Drug Testing and Marijuana in the New England Workplace. Presented by: Charlie Einsiedler and Dan Strader October 11, 2018

Transcription

1 Drug Testing and Marijuana in the New England Workplace Presented by: Charlie Einsiedler and Dan Strader October 11, 2018

2 Overview of Presentation What laws apply in each state? May employers prohibit use in and/or outside workplace? Duty to accommodate? What laws apply to drug testing policies? 2

3 Medical Marijuana and Accommodation

4 Overview of Laws - Maine Maine Medical Use of Marijuana Act Marijuana Legalization Act Maine s Substance Abuse Testing Law 4

5 Medical Marijuana - Maine Employer may not refuse to employ or otherwise penalize a person solely for that person s status as a qualifying patient or a primary caregiver unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or finding. (22 M.R.S E(2)) A business owner may prohibit the smoking of marijuana for medical purposes on the premises of the business if the business owner prohibits all smoking on the premises and posts notice to that effect on the premises. (Id.) Employer is not required to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence. (22 M.R.S (2)(B)) 5

6 Medical Marijuana Maine Accommodation Employer is not required to accommodate ingestion of marijuana in any workplace Employer is not required to allow employee to work under the influence of marijuana Employer is not required to provide insurance coverage for medical marijuana But, employer may not discriminate against an employee solely for use of medical marijuana outside of work unless exception applies 6

7 Bourgoin v. Twin Rivers Paper Co. (Me. June 14, 2018) Employee suffered a workplace injury and was prescribed marijuana for chronic pain. He filed a petition with the WC Board requesting that his employer be required to pay for his marijuana as a form of treatment, and the employer declined. Law Court held that if the employer knowingly subsidized the employee s purchase of marijuana, it would be aiding and abetting his violation of the federal Controlled Substances Act, which is itself a violation of the CSA. Case does not address workplace accommodations, but it cites to cases in other jurisdictions which held that an employer was not required to accommodate medical marijuana use by employees even outside of work. Indicates that Law Court may support the position that accommodation is not required, e.g., failure of a drug test or possession at work. 7

8 Medical Marijuana Maine Accommodation (cont.) What can an employer do with an employee who fails a pre-employment drug test but has a medical marijuana card? Under statute, employer does not have to accommodate use at work, but cannot discriminate on the basis of status as a cardholder This suggests that employers may not disqualify applicants solely on the basis of a positive preemployment test result for marijuana However, Bourgoin approvingly cites to cases holding that employers may terminate on the basis of a positive test despite cardholder status. Open question whether the Law Court would hold that the statute requires employers to hire after positive test 8

9 Medical Marijuana Maine Accommodation (cont.) More conservative approach is to find out whether employee is a cardholder, and do not take action solely on the basis of a pre-employment test Consistent with case law in Massachusetts, Rhode Island, and Connecticut If employee requests accommodation related to a disability for which he/she has a valid prescription for marijuana, handle in accordance with reasonable accommodation process But do NOT need to accommodate marijuana use/impairment in workplace 9

10 Overview of Laws New Hampshire Use of Cannabis for Therapeutic Purposes No recreational marijuana law (possession of small amounts decriminalized) 10

11 Medical Marijuana New Hampshire Law permits employers to prohibit the possession of cannabis in a place of employment. Law also permits employers to prohibit being under the influence of cannabis in a place of employment. (N.H. Rev. Stat. 126-X:3 (II)(2)) Nothing in this chapter shall be construed to require... [a]ny accommodation of the therapeutic use of cannabis on the property or premises of any place of employment.... This chapter shall in no way limit an employer's ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis. (N.H. Rev. Stat. 126-X:3 (III)(c)) 11

12 Medical Marijuana New Hampshire Accommodation Similar to Maine in that employers need not accommodate medical marijuana use or impairment in the workplace Unlike Maine, NH does not have a nondiscrimination provision, so employers arguably can refuse to hire on the basis of a positive preemployment test alone Currently no case law, so proceed with caution More conservative approach would be to engage in interactive process with employee who fails a pre-employment drug test to determine whether employee is disabled and permitting use outside work is a reasonable accommodation 12

13 Overview of Laws Massachusetts Act for the Humanitarian Medical Use of Marijuana Regulation of the Use and Distribution of Marijuana Not Medically Prescribed (aka recreational marijuana) 13

14 Medical Marijuana Massachusetts Accommodation Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment.... (M.G.L. ch. 369, 7(D)) Covers on-site use but is silent as to on-site possession or impairment This is an open question, but Massachusetts case law suggests that an employer would not be required to permit marijuana-related activities that would place employer in legal jeopardy. See Barbuto. 14

15 Barbuto v. Advantage Sales & Marketing, LLC (Mass. July 17, 2017) Employer refused to hire applicant after she disclosed medical marijuana use for Crohn s disease and failed pre-employment drug test Employee sued for disability discrimination Massachusetts medical marijuana law does not have express anti-discrimination provision, but it provides that no person shall be denied any right or privilege for using marijuana in compliance with statute Court held that, under Mass. law, medical marijuana was akin to any legally prescribed drug and must be treated the same way by employer If employee is using medical marijuana, can perform essential job functions, and is not impaired on the job, the employer is required to engage in interactive process to discuss accommodation of marijuana use outside of work Illegality under federal law does not render accommodation per se unreasonable because employer bears no risk for employee s violation of law outside of work This suggests that an employer does not have to permit on-site impairment or possession, as both activities could expose the employer to civil and/or criminal liability. 15

