Drug Testing

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Urine testing—not one of the more popular work activities. However, drug tests are part of safety programs throughout the country. Two recent events—one a court decision and one a potential legislative event—give me the opportunity to review this issue.

Alabama Case: Can You Require Employees to Tell You What Medicines They Take?

The Facts: On January 18, in Upton v. Day & Zimmerman NPS, an Alabama federal district judge reminded employers about how drug tests may connect hiring decisions and the ADA. Mr. Upton, a pipefitter who had lower back pain after a 1989 car accident, took prescription morphine, an opiate. Due to a union contract, Upton was required to pass a five-panel drug test before working at a power plant. When Upton would take the test, it came back positive for opiates, but the medical review process would note that he had a legitimate prescription and he was permitted to work. The review process included a letter from his physician showing that he could work safely while taking the pain medication.

In January 2015 (so Mr. Upton had been taking the medication for many, many years), he was sent to another plant where he took another drug screen. He presented another letter from his doctor that described his prescription, but this one also opined that requiring employees to disclose their medications may be a violation of the ADA. Mr. Upton was not hired for that job, and he sued.

The Litigation: Both Mr. Upton and the company moved for summary judgment on various issues: whether the company regarded Mr. Upton as disabled; whether Mr. Upton was, in fact, a qualified individual with a disability; and whether the company discriminated against him because of a disability. The court found insufficient evidence to support a “regarded as” claim and spent a good bit of time discussing whether Mr. Upton should be considered a qualified individual with a disability. But the lesson from this opinion deals with whether the drug testing itself was improper.

Are Drug Tests Improper Medical Inquiries? As the court notes, a pre-employment drug test does not count as a “medical inquiry” under the ADA. (The court does not say whether a decision maker’s access to medical information collected as part of an employment entrance exam under another section of the ADA is problematic as Mr. Upton failed to plead that section.) Even the letter from Mr. Upton’s doctor can be considered proper. Mr. Upton complained that he was required to disclose the actual medication he was taking—opioids—instead of just stating that he had a valid prescription and could safely do the job. The court noted that practically, an employee would have to disclose the actual medication so as to explain the positive drug test. In addition, since the inquiry was in the pre-offer stage, an applicant who tests positive for illegal drugs may be required to give possible explanations for the test.

Overall, this case again shows that pre-employment drug testing can be a valid part of the application process. Employees can also provide medical documentation to explain a positive test—that’s not improper under the ADA. Keep in mind that Mr. Upton’s disability discrimination claim survived, so the company is going to trial to defend its decision not to hire him.

Mississippi Seeks to Ban Synthetic Urine

On another, stranger drug testing note, a member of the Mississippi state legislature has introduced a bill to combat synthetic human urine products. The bill is titled “Urine Trouble” and would prohibit retailers from selling the product that mimics human urine chemistry and is packaged with instructions on how to keep it at body temperature. Apparently, it is being used to create false negative drug screens. If this proposal passes, Mississippi will join the growing ranks of states (including Florida and Illinois) that make synthetic urine illegal. We doubt that the other states have named their statutes as uniquely.

Lessons from the Drug Testing World?

  • Pre-employment drug tests are okay under the ADA but you should still consider limiting decision makers’ access to the information. If the decision maker doesn’t know anything other than that the drug test was fine, he cannot be accused of discriminating against someone based on an alleged disability related to the drug test.
  • As long as there are drug tests there will be people who help employees beat them. Luckily we have legislatures who are trying to help us on the front.

“But My Doctor Said It Was Cool”: Florida’s New Medical Marijuana Bill and Employment ConsiderationsLast month, Florida Gov. Rick Scott signed into law a medical marijuana use bill. This was the result of the overwhelming vote (71 percent) in favor of amending the Florida Constitution to allow medical marijuana use as prescribed by a licensed Florida physician. Florida now joins 27 other states that have legalized at least some form of marijuana use.

Details of Florida’s Law

To qualify for medical marijuana use in Florida, a patient must have a “debilitating medical condition.” The law specifies the following as qualifying conditions:

cancer, epilepsy, glaucoma, HIV/AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis and other debilitating medical conditions of the same kind or class or comparable to those enumerated.

Obviously, what constitutes “other debilitating medical conditions” leaves the door wide open for other medical conditions to come within the coverage of legal medical marijuana use. Some states, such as California and Washington, have defined “debilitating medical conditions” to include severe pain, cramping, anxiety, vomiting, and appetite loss. It is doubtful Florida would take such an expansive definition, but time will tell.

Interestingly, the final version of the law still bans the smoking of marijuana. Florida joins the states of Louisiana, Minnesota, New York and Pennsylvania, all which have legalized marijuana use in some form but still ban its smoking. Rather, in Florida, legal marijuana must be consumed in oil or edible form. How long this remains the law is in doubt since one of the major supporters of the law has already filed suit contesting the constitutionality of the no smoking ban.

It is worth noting that federal law, not state law, governs what constitutes an illegal drug. Under the Federal Controlled Substance Act, marijuana is still a Schedule I hallucinogen and its use is still illegal despite the legalization of its use in many states. Several state court decisions have relied on this principle in deciding to limit employee rights under the various state laws legalizing marijuana use.

Considerations for Florida Employers

So, what does a Florida employer do with an employee who is using medical marijuana?

Americans with Disabilities Act (ADA) Issues. Probably the most difficult challenge will be the interplay between the ADA and the legal use of marijuana. As you know, under the ADA an employer must make reasonable accommodations to a qualified individual with a disability—but illegal drug use is not considered a covered disability. I can envision the scenario where an employee presents a physician’s note supporting an accommodation of the employee being allowed to take marijuana during working hours to control a debilitating condition. But for the fact that marijuana is illegal under federal law, the ADA would seem to require that accommodation. The Florida law does not go that far.

Unlike some state laws (e.g., New York, Arizona, Minnesota, Illinois), the Florida law does not require an employer to accommodate on-site medical use of marijuana. To put it another way, Florida employers have no legal duty under this new law to allow employees to consume medical marijuana at the workplace. The law does not address off-site accommodation of medical marijuana use. However, considering the conservative nature of Florida employment laws, there is little concern that Florida employers need to accommodate medical marijuana use outside of the workplace either.

Drug Testing Policies. How will this affect a Florida employer’s drug testing policies? Unlike many states, the Florida Drug-Free Workplace Act (the Act) incentivizes employers to establish a drug-free workplace policy. The Act gives a Florida employer a credit on its workers’ compensation premiums if it has a qualified drug-free workplace policy. Even without such a policy, a Florida private employer still has the right to drug test its employees at any time. It remains to be seen if a Florida employer has the lawful right to terminate an employee who tests positive for legal (at least under state law) medical marijuana use. Once again, considering the conservative jurisprudence of the Florida courts, it would not surprise me that an employer still retains the right to fire that employee. In other states courts have upheld the employer’s right to do so considering marijuana use is still illegal under federal law. However, I am not unmindful of the argument that 71 percent of Florida voters voted in favor of medical marijuana use and such a firing would seem to be against the will of the electorate.

Takeaways

Even with the passage of this new bill, in the short term, I do not see it as having any major impact on Florida employers. Florida employers still do not need to accommodate medical marijuana use at work and can continue to fire employees who test positive for using it. Having said that, employers should remain vigilant in keeping abreast of the changing employment laws. While it seems unlikely under the current administration that federal laws will become more employee-friendly (i.e., legalizing marijuana use), Florida courts or the Eleventh Circuit may do just that. Issues could also arise under the FMLA, union contracts, whistle-blowing on a “drug user” and elsewhere.

Moral of this blog: Stay tuned.