1 Going Green Statistics 53% of Americans believe marijuana - - PDF document

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Benjamin C. Ritchie Idaho State Council of SHRM Employment Law Conference September 30, 2016

GOING GREEN: MARIJUANA IN THE WORKPLACE

www.moffatt.com

BENJAMIN C. RITCHIE

Ben Ritchie is a partner with the Idaho law firm, Moffatt Thomas, working from the firm’s office in Idaho Falls. He practices in the areas of personal injury defense, workers compensation, employment law, and transportation law. Ben serves on the Board of Directors for Habitat for Humanity Idaho Falls. Ben serves as pro bono counsel for Court Appointed Special Advocates in child protection

• proceedings. He also serves as pro bono legal counsel to

the Idaho Suicide Prevention Hotline.

• Current status of federal and state laws regarding

marijuana use

• Marijuana crossing state lines
• Employee drug testing
• Reasonable suspicion
• Marijuana use and the ADA and FMLA

Going Green

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• 53% of Americans believe marijuana should be

legalized.

• 68% of “millennials” believe marijuana should be

legalized.

• Between 1999 and 2010, the percentage of fatally

injured drivers testing positive for marijuana nearly tripled.

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• There was a 397% increase in highway interactions

resulting in seizures of Colorado marijuana from 2008- 2013.

• A recent National Survey on Drug Use and Health found

that 19% of millennials recently used marijuana.

• The same study found that 6.6% of baby boomers

surveyed had used marijuana in the past year.

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• Decriminalization v.

Legalization

• Idaho
• California
• Oregon
• Washington
• Colorado
• Utah
• Nevada
• Montana
• Wyoming
• Federal Laws

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• It is illegal to take marijuana across state lines.
• Possession or use of marijuana is still a violation of

federal law

– Obama administration has “turned a blind eye” towards growers, dealers, and users.

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• Legal marijuana must follow specific state laws, including

being locally grown, and can usually only be used and sold legally by those who are licensed by the state to do so.

• Moreover, most states have not yet legalized marijuana, so

transporting the substance into those states at all would be a crime under any circumstances. This is true whether the drug originated in a state where the individual was legally authorized to possess it or not.

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(1) The purpose of this act is to promote alcohol and drug-free workplaces and otherwise support employers in their efforts to eliminate substance abuse in the workplace, and thereby enhance workplace safety and increase productivity. This act establishes voluntary drug and alcohol testing guidelines for employers that, when complied with, will find an employee who tests positive for drugs or alcohol at fault, and will constitute misconduct under the employment security law as provided in section 72-1366, Idaho Code, thus resulting in the denial of unemployment benefits.

Going Green – Drug Testing

Idaho Employer Alcohol and Drug-Free Workplace Act

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(2) It is the further purpose of this act to promote alcohol and drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the cost delays and tragedies associated with work-related accidents resulting from substance abuse by employees.

IDAHO CODE § 72-1701.

Going Green – Drug Testing

Idaho Employer Alcohol and Drug-Free Workplace Act

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• The Idaho Employer Alcohol and Drug-Free Workplace Act sets

up voluntary guidelines that permit alcohol and drug testing of job applicants and employees as a condition of hiring or continued employment.

• The law also enables an employer to classify a drug- or alcohol-

related termination as work-related misconduct that can disqualify an employee from eligibility for unemployment compensation benefits.

Going Green – Drug Testing

Idaho Employer Alcohol and Drug-Free Workplace Act

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• The law contains specific rules on sample collection, handling,

and confidentiality.

• An employer must have a written policy on drug and/or alcohol

testing that is communicated to all employees and “made available for review” by job applicants. The policy must state that violating the policy is grounds for a misconduct discharge. The policy must also list the types of tests an employee may be subjected to, including baseline, pre-employment, post- accident, random, return to duty, follow-up, and reasonable suspicion.

Going Green – Drug Testing

Idaho Employer Alcohol and Drug-Free Workplace Act

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Should you even test for marijuana?

• Pre-employment, random, or reasonable suspicion.
• Target employees? Social acceptance.
• Industry

– A study in Washington state showed that for three industry groups (construction, manufacturing and services), injury rates declined significantly following the implementation of drug testing.

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There are four ways to test for marijuana, each one looks for the parent drug (THC) or the drug metabolites (substances that prove the drug was present).

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• 1. Urine Tests – Can detect the length of time since

someone has used marijuana betweena few days and several weeks. The test looks for drug metabolites.

