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WHAT’S DRIVING MARIJUANA LAWS?

AND, WHO’S DRIVING THEIR ENFORCEMENT IN THE WORKPLACE?

American Association of State Highway and Transportation Officials

Human Resource Employees

May 8, 2017

Lisa Banatoski Mehta

Ashley L. Marshall

I. INTRODUCTION.

A. Marijuana Legislation Throughout the United States[1]

1. There are currently twenty-nine states and the District of Columbia that have legalized the use of medical marijuana in some form.

2. Eight states and the District of Columbia have legalized the use of recreational marijuana.

3. A small minority of states that do not have sweeping legislation allowing the use of medical or recreational marijuana allow for limited access to marijuana under certain specified circumstances. These states include Iowa, Alabama, Mississippi, Virginia, and Wisconsin.

4. Employers are up against new challenges with the rising acceptance of medical and recreational marijuana use on the state level.

a. Many states prohibit discrimination against individuals on the basis of their medical marijuana usage. This presents an issue for employers who do not want necessarily wish to retain employees who routinely use marijuana and may come to work under the influence. To protect employer rights, many state laws have carve-outs which allow them to prohibit marijuana use while on the employer’s premises and while on the clock. Some states even allow an employer to discharge an employee for having a positive drug test resulting from medical marijuana use.

II. THE DEPARTMENT OF TRANSPORTATION’S DRUG TESTING REGULATIONS.

A. The Omnibus Transportation Employee Testing Act of 1991

1. Congress passed the Omnibus Transportation Employee Testing Act of 1991 (the “Act”) with a vision for a drug and alcohol free transportation industry. See 49 U.S.C. § 31301 et. seq.

2. The Act requires drug and alcohol testing for certain “safety-sensitive” Department of Transportation (“DOT”) employees. It provides for pre-employment, reasonable suspicion, random, and post-accident drug testing for covered employees.

3. The Office of Drug and Alcohol Policy Compliance (the “ODAPC”) is the federal agency that is responsible for advising the DOT on national and international drug testing of safety- sensitive transportation employees. Pursuant to the Act, the ODAPC promulgated DOT wide regulations that instruct employers about how to conduct testing, and how to return employees to safety-sensitive positions after violating a DOT testing regulation.

B. DOT Drug Testing Regulations - “Part 40”

1. 49 C.F.R. Part 40, commonly referred to in the industry as “Part 40”, lays out the drug testing procedures for all employees who work in safety-sensitive positions, and the specific requirements for conducting those drug tests.

2. Coverage

Any person who is designated in a DOT regulation as subject to testing is covered by Part 40. These include individuals currently performing safety-sensitive functions as well as applicants for employment who are subject to pre-employment testing. See 49 C.F.R. § 40.3. The test for coverage depends on whether the tasks the employee performs fall within the set of tasks required by a designated safety-sensitive position. A job title alone is not sufficient to establish coverage. Examples of some designated safety-sensitive positions include:

a. Aviation: Flight crews, flight attendants, flight instructors, certain air traffic controllers, air craft dispatchers, aircraft maintenance or preventive maintenance personnel, ground security coordinators, and aviation screeners.

b. Commercial Motor Carriers: Commercial drivers license holders who operate commercial motor vehicles.

c. Railroad: locomotive engineers, trainmen, conductors, switchmen, locomotive hostlers/helpers, utility employees, signalmen, operators and train dispatchers.

d. Pipeline: Persons who perform operations, maintenance, or emergency response function on a pipeline.

e. Maritime: Crewmembers operating a commercial vessel.

f. Transit: Vehicle operators, controllers, mechanics, and armed security.

3. Drug Testing Procedures

a. DOT drug tests are conducted using urine specimens only.

b. The samples are analyzed for marijuana/THC, cocaine, amphetamines, opiates, and PCP.

c. Prescription drugs and over the counter medications are only allowed if:

1.) The medicine is prescribed by a licensed physician;

2.) The physician has made a good faith judgment that the use of the substance at the prescribed dosage level is consistent with the safe performance of the employee’s duties;

3.) The substance is used at the dosage prescribed or authorized;

4.) If being treated by more than one physician, at least one of the treating doctors must be aware of all prescribed and authorized medications and must have determined that the use of the medications is consistent with the safe performance of the employee’s duties; and

5.) Taking the prescribed medication and performing the DOT safety-sensitive functions must not be prohibited by agency specific drug and alcohol regulations.

d. The drug testing process consists of three components: collection, testing at a laboratory, and review by a Medical Review Officer (“MRO”). See 49 C.F.R. Subparts C through G.

e. Collection. The collection process is highly regulated and must be conducted in accordance with Part 40.

1.) The employee’s identity must be verified using a current valid photo ID.

2.) The collection site must be secure. This is done by restricting access to the site, securing all water sources, and removing/securing all cleaning products and other fluids at the site.

