Tag Archives: drug testing

NEW LAW: New Drug Free Workplace Requirements For Tennessee Employers

 

The Tennessee Department of Labor recently published revised regulations relating to the Tennessee Drug-Free Workplace Act.  While employer participation in this program is voluntary, employers who choose to participate in the program must meet certain criteria relating to drug testing, training and employee notice of the drug testing policy.

The new regulations have significantly changed some of these criteria in the following areas:

  • Types of drugs employers are required to test for. This list has been revised to mirror the types of drugs the federal Department of Labor currently tests for (marijuana, cocaine, amphetamines, opioids, PCP, and alcohol.
  • Impact of positive test for other substances. While employers are still permitted to test for other substances, a positive test result no longer creates a presumption that workers’ compensation and/or unemployment benefits should be denied.
  • Lower blood alcohol content threshold for all employees. The threshold for a positive blood alcohol test for employees in on-safety-sensitive positions has been lowered to 0.04 (from 0.08).  This is now the same as the blood alcohol level for employees in safety-sensitive positions.
  • Newly defined “reasonable suspicion”. Employers are required to conduct reasonable suspicion drug testing, but the definition of reasonable suspicion has been expanded to include “an accident which results in an injury to another individual or in property damage exceeding $5,000.”
  • Shorter time frame for documentation of reasonable suspicion.  Employers always had a duty to document their basis for reasonable suspicion drug testing, but now they must document the basis for reasonable suspicion within 24 hours and provide that basis to the employee within that time frame.
  • New employee training requirements. Employers have always had a requirement to train employees regarding the Drug Free Workplace Program.  Now employers only have to provide that training to employees one time during the employment relationship (as opposed to annually).  The training must be provided within 60 days of the employer’s adoption of a Drug-Free Workplace Program or within 60 days of the employee’s hire date.  In addition, employers are required to provide supervisors 2 hours of training related to its Drug Free Workplace Program, but that training only need be provided once.  The training must include information on the employer’s Drug-Free Workplace Program policies, testing procedures, consequences for violation the policies, the specific drugs to be tested for, and any substance abuse or employee assistance programs available to employees.

It is recommended that employers who currently participate in the Tennessee Drug Free Workplace Program (or think they want to) review the new regulations.

NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law


The Vermont Attorney General recently issued the Guide to Vermont’s Laws on Marijuana in the Workplace, which provides employers with an overview of the changes to Vermont’s marijuana laws, and summarizes existing employment laws relating to drug testing in the workplace.

Vermont’s  recreational marijuana law legalized marijuana for recreational use starting July 1, 2018.  This new law left employers wondering what rights they had to control drug use within their workforce.  The new Guide clarifies that employers maintain certain rights with respect to employee drug use, including: Continue reading NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law

NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

On June 26, 2018, Oklahoma voters passed State Question 788, which legalizes marijuana use for medical purposes in Oklahoma.   With the passage of this ballot measure, Oklahoma became the 30th state to pass a medical marijuana law.

The new law goes into effect on July 26, 2018, and does have some implications for Oklahoma employers.  Specifically, the law prohibits employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result.

While the new law does prohibit employers from discriminating against medical marijuana license holders, employers are permitted to take action against a holder of a medical marijuana license holder if the holders use or possess marijuana while in the holder’s place of employment or during the hours of employment.

Take Home For Employers Continue reading NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

New Medical Marijuana Case Impacts Rhode Island Employers

In a recent decision (Callaghan v. Darlington Fabrics Corp.), the Rhode Island Supreme Court has held that under Rhode Island law, an employer cannot refuse to hire a medical marijuana cardholder, even if the applicant admits during the interview that he/she will not be able to pass the employer’s mandatory pre-employment drug test.

The Case

In this case, the plaintiff had applied for a paid internship with Darlington Fabrics. During a meeting with the company’s Human Resources Coordinator, she informed the Human Resources Coordinator that she had a medical marijuana card. At this meeting, the plaintiff also signed Darlington’s Fitness for Duty Statement, acknowledging she would have to take a drug test prior to being hired.

