSH) issued resources in 2018 for employers considering whether they should implement a naloxone availability and use program. More recently, Todd VanHouten, chair of the committee that oversees OSHA’s first aid kit standard, 29 C.F.R. § 1910.151(b), was quoted as saying that he expected naloxone to be included on the committee’s 2023 agenda.

OSHA has issued various interpretation letters and standards regarding post-incident drug testing, as it relates to 29 C.F.R. § 1904.35(b)(1)(iv). However, OSHA has not explicitly tackled what happens when on-site drug use turns into an on-site overdose. This means that for now, employers must simply rely on OSHA’s current guidance related to safety training, bloodborne pathogen training, personal protective equipment (PPE), and recordkeeping.

Training

As with other tools kept on-site, employers choosing to stock naloxone will want to make sure that those who may be administering one of the drugs are appropriately trained. While the drugs are not required to be administered by licensed healthcare professionals, employers may want to carefully consider whether training should apply to all employees or a smaller population. Training for the administration of the drugs is widely available—and typically free—through local health departments and social service agencies.

In addition to determining who should attend any naloxone-specific training, employers may want to consider what training components might be necessary. First, employers may want to include bloodborne pathogen training. 29 C.F.R. § 19010.1030 requires employers to protect workers from occupational exposure to human blood or other potentially infectious materials, which can occur in overdose instances where blood or needles might be present. This means that while OSHA cannot specifically issue citations on how employers would train on the use of naloxone, there could, under certain circumstances, be grounds for a citation related to a violation of 29 C.F.R. § 19010.1030.

PPE

Employers may also want to determine whether stocking naloxone may require additional PPE training. Those administering naloxone would likely need to know how to properly use PPE, such as gloves and face protection. Employers with PPE programs in place might consider revising their programs to include such PPE use in specific cases involving naloxone nasal sprays.

Recordkeeping

With regard to recordkeeping practices, the mere administration of a naloxone nasal spray to an employee does not automatically make a workplace injury or illness recordable under 29 C.F.R. § 1904. Nonprescription naloxone nasal sprays would therefore not be considered medical treatment beyond first aid as defined by 29 C.F.R. § 1904.7(b)(5).

Implications Related to Good Samaritan and Naloxone Access Laws

Any employer considering stocking nonprescription naloxone nasal sprays in the workplace will likely question the legal ramifications related to their administration, particularly in the event the drug is given to someone who is not in fact overdosing on opioids. While the laws are far from uniform, notably, all fifty states and the District of Columbia recognize either a Good Samaritan law, a naloxone access law (which protects individuals who administer naloxone), or both. Many jurisdictions, such as Colorado, expressly protect employers from liability related to emergency aid provided by employees in good faith. Also, importantly, the naloxone nasal sprays will not harm someone who is given the drug but is not in fact suffering an opioid overdose—the only impact is to reverse an opioid overdose, and it will have no effect on someone who is not overdosing on opioids.

Key Takeaways

For now, with regard to stocking nonprescription naloxone nasal spray in the workplace, employers may want to note the following:

  • The FDA has approved three naloxone nasal sprays for use without a prescription.
  • The CDC and NSC both strongly recommend that employers set up naloxone protocols.
  • Currently, there are no specific OSHA standards addressing opioid overdose and naloxone administration.
  • All fifty states and the District of Columbia have Good Samaritan and/or naloxone access laws that generally shield employers from liability with regard to naloxone administration.
  • The FDA-approved nonprescription naloxone nasal sprays will not harm someone who is given the drug but is not suffering an opioid overdose.

Ogletree Deakins’ Drug Testing Practice Group and Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Drug Testing and Workplace Safety and Health blogs as additional information becomes available.

 

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

California Expands Marijuana Employment Antidiscrimination Law

Posted on by Yelmy Gray

On October 7, 2023, California Governor Gavin Newsom signed Senate Bill (SB) No. 700 into law, expanding California’s Fair Employment and Housing Act to protect applicants from discrimination based on prior cannabis use, with certain exceptions. The amendment takes effect on January 1, 2024.

Quick Hits

  • SB 700 amends California’s Fair Employment and Housing Act to prohibit employers from requesting information from job applicants relating to their prior use of cannabis.
  • The FEHA amendments take effect on January 1, 2024.

SB 700

The California Fair Employment and Housing Act (FEHA) prohibits various forms of workplace discrimination. Last year, Assembly Bill (AB) No. 2188 amended FEHA, effective January 1, 2024, to prohibit employers from engaging in any adverse employment action against employees for off-duty marijuana use.

SB 700 expands that protection by prohibiting employers from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis. SB 700 also prohibits employers from using information obtained from a criminal history about an applicant or employee’s prior cannabis use, unless the employer is permitted to consider or inquire about that information under the state’s Fair Chance Act, or other state or federal law.

Preparing for SB 700

Employers may wish to prepare for SB 700’s effective date by reviewing and revising their antidiscrimination policies and drug use policies to comport with the new protections concerning prior cannabis use.

Ogletree Deakins will continue to monitor developments and will publish updates on the California and Drug Testing blogs as additional information becomes available.

 

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

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