3.) The employee’s privacy must be respected, unless there are issues of attempted adulteration, substitution, or validity.

4.) The specimen must be sent to a certified testing laboratory in two separate containers, labeled as “A” and “B”. The containers must be sealed with tamper-evident tape and signed by the employee.

f. Testing. The certified testing laboratory will determine if any flaws exist in the specimen, in which case it would be rejected. Then the two specimen findings are reported to a MRO. Tests found to be adulterated or substituted may be considered a refusal to test.

g. Review by the MRO. A MRO is a licensed physician with knowledge and clinical experience in substance abuse disorders. They serve as the impartial and independent gatekeepers who check the accuracy and integrity of DOT drug testing programs. If a test is negative the MRO will report those results directly to the employer. If a test is positive the MRO will conduct an interview with the employee to determine if there is a legitimate medical reason for the result.

h. In the event of a positive test result, employees have 72 hours from the time of the verified result to request to have container “B” sent to another certified laboratory for analysis for the same substance or condition that was found in container “A”.

i. Test results are always confidential and employers are not permitted to disclose tests results to any outside party without the employee’s written consent. Test information, however, may be released in certain legal or administrative proceedings brought by the employee or on the employee’s behalf.

4. Types of Testing

a. Pre-employment: New hires to safety-sensitive positions are required to submit to a drug test.

b. Reasonable suspicion/cause: A supervisor may request that an employee submit to a drug test based on a “reasonable suspicion.” Reasonable suspicion means that one or more trained supervisors reasonably believes or suspects that an employee is under the influence of drugs. A hunch or a guess is not a sufficient basis for testing. The reasonable suspicion must be supported by observations regarding appearance, behavior, speech, and smell usually associated with drug use.

c. Random: This is purely random, unannounced drug testing. Each employee must have an equal chance to be selected.

d. Return-to-duty: If an employee has violated the DOT regulations, he or she is required to submit to a drug test before returning to work in their safety-sensitive position. Return-to-duty tests are conducted under direct observation. After the return-to-duty test is completed and cleared, the employee may still be subject to random follow-up drug testing at least six times in the first twelve months following return to duty.

e. Follow-up: After the return-to-duty test is completed and cleared, the employee still may be subject to random follow-up drug testing at least six times in the first twelve months following his or her return to duty. The amount of follow-up testing received is determined by a Substance Abuse Professional and may continue for up to five years.

f. Post-accident: Sometimes drug testing is required subsequent to an accident or crash.

5. Refusals to Test

a. DOT regulations prohibit refusals to test. See 49 C.F.R. Part 40 subparts I & N. A refusal to test is a broad concept that encompasses for than an employee’s direct refusal to submit to a drug test. Examples of refusals to test also include:

1.) Failure to appear for a test after being directed;

2.) Failure to remain at the testing site until processing is completed;

3.) Failure to provide a urine sample required by federal regulations;

4.) Failure to cooperate with any part of the testing process:

5.) Failure to undergo a medical evaluation when requested due to a “shy bladder”; or

6.) Providing adulterated or substituted specimen.

b. General rule: comply with testing procedures and file a timely complaint at a later date. Employees may complain through the company’s dispute resolution office, an agreed upon grievance procedure, or they may complain directly to the applicable DOT agency.

6. Violations

a. If an employee tests positive, refuses to test, or otherwise violates DOT regulations, that employee must be removed immediately from DOT-regulated safety-sensitive functions.

b. The employee will not be permitted to return to work until he or she has undergone an evaluation by a Substance Abuse Professional, successfully completed any required education, counseling, or treatment, and provided a negative test result through return-to-duty testing.

c. The DOT regulations do not address or require any particular employment actions related to hiring, firing, or discipline, granting leaves of absences and the like. All employment decisions are in the discretion of the employer.

d. However, the DOT regulations may require the loss of a certification or license to perform a safety-sensitive job.

C. Employer Concerns and Responsibilities

1. Employers with safety-sensitive employees are required to engage in DOT testing of those employees.

2. DOT Agencies and the Unites States Coast guard require employers covered under their agency-specific regulations to have policies in place that explain their drug testing program. The policies must also be made available to the employees to access.

3. Employers must provide employees with training materials that explain the DOT requirements. There are separate training requirements for supervisors and other officials of DOT agencies for reasonable suspicion testing.

4. Before hiring or transferring a safety-sensitive employee, employers must check the applicant’s DOT drug testing history. Employers should check agency-specific regulations for how far back in time the records check must go.

5. Employers subject to DOT regulations should have a Designated Employer Representative (the “DER”). The DER should be an employee who has knowledge of the DOT testing procedures and protocols. This is because the employee should give the DER the authority to take immediate action to remove employees from their safety-sensitive functions if they test positive or refuse a test.