In a subsequent conversation with the Human Resources Coordinator, the plaintiff was asked if she was currently using medical marijuana and the plaintiff responded “Yes.” The plaintiff then indicated that because of her medical marijuana use, she would test positive on her pre-employment drug screening.

In response, the Human Resources Coordinator informed the plaintiff that a positive drug test would “prevent the Company from hiring her.” The plaintiff then told the Human Resources Coordinator that she was allergic to many other painkillers and that she would neither use marijuana in or bring it to the workplace.

 

Following that conversation, the Human Resources Coordinator called the plaintiff and told her that the company was “unable to hire her.” The plaintiff sued the company under the Rhode Island medical marijuana law, the Hawkins-Slater Act, as well as the state’s disability discrimination statute, for refusing to hire her.

 

The Court’s Ruling

The ruling in this case centered on the Court’s interpretation of two separate provisions of the Hawkins-Slater Act:

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

and

“Nothing in this chapter shall be construed to require … [a]n employer to accommodate the medical use of marijuana in any workplace.”

Based on the above-quoted language, the Court found that the statute does, in some way, require employers to accommodate the medical use of marijuana outside the workplace. Specifically, the Court found that the Hawkins-Slater Act prohibits employers both from refusing to employ a person for his or her status as a cardholder, and also from refusing to hire an applicant because of his/her use of medical marijuana.

In practical application, the Court believed that by finding the action the company took (rejecting an applicant because she would be unable to pass the pre-employment drug test due to her medical marijuana use) was lawful, such a finding would void the protections afforded to medical marijuana users under the law because a patient who, by virtue of his or her condition, has to use medical marijuana once or twice a week in a worse position than a recreational user. The recreational user could cease smoking long enough to pass the drug test and get hired, and subsequently not be subject to future drug tests, allowing him or her to smoke recreationally to his or her heart’s content. The medical user, however, would not be able to cease for long enough to pass the drug test, even though his or her use is necessary to “treat or alleviate pain, nausea, and other symptoms associated with certain debilitating medical conditions.”

With respect to the plaintiff’s disability discrimination claim, the court held that discrimination could be shown “against a class of disabled people — namely, those people with disabilities best treated by medical marijuana.” It also held that medical marijuana users are able to bring a state law disability discrimination claim, despite that: (1) the law disclaims protections to those who seek remedies based on his or her illegal drug use; and (2) marijuana remains illegal under federal law.

Take home for employers

This new holding complicates things for Rhode Island employers who conduct drug testing for marijuana. An employee’s off-duty use of medical marijuana may cause the employee to test positive on a workplace drug test because marijuana may stay in the fatty tissues of the body for weeks. Rhode Island employers who conduct any form of drug need to consider the marijuana laws affecting their workplaces and how they will handle the question before an actual issue arises.

The DOT’s New Commercial Driver’s License Drug and Alcohol Clearinghouse

In December of 2016, the U.S. Department of Transportation announced a final rule establishing a new “Commercial Driver’s License Drug and Alcohol Clearinghouse.”

This new rule requires covered employers (e.g. Federal Motor Carrier Safety Administration (FMCSA) regulated employers) to register with the Clearinghouse on or after January 6, 2020. After registering, covered employers will be required to report information related to violations of the DOT’s drug and alcohol regulations by current and prospective employees to the Clearinghouse by the close of the third business day following the date the employer obtained the information. Among information that must be reported will be:

  • Verified positive, adulterated, or substituted DOT drug test results.
  • DOT alcohol confirmation tests with a concentration of 0.04 or higher.
  • Refusal to submit to any DOT-mandated test.
  • An employer’s actual knowledge of DOT-prohibited alcohol and drug use.

Covered employers will have no obligation to report drug and alcohol use that is not prohibited by DOT rules or to report the results of testing that is not mandated by DOT.

