Drug Testing and Marijuana in the New England Workplace Presented - - PowerPoint PPT Presentation

Drug Testing and Marijuana in the New England Workplace

Presented by: Charlie Einsiedler and Dan Strader October 11, 2018

Overview of Presentation

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• What laws apply in each state?
• May employers prohibit use in and/ or outside

workplace?

• Duty to accommodate?
• What laws apply to drug testing

policies?

Medical Marijuana and Accommodation

Overview of Law s - Maine

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• Maine Medical Use of Marijuana Act
• Marijuana Legalization Act
• Maine’s Substance Abuse Testing Law

Medical Marijuana - Maine

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• Employer “may not refuse to…

employ…

• r otherwise

penalize a person solely for that person’s status as a qualifying patient or a primary caregiver unless failing to do so would put… the employer… in violation of federal law or cause it to lose a federal contract or finding.” (22 M.R.S. § 2423-E(2))

• “A business owner may prohibit the smoking of

marijuana for medical purposes on the premises of the business if… the business owner prohibits all smoking on the premises and posts notice to that effect on the premises.” (Id.)

• Employer is not required “to accommodate the

ingestion of marijuana in any workplace or any employee working while under the influence.” (22 M.R.S. § 2426 (2)(B))

Medical Marijuana – Maine Accom m odation

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• Employer is not required to accommodate

ingestion of marijuana in any workplace

• Employer is not required to allow employee to

work “under the influence” of marijuana

• Employer is not required to provide insurance

coverage for medical marijuana

• But, employer may not discriminate against an

employee solely for use of medical marijuana

• utside of work unless exception applies

Bourgoin v. Tw in Rivers Paper Co. ( Me. June 1 4 , 2 0 1 8 )

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• Employee suffered a workplace injury and was

prescribed marijuana for chronic pain. He filed a petition with the WC Board requesting that his employer be required to pay for his marijuana as a form of treatment, and the employer declined.

• Law Court held that if the employer knowingly

subsidized the employee’s purchase of marijuana, it would be “aiding and abetting” his violation of the federal Controlled Substances Act, which is itself a violation of the CSA.

• Case does not address workplace accommodations, but

it cites to cases in other jurisdictions which held that an employer was not required to accommodate medical marijuana use by employees even outside of work. – Indicates that Law Court may support the position that accommodation is not required, e.g., failure of a drug test or possession at work.

Medical Marijuana – Maine Accom m odation ( cont.)

• What can an employer do with an employee who

fails a pre-employment drug test but has a medical marijuana card?

• Under statute, employer does not have to

accommodate use at work, but cannot discriminate

• n the basis of status as a cardholder
• This suggests that employers may not disqualify

applicants solely on the basis of a positive pre- employment test result for marijuana

• However, Bourgoin approvingly cites to cases

holding that employers may terminate on the basis

• f a positive test despite cardholder status.

– Open question whether the Law Court would hold that the statute requires employers to hire after positive test

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Medical Marijuana – Maine Accom m odation ( cont.)

• More conservative approach is to find out whether

employee is a cardholder, and do not take action solely on the basis of a pre-employment test

– Consistent with case law in Massachusetts, Rhode Island, and Connecticut

• If employee requests accommodation related to a

disability for which he/ she has a valid prescription for marijuana, handle in accordance with reasonable accommodation process

• But do NOT need to accommodate marijuana

use/ impairment in workplace

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Overview of Law s – New Ham pshire

• Use of Cannabis for Therapeutic Purposes
• No recreational marijuana law (possession of

small amounts decriminalized)

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Medical Marijuana – New Ham pshire

• Law permits employers to prohibit the possession of

cannabis in a place of employment. Law also permits employers to prohibit being under the influence of cannabis in a place of employment. (N.H. Rev. Stat. § 126-X: 3 (II)(2))

• Nothing in this chapter shall be construed to require . . .

[ a] ny accommodation of the therapeutic use of cannabis

• n the property or premises of any place of employment

. . . .”

