DOT Drug Testing Compliance

Category: Drug Testing

Category: Drug Testing

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

Posted on by justin

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

Quick Hits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on by justin

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

Quick Hits

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

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

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

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

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

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

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

Key Takeaways

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

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

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

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

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

California Passes Bill Protecting Employees’ Off-Duty Marijuana Use

Posted on by justin

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

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

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

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

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

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

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

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

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

Key Takeaways

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

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

 

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

 

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

Posted on by justin

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

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

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

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

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

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

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

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

Key Takeaways

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

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

 

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

Posted on by justin

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

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

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

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

State Laws

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

Drug Testing

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

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

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

Conclusion

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

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

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

 

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

 

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

Posted on by justin

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

Background

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

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

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

The District Court’s Decision

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

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

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

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

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

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

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

Key Takeaways

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

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

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

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

 

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

 

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.

 

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