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2019 CORPORATE LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 22-1

WEED OUT DISABILITY CLAIMS

IN DRUG TESTING

Michael K. Clarkson – Ogletree Deakins (Boston)

Rayna H. Jones – Ogletree Deakins (Phoenix)

Employer’s Guide to Marijuana in the Workplace

Last Revised: September 4, 2019

2

OVERVIEW OF MARIJUANA LAWS1

Alaska

Arizona Arkansas California Colorado Connecticut Delaware

District of Columbia

Florida Hawaii Illinois

Louisiana

Maine Maryland Massachusetts Michigan Minnesota Missouri

Montana Nevada New Hampshire New Jersey New Mexico

New York

North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island

Utah Vermont Washington West Virginia

1 For purposes of this guide, “medical marijuana” means marijuana has been legalized for medicinal

purposes.

3


Alaska

California Colorado District of Columbia Illinois (Jan. 1, 2020) Maine

Massachusetts

Michigan Nevada Oregon Vermont Washington

2 For purposes of this guide, “recreational marijuana” means marijuana has been legalized for non-medicinal

purposes.

4


Alabama

Georgia Idaho Indiana Iowa Kansas

Kentucky

Mississippi Nebraska North Carolina South Carolina South Dakota

Tennessee

Texas Virginia Wisconsin Wyoming

3 While marijuana is not legal for medicinal or recreational purposes in these states, some of the states do

allow use of certain cannabis-based products such as “CBD oil,” “hemp extracts,” or other substances with

very low THC levels for medical-related purposes. In these states, it is unlikely that an individual would test positive for marijuana by merely using these types of substances (due to the low THC levels), or a Medical

Review Officer (MRO) would consider such use when determining whether the individual has passed the drug test. These substances are “not supposed” to cause impairment. These substances are not, however,

FDA-regulated and the contents of these substances can be unreliable, unknown, and/or contaminated.

5

OVERVIEW OF MARIJUANA LAWS

STATE LEGALIZATION STATUS LEGAL CITATIONS4

Alabama Not Legal N/A

Alaska Medical and Recreational Medical Uses of Marijuana for Persons Suffering from

Debilitating Medical Conditions Act

(Medical)

Alaska Stat. § 17.37.010

Act to Tax and Regulate the Production, Sale, and Use of

Marijuana (Recreational)

Alaska Stat. § 17.38.010

Arizona Medical Arizona Medical Marijuana Act

Ariz. Rev. Stat. § 36-2801

Arkansas Medical Arkansas Medical Cannabis Act

Ark. Code § 20-65 (pending)5

California Medical and Recreational Compassionate Use Act of 1996

(Medical)

Cal. Health & Safety Code, § 11362.5

Adult Use of Marijuana Act

(Recreational)

Cal. Health & Safety Code, § 11018

4 Citations are generally to the first section or provision of the applicable statute/law. In states where recreational marijuana is legalized, legislation legalizing such use often amends several existing

statutes/laws (such as laws addressing criminal acts, taxation, and other laws). Cites to “recreational”

statutes/laws in this guide refer to the most relevant statute/law addressing marijuana legalization for non-medicinal purposes.

5 In some states, such as Arkansas, laws have not yet been “codified,” meaning that the laws have not

been formally published in the state’s statutory compilation.

6

Colorado Medical and Recreational Medical Marijuana Amendment to Colorado

Constitution (Medical)

Colo. Const. art. XVIII, § 14

“Colorado Amendment 64”

(Recreational)

Colo. Const. art. 18, § 16

Connecticut Medical Palliative Use of Marijuana Act

Conn. Gen. Stat. § 21a-408

Delaware Medical Delaware Medical Marijuana Act

Del. Code § 4901A

District of Columbia Medical and Recreational Legalization of Marijuana for Medical Treatment

Amendment Act of 2010 (Medical)

D.C. Code § 7-1671.01

Legalization of Possession and Minimal Amounts of

Marijuana for Personal Use Act of 2014

(Recreational)

D.C. Code § 48-901

Florida Medical Compassionate Medical Cannabis Act

Fla. Stat. § 381.986

Georgia Not Legal N/A

Hawaii Medical Hawaii Medical Marijuana Act

Haw. Rev. Stat. § 329-121

Idaho Not Legal N/A

7

Illinois Medical and Recreational Compassionate Use of Medical Cannabis Pilot

Program Act6

410 Ill. Comp. Stat. 130/1

Cannabis Regulation and Tax Act (effective January 1,

2020)

Citation Pending Indiana Not Legal N/A

Iowa Not Legal N/A

Kansas Not Legal N/A

Kentucky Not Legal N/A

Louisiana Medical Alison Neustrom Act7

La. Rev. Stat. § 40:1046

Maine Medical and Recreational Maine Medical Use of Marijuana Act

(Medical)

Me. Rev. Stat. tit. 22, § 2421

Marijuana Legalization Act (Recreational)

Me. Rev. Stat. tit. 28-B, §

101

Maryland Medical Natalie M. LaPrade Medical Cannabis Commission

Md. Code., Health-Gen. § 13-

3301

6 The Illinois medical marijuana law is a “pilot” program, and is scheduled to be repealed as of July 1, 2020—unless the Act is made permanent or extended for an additional period of time.

7 The Louisiana medical marijuana law is scheduled to be repealed as of January 1, 2025—unless the Act

is made permanent or extended for an additional period of time.

8

Massachusetts Medical and Recreational Act for the Humanitarian Medical Use of Marijuana

(Medical)

2012 Mass. Acts ch. 369

Regulation and Taxation of Marijuana Act (Recreational)

Mass. Gen. Laws ch. 94g-94i

Michigan Medical and Recreational Michigan Medical Marihuana Act

(Medical)

Mich. Comp. Laws § 333.26421

Michigan Regulation and Taxation of Marijuana Act

(Recreational)

Mich. Comp. Laws § 333.27951

Minnesota Medical Medical Cannabis Therapeutic Research Act

Minn. Stat. § 152:22

Mississippi Not Legal N/A

Missouri Medical Missouri Medical Marijuana Constitutional Amendment

Mo. Const. art. XVI

Montana Medical Montana Medical Marijuana Act

Mont. Code § 50-46-301

Nebraska Not Legal N/A

9

Nevada Medical and Recreational Nevada Medical Marijuana Act

(Medical)

Nev. Rev. Stat. § 453A.010

Regulation and Taxation of Marijuana Act (Recreational)

