MARIJUANA, OPIOIDS, AND THE WORKPLACE

MARIJUANA, OPIOIDS, AND THE WORKPLACE 34 th Annual Labor & Employment Law Conference Christopher M. Trebilcock Daniel A. Krawiec (313) 965-8575 (313) 309-9497 ctrebilcock@ dkrawiec@

WHO ARE WE? Christopher M. Trebilcock Detroit, MI B.A., cum laude, Alma College, Alma, Michigan, 1997 J.D., Wake Forest University School of Law, Winston- Salem, North Carolina, 2000 Daniel A. Krawiec Detroit, MI B.A., University of Michigan, Ann Arbor, Michigan, 2005 J.D., magna cum laude, University of Miami School of Law, Coral Gables, Florida, 2008 2

OVERVIEW The Opioid Crisis Who is impacted and What is the scope of the problem? When did this situation arise? Why do we have such a growing problem? How do we address the problem? Marijuana and the workplace How did we get here? The rights of employers and employees Additional considerations 3

HOW SERIOUS IS THE OPIOID CRISIS? 4

JAMA MARCH 21, 2018 In mid-august 2016, Cabell County, in the southwestern part of the state, made headlines when public health officials reported 20 opioid overdose cases in a 53-hour period 5

OVERVIEW 6

HOW DID WE GET HERE? Homicide Conviction Upheld for Prescribing Physician The People of the State of New York, Respondent, v Stan XuHui Li, Defendant-Appellant. Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December 19, 2014, convicting defendant, after a jury trial, of 2 counts of manslaughter in the second degree, 3 counts of reckless endangerment in the first degree, 3 counts of reckless endangerment in the second degree, 170 counts of criminal sale of a prescription, 1 count of scheme to defraud in the first degree, 2 counts of grand larceny in the third degree, 9 counts of falsifying business records in the first degree, and 8 counts of offering a false instrument for filing in the first degree, and sentencing him to an aggregate term of 10 to 20 years, unanimously affirmed. 7

OPIOIDS & EMPLOYERS BY THE NUMBERS 71% of employers impacted by employee misuse of legally prescribed medication 81% lack comprehensive drugfree workplace policy Do not include misuse of prescriptions drugs or testing of prescription drugs 76% do not offer training on identifying abuse 41% do not test for synthetic opioids 65% of supervisors do not feel they can spot the warning signs Source: National Safety Council 2017 8

9

EMPLOYERS COST OF OPIOID USE Workers Comp: Prescription painkillers profoundly increase workers compensation costs, increase the length of worker disability and increase work time lost $1.5 billion spent on opioids by workers compensation insurers alone Source: CompPharma Survey 2015 Medical Costs: Opioid prescription abuse also significantly increases the use of emergency room services, hospitalizations and other medical costs Productivity: A 2016 study of 337K claims in 25 states by the Workers Comp Research Institute found that 55-85 percent of injured workers who missed seven days or more of work received at least one opioid prescription Opioid abuse costs employers approximately 10 billion from absenteeism alone 10

EMPLOYERS COST OF OPIOID USE March 29, 2017 Executive Order, President Trump established a Commission chaired by Governor Chris Christie The Commission issued its final report containing fifty-six (56) recommendations on November 1, 2017 (plus nine (9) from the preliminary report) 11

FEBRUARY 27, 2018 BIPARTISAN SENATE BILL COMPREHENSIVE ADDICTION AND RECOVERY ACT (CARA 2.0 ACT OF 2018) Three-day limit on initial opioid prescriptions PAs and nurse practitioners prescribe buprenorphine, Loosen restrictions on physician prescribing buprenorphine Mandatory use of prescription drug monitoring programs for doctors and pharmacists Increase civil and criminal penalties for opioid manufacturers if they fail to report suspicious orders or don t do enough to prevent diversion Create a national standard for addiction recovery housing 12

