Drug and Alcohol Testing in the Workplace

Drug and Alcohol Testing in the Workplace Presented for ACC by: Kathryn J. Russo Jackson Lewis P.C. Long Island Kathryn.Russo@jacksonlewis.com 631-247-4606 Matthew F. Nieman Jackson Lewis P.C. Washington DC Region Matthew.Nieman@jacksonlewis.com 703-483-8331 Jackson Lewis P.C. 2018 1

INTRODUCTORY STATEMENT The materials contained in this presentation were prepared by the law firm of Jackson Lewis P.C. for the participants own reference in connection with educational seminars presented by Jackson Lewis P.C. Attendees should consult with counsel before taking any actions and should not consider these materials or discussions thereabout to be legal or other advice. Jackson Lewis P.C. 2018 2

AGENDA 1. Is Drug and Alcohol Testing Appropriate For Your Organization? 2. Pros and Cons of Drug and Alcohol Testing, Including Post-Accident and Reasonable Suspicion Testing 3. Addressing the Use and Misuse of Prescription Medications By Employees 4. Medical and Recreational Marijuana in the Workplace. Jackson Lewis P.C. 2018 3

IS DRUG AND ALCOHOL TESTING APPROPRIATE FOR YOUR ORGANIZATION? Jackson Lewis P.C. 2018 4

REASONS WHY EMPLOYERS CONDUCT DRUG AND ALCOHOL TESTING Ensure safety of employees, customers, invitees. Reduce risk of injuries and damage to equipment. Discourage drug abusing applicants. Improve productivity, efficiency, morale. Ensure product quality. Control insurance costs. Reduce turnover and associated hiring costs. Jackson Lewis P.C. 2018 5

INITIAL CONSIDERATIONS Are you required by law to conduct testing (e.g., DOTrequired)? Does your state/city have any laws regulating workplace drug and alcohol testing? Are there any incentives for implementing a drug and alcohol testing policy in your state? (e.g., workers compensation premium discount) Do your competitors conduct drug and alcohol testing? Do your customers require drug and alcohol testing? Jackson Lewis P.C. 2018 6

WHAT TYPE OF TESTING BEST SERVES YOUR OBJECTIVES? Pre-employment. Pre-assignment (i.e., before assignment to customer): May be restricted or prohibited in certain jurisdictions. Reasonable suspicion (i.e., when there is reason to suspect employee has used drugs or alcohol). Random: May be restricted or prohibited in certain jurisdictions. Post-accident: May be restricted or prohibited in certain jurisdictions. Jackson Lewis P.C. 2018 7

PROS AND CONS OF DRUG AND ALCOHOL TESTS Jackson Lewis P.C. 2018 8

TYPES OF DRUG/ALCOHOL TESTS Pre-employment drug testing: Must follow conditional offer of employment. Pre-offer testing generally should not be conducted may violate the ADA and some state laws. Written notice requirements in some states (CT, MN, NC, among others). Applicant should not commence work until after drug test result is received. Pre-employment alcohol testing is not recommended due to ADA issues and because alcohol is legal substance. Jackson Lewis P.C. 2018 9

PROS/CONS OF PRE-EMPLOYMENT TESTING Pros: Habitual drug users may be deterred from applying. Sends a message that the company is not going to tolerate drug use. Cons: Cost of testing for applicants who test positive. Easier to manipulate (i.e., applicants who know drug testing is required most likely know how long the drug will stay in their system). Jackson Lewis P.C. 2018 10

TYPES OF DRUG/ALCOHOL TESTS Reasonable suspicion ( for cause or reasonable cause ): Generally permitted in all jurisdictions; names and definitions may vary. Example (based on DOT guidelines): The employer has reasonable suspicion to believe that the employee has violated the drug and alcohol prohibitions of the policy based on specific, contemporaneous, articulable observations concerning the employee, including but not limited to, the employee s appearance, behavior, speech or body odors, and may include indications of the chronic and withdrawal effects of drugs. Train supervisors (required in IA and MT), and document reasons for testing. Jackson Lewis P.C. 2018 11

