Can i document type e sign drug and alcohol policy new jersey
welcome everyone on this call thank you for joining us this is the seventh installment of our labor and employment webinar series con Massie Allen Kerry is pleased to have you and for one of the first times in the last few months we are doing a webinar that is not related to Cove at 19 although some of the issues with with drug testing and relating to the ad a actually do involve some of the same situations and scenarios and potentially implicate coab at 19 but for now we're giving you all a break from specifics over 19 related materials to just talk about marijuana and drug testing and what to do in those scenarios given the ever-changing legal legal landscape in various states joining me on this webinar is my associate band Deacon and for those of you who don't know me my name is Jordan Schwartz I've been a partner at Cohn maciel Cary since we started back in I believe it's 2014 coming up on our six-year anniversary and aside from advising and counseling on all matters related to cope at 19 I specialized in a DEA issues which is going to be a significant portion of this presentation today and all the other typical employment and labor related issues such as the Fair Labor Standards Act wage and hour issues FMLA discrimination harassment and you know counsel my clients on all all ways to positively interact with their employees and now I'm going to introduce Dan Deacon and he is going to cover the first half of the presentation thanks Jordan I will do a quick introduction of myself my name is Dan beacon and I am an associate at comity I'll carry I've been at the firm for about five years now coming up on five years in October and I've worked in both the workplace safety practice group and the labor and employment group so with that I represent employers during inspections and investigations conducted by federal and state OSHA responding to notices of employee safety complaints and I handled full range of litigations related to OSHA citations and on the labor and employment side I represent and advise employers and all aspects of the employer employee relationship including wage and hour disputes title seven issues EEO and I assist employers in revising and drafting employee handbooks workplace policies and procedures safety manuals and the like so as Jordan mentioned I was I am going to go over the agenda quick and cover the first half of the presentation today and we're going to begin by discussing federal and state laws on work-related drug testing we're going to follow that up we have drug testing restrictions and OSHA's injury reporting anti retaliation rules and then Jordan will be covering issues related to the ATA the Americans with Disabilities Act and the impact of state I don't wanna laws on employers so first we want to set the stage here and go over what laws may or may not be out there related to drug testing and marijuana so the overarching question that we're dealing with throughout this presentation and questions that you as employers should be asking yourselves of course are can we legally require current employees to take drug tests right to what extent can we drug test employees when can we do it how can it be done and really the answer to that question is it depends right the law on drug testing are for the most part state specific and there are some nuances there related to federal law federal regulation ohshit anti retaliation rule but the overarching question that you need to answer is can we legally require current employees to take drug tests can we legally require job applicants to take drug tests right so the difference between employees and job applicants the pre-employment drug testing process to what extent can you conduct pre-employment drug tests how do you do it and win can you do it right and that final question is really to sum everything up how can you ensure that you don't run afoul of the law so we're going to go over some key areas of the laws and where you should be looking to make sure that you are compliant with federal and state laws and that you have a compliant drug testing program so the overarching legal concerns are what you see on the screen here and there's really four of them you have an invasion of privacy and that's you know related to state law privacy issues you want to be aware of whatever privacy issues that your respective States state law has for example there may be limitations on how drug testing can be implemented and to what extent you can perhaps end up in in-person observation of a drug test sample etc so those are some key privacy issues that you need to look into prior to rolling out any drug testing program discrimination claims this is a very important one you want to make sure that you are not singling out a specific protected category and when you are implementing these these drug testing policies and your programs you want to look at you know your entire work force if there is a certain job not task but a job position for which a certain protected category makes us a large portion of that you know singling out that job category may not be the best idea singling them out for drug testing so evaluating those potential discrimination claims and making sure that you're implementing the policy in a non-discriminatory manner in other words it applies to all employees regardless of race color sex education gender so violation of state laws and procedures is another one while you may have a legal right to test drug test employees you need to follow specific state laws and/or procedures for example in Maryland close to where where we are in DC an employee can bring a legal challenge against an employer who doesn't have a legitimate business reason to test that employee or doesn't provide appropriate documentation following a positive test result and that's just one example of