6. Options for Test Administration

a. Internal administration: An employer can hire its own staff to support an internal collection program.

b. Outsource some of the program functions to a service agent: An employer could hire its own Substance Abuse Professional and MRO, but outsource the collection functions.

c. Outsource all of the program functions.

7. Vetting Service Agents

a. Make sure your service agents are qualified and appropriately trained.

b. Stay in constant contact with your service agent to ensure they are complying with DOT regulations.

c. Audit the work of your service agents periodically.

d. Enter into a contract with the service agent that sets terms for how services will be provided.

8. Recordkeeping

a. Employers with safety sensitive employees must maintain comprehensive records related to the testing program. Recordkeeping requirements are available in the DOT’s “Employer Record Keeping Requirements for Drug and Alcohol Testing Information” on their website.

D. Agency Specific Regulations

1. In addition to Part 40, there are industry specific regulations that govern employees who work for particular federal agencies.

2. The following agencies have specific drug testing regulations:

a. The Federal Motor Carrier Safety Administration. 49 C.F.R. Part 382.

b. The Federal Railroad Administration. 49 C.F.R. Part 219.

c. The Federal Aviation Administration. 14 C.F.R. Part 120.

d. The Federal Transit Administration. 49 C.F.R. Part 655.

e. The Pipeline Hazardous Materials Safety Administration. 49 C.F.R. Part 199.

f. The United States Coast Guard. 46 C.F.R. Parts 4, 5, and 16.

III. THE CONFLICT BETWEEN STATE AND FEDERAL LAW.

A. Despite the fact that many states have legalized marijuana use in some way, it is still illegal under federal law.

1. Marijuana is listed as a Schedule I drug prohibited by federal law. 21 U.S.C. § 812.

2. According to the federal law, Schedule I drugs are those that (i) have a high potential for abuse; (ii) have no currently accepted medical use; and (iii) have a lack of accepted safety for use of the drug under medical supervision.

3. Despite the fact that various states have accepted the medical uses of marijuana, legislators have not removed marijuana from the Schedule I list.

B. Employers may discriminate if required to do so because they are regulated by federal laws. In these circumstances, state laws prohibiting discrimination on the basis of medical marijuana use do not apply.

C. The DOT’s Position on Medical and Recreational Marijuana Use

1. The DOT’s clear position on medical and recreational marijuana is that its use by safety-sensitive employees for any purpose is prohibited, regardless of whether state law allows it.

2. On October 22, 2009 the DOT released a “Medical Marijuana” Notice responding to inquiries about the impact of state laws authorizing the use of medical marijuana on the DOT’s drug testing regulations. The DOT clearly stated that Part 40 “does not authorize medical marijuana under state law to be a valid medical explanation for a transportation employee’s positive drug test result.” MROs were instructed not to verify a drug test as negative based upon a physician’s recommendation of medical marijuana usage.

3. The DOT released a “Recreational Marijuana” Notice on December 3, 2012 with similar guidance. Part 40 does not authorize the use of marijuana, because it remains a Schedule I drug under federal law. “It remains unacceptable for any safety-sensitive employee subject to drug testing under the DOT’s drug testing regulations to use marijuana.”

D. Americans With Disability Act, 42 U.S.C. § 1201 et seq.

1. Title I of the Americans with Disabilities Act of 1990 (the "ADA") requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.

2. Is allowing an employee to use medical marijuana a “reasonable accommodation” under the ADA?

a. The ADA creates an exception for employers who fire or refuse to hire an employee who poses a direct threat. A direct threat is defined as a significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.

b. Sec. 1220 excludes persons currently engaged in the “illegal use of drugs” from the definition of an “individual with a disability.” Marijuana use, even though state-sanctioned for medicinal purposes, is still considered a Schedule 1 Drug by the Controlled Substances Act, and therefore, is illegal under federal law.

3. Courts have ruled that employers have NO duty under the ADA to accommodate medical marijuana use for an underlying disability.

4. Confidentiality

a. Qualifying status is confidential.

b. Under the Americans with Disabilities Act (ADA), employees are under no obligation to disclose their disabilities unless they ask for an accommodation.

IV. CASE STUDY: CONNECTICUT’S MEDICAL MARIJUANA LAW.

A. Connecticut Public Act No. 12-55, “An Act Concerning The Palliative Use Of Marijuana”

1. Conn. Gen. Stat. § 21a-408p(b)(3): “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 under sections 21a-408 to 21a-408n, inclusive. 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.

B. Summary of the Connecticut Statute - Conn. Gen. Stat. § 21a-408 et seq.

1. It is legal for certain individuals to possess limited amounts of marijuana for “palliative use.”

2. “Palliative Use” is defined as the alleviation of a “qualifying patient’s” symptoms of a “debilitating medical condition.