• “ This chapter shall in no way limit an employer's ability

to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.” (N.H. Rev. Stat. § 126-X: 3 (III)(c))

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Medical Marijuana – New Ham pshire – Accom m odation

• Similar to Maine in that employers need not

accommodate medical marijuana use or impairment in the workplace

• Unlike Maine, NH does not have a non-

discrimination provision, so employers arguably can refuse to hire on the basis of a positive pre- employment test alone – Currently no case law, so proceed with caution – More conservative approach would be to engage in interactive process with employee who fails a pre-employment drug test to determine whether employee is disabled and permitting use outside work is a reasonable accommodation

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Overview of Law s – Massachusetts

• Act for the Humanitarian Medical Use of

Marijuana

• Regulation of the Use and Distribution of

Marijuana Not Medically Prescribed (aka recreational marijuana)

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Medical Marijuana – Massachusetts Accom m odation

• “Nothing in this law requires any

accommodation of any on-site medical use of marijuana in any place of employment . . . .” (M.G.L. ch. 369, § 7(D))

• Covers on-site “use” but is silent as to on-site

possession or impairment – This is an open question, but Massachusetts case law suggests that an employer would not be required to permit marijuana-related activities that would place employer in legal

• jeopardy. See Barbuto.

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Barbuto v. Advantage Sales & Marketing, LLC ( Mass. July 1 7 , 2 0 1 7 )

• Employer refused to hire applicant after she disclosed medical marijuana use for

Crohn’s disease and failed pre-employment drug test – Employee sued for disability discrimination

• Massachusetts medical marijuana law does not have express anti-discrimination

provision, but it provides that no person shall be “denied any right or privilege” for using marijuana in compliance with statute

• Court held that, under Mass. law, medical marijuana was akin to any legally

prescribed drug and must be treated the same way by employer – If employee is using medical marijuana, can perform essential job functions, and is not impaired on the job, the employer is required to engage in interactive process to discuss accommodation of marijuana use outside of work – Illegality under federal law does not render accommodation “per se unreasonable” because employer bears no risk for employee’s violation of law outside of work – This suggests that an employer does not have to permit on-site impairment

• r possession, as both activities could expose the employer to civil and/ or

criminal liability.

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Overview of Law s – Verm ont

• Medical marijuana law
• Recreational marijuana law (limited in scope)
• Drug Testing law

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Medical Marijuana – Verm ont

• The law “shall not exempt any person from arrest
• r prosecution for . . . being under the influence of

marijuana while . . . in a workplace or place of employment . . . .” (18 V.S.A. § 4474c(a)(1)(B))

• The law “shall not exempt any person from arrest
• r prosecution for . . . the smoking of marijuana in

any public place, including . . . a workplace or place of employment . . . .” (18 V.S.A. § 4474c(a)(3)(B))

– Employers may ban all marijuana in the workplace and prohibit employees from working under the influence

• Employers are expressly exempted from being

required to cover or reimburse employees for medical marijuana under the workers’ compensation scheme or otherwise

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Medical Marijuana – Verm ont Accom m odation

• Medical marijuana law does not expressly require

accommodation or prohibit discrimination based on status as a cardholder

• BUT – recent guidance from Vermont AG takes a

similar position to the Massachusetts Supreme Court – medical marijuana use must be handled the same way as any prescription drug for a disabled employee

– If employee does not use at work and is not impaired at work, an employer may not discipline an employee solely for use of medical marijuana outside of work – In most instances, medical marijuana patients will be legally disabled, because licenses are granted only for a “debilitating medical condition”

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Overview of Law s – Rhode I sland

• Medical Marijuana Act
• No recreational marijuana law, but non-binding

voter referendum has recently been under consideration – will not be on 2018 ballot

• Drug Testing Law

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Medical Marijuana – Rhode I sland Accom m odation

• “No . . . employer . . . may refuse to . . . employ

. . . or otherwise penalize, a person solely for his

• r her status as a cardholder.“ (RI Gen. L, § 21-

28.6-4(d))

• “This chapter shall not permit . . . [ a] ny person to

undertake any tasks under the influence of marijuana, when doing so would constitute negligence or professional malpractice . . . .” (RI

• Gen. L, § 21-28.6-7(a)(1))
• “Nothing in this chapter shall be construed to

require . . . an employer to accommodate the medical use of marijuana in any workplace.” (RI

• Gen. L, § 21-28.6-7(b)(2))

– Law is silent on accommodation of use outside of work, but . . .

