Medical Marijuana and Zero Tolerance Drug Testing Policies Remain An Issue For Employers

Employers and the courts continue to wrestle with issues involving “zero tolerance” drug testing policies and whether employers must accommodate medical marijuana use by their employees. Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal Americans with Disabilities Act (“ADA”). However, 15 states currently have legalized some form or another of medical marijuana use: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington as well as the District of Columbia. The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis.

 

Most recently, in Casias v. Wal-Mart Stores, Inc., a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana stated no legal claims for wrongful discharge. The court accepted Wal-Mart’s argument that Michigan’s medical marijuana law does not regulate private employment; rather, it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state. The court rejected the plaintiff’s argument that the law created a new protected employee class, which “would mark a radical departure from the general rule of at-will employment in Michigan.” The Casias decision is currently being appealed.

A similar ruling is under review by the Washington State Supreme Court. I argued the case for the employer on January 18, 2011. As I previously blogged, the Washington Court of Appeals in Roe v. Teletech Customer Care Management affirmed a trial court’s ruling and held that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. In so doing, the Court of Appeals stated, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act.” Rather, the Court held that MUMA merely protects qualified patients and their physicians from state criminal prosecution related to the authorized use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. A decision from the Washington Supreme Court is anticipated later this year.

Three other state Supreme Courts have already issued rulings on workplace medical marijuana issues, and all have found in the employer’s favor. In Ross v. RagingWire, the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana. The court held that employers in California do not need to accommodate the use of medical marijuana, even when users only ingest or smoke marijuana away from the workplace.

In Johnson v. Columbia Falls Aluminum Company, the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act.

Also previously covered on World of Employment, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law takes precedence over Oregon’s medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana. Stoel Rives filed a “friend of the court” brief on behalf of the employer in that case.

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including, without limitation, customer requirements, government contracting requirements (including the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. To best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law are prohibited, and that their policies prohibit any detectable amount of illegal drugs in an applicant’s or employee’s system as opposed to using an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise. Finally, given the continued efforts by marijuana advocates and civil rights groups to “push the envelope” of medical marijuana laws into the workplace, it is important for employers to continue to closely monitor legislative and legal developments. A recent effort to include workplace protections for medical marijuana users via amendments to Washington’s medical marijuana laws was defeated, but we anticipate similar efforts will be made in Washington and other states in the coming years.

Ninth Circuit Holds "One-Strike" Drug Testing Rule Does Not Violate ADA

The Ninth Circuit Court of Appeals yesterday held in Lopez v. Pacific Maritime Association that an employer’s one-strike drug testing policy for applicants does not violate the Americans With Disabilities Act (“ADA”). The one-strike policy in question stated that the company would never hire any applicant who tested positive on a pre-employment drug screening. All applicants were given notice of the test seven days in advance. The plaintiff failed his test when he first applied in 1997. At the time he suffered from an addiction to drugs and alcohol. He re-applied in 2002, and was rejected based solely on his prior positive test. At that time the employer was unaware of plaintiff’s earlier addiction.

The plaintiff filed suit, alleging disparate treatment and disparate impact violations of the ADA based on his protected status as a rehabilitated drug addict. The trial court granted the employer’s motion for summary judgment, and the Ninth Circuit affirmed. The court dispensed with plaintiff’s disparate treatment arguments on the grounds that the rule, while arguably unreasonably harsh, was neutral, in that it “eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to try drugs for the first time, recreationally, on the day before the drug test.” Citing the Supreme Court’s decision in Raytheon v. Hernandez, the court noted that “[t]he ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions made because of factors merely related to a person’s disability.”

The Court also rejected plaintiff’s disparate impact argument, on the ground that he failed to produce evidence from which a juror could conclude that “the one-strike rule results in fewer recovered drug addicts in Defendant’s employ, as compared to the number of qualified recovered drug addicts in the relevant labor market.”

While this case does present something of a win for employers with similarly neutral policies, I would caution employers from getting too excited for two reasons. First, the Court hinted that summary judgment may not have been appropriate had the employer known of the plaintiff’s addiction before he reapplied. Second, plaintiff’s disparate impact claim failed only because he could not produce any evidence of disparate impact. The Court made clear that to survive summary judgment he’d only have to produce “some” evidence—a very low threshold indeed.