3. A “Qualifying Patient” is a Connecticut resident aged 18 or older who has been diagnosed by a physician as having a debilitating medical condition.

a. “Debilitating Medical Condition” includes cancer, glaucoma, AIDS or HIV-positive status, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, Crohn’s disease, post- traumatic stress disorder, and any other medical condition approved by the Department of Consumer Protection pursuant to regulations to be adopted.

4. Persons who may possess marijuana include qualifying patients and their “primary caregivers.”

5. “Employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state.

C. How is the law being implemented and enforced?

1. Qualifying patients must register with the Department of Consumer Protection and have a physician issued written certification.

2. The Department of Consumer Protection issues licenses to producers and to dispensaries (who must be licensed pharmacists).

3. Department of Consumer Protection regulations setting forth a protocol for determining what constitutes an adequate one-month supply – which is the maximum quantity a patient or caregiver may have on hand of medical marijuana.

D. What Does This Mean for Employers?

1. Potential Problems for Connecticut Employers.

a. Employees that use marijuana while at work for claimed disabilities.

b. Employees that use marijuana at home but come to work under the influence. There is no definition of “under the influence” in the Connecticut Palliative Use Act.

c. Employees that test positive for certain components of marijuana, but do not appear under the influence at work.

d. Employees that post on social media about their out of work marijuana use.

2. How Should Employers Deal With These Tricky Situations?

a. Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.

b. Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

c. The Act precludes the ingestion of marijuana: (a) in a motor bus or a school bus or in any other moving vehicle; (b) in the workplace; (c) on any school grounds or any public or private school, dormitory, college or university property; (d) in any public place; or (e) in the presence of a person under the age of eighteen.

d. But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

E. Conflict between Connecticut’s law and Federal law

1. Marijuana, even for medical use, is still illegal under federal law.

2. The Act has a federal law exception that allows employers to discriminate against a qualifying patient if required by federal funding or contracting provisions.

a. Employers who rely on federal funding or operate in an industry regulated by federal laws restricting the use of marijuana (i.e., aviation, common carriers) may invoke the Act’s exception when necessary to avoid the time, expense and consequences of a federal lawsuit, or a sudden cessation of critical funding.

b. Employers that are covered federal contractors or grantees must also comply with the federal Drug Free Workplace Act of 1988, which requires those employers to prohibit the use of marijuana as a condition of participation.

3. High Risk and/or Safety Sensitive Jobs

a. If a job is designated as “high risk” or “safety sensitive” under federal law (ie: train engineers, school bus drivers, pilots), employers may refuse to hire, reassign or discharge a “qualifying patient” under the federal law exception.

b. Under the Occupational Safety and Health Act (“OSHA”), employers have a “general duty” to provide a safe work environment, making the use of marijuana by workers in safety- sensitive positions particularly troublesome.

c. The DOT has stated: “It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana,” regardless of state legislation permitting its use.

d. BUT this applies only to jobs regulated by federal law; the Connecticut Act contains no comparable exception.

4. Attorney General’s Enforcement Priorities

a. United States Attorney’s Office Letter to Connecticut Legislators stated that: “growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities.

b. The U.S. Supreme court endorsed this position in Gonzales v. Raich, 545 U.S. 1, 29, 125 S.Ct. 2195 (2005).

c. The Department of Justice “does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law” but prosecuting individuals involved with illegal drugs remains a “core priority” of the DOJ.

F. Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60, et seq. (“CFEPA”)

1. Discrimination based on medical marijuana use is not a protected class under CFEPA; however, an employee’s attorney might argue that he was terminated due to discrimination against the underlying disability.

2. It is unclear whether a Connecticut employee that is a “qualifying patient” can be successful in a private right of action in which the employee fails a drug test based on out of work use of medical marijuana.

3. Another complicating factor is the anti-discrimination provision of the medical marijuana statute.

a. Employers are prohibited from discriminating against a “qualifying patient or primary caregiver.”

b. Like any other discrimination statute, employers may see claims by employees who believe that an adverse job action was motivated by the employee’s marijuana use under the statute.

G. Employer Drug Testing

1. Connecticut’s longstanding drug testing law, Conn. Gen. Stat. §§ 31-51t, et seq. requires that in most instances, an employer have “reasonable suspicion” that an employee is under the influence such that their work performance could suffer before requiring them to submit to urinalysis testing.

a. An employer generally may not require employees to submit to a drug test on a random basis unless one of the following exceptions applies: (1) Such test is authorized under federal law (2) The employee serves in an occupation which has been designated as high-risk or safety-sensitive; or

(3) The test is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates.

2. Problems with drug testing for marijuana

a. A positive drug test may be excusable if the prospective or current employee qualifies under the provisions of the CT Palliative Use statute.

b. Marijuana stays in the system longer than alcohol and proving that an employee is “under the influence” at work can be difficult. The psychoactive components of marijuana, such as THC, can be found in urine tests for up to 35 days or longer in the case of regular medical marijuana users, while it leaves the blood stream much quicker, generally within hours of use.

c. What level of marijuana use leads to impairment? There is no national impairment number similar to the .08 blood alcohol content for drunk drivers.

d. Because of these issues, employers may need to rely upon verifiable observations in order to prove that the employee was under the influence at work.

