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

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.

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

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.

DOJ Emphasizes Need for Individualized Assessments in Finding Indiana Nursing Board Violated ADA

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.

 

PTC Launches New eTEST Scheduler

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

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

Scheduling an eTEST is done in just four steps:

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

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

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

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

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

What Is CBD Oil and Why Should Employers Care to Know?

Cannabidiol (CBD) is a nonintoxicating compound found in both marijuana and hemp that can be extracted and combined with oil for ingestion or inhalation through the use of a vaporizer. In recent months, retailers in many states have been marketing and selling CBD oil derived from hemp as a natural remedy for pain, anxiety, insomnia, and a multitude of other ailments. And business has been booming—sales of hemp-derived CBD products totaled approximately $600 million in 2018, and that number is expected to grow rapidly over the next several years. Due to the red tape created by the Controlled Substances Act, CBD has not been thoroughly studied, and additional research will be needed to fully understand CBD’s standalone effects and health ramifications. However, the World Health Organization and the U.S. Food and Drug Administration (FDA) have found that CBD is effective in treating certain forms of epileptic seizures.

Recent federal legislation removed hemp and hemp-derived products, including hemp-derived CBD, from Schedule I of the Controlled Substances Act, which drastically increased their marketability. Since the use and production of CBD oil and related products derived from hemp are now lawful under federal law and in most states, employers may want to learn the basics about CBD and what it means for their workforces.

How Is CBD Related to Cannabis, Marijuana, or THC?

“Cannabis” refers to the species of plant from which the drug marijuana is derived. Cannabis contains a psychoactive ingredient called tetrahydrocannabinol (THC), which produces a “high” in marijuana users.

There are multiple strains of cannabis, however, and some contain much lower levels of THC, such that the plant has little to no psychoactive effect. One such variety is hemp, which is defined as a form of the cannabis plant containing a THC concentration of not more than 0.3 percent. Both hemp and marijuana contain the chemical compound CBD.

When CBD oil is derived from hemp, and thus contains less than 0.3 percent THC, it does not have any known impairing effects that employers would need to be concerned about in the workplace. Moreover, CBD oil derived from hemp generally will not cause a positive result in employment-related drug testing, since most drug tests look for evidence that an employee has ingested THC rather than CBD.

Congress Approves Use of Hemp Products and CBD in the 2018 Farm Bill

In December 2018, the U.S. government passed the 2018 Farm Bill, also known as the Agriculture Improvement Act of 2018 (AIA), which legalized industrial hemp at the federal level. The AIA removed hemp from Schedule I of the Controlled Substances Act and reclassified it as an agricultural commodity. Thus, following the AIA’s passage, hemp-derived products, including hemp-derived CBD, are legal at the federal level. Importantly, however, the AIA does not preempt state and tribal laws that regulate hemp in a more restrictive manner.

Did the AIA Decriminalize Marijuana?

Must an Employer Accommodate Recreational Marijuana Use?

The AIA only permits the cultivation and production of the hemp plant, including CBD oil derived from hemp. The Controlled Substances Act continues to classify marijuana and CBD products derived from marijuana as illegal Schedule I substances.

Whether CBD oil derived from marijuana is legal at the state level varies greatly from jurisdiction to jurisdiction. Currently, 33 states, as well as the District of Columbia, have legalized the personal use of marijuana for medicinal purposes, and 10 states plus the District of Columbia allow marijuana to be used for recreational purposes.

Despite the recent proliferation of legislation surrounding marijuana, no jurisdiction to date has required an employer to accommodate recreational marijuana use. Employers are generally permitted to adopt drug-free workplace policies and make employment decisions relating to recreational marijuana use by an employee. Employers are also allowed to refuse to hire prospective employees for failed drug tests stemming from the purely recreational use of marijuana.

Must an Employer Accommodate CBD Products Being Used for Medicinal Purposes?

Whether an employer must accommodate the use of CBD oil for medicinal purposes will vary by jurisdiction and will depend greatly on whether the CBD oil is derived from hemp or marijuana.  Where the CBD oil is derived from hemp and is being used for medicinal purposes, employers will generally accommodate its use, unless they are within a jurisdiction that has taken a more restrictive approach to hemp-derived CBD than the federal government.

With respect to marijuana-derived CBD oil containing more than 0.3 percent THC, employers in states without a medical marijuana statute need not allow its use by employees. Where medical marijuana is legal at the state level, however, a state-specific analysis is required, as some, but not all, of these states provide protections for employees who use medical marijuana. That being said, states generally do not require an employer to allow the use of marijuana on its premises, nor must an employer tolerate an employee being under the influence while performing his or her duties.

The varying nature of CBD products may also present some obstacles for employers. The majority of CBD products are not regulated by the FDA and run the risk of containing more than the federally permissible amount of THC, even if sold in a state that does not permit the sale of marijuana products. Thus, there is a possibility that an employee could use what he or she believes to be a legally permissible, hemp-derived CBD product, but the unregulated product could trigger a positive test result for THC. In those types of situations, an employer may not definitively know whether the positive result was triggered by CBD oil or marijuana use.

Takeaways for Employers

The growing use of medical and recreational marijuana in a number of states has caused some employers that are not required by federal or state laws or regulations to test for drugs to either halt their drug testing programs or, in some instances, remove marijuana from the tests. Not all employers either can or desire to take that approach, particularly if the employees operate large or expensive power equipment in the manufacturing or transportation sectors. Due to the ever-evolving landscape and multiple layers of complexity in this area, employers may want to carefully examine the medical marijuana laws in their jurisdictions before taking action against an applicant or employee who claims to use marijuana or CBD oil for medicinal purposes.


 
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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