Nev. Rev. Stat. § 453D.010

New Hampshire Medical Use of Cannabis for Therapeutic Purposes

N.H. Rev. Stat. § 126-X:1

New Jersey Medical Jake Honig Compassionate Use Medical Marijuana Act

N.J. Rev. Stat. § 24:6I-1

New Mexico Medical Lynn and Erin Compassionate Use Act

N.M. Stat. § 26-2B-1

New York Medical Compassionate Care Act

N.Y. Pub. Health Law § 3369

North Carolina Not Legal N/A

North Dakota Medical “Statutory Measure 5”

N.D. Cent. Code § 10-24.1-01

Ohio Medical Ohio Medical Marijuana Care Program

Ohio Rev. Code § 3796.01

Oklahoma Medical Oklahoma Medical Marijuana and Patient Protection Act

Okla. Stat. tit. 63, § 427.1

10

Oregon Medical and Recreational Oregon Medical Marijuana Act

(Medical)

Or. Rev. Stat. § 475B.785

Control, Regulation, and Taxation of Marijuana and

Industrial Hemp Act of 2014 (Recreational)

Or. Rev. Stat. § 475B

Pennsylvania Medical Pennsylvania Medical Marijuana Act

35 Pa. Cons. Stat. §

10231.101.101

Rhode Island Medical Hawkins and Slater Medical Marijuana Act

R.I. Gen. Laws § 21-28.6-1

South Carolina Not Legal N/A

South Dakota Not Legal N/A

Tennessee Not Legal N/A

Texas Not Legal N/A

Utah Medical Utah Medical Cannabis Act

Utah Code § 4-41 (pending)

Vermont Medical and Recreational “Senate Bill 76” (Medical)

Vt. Stat. Ann. tit. 18, § 4472

“Senate Bill 22” (Recreational)

Vt. Stat. tit. 18, § 4230

Virginia Not Legal N/A

Washington Medical and Recreational Washington State Medical Use of Marijuana Act

(Medical)

Wash. Rev. Code Ann. § 69.51A.005

“Initiative Measure 502”

(Recreational) Wash. Rev. Code § 69.50.325

11

West Virginia Medical West Virginia Medical Cannabis Act

W. Va. Code § 16A-1-1

Wisconsin Not Legal N/A

Wyoming Not Legal N/A

12

STATUTORY PROTECTIONS FOR MEDICAL MARIJUANA USERS8

Arizona Arkansas Connecticut

Delaware Illinois Maine

8 As set forth in the table below, the medical marijuana laws in these states contain express provisions

protecting medical marijuana cardholders—essentially creating a “protected class” of individuals. The terms “medical marijuana cardholders” and “medical marijuana users” are used interchangeably in this guide.

Minnesota New Jersey New Mexico

New York Nevada Oklahoma

Pennsylvania Rhode Island West Virginia

STATUTORY PROTECTIONS FOR RECREATIONAL MARIJUANA USERS9

Illinois Maine

9 As set forth in the table below, the recreational marijuana laws in these states contain express provisions protecting recreational marijuana users.

LIMITATIONS ON DRUG TESTING FOR MARIJUANA

New York City (May 10, 2020)

Nevada

15

STATUTORY PROTECTIONS FOR MARIJUANA USERS

While the states referenced in the table below have enacted language within the medical or recreational marijuana statutes/laws providing protections for marijuana users, these protections are not universal or without exceptions. Further discussion and interpretation of these statutes/laws is contained in the “Key Takeaways” section following the table.

STATE STATUTORY PROTECTION

(a/k/a Anti-Discrimination provision)10 LEGAL

CITATIONS

Arizona (Medical)

“Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or imposing any term or condition of employment or otherwise penalize a person based upon either: (1) The person’s status as a cardholder. (2) A registered qualifying patient’s positive drug test for marijuana . . . unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”11

Ariz. Rev. Stat. § 36-2813

“Discrimination

Prohibited”

10 Quotations in this table reflect only the portions of the statute relevant to employment.

11 Arizona’s state drug testing statute contains a provision stating: “No cause of action is or may be

established for any person against an employer who has established a policy and initiated a testing program . . . for any of the following: (1) Actions in good faith based on the results of a positive drug test or alcohol

impairment test. . . . (5) Actions based on the employer’s good faith belief that an employee used or possessed any drug while on the employer’s premises or during the hours of employment. (6) Actions

based on the employer’s good faith belief that an employee had an impairment while working while on the

employer’s premises or during hours of employment. (7) Actions to exclude an employee from performing a safety-sensitive position . . . based on the employer’s good faith belief that the employee is engaged in

the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug could cause an impairment or otherwise decrease or lessen the employee’s job performance or ability to perform the

employee’s job duties.” Ariz. Rev. Stat. § 23-493.06.

16

Arkansas (Medical)

“An employer shall not discriminate against an applicant or employee in hiring, termination, or any term or condition of employment, or otherwise penalize an applicant or employee, based upon the applicant or employee’s past or present status as a qualifying patient or designated caregiver.”12 “A cause of action shall not be established against an employer based upon, and an employer is not prohibited from, any of the following actions: (i) Establishing and implementing a substance abuse or drug-free workplace policy . . . and taking action with respect to an applicant or employee under the policy; (ii) Acting on the employer’s good faith belief that a qualifying patient: (a) Possessed, smoked, ingested, or otherwise engaged in the use of marijuana while on the premises of the employer or during the hours of employment; or (b) Was under the influence of marijuana while on the premises of the employer or during the hours of employment, provided that a positive test result for marijuana cannot provide the sole basis for the employer’s good faith belief; or (c) Acting to exclude a qualifying patient from being employed in or performing a safety sensitive position based on the employer’s good faith belief that the qualifying patient was engaged in the current use of marijuana.”13 “This [law] does not require an employer to accommodate the ingestion of marijuana in a workplace or an employee working while under the influence of marijuana.”

Ark. Medical Marijuana

Constitutional Amendment § 3

“Protections for the medical use of marijuana.”

12 In some states, such as Arkansas, the medical marijuana laws provide protections for individuals who provide care to medical marijuana cardholders (e.g., a parent or guardian). While it is unlikely that a

“caregiver” would fail a drug test absent actually ingesting marijuana, employers should be aware of a

caregiver’s protected status, where applicable. 13 In the absence of any court decision holding otherwise, this “safe harbor” provision may allow an employer to take adverse action without violating the intent of the Arkansas medical marijuana law.

17

Connecticut (Medical)

“Unless required by federal law or required to obtain federal funding: 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. 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.”

Conn. Gen. Stat. § 21a-408p

“Treatment of

Student, Tenant or Employee

Due to Status as Qualifying Patient or Primary

Caregiver”

Delaware (Medical)

“Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following: (a) The person’s status as a cardholder; or (b) A registered qualifying patient’s positive drug test for marijuana.”