3. How can employers deal with these issues when drug testing for marijuana?

a. Avoid random drug testing for non-safety sensitive positions.

b. Verify whether the employee is a “qualifying patient” before taking action based on the results of a drug test.

c. Determine whether the laboratories providing the testing can conduct additional testing (such as blood tests) which can be done to ascertain when the marijuana was smoked and whether the individual was under the influence of marijuana at work, because the key inquiry under the Act is one of impairment, not ingestion. Employers who rely solely on urinalysis drug test results when determining the fate of their “qualifying patient” employees appear to do so at their own peril.

H. Relevant case law in Connecticut since the passage of the 2012 legislation

1. Connecticut courts have yet to consider many of these issues.

2. Based on decisions in other states, it seems likely that courts in Connecticut will similarly side with employers who discipline employees that violate their drug policies. For example:

a. State of Connecticut v. Connecticut Employees Union Indep., CV146049002S, 2014 WL 5572251 (Conn. Super. Ct. Oct. 6, 2014).

Case arose from State’s challenge to an arbitration award reinstating an employee who was terminated for using marijuana while on the job. The State contended that the award should be vacated on public policy grounds. The Superior Court agreed with the State because it violates the state’s well established public policy on illegal drug use while on state duty.

The union argued that the award must be confirmed because the State is “currently implementing the legalization of medical marijuana.” The court rejected that argument pretty simply by stating that even if that’s the case, there is “nothing in the records[to] indicate that grievant was prescribed marijuana.

However, the matter was appealed. Ultimately, in State v. Connecticut Employees Union Independent, 2016 WL 4430019 (Conn. Aug. 30, 2016), the Connecticut Supreme Court upheld an arbitrator’s decision to reinstate an employee who had been caught smoking marijuana on the job. It was not a violation of public policy to reinstate this employee and impose a period of suspension without pay because the employee had a 15 year history of employment with no prior discipline and had received favorable performance evaluations. In light of his mostly positive employment history, an unpaid suspension was appropriately severe.

1.) This case does not mean that Connecticut has abandoned its public policy against the recreational use of marijuana at work. In fact, the Court concluded that “there exists an explicit, well-defined and dominant public policy against the possession and recreational use of marijuana in the workplace.”

2.) This case does suggest, however, that employers should consider all relevant facts before discharging an employee for recreational marijuana use on the job. Each decision must be made on a case-by-case basis.

3.) Moreover, this case confirms that Connecticut’s public policy does not require discharge in such circumstances, but allows for lesser sanctions

4.) When faced with similar circumstances consider:

a.) How long has the employee been with the Department?

b.) Has the employee had other disciplinary issues?

c.) Has the employee had the same exact disciplinary issue?

d.) Is there a criminal charge involved?

e.) Has the employee received negative, positive, or mixed performance reviews?

f.) Do you think the employee is going to commit the same offense in the future?

g.) How severe was the offense?

3. BUT Connecticut employers should tread carefully because statutes in many other states do not specifically include anti-discrimination clauses relating to employees’ medical marijuana use.Connecticut’s Palliative Use Act DOES. Thus the provision raises questions about the validity of adverse employment actions based on positive drug tests.

I. Employer Policies

1. Even though this area of the law is still evolving in Connecticut, it is important to have clear policies. Steps that employers should take:

a. Revise and/or update policies to reflect the 2012 Connecticut legislation

1.) Adopt a simple, straightforward policy. For example:

“We don’t allow the use of, the possession, or being under the influence of any illegal drug in the workplace. ‘Illegal drug’ is defined as the ‘abuse of over-the-counter medication, prescription medication, medical marijuana, and alcohol.”

2.) Policies can state that there is zero tolerance for employees that use drugs at work or are under the influence of drugs at work.

b. Educate staff to include guidance on proper documentation of observations of signs that an employee is “impaired” or “under the influence” in the event of subsequent litigation, and to refer employees to HR if there is any indication an employee may have a medical condition or medical marijuana issue.

c. Employers that are governed by any federal statutes (Department of Transportation regulations requiring drug testing, and OSHA, for example) must follow federal law.

d. Determine whether an employee is a “qualifying patient” prior to making any decisions to discipline and/or terminate.

2. Given that there are many federal and state laws governing the implementation and enforcement of workplace drug policies, employers may find it helpful to obtain the assistance of counsel in navigating these yet largely unchartered waters.

