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Category: State Laws

Category: State Laws

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.

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.

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

Posted on by justin

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

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

Quick Hits

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

Impairment Is Still Prohibited

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

Medical Marijuana Cards Are Not Prescriptions

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

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

Training Employees to Spot Impairment Is Key

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

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

Next Steps

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

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

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

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

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.
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