Del. Code tit. 16, § 4905A

“Discrimination

Prohibited”

18

Illinois (Medical)

“No employer may . . . penalize a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules.” “Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner. Nothing in this Act shall limit an employer from disciplining a registered qualifying patient for violating a workplace drug policy. Nothing in this Act shall limit an employer’s ability to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.”14


“Discrimination

Prohibited”


“Employment;

employer liability”

14 In the absence of any court decision holding otherwise, this “safe harbor” provision may allow an employer to take adverse action without violating the intent of the Illinois medical marijuana law.

19

Illinois (Recreational)15

“Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act [Illinois Recreational Marijuana Law] . . . it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. As used in this Section, “lawful products” means products that are legal under state law.” “Nothing in this [the Illinois Recreational Marijuana] Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, provided that the policy is applied in a nondiscriminatory manner.” “Nothing in this [the Illinois Recreational Marijuana] Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.”16 “Nothing in this [the Illinois Recreational Marijuana] Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.” “Nothing in this [the Illinois Recreational Marijuana] Act shall be construed to interfere with any federal, state, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation[s] or impact an employer’s ability to comply with federal or state law or cause it to lose a federal or state contract or funding.”


“Discrimination for use of lawful

products prohibited.”

(Recreational

Marijuana Statute/Law

Citation Pending)

“Employment; employer liability”

15 At this time, it is unknown how an Illinois court will interpret the Illinois recreational marijuana law in

conjunction with its “lawful activities” statute. Until further guidance is received, Illinois is included on the “recreational protection” portion of this table (although such protection may not exist). 16 In Illinois, an employer may consider an employee to be “impaired” or “under the influence” if the employer has a “good faith belief” of specific, articulable symptoms of impairment. If an employer

disciplines an employee due to a “good faith belief” of impairment, the employer must allow the employee a “reasonable opportunity to contest the basis of the determination.”

20

Maine (Medical)

“An employer may not refuse to employ or otherwise penalize a person solely for that person’s status as a qualifying patient or a caregiver unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.”

Me. Rev. Stat. tit. 22, § 2430-C

(Medical)

“School, Employer or Landlord May

Not Discriminate”

Maine (Recreational)

“Except as otherwise provided in the Maine Medical Use of Marijuana Act, an employer: 1. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace. 2. May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment. 3. May discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana.”17

Me. Rev. Stat. tit. 28-B, § 112 (Recreational)

“Employment

Policies”

Minnesota (Medical)

“Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following: (1) the person’s status as a patient enrolled in the [medical marijuana] registry program; or (2) a patient’s positive drug test for cannabis . . . unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.”

Minn. Stat. § 152.32(3)

“Discrimination

Prohibited”

17 The Maine recreational marijuana law is somewhat vague as to whether the language of the statute

provides protections for recreational marijuana users. In reading the medical and recreational marijuana

laws in Maine, an argument can be made that the recreational law provides an implied protection for recreational marijuana users engaging in off-duty marijuana use. If an employer wishes to exercise

maximum caution and risk avoidance, it should interpret the recreational marijuana statute’s reference to the medical marijuana statute as providing protections for recreational users. In the absence of express

protection, and any interpretative court decision or guidance, this implied protection is speculative.

21

New Jersey (Medical)

“It shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registry identification cardholder.” “If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer shall offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result, and shall provide written notice of the right to explain to the employee or job applicant. . . . As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis . . . , a registry identification card, or both.”

N.J. Rev. Stat. § 24:6I-6

New Mexico (Medical)

“Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or employee based on conduct allowed under the Lynn and Erin Compassionate Use Act.” “Nothing in this section shall: (1) restrict an employer’s ability to prohibit or take adverse employment action against an employee for the use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment; or (2) apply to an employee whose employer deems that the employee works in a safety-sensitive position.”18

N.M. Stat. § 26-2B-11

“Employment Protections”

New York (Medical)

“Non-discrimination. Being a certified patient shall be deemed to be having a “disability” under [the New York Human Rights Law]. . . . This subdivision shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance. This subdivision shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.”19

N.Y. Pub. Health Law § 3369

“Protections for the Medical Use of Marijuana”

18 The New Mexico medical marijuana law defines “safety-sensitive position” as “a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct

threat of injury or death to that person or another.”

19 The New York medical marijuana law provides implied protections for medical marijuana users. While

taking adverse action against a medical marijuana user may not technically violate the New York medical marijuana law, it raises disability discrimination concerns.

22

New York City (Pre-

Employment Drug Testing

For Marijuana)

“Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer . . . to require a prospective employee to submit to testing for the presence of any . . . marijuana in such prospective employee’s system as a condition of employment.”20

N.Y. City Admin. Code § 8-107, Subdivision 31

“Employment;

pre-employment drug testing

policy”

Nevada (Medical)

“[The Nevada medical marijuana law does not] require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not: (a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or (b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.” “[The Nevada medical marijuana law does not] require any employer to allow the medical use of marijuana in the workplace.”

Nev. Rev. Stat. § 453A.800(3)

“Medical Needs

of Employee Who Engages in Medical Use of Marijuana to be Accompanied by

Employer”

Nevada (Pre-

Employment Drug Testing

For Marijuana)

“Except as otherwise specifically provided by law: (1) It is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” 21

Nev. Rev. Stat. § 613

(Citation Pending)

20 The New York City prohibition of pre-employment marijuana testing does not apply to law enforcement

officers, positions requiring a commercial driver’s license, positions requiring supervision or care of children or medical patients, positions involving construction or demolition work, or positions “with the potential to

significantly impact the health or safety of employees or members of the public.” The law also does not apply to drug testing requirements pursuant to federal Department of Transportation regulations, federal

contractor agreements that require drug testing as a condition of receiving the contract or monetary funding, federal or state statutes or regulations requiring drug testing for applicants for purposes of safety

or security, or pursuant to a collective bargaining agreement. 21 The Nevada prohibition of pre-employment marijuana testing does not apply to firefighters, emergency medical technicians, positions requiring operation of a motor vehicle and for which federal or state law

requires a drug screen, or positions that, “in the determination of the employer, could adversely affect the safety of others.” The law also does not apply to drug testing requirements that may be found under an

employment contract or collective bargaining agreement, to positions of employment funded by a federal

grant, or “to the extent [the law] is inconsistent with or otherwise in conflict with the provisions of federal law.”

23

Oklahoma (Medical)

“Unless otherwise required by federal law or required to obtain federal funding: 1. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant’s or employee’s status as a medical marijuana licensee; and 2. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites, unless: (a) the applicant or employee is not in possession of a valid medical marijuana license, (b) the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or (c) the position is one involving safety-sensitive job duties.”22 “Nothing in the [Oklahoma medical marijuana law]: 1. Require[s] an employer to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment . . . 3. Prevent[s] an employer from having written policies regarding drug testing and impairment.”