J. Examples of Other State Laws Relating to Medical Marijuana

1. Are the medical marijuana laws in other states similar to those in Connecticut?

a. Washington Medical Use of Marijuana Act states that appropriate users of medical marijuana will not be “penalized in any manner, or denied right or privilege for such actions.” The statute does not provide any specific protections in the employment context and specifically states that “[e]mployers may establish drug-free work policies. Nothing in this chapter requires an accommodation for the medical use of marijuana if an employer has a drug-free workplace.” RCW 69.51A.060 (7).

b. California Compassionate Use Act of 1996 states that its purpose is to “ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” The Act does not specify any protections for employees against discharge or other action. Cal. Health & Safety Code § 11362.5.

c. Colorado: “Effective June 1, 1999, it shall be an exception from the state's criminal laws for any patient or primary care giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana.” C.R.S. Const. Art. 18 § 14 (2)(b). The Act does not specify any protections for employees against discharge or other action, and states that “nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” C.R.S. Const. Art. 18 § 14 (10)(b).

2. What have the courts in other states said on issues involving medical marijuana?

a. So far, the majority of courts across the country considering this issue have concluded that employers may discipline employees that use marijuana in the workplace, are under the influence, or fail drug tests. Consider, for example, relevant case law in Colorado, California, and Washington:

b. Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). The Colorado Supreme Court concluded that because medical marijuana is illegal under federal law, the activity could not be “lawful” for purposes of the Colorado lawful activities law.

c. Casias v. Wal-Mart Stores, 695 F.3d 428 (6th Cir. 2012)

Employee who used marijuana for pain associated with cancer was terminated after failing a drug test, despite having a medical marijuana registry card. The court held that Michigan’s medical marijuana statute only provides a defense against criminal prosecution and other adverse action by the state but does not regulate private employment.

d. Curry v. MillerCoors, Inc., No. 12-cv-02471, 2013 WL 4494307 (D.Colo. Aug. 21, 2013). Colorado federal court ruled in favor of an employer on a disability discrimination claim after the employer discharged the employee for violating his employer’s drug policy.

e. Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008). California Supreme Court ruled that a company rightfully fired an employee holding a medical marijuana certification who failed a drug test. The court construed California’s Compassionate Use Act to rule in favor of the employer and hold that medical marijuana patients cannot state civil causes of action for employment discrimination.

f. Roe v. TeleTech Customer Care Mgmt., LLC, 216 P.3d 1055 (Wash. Ct. App. 2009). The Court ruled for an employer who refused to hire a prospective employee who failed a pre-employment drug test allegedly due to her medical use of marijuana. In considering the Washington Medical Marijuana Act, the court noted that the prohibition against penalizing medical marijuana users applied only to those charged criminally, and did not create any new substantive employment rights.

V. OTHER RELEVANT CASES.

A. Cases Involving Transportation Employees and Marijuana.

1. Eastern Associated Coal Corp. v. United Mine Workers of America, 531 U.S. 57 (2000). Plaintiff James Smith worked for Defendant Eastern Associated Coal Corp. as a member of road crew. He was a safety-sensitive employee who was required to drive heavy truck-like vehicles on public highways. Smith tested positive for marijuana after submitting to a drug test and Eastern sought to discharge him. At arbitration, the arbitrator concluded that the positive drug test on its own did not amount to “just cause” for discharge as required by the parties’ collective bargaining agreement, and ordered Smith’s reinstatement on the condition he that he participate in a substance abuse program. Within five years, Smith tested positive for marijuana a second time, and the arbitrator reinstated his employment again. Eastern sued in federal court seeking to have the arbitrator’s award vacated. The federal district court and appeals court both agreed that Smith’s conditional reinstatement did not violate public policy. Eastern appealed to the U.S. Supreme Court, which affirmed the lower court’s decisions. The court recognized that the DOT drug testing regulations established a clear public policy against drug use by employees in safety-sensitive transportation. However, the court concluded that reinstating Smith, with appropriate discipline, was not contrary to the overall purpose of the DOT regulations because they also advance rehabilitation. The Court further noted that the regulations do not mandate the discharge of a repeat offender, but only required participation in a substance abuse program and return-to-duty testing.

2. Parks v. Terrebone Parish Consolidated Gov’t et al., Docket No. 16-15466, 2017 WL 699838 (E.D. La. Feb. 22, 2017). Plaintiff Terry Allen Parks worked for Defendant Terrebone Parish as a safety-sensitive employee subject to random drug testing. Terrebone Parish’s policy was that safety-sensitive employees who tested positive for drugs were subject to immediate termination, regardless of any errors in the testing protocol. Parks tested positive for marijuana after a routine drug test and he was given an ultimatum-- retire or be discharged. After choosing retirement, Parks sued Terrebone Parish, and Multi-Management Services, Inc. (“MMSI”) which was the certified laboratory that conducted the drug testing. Apparently, the specimen was removed from Parks’ sight during the collection process, and Parks was not given the opportunity to sign the sealed specimen. So, he alleged that each of the Defendant parties violated his Fourth Amendment rights to privacy by failing to follow the drug testing procedures set forth in Part 40, and that Terrebone Parish violated his Fourteenth Amendment rights to due process by forcing him to retire as a result of the faulty test. The Eastern District of Louisiana dismissed Parks’ Fourth Amendment claims against each of the Defendant parties. Parks failed to prove that the flaws in the drug testing procedure were based on any of Terrebone Parish’s policies or that MMSI was a state actor to which the Fourth Amendment applied. The court did not dismiss the Fourteenth Amendment claim against Terrebone Parish, however. Terrebone Parish’s zero tolerance policy could have deprived Parks of a property interest in his employment without due process of law. Therefore, dismissal was not appropriate.

