Articles Posted in Drug Testing

By Michael P. Stafford

Marijuana is back in the news here in Delaware. Our state’s first Compassion Center is set to open later this month and legislation decriminalizing the sacred herb has been signed into law by Governor Jack Markell.  medical marijuana_3

Delaware is by no means unique-it is part of a national trend towards decriminalization and even legalization occurring at the state level across the nation. However, as far as the federal government is concerned, marijuana remains illegal. Essentially, America is becoming a veritable patchwork quilt of differing, and inconsistent approaches-a situation that is creating headaches for employers, particularly those with national or multi-state operations, striving for consistency and uniformity in their drug policies.

Medical-marijuana laws have been passed in several states. Although Delaware passed a law permitting medicinal use of marijuana, implementation was blunted by potential prosecution by the federal government. And, last month, Colorado and Washington voters made recreational use of marijuana legal in those states. Both medical- and recreational-marijuana-use laws raise lots of questions for employers.

One such question is how these laws will impact an employer’s ability to drug test employees and applicants. The U.S. Department of Transportation (DOT) requires drug testing for safety-sensitive positions. Applicants must be tested before beginning work. Current employees must be tested in certain circumstances, including following an accident. Marijuana is one of the drugs that must be included in the DOT-required screenings.

In 2009, in response to the passage of medical-marijuana laws in several states, the DOT clarified that marijuana remained unlawful under federal law. The DOT reiterated that medical use of marijuana was still “use” and was still considered a violation of the DOT’s regulations.

Delaware’s medical-marijuana program has gone up in smoke. According to the News Journal, Gov. Markell “has suspended the regulation-writing and licensing process for medical-marijuana dispensaries–effectively killing the program.” The decision comes in response to a letter from U.S. Attorney Charles M. Oberly III.

The governor’s office sought guidance from Oberly about the legal implications of state employees who work at a dispensary. Oberly’s response was clear: “State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability” under the Controlled Substances Act.

The death of the Delaware Medical Marijuana Act (DMMA), which was passed in May, 2011, is not due to a unique defect in the statue itself, which shares common elements with other state medical marijuana laws. Instead, the crux of the problem is the intersection of state and federal law and the shifting approach to enforcement taken by the Obama administration.

Delaware legalized marijuana for medicinal uses in May 2010. The law provides that Delaware residents with certain specific medical conditions will be able to legally purchase marijuana at “compassion centers” in the State. While the law is now technically in effect, there are no compassion centers to make a purchase. That’s because the Delaware Department of Health and Social Services has not yet issued the needed regulations. The law requires the DHSS to issue the regulations by July 1, 2012.

Even when the regulations are issued, the future of medical marijuana in Delaware will remain hazy.

Marijuana is currently classified as a “Schedule 1” controlled substance under federal law. That’s the same category as heroin and LSD. According to the federal government, there is “no currently accepted medical use in treatment in the United States” for a Schedule 1 drug.

Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996.  This year, the Delaware General Assembly began experimenting with marijuana legislation.  With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes. medical marijuana

S.B. 17 shares many common elements with medicinal marijuana legislation across the country.  But there are some key differences that could have a major impact on Delaware employers.  Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card.  Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers.”  There will be only one state licensed dispensary in each county.  The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

Unlike many other states’ medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.  Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.

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Department of Transportation (DOT) regulations require employers to administer drug and alcohol testing to employees or applicants who operate or who will operate commercial motor vehicles. Employers must conduct pre-employment, reasonable suspicion, random, post-accident, return-to-duty, and follow-up testing. Geico Image

The DOT issued a new regulation today requiring that urine samples for return-to-duty and follow-up testing be submitted under “direct observation.” The regulation was announced last August but, after complaints from the AFL-CIO’s Transportation Trade Department, the DOT delayed the implementation of the new rules. (See DOT Delays Implementation of New Drug-and-Alcohol-Testing Procedures). The regulation eventually was challenged but recently upheld by the U.S. Court of Appeals for the District of Columbia.

The regulation, effective August 31, 2009, requires a same-gender observer to “watch the urine go from the employee’s body into the collection container.” To comply, employees must raise their shirts above the waist and lower their clothing so as to expose their genitals and allow the observers to verify the absence of any devices that would permit the employee to cheat the test.