Okla. Stat. tit. 63, § 427.8(H)

22 The Oklahoma medical marijuana law defines “safety-sensitive” as “any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the

task or others.” Examples cited within the statute include operation of vehicles, equipment, machinery, or power tools; repairing, maintaining, or monitoring performance or operation of equipment, machinery, or

the manufacturing process; handling chemicals or hazardous materials; or child or patient care.

24

Pennsylvania (Medical)

“No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.” “Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.” “A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana. A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.”23

35 Pa. Const. Stat. §

10231.2103

“Protections for Patients and Caregivers”

35 Pa. Const.

Stat. § 10231.510

“Prohibitions”

Rhode Island (Medical)

“No employer may refuse to employ, or otherwise penalize, a person solely for his or her status as a cardholder.”

R.I. Gen. Laws § 21-28.6-4

“Protections for the Medical Use of Marijuana”

23 The Pennsylvania medical marijuana law also states that a medical marijuana user may not perform

employment duties at heights or in confined spaces.

25

West Virginia (Medical)

“No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.” “Nothing in this act shall require an employer to make any accommodation of the use of medical cannabis on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical cannabis in the workplace or for working while under the influence of medical cannabis when the employee’s conduct falls below the standard of care normally accepted for that position.” “Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.”

W. Va. Code § 16A-15-4(b)

“Protections for

Patients and Caregivers”

Key Takeaways – Statutory Protections for Marijuana Users

Statutory, anti-discrimination provisions are sometimes restricted to scenarios

where an employer takes action “solely” based on an individual’s medical marijuana cardholder status and/or a positive drug test for marijuana. Theoretically, there are arguments that could be made that adverse action24 is taken for some other reason—such as violation of a drug test policy. However, because of the express statutory protections in these states and published court decisions interpreting these statutes, employers are advised to take a very risk-averse approach and assume that a statutory violation may occur if adverse action is taken against a medical marijuana cardholder.

Generally, all of the above statutes/laws contain several key exceptions:

o Employers who are subject to federal regulatory oversight, such as Department of Transportation regulations. In other words, “DOT drivers” are excepted from the above statutes/laws.

o Employers who are government contractors and who could lose federal licensing or funding by failing to adhere to federal law, such as the federal Drug Free Workplace Act (DFWA) or the terms of a federal contract. Note that it is a common misperception that merely being a government

24 “Adverse action” as used in this guide means termination, suspension, demotion, written discipline,

rescission of a job offer, or other changes in the terms and conditions of an individual’s employment.

26

contractor exempts an employer from state marijuana laws. This is not necessarily the case since the DFWA does not actually require drug testing, nor does it require employers to terminate employees for a positive drug test. The DFWA requires employers to make a “good faith effort” to maintain a drug free workplace, and prohibits employees from using controlled substances in the workplace (as opposed to off-duty use). However, government contractor status does provide added flexibility for an employer in handling marijuana issues.

o Employers are not prohibited from taking adverse action against employees

who are under the influence of marijuana in the workplace, who use marijuana in the workplace, or who are in possession of marijuana in the workplace.

In some states, the statutory anti-discrimination provisions do not apply to “safety-

sensitive” job positions. While this term is defined differently, employers should generally use a “direct threat” definition—positions where impairment could result in a direct threat to the health or safety of the employee or others.

Notwithstanding some of the language referring to federal law (e.g., violation of federal law), employers are strongly discouraged from relying on marijuana’s illegal status under federal law (the popular and short-sighted “illegal under federal law” defense) as an excuse not to comply with the above statutes/laws. Courts have regularly held that federal law will not preempt state marijuana laws. References in these statutes to “violations of federal law” alludes to federal law requirements such as the Drug Free Workplace Act or Department of Transportation regulations.

The above table does not reflect disability discrimination claims, which is a separate concern for employers. Disability discrimination issues are discussed in the subsequent section.

27

COURT DECISIONS - INTERPRETATION OF MEDICAL MARIJUANA LAWS

(Favorable Cases for Employers)

STATE CASE(S) KEY TAKEWAYS FOR

EMPLOYERS

California Ross v. RagingWire Telecommunications

2008 – California Supreme

Court

Shepherd v. Kohl’s

2016 – Federal District Court (Eastern District of California)

-The California medical marijuana statute does not provide a cause of action for applicants/employees against employers. Medical marijuana users cannot state an actionable claim that an employer is violating the medical marijuana statute by taking adverse action against them. -Under the facts of these cases,25 the California Fair Employment and Housing Act’s disability discrimination provision does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test for marijuana.

25 Disability discrimination cases are always fact-intensive. While employers should view these cases as strong precedent that courts in these states would rely upon in analyzing discrimination claims, employers

should also be mindful that “bad facts” could result in an unfavorable ruling.

28

Colorado Curry v. MillerCoors

2013 – Federal District Court (District of Colorado)

Steele v. Stallion Rockies

2015 – Federal District Court

(District of Colorado)

Coats v. Dish Network

2015 – Colorado Supreme Court

-While legalized, medical marijuana is not a “Lawful Activity” under the Colorado Lawful Activities Statute—which prohibits termination of employees engaging in “lawful activity.” - Under the facts of these cases, the Colorado Anti-Discrimination Act’s disability discrimination provision does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test. -The Americans with Disabilities Act (ADA) does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test for marijuana.

Maine Savage v. Maine Pretrial Services

2013 – Maine Supreme

Judicial Court

-This case held that the Maine medical marijuana statute did not provide a cause of action for applicants/employees against employers. -This case has little probative value because Maine’s medical marijuana statute now provides statutory protections for medical marijuana users.

29

Michigan Casias 2012 – Federal Appellate

Court (Sixth Circuit Court of Appeals)

Eplee v. City of Lansing

2019 – Michigan Court of Appeals

-The Michigan medical marijuana statute does not provide a cause of action for applicants/employees against employers. Medical marijuana users cannot state an actionable claim that an employer is violating the medical marijuana statute by taking adverse action against them.

Montana Johnson v. Columbia Falls Aluminum

2009 – Montana Supreme

Court

Carlson v. Charter Communications


(District of Montana)

-The Montana medical marijuana statute does not provide a cause of action for applicants/employees against employers. Medical marijuana users cannot state an actionable claim that an employer is violating the medical marijuana statute by taking adverse action against them. -Under the facts of these cases, the Montana Human Rights Act’s disability discrimination provision does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test. -The Americans with Disabilities Act (ADA) does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test for marijuana.