In addition to the foregoing, covered employers will be required to make annual inquiries to the Clearinghouse about current drivers subject to DOT drug and alcohol testing rules. Employers that learn of reportable information from that inquiry will be prohibited from returning the driver to safety-sensitive work until the driver completes the DOT return-to-duty process.

Employers will not be able to perform these inquiries without first obtaining the applicant’s or driver’s written or electronic consent. In addition, before an employer may access records about a driver, the driver will be required to submit electronic consent to the Clearinghouse. If a driver refuses to provide consent to the employer and to the Clearinghouse, the driver may not be permitted to perform DOT safety-sensitive work.

Impact on Employers

At the present time, employers are not required to comply with the new regulations. The Clearinghouse has not been created; therefore, there is no obligation for employers to comply until January 6, 2020.

Impact of North Dakota’s New Medical Marijuana Law on Employers

The North Dakota Compassionate Care Act is the newly passed medical marijuana law in North Dakota, which was approved by voters in the 2016 election.

This new law allows individuals with certain “debilitating medical conditions” to use medical marijuana to treat those conditions. Included in the list of “debilitating medical conditions” are cancer and its treatments, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), decompensated cirrhosis (Hepatitis C), amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease), post-traumatic stress disorder (PTSD), agitation of Alzheimer’s disease, dementia, or the treatment of these conditions, Crohn’s disease or Fibromyalgia, spinal stenosis or chronic back pain including neuropathy or damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, glaucoma, and epilepsy. In addition, individuals suffering from a chronic or debilitating disease medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe debilitating pain that has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side effects; intractable nausea; seizures; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis and/or any other medical condition or its treatment added by the North Dakota Department of Health” may legally use medical marijuana.

The new law goes into effect December 8, 2016.

The impact on employers?

Under the new law, North Dakota employers are not required to accommodate any “on-site medical use of marijuana” in any place of employment. However, the law does not address whether employers are required to extend reasonable accommodations to medical-marijuana-using applicants or employees who happen to have the drug in their system while on duty at work or submitting to a pre-hire drug test. It is recommended that employers develop a plan to handle these situations and then enforce that plan consistently.

In addition, the law also does not address the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Impact of Arkansas’ New Medical Marijuana Law on Employers

The Arkansas Medical Cannabis Act is the newly passed medical marijuana law in Arkansas, which was approved by voters in the 2016 election.

This new law allows individuals with “qualifying medical conditions” to use medical marijuana to treat those conditions. Included in the list of “qualifying medical conditions” are arthritis, cancer, glaucoma, positive status for human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and multiple sclerosis. In addition, individuals suffering from “chronic or debilitating disease[s] that produce severe nausea,” intractable pain, seizures, severe and persistent muscle spasms, or any other medical condition approved by the Arkansas Department of Health may legally use medical marijuana.

The new law went into effect on November 9, 2016

The impact on employers?

With this new law, Arkansas created a new protected class around medical marijuana use. Under the new law, employers are prohibited from terminating an employee based on his/her medical marijuana use. In other words, an employer cannot fire an employee simply because he/she has a prescription to use medical marijuana. An employer can, however, terminate an employee for coming to work “high.” In addition, the new law does not require employers to accommodate an employee’s request to use medical marijuana in the workplace.

One thing the law does not address, however, is the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Impact of Florida’s New Medical Marijuana Law on Employers

The Florida Medical Marijuana Legislation Initiative is the newly passed medical marijuana law in Florida, which was approved by voters in the 2016 election.

This new law allows individuals with certain “debilitating medical conditions” to use medical marijuana to treat those conditions. Included in the list of “debilitating medical conditions” are cancer, epilepsy, glaucoma, the human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and multiple sclerosis. In addition, individuals suffering from “other debilitating medical conditions of the same kind or class as or comparable” to this list, so long as a physician believes that the medical use of marijuana would “likely outweigh the potential health risks for a patient” may legally use medical marijuana.

The new law goes into effect January 3, 2017.

The impact on employers?