3. Granger v. Manhattan and Bronx Surface Transit Operating Auth., Docket No. 13-CV-3569, 2014 WL 4054256 (S.D.N.Y. Aug. 15, 2014). Plaintiff Robert Granger was a bus maintainer for the Manhattan and Bronx Transit Authority. In August 2010, he submitted to a random drug test and tested positive for marijuana and cocaine. After three months of rehabilitation, he was permitted to return to his job. In 2012, he was asked to submit to another random drug test, but he failed to provide a sample within the allowable three hours. Granger had no medical condition limiting his ability to submit to the test, but his urologist did find that he “often represses the urge . . . when it conflicts with [his] daily activities.” In the absence of a legitimate medical condition, the Transit Authority treated Granger’s failure to submit to the drug test as a refusal. To escape discharge, Granger signed a Stipulated Agreement requiring him to once again attend a rehabilitation program, after which he would be eligible to return to employment in a non-safety sensitive Cleaner position. Granger sued the Transit Authority in U.S. District Court alleging that the Defendant Transit Authority discriminated against him in violation of the Americans with Disabilities Act. He claimed that the Transit Authority illegally refused to accept a proffered medical justification for his inability to provide a urine sample. The Southern District of New York dismissed Granger’s claim on summary judgment because it was barred by the Stipulated Agreement that Granger signed.

4. The Dep’t of Central Mgmt. Servs. et al. v. Nick Ndoca et. al., 299 Ill.App.3d 308 (2010). Plaintiff Nick Ndoca was terminated by the Illinois Dep’t of Transportation (the “Department”) from his job as a bridge mechanic after a random drug test revealed that there was marijuana in Ndoca’s system. Ndoca grieved his termination, and an arbitrator determined that he should be reinstated, without back pay, on the condition that he complete a rehabilitation program and pass a return-to-duty drug test. The Department appealed the arbitrator’s award all the way to the Illinois Appellate Court, which affirmed Ndoca’s reinstatement. The Department argued that retaining Ndoca was contrary to public policy because it was dangerous for a safety-sensitive employee to be under the influence of marijuana. The Illinois court concluded, however, that there was no public policy requiring automatic termination of Ndoca for illegal drug use. Furthermore, the Department presented no evidence that Ndoca was under the influence of marijuana during the performance of his employment. Thus, his reinstatement was upheld.

5. Horizon Air Industries, Inc. v. Airline Professionals Ass., Docket No. 2:13-cv-681, 2014 WL 2896001 (W.D. Wash. June 25, 2014). First Officer Milam was hired as a pilot for Horizon Air Industries and was notified the day before a roundtrip flight that he had to submit to a random drug test. After the test, but before the results, Milam admitted to using marijuana periodically during the preceding six months to cope with various health issues such as back pain, sinusitis, and difficulties associated with his wife’s thyroid disorder, high-risk pregnancies, and post-partum depression. He never used marijuana while on duty, but would use it the night before a flight. Milam did, in fact, test positive for marijuana and was unable to resume his duties until he completed a Substance Abuse Professional evaluation. Four days after his initial drug test, Horizon asked Milam to submit to a second drug test to confirm the original findings. Milam refused. Without reviewing his personnel file, Horizon immediately terminated him. Milam grieved his termination and the Horizon Air Pilot’s System Board (the “Board”) reinstated his employment with a last chance agreement. Horizon appealed the Board’s decision to district court. The Western District of Washington determined that it was not contrary to public policy to return Milam to duty once proven that he had been rehabilitated. However, the court believed that the Board neglected to complete a full factual investigation prior to making its determination. The record showed that the Board had not reviewed Milam’s personnel records. Thus, the court ordered the Board to vacate Milam’s reinstatement to conduct further proceedings.

