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Changing Marijuana Laws and Effective Drug Testing PolicyAlthough marijuana is classified as an illegal drug under federal law, a majority of states have now legalized its use in one form or another. This rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states. Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights. Although difficult at times, there are steps employers can take to help successfully navigate this legal minefield.

Maintain a Safe Workplace

Workplace accidents can have significant effects on multiple areas of a business, including insurance costs, personal injury claims, third-party claims, and employee satisfaction and productivity. An employee’s impairment from drugs or alcohol can seriously increase the risk of injury to persons and damage to property. Accordingly, most employers have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states has made maintaining a zero-tolerance policy more difficult.

In some states, employers must accommodate an employee’s use of medical marijuana. For example, in Noffsinger v. SSC Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user. Similarly, Oklahoma law prohibits employers from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations. Although these statutes do not prohibit employers from disciplining employees who consume marijuana, or are under its influence, while on the job, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken.

Other states that have legalized medical marijuana do not require accommodation of employees’ use. In California, for example, an employer can dismiss an employee who tests positive for marijuana and its components. Likewise, under Ohio law, employers are not prohibited from refusing to hire, discharging, or disciplining a person because of the use or possession of medical marijuana, nor are they prohibited from establishing and enforcing a zero-tolerance drug policy.

Between these two ends of the accommodation spectrum, a number of states’ laws provide for varying levels of accommodation for employees’ medical marijuana use. In Illinois, for example, employers are prohibited from discriminating against employees and job applicants who qualify as a medical marijuana patient unless the accommodation would result in the violation of a federal law or the loss of a federal benefit. Nonetheless, Illinois employers may still impose reasonable limitations on the consumption of medical marijuana and enforce zero-tolerance and drug-free workplace policies as long the policies are applied in a non-discriminatory manner. Other states, such as Delaware, Nevada, New York, and West Virginia, have similarly varied degrees of required accommodation.

To help navigate these nuanced laws, employers, especially those with a multi-state footprint, should develop a well-defined drug policy and administer a drug testing program in a non-discriminatory manner.

Develop a Well-Defined Drug Policy

Developing a well-defined company policy on marijuana use can minimize the risk of harm to persons and property, and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will open the door to liability for adverse employment decisions. At a minimum, employers should ensure that a company drug policy:

  • Defines the terms “marijuana,” “cannabis,” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.
  • Indicates that the use of marijuana, whether recreationally or on the job, is strictly prohibited.
  • Articulates drug testing policies and procedures (including penalties for failing a drug test).
  • Educates employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions, and the potential impacts on workplace safety and performance.
  • Is included in recruiting and new-hire onboarding materials to ensure notice to the individual.

Consistently Administer a Drug Testing Program

Once an employer adopts a drug policy, it is critical that drug tests are conducted uniformly for all employees. Failure to do so can subject an employer to liability for discrimination claims that arise from adverse employment actions.

If an employee tests positive for marijuana, the recourse available to an employer can vary greatly under federal and state laws. For example, the Americans with Disabilities Act (ADA) currently does not shield an employee from adverse employment actions for using marijuana to treat a disability, even if the employee refrains from using medical marijuana while on the job. The ADA exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the Controlled Substances Act, which currently lists “marijuana” as a banned substance. As a result, at least under the ADA, employers can terminate an employee who tests positive for marijuana, even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time. Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, an employer is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or temporary leave during treatment.

By contrast, as discussed above, some states require an employer to accommodate an employee’s use of medical marijuana and prohibit an employer from terminating an employee for a failed drug test for marijuana use. Employers should be mindful of the potential for conflict between their own drug testing policies and requirements mandated by federal or state laws. If there are questions as to what actions an employer can take against an employee for failing a drug test, the advice of legal counsel should be sought.