THE REGULATORS ARE COMING. THE REGULATORS ARE COMING. Expanded opiates testing Jan. 23, 2017 U.S. Department of Health and Human Services (DHHS) and Department of Transportation (DOT) published notices to expand federal urine drug testing programs panel to include Schedule II synthetic opioids hydrocodone, hydromorphone, oxycodone and oxymorphone Drug testing labs have notified customers of expanded testing Effective Oct. 1, 2017 for federal drug testing DOT has issued notice to use old Drug Testing and Custody Control Form (CCF) and procedures until June 30, 2018 Does it apply to non-federal, non-dot, private employers? 13

OPIOIDS IN THE WORKPLACE & EMPLOYER LIABILITY 14

NATIONAL SAFETY COUNCIL While many companies have Employee Assistance Programs (EAP), few employees use them. Many employees don t understand the value or may fear negative ramifications if they seek help. 15

HOW ARE ADA AND FMLA IMPLICATED WITH DRUG TESTING FOR SYNTHETIC OPIOIDS? Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability. Must provide reasonable accommodation. Family and Medical Leave Act (FMLA) Employee entitled to 12 weeks of unpaid leave for their serious health condition or to help a family member with a serious health condition ADA and FMLA do not protect an individual who currently engages in illegal use of drugs, including the misuse of prescription drugs Employer can require that they meet same job requirements and standards of performance and conduct as all other employees. Employee must abide by Drug and Alcohol Policy. However, ADA and FMLA may protect employee s underlying disability or serious health condition 16

CASE EXAMPLES Farr v. S.C. Elec. & Gas Co., Case No. 3:16-cv-2668, (D. South Carolina) summary judgment partly denied 3/21/18 Ferrari v. Ford Motor Co., 96 F.Supp.3d 668 (E.D. Mich. 2015) Colby v. Assurant Employee Benefits, 818 F.Supp.2d 365 (D. Mass. 2011) Lamberson Reynolds v. Commonwealth of Pennsylvania, Case No. 3:09cv1492, (W.D.Penn. 2010) 17

TRUMP COMMISSION One of the 56 recommendations by the Trump Commission is for the ONDCP, federal partners, the DOL, large employers, EAPs, and recovery support organizations to develop best practices on synthetic opioids and the workplace. This includes providing information to employers to address drug use and ensure that employers are able to seek help for synthetic opioid abuse through EAPs or other means, supporting health and wellness, including recovery and hiring those in recovery. 18

WHAT CAN YOU DO? Recognize the impact that opioids are having on the workplace. Work with health plan provider to evaluate the use of prescription opioids in workers comp claims Update drug-free workplace policy If federal employer, update to include expanded opiate panel If DOT, not that expanded opiate panel may come into effect in June 2018 If non-dot, non-federal, consider whether you should add testing for expanded opiate panel 19

WHAT CAN YOU DO? (CONT.) Educate employees regarding pain management, the epidemic and dangers of opioids and alternatives to pain management Common risks and side effects Prescriber-patient relationship is confidential, but employees should know that they can discuss concerns of taking an opioid painkiller with their physician and ask for an alternative non-opioid prescription and pain management plan Include this education with any work-related injury Practice safety at work and home Safe storage Safe disposal Don t mix Don t share 20

WHAT CAN YOU DO? (CONT.) Provide effective Employee Assistance Program (EAP) to workers for opioid addiction, not just illegal drugs and alcohol Review EAP to make sure there is coverage for issues related to nonmedical prescription drug use Encourage employees to seek help for themselves, family or co-workers even if not sure there is a problem Provide training to HR and managers/supervisors How to identify opioid abuse Understand the scope of the drug-free policy to include testing of opioids and what the policy prohibits. Promoting EAP services 21

WHAT CAN YOU DO? (CONT.) Provide effective Employee Assistance Program (EAP) to workers for opioid addiction, not just illegal drugs and alcohol Review EAP to make sure there is coverage for issues related to nonmedical prescription drug use Encourage employees to seek help for themselves, family or co-workers even if not sure there is a problem Provide training to HR and managers/supervisors How to identify opioid abuse Understand the scope of the drug-free policy to include testing of opioids and what the policy prohibits Promoting EAP services 22