PROS AND CONS OF REASONABLE SUSPICION TESTING Pros Allows employers to address potential drug/alcohol use in situations where it is particularly problematic (i.e., suspected use at work) Allows drug/alcohol testing based on suspected use, and action based on a positive test result, without risk of an ADA regarded as claim Cons Time and cost devoted to supervisory training to appropriately identify indications of drug/alcohol use Must be done quickly (within 8 hours for alcohol; within 32 hours for drugs). Escort procedures needed because suspected employee cannot drive. Jackson Lewis P.C. 2018 12

TYPES OF DRUG/ALCOHOL TESTS Random drug testing: Predetermined percentage of testing incidents spread throughout the year (but not on predictable dates). Use of computer program or number table for random selection; equal chance of selection each time. Prohibited in some states and cities: CT (requires state approval), RI, VT, San Francisco, CA, and Boulder, CO. Restricted to safety-sensitive employees in MN and MT. Should be limited to safety-sensitive employees in privacy states (states recognizing privacy rights in context of workplace substance abuse testing): CA, MA, NJ. Random alcohol testing generally is not recommended (due to ADA issues). Jackson Lewis P.C. 2018 13

PROS AND CONS OF RANDOM TESTING Pros Unpredictability makes it an effective deterrent. Lack of individual suspicion prevents this type of testing being used to support a discrimination claim. Cons Cost. Must conduct random testing frequently enough to have a deterrent effect. Not as practical in small workforces. Must ensure that the random pool is constantly updated (new hires and terminations) Must ensure that there is no control over who gets selected. Jackson Lewis P.C. 2018 14

TYPES OF DRUG/ALCOHOL TESTS Post-accident testing: Particularly suited for safety-sensitive employees. Some jurisdictions require individualized suspicion (CT, RI, VT, San Francisco, CA., Boulder, CO.), serious injury, or minimum amount of property damage (IA, MT, OK). Should be limited to safety-sensitive employees in privacy states (CA, MA, NJ). Jackson Lewis P.C. 2018 15

PROS AND CONS OF POST-ACCIDENT TESTING Pros Promotes safety. Deterrent effect when used for employees in safety-sensitive positions. Can limit liability for work-related accidents caused by substance abuse. Cons General Post-injury testing may be too broad. Privacy, workers compensation retaliation, and OSHA issues may result. Not recommended unless expressly authorized by law. Should focus on non-trivial accidents; require some causation or contribution by the employee, to avoid testing workers who are injured through no fault of their own; OSHA s reasonable possibility that drugs or alcohol could have caused or contributed. Jackson Lewis P.C. 2018 16

ADDRESSING USE AND MISUSE OF PRESCRIPTION DRUGS Jackson Lewis P.C. 2018 17

PRESCRIPTION MEDICATIONS: EEOC LITIGATION EEOC regularly pursues cases where employers take adverse action against applicants and employees who use prescription medications without conducting an individualized assessment. 1/19/18: EEOC settled for $70,000 a disability discrimination suit after applicant disclosed during pre-employment physical examination that he uses suboxone. 5/31/17: EEOC settled for $106,000 a disability discrimination suit alleging that the Company rejected an applicant for a receptionist position due to the prescription medication she was taking, after conducting a pre-employment physical examination. 6/8/17: EEOC settled for $45,000 a disability discrimination suit alleging that an applicant was not hired after testing positive for prescription medication on a pre-employment drug test. Jackson Lewis P.C. 2018 18

PRESCRIPTION MEDICATIONS: EEOC LITIGATION When conducting drug testing, it is critical to use a Medical Review Officer ( MRO ). A MRO is a licensed physician with expertise in analyzing drug test results who will speak confidentially with the applicant or employee to determine whether the positive drug test result was caused by lawful or unlawful drug use. Jackson Lewis P.C. 2018 19

PRESCRIPTION MEDICATIONS: POLICY CONSIDERATIONS Consider including in your policy a requirement that safety-sensitive employees (e.g., drivers, operators of machinery, etc.) must advise the company about warnings accompanying lawfully prescribed or obtained medications if it may impact the ability to perform the job safely, before reporting to work under the influence of such substances. This triggers the requirement under the Americans with Disabilities Act (and state laws) to conduct an individualized assessment by having an interactive dialogue with the employee concerning a potential reasonable accommodation and/or direct threat. Jackson Lewis P.C. 2018 20

