Marijuana in the Workplace

Practicum Workshop

Presented by

Judge Mary Celeste (Ret.)

HR31

5/5/2018

8:00 AM

The handout(s) and presentation(s) attached are copyright and trademark protected and provided for individual use only.

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MARIJUANA AND THE WORKPLACE

WORKSHOP

Association of Legal Administrators

May, 4, 2018, National Harbor, Maryland

Judge Mary A. Celeste (ret.)

The following presentation may not be copied

in whole or in part without the written permission of the author

• DISCLAIMER

• You must not rely on the information in this Presentation and Workshop as an alternative to

legal advice from your attorney or other professional legal services provider and MRO

• MJ in the Workplace New Challenges

• Federal laws

• Changing State laws

• New Case Law

• No uniform law to guide companies in determining which employees can be tested, how

employees can be tested and when they can be tested

• How to properly respond when an employee tests positive for marijuana

• This can be especially confusing for employers with a workforce that spans multiple states

• Federal Drug-Free Workplace Act 1988

• Marijuana use is still illegal under federal laws.

• Therefore, any workplace that receives federal funding or is subject to federal regulations

requiring the testing of safety-sensitive workers

• The Department of Transportation, for example — must consider marijuana a prohibited

substance

• Federal Drug-Free Workplace Act

• The Act requires you to establish, maintain, and publicize a zero-tolerance policy toward drug

use in the workplace

• DOT Rule 49 CFR Part 40 Section 40.1 Subpart A Tells all parties who conduct D & A tests how to

conduct these tests and what procedures to use

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• Truckers

Synthetic Opioids

• Beginning Jan. 1, 2018 truck drivers being administered random pre-employment and post-

accident drug tests will be screened for four additional synthetic opioids

• The new requirement likely will slow down the process for MROs to screen an increasing

number of positive test results

• Federal ADA

• The ADA prohibits employers, including states, from "discriminating against a qualified

individual with a disability" and requires employers to "make reasonable accommodations [for] .

. . physical or mental limitations . . . . unless [to do so]. . . would impose an undue hardship on

the . . . Business

• Federal ADA

• Since MJ use is still considered illegal by the federal government, it seems clear that marijuana

users, even those registered through a state’s MMJ program, may be excluded from ADA

protection under 42 U.S.C. § 12114(a)

• ADA Case

• Zenor v. El Paso Healthcare System, Ltd

• The 5th Circuit addressed whether the ADA excludes persons who are currently using illegal

drugs from its protection (cocaine).

• The Zenor court held that the ADA specifically exempts current illegal drug users from being

considered “qualified individuals”.

• ADA Cases

• In James v. Costa Mesa, (700 F.3d 394, 397 (9th Cir. 2012), the 9th Circuit has addressed the

ADA issue, holding that the

• ADA does not protect individuals who use marijuana for medical purposes or require

accommodation of such use

• Pending Az. Case Terry v. United Parcel Services, Inc., No. 2:17-cv-04972-PHX-DJB (D. Ariz., filed

Dec. 29, 2017)

• Federal ADA

• This issue has not yet been decided by the U.S. Supreme Court, and may ultimately be decided

based on a choice of competing interpretations of the ADA.

• Addiction to MJ Not a Disability

• Federal FMLA

• The fact that employee might be using MMJ during FMLA time off is irrelevant

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• What if employee takes time off to use…can they come back after use? Fitness for duty

examination ? If zero tolerance w/o state statutory protection may be terminated ?

• The employee could argue that the job termination was in retaliation for his taking FMLA leave,

or an attempt to interfere with his/her use of FMLA leave?

• Workplace Policy

NEW HIRE

• Pre-employment-Post Offer-D & A Test

• Polygraph

• Criminal & Civil Background Check

• IQ Mini Quiz

• Psychological Profile

• Credit Report

• Workplace Policy

NEW HIRE

California employee fired when a pre-employment drug test revealed his MMJ use.

Nothing in the text or history of the California Compassionate Use Act (MMJ Law) suggests the

voters intended the measure to address the respective rights and duties of employers and

employees.

