Employer Policies on Medical Marijuana Use: Navigating Conflicting Federal and State Laws Avoiding ADA Liability, Applying Workers' Comp Laws, and Amending Drug Policies Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. WEDNESDAY, FEBRUARY 11, 2015 Presenting a live 90-minute webinar with interactive Q&A Lawrence P. Postol, Partner, Seyfarth Shaw, Washington, D.C. David L. Zwisler, Of Counsel, Ogletree Deakins, Denver
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Employer Policies on Medical Marijuana Use: Navigating Conflicting Federal and State Laws Avoiding ADA Liability, Applying Workers' Comp Laws, and Amending Drug Policies
Mr. Postol is a partner in the Washington, DC office of Seyfarth
Shaw, LLP which has offices in Atlanta, Boston, Chicago,
Houston, Los Angeles, New York, Sacramento, San Francisco,
Washington, DC, London, Shanghai, and Australia. Mr. Postol
represents management in employment and labor law matters.
Mr. Postol graduated with distinction from Cornell University in
1973 with a degree in engineering physics, and he graduated
from Cornell Law School in 1976, cum laude, where he was
also an editor of the Cornell Law Review. He is admitted to
practice in the District of Columbia, Virginia and Maryland
federal courts.
Mr. Postol has successfully argued two cases before the United
States Supreme Court and over three dozen cases before the
United States Courts of Appeals.
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Drug and Alcohol Testing
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Why Should a Company Test Its Applicants
And Employees for Drugs and Alcohol?
• To comply with federal laws and regulations
• To take advantage of state laws that provide: • a workers’ compensation premium reduction to an employer that
complies with its provisions
• protection from liability in connection with an employer’s administration
of its policy
• To provide a safe and productive work environment for its employees, and to protect its customers and other members of the public from hazards that may arise as its employees work on the company’s premises, in the field, or on premises other than those owned by the company
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Why Should a Company Test Its Applicants
And Employees for Drugs and Alcohol?
• Testing After Workplace Accident, Since Drug Use Maybe a Defense To A Workers’ Compensation Claim, and The Knowledge of Drug Testing After Accidents Can Have a Positive Effect
• Notify applicants during the application process that the company has a policy and inform them of any testing
• If it is adopting a policy for the first time, or modifying an existing policy, tell all employees about the adoption or modification of the policy in advance (preferably at least 30 days)
• Distribute copies of its policy to all employees and have them acknowledge their receipt of the policy
• Employers should be aware of the various state and local laws governing drug and alcohol testing of employees in order to avoid invasion of privacy, wrongful termination, and other constitutional, common law, and statutory claims
• Although drug and alcohol testing is unregulated in many states and in the District of Columbia, several states and two cities have restricted, either by statute/ordinance or judicial decision, the types of drug and alcohol testing that employers may lawfully conduct and/or the collection and testing procedures that an employer and its service providers must follow in conducting such testing
Types of Drug and Alcohol Testing 1. Pre-employment testing
— Generally, pre-employment drug testing of applicants is lawful. In those states in which such testing is regulated, it is typically limited to those applicants who have been made conditional offers of employment.
― Employers who have reasonable suspicion, based on specific, contemporaneous objective and articulable facts concerning an employee’s appearance, behavior, speech or body odors, that an employee is using alcohol and/or drugs or is under the influence of alcohol and/or drugs, may require the employee to submit to drug and/or alcohol testing with little or no risk in most jurisdictions if they have given their employees advance notice of such requirement
― Several jurisdictions, including Connecticut, Boulder, Iowa, Maine, Minnesota, Montana, Oklahoma, Rhode Island, San Francisco, and Vermont, have statutes or ordinances that define reasonable suspicion, “cause,” or “ probable cause,” and in some instances place additional minor restrictions on such testing.
― An employer may generally subject employees to post- accident testing
― Some jurisdictions, however, such as Boulder, Connecticut, Maine, Rhode Island, San Francisco, and Vermont, forbid such testing unless the employer also has reasonable suspicion to believe that the employee was under the influence of drugs and/or alcohol at the time of the accident
― Random testing (periodic, suspicionless testing in which employees are selected without advance notice) is the most heavily regulated and scrutinized type of testing
― That said, employees can be subject to random drug and/or alcohol testing by their employers in many states, including in states that have drug and alcohol testing statutes
― In several states, including California, Massachusetts, New Jersey, and West Virginia, the courts balance an employer’s competing or legitimate interests against employees’ privacy rights in determining whether random drug testing is permissible, and have held that random testing should be limited to employees in safety- or security-sensitive positions
― Random testing is regulated by statute, but permitted, in Connecticut, Maine, Minnesota, Montana, and Oklahoma, although the restrictions in the Maine statute cause many employers to refrain from conducting random tests
― Random testing is prohibited in Boulder, Rhode Island, and San Francisco, and is prohibited in Vermont unless the testing is required by federal law or regulation
• State law: 16 states and the District of Columbia have enacted laws that decriminalize or authorize, to varying degrees, the use of marijuana for medicinal and in some states recreational purposes
• Marijuana Use Still Violates Federal Criminal Law.
(2) (c)(ii) [A physician may] provide a patient with written
documentation. . . stating that the patient has a debilitating
medical condition and might benefit from the medical use of
marijuana.
