drug-free workplace enforcement: don't get lost in the ... · ada considerations for medical...

Title of Presentation

Drug-Free Workplace Enforcement:

Don't Get Lost in the Weeds

Presented by: Kathryn B. Gray

Introduction

Drug-Free Workplace Policy BestPractices

Elements of a Drug Testing Program

Implications of Marijuana Legalization

Employee Addiction Treatment Issues

Determining Your Company’s Needs

One size does not fit all . . . Are you in a highly regulated industry?

Does your company have safety-sensitivepositions?

What are the effects of drug use on yourcompany?

What types of problems do you want tosolve?

Does every employee need to be tested?


Drug Free Workplace Policy

Supervisor Training

Employee Education

Drug Testing

Employee Assistance


Drug Free Workplace Policy Tailored to the Company’s specific needs

Effectively communicated to employees,and containing the following information: Why the policy is being implemented

Clear description of prohibited behaviors

Explanation of the consequences for violating thepolicy

Confidentiality

EAP information


Supervisor Training Elements of the policy

Conduct to be observed

Confidentiality

Reasonable suspicion

Post accident

Employee education Current Employees

Applicants

New Hires


Drug Testing

Pre-employment

Random

Reasonable suspicion

Post-accident

Worker’s compensation injury


What is ReasonableSuspicion?

BEHAVIOR APPEARANCE SPEECH

□ stumbled, clumsy, uncoordinated □ flushed complexion □ slurred, thick

□ drowsy, sleepy, lethargic □ sweating □ incoherent

□ agitated, anxious, restless □ unkempt grooming □ exaggerated enunciation

□ hostile □ bloodshot eyes □ loud, boisterous

□ unresponsive, distracted, withdrawn □ tearing, watery eyes □ cursing, inappropriate speech

□ tremors, shakes □ dilated (large) pupils □ excessively talkative

□ suspicious, paranoid □ constructed (pinpoint) pupils □ nonsensical, silly

ප�ŚǇƉĞƌĂĐƟǀ Ğ͕�Į ĚŐĞƚǇ� □ unfocused, blank stare

□ inappropriate, uninhibited behavior □ disheveled clothing BODY ODOR

□ frequent use of mints, mouthwash, □ alcohol

breath sprays, eye drops □ marijuana

Hypothetical #1

Walter White is a receptionist at asoftware development company.He’s distributing the mail and slamsthe mail cart into a co-worker,injuring the co-worker.

Can the company send Walter out fordrug testing?

Hypothetical #2

Jesse Pinkman works in a warehouseas a forklift operator. He drives theforklift into a pallet of goods, whichthen fall on him. He becomesinjured and submits a worker’scompensation claim.

Can the company send Jesse out fordrug testing?

Drug Testing Procedures

Who pays for the test?

How will the employee get to thetesting center?

Is the employee paid for their time?

What if the employee tests positive?Negative?

Maintain confidentiality

Consistent application

Consider documenting factssupporting reasonable suspicion

Drug Testing Procedures

Legal Challenges, Hurdles, Pitfalls

Invasion of Privacy

Intentional Infliction of EmotionalDistress

Retaliation

ADA Voluntary disclosure

Prior drug use or abuse v. current use

What Should You Do Today?

Review and revise policies Drug testing

Zero tolerance

Employee Assistance Programs (EAPs)

Train supervisors

Communicate with employees

A Brief History of Marijuana

Federal prohibition (1937-present)

Controlled Substances Act (1970)

Medical Marijuana (1996-present)

Starting in CA, now includes 20+ states

plus D.C.

Legalization (Nov. 2012-present)

Colorado and Washington legalize

Federal Prohibition:Controlled Substances Act

Marijuana Remains a Schedule INarcotic Manufacture, sale, distribution,

possession are still prohibited underfederal law

No DEA-certified doctor may prescribemarijuana

California’s CompassionateUse Act of 1996 Seriously ill persons who have their doctor’s

recommendation to use marijuana for medicalpurposes are authorized to use medical marijuanaupon the receipt of a physician’s recommendation

Includes treatment of: cancer, anorexia, AIDS,chronic pain, spasticity, glaucoma, arthritis,migraine, “or any other illness for which marijuanaprovides relief”

This likely meets the definition of a disability understate and federal disabilities laws

Marijuana in the Workplace

Marijuana is legal medically in 24 jurisdictions:

Marijuana is legal recreationally in four jurisdictions: AK, CO,OR and WA.

Several pending initiatives, which may be on the ballot for2016 in California. 55% of likely voters believe it should belegal.

• Alaska• Arizona• California• Colorado• Connecticut• District of Columbia• Delaware• Hawaii

• Illinois• Maine• Maryland• Massachusetts• Michigan• Minnesota• Montana• Nevada

• New Hampshire• New Jersey• New Mexico• New York• Oregon• Rhode Island• Vermont• Washington


Marijuana is decriminalized in 20 jurisdictions:

Marijuana usage is broad-based, particularly among youngerAmericans: 31.6% of people ages 18-25 and 9.2% of peopleage 26 and older used marijuana in 2013.