Under California law, an employer may require pre-employment drug tests and take illegal

drug use into consideration in making employment decisions.

• Workplace Policy

NEW HIRE

• Some states, such as Arizona, Delaware, and Minnesota, explicitly address drug testing and

provide that a positive drug test alone cannot automatically be grounds for refusal to hire,

firing, or other adverse employment action.

• Workplace Policy

Return to Work\Follow-up Testing

• “Return-to-duty drug testing is for employees who have previously tested positive for illicit

substances or violated a company’s drug and alcohol policy”

• Workplace Policy

Incident

• Workplace Accident

• Workplace Injury

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• Co-worker Reporting

• Personal Observance

• ?

• Workplace Policy

Zero Tolerance

• Effective policies should clearly state why the policy is being implemented, describe prohibited

behaviors and explain consequences for violation. It is essential that the policy be shared and

understood by all and that it be consistently applied.

• EMPLOYEE EDUCATION

Provides employees with information they need to adhere to and benefit from the drug-free

workplace program and informs them about the nature of addiction; its effect on work performance,

health and personal life; and help available for those with problems.

• SUPERVISOR TRAINING

Teaches supervisors, managers and foremen to enforce the policy and helps them recognize and deal

with employees who have performance problems stemming from substance abuse. Supervisors must

not, however, be expected to diagnose or provide counseling.

• Workplace Policy

Zero Tolerance/Search Policy

• “Entering the organization’s property constitutes consent to searches and inspections.

•

• If an individual is suspected of violating the drug-free workplace policy, he or she may be asked

to submit to a search or inspection at any time.

• Searches can be conducted of pockets and clothing, lockers, wallets, purses, briefcases and

lunchboxes, desks and work stations, and vehicles and equipment.”

• Workplace Drug Policy

Zero Tolerance

• EMPLOYEE ASSISTANCE PROGRAM (EAP)

Offers free, confidential services to help employees, including supervisors, managers and foremen,

resolve personal and workplace problems — such as alcohol and drug abuse — that can interfere with

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job performance. EAPs provide workers, and often their family members, with assessment, short-term

counseling, and referrals to treatment or other community resources. They may also provide training,

education and consultation on a variety of topics such as how to handle difficult co-

workers/employees.

• DRUG TESTING

Provides concrete evidence for intervention and/or disciplinary action. Drug-testing policies must

clearly stipulate who will be tested, when tests will be conducted, which drugs will be tested for, how

tests will be conducted and the consequences of a positive test. Legal counsel should be sought before

starting a drug-testing program. Local, state and federal laws, as well as collective bargaining

agreements, may impact when, where and how testing is performed.

•

Workplace Policy

Zero Tolerance

Employee Acknowledgment

I, (print name) , hereby acknowledge that I have read and understood the policy of

[organization name], titled Drug-Free Workplace Policy, and hereby agree to abide by this policy.

I understand that [organization name] may require me to provide urine, blood or saliva samples for

the purpose of analysis for the presence of drugs, alcohol or controlled substances.

I further acknowledge that my cooperation is voluntary, but that my refusal to submit to the

collection of a urine, blood or saliva sample will result in disciplinary action, including possible

termination of employment, at [organization name]’s exclusive discretion.

Employee Signature Date

Signature of Supervisor or Witness Date

• Workplace Policy

Impairment Per se +Behavior

• Mirror the state driving laws and use such as a permissive standard for THC in blood for active

THC In conjunction with behavior

Issues:

• Blood Tests expensive & Invasive

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• Urine tests for active or inactive metabolites only

• Studies & Reports find no correlation between levels and impairment

•

Workplace Policy

Positional/Safety Sensitive Occupations

• Construction

• Pilots

• Transportation/Drivers

• Heavy Equipment Operators

• Mechanics

• EMTs

• Pharmacists

• Etc.

