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DOT Regs vs. Lawful Marijuana Use

Posted by Molly DiBiancaOn December 19, 2012In: Drug Testing, Policies

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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.

In response to the Colorado and Washington laws permitting recreational use of marijuana, the DOT has spoken yet again. On December 3, 2012, the U.S. Department of Transportation's (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes. Not surprisingly, the DOT's position is unaffected by these State's laws and the prohibition against marijuana use by anyone in a safety-sensitive position remains fully intact.

The conflict between state and federal drug laws will be resolved eventually. But, until then, the questions and contradictions will continue to cause confusion for employers.

Feds Blunt Delaware's Medical-Marijuana Law

Posted by Michael P. StaffordOn February 13, 2012In: Delaware Specific, Drug Testing, Legislative Update

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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.

Despite state statutes like the DMMA, marijuana, medicinal or otherwise, remains illegal under the federal Controlled Substances Act as a "Schedule 1" controlled substance--the same category as drugs like heroin and LSD.

When the DMMA was passed in May 2011, legislators were under the impression that the federal government would not prosecute employees in future dispensaries. This understanding was due to representations by the Obama administration that it would not prosecute individuals for marijuana offenses made legal under state law. That position has changed, however, and the federal Department of Justice is now drawing a distinction between physicians prescribing medicinal marijuana, and individual cardholders, on the one hand, and "large scale, privately owned industrial cultivation centers" on the other. This is problematic for Delaware because the DMMA initially centralizes marijuana distribution in just three Compassion Centers (with one located in each county).

The uncertainty created by contradictory enforcement signals at the federal level has impacted the implementation of medicinal marijuana legislation in other states as well. As we posted previously, a Justice Department warning that "state employees who conducted activities mandated [under a proposed law] would not be immune from liability" led Washington Gov. Gregoire to veto that state's medical-marijuana bill. Similar warnings of potential enforcement actions targeting marijuana dispensaries also led Rhode Island Gov. Chafee to halt plans to create state-licensed compassion centers, as well.

The news should be a relief to Delaware employers concerned about the workplace implications of the DMMA which, among other things, would have made it unlawful for an employer to terminate a cardholder for failing a drug test unless they "used, possessed, or (were) impaired by marijuana" while at work during normal hours. The DMMA also specified that the mere presence of marijuana components or metabolites in a cardholders system would not suffice to establish that they were under the influence of the drug.

While some effort to amend the DMMA to address federal enforcement concerns is likely, for now, medical marijuana's future in Delaware appears hazy, at best.

Will Delaware's Medical Marijuana Law Go Up In Smoke?

Posted by William W. BowserOn December 6, 2011In: Drug Testing

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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.

According to a recent article in the New York Times, federal agencies have moved to block state efforts to expand the use of medical marijuana. For example, in response to an bill passed by the State of Washington Legislature to legalize and regulate marijuana dispensaries and growers, the U.S. Justice Department warned that growing and distributing marijuana was still against federal law, and said that "state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability." The warning caused Washington Governor Christine Gregoire to veto the bill.

Similar actions froze Rhode Island plans, to permit state-regulated marijuana dispensaries. Federal prosecutors warned Rhode Island Governor Lincoln Chafee that the dispensaries could be targets of prosecution.

As Delaware moves forward with its plans to permit use of medical marijuana, a similar federal response seems possible, if not likely. Whether such actions will stomp out Delaware efforts remains to be seen.

Waiting to Exhale: Delaware’s Medical-Marijuana Law

Posted by Michael P. StaffordOn June 14, 2011In: Delaware Specific, Drug Testing, Legislative Update

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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.

Continue reading . . .

Continue reading "Waiting to Exhale: Delaware’s Medical-Marijuana Law" »

Somebody’s Watching You (and it’s not the money you could be saving on car insurance): New Drug-Testing Regs from DOT

Posted by William W. BowserOn July 30, 2009In: Drug Testing

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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.

Both return-to-duty and follow-up testing involve employees who are returning to safety-sensitive duties after failing or refusing to take a drug test. A copy of the DOT’s new regulation is here.

Employers should review their DOT drug and alcohol testing programs to ensure compliance with this new requirement.

Alcohol and the Office Holiday Party: Tips from the Dep't of Labor

Posted by Molly DiBiancaOn December 17, 2008In: Drug Testing

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The U.S. Department of Labor's (DOL) Working Partners has posted Nine Tips for Employers planning an office celebration this holiday seasonHere'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.