Under the new law, Florida employers are not required to accommodate any “on-site medical use of marijuana” in any place of employment. However, the law does not address whether employers are required to extend reasonable accommodations to medical-marijuana-using applicants or employees who happen to have the drug in their system while on duty at work or submitting to a pre-hire drug test. It is recommended that employers develop a plan to handle these situations and then enforce that plan consistently.

In addition, the law also does not address the use of drug testing (pre-employment, safety-sensitive, or reasonable suspicion) on an employee who uses medical marijuana. Current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

Medical Marijuana Is Legal In New York – What’s The Impact On New York Employers?

The New York Compassionate Care Act has been “on the books” since July 2014, but its impact was not felt until January 6, 2016, when the Commissioner of Health of the State of New York certified that the medical marijuana program established by the Compassionate Care Act could be implemented. Following this announcement, medical marijuana dispensaries began distributing medical marijuana in New York.

What Does This Mean For New York Employers?

Included in the New York Compassionate Care Act are protections for employees who use medical marijuana. Specifically, the act provides that “certified patients” (persons with a “severe, debilitating or life threatening condition” that is accompanied by an associated or complicating condition” who has been certified by a physician who is registered with the New York Department of Health to certify patients under the Act as having the required “condition”) are protected from being disciplined by the employer because of their use of medical marijuana.

In addition, the New York Compassionate Care Act amended the New York State Human Rights Law by expanding the definition of “disability” to include being a certified patient who has been prescribed medical marijuana. Therefore, New York employers with 4 or more employees are prohibited from discriminating against these individuals. Employers are also required to provide reasonable accommodation to employees (or applicants) who are certified to use medical marijuana. However the reasonable accommodation aspect of the law does not require employers to allowing the employee to carry marijuana onto work property or to use it on work premises.

While there are protections for these certified patients, the Compassionate Care Act sets forth two exceptions that allows employers to adopt and maintain reasonable policies or procedures (including drug testing) to ensure that employees are not working while under the influence of a controlled substance (including medical marijuana) or engaging in the illegal use of drugs. Specifically, the law does not:

  1. Bar enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance; and
  2. 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.

Take Home Message For New York Employers

New York employers need to educate themselves about their obligations under the New York Compassionate Care Act and be prepared to work with those employees who use medical marijuana. In taking these steps, employers should educate their managers about their obligations under this law. Finally, New York employers should also review their existing drug free workplace policies to ensure that they are compliant with this law.

Recovering Drug Addict Can Be Covered Under The ADA

The EEOC recently filed a lawsuit against a temporary labor agency because they violated the Americans with Disabilities Act, (ADA) when they refused to hire a recovering addict because of her disability.

According to the charges filed by the EEOC, the applicant (Ms. Cox) has been in a medically supervised rehabilitation program for four years and has not used illegal drugs since enrolling in the program. As part of her rehabilitation program, Ms. Cox uses medically prescribed methadone.

In January of 2015, Ms. Cox applied for an open production labor position with a client of the staffing agency. During the application/interview process, the manager told Ms. Cox that she had enough experience to advance to the next step of the hiring process, which included a pre-employment drug test.  Ms. Cox was then given a cup and asked to provide a urine sample.

After giving the sample, Ms. Cox disclosed to the hiring manager that she was in a medically supervised methadone treatment program. The hiring manager took the cup back and said “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” The applicant repeatedly called back informing the hiring manager that she did not have any medical restrictions from performing the labor position. Yet, the company refused to hire Ms. Cox because she used methadone.

In commenting on this case, the EEOC Regional Attorney Debra M. Lawrence stated, “Medically prescribed methadone is a common and safe treatment for people recovering from drug addiction.  The Commission will take action if an employer refuses to hire a qualified applicant based on unwarranted or speculative fears or biases about her disability or her medically supervised drug rehabilitation.”

The take-home lesson for employers — if your company uses pre-employment drug testing during the hiring process, an applicant’s medically supervised drug rehabilitation is a protected disability that cannot be the basis for refusing to hire an otherwise qualified applicant.  Employers should take a careful look at their hiring policies (especially with respect to drug testing) to verify that they are compliant with the ADA.