Tag: Controlled Substance Legalization

Tag: Controlled Substance Legalization

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.

Maryland and Missouri Pass Recreational Marijuana, Missouri Adds Medical Marijuana Cardholder Employment Protections

Posted on by justin

On November 8, 2022, voters in Maryland and Missouri overwhelmingly approved ballot measures to legalize recreational marijuana, becoming the 20th and 21st states to do so. And, as part of the ballot initiative in Missouri, the existing medical marijuana law was amended to include express employment protections for medical marijuana cardholders. At the same time, voters in three other states—Arkansas, North Dakota, and South Dakota—rejected similar ballot measures.


Marijuana and Psychedelic Mushrooms State Laws

Maryland Question 4

Voters in Maryland overwhelmingly approved Question 4 with nearly 66 percent of the vote to amend the state constitution to allow for recreational marijuana use by those 21 years of age or older.

Accompanying legislation passed by the state legislature, House Bill (HB) 837, will go into effect due to the voter approval of the referendum. HB 837 specifically allows the possession and personal use of up to 1.5 ounces of marijuana or 12 grams of concentrated marijuana beginning on July 1, 2023. The bill further extends decriminalization of marijuana until that date and would provide for the expungement of criminal offenses made legal by the act. However, the bill would prohibit the smoking of marijuana in places where smoking of tobacco products is prohibited, including indoor places of employment.

Impact on Employer

Beyond generally legalizing marijuana for recreational purposes, HB 837 does little to address employer rights to prohibit employees from using recreational marijuana. As such, Maryland employers may still be able to enforce workplace drug policies and testing programs even if the referendum passes. However, employers in Maryland should remain mindful of potential disability discrimination and accommodation considerations when handling employment issues involving medical marijuana cardholders.

Missouri Amendment 3

Voters in Missouri passed Amendment 3 with 53 percent voting in favor and 47 percent voting against, according to the Missouri Secretary of State. The measure revises and amends the state’s existing medical marijuana provisions, as well as permits those twenty-one years old and older to legally possess, purchase, consume, and cultivate marijuana for recreational purposes. However, most importantly, the measure amends the state’s medical marijuana provisions. It is set to take effect on December 8, 2022.

Beyond legalizing marijuana for nonmedical purposes, the measure provides employment protections for medical marijuana users. Specifically, Missouri’s medical marijuana law will soon prohibit employers from discriminating against an employee because he or she: (1) possesses a medical marijuana identification card; (2) lawfully uses marijuana off the employer’s premises during nonworking hours; or (3) tests positive for marijuana unless the employee was using, possessing, or under the influence of marijuana while at work.

Impact on Employers

Amendment 3 does not prevent employers from generally enforcing drug and alcohol-free workplace policies or from testing for marijuana. Moreover, it does not permit employees to be under the influence of marijuana at work, and it does not provide employment protections for recreational marijuana users. Nevertheless, the amendment is relevant to employers because of the changes it makes to Missouri’s existing medical marijuana law. The added employment protections for medical marijuana cardholders will create new challenges for Missouri employers in dealing with workplace marijuana issues—the possibility of legal claims arising directly from the medical marijuana law itself.

Key Takeaways

The legalization of marijuana for recreational personal use continues to slowly spread across the United States though the recent elections shows that the population in certain areas of the country remain hesitant to legalize marijuana. Broader legalization could create additional challenges for employers in seeking to maintain drug-free workplaces. Employers in Maryland and Missouri may want to review their drug use policies in light of the new recreational marijuana legalization measures.

Ogletree Deakins will continue to monitor developments with respect to marijuana legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. In addition, further information on federal, state, and major marijuana laws and guidance on compliance with the same is available via the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes. 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.

Colorado Voters Pass Proposition to Allow Regulated Use of Psychedelic Mushrooms

Posted on by justin

On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older. The passage makes Colorado, which was one of the first states to legalize recreational marijuana, the second state to allow the use of psychedelics behind Oregon.

Proposition 122, or the “Natural Medicine Health Act of 2022,” passed with 53 percent of Colorado voters supporting the initiative to 47 percent who voted against, according to the unofficial results released by Colorado’s secretary of state.

The measure will decriminalize psychedelic mushrooms and by 2024 will allow the supervised use of two of the drugs found in the mushrooms, psilocybin and psilocin, at state-regulated “healing centers.” The initiative further establishes the “Natural Medicine Advisory Board” to explore and evaluate ongoing research into psychedelic drugs and their potential health benefits and make recommendations to the legislature and other state entities.

The initiative comes amid growing scientific research on the potential medical benefits of psychedelic drugs in treating mental health conditions, particularly depression, anxiety, and post-traumatic stress disorder (PTSD).

Impact for Employers

The passage of Proposition 122 could increase employers concerns with employees working under the influence of these drugs. Thus, the proposition may be an impetus for employers to review and revise their drug testing and drug-free workplace policies. The Natural Medicine Health Act states that it should not be construed “to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, or growing of natural medicines in the workplace.” This may allow employers to continue to enforce zero-tolerance policies regarding the use of psychedelics. For comparison, Colorado law does not require employers to accommodate the use of marijuana in the workplace and the Colorado Supreme Court has held that employees are not protected from discharge by the state’s employment law protections for lawful, off-duty conduct due to marijuana’s continued illegal status under federal law.

Ogletree Deakins will continue to monitor developments with respect to drug legalization initiatives and will post updates on the Drug Testing and State Developments blogs as additional information becomes available. 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 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.

 

New Measures in Oregon Decriminalize Certain Narcotics and Legalize Psilocybin Therapy

Posted on by justin

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

Measure 110

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

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

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

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

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

Measure 109

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

Impact on Employers of Individuals With Professional and Occupational Licenses

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

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

Impact on Employer Hiring and Drug Testing Practices

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

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

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

Impact on Employer Disability Accommodation Processes

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

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

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

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