• Workplace Policy

Reasonable Suspicion

• “Reasonable suspicion means that the employer has a legitimate reason, based on logic and

facts, to believe that {employee has} been taking drugs, and isn't just guessing, speculating or

discriminating against {employee}

• Reasonable suspicion can be different in different circumstances…”

• Workplace Policy Reasonable Suspicion

Examples

• “Direct observation of drug use or physical symptoms of drug use (slurred speech,

uncoordinated movement, etc.)

• Abnormal conduct

• A report from a reliable source that an employee is using drugs

• Evidence that an employee has tampered with his/her drug results

• Erratic behavior while at work or significant deterioration in work performance

• Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while

working or at work”

• Workplace Policy

Random Testing

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• “Many states require that there must be reasonable suspicion in order to test an employee, and

employers that have not complied with this requirement have been successfully sued.

• However, state laws vary, and in some states, private employers are permitted to randomly

test their employees, even without reasonable suspicion, as long as advance notice is given.

• Courts have generally held that no suspicion is needed to randomly test current employees in

jobs that pose a serious risk of human injury or property damage.”

• TESTNG PROTOCOLS

State Laws

• The status and procedural requirements for D & A testing varies from state to state

• Some have mandatory requirements

• Some have voluntary requirements

State-by-State Legal Status Guide/Workplace D & A Laws

https://www.edrugtest.com/Messages_from_Admin/Statebystatelaw_Guide_89046.pdf

• TESTNG PROTOCOLS

State & Local Laws Examples

• CALIFORNIA

• “Case law affects who can be tested and under what circumstances.

• San Francisco has an ordinance that restricts drug testing in a number of ways.

• Employers should consider legal decisions related to drug testing prior to establishing a drug-

free workplace program that includes any type of drug testing.”

• TESTNG PROTOCOLS

State Laws Examples

• CONNECTICUT

• “Connecticut is a drug testing friendly state though its law places restrictions on random

testing.”

• TESTNG PROTOCOLS

State Laws Examples

• MARYLAND

• Maryland permits all types of employee testing and job applicant testing.

• On-site testing is permitted for pre-employment testing only.

• Very specific requirements apply to laboratories performing tests.

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• Pending State Statutes

Protecting Employees

• Colorado CRS § 24-34-402. Discriminatory or unfair employment practices, new section 8

• Wisconson introduces bill that would prohibit employers from requiring THC drug screenings

• TESTNG PROTOCOLS

• When to Test (Hire, Random, Suspicion, Incident, Positional, Return/Follow-up

• What to Test (D & A Panel)

• Method of Testing (Saliva, Urine, Breath, Blood)

• TESTNG PROTOCOLS

• Who Conducts Test

Designated Lab results to Medical Review Officer {MRO}- review and interpret test results from the

lab and reports directly to the employer/owner-operator)

• How to Test

Conducted according to Substance Abuse and Mental Health Services Administration (SAMHSA)

guidelines

• Where to Test (Point of Care Testing {POCT}), Certified Lab

• What to Do if Positive (Consequences)

• Standard Urine Test Panel

• Alcohol

• Amphetamines

• Barbiturates

• Benzodiazepines

• Cannabinoids (THC)

• Cocaine

• Creatinine

• Opiates

•

•

MJ Toxicology

Active

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THC a/k/a delta-9-tetrahydrocannabinol is the main psychoactive substance found in marijuana

Metabolites

11-Hydroxy-THC (aka 11-OH-THC) is the main psychoactive metabolite of THC formed in the body after

marijuana consumption

11-nor-9-Carboxy-THC (aka 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, 11-nor-9-carboxy-delta-9-

THC, 11-COOH-THC, THC-COOH, and THC-11-oic acid, ) is the main secondary metabolite of THC which

is formed in the body after marijuana is consumed. It is NOT active.

.

• Metabolization of Marijuana

Assumption that cannabinoids will remain detectable in urine for 30 days or longer following

the use of marijuana.

THC is not found in its active form in urine rather as the metabolite THC-COOH…

For new or infrequent users, the window of time for detection (50ng/ml limit) is believed to last

1 to 2 days.