the many state law nuances that are out there that you need to be aware of especially for those national employers this does become some somewhat of a headache and it's dizzying to follow but it is very very important that you make sure you get it right and then finally the last part the last legal concern that you should be keeping in the back of your mind is defamation publicizing test results for example would would be an issue and could be subject to a defamation claim especially if there is a a false positive result and that gets publicized to you know other co-workers or other future employers what-have-you the idea here is you want to keep any drug testing positive or any drug testing results positive or confidential now moving on to drug testing and employment law issues and right now we're going to get into the background of genesis of drug testing laws and we have to start first with federal law and it comes should come as no surprise to to many of you but there is no comprehend the federal law that regulates drug testing in the private sector workplace so this US Supreme Court has ruled that while drug testing does infringing on an employee's privacy it can be necessary in order to protect the health and safety of others from a federal law perspective drug testing is permissible okay and with that it left the door open to States to force States to regulate that and implement their own laws and that's why we have a patchwork of different drug testing laws regulations prohibitions throughout this country and that is really the background of what we're working with so what does uncle Samson is the federal government well there are couple laws out there again not many actually none that apply to private sector employers there is the drug-free workplace Act and that applies to mostly federal contractors so any organization with a federal contract I think it's worth more than $100,000 and any organization receiving federal grants of any size are subject to this drug-free workplace Act but all it really requires you to do is implement a drug-free policy and program and to provide that to employees what it doesn't do it does not require those organizations or employers that are subject to the law to require drug testing okay so it's limitations or requirements related to drug testing are non-existent there are not what else does the federal government say well as it relates to marijuana it says that marijuana is a schedule one drug under the federal Controlled Substances Act and that's a really important piece that we're going to be talking about a little later in the presentation but the federal government has identified a number of drugs that are considered controlled substances and are it's actually illegal in this country marijuana including being one of them and then there are certain testing requirements for those subject to certain and agency regulations and requirements so those that are subject to do T or DoD Department of Transportation and Department of Defense regulations they may have certain drug testing requirements that you need to comply with for example in the d-o-t process there is mandatory post incident drug testing and there's certain you know requirements and steps that you must follow in implementing those drug tests so we're going to go over them right here what are those do t drug and alcohol testing this is one important area of the law that a lot of employers are subject to especially if you have drivers working for your company they those drivers are typically subject to the Department of Transportation regulation marijuana specifically is prohibited and you can be tested for marijuana if you are a do t covered employee regardless of whether marijuana is legal in your state what type of tests are available under the d-o-t regulations well there's a host of them that you see on the screen screen here there's pre-employment testing post-accident as I mentioned mandatory post-accident drug testing reasonable suspicion testing random and they're specific regulations that outline how random drug testing is to be followed and then there's a specific process for return to do return to duty test and follow-up testing and those are for individuals that may have tested positive in one of the other four categories of three I should say that's actually reasonable suspicion or random testing or for those individuals that don't want to leave of absence really good to substance abuse you'll be subject to the return to duty or follow-up drug testing policies under the DoD regulation and a lot of these programs especially as it relates to do t drug and alcohol testing those are traditionally not handled internally by an employer there's companies that deal directly with these d-o-t drivers and a lot of this drug and alcohol testing requirements for for d-o-t covered employees is outsourced just because there are so many regulations and requirements that you need to be aware of and to make sure that you're following adding those requirements on top of the myriad of other state law requirements that your general workforce is likely subject to can can be added a lot of employers so employers need to obtain drug and alcohol testing information from an applicant's previous employers over the past two years that's part of the employment onboarding process all of the drug testing information is obtained and maintained in the DoD Clearing House so there's specific reporting obligations that that you have to comply with as well if an employee does test positive and again this is a comprehensive set of regulations that employers need to be aware of so that is something that is somewhat challenging and it's best to to take a hard look at whether it's worth outsourcing that if you do as employees subject the d-o-t requirements some other implications that you need to consider our labor relations