• Alaska• California• Colorado• Connecticut• District of Columbia• Delaware• Maine

• Maryland• Massachusetts• Minnesota• Mississippi• Missouri• Nebraska• Nevada

• New York• North Carolina• Ohio• Oregon• Rhode Island• Vermont


Generally, there is no legal protection foruse, possession or intoxication at work.

Some jurisdictions (California, Colorado,Delaware, Illinois, Montana, Nevada, NewHampshire, and Washington) explicitlyallow employers to enforce their drug-freeworkplace policies.


CA Health & Safety Code §11362.7-11362.83: “Nothing in this article shall require any

accommodation of any medical use ofmarijuana on the property or premises ofany place of employment or during thehours of employment…”

Ross v. Raging Wire (CASupreme Court 2008) Applicant for employment tested

positive for marijuana, used marijuanafor medical reasons

Evaluated on premises v. off premisesuse

Held that employer need notaccommodate on or off premises use

Coats v. Dish Network (COSupreme Court 6/15/2015)

Facts:

Mr. Coats engaged in medical, not recreational, marijuana use.

Mr. Coats’ medical use was pursuant to a valid CO medical marijuanalicense.

No allegation that Mr. Coats used, possessed or was intoxicated/impaired atwork.

Mr. Coats worked in a non-safety sensitive job.

Mr. Coats violated Dish Network’s “zero tolerance” drug policy when hefailed a random drug test.

Mr. Coats challenged his termination, alleging his marijuana use was “lawfuloff-duty conduct” under CO’s Lawful Activities Act, which prohibitsemployers from discharging employees for “engaging in any lawful activityoff the premises of the employer during nonworking hours.”

Coats v. Dish Network (COSupreme Court) - Holding

The Court held that for an activity to be “lawful” for purposesof CO’s Lawful Activities Act it must be permitted by bothstate and federal law.

Marijuana is illegal under federal law (ControlledSubstances Act).

As a result the CO Supreme Court rejected Mr. Coats’argument that his discharge was unlawful.

Coats v. Dish Network – Scope ofCase?

Lawful off-duty conduct statutes exist in approximatelythirty-five states.

This includes California – Labor Code section 96(k)

Coats v. Dish Network may be persuasive in those states,but it is not legally binding.

Marijuana laws (recreational and medical) vary widely stateto state.

For example, CO’s recreational marijuana statuteexplicitly allows employers to enforce their drug-freeworkplace policies.

What Do Medical MarijuanaLaws Mean for You? Most state medical marijuana laws provide that

employers are not required to accommodateuse, consumption, possession, sale, etc. ofmarijuana in the workplace

Employers in most states can restrict marijuanause by employees

Employers in Arizona, Connecticut, Maine, andRhode Island may be in a tough spot

Hypothetical #3

Mary Jane comes to work with redeyes and smells of marijuana. Can you send her for drug testing?

What if she tells you she’ll fail becauseshe is using medical marijuana becauseshe has cancer?

ADA Considerations forMedical Marijuana Users No duty to accommodate illegal drug use

Recovering addict provisions

But, may have a duty to engage in theinteractive process if the employer has reasonto believe the employee is disabled

May have to consider whether FMLA or other leave isappropriate for underlying medical condition

Should Marijuana Use bePermitted? Employees working impaired

Employees/customers could be injured

Protection of safe work environment

OSHA General Duty Clause: Section 5(a) “Each employershall furnish to each of his employees employment and aplace of employment which are free from recognizedhazards that are causing or are likely to cause death orserious physical harm to his employees.”

Marijuana use may reflect other issues

Elements of a Good Drug-Free Workplace Policy Confront medical and recreational use laws

Reference (explicitly) federal law (ControlledSubstances Act)

Prohibiting “working under the influence” is notenough Must make it impermissible to have “any detectable

level of any illegal controlled substance”

Which employees are covered?

When will tests occur?

Will you provide employee assistance (rehab)?

Sample Policy Language

“Note that it is the intention of the company to comply withstate and federal laws. Where state and federal law differ,however, the company will typically comply with federal law.(The company may be required to comply with federal lawfor employees in federally-regulated positions. Forexample, some state laws permit the use and possession ofmarijuana for medical and/or non-medical purposes.Federal law does not. In the absence of state law to thecontrary, the company considers marijuana to be an illegaldrug for purposes of this policy in all states – even thosethat allow for medical and/or non-medical use.”

Leave for Rehabilitation FMLA

Employers with 25+ employees must allowaccommodation for employees thatvoluntarily admit, but not for current use

EAP – Voluntary referral or as an alternativeto disciplinary process

Accommodation for Addiction

Questions?

More Questions?

Feel free to call or email:

Kathryn Gray

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

(858) 652-3070

[email protected]

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