• Metabolization of Marijuana

• Studies have shown that regular users can test positive (20 ng/ml limit) for THC metabolites for

up to 46 consecutive days following marijuana usage.

• In an extreme case, a heavy cannabis user of more than 10 years was able to test positive (20

ng/ml limit) for up to 67 days after last being exposed to marijuana.

• THC Levels & Impairment

Employers should expect more challenges, based on the long period of time that marijuana

metabolites remain in an individual's system, from employees that have failed drug tests but who claim

they were not impaired while working

• Collective Bargaining Agreement

• A negotiated Agreement between an employer and a labor union usually on wages, benefits,

hours, and other working conditions which may include drug testing policies

• Applicable State Statutes

• State MMJ/Recreational Statutes

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• State Disability Statutes

• State Lawful Activities Statutes/Off Duty

• State Discrimination Statutes

• MMJ Statutes

• MMJ Statutes in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York

and Rhode Island provide employee protections from discrimination primarily on the basis of

being a MMJ cardholder or for testing positive for MJ during a drug test.

• States With Employee Protections

• 11 states have statutes with explicit language (anti-discrimination or reasonable

accommodation provisions) providing varying levels of employment protection.

• These laws generally prohibit adverse action against an employee/applicant based on their

status as a MMJ.

• Most of these laws are very new and need additional guidance; none have been tested in court

• Arizona

• Arkansas

• Connecticut

• Delaware

• Illinois

• Maine

• Minnesota

• Nevada

• New York

• Pennsylvania

• Rhode Island

•

MMJ Statute

Connecticut Example

No employer may refuse to hire a person or may discharge, penalize or threaten an employee

solely on the basis of such person’s or employee’s status as a qualifying patient or primary

caregiver under sections 21a-408 to 21a-408n, inclusive.

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Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating

substances during work hours or restrict an employer’s ability to discipline an employee for

being under the influence of intoxicating substances during work hours.

• Recreational MJ Law

California Example

• The new law states that employers still have the right to maintain a drug- and alcohol-free

workplace and can keep policies that prohibit the use of cannabis by employees and prospective

workers.

• States With No Employee Protections

MMJ Statutes/Case Law

• Either the MMJ statute explicitly provides no protections, or the statute is silent and the state

has case law that has found no employee protection for off-duty use under each state’s

respective medical marijuana act.

• California

• Colorado

• Georgia*

• Michigan

• Montana

• Ohio

• Oregon

• Washington

• MMJ Statute

Ohio Example

The law expressly addresses employment issues, resolving each of these issues clearly in favor

of employers.

Not required to permit or accommodate

Permitted to terminate or discipline an

employee or refuse to hire

Permitted to establish and enforce a drug testing policy. employers have the right to establish

and enforce zero-tolerance drug testing policies

It explicitly provides that employers have the right to establish and enforce zero-tolerance drug

testing policies

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•

MMJ Statute

Oregon Example

• An employer is not required to accommodate the medical use of marijuana in the workplace.

• A private health insurer is not required to reimburse a person for costs associated with the

medical use of marijuana.

• The statute does not discuss operating heavy machinery.

•

MMJ Law

Georgia Example

• The statute does not require an employer to permit or accommodate the use, consumption,

possession, transfer, display, transportation, sale or growing of marijuana in any form.

• An employer may have a written zero tolerance policy prohibiting the on-duty, and off-duty,

use of marijuana, or prohibiting any employee from having a detectable amount of marijuana in

such employee's system while at work.

•

• After the employee took the drug test and completed a day of training plus her first day of work,

ASM’s HR director called and fired her for testing positive for MJ

• Mass. Sup. Ct. permitted Defendant to bring a claim under the Massachusetts Disability Act

(pending) but not a wrongful termination claim

• State Disability Statutes

Examples

• New York

• Anyone who is entitled to a MMJ card shall be deemed ‘disabled’ under the New York civil rights

law

• Nevada

• Law requires that employers specifically accommodate MMJ

• State Disability Case

Oregon Example

• Supreme Court held that, consistent with the ADA, employers have no obligation to reasonably

accommodate an employee’s MMJ use under Oregon’s disability-discrimination statute

because marijuana is still considered an “illegal drug” under federal law.

