In April, the New York City Council passed a bill that would prohibit employers from requiring candidates to undergo testing for marijuana as a condition of employment, becoming one of the first jurisdictions to grant employment-specific protections to marijuana users. Mayor Bill de Blasio, who expressed support for the bill, did not sign or veto it within 30 days of its passage, so it became law on May 10 and will come into effect a year from that date, according to Seyfarth Shaw’s marijuana law blog.
The new law includes exemptions for certain safety-sensitive occupations, including law enforcement, construction, medical and child care, and jobs requiring a commercial driver’s license. It also does not apply to federal and state employees or contractors, nor does it override federal regulations governing transportation workers such as truck drivers and pilots. Employees can still be subjected to marijuana testing if they appear intoxicated at work.
New York State legalized marijuana for medicinal use in 2014; recreational use of the drug remains illegal, but the state legislature is considering a legalization bill, which governor Andrew Cuomo has said he intends to pass and sign in this legislative session. In New York City, De Blasio supports legalization, while the NYPD announced last year that it would stop arresting most people caught smoking marijuana in public. Given that this pledge was central to Cuomo’s re-election campaign platform in 2018, it is likely that New York will soon join the growing number of US jurisdictions where recreational marijuana is legal, including Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington state, as well as Washington, DC.
The Ohio Bureau of Workers Compensation is launching a pilot program next month in Montgomery, Ross and Scioto counties “to support employers willing to hire workers struggling to overcome an addiction to opioids and other dangerous substances,” according to a statement from the BWC. In the two-year, $5 million program, the agency will partner with county boards of Alcohol, Drug Addiction and Mental Health to identify eligible employers and employees, allocate funds, and measure the program’s success. The program will include:
- Reimbursement for pre-employment, random and reasonable suspicion drug testing;
- Training for managers/supervisors to help them better manage a workforce that includes individuals in recovery;
- A forum/venue for “second-chance” employers to share success stories that will encourage others to hire workers in recovery.
Under the program, BWC will allot a lump sum to each ADAMH board on a quarterly basis. Employers must pay for expenses up front and apply to the boards for reimbursement. Program details are still under development, with changes likely as the pilot progresses. The pilot’s launch is scheduled for Oct. 15.
Ohio has been hit hard by the opioid epidemic, with addiction, abuse and overdose deaths costing the state between $6.6 billion and $8.8 billion a year, the bureau adds, citing a 2017 report from the Ohio State University, which also estimated that there were likely 92,000 to 170,000 Ohioans abusing or dependent on opioids in 2015. Montgomery County, centered around Dayton, recorded 521 accidental overdose deaths in 2017, the highest in the state for the second year in a row, while the other two counties participating in the pilot programs have often counted large numbers of overdoses in recent years.
The state program will augment ongoing local efforts in Ross County, the Chillicothe Gazette reports:
A recent court ruling has added to the small but growing pile of jurisprudence at the intersection of marijuana legalization and labor law. In a decision handed down on September 5, a federal court in Connecticut found that Bride Brook, a federal contractor, had run afoul of that state’s Connecticut Palliative Use of Marijuana Act (PUMA) by rescinding a job offer to Katelin Noffsinger, a medical marijuana user, after she tested positive on a pre-employment drug test. The court granted summary judgment to Noffsinger but declined to award her attorney fees or punitive damages, Jackson Lewis attorney Kathryn J. Russo explains:
Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. …
Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.
While possession and sale of the drug remain illegal under federal law, as more states relax their prohibitions on either medical or recreational marijuana, this has created legal conundrums for employers, who must rethink their zero-tolerance drug policies lest they end up in the same situation as Bride Brook.
In a quarterly forecast released in late May, the Oregon Office of Economic Analysis mentioned almost in passing an issue that could complicate the Pacific Northwest state’s recent track record of robust economic growth:
At least anecdotally, more firms are reporting trouble finding workers who can pass a drug test. Given the tight labor market, and legal recreational marijuana up and down the Left Coast, these reports are a bit surprising. It may be that the pool of available applicants has shifted; that individuals who can pass drug test already have a job. It may be for insurance‐related reasons that employers are ensuring they have a drug‐free workplace, even if it means monitoring their employees behavior on their own time. However it is possible that these anecdotal reports reflect a broader increase in drug usage that would be both an economic and societal problem.
Oregon’s unemployment rate is currently hovering at around 4.1 percent, the report notes, just above the historically low rate nationwide. With such a tight labor market overall, the need for employees who can pass a drug test could be putting some employers in a real bind. Although Oregon’s economists are writing from anecdotal evidence, this is a phenomenon we’ve seen in other parts of the country as well, with many employers rethinking their drug-free workplace policies in light of the labor crunch.