The Measure of Success

An effective drug policy decreases hazards and promotes an accident-free work environment. While state and federal laws meant to promote this goal may seem straight forward when read in isolation, problems arise when these laws overlap or conflict with one another. The growing number of states legalizing marijuana use, and the nuanced differences between laws, will only amplify this problem. Although all employers need to implement well-defined policies and procedures, it is particularly important that those employers operating in any of the 30 plus states in which marijuana is now legal in some form take time to review current policies and evaluate the need for changes to ensure employee safety and reduce company risk. If you have questions about this rapidly changing legal issue, you should contact an attorney with experience in this emerging area of the law.

Weeding Out a Job Candidate, Literally: Connecticut Court Weighs in on Medical Marijuana Laws and Drug TestsWhat do you do with employees who use “legal” marijuana in violation of your Drug-Free Workplace Policy? So far, 30 states and the District of Columbia have enacted laws permitting use of marijuana for medical purposes, and eight states and the District of Columbia have legalized recreational use. Several other states are currently considering similar legislation. As marijuana use becomes increasingly permissible under state law, but remains illegal under federal law, many employers are left wondering how to enforce their existing drug-testing or drug-free workplace policies. Can you apply your no tolerance drug policy to a medical marijuana user? Not according to one federal court in Connecticut.

The Facts

Connecticut’s law prohibits employers from terminating or refusing to hire a person “solely on the basis” of that person’s “status as a qualifying patient” who uses medical marijuana. In Noffsinger v. SSC Niantic Operating Company, LLC, the court held that SSC violated the Connecticut law when it rescinded a job offer to Katelin Noffsinger after she failed a pre-employment drug test due to her use of medical marijuana.

Ms. Noffsinger accepted SSC’s job offer, but the offer was contingent on her passing a drug test. Before she took the drug test, Ms. Noffsinger disclosed that she suffered from PTSD, and that she was a registered participant in Connecticut’s medical marijuana program to treat it. She informed SSC that she used medical marijuana in the evenings, not during working hours. She even showed SSC a copy of her registration certificate required by the law and an empty pill container that showed the name and dosage information of her marijuana pills. Unsurprisingly, her drug screen was positive for marijuana, and SSC rescinded her job offer. Ms. Noffsinger sued for violation of the Connecticut law, and SSC removed the case to federal court.

SSC asserted that the positive drug test disqualified Ms. Noffsinger for the job because SSC, a federal contractor, adopted a drug testing policy that followed the federal law and “medical marijuana is not an approved prescription” under the drug-testing program. In its defense, SSC emphasized that, as a federal contractor, it was required to follow the federal Drug Free Workplace Act, and that the federal act preempted the Connecticut state law.

The court rejected this argument, noting that the federal law requires federal contractors to make a “good faith effort” to maintain a drug-free workplace, but does not require a zero-tolerance drug-testing policy such as SSC’s policy. Instead, the court held that the federal law is focused on preventing use of drugs in the workplace, not use of any drugs outside of the workplace, much less the use of medical marijuana.

SSC also argued that the Connecticut law only protects against discrimination based on a person’s “status” as a medical marijuana user, not their actual “use” of the drug. Given that SSC did not rescind Ms. Noffsinger’s job offer when she disclosed her “status” as a participant in the medical marijuana program (only after she failed their standard pre-employment drug test), SSC argued that it did not base the decision on her status. The court said this argument “made no sense,” and would frustrate the purpose of the state law’s anti-discrimination provision — to protect people who use medical marijuana from adverse action by their employers.

Takeaways

For employers, this case is a reminder to be aware of any local or state laws regarding medical or recreational marijuana use that may apply to your employees. If you aren’t sure whether your state has legalized marijuana in some form, do some research. Although not every court is going to agree with this Connecticut decision, don’t assume that relying on federal law, or continuing to enforce the drug-testing policy you’ve always used, will avoid liability.

Point for the (Work from) Home Team? Sixth Circuit Says Attendance at Work Not Automatically an Essential Work Function“You have to show up for work—it’s a part of your job.” Attendance at the workplace is an essential work function in an ADA case. But is it really anymore? With technology, some would argue that many jobs can be done from anywhere, and employees (particularly disabled employees) are more and more seeking to work from home. The Sixth Circuit addressed this issue recently in the decision of Hostettler v. College of Wooster.