implications so the equal importance here is somewhat controversial nature of drug testing in labor-management relations and the potential for legal challenges in that arena so you need to review your your CBA the collective bargaining agreement to determine if testing is covered to the extent you are a unionized workplace otherwise there's a duty to bargain and failure to do so could result in an unfair labor practice charge so if you're a union if you have a union work force make sure that you take a look at that CBA and that you're checking the boxes don't go drug testing people without looking at that and making sure that it is a covered provision in the CBA I'm moving on to state law and this is where we really get into the specifics of where drug testing is largely regulated so generally employers have a right to test for drugs unless there's a restriction of state law right as a body of law on employee privacy and related issues continues to evolve testing programs not explicitly authorized by law could be open to legal challenges so again going back to those privacy issues so it's a developing area of the law very state specific something to to consider and research prior to implementing any drug testing program so many states have enacted provisions imposing drug testing restrictions of various time there's limitations on drug testing related to reasonable suspicion or probable cause situation some states impose restrictions on public sector employees but not private sector employees or private companies there's other states that mandate specific methods for handling of specimens and use of test results and there's many limitations on pre-employment marijuana testing so obviously there is this like I said before patchwork of state laws that you need to consider and this is just four of the many nuances that you might see you know there's some states that only authorized testing for employees and safety sensitive positions other states explicitly authorize random drug testing well some outright prohibit it and there's many states that have no restrictions whatsoever so the fact that your state has no vested restrictions perhaps that doesn't necessarily give you carte blanche in terms of this the decision of whether to test and how though and we're going to talk about that in in a few slides here when we get to the OSHA piece of the presentation so here's an example of the types of restrictions and the types of drug tests and drugs tested for that state laws have rolled out and we'll get the bottom here's just a list of some examples but employers operating in multi multiple states right nationwide employers will almost surely have different requirements in each state that they operate regarding what drugs they can test for or how when and there may be limitations on some none or all of the types of drug tests that may or may not be yet employers disposable disposable right so we have pre-employment reasonable suspicion post incident drug testing random testing and then that return to duty follow-up testing so the question the overarching question that you have when researching these state law issues is to what extent is this permissible prohibited restricted and in some manner you want to nail down each one of those types of drug tests to make that evaluation so with respect to what drugs an employer may test for state laws fall into typically one of four categories so first there may be no restrictions on the types of drugs that employers can test for or the testing method and some of the states that you have on the on the screen here in Illinois South Carolina Alabama Virginia in New York Illinois did just modify its marijuana laws in effective January 1 2020 so that has changed a little bit the second category here is that employers may be permitted a test for substances found in the federal government Schedule one two three and four of the Controlled Substances Act without restricting how to specimen is collected so North Carolina is a state that follows those rules other states may require employer's to follow d-o-t rules that substantial set of regulations that I was talking about earlier for workplace drug and alcohol testing if I'm out of here in Tennessee for you employers may strictly regulate what drugs can be tested for and what types of tests may be administered and that's an example of some additional you know state specific requirements that aren't referring to add different types of testing methods or regulation and you can see that in Mississippi so moving on to the OSHA issues now and this is a v
ry important piece that we get a lot of questions about and thats related to post-accident drug testing and then the genesis of this rule really started back in May 2016 when OSHA's final rule on improving the to improve tracking of workplace injuries and illnesses was promulgated and it snuck in these provisions related to post incident drug testing not in the regulations itself but in the preamble to the final rule so basically the hundreds of pages that explain how the rule was adopted its reasoning and the agency's basis for for issuing that rule so there is some legal challenges associated with this rule that are ongoing but as it stands these post incident drug testing limitation stand and they've been in effect and have raised several questions for employers over the past over four years at this point but what did the rule do one this is what we're going to drill down and what the key parts that you need to know is employers so the rule said that drug testing they dissuade a reasonable employee from reporting a work-related injury because it's an invasion of privacy okay going back to the privacy concern and that's one of the main issues with with drug testing it's a privacy issue so the only rule that came out of this and the only limitation was that employers are prohibited from