30

New Jersey Barrett v. Robert Half Corporation


(District of New Jersey)

Cotto v. Ardagh Glass Packing


(District of New Jersey)

-The New Jersey medical marijuana statute does not provide a cause of action for applicants/employees against employers. Medical marijuana users cannot state an actionable claim that an employer is violating the medical marijuana statute by taking adverse action against them. -Under the facts of these cases, the New Jersey Law Against Discrimination’s disability discrimination provision does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test for marijuana. -Ability to pass a drug test may be considered an essential job function.

31

New Mexico Garcia v. Tractor Supply

2016 – Federal District Court (District of New Mexico)

-The New Mexico medical marijuana statute does not provide a cause of action for applicants/employees against employers. Medical marijuana users cannot state an actionable claim that an employer is violating the medical marijuana statute by taking adverse action against them. -Under the facts of these cases, the New Mexico Human Rights Act’s disability discrimination provision does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test for marijuana.

Pennsylvania Parrotta v. PECO Energy Co.

2019 – Federal District Court (Eastern District of

Pennsylvania)

-This case dealt with a terminated employee who “self-prescribed” himself marijuana for a medical condition. Technically, this case did not address the Pennsylvania medical marijuana statute, but indicated that a court may be employer-friendly if a disability-related claim arose against an employer involving a medical marijuana cardholder.

32

Washington Roe v. Teletech Customer Care Management

2011 – Washington Supreme

Court

Swaw v. Safeway

2017 – Federal District Court (Western District of

Washington)

-The Washington medical marijuana statute does not provide a cause of action for applicants/employees against employers. Medical marijuana users cannot state an actionable claim that an employer is violating the medical marijuana statute by taking adverse action against them. -Under the facts of these cases, the Washington Law Against Discrimination’s disability discrimination provision does not require an employer to accommodate the use of medical marijuana or prohibit an employer from taking adverse action against a medical marijuana user in the event of a failed drug test for marijuana.

33

COURT DECISIONS - INTERPRETATION OF MEDICAL MARIJUANA LAWS

(Unfavorable Cases for Employers)

STATE CASE(S) KEY TAKEWAYS FOR

EMPLOYERS

Arizona Whitmire

2019 – Federal District Court (District of Arizona)

- The Arizona medical marijuana statute provides a cause of action for applicants/employees against employers. -Taking adverse action against medical marijuana users, in violation of the anti-discrimination provision in Arizona’s medical marijuana statute, is prohibited. -The Arizona medical marijuana statute is not preempted by federal law.

34

Connecticut Noffsinger v. SSC Niantic Operating Company

2017-2018 – Federal District

Court (District of Connecticut)

- The Connecticut medical marijuana statute provides a cause of action for applicants/employees against employers. - Taking adverse action against medical marijuana users, in violation of the anti-discrimination provision in Connecticut’s medical marijuana statute, is prohibited. -The Connecticut medical marijuana statute is not preempted by federal law. -An employer’s status as a government contractor does not eliminate the employer’s obligation to comply with the Connecticut medical marijuana statute. The Drug Free Workplace Act does not require employers to drug test, nor does the Act prohibit employers from employing individuals who use illegal drugs outside of work.

35

Delaware Chance v. Kraft Heinz Foods

2018 – Delaware Superior Court

- The Delaware medical marijuana statute provides a cause of action for applicants/employees against employers. - Taking adverse action against medical marijuana users, in violation of the anti-discrimination provision in Delaware’s medical marijuana statute, is prohibited. -The Delaware medical marijuana statute is not preempted by federal law.

District of Columbia Coles v. Harris Teeter

2017 – Federal District Court (District of D.C.)

-Under the facts of this case, a medical marijuana user may be able to assert a claim of disability discrimination under the DC Human Rights Act.

Massachusetts Barbuto v. Advantage Sales & Marketing

2017 – Massachusetts Supreme Judicial Court

-Under the facts of this case, a medical marijuana user may be able to assert a claim of disability discrimination under Massachusetts’ anti-discrimination laws, Chapter 151B.

New Jersey Wild v. Carriage Funeral Holdings, Inc.

2019 – New Jersey Court of

Appeals

-Under the facts of this case, a medical marijuana user may be able to assert a claim of disability discrimination under the New Jersey Law Against Discrimination (a/k/a New Jersey’s anti-discrimination laws)

36

Rhode Island Callaghan v. Darlington Fabrics

2017 – Rhode Island Superior

Court

- The Rhode Island medical marijuana statute provides a cause of action for applicants/employees against employers. - Taking adverse action against medical marijuana users, in violation of the anti-discrimination provision in Rhode Island’s medical marijuana statute, is prohibited. -The Rhode Island medical marijuana statute is not preempted by federal law. -Under the facts of this case, a medical marijuana user may be able to assert a claim of disability discrimination under the Rhode Island Civil Rights Act.

Key Takeaways – Unfavorable Court Decisions

The “illegal under federal law” argument has been greatly minimized in these

states, specifically where courts have held that state marijuana laws are not preempted by federal law.

Taking adverse action against an applicant or employee who is a medical marijuana user in a state where there are statutory protections in place is dangerous and would likely subject an employer to legal claims or exposure.

There are two parallel concerns for employers: (1) Is there a statutory violation of the medical marijuana law, and (2) Are there grounds for a disability discrimination claim under state or federal anti-discrimination laws (e.g., ADA or state equivalents). In other words, there are two different ways a medical marijuana user could claim that an employer has violated his or her rights.

The DC, Massachusetts, and New Jersey courts did not opine on the validity of the disability discrimination claims in Coles v. Harris Teeter, Wild v. Carriage Funeral Holdings, Inc., or Barbuto v. Advantage Sales & Marketing. Instead, the courts simply held that the plaintiffs in each case could proceed with their lawsuits and assert disability discrimination claims.

37

Disability claims can come in many shapes and sizes. Theoretically, if someone is

using medical marijuana, he or she has some type of underlying medical condition that would be considered a “disability.” Therefore, disability claims could arise out of several, somewhat overlapping theories: (1) “Regarded as” disability claims (i.e., an employer “regards” or “perceives” someone as being disabled because of their medical marijuana use), (2) Conflation of treatment and medical condition (i.e., a person is disabled because of the way he or she treats his or her medical condition), or (3) Failure to accommodate an individual’s medical marijuana use and/or failure to engage in the “interactive process” for a potential accommodation.