16 Overview of Laws Vermont Medical marijuana law Recreational marijuana law (limited in scope) Drug Testing law 16

17 Medical Marijuana Vermont The law shall not exempt any person from arrest or prosecution for... being under the influence of marijuana while... in a workplace or place of employment.... (18 V.S.A. 4474c(a)(1)(B)) The law shall not exempt any person from arrest or prosecution for... the smoking of marijuana in any public place, including... a workplace or place of employment.... (18 V.S.A. 4474c(a)(3)(B)) Employers may ban all marijuana in the workplace and prohibit employees from working under the influence Employers are expressly exempted from being required to cover or reimburse employees for medical marijuana under the workers compensation scheme or otherwise 17

18 Medical Marijuana Vermont Accommodation Medical marijuana law does not expressly require accommodation or prohibit discrimination based on status as a cardholder BUT recent guidance from Vermont AG takes a similar position to the Massachusetts Supreme Court medical marijuana use must be handled the same way as any prescription drug for a disabled employee If employee does not use at work and is not impaired at work, an employer may not discipline an employee solely for use of medical marijuana outside of work In most instances, medical marijuana patients will be legally disabled, because licenses are granted only for a debilitating medical condition 18

19 Overview of Laws Rhode Island Medical Marijuana Act No recreational marijuana law, but non-binding voter referendum has recently been under consideration will not be on 2018 ballot Drug Testing Law 19

20 Medical Marijuana Rhode Island Accommodation No... employer... may refuse to... employ... or otherwise penalize, a person solely for his or her status as a cardholder. (RI Gen. L, (d)) This chapter shall not permit... [a]ny person to undertake any tasks under the influence of marijuana, when doing so would constitute negligence or professional malpractice.... (RI Gen. L, (a)(1)) Nothing in this chapter shall be construed to require... an employer to accommodate the medical use of marijuana in any workplace. (RI Gen. L, (b)(2)) Law is silent on accommodation of use outside of work, but... 20

21 Callaghan v. Darlington Fabrics Corp. (R.I. Super. Ct., May 23, 2017) Employer refused to hire applicant after she disclosed her status as a medical cardholder and ultimately failed a pre-employment drug test Employer argued that non-discrimination provision in medical marijuana law applied only to discrimination based on status, not to failing a drug test The court held that this was a meaningless distinction, and the employee had a cause of action for the employer s violation of the medical marijuana statute 21

22 Overview of Laws Connecticut Palliative Use of Marijuana No recreational marijuana law, but bill has recently been under consideration by legislature unlikely in 2018 Drug Testing Law 22

23 Medical Marijuana Connecticut Accommodation 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.... (CT Gen. Stat. 21a-408p(b)(3)) 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. (Id.) Law is silent on accommodation of use outside of work, but... 23

24 Noffsinger v. SSC Niantic Operating Co. (D. Conn. Aug. 8, 2017) Employer rescinded a job offer after employee disclosed that she took prescription marijuana capsules at bedtime and failed a drug test Employer raised a variety of arguments to avoid the non-discrimination provision in state medical marijuana statute Court held that federal law did not preempt state marijuana law, and employer was not forced to violate federal law simply by hiring medical marijuana patient Significantly, case was decided in federal court but still sided with employee 24

25 RECREATIONAL MARIJUANA

26 Maine Recreational Marijuana History The recreational marijuana statute has undergone considerable changes since it was passed: Nov. 8, 2016 Voter referendum was passed, legalizing the limited possession, cultivation, and use of marijuana by adults January 27, 2017 Legislature approved moratorium on several parts of law Feb. 1, 2018 No action taken, so employer non-discrimination provisions went into effect An employer may not refuse... to employ... or otherwise penalize a person 21 years of age or older solely for that person s consuming marijuana outside of the...employer s... property. (7 M.R.S. 2454(3)) The law did not require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. The law also does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. (7 M.R.S. 2454(2)) 26

27 Maine Recreational Marijuana New statute passed May 2, 2018 and went into effect immediately. Had no effect on medical marijuana law Anti-discrimination provision was eliminated no longer prohibits employers from refusing to employ persons who use recreational marijuana outside of work 27

28 Maine Recreational Marijuana (cont.) Employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana in the workplace (28-B M.R.S.A. 112) Employers may enact and enforce workplace policies restricting marijuana use in the workplace or while otherwise engaged in activities within the course and scope of employment. (Id.) Employers may discipline employees who are under the influence of marijuana at work. (Id.) In summary, employers may prohibit all recreational marijuana-related activities in the workplace and during work-related activities, provided that they have clearly articulated policies in place. 28