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Callaghan v. Darlington Fabrics Corp. ( R.I . Super. Ct., May 2 3 , 2 0 1 7 )

• Employer refused to hire applicant after she

disclosed her status as a medical cardholder and ultimately failed a pre-employment drug test

• Employer argued that non-discrimination

provision in medical marijuana law applied

• nly to discrimination based on status, not to

failing a drug test

• The court held that this was a meaningless

distinction, and the employee had a cause of action for the employer’s violation of the medical marijuana statute

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Overview of Law s – Connecticut

• Palliative Use of Marijuana
• No recreational marijuana law, but bill has

recently been under consideration by legislature – unlikely in 2018

• Drug Testing Law

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Medical Marijuana – Connecticut – Accom m odation

• “No employer may refuse to hire a person or may

discharge, penalize or threaten an employee solely

• n the basis of such person's or employee's status

as a qualifying patient or primary caregiver . . . .” (CT Gen. Stat. § 21a-408p(b)(3))

• “Nothing in this subdivision shall restrict an

employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours.” (Id.) – Law is silent on accommodation of use outside

• f work, but . . .

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Noffsinger v. SSC Niantic Operating

• Co. ( D. Conn. Aug. 8 , 2 0 1 7 )
• Employer rescinded a job offer after employee

disclosed that she took prescription marijuana capsules at bedtime and failed a drug test

• Employer raised a variety of arguments to avoid

the non-discrimination provision in state medical marijuana statute

• Court held that federal law did not preempt state

marijuana law, and employer was not forced to violate federal law simply by hiring medical marijuana patient – Significantly, case was decided in federal court but still sided with employee

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RECREATIONAL MARIJUANA

Maine – Recreational Marijuana History

The recreational marijuana statute has undergone considerable changes since it was passed:

• Nov. 8, 2016 – Voter referendum was passed, legalizing the

limited possession, cultivation, and use of marijuana by adults

• January 27, 2017 – Legislature approved moratorium on several

parts of law

• Feb. 1, 2018 – No action taken, so employer non-discrimination

provisions went into effect

– An employer may not “refuse . . . to employ . . . or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the . . .employer’s . . . property.” (7 M.R.S. § 2454(3)) – The law did not “require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing

• f cannabis in the workplace.” The law also “does not affect the ability of

employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.” (7 M.R.S. § 2454(2))

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Maine – Recreational Marijuana

• New statute passed May 2, 2018 and went into

effect immediately. – Had no effect on medical marijuana law

• Anti-discrimination provision was eliminated –

no longer prohibits employers from refusing to employ persons who use recreational marijuana outside of work

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Maine – Recreational Marijuana ( cont.)

• Employers “are not required to permit or accommodate

the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana in the workplace” (28-B M.R.S.A. § 112)

• Employers may “enact and enforce workplace policies”

restricting marijuana use “in the workplace or while

• therwise engaged in activities within the course and

scope of employment.” (Id.)

• Employers may discipline employees who are under the

influence of marijuana at work. (Id.)

• In summary, employers may prohibit all recreational

marijuana-related activities in the workplace and during work-related activities, provided that they have clearly articulated policies in place.

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Maine – Recreational Marijuana ( cont.)

• What about use outside of work?
• Open question – statute continuously refers to

use “in the workplace” – Does this imply that

• utside usage is permitted?
• Better interpretation is that silence is not

permission and does not override presumption

• f at-will employment – the elimination of the

non-discrimination provision suggests Legislature’s intent to not prohibit employers from restricting use outside of work – Proceed with caution in this area

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Recreational Marijuana – Massachusetts

• Like Maine, Massachusetts has a recreational marijuana

statute that permits adults to use, possess, and grow marijuana without a medical prescription, and permits retail sales by licensed facilities

• “ This chapter shall not require an employer to permit or

accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” (M.G.L. ch. 94G, § 2(e)) – This statute is also ambiguous as to whether workplace possession may be prohibited

– Interestingly, the statute expressly prohibits use and possession on the grounds of a school, but is silent as to possession at work, which creates further ambiguity

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Recreational Marijuana – Verm ont

• Became effective July 1, 2018
• Much more restrictive than Maine or Massachusetts

– No licensed retail sales or commercial growing

• Employers are not required to permit or accommodate

the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace (18 V.S.A. § 4230a(e))

• Employers may adopt policies prohibiting the use of

marijuana in the workplace (Id.)

• The law does not create a legal cause of action against

an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees (Id.)

– Employee cannot use the recreational marijuana law as the basis to sue an employer even if the employer restricts use outside of work

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W hat About CBD?