PRESCRIPTION MEDICATIONS: POLICY CONSIDERATIONS Employer will evaluate and respond to this information on a case-by-case basis, including temporary job reassignment or modifications, a request for additional medical documentation and consultation, and/or an instruction that the employee not work until the restriction is removed. Make clear in the policy that safety-sensitive employees disclosing such prescription drug use should not identify the medication(s) being used or the reason for its use. Why limit to safety-sensitive employees? Business necessity for inquiring about legal prescription drug use. Jackson Lewis P.C. 2018 21

PRESCRIPTION MEDICATIONS: POLICY CONSIDERATIONS For non-safety-sensitive employees, there is no need to inquire about the use prescription medications. Focus on performance issues instead. Jackson Lewis P.C. 2018 22

MEDICAL AND RECREATIONAL MARIJUANA Jackson Lewis P.C. 2018 23

MARIJUANA: STILL ILLEGAL UNDER FEDERAL LAW Under the federal Controlled Substances Act, marijuana is a Schedule I illegal drug that may not be used, possessed, manufactured or distributed, even for medical purposes. Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. 21 U.S.C. 812(b)(1). The U.S. Supreme Court has reiterated this fact in a number of cases. E.g., United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 121 S. Ct. 1711 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana). Jackson Lewis P.C. 2018 24

FEDERAL GOVERNMENT BEGINS TO CHANGE ITS POSITION UNDER OBAMA Under the Obama Administration, Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that have authorized the use of medical marijuana, stating as a general matter, pursuit of these priorities should not focus federal resources in your States on individual's whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. The federal government began taking a hands-off approach toward marijuana, leaving it to the states to regulate, even though marijuana still remains illegal under federal law. Jackson Lewis P.C. 2018 25

TRUMP ADMINISTRATION APPROACH Three days after retail sales of marijuana became legal in California in Jan. 2018, U.S. Attorney General Jeff Sessions rescinded the guidance established during the Obama administration, announcing that DOJ would enforce the law with respect to marijuana. President Trump, however, recently advised Sen. Corey Gardner of Colorado that he supports states rights with respect to the implementation of state marijuana laws. Jackson Lewis P.C. 2018 26

MUST EMPLOYERS TOLERATE RECREATIONAL MARIJUANA USE? Jackson Lewis P.C. 2018 27

STATES WITH RECREATIONAL MARIJUANA LAWS 9 states + DC now have recreational marijuana laws: AK, CA, CO, DC, ME, MA, NV, OR, VT and WA. Jackson Lewis P.C. 2018 28

MUST EMPLOYERS PERMIT RECREATIONAL MARIJUANA? Recreational marijuana can be analogized to alcohol legal substance, but employers are not required to tolerate its use at work. AK, CA, CO, DC, ME, MA and NV laws permit employers to have policies prohibiting marijuana use and do not require employers to accommodate use at work. Jackson Lewis P.C. 2018 29

MUST EMPLOYERS PERMIT RECREATIONAL MARIJUANA? None of these laws have provisions prohibiting employment discrimination. BUT: Effective 2/1/18, Maine s recreational marijuana law prohibits employers from refusing to employ a person 21 years of age or older solely for that person s consuming marijuana outside of the employer s property. This language presents a problem for employers that conduct drug testing, because a drug test does not reveal where someone may have used marijuana. It is impossible to learn from a drug test result whether marijuana was consumed outside the employer s property, because marijuana can stay in the human body for days or weeks. Jackson Lewis P.C. 2018 30

MUST EMPLOYERS PERMIT RECREATIONAL MARIJUANA? Best Practice: Include language in your substance abuse policy that notifies employees that recreational use of marijuana may cause a positive drug test result, and state what the Company s policy is with regard to such results. EXAMPLE (NOT FOR USE IN MAINE): Employees who use recreational marijuana while off-duty in states where it is legal may test positive on a drug test required under this policy. Positive test results will not be excused by the recreational use of marijuana. Jackson Lewis P.C. 2018 31