29 Maine Recreational Marijuana (cont.) What about use outside of work? Open question statute continuously refers to use in the workplace Does this imply that outside usage is permitted? Better interpretation is that silence is not permission and does not override presumption of at-will employment the elimination of the non-discrimination provision suggests Legislature s intent to not prohibit employers from restricting use outside of work Proceed with caution in this area 29

30 Recreational Marijuana Massachusetts Like Maine, Massachusetts has a recreational marijuana statute that permits adults to use, possess, and grow marijuana without a medical prescription, and permits retail sales by licensed facilities This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees. (M.G.L. ch. 94G, 2(e)) This statute is also ambiguous as to whether workplace possession may be prohibited Interestingly, the statute expressly prohibits use and possession on the grounds of a school, but is silent as to possession at work, which creates further ambiguity 30

31 Recreational Marijuana Vermont Became effective July 1, 2018 Much more restrictive than Maine or Massachusetts No licensed retail sales or commercial growing Employers are not required to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace (18 V.S.A. 4230a(e)) Employers may adopt policies prohibiting the use of marijuana in the workplace (Id.) The law does not create a legal cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees (Id.) Employee cannot use the recreational marijuana law as the basis to sue an employer even if the employer restricts use outside of work 31

32 What About CBD? CBD is a chemical compound found in marijuana that is believed to have therapeutic properties, but does not cause impairment Comes in many forms: creams, oil, gummies Legality of CBD under federal law is an open question in short, it depends upon how it is derived, which is nearly impossible to confirm given lack of regulation 32

33 What About CBD? If used recreationally, employer may prohibit If used by medical marijuana cardholder, employer would need to permit use prior to work, as there is no impairment issue Use or possession while at work could still be prohibited 33

34 MAINE DRUG TESTING

35 Maine Drug Testing Overview In Maine, drug testing is only allowed if an employer has a drug testing policy that has been approved by the Maine DOL (28 M.R.S.A. 681 et seq.) Marijuana is still listed under state law as a substance for which employers may test Written policy required It is unclear to what extent Maine drug testing law will apply to employees of a Maine-based employer who work and/or live outside the state DOL has taken inconsistent positions 35

36 Maine Types of Permissible Drug Testing (cont.) Pre-employment applicants may be tested, but only after conditional offer Probable cause means a reasonable ground for belief... that an employee may be under the influence of a substance of abuse, provided that the existence of probable cause may not be based exclusively on any of the following: A. Information received from an anonymous informant; B. Any information tending to indicate that an employee may have possessed or used a substance of abuse off duty, except when the employee is observed possessing or ingesting any substance of abuse either while on the employer's premises or in the proximity of the employer's premises during or immediately before the employee's working hours; or C. A single work related accident. (26 M.R.S.A 682(6)) Probable cause determination must be made by employee s immediate supervisor, other supervisory personnel, a licensed physician/nurse, or security personnel Determination must be in writing, state the facts upon which it is based, and a copy given to the employee (26 M.R.S.A. 684) Must be based on observable phenomena (e.g. slurred speech, lack of coordination) or other evidence (e.g. finding illegal drugs in employee s workspace or personal items 36

37 Maine Types of Permissible Drug Testing Random testing permitted only if: The employer and the employee have bargained for provisions in a collective bargaining agreement; The employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee's coworkers if the employee were under the influence of a substance of abuse; or The employer has established a random testing program in accordance with state law. (26 M.R.S.A. 684) Post-accident testing statute is silent on post-accident testing, but a single workplace accident, without other evidence, is not grounds for testing Other types of testing - Testing while undergoing rehabilitation or treatment, and testing upon return to work following rehabilitation program are permitted. (26 M.R.S.A. 684) 37

38 Drug Testing in Other New England States New Hampshire no statute Massachusetts no statute Vermont 21 Vt. Stat. Ann. 511 et seq. Generally prohibits testing, but allows testing: Of applicants after conditional offer is made; or Of employees for probable cause, but only if employer has an EAP, and employer must allow employee to complete substance abuse program in lieu of termination No random testing Exception for testing required by federal law Rhode Island R.I. Gen. Laws et seq. R.I. s testing law is essentially the same as Vermont s Connecticut Conn. Gen. Stat. Ann t et seq. Testing is allowed as part of the application process, upon reasonable suspicion, or as required by federal law 38

39 Key Takeaways/Best Practices No New England state requires employers to permit marijuana use or impairment in the workplace Most states (except NH) have express nondiscrimination provisions for medical marijuana cardholders Trend in case law is that use of medical marijuana outside of work may not be restricted, i.e., cardholders may not be excluded from employment by positive pre-employment drug test No state has a non-discrimination provision for recreational marijuana users 39

40 Key Takeaways/Best Practices If an employee tests positive on a preemployment drug test, employer should find out whether employee is a cardholder If they are, engage in interactive process to determine whether they are legally disabled and whether accommodating outside marijuana use would be reasonable There is no duty to accommodate usage in a manner that would cause the employer to violate federal law 40

41 Charlie Einsiedler, Jr. Merrill s Wharf 254 Commercial Street Portland, ME Dan Strader dstrader@pierceatwood.com Merrill s Wharf 254 Commercial Street Portland, ME PH / PH /