conducting blanket post-injury drug testing so in other words you couldn't have a policy that said and you still can any time an employee suffers an injury or there's a workplace incident that employee will automatically be subject to a drug test right OSHA viewed that and still view that as a form of discipline and it deters the reporting of injuries and illnesses and that was really the basis for implementing the rule in the first place the entire the entirety of potions anti retaliation provision are designed to encourage employees to report injuries and illnesses so OSHA's view is that mandatory post-tension and drug testing is a form of discipline and it deters employees from reporting those injuries and illnesses because they're afraid of a drug test okay what did the test or what did the rule say about other custo hey we've talked about a number of those pre-employment random and follow-up return the duty test and the like well it didn't touch any of us it doesn't have anything to say about pre-employment test random drug tests it permits all of those and it also permits drug tests to comply with state or federal law so for example if you are an employee that is subject to the Department of Transportation regulations and that requires mandatory post-accident testing then that is not a violation of OSHA's rule right so if there is another federal or state law that requires mandatory post-incident drug testing you can implement that as part of your policy again check to see whether your state permits mandatory post-accident testing not permit but requires it as part of your your program and as part of the law if it's required it meant if post incident drug testing is required by a workers compensation insurer and that includes policies that provide for premium reductions for post accident drug testing that is permissible as well you can implement a post incident as our testing policy that requires drug testing phone and so then if it is to comply with the workers compensation policy and then the key language of the anti retaliation rule as it relates to post action and drug testing is at the bottom of the screen here and that's post accident drug testing is permissible when it is likely that drugs or alcohol contributed to the injury and where the test can ID present impairment so that was the original portion of the rule that last part about where the test can I be present impairment OSHA is often that its position on that because the only test that can identify present impairment is alcohol testing can't really do that for drug testing at the moment so they retracted on that a bit and now it is just at first half it it is if drugs or alcohol likely contributed to an injury or incident you can conduct the post incident drug test implementing that is really the challenging piece right so the rule prohibits drug testing employees for reporting work-related injuries without an objectively reasonable basis for doing so so what OSHA says now is that it is it it can be used as a tool to evaluate the root causes of a workplace injury and that inquiry of whether an employer had a reasonable basis is identified by four factors here and that's whether the employer had a reasonable basis to conclude drug use could have contributed to the injury that's a bit circular however we have three other ones here whether other employees involved in the incident are also tested whether there's a heightened interest in identifying drug use because it's high hazardous work that the employees engaged in and for whether the drug test is capable of measuring impairment at the time injury occurs again that was only for alcohol test and these are the factors that were identified back in 2016 so OSHA did come out with some guidance on how this should be implemented and there was some additional explanation in the rule for example it wouldn't be reasonable to test an employee following the report of bee sting for example but there were other instances and examples in which it would be reasonable to test an employee or multiple employees to determine the root cause of that incident or the injury so for example if there is a crane operator and there was several employees involved in the incident involving the crane the the switcher the operator it's a little loader under those circumstances if it's determined that drugs or alcohol may have contributed to the incident and it is objectively reasonable to believe that it is fine to conduct that person to drug testing but under those circumstances it's not reasonable to just test the employee that was injured right if the injury or incident here could have been caused by any one of those employees you need to be drug testing all four of them or all three of them any of the employees that were involved who caused or may have contributed to that incident so in October 2018 after you know over two years of conversation about how this role is supposed to be emblem implemented and employer questions for the agency there's confusion about open oh she did soften his position on those person summons drug drug testing programs as well as another element of the rule that had snuck into the preamble those related to safety incentive programs and what it had to say about the post incident drug testing he says that it can be used as a tool to evaluate the root cause of workplace incident that harm or could have harmed employees and the genesis of this rule is very similar to what we saw in the original rule however it clarified that as long as you are not using a post incident drug test to punish an employee as a form of discipline so we reverted back to making sure that we're not using this as a form of discipline you can conduct those post-incident drug testing on employees again however you don't want to have a written mandatory post incident drug testing policy this is more in the implementation