LEGALIZATION OF MARIJUANA A SELECTED HISTORY 1996 California passes Proposition 215 allowing the medical use of marijuana 1998 - Alaska, Oregon, and Washington legalize medical marijuana 2000 Hawaii, Colorado and Nevada legalize medical marijuana 2017 West Virginia becomes the 29th state to legalize medical marijuana 2018 Presently, nine states including Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington plus the District of Columbia have some form of legal recreational marijuana Sources: https://medicalmarijuana.procon.org/view.timeline.php?timelineid=000026#1990-1999; https://www.thoughtco.com/states-that-legalized-marijuana-3368391; https://www.burlingtonfreepress.com/story/news/politics/government/2018/01/22/vermonts-legalmarijuana-law-what-you-should-know/1045478001/ 23

THE LEGAL STATUS OF MARIJUANA IN MICHIGAN 2008 Michigan voters passed the Michigan Medical Marihuana Act, which allowed qualified patients to use marijuana with their doctor s approval. Among other things, the law also allowed patients and their caregivers to cultivate and to possess limited amounts of medical marijuana. 2016 Governor Rick Snyder signed into law several new medical marijuana bills, including the Medical Marihuana Facilities Licensing Act to license and regulate the growth, processing, transport and provisioning of medical marijuana; an amendment to Michigan Medical Marihuana Act to allow for the manufacture and use of marijuana-infused products by qualified patients and the Marihuana Tracking Act and a seed-to-sale tracking system to track all medical marijuana 2018 On November 6, 2018, voters will decide the fate of another ballot initiative, the Michigan Regulation and Taxation of Marihuana Act, which if passed will, among other things, legalize possession and sale of up to 2.5 ounces of marijuana for personal use and impose a 10% additional excess tax on marijuana sales Sources: http://www.legislature.mi.gov/(s(wvd11thzlicaw4mpf2nhfcdk))/mileg.aspx?page=getobject&objectname=mcl-333-26423; http://www.mlive.com/news/index.ssf/2016/09/gov_snyder_signs_medical_marij.html; https://www.michigan.gov/documents/sos/petition_-_coalition_to_regulate_marijuana_like_alcohol_572185_7.pdf 24

MARIJUANA AND STATE EMPLOYMENT LAW States have begun to pass laws regulating the impact of legal marijuana use on the private employment relationship Some states offer employees protection from adverse job decisions by their employers relating to their legal marijuana use Other states, while permitting some form of legal marijuana use generally, offer no additional protections for legal users 25

EXAMPLE OF AN EMPLOYEE FRIENDLY STATE In the State of Arizona: 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: o The person's status as a [medical marijuana] cardholder o A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment Ariz. Rev. Stat. 36-2813 26

ADDITIONAL EMPLOYEE FRIENDLY STATES Other states have passed legislation providing the same or substantially similar new protections for employees who legally use medical marijuana: Connecticut: Conn. Gen. Stat. 21a 408p(b) Delaware: Del. Code. tit. 16, 4905A Illinois: 410 Ill. Comp. Stat. 130/40 Maine: Me. Rev. Stat. tit. 22, 2423-E Nevada: Nev. Rev. Stat. 452A.800 New York: N.Y. Pub. Health Law 3369 Minnesota: Minn Stat. 152.32 Rhode Island: R.I. Gen. Laws 21-28.6-4 27

NOFFSINGER V. SSC NIANTIC OPERATING COMPANY, LLC, 273 F. SUPP. 3D 326 (D. CONN. 2017) Facts: A prospective employee was denied employment based upon a positive cannabis result during a pre-employment screening test. The prospective employee was a qualifying patient under Connecticut s Palliative Use of Marijuana Act (PUMA) and sued alleging he was illegally discriminated against on that basis. Employer argued no right of private action existed and its conduct was exempt because the law only precluded discrimination unless required by federal law or required to obtain federal money and it was a nursing home subject to federal regulation, including the Controlled Substances Act. Held: Prospective employee had a private right of action under PUMA for wrongful discrimination. Employer could not rely on exemption because the mere act of hiring a medical marijuana user does not violate any law. 28