6. Yazzie v. County of Mohave, Docket No. CV-14-08153, 2016 WL 3916213 (D. Ariz. July 19, 2016). Plaintiff Vina Yazzie was employed by Mohave County’s Public Works Department and was required to maintain a CDL license. According to Mohave’s policy, any employee occupying a safety-sensitive position who tests positive for drugs or alcohol may be immediately dismissed. Yazzie was randomly selected for a drug test and she tested positive for marijuana. She was terminated in accordance with Mohave’s zero tolerance policy for safety-sensitive employees. Yazzie filed a lawsuit in district court alleging that Mohave discriminated against her based on her Native American descent, violated her rights under the Family Medical Leave Act, and violated her rights to equal protection and due process in violation of Section 1983. Summary judgment was granted in Mohave’s favor on all counts. Yazzie’s discrimination claims failed because there was no admissible evidence showing that Mohave harbored any discriminatory intent towards her. Yazzie’s FMLA claim also failed. Her claim was time-barred and she did not proffer enough evidence to prove the initial elements of an FMLA claim. Finally, Yazzie’s claim that her termination violated her constitutional rights was insufficient. She was given the appropriate due process prior to her termination and there was no evidence of any racial animus that would violate the Equal Protection Clause.

B. As explained above, courts have ruled that employers have NO duty under the ADA to accommodate medical marijuana use for an underlying disability.

1. James v. Costa Mesa, 700 F.3d 394 (9th Cir. 2012), cert. denied 133 S. Ct. 2396 (U.S. 2013). The Ninth Circuit Court of Appeals affirmed the district court’s decision that the ADA does not protect against discrimination on the basis of medical marijuana use. The court noted “[w]e recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs . . . Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use.”

2. Barber v. Gonzales, 2005 WL 1607189 (E.D. Wash. July 1, 2005).

The district court found that the plaintiff’s use of medical marijuana was an “illegal use of drugs” as defined by the ADA and, thus, the defendants did not violate the ADA when they took action against the plaintiff on the basis of his marijuana use, regardless of whether Washington law allowed such use. The court reasoned that the purpose of the ADA is not to expand the scope of permissible drug use, but rather to eliminate the discrimination against individuals with disabilities who lawfully utilize prescription medicines in connection with their disability.

3. Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010). Employee who used marijuana outside of work for medical reasons claimed his termination violated Oregon’s disability discrimination law. The court held that an employer has no obligation to accommodate an employee’s use of medical marijuana because the use of marijuana is illegal under federal law.

4. Certain states have built protections for disabled individuals who use medical marijuana to treat their disability into their state laws (for instance, Nevada’s medical marijuana statute was amended in 2014 to require that employers make reasonable accommodations for an employee who holds a valid registry card and uses marijuana for medical purposes. See Nev. Rev. Stat. §§ 453A.010 - 453A.240 (2008)).

There is no discussion of employer/supervisor rights and responsibilities can touch on all the questions that may arise. At best, each employer should be aware of these matters, and in doubtful cases, seek further guidance. For more information, please contact Attorney Lisa Banatoski Mehta at Shipman & Goodwin LLP (by e-mail at lbanatoski@ or by telephone at (860) 251-5514). This information is provided for informational purposes only and should not be substituted for legal advice as applied to a specific set of facts.

©Shipman & Goodwin LLP

May 2017

Appendix A

Marijuana Legislation Throughout the United States

|State |Medical Marijuana |Recreational Marijuana |

|Alabama |Limited |No |

|Alaska |Yes |Yes |

|Arizona |Yes |No |

|Arkansas |Yes |No |

|California |Yes |Yes |

|Colorado |Yes |Yes |

|Connecticut |Yes |No |

|Delaware |Yes |No |

|District of Columbia |Yes |No |

|Florida |Yes |No |

|Georgia |Yes |No |

|Hawaii |Yes |No |

|Idaho |No |No |

|Illinois |Yes |No |

|Indiana |No |No |

|Iowa |Limited |No |

|Kansas |No |No |

|Kentucky |No |No |

|Louisiana |No |No |

|Maine |Yes |Yes |

|Maryland |Yes |No |

|Massachusetts |Yes |Yes |

|Michigan |Yes |No |

|Minnesota |Yes |No |

|Mississippi |Limited |No |

|Missouri |No |No |

|Montana |Yes |No |

|Nebraska |No |No |

|Nevada |Yes |Yes |

|New Hampshire |Yes |No |

|New Jersey |Yes |No |

|New Mexico |Yes |No |

|New York |Yes |No |

|North Carolina |No |No |

|North Dakota |Yes |No |

|Ohio |Yes |No |

|Oklahoma |No |No |

|Oregon |Yes |Yes |

|Pennsylvania |Yes |No |

|Rhode Island |Yes |No |

|South Carolina |No |No |

|South Dakota |No |No |

|Tennessee |Yes |No |

|Texas |No |No |

|Utah |No |No |

|Vermont |Yes |No |

|Virginia |Limited |No |

|Washington |Yes |Yes |

|West Virginia |No |No |

|Wisconsin |Limited |No |

|Wyoming |No |No |

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[1] See Appendix A for a chart of states that have passed legislation legalizing the medical and/or recreational use of marijuana.

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