• CBD is a chemical compound

found in marijuana that is believed to have therapeutic properties, but does not cause impairment – Comes in many forms: creams,

• il, gummies

– Legality of CBD under federal law is an open question – in short, it depends upon how it is derived, which is nearly impossible to confirm given lack of regulation

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W hat About CBD?

• If used recreationally, employer may prohibit
• If used by medical marijuana cardholder,

employer would need to permit use prior to work, as there is no impairment issue – Use or possession while at work could still be prohibited

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MAINE DRUG TESTING

Maine – Drug Testing Overview

• In Maine, drug testing is only allowed if an employer

has a drug testing policy that has been approved by the Maine DOL (28 M.R.S.A. § 681 et seq.)

• Marijuana is still listed under state law as a

substance for which employers may test

• Written policy required
• It is unclear to what extent Maine drug testing law

will apply to employees of a Maine-based employer who work and/ or live outside the state

– DOL has taken inconsistent positions

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Maine – Types of Perm issible Drug Testing ( cont.)

• Pre-employment – applicants may be tested, but only after conditional
• ffer
• Probable cause – “means a reasonable ground for belief . . . that an employee

may be under the influence of a substance of abuse, provided that the existence of probable cause may not be based exclusively on any of the following:

A. Information received from an anonymous informant; B. Any information tending to indicate that an employee may have possessed or used a substance of abuse off duty, except when the employee is observed possessing or ingesting any substance of abuse either while on the employer's premises or in the proximity of the employer's premises during or immediately before the employee's working hours; or C. A single work related accident.” (26 M.R.S.A § 682(6))

– Probable cause determination must be made by employee’s immediate supervisor, other supervisory personnel, a licensed physician/ nurse, or security personnel – Determination must be in writing, state the facts upon which it is based, and a copy given to the employee (26 M.R.S.A. § 684) – Must be based on observable phenomena (e.g. slurred speech, lack of coordination) or other evidence (e.g. finding illegal drugs in employee’s workspace or personal items

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Maine – Types of Perm issible Drug Testing

• Random testing – permitted only if:

– The employer and the employee have bargained for provisions in a collective bargaining agreement; – The employee works in a position the nature of which would create an unreasonable threat to the health or safety of the public or the employee's coworkers if the employee were under the influence of a substance of abuse; or – The employer has established a random testing program in accordance with state law. (26 M.R.S.A. § 684)

• Post-accident testing – statute is silent on post-accident

testing, but a single workplace accident, without other evidence, is not grounds for testing

• Other types of testing - Testing while undergoing

rehabilitation or treatment, and testing upon return to work following rehabilitation program are permitted. (26 M.R.S.A. § 684)

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Drug Testing in Other New England States

• New Ham pshire – no statute
• Massachusetts – no statute
• Verm ont – 21 Vt. Stat. Ann. §§ 511 et seq.

– Generally prohibits testing, but allows testing:

– Of applicants after conditional offer is made; or – Of employees for probable cause, but only if employer has an EAP , and employer must allow employee to complete substance abuse program in lieu of termination

– No random testing – Exception for testing required by federal law

• Rhode I sland – R.I. Gen. Laws §§ 28-6.5-1 et seq.

– R.I.’s testing law is essentially the same as Vermont’s

• Connecticut – Conn. Gen. Stat. Ann. §§ 31-51t et seq.

– Testing is allowed as part of the application process, upon reasonable suspicion, or as required by federal law

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Key Takeaw ays/ Best Practices

• No New England state requires employers to

permit marijuana use or impairment in the workplace

• Most states (except NH) have express non-

discrimination provisions for medical marijuana cardholders

• Trend in case law is that use of medical marijuana
• utside of work may not be restricted, i.e.,

cardholders may not be excluded from employment by positive pre-employment drug test

• No state has a non-discrimination provision

for recreational marijuana users

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Key Takeaw ays/ Best Practices

• If an employee tests positive on a pre-

employment drug test, employer should find out whether employee is a cardholder

• If they are, engage in interactive process to

determine whether they are legally disabled and whether accommodating outside marijuana use would be reasonable

• There is no duty to accommodate usage in a

manner that would cause the employer to violate federal law

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Dan Strader

Merrill’s Wharf 254 Commercial Street Portland, ME 04101 Merrill’s Wharf 254 Commercial Street Portland, ME 04101

dstrader@pierceatwood.com

Charlie Einsiedler, Jr.

ceinsiedler@pierceatwood.com

PH / 207.791.1202 PH / 207.791.1388