• Other State Statutes & Cases

• State Workers Compensation Statutes/Cases

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• State Employment/Unemployment Statutes/Cases

• Wrongful Termination Statutes/Cases

•

New Mexico

Workers Compensation Case Example

• If MMJ is recommended by a physician to treat an employee’s pain resulting from a workplace

injury, the employer and their workers’ compensation insurer must pay for it.

• The court rejected the argument that paying for the MMJ would cause the employer and

insurer to violate federal law and public policy since MJ remains a prohibited under federal law.

• New Jersey

Workers Compensation Case Example

A south Jersey man injured on the job at a lumber company will have his MMJ tab paid by his

employer's workers compensation insurance

Held "the effects of the marijuana, in many ways, is not as debilitating as the effects of the

Percocet. The pharmacy records show that, ultimately employee was able to reduce his use of

oral narcotic medication.“

• Ohio

Workers Compensation Case Example

Employee is not entitled to receive workers’ compensation if the employee was under the

influence of MJ at the time of injury and the use of MJ was the proximate cause of that injury.

• Michigan

Unemployment Benefits Case Example

• "Claimants tested positive for marijuana and would ordinarily have been disqualified for

unemployment benefits under MESA (Michigan Employment Security Act), however, because

there was no evidence to suggest that the positive drug tests were caused by anything other

than claimants' use of medical marijuana in accordance with the terms of the MMMA

(Michigan Medical Marijuana Act), the denial of the benefits constituted an improper penalty

for the medical use of marijuana under the MMMA,“

• The Michigan Supreme Court permitted a worker to collect unemployment insurance benefits

after he was terminated for using MMJ

• Lawful Activity Statutes

• “lawful products” or “lawful activities” statutes protect employees’ rights to engage in lawful

activities during non-working hours

• Off-Duty Conduct Statutes

• 29 States & D.C.

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• 18 Tobacco only: Connecticut; D.C.; Indiana; Kentucky; Louisiana; Maine; Mississippi; New

Hampshire; New Jersey; New Mexico; Oklahoma; Oregon; Rhode Island; South Carolina; South

Dakota; Virginia; West Virginia; Wyoming

• Off-Duty Conduct Statutes

• 8 Use of Lawful Products: Illinois; Minnesota; Missouri; Montana; Nevada; North Carolina;

Tennessee; Wisconsin

• 4 Employees who engage in lawful activities: California: Colorado; New York; North Dakota

• Off-the-job MJ Use

Oregon Example

• SB 301 amends ORS 569A.315, which originally protected workers that used lawful tobacco

products while on their own time. The bill would update that law to read as follows:

• It is an unlawful employment practice for any employer to require, as a condition of

employment, that any employee or prospective employee refrain from using a substance that is

lawful to use under the laws of this state during nonworking hours.

• Exceptions if the substance restriction relates to a bona fide occupational qualification or the

performance of work while impaired.

•

Lawful Activities Statute

Example Colorado Case

• The supreme court holds… Colorado’s “lawful activities statute,” the term “lawful” refers only to

those activities that are lawful under both state and federal law.

• Therefore, employees who engage in an activity such as {MMJ} use that is permitted by state

law but unlawful under federal law are not protected by the statute. We therefore affirm

• Fact Pattern #1

• Employer has Zero-Tolerance D & A Policy

• Potential Employee notifies Employer that she uses MMJ pre-employment and pre D & A test

• Do you go forward with potential hire?

• What do you need to know?

• Chronological Questions

• What is the Workplace MJ Policy?, Is it Clear? Position Sensitive?

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• Does the Situation Require Testing? Protocol? Results?

• Is it MMJ v. Recreational MJ Use?

• State & Local Workplace D & A Testing Laws

• Any Applicable Federal or State Statutes?

• Any Case Law?