DOT Delays Implementation of New Drug and Alcohol Testing Procedures

Posted by Molly DiBiancaOn September 2, 2008In: Drug Testing

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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 

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Employee Must’ve Been Smoking Crack If He Thought He’d Win Lawsuit

Posted by Molly DiBiancaOn June 22, 2008In: Cases of Note, Drug Testing

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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.”

Drug-Free Friendly Skies: Too Much to Ask?

The Sixth Circuit concluded that there was sufficient evidence to find that Gabbard indeed had taken drugs prior to flying.  Given the window of time for the drug test to show a positive result, he had smoked crack no more than 42-44 hours before takeoff. 

Mark Toth points out Gabbard's creative (i.e., ludicrous) arguments:

(1) he may have smoked a cigarette that, unbeknownst to him, was laced with crack;

(2)  the cocaine may have gotten into his system due to plastic surgery; or

(3) perhaps he inhaled the fumes of crack cocaine that just happened to waft by.

But the Sixth Circuit didn't buy it.  What mattered was that, regardless of how he intentionally or accidentally ingested the drug, he should have notified his employer immediately, rather than preparing for takeoff as usual.

One final note about the case.  Gabbard also tried to argue that he'd been a victim of incompetent representation by his lawyer at the administrative hearing.  Needless to say, the court disregarded the contention, holding that adequate representation is an issue for the criminal courts.  Since that's the case, given the circumstances, Mr. Gabbard may be able to reuse that argument sometime in the not-so-distant future when he likely finds himself before a criminal court.  And, hopefully for him, his lawyer will not have "accidentally" ingested an illegal narcotic prior before representing Gabbard in any legal proceedings, criminal or otherwise.

Other Recent Cases Involving Terminations for Illegal Conduct and Drug Testing

EEOC Sues Pittsburgh Drug Clinic for Terminating Recovering-Addict Employee for Failing Random Drug Test

One More Reason Every Employee Should Be Required to Complete a Job Application: School Is Ordered to Reinstate Convicted Killer to Teaching Position

 

EEOC Sues Pittsburgh Drug Clinic for Terminating Employee for Positive Drug Test

Posted by Molly DiBiancaOn June 21, 2008In: Cases of Note, Disabilities (ADA), Drug Testing, EEOC Suits & Settlements

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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. 

The EEOC's Technical Assistance Manual for the ADA has the following to say about the use of illegal drugs as a disability:

Regarding Persons Currently In Recovery:

Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

For example

An addict who is currently in a drug rehabilitation program and has not used drugs illegally for some time is not excluded from the protection of the ADA. This person will be protected by the ADA because s/he has a history of addiction, or if s/he is "regarded as" being addicted. Similarly, an addict who is rehabilitated or who has successfully completed a supervised rehabilitation program and is no longer illegally using drugs is not excluded from the ADA.

Regarding Persons Currently Using:

However, a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be "substantially limited" because of drug use, s/he must be addicted to the drug.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or may request the results of a drug test.

Not having seen the complaint, I'm at a bit of a loss as to what type of facts may be alleged to support the EEOC's claim.  To present a viable claim, the EEOC has to allege that the employee (1) is disabled, presumably because of her drug addiction; and (2) she suffered some adverse action, presumably the termination; and (3) Number 1 was the reason for Number 2; i.e., that she was fired because of her drug addiction. 

My initial reactions to this scenario:  What was the clinic's drug policy? I'd think it would be more comprehensive than most.  Did it address methadone?  What was the clinic's position, if any, on methadone programs as a recovery treatment?  And, of course, wasn't there a pre-employment drug test?  If so, did she test positive for methadone?  If she did, well, it seems like clinic could be in a bad spot.  If she didn't, was she still using illegal drugs?  Would that have been a piece of after-acquired evidence (i.e., falsifying drug test results, etc.) upon which the employer could have terminated her?  That would be a reason other than a "disability."

The merits of the case may also depend on how the court defines a "recovery program" as that term is used in the EEOC's Guidance, above.  It isn't clear from the EEOC's own definition whether the methadone program would qualify.

A "rehabilitation program" may include in-patient, out-patient, or employee assistance programs, or recognized self-help programs such as Narcotics Anonymous.

Source:  Post Gazette at http://www.post-gazette.com/pg/08166/889903-56.stm