ARE EMPLOYERS REQUIRED TO ACCOMMODATE MEDICAL MARIJUANA USE? Jackson Lewis P.C. 2018 32

STATES WITH MEDICAL MARIJUANA LAWS 29 states + DC now have medical marijuana laws: AK, AZ, AR, CA, CO, CT, DE, DC, FL, HI, IL, ME, MA, MD, MI, MN, MT, NV, NH, NJ, NM, NY, ND, OH, OR, RI, VT, WA and WV. Jackson Lewis P.C. 2018 33

MEDICAL MARIJUANA EMPLOYER- FRIENDLY STATES Ohio The law permits employers to establish zerotolerance drug policies, and prohibits employees from suing employers who take action against them due to the use of medical marijuana. Florida -- this law does not address off-duty use, but there is language prohibiting claims against employers for wrongful discharge or discrimination. Jackson Lewis P.C. 2018 34

MEDICAL MARIJUANA STATES WITH LOW RISK States with medical marijuana laws where employers have prevailed in litigation with employees using medical marijuana: California; Colorado; Michigan; Montana; New Mexico; Oregon; Washington State. Jackson Lewis P.C. 2018 35

MEDICAL MARIJUANA STATES WHERE RISK IS UNCERTAIN States with medical marijuana laws where employment issues are not addressed and there has been no litigation yet: Alaska; D.C.; Hawaii; Maryland; New Hampshire; New Jersey; North Dakota; and Vermont. Jackson Lewis P.C. 2018 36

MEDICAL MARIJUANA STATES WITH POTENTIAL RISK States with medical marijuana laws which define employers responsibilities regarding employeemedical marijuana users (anti-discrimination provisions): o Arkansas; o Arizona; o Delaware; o Illinois; o Maine; o Minnesota; o Nevada; o New York; o Pennsylvania o West Virginia Jackson Lewis P.C. 2018 37

STATES WITH THE MOST RISK FOR EMPLOYERS Up until 2017, employers had always prevailed in litigation involving medical marijuana users. That is no longer true recent cases in CT, MA and RI have ruled against employers (in the preemployment drug testing context). Employers now must consider carefully the risks under applicable state law before making employment decisions concerning medical marijuana users, especially if the state medical marijuana law contains language prohibiting discrimination. Jackson Lewis P.C. 2018 38

STATES WITH THE MOST RISK FOR EMPLOYERS Rhode Island -- On May 23, 2017, a Rhode Island state court held that employers cannot refuse to employ a medical marijuana card holder, even if the applicant would fail the pre-employment drug test. The Court held that there is an implied right of action under the state medical marijuana law, and drew a distinction between medical and nonmedical use of marijuana, holding that what an employee does on his or her off time does not impose any responsibility on the employer. Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017). Jackson Lewis P.C. 2018 39

STATES WITH THE MOST RISK FOR EMPLOYERS Massachusetts -- On July 17, 2017, the Massachusetts Supreme Court held that employers cannot refuse to employ a medical marijuana card holder based solely on a positive pre-employment marijuana test result without engaging in the interactive dialogue. The Court did not foreclose the possibility that accommodating medical marijuana use could pose an undue hardship on the employer (citing examples of associated significant safety risks or potential loss of contracts), but left that issue open for the employer to prove at a later date. Barbuto v. Advantage Sales & Marketing LLC, SJC-12226 (MA. July 17, 2017). Jackson Lewis P.C. 2018 40

STATES WITH THE MOST RISK FOR EMPLOYERS Connecticut -- On August 8, 2017, a federal court in Connecticut held that federal law does not preempt the Connecticut medical marijuana statute s prohibition on employers firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test. The Court further held that there is an implied right of action under the state medical marijuana law, and that employers who are federal contractors or are otherwise regulated by federal law are not exempt from the state law s discrimination prohibition. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., (D. Conn. Aug. 8, 2017). Jackson Lewis P.C. 2018 41

Balancing State and Federal Laws Employers in states that have legalized medical marijuana will need to balance a number of competing interests: Complying with federal law, versus Complying with state law. and The employer s right and duty to establish and maintain a safe and productive workforce, versus The employer s obligation to accommodate, when reasonable, employees with disabilities that may require provide for the use of medical marijuana. Jackson Lewis P.C. 2018 42