Washington Court of Appeals Upholds Termination Where Medical Marijuana Use Caused Drug Test Failure

Note:  On April 1, 2010, the Washington Supreme Court granted review of the Court of Appeals decision discussed in this entry.  A final ruling on the case will be issued by the Washington Supreme Court at a later date.

 

A Washington Court of Appeals has ruled that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. Click here to download a copy of the Court of Appeals Decision in Roe v. Teletech Customer Care Management

 

Jane Roe (who did not use her real name because medical marijuana use remains illegal under federal law) sued Teletech for rescinding its employment offer after she failed a drug test required by Teletech’s substance abuse policy. She sought reinstatement and damages, alleging that she had been wrongfully terminated in violation of public policy since her marijuana use was legal under MUMA. The trial court granted summary judgment in favor of Teletech, and Roe appealed.

 

The Washington Court of Appeals, Division II affirmed the trial court’s dismissal of Roe’s case, stating, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act."  Rather, the Court held that MUMA merely protects qualified patients and their physicians from state (not federal) criminal prosecution related to the prescribed use of medical marijuana.  The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. The lawsuit and appeal, handled for the employer by Stoel Rives attorneys Jim Shore and Molly Daily, is likely to be further appealed by Roe to the Washington Supreme Court. 

 

The workplace implications of medical marijuana continues to be a developing area. If your company has employees in any state allowing the use of medical marijuana under certain circumstances (including Washington, Oregon and California), you should review your substance abuse policies and make certain that all local human resources personnel and drug test administrators know whether the company will consider an exception for medical marijuana usage. Currently, Washington employers do not need to accommodate medical marijuana usage by making an exception to an otherwise valid substance abuse policy. However, because of court rulings in other states interpreting their states’ disability laws and advocacy groups’ continued attempts to expand medical marijuana rights, employers should continue to exercise caution when dealing with requests for disability accommodation involving medical marijuana. If such an issue arises, consider consulting with legal counsel.

Bus Driver's "Shy Bladder Syndrome" a Disability

A school bus driver who was demoted after his "shy bladder syndrome" left him unable to comply with his employer's drug testing procedures may proceed with claims under the Americans with Disabilites Act (ADA) according to a recent ruling from a Tennessee federal court.  Click here to read the full opinion in Melman v. Metropolitan Government of Nashville.

In Melman, the plaintiff was required to submit to random drug tests.  During two tests he could not provide an "adequate" urine sample, and explained that he could not because of a "shy bladder."  A urologist diagnosed the plaintiff with paruresis (aka shy bladder syndrome) and offered to perform the urine sampling via catheterization.  The employer  declined that offer.  Instead, it placed the plaintiff on unpaid leave, required him to attend a drug rehabilitation program at his own expense, and demoted him to a position as a bus monitor.  (Notably, the plaintiff ultimately did provide a negative sample obtained via catheter.)  The court denied the employer's motion to dismiss, holding that shy bladder syndrome substantially limited the plantiff's major life function of eliminating bodily waste.

Employers with drug testing programs should take note:  employees who are unable to comply with standard drug testing procedures may have a qualifying disability, especially given the more liberal standards under the ADA Amendments Act.  Employers should not shy away (okay, bad pun) from engaging in the interactive process with the employee to find ways that the employee can comply with the procedures - such as providing a sample through catheterization.  The International Paruresis Association also provides suggestions for accommodating shy bladder syndrome. 

New DOT Regulation Requires Expanded Observed Urination in Drug Testing

Effective August 25, 2008, the Department of Transportation will require transportation workers who previously tested positive for prohibited drugs to give urine specimens while being watched by specimen collectors.  The new regulations will apply to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries.

Under current regulations, only workers suspected of tampering with their specimens are required to provide samples while being watched.  However, the DOT is concerned that a "various mechanical devices are now readily available to individuals who want to adulterate or substitute their urine specimen during a drug testing collection."  The new regulations require an employee giving the sample to raise his shirt, lower his pants and turn around to show the observer that he is not using a "prosthetic device." 

"Prosthetic device?"  Think we're joking?  Guess again.