(5)(a) No patient shall:
(i) Engage in the medical use of marijuana in a way that
endangers the health or well-being of any person; or
(ii) Engage in the medical use of marijuana in plain view
of, or in a place open to, the general public.
(10)(b) Nothing in this section shall require any employer to
accommodate the medical use of marijuana in any work
place.
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DOT “Medical” Marijuana Notice – October 2009
“We want to make it perfectly clear that the DOJ
guidelines will have no bearing on the Department of
Transportation’s regulated drug testing program. We
will not change our regulated drug testing program
based upon these guidelines to Federal prosecutors.”
Drug Free Workplace Act
Federal contractors and recipients of federal grants
must prohibit the use of marijuana as a condition of
participation.
Federal Agencies
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Realities of the testing process
“Typical” testing process
Confirm chain of custody
Confirm sample has not been altered,
adulterated, diluted, tampered with or
damaged
Immunoassay test (50 ng/ml)
Confirmatory gas chromatography/mass
spectrometry (GC/MS) (15 ng/ml)
Review by Medical Review Officer
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Realities of the testing process
SAMSHA Medical Review Officer
Donor claims the results are from taking a prescription:
Marinol – “There are no other prescription or over-the-counter
medications that contain cannabinoids or any other substances that
might be identified as or metabolized to THC or its acid metabolite.”
Passive inhalation:
“Passive inhalation of marijuana smoke does occur and can result
in detectable levels of THC and its metabolites in urine. Clinical
studies have shown, however, that it is highly unlikely that a
nonsmoking individual could unknowingly inhale sufficient smoke by
passive inhalation to result in a high enough drug concentration in
urine for detection at the cutoff levels used in the Federal program.”
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State law issues The use/possession of marijuana is still illegal under
federal law.
No state (except Arizona) has taken any specific
position requiring employers to accommodate the
use of medical marijuana in the workplace. Workers Compensation (state specific)
Some states, such as Colorado, create a presumption of
being under the influence at work if an employee fails a test.
Some states, such as Connecticut, prohibit the
presumption.
Unemployment (state specific)
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Case Law
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Some cases
Gonzales v. Raich
Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 978
(Colo. App. 2011). Medical marijuana use was not “lawful
activity” under Colorado law. Amendment did not
establish state constitutional right to state-licensed
medical marijuana use, but rather created an affirmative
defense from prosecution.)
Ross v. RagingWire Telecommunications, Inc., 174 P.3d
200, 204 (Cal. 2008). “No state law could completely
legalize marijuana for medical purposes because the drug
remains illegal under federal law, even for medical users.”
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Some cases Coates v. Dish Network, LLC., 303 P.3d 147 (Colo.App.
2013).
“Thus, because plaintiff’s state-licensed medical marijuana use was,
at the time of his termination, subject to and prohibited by federal
law, we conclude that it was not “lawful activity” for the purposes of
section 24-34-402.5.”
Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir.
2012)
“The district court concluded, therefore, that private employees are
not protected from disciplinary action as a result of their use of
medical marijuana, nor are private employers required to
accommodate the use of medical marijuana in the workplace.”
Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562
(Mont. 2009)
“The [Medical Marijuana Act] MMA specifically provides that it
cannot be construed to require employers ‘to accommodate the
medical use of marijuana in any workplace.’”
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Some cases
Coors v. MillerCoors, Inc., Civil Action No. 12-cv-02471-
JLK (D. Colo. Aug. 21, 2013).
Disability claim – “Therefore, though Mr. Curry may never have
used medical marijuana absent his disability, MillerCoors did not
unlawfully terminate him “because of” his disability.”
Invasion of privacy claim (Policy) – “ I will not here consider a stand-
alone constitutionality claim. . . . Even were Mr. Curry to have
disclosed his status as a medical marijuana patient, an employer's
request for such information does not constitute ‘an unreasonable
manner of intrusion or an intrusion for an unwarranted purpose.’”
Invasion of privacy (Drug Test) – “There is no allegation suggesting
that the mouth swab test was anything other than minimally
intrusive. Because Mr. Curry does not allege that the method of the
test—swabbing for saliva—is highly offensive and because I see no
way a jury could reasonably consider the test highly intrusive, I find
Mr. Curry's claim fails. ”
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Collective Bargaining
Agreements
Drug testing is a mandatory subject of
bargaining.
Arbitration requirements
Eastern Associated Coal v. Mine Workers,
531 U.S. 57 (U.S. 2000) “We recognize that reasonable people can differ as to
whether reinstatement or discharge is the more appropriate remedy here. But both employer and union have agreed to entrust this remedial decision to an previous arbitrator. We cannot find in the Act, the regulations, or any other law or legal precedent an explicit, well defined, dominant public policy to which the arbitrator's decision runs contrary.”
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Practice Pointers
There is no requirement under state law (other than
Arizona) to accommodate the use of medical
marijuana.
No state law (except Arizona) or court decision has
mandated an employer accommodate the use of
medical marijuana.
Employers (except in Arizona) may still enforce drug
testing policies to exclude employees who test
positively for marijuana.
Confusion over the use of medical marijuana exists
– consider a communication to employees.
Drug testing policies must be uniformly enforced.
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Practice Pointers (cont.’d)
There is absolutely no benefit for employers to
inquire into, maintain records concerning, or discuss
whether or not an employee is a medical marijuana
user or possesses a valid registration card.
The marijuana lobby is actively looking for test
cases. The ACLU is doing its best to help them out.