Employees Regulated by Federal Agencies Safety standards imposed by federal agencies, such as the Federal Mine Safety and Health Administration and the Department of Transportation, do not provide for the use of medical or recreational marijuana by regulated employees. The Department of Transportation has issued a statement that the Department of Transportation s Drug and Alcohol Testing Regulation 49 CFR Part 40, at 40.151(e) does not authorize medical marijuana under a state law to be a valid medical explanation for a transportation employee s positive drug test result It remains unacceptable for any safety sensitive employee subject to drug testing under the Department of Transportation s drug testing regulations to use marijuana. What does this mean for employers? Here, you should follow the federal safety requirements. Jackson Lewis P.C. 2018 43

Managing The Risk In the states with anti-discrimination provisions, when analyzing accommodation requests, consider: Is the job safety-sensitive? If yes, the applicant/employee may pose a direct threat to the health and safety of himself/herself and/ or others. Can the applicant/employee really perform the essential functions of the job with or without a reasonable accommodation? (Consider nature of employee s illness; when and how frequently must he/she use medical marijuana). What is your tolerance for risk? Jackson Lewis P.C. 2018 44

How Do These Laws Impact Drug Testing Programs? Urine drug tests cannot determine exactly when a drug was used. They generally detect drug usage in the last few days. For a chronic marijuana user, a drug test may detect usage in the past 30 days. Lawsuits arise when the applicant/employee alleges that s/he used marijuana lawfully and while off-duty, but then tested positive on a workplace drug test. Employers should consider how they will address these situations and decide on a policy/practice. Jackson Lewis P.C. 2018 45

How Do These Laws Impact Drug Testing Programs? If a medical marijuana user tests positive on a reasonable suspicion drug test or a post-accident drug test, there is a good argument for termination (assuming state law permits). Implication is that the employee was under the influence at work, or just prior to the accident. Pre-employment testing may pose risk in certain states. (The laws permitting employers to prohibit marijuana use at work are not helpful in the pre-employment context). Random tests also may pose risks in certain states. Jackson Lewis P.C. 2018 46

Drug Testing Programs Best Practices Review your drug testing policies re: medical and recreational marijuana. Generally OK to prohibit the use of marijuana at work and to prohibit being under the influence at work. With regard to positive drug tests results, will you follow federal law (still illegal)? Before making this decision, determine whether you are a recipient of any federal funds or licenses, or subject to the Federal Drug Free Workplace Act. (This fact may not protect you completely, although it is one factor to consider). If you are subject to federally-regulated safety standards, i.e. a driver subject to the DOT regulations, you cannot accommodate medical marijuana, or tolerate recreational marijuana, in any state. Jackson Lewis P.C. 2018 47

Drug Testing Programs Best Practices Consider the risk under the applicable state medical marijuana law. Certain states pose more risk than others. In the states with anti-discrimination language, engage in the interactive dialogue (even if accommodation of medical marijuana use is not likely to be granted). Consider whether the job is safety-sensitive. Direct threat analysis. How important is it to have one uniform nationwide policy? (may no longer be feasible) Jackson Lewis P.C. 2018 48

Best Practices Final Thoughts Following federal law may no longer be a best practice, as evidenced by the court decisions in CT, MA and RI. If you employ safety-sensitive employees, you will have to balance the risk of complying with state medical and recreational marijuana laws (and related discrimination claims) with the potentially greater legal risk of a known marijuana user causing an accident that injures/kills people. Remember there is still little case law out there in many states if you choose to follow federal law, you may run the risk of being your state s test case for medical marijuana accommodation. Jackson Lewis P.C. 2018 49

STAY UP TO DATE Stay up to date on the latest: Consider signing up for our blog http://www.drugtestlawadvisor.com/ Jackson Lewis P.C. 2018 50

QUESTIONS? If you have questions or would like to discuss drug testing and substance abuse issues further, you may contact us: Kathryn J. Russo Kathryn.Russo@jacksonlewis.com Matthew F. Nieman Matthew.Nieman@jacksonlewis.com Jackson Lewis P.C. 2018 51

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