piece and making sure that your drug testing any employees that may or may have caused or contributed to that incident not just the employee that was injured so that's the key here and other elements that you can do to beef up your program to make sure that you don't have a policy that appears facially to be what OSHA would be in retaliatory it's important to make sure that you are encouraging employees to report those workplace injuries and illnesses as part of your overall program the more that you can show that you're taking steps to encourage that reporting and you're not using drug testing as a form of discipline or or something to catch employees doing something wrong all the time the better okay thank you very much Stan and now I'm going to talk about a few spend a few minutes here the Americans with Disabilities Act and how that relates as dan had mentioned discrimination is one of the you know various things you need to be aware about aware of when you're considering whether or not the drug test and or how your drug testing and specifically a disability discrimination ends up being the the most significant legal risk in engaging in drug testing you know the the background is that drug testing you know some people are a little confused by this but drug testing is allowed under the ADEA because the ABA does not consider drug use a disability but but you have to be careful with that the ABA protects disabled individuals from discrimination if they're qualified to do the job and in some cases a drug addiction can be considered a disability in particular individuals who have recovered from drug or alcohol addiction may be protected under the ADEA if they're qualified and they now no longer are abusing drugs or alcohol however this protection does not extend to those or currently using or abusing drugs in any way and especially in a way that's that's a company policy but just before I get any further I just want to reiterate you know Dan was talking about various OSHA implications in OSHA and the ABA and employment law you know they're all intertwined here because the primary reason many organizations require drug testing is to keep the workplace safe and you know it can be argued that employers who are ensuring that their workplace remains drug-free are doing so in order to create a safe environment for for employees and and that is fine you know under under OSHA you have an obligation to create a safe environment but by engaging in drug testing this in essence creates some sort of legal liability for employers who haven't taken all the necessary steps to ensure that any any policy and procedure that they have are complying with all legal requirements and that is really you know the purpose of what Dan and I are doing here it is to make sure that if you decide to engage in these types of drug testing you know actions which you are permitted to do certainly and the in general and even with marijuana in most cases we want to make sure were at least giving you the framework to protect yourself from legal liability so in terms of going on to the next slide as banne had mentioned earlier drug testing could be discriminatory could be viewed by a court to be discriminatory if the policy is not implemented consistently and let's take a step back from the a DA for a second and just say in general generally if applicants of a certain race or national origin or disability are tested as a condition of employment but others applying for the same position are not tested then that would be a discriminatory application of an otherwise legal drug testing policy so basically keep in mind that it's it's legal to test across the board as a condition of employment in a certain position but it's typically not legal to only test certain individuals for the same position that doesn't mean you need to attest your entire company either one way or the other it is lawful to require drug testing for only some positions and not for others such as those with the safety concern but there really shouldn't be any scenario in which you're only testing some individuals in those safety sensitive positions and not others and then in terms of disability discrimination since some disabilities require medication it's possible that medication may show up and drug test results and then if the positive result on the test from a prescription medication assuming that medication is being taken in a way that's consistent with how it's legally prescribed then it may just be discriminatory to hold that positive test result against the applicant in other words let's say you either fire an employee or deny their you know their applicant application is denied because of a positive drug test and it ends up that his or her medication was legally prescribed for a disability yeah as the employer you could be liable for the adverse action that was taken by firing or not hiring that this individual so that's just something you really need to need to keep in mind but administering the test and in terms of the ad a hopefully many of you on this call are familiar with you know what's called a reasonable accommodation and what everyone doesn't always realize is that the reasonable accommodation obligation doesn't only start once you hire the employee it actually starts immediately when the employee applies and you're in the process of deciding whether or not to hire this employee so let's say you know an employer I'm sorry a prospective employee has some sort of disability that might require a different type of drug test or might require some other accommodation or some other way that you need to treat this individual that's different from how you treat individuals without disabilities in terms of how you interview or how you onboard this employee in conjunction with the drug test you are required as the employer to at least engage in the interactive