• Any Collective Bargaining Agreement?

• What Action? Probation? Suspension Termination EAP

• Fact Pattern #2

• A Employee reports that another Employee was eating a MJ editable during lunch break

• What do you do?

• Chronological Questions

• What is the Workplace MJ Policy?, Is it Clear? Position Sensitive?

• Does the Situation Require Testing? Protocol? Results?

• Is it MMJ v. Recreational MJ Use?

• State & Local Workplace D & A Testing Laws

• Any Applicable Federal or State Statutes?

• Any Case Law?

• Any Collective Bargaining Agreement?

• What Action? Probation? Suspension Termination EAP

• Fact Pattern #3

• Employee has MS and regularly uses MMJ with Employer’s knowledge

• Employee falls and is injured while on duty

• Employee makes a worker’s compensation claim

• What do you do?

• Chronological Questions

• What is the Workplace MJ Policy?, Is it Clear? Position Sensitive?

• Does the Situation Require Testing? Protocol? Results?

• Is it MMJ v. Recreational MJ Use?

• State & Local Workplace D & A Testing Laws

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• Any Applicable Federal or State Statutes?

• Any Case Law?

• Any Collective Bargaining Agreement?

• What Action? Probation? Suspension Termination EAP

• What I Want You To Do

• CREATE A BINDER/FOLDER THAT INCLUDES YOUR:

• The Collective Bargaining Agreement, if any

• Federal DOT/SAMSHA Statutes (if applicable)

• State and Local D & A Testing Laws/Statutes

• State & Local Recreational MJ Laws, if any

• State & Local MMJ Laws and MMJ Employment Cases, if any

• State Disability Statutes/Disability MMJ Cases, if any

• State Off-Duty Conduct/ Lawful Activities Statutes/MMJ Cases, if any

• State Discrimination Statute/MMJ Cases, if any

• Workers Compensation Statutes/MMJ Cases, if any

• Employment/Unemployment Statute/MMJ Cases, if any

• Wrongful Termination Laws/MMJ Cases, if any

• What I Want You To Do

THEN:

• Review Your Workplace Policy and EAP Policy for Clarity & Compliance with ALL of the above

THEN:

• I want you to check all of these laws and cases every 30-60 days for changes and for new laws

• For Example recently introduced Wisconsin Bill that would prohibit employers from requiring

current or prospective employees to undergo drug tests for THC federal workers and those

operating heavy machinery should not be exempt from such screening

•

• FOR YOUR CONSIDERATION

Continue Testing MJ

• Less Drug Abusing Employees will apply

• Less Absenteeism

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• Less industrial accidents

• Less injuries and

• FOR YOUR CONSIDERATION

Stop Testing MJ

• “Some employers are now opting to remove MJ from their testing program or are treating it as a

substance with legitimate medical explanation meaning a laboratory positive could be

overturned by a medical review officer if a doctor patient relationship can be verified.”

• Others state that “MJ poses risks to safety and productivity in the workplace…costs to

employers will be great”

• Top 10 Mistake

Employers Make in Drug Testing

1. Wrongfully Applying DOT Requirements

2. Not Having a Written Policy

3. Not Realizing State & Local Rules Vary Widely

4. A Vague Written Policy

5.Inconsistent Disciplinary Consequences

• Top 10 Mistake

Employers Make in Drug Testing

6. Failure to Test Immediately for Reasonable Suspicion

7. Failing to Follow-thru w/test After Explanation

8. Failure to Train Supervisors

9. Failure to Define Consequences for Failing to Test

10.Understanding That There Must be a Reasonable Possibility that Drugs Were Involved in Incident

Prior to Testing

• Resources

• National Conferences of States Legislatures (NCLS) website to stay current on state medical

marijuana laws.

• Marijuana Legislation by State infographic as a resources.

• https://www.samhsa.gov/sites/default/files/workplace/MRO_Case Studies2010.pdf

• Consultations: Judge Mary A. Celeste (ret.)

attcel@aol.com 303-501-3242

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