STATE CATEGORIES

States where there are NO PROTECTIONS for Marijuana Users

o Alabama o Georgia o Idaho o Indiana o Iowa o Kansas o Kentucky o Mississippi o Nebraska

o North Carolina o South Carolina o South Dakota o Tennessee o Texas o Virginia o Wisconsin o Wyoming

In these states, employers may take adverse action against applicants or

employees who test positive for marijuana with minimal legal risks. (Note that any legal risk would likely be in the form of an invasion of privacy claim or another claim unrelated to medical marijuana use).

States where there are STATUTORY PROTECTIONS for Medical Marijuana Users

o Arizona o Arkansas o Connecticut o Delaware o Illinois o Maine o Minnesota o New Jersey

o New Mexico o New York o Nevada o Oklahoma o Pennsylvania o Rhode Island o West Virginia

38

In these states, employers are prohibited from taking adverse action against applicants or employees who are medical marijuana users, based upon their status as a medical marijuana user. Taking adverse action against medical marijuana users in these states could subject the employer to significant legal risks.

If faced with a positive drug test for a medical marijuana user, or if a medical

marijuana user provides notice of his or her status as a medical marijuana user, the issue should immediately be elevated to the legal department for further advisement.

States where there are STATUTORY PROTECTIONS for Recreational Marijuana Users

o Illinois o Maine In these states, employers may be prohibited from taking adverse action against

applicants or employees who are recreational marijuana users (although it is not 100% clear whether recreational marijuana users have such protections in these states). Taking adverse action against recreational marijuana users in these states could subject the employer to medium legal risks.

If faced with a positive drug test for a recreational marijuana user, or if a

recreational marijuana user provides notice of his or her status as a recreational marijuana user, the issue should immediately be elevated to the legal department for further advisement.

States where there PROHIBITIONS ON PRE-EMPLOYMENT MARIJUANA TESTING

o Nevada o New York (New York City only)

In Nevada and New York City, employers are prohibited from conducting pre-

employment drug testing for marijuana for applicants and/or are prohibited from taking adverse employment action (i.e., rescinding an offer) based on a positive pre-employment test for marijuana.

States where COURT DECISIONS HAVE CREATED PROTECTIONS for Medical Marijuana Users

o District of Columbia o Massachusetts

o New Jersey o Rhode Island

In these states, courts have held that medical marijuana users may have

“disabilities” and protections under state disability discrimination laws. If an employer

39

takes adverse action against applicants or employees who are medical marijuana users in these states, these individuals could assert disability discrimination claims and subject the employer to significant legal risks. (While there is no reported court decision from New York on this subject, the New York medical marijuana law states that medical marijuana users are “disabled” and, therefore, New York should be included in this same grouping).

If faced with a positive drug test for a medical marijuana user, or if a medical

marijuana user provides notice of his or her status as a medical marijuana user, the issue should immediately be elevated to the legal department for further advisement.

States where courts have held that there are NO STATUTORY OR COURT

DECISION-CREATED PROTECTIONS for Medical Marijuana Users

o California o Colorado o Michigan o Montana

o New Jersey o New Mexico o Washington

In these states, courts have held that in the absence of a statutory anti-

discrimination provision, the medical marijuana laws do not provide protections for medical marijuana users. Courts in these states have also held that medical marijuana users have been unable to assert disability discrimination claims under either state disability discrimination laws or the Americans with Disabilities Act. Based upon reported cases in these states, taking adverse action against medical marijuana users would subject the employer to low-medium legal risks. The highest risk associated with adverse action in these states would be a disability-based claim, if there are “bad facts” that could create a viable claim.

If faced with a positive drug test for a medical marijuana user, adverse action may

be taken with only a low risk accompanying the action. If a medical marijuana user provides notice of his or her status as a medical marijuana user (without a related failed drug test), the best course would be to elevate the issue immediately to the legal department for further advisement.

Note that New Jersey is included, but the court decision referenced here pre-dated

New Jersey’s adoption of a statutory anti-discrimination provision.

States where there is NO PUBLISHED CLARITY for Medical Marijuana Users

o Alaska o Florida o Hawaii o Louisiana

o Maryland o Missouri o New Hampshire o North Dakota

40

o Ohio o Oregon

o Utah o Vermont

In these states, there have been no court decisions interpreting the medical

marijuana laws or addressing disability discrimination claims. In the absence of further guidance, taking adverse action against medical marijuana users could subject the employer to low-medium legal risks. The highest risk associated with adverse action in these states would be a disability-based claim, if there are “bad facts” that could create a viable claim.

If faced with a positive drug test for a medical marijuana user, adverse action may

be taken with only a low risk accompanying the action. If a medical marijuana user provides notice of his or her status as a medical marijuana user (without a related failed drug test), the best course would be to elevate the issue immediately to the legal department for further advisement.

BEST PRACTICES

If faced with a medical or recreational marijuana issue, elevate the issue to the legal department.

On-the-job use, possession, or intoxication associated with marijuana is not allowed in any state. Train supervisors to be able to detect impairment or intoxication in the workplace.

With respect to impairment and intoxication, employers should continue to maintain reasonable suspicion and post-accident testing for marijuana. Supervisors should document impairment or intoxication in a written form, which reflects the basis for reasonable suspicion testing.

Create good job descriptions for all positions and, if applicable, define and identify positions that are “safety-sensitive” in nature or that are governed by federal regulations (such as drivers subject to DOT regulations). From a practical standpoint, marijuana protections are more limited for safety-sensitive positions.

To the extent possible, ensure that disclosure of medical marijuana use is limited to Human Resources only—and ideally to higher-level, trained Human Resources professionals.

Regardless of the state, if medical marijuana is legalized, consider the possibility of entering into a “reasonable accommodation, interactive process” to determine whether the employer is able to accommodate the medical marijuana user. The focus of any interactive process should be on: (1) Safety, (2) Frequency of

41

Marijuana Use, (3) Duration of Impairment or Intoxication, and (4) Nature of the Job. Human Resources representatives should be trained on the reasonable accommodation process.

Potential questions to ask medical marijuana users when engaged in the reasonable accommodation, interactive process:

o Whether the individual’s medical marijuana use results in he or she being impaired or intoxicated during work hours.

o Whether the individual’s marijuana treatment schedule and dosage levels will result in the individual reporting to the workplace in an impaired or intoxicated state.

o Whether the individual must consume medical marijuana during off-duty

work hours, such as during a mid-shift meal period.

o Whether the individual’s job position involves safety-sensitive duties and responsibilities.

o Whether the individual’s underlying medical condition is temporary or permanent in nature.

o Whether the individual’s underlying medical condition can be effectively

treated in some way other than with marijuana.

o What types of accommodations can be provided to the individual to ensure he or she will not report to work under the influence.