The U.S. Department of Labor’s (DOL) Working Partners has posted Nine Tips for Employers planning an office celebration this holiday season111506_UF_latenightdrinkHere’s what it suggests:


  1. Be honest with employees. Make sure your employees know your workplace substance abuse policy and that the policy addresses the use of alcoholic beverages in any work-related situation and office social function.
  2. Post the policy. Use every communication vehicle to make sure your employees know the policy. Prior to an office party, use break room bulletin boards, office e-mail and paycheck envelopes to communicate your policy and concerns.
  3. Reinvent the office party concept. Why have the typical office party? Try something new like an indoor carnival, group outing to an amusement park or volunteer activity with a local charity.
  4. Make sure employees know when to say when. If you do serve alcohol at an office event, make sure all employees know that they are welcome to attend and have a good time, but that they are expected to act responsibly.
  5. Make it the office party of choice. Make sure there are plenty of non-alcoholic beverages available.
  6. Eat…and be merry! Avoid serving lots of salty, greasy or sweet foods which tend to make people thirsty. Serve foods rich in starch and protein which stay in the stomach longer and slow the absorption of alcohol in the bloodstream.
  7. Designate party managers. Remind managers that even at the office party, they may need to implement the company’s alcohol and substance abuse policy.
  8. Arrange alternative transportation. Anticipate the need for alternative transportation for all party goers and make special transportation arrangements in advance of the party. Encourage all employees to make use of the alternative transportation if they consume any alcohol.
  9. Serve none for the road. Stop serving alcohol before the party officially ends.

For more tips from around the world wide web, see our prior post, ‘Tis the Season to Avoid Disaster at the Office Holiday Party.

Last month, the Department of Transportation (DOT), announced that changes to its drug and alcohol testing regulations would go into effect on August 25, 2008. The new regulations amended and added to 49 C.F.R. Part 40, relating to adulterated, substituted, diluted, or invalid urine specimens. After complaints from the AFL-CIO’s Transportation Trades Department (TTD), though, the DOT has delayed the implementation of the new rules. The regulations will be open for comment submission for one month and are scheduled for their official debut in November—in whatever form they take at that point.

So what caused the sudden change of heart? The TTD, along with the Association of American Railroads, the American Short Line and Regional Railroad Association; the Teamsters, and the Air Transport Association, joined by the Regional Airline Association, asked the DOT to reconsider the portion of the new regulations that would make specimen validity testing (SVT) mandatory. The DOT considers mandatory SVT to be an important way to combat cheating on drug tests.

The objections related to the portions of the new regulations that expanded the use of direct observation (DO). In short, employees who previously received a positive test result for prohibited drug would now be required to provide urine specimens under DO. The DOT explains the proposed changes and the background of 

A disgruntled airplane pilot sued the Federal Aviation Agency (FAA) seeking to have his pilot’s license reinstated. The FAA terminated his license after the pilot failed a drug test. The pilot claimed that there was insufficient evidence to support his termination. The suit made its way to a federal appeals court after an administrative hearing and the National Transportation Safety Board affirmed the FAA’s decision.  The federal court, I’m glad to say, upheld the termination decision, marking a sad day for crack-smoking employees in highly safety-sensitive jobs.

 pilot's hat

Mark Toth of the Manpower Employment Blog has a great summary of the case in his post, Court Upholds Termination of Crack-Smoking Pilot:

  • February 15:  Pilot Charles Gabbard smoked crack cocaine.
  • February 16:  Gabbard submitted to a random drug test.
  • February 17:  Gabbard piloted a chartered jet.
  • February 21: Gabbard’s test results show a cocaine metabolite level seven times higher than the regulatory limit. (Cocaine takes 24-48 hours to clear the system.)

In April 2007, the FAA terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

The Equal Employment Opportunity Commission (EEOC) has filed suit under the ADA against a Pittsburgh drug-treatment center.  The suit, which is brought on behalf of a former clinic employee under the Americans With Disabilities Act, alleges disability-based discrimination.  The employee, a recovering drug addict, worked full-time as a counselor at the clinic when was terminated when she tested positive for methadone in a random drug test.  

The Greenbriar Treatment Center in New Kensington, is alleged to have fired the employee despite EEOC Sues on Behalf of Methadone Userher claim that she had a legal prescription for the methadone, which she’d been receiving through a treatment program since 2002.  She was later berated by her former boss, who told her that she “should be ashamed of herself.”  The EEOC contends that the termination was unlawful discrimination against a person with a disability. 


The Americans With Disabilities Act & Illegal Drug Use

The Americans With Disabilities Act (ADA) does not protect current drug users.  But it does protect those who are in recovery for drug or alcohol abuse. 

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