EXAMPLE OF AN EMPLOYER FRIENDLY STATE Nothing in the state of Ohio s medical marijuana law: Requires an employer to permit or accommodate an employee's use, possession, or distribution of medical marijuana Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's use, possession, or distribution of medical marijuana Prohibits an employer from establishing and enforcing a drug testing policy, drugfree workplace policy, or zero-tolerance drug policy Oh. Rev. Code. 3796.28 29

THE MICHIGAN MEDICAL MARIJUANA ACT DOES NOT PROVIDE EMPLOYMENT PROTECTIONS Casias v. Wal-Mart Stores, Inc., 695 F. 3d 428 (6th Cir. 2012) Facts: An employee suffered from sinus cancer and an inoperable brain tumor; consequently, the employee had a state registry card which permitted him to use medical marijuana. The employee was injured on the job and received a drug test at the hospital in accordance with company policy. The employee was terminated after he tested positive for marijuana in violation of the company s drug use policy. Employee contended the Michigan Medical Marihuana Act (MMMA) prevented his termination on that basis because he neither used nor was under the influence of marijuana at work. Held: The MMMA does not impose restrictions on private employers. Consequently, it does not violate state law to terminate an employee who fails a drug test as a result of their legal use of medical marijuana. 30

UNEMPLOYMENT COMPENSATION Under many existing employment policies, failure of a drug test is grounds for termination and could result in the employee losing her right to unemployment compensation. However, the law is changing in some jurisdictions. Braska v. Challenge Manufacturing Co., 861 N.W.2d 289 (Mich. Ct. App. 2014): An employee who has a medical marijuana card and is discharged consistent with company policy after failing a drug test may not be denied unemployment compensation where there is no evidence the positive test was caused b anything other than her use of medical marijuana in accordance with the MMMA. Beinor v. Indus. Claims Appeals Office. 262 P.3d 970 (Colo. Ct. App. 2011): An employee terminated for testing positive for marijuana in violation of an employer s zero-tolerance drug policy may be denied unemployment compensation even if his marijuana use is allowed under the Colorado constitution. 31

INTERPLAY BETWEEN ADA AND MEDICAL MARIJUANA Neither the Americans with Disabilities Act (ADA) nor the Family and Medical Leave Act (FMLA) protect those currently engaged in the illegal use of drugs However, employers must be mindful that if they perceive an employee as disabled based upon her use of medical marijuana, then the employer may be liable under the ADA Employers must also be careful to maintain a consistent rationale for an employee s termination if premised on marijuana use which may arguably be connected to a disability For example, in EEOC v. The Pines of Clarkston (E.D. Mich. 2015), an employee alleged she was terminated because of her epilepsy. The employer contended termination was for violation of its zero-tolerance policy barring marijuana use, including a belief she also sold drugs on the premises. However, the court denied the employer summary judgment because during the EEOC s investigation the employer s rationale focused on the employee s ability to perform her duties. 32

DRUG TESTING May 11, 2016 OSHA Publishes New Rule Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting 33

PRACTICAL ADVICE Maintain updated and clear policies as to whether a zero tolerance approach to illegal drug use will be followed Follow the policy consistently If the policy permits the use of medical marijuana on the employee s personal time, but the employee engages in other misconduct requiring termination, then document the reasons carefully to avoid the appearance of termination based upon any employee disability associated with his medical marijuana use Update your hiring and termination policies to comply with new laws in jurisdictions which provide a protected status to medical marijuana users Consider whether relaxation of policies relating to medical marijuana is foreclosed by federal requirements applicable to your business 34

QUESTIONS? Christopher M. Trebilcock (313) 965-8575 ctrebilcock@ Daniel A. Krawiec (313) 309-9497 dkrawiec@ 35

THANK YOU Legal Disclaimer: This document is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of an attorney.