Possible accommodations for a medical marijuana user:

o Transfer to a different job position where potential impairment or

intoxication may have no effect on safety

o Modification of an individual’s work schedule

o Temporary leave

o Utilization of alternative treatment other than marijuana or modification to treatment schedule or dosage levels

o Modified job duties and responsibilities

42

Only certified, medical marijuana cardholders (and, in some states, caregivers for marijuana cardholders) are entitled to protections—if at all. If someone is using medical marijuana without a valid card or registration, then the person is engaging in illegal activity, and the Company can treat that person the same way as if he or she failed a drug test for an illegal substance. The same analysis is applicable if an individual’s medical marijuana card or registration is dated after a drug test has occurred.

Employers should keep a close eye on any state-specific developments on

marijuana issues, which are rapidly evolving. Elevate any questions or concerns to the legal department.

Many employers have decided to eliminate pre-employment testing for marijuana. Generally, this is the most “risk-averse” approach—from both a statutory compliance and disability discrimination standpoint. As a best practice, employers should continue to maintain reasonable suspicion and post-accident testing, and should continue to conduct pre-employment testing for other substances.

Employers should review and, possibly, revise their drug testing policies on an as-needed basis (annual review would be ideal).

While “CBD Oil” laws do not contain express protections for users, the same disability-related claims and concerns discussed herein for medical marijuana also exist for CBD oil and other related substances. While a positive test is unlikely with CBD oil, an individual can still claim that an employer “perceived” him/her as disabled based on CBD oil use.

1

Weed Out Disability Claims in Drug Testing

Presented by

Michael K. Clarkson (Boston)

Rayna H. Jones (Phoenix)

Agenda

Medical Marijuana

Prescription Drugs and the ADA

EEOC Enforcement and Lawsuits

CBD and Hemp Products

Key Takeaways and Best Practices

2

MARIJUANA IN THE WORKPLACE

3

Marijuana Statutes and Job Protections

15 states with marijuana statutes containing express job protections/anti-discrimination provisions:1. Arizona2. Arkansas3. Connecticut4. Delaware5. Illinois (medical and recreational)6. Maine (medical and recreational)7. Minnesota8. New Jersey (2019)

9. New Mexico (2019)10. New York11. Nevada12. Oklahoma13. Pennsylvania14. Rhode Island15. West Virginia (2019)

Anti-Discrimination Provisions

Merely possessing a medical marijuana card, or testing positive for marijuana on random or pre-employment screen generally not sufficient cause for adverse action against employee

In most cases, employer must demonstrate that the employee used, possessed, or was impaired by the drug at work

4

Recreational Marijuana Statutes

Recreational marijuana is legal in 11 states plus D.C. Alaska California Colorado Washington, D.C. Illinois (1/1/20) Maine

Beware of “lawful off-duty conduct litigation”

Massachusetts Michigan Nevada Oregon Vermont Washington

Brief History of Reported Court Decisions

Pre-2017 Employer-Friendly Decisions Ross (California) Coats (Colorado) Savage (Maine) Johnson (Montana) Garcia (New Mexico) Roe (Washington)

Most held that state medical marijuana statutes did not provide for claims for adverse employment actions

Some cases addressed disability claims and requests for accommodation under the ADA

5

Brief History of Reported Court Decisions

Employee-friendly decisions in states where the medical marijuana statutes contain anti-discrimination provisions

Callaghan (Rhode Island)

Chance (Delaware)

Noffsinger (Connecticut)

Wild (New Jersey)

Barbuto v. Advantage Sales & Mktg.(Massachusetts Supreme Judicial Court, July 2017)

Claims

– Violation of the Massachusetts Medical Marijuana Act; handicap discrimination; wrongful termination in violation of public policy

Qualified medical marijuana user may assert claims for handicap discrimination

Employers must engage in an “interactive process” with medical marijuana user

No implied private right of action under statute

Termination did not violate public policy

6

Practical Impact

Do I have to accommodate off-duty legal marijuana use?

How do I engage in the interactive process with a medical marijuana user?

What about federal contractors?

Practical Impact

What types of drug testing should my company be conducting?

What about pre-employment marijuana testing in light of Nevada and NYC’s new laws?

Should I treat marijuana differently by state or should I have a uniform policy?

7

PRESCRIPTION DRUGS AND THE ADA AND FMLA

8

The Problem: Safety and Impairment

Studies show impairment in chronic narcotic use patients– Central nervous system

depression– Impaired visual perception– Sedation/drowsiness– Delayed reaction time– Motor skill impairment– Concentration impairment– Memory impairment– Judgment impairment– Dizziness


Prescription drug use is not a disability

But, prescription drugs are often used to treat conditions that qualify as a disability

Prescription drug addiction may constitute a disability

9


ADA prohibits discrimination based on disability…including if an employer “regards” or “perceives” an individual to be disabled


Generally, employers may not ask about employee’s use of prescription drugs

May be able to demonstrate job related and consistent with business necessity

Different rules for different stages of employment relationship– Pre-offer, post-offer, active

employee

10

Stages of Employment and Testing

Questions about legal drug use/current medications are impermissible at the pre-offer stage

After a drug test, employers may ask about current legal drug use that may explain a positive drug test

Testing for illegal drugs not a medical examination

Key Concepts: Direct Threat

Significant risk of substantial harm to the health or safety of the individual or others

Cannot be eliminated or reduced by reasonable accommodation

Requires individualized assessment

11

Key Concepts: Individualized Assessment

Present ability to safely perform the essential functions of the job

Observations (with documentation) of performance– Attendance

– Performance deficiencies

– Safety violations

• “Nodding off”

• Inattention

• Violation of safety rules

• Erratic or threatening behavior

Key Concepts: Individualized Assessment

Consequences of mistake

– Would the employee be killed? Hurt? Merely

embarrassed?

– Would other employees be killed or hurt?

– Would an environmental disaster result?

12

LAWSUITS AND EEOCENFORCEMENT ACTIONS

EEOC Enforcement Actions

Casino in South Dakota (2018)– Applicant failed pre-employment drug test

– Used lawfully prescribed hydrocodone

– Policy required employees to disclose prescription

and non-prescription drugs

– Did not consider if inquiry was job-related and

consistent with business necessity

– $45,000 settlement and agreed to change policy

13


Preschool in South Carolina (May 2018)– CP disclosed prior opiate addiction and Suboxone

use – ER failed to conduct individualized assessment – Settlement: Amend drug policy to exclude lawful

use of prescription drugs and add language re: individualized assessment to determine ability to safely perform job


Car Manufacturer in Maryland (2017)– 3-year consent decree and $70,000 for failure to

conduct individualized assessment

Car Dealership in Scottsdale (2017)– Dealership rescinded job offer after pre-

employment drug test revealed prescription drug used to treat disability

– $45,000 to settle ADA lawsuit

14

Stewart v. Snohomish County PUD No. 1 (2017)

Employer ordered to pay damages over $1.8M

Plaintiff terminated for second positive test for opioids used to treat her migraines after exhibiting signs of impairment at work

Court found employer failed to reasonably accommodate

Affirmed by 9th Circuit (2018)


Claims against employers for

– Policies that provide blanket prohibitions on prescription drug use

– Prescription drug disclosure for non-safety sensitive jobs

– No opportunity for a medical review

– No interactive dialog

15

Practical Impact

What if employee in safety-sensitive job tests positive for prescription drug (e.g., opioid for pain relief)?