Alternative Work Schedule

Heidi Hostettler worked in the HR department of the College of Wooster. She was four months pregnant when she took the job, and the told her that they would allow her 12 weeks of unpaid maternity leave, even though she didn’t qualify for it under the FMLA due to her short time of service. Her HR position was full-time, and Ms. Hostettler’s duties included performance-improvement plans, recruiting new hires, and designing training programs.

After the birth of her child and her 12 weeks of leave, Ms. Hostettler presented a note from her doctor stating that she had postpartum depression and one of the worst cases of separation anxiety her doctor had ever seen. The doctor suggested a return to work on a part-time basis for maybe a month or two. The college said okay, and Ms. Hostettler began working half days, but she had severe panic attacks if she had to work much later than noon. However, she returned emails from home and performed other work activities while away from the office.

There were disputes about whether the modified schedule was working. Several employees (through affidavits) said that there were no problems with Ms. Hostettler working part-time and from home. During this time, Ms. Hostettler got her first annual evaluation that indicated she was doing a good job and did not mention a problem with her reduced schedule. However, the college said the schedule was putting a strain on the rest of the HR Department. After several months, Ms. Hostettler submitted a new certification from her doctor that said she should continue to work part-time for at least several months.

After that latest certification, the college terminated Ms. Hostettler citing that she was unable to return to her assigned position of HR Generalist in a full-time capacity. A few months later, the college hired a male replacement. Ms. Hostettler sued for violations of the ADA and FMLA and for sex discrimination. The college moved for summary judgment stating that since the position considered full-time work as an essential function, and Ms. Hostettler couldn’t do that, that she was not a qualified individual under the ADA. The lack of being a qualified individual for the position also supported dismissal for the other claims. Ms. Hostettler appealed.

Sixth Circuit Analysis

The Sixth Circuit focused on the fact that the college admitted that the sole reason it fired Ms. Hostettler was because it could no longer accommodate her modified schedule. The court noted that the standard for her being qualified is that she can perform the essential functions of a job with or without an accommodation. The court pointed out that a job function is only essential if it is a core job duty—one that would fundamentally alter the position if it was removed. This analysis has to be done on a case-by-case basis.

In this case, Ms. Hostettler submitted evidence that she had satisfied all the core tasks of her position—even when she was only at her office for half days. She also submitted an affidavit from a co-worker who noted that there were no problems during Ms. Hostettler’s time in the position and that she completed all her work in a timely manner. Ms. Hostettler also showed that even her supervisor gave her a good review while she was working the part-time schedule. The court did note that there was evidence presented to the contrary —some projects had “dropped through the cracks” while Ms. Hostettler was working part-time. Another apparent dispute of fact was that while the college said it talked to Ms. Hostettler about the need for her to be at work full-time, she denied that series of discussions had taken place.

The Sixth Circuit held that full-time presence at work is not, on its own, an essential function. Time and presence requirements must be tied to some other job requirement. The court distinguished cases where presence at the workplace was considered an essential function by showing that in those cases, the person had to physically be at the worksite to complete the job. Instead, the court felt that this case was more like other instances where an employee could complete the essential functions while working remotely. According to the court, “full-time presence at work is not an essential function of a job simply because an employer says it is.” In the end, the court reversed the summary judgment, finding that

“an employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.”

Is Attendance an Essential Function?

While this case probably will soften the edges around some accommodation requests to work from home, it doesn’t automatically preclude an employer from claiming that full-time presence at the workplace is an essential job function.

  • Jobs where the work can only be performed at the job site—such as construction, manufacturing, call centers, etc.—-will not likely be affected.
  • Office work and sales jobs where technology may allow an employee to conduct work from other locations, or on other schedules, may be affected.

This decision should inspire employers to re-examine job descriptions and determine what sort of functions they believe can only be done at the job site. Those descriptions need to be detailed and supportable. Finally, remember that one size does not fit all, and every request has to be assessed on its own. You cannot deny an employee’s modified or work-from-home schedule because no one else has such a schedule. Each request must have a separate, well-documented interactive process.