• 2. Oral Fluid Tests – Also called saliva tests, oral fluid

tests detect usage right after the most recent usage and up to three days later. They show the parent drug.

Going Green – Drug Testing (cont’d)

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3. Blood Tests – Like oral tests, blood tests also detect usage immediately and determine whether consumption took place within a few hours or a couple

• f days. Blood tests expose both the parent drug and

metabolites. 4. Hair Tests – A hair sample is collected from the donor and sent to a lab for testing. Drug use can be detected after five to seven days and up to approximately 90 days. Hair tests show the presence of drug metabolites.

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• Reasonable suspicion testing, also known as for cause drug

testing, is performed when supervisors have evidence or reasonable cause to suspect an employee of drug use.

• Evidence is based upon direct observation, either by a

supervisor or another employee.

• Specific reasons for reasonable suspicion testing include

physical evidence of illicit substances, patterns of erratic or abnormal behavior, disorientation or confusion, and an inability to complete routine tasks.

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• Inform employees in advance
• Train supervisors
• Base decisions on current information
• Document everything (checklist)

Going Green – Reasonable Suspicion Tips

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• Reasonable suspicion must be based on an articulable belief

that an employee uses illegal drugs, drawn from particularized facts and reasonable inferences from those facts.

– Observable phenomena, such as direct observation of: (A) The use

• r possession of illegal drugs; or (B) The physical symptoms of

being under the influence of drugs; – A pattern of abnormal conduct or erratic behavior;

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– Arrest for a conviction of a drug-related offense, or the identification of the individual as the focus of a criminal investigation into illegal drug possession, use, or trafficking; – Information that is either provided by a reliable and credible source

• r is independently corroborated;

– Evidence that an employee has tampered with a drug test; or – Temperature of the urine specimen is outside the range of 32-38 degrees centigrade or 90-100 degrees Fahrenheit.

Going Green – Reasonable Suspicion Tips (Cont’d)

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• How many of you are friends with or follow

employees on social media?

• Can your reasonable suspicion be based on a social

media post?

• What if the social media post is old?
• Can you believe everything that is on the internet?

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1. Make sure your drug testing policy is applied the same to everyone. 2. Make sure random testing is random. 3. Do not give too much advance notice about pending drug tests. 4. Make sure your drug tests do not become medical examinations under the ADA. 5. Make sure your drug testing policy regarding marijuana is specific.

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• The FMLA entitles eligible employees of covered employers

to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

• FMLA allows for intermittent leave.
• Employee fails drug test because of use of medical

marijuana during FMLA leave. Likely no FMLA protection because it is still illegal under Federal Law. Jury will look to reason for termination.

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• The Americans with Disabilities Act of 1990 (“ADA”)

makes it unlawful to discriminate in employment against a qualified individual with a disability.

• 42 U.S.C. § 12114(a): ”A qualified individual with a

disability shall not include any employee or applicant who is currently engaging in the use of illegal drugs when the covered entity acts on the basis of such use.”

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• An employer cannot exclude a qualified individual who:

– Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs,

• r has otherwise been rehabilitated successfully and is no

longer engaging in such use; – Is participating in a supervised rehabilitation program and is no longer engaging in such use; or – Is erroneously regarded as engaging in such use, but is not engaging in such use.

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• An employer may:

– Prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees; – Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees; – Conduct drug tests and such drug tests shall not be considered medical examinations under the ADA.

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• The term illegal use of drugs does not include the use of a drug taken

under the supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions

• f federal law.
• Washburn v. Columbia: “The fact that the state may choose to

exempt medical marijuana users from the reach of the state criminal law does not mean that the state can affirmatively require employers to accommodate what federal law specifically prohibits. Federal law preempts the latter decision but not the former. In my view, given the Controlled Substances Act, defendant had no binding state

• bligation to accommodate plaintiff's medical marijuana use.”

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• Coats v. Dish Network, LLC
• Casias v. Wal-Mart Stores, Inc.
• Vialpando v. Ben’s Automotive Services
• Bates v. Dura Automotive Systems
• Swaw v. Safeway, Inc.
• Garcia v. Tractor Supply Co.

Going Green - Cases

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Benjamin C. Ritchie MOFFATT THOMAS 900 Pier View Drive, Suite 206 Idaho Falls, ID 83404 bcr@moffatt.com (208) 522-6700 1-800-422-2889

www.moffatt.com

For more information or questions, please contact:

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