What are employer’s accommodation obligations?

What if employee is in non-safety sensitive job?

CBD AND HEMP PRODUCTS

16


CBD sales in U.S. expected to reach $22 billion

by 2022

Pure CBD oil and low-THC products should have

THC levels too low to be detected

But CBD products are unregulated


What if an applicant or employee gets a positive drug test result?– Will not know what caused positive result

Consider revising policies to address CBD use– Employers in states with laws protecting medical

marijuana users may have a duty to accommodate the underlying condition prompting CBD use

– Some states specifically address CBD and low-THC products

17

KEY TAKEAWAYS AND BEST PRACTICES


Filter prescription drug/medical marijuana decisions through someone well-versed in the area

Review your substance abuse and disability policies

– Include language on abuse of prescription drugs

– Avoid blanket prohibitions against prescription medications

– CBD use not acceptable justification for positive test

• Exceptions

– Include reasonable accommodation language

18


Use of MRO

– Discuss with lab/MRO drug testing and reporting processes with respect to marijuana, prescription drugs, CBD

Educate workers

– Risk of drug abuse

– Marijuana law v. company policy

– Use of CBD products

Educate supervisors to spot signs of intoxication


Define and identify safety-sensitive jobs

Consider EAPs to help employees cope with drug/alcohol abuse

Watch (closely!) for new developments

19

Questions?

Weed Out Disability Claims in Drug Testing

Presented by

Michael K. Clarkson (Boston)

Rayna H. Jones (Phoenix)

Michael K. Clarkson

Shareholder || Boston

Mr. Clarkson is licensed to practice in Massachuse�s and regularly

appears in state and federal courts and before administrative agencies

across the country. In his work with Ogletree Deakins, Mr. Clarkson

litigates cases and counsels large and small private for-profit and not-

for-profit employers concerning discrimination, harassment, retaliation,

non-compete, wage and hour, employment contract, personnel policy

and drug testing issues. A large portion of Mr. Clarkson’s practice is

dedicated to workplace investigations. Mr. Clarkson is Co-Chair of the

Ogletree Deakins’ Drug Testing Practice Group and has particular

expertise in dra�ing drug testing policies and in the complex scientific

issues surrounding drug testing. Mr. Clarkson is a member of the firm’s

Diversi� and Inclusion Steering Commi�ee.

Mr. Clarkson frequently writes on and leads seminars on employment

law and human resource issues. Mr. Clarkson is “Preeminent AV” rated

by Martindale-Hubbell (reflecting the highest ethical standards and legal

abili�) and was named a “Super Lawyer” in Boston Magazine’s ��-

present Massachuse�s Super Lawyer editions and a “Rising Star” in the

��-�� editions. When asked what sets Mr. Clarkson apart from

other a�orneys, a client praised “his responsiveness, his abili� to find a

subject-ma�er expert for me immediately, and his understanding of my

business.”

Mr. Clarkson is Vice Chair of the Employment Law and Litigation

Commi�ee of the American Bar Association’s Tort Trial and Insurance

Practice Section.

Before joining Ogletree Deakins, Mr. Clarkson was a partner and

member of the Management Commi�ee at a Boston-based

management-side labor and employment firm. Before moving to

Massachuse�s, Mr. Clarkson worked in California as a litigation

associate at an insurance defense firm and as a sta� a�orney for the

Environmental Law Foundation. Mr. Clarkson received his

undergraduate degree in Industrial and Labor Relations from Cornell

Universi� and is currently a member of the ILR School’s Alumni Board

of Directors. Mr. Clarkson received his law degree from Universi� of

California, Hastings College of the Law where he represented the

Universi� at the National Moot Court Competition and taught “Street

Law” at Galileo High School in San Francisco.

https://ogletree.com/locations/boston

tel:+16179945727

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=3765&name=michael-k-clarkson

https://ogletree.com/

Rayna H. JonesShareholder || Phoenix

Rayna Jones has spent her entire career representing and counseling

employers on all aspects of employment law. Rayna focuses on

providing employers with practical advice for e�ectively managing

employment issues. She is experienced representing and advising

national, regional, and local clients on issues related to litigation

prevention, employment discrimination and harassment, wage and

hour, noncompetition, employee discipline, hiring, and termination,

leaves of absences, drug testing, reductions in force, mergers and

acquisitions, and other personnel ma�ers. Rayna also has extensive

experience dra�ing multi-state handbooks and policies, drug testing

policies, and employment, termination, severance, independent

contractor, and restrictive covenant agreements. Rayna regularly advises

employers on navigating multi-state drug testing issues and on

recreational and medical marijuana laws. Rayna has successfully

responded on behalf of employers to state and federal agencies in

numerous claims or charges under anti-discrimination, wage and hour,

and employee leave laws. She is also an experienced employment

litigator handling case in federal and state court.

Prior to joining Ogletree’s Phoenix o�ce, Rayna worked for Ogletree in

both Atlanta, Georgia and Austin, Texas.

In addition to practicing at firms in Arizona, Texas and Georgia, Rayna

served as in-house Corporate Counsel for �e Home Depot from ��

through �� where she managed employment litigation and regularly

advised internal clients on handling employment disputes, responding

to administrative charges and managing day-to-day employee issues.

Because of her in-house experience and strong counseling skills, Rayna

has been seconded to clients and continues to provide interim coverage

for clients who need in-house employment counsel services on a

temporary or on-going basis. �ese experiences have given Rayna

valuable insight into the needs and expectations of both legal and

internal business partners, which she is able to use in providing timely,

practical, and insightful advice to her clients.

Prior to working at Ogletree, Rayna practiced in Austin, Texas where

she had a particular emphasis on counseling technology and emerging-

growth companies on employment issues.

Rayna is admi�ed in Texas, Georgia, and Arizona.

https://ogletree.com/locations/phoenix

tel:+16027783776

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=4056&name=rayna-h-jones

https://ogletree.com/

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