Some organizations simply don’t think drug testing employees outside safety-sensitive roles is worth the cost anymore, especially for relatively benign marijuana use. Even Labor Secretary Alexander Acosta has hinted that it might be appropriate for some employers to stop automatically disqualifying candidates for failing a marijuana test. Cannabis remains highly illegal under federal law, classified as a Schedule I narcotic, and this national policy seems unlikely to change in the near future. The drug has been legalized for medical use in 30 states and for recreational use in eight of those states, plus Washington, DC. This means employers throughout the country are facing a growing population of current and potential employees who now have a legal right at the state level to use marijuana.
Belden Inc., a manufacturer of electronic networking equipment based in St. Louis, Missouri, faces the same labor market issue as most other industrial employers in the Midwest, including the challenge of hiring and retaining workers for safety-sensitive roles in places where opioid addiction has reached epidemic proportions. Belden’s CEO John Stroup is taking an innovative approach to tackling the opioid problem at his company’s factory in Richmond, Indiana, where this past winter, one in ten applicants failed their drug tests, as did several people already employed there. At CNN Money last week, Lydia DePillis profiled Stroup’s efforts to give these workers a second chance:
For Stroup, the decision was a simple cost-benefit analysis: How much would it cost to help people get sober in this Rust Belt town of 37,000, compared to what he was losing by not having them available to work? After a few meetings with board members and addiction experts, he came up with a plan. If an applicant or a current employee failed a drug test, but they still wanted the job, Belden would pay for an evaluation at a local substance abuse treatment center.
People deemed to have a low risk of developing an addiction could spend two months in a non-dangerous job before they are allowed to operate heavy equipment again, as long as they passed periodic random drug tests for the rest of their time at the company. People at high risk would spend two months in an intensive outpatient monitoring and treatment program, with the promise of a job at the end if they made sufficient progress. On average, Belden figured it would have to shell out about $5,000 for each person it gave a second chance to.
The experiment started in March and has so far had eight participants. Two at-risk current employees made it through the monitoring period and are back to work, while others are still being evaluated. It will take a few more months to see if the program really works, but the few Belden employees who spoke to DePillis said they were heartened to see the company trying to help current and prospective employees with opioid issues recover rather than discarding them.
Maine was one of several US states where voters passed measures to legalize the use of marijuana for recreational purposes in 2016. Republican Governor Paul LePage has sought to stymie legalization by blocking implementing legislation. Last November, LePage successfully vetoed the first version of this legislation, and late last month attempted to veto a second version, but both houses of the state congress voted on May 2 to override his veto, UPI reported. The rules in the final bill are somewhat less permissive than those initially approved by voters with regards to the regulatory mechanisms under which legal marijuana can be grown and distributed in the state.
Other aspects of the voter-approved ballot measure, such as its provision protecting marijuana users against employment discrimination, have already gone into effect. That provision, which went into effect February 1, prohibits employers from refusing to employ or otherwise penalizing anyone over the age of 21 on the basis of their using marijuana, provided they are not using it during working hours or on the employer’s property. That has significant consequences for Maine employers’ drug policies, as a positive test for marijuana would no longer be sufficient cause for terminating an employee (current testing methods can only detect whether an individual has consumed cannabis within the past few weeks, not whether they are currently under the influence).
The implementing legislation, however, contains different language regarding how employers can and cannot treat employees who use marijuana, Seyfarth Shaw attorneys observe at their dedicated marijuana-law blog, The Blunt Truth:
Naloxone, commonly sold under the brand name Narcan and available without a prescription in every US state except Nebraska, is an opioid receptor antagonist used to treat overdoses of heroin and other opiates. Delivered via injection or a nasal spray, the drug has been credited with saving many addicts’ lives and has lately been the subject of numerous awareness campaigns in the US urging people who interact frequently with opioid users to have the antidote on hand and know how to administer it.
Last month, US Surgeon General Jerome Adams urged employers to stock naloxone at worksites as well, and train employees on how to use it, Allen Smith reported at SHRM:
“For a heart attack, we train employees how to do CPR until the paramedics arrive,” Adams noted April 19 in Washington, D.C, at Business Health Agenda 2018, a conference sponsored by the National Business Group on Health, speaking about the opioid epidemic. “Why is that not the case with naloxone and Narcan? We need to make these emergency treatments as ubiquitous as knowing CPR and calling for a defibrillator when someone is having a heart attack, or using an EpiPen when someone’s having an allergic reaction.”
Even before the surgeon general’s statement, a few clients of Nancy Delogu, an attorney with Littler in Washington, D.C., made naloxone available at work. They made this decision after employees overdosed on opioids at work. …