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.
Maine was one of several states where voters passed ballot measures in 2016 to legalize the possession and use of marijuana for recreational purposes, along with California, Massachusetts, and Nevada. In most states that have legalized recreational or medicinal marijuana, employers are still allowed to reject candidates or fire employees for testing positive for the drug as part of a drug-free workplace policy, but Maine’s law, which came into effect on February 1, explicitly protects employees from adverse action based solely on their use of marijuana outside working hours and off the employer’s property. Attorneys from Littler Mendelson explained this provision in a blog post at the time:
The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside the … employer’s … property.” However, regardless of where marijuana is consumed, the Act allows employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.” According to a spokesperson from the Maine Department of Labor, who spoke to the legislature in July, a positive drug test alone will not suffice to demonstrate that a worker was “under the influence” of marijuana.
Employers of workers who are subject to mandatory marijuana testing under federal law, such as federal contractors and certain commercial vehicle operators, may still drug test in compliance with those laws. Other Maine employers, however, may need to reconsider their current drug policies in light of the new law, the attorneys add, as they may be found in violation of its anti-discrimination provisions if they reject an applicant or penalize an employee solely for failing a drug test. Current tests for marijuana do not show whether the user is presently intoxicated, only whether they have used the drug within the past several weeks, so an employer may need other evidence to show that an employee is high at work.
“The big question now for Maine employers is what to do with a positive drug test,” Ann Freeman, an attorney and counsel in the Portland office of law firm Bernstein Shur, tells Roy Maurer at SHRM:
Last week, the Massachusetts Supreme Judicial Court became the first court in the US to rule in favor of an employee who uses medical marijuana and claimed unfair dismissal after being fired from her job for failing a drug test, the Boston Globe‘s Dan Adams reported:
Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test. In Massachusetts, Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.”
Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses. Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours.
The court overturned a lower court’s dismissal of a lawsuit brought by Cristina Barbuto against her employer, Advantage Sales and Marketing, which fired her after just one day on the job when she tested positive for marijuana, even though Barbuto said she had told the company during her job interviews that she used it medicinally after work hours to treat her condition and her hiring manager had said it would not be an issue. The lower court will now retry Barbuto’s case under the guidelines established by the high court. (Read the full ruling here.)