process with this let's say applicant and potentially make a reasonable accommodation to allow this individual to apply for and be considered for the job so long as the accommodation does not cause an undue hardship for you as the employer so let's say for whatever reason let's say you require a urine sample and for whatever reason this individuals disability does not permit him or her to provide a urine sample but he or she can provide a hair sample that likely would not be an undue hardship for you to take a hair sample instead of a urine sample and there there are other examples of things of that nature but that's the type of thing we're talking about you know if it's a different drug test that would cost thousands upon thousands of dollars for your company to administer then that certainly may be an undue hardship but I've seen too many cases of an employer just saying up we don't want to make an exception for you even though wouldn't have caused an undue hardship at all and then the employee can assert you know a claim for disability discrimination so that's something we really want to be be cognizant of and you know that brings me to one case I want to discuss with you and I've tried to limit these slides so I don't go in depth and talk too much about case law and bore you all too much but but this is an important one coming out of Massachusetts for a couple years ago that shows the intersection between medical marijuana and and you know disability discrimination and in this case the plaintiff used medical marijuana at home to treat her Crohn's disease and thereafter she fired she was required to take a drug test and and fired and the company said you know sorry we follow federal law not state law so even though medical marijuana is lawful in Massachusetts you you are thereby terminated and the plaintiff you know claim disability discrimination and violation of the state marijuana law and you know after going back and forth in the courts for a little while the Massachusetts Supreme Court eventually ruled in favor of the plaintiff and held that the plate she was disabled and therefore the court rejected the company's claim that her use of a quote unquote illegal drug under federal law rendered an accommodation that was unreasonable under state law and so doing the court relied on language in the state medical marijuana law which prohibited the denial of any right or privilege on the basis of medical marijuana use and you know the court found that you know where a disabled employee needs medication to alleviate or manage a medical condition that is the reason that renders are disabled and the employer fires are because the company policy prohibits the use of that medication the law can't ignore the fact that it is a company's policy that resulted in a person being denied employment specifically because of her disability and the court further held that by proving that there was no duty to accommodate the on-site use of medical marijuana the legislature specifically intended to accommodate off-site use and remember in this case the plaintiff was using marijuana at home off-site you know that this is not the case where where the court didn't say that the employer had to permit
her to use medical marijuana at her place of employment it was just that it did not have to permit the use of marijuana at her at her home that that was the whole dispute so going moving specifically now that that was kind of the segue I wanted to use just to talk about marijuana specifically now in the last you know 10 minutes or so of this presentation and just to set the stage you know we just have a few statistics we wanted to show here that you know at this point this is as a you know two and a half years ago 45% of Americans had tried marijuana and 12% actively use it and at this point I with more and more states legalizing it I betcha it would be over over 50% and you know this continues that every year continues to be the highest percentage of people who have tried marijuana since the late 60s and and there's actually increasing number and both parties but it's not surprising with Democrats but also with Republicans in favor of legalization of marijuana and you know a recent Gallup poll showed that over 65% of Americans believe smoking marijuana is morally acceptable so with that kind of background of those statistics you know we're up to how many states now have legalized marijuana and and over the years dan and I have given similar presentations and yeah at some point this number was in I believe the low-twenties just a few years ago and and now it's up to 33 and I'm not going to read all the states we can see the list of all the states it seems like every year two or three more become lawful there some years it's a little more some years it's a little less but you know since since the I think it was 2008 when when California and some of the West Coast states legalized marijuana for the first time it's just been a consistent increase in in these numbers and you can see from the from the next slide that we specifically now have have parsed out the the 12 jurisdictions including where we were dan and I are in DC that have legalized recreational marijuana and you know when when you're deciding about your drug testing policies you know it is a difference between the 20 22 or so states that only permit medical marijuana and and the 12 that permit both medical and recreational and that is just something you know you need to be aware what is the law in your state do you fall into this list and as a result what policies are you going to implement to comply with the law so the first step is knowledge and then the second step is application of that knowledge and moving on to the next stage about medical marijuana although a lot of this you know you should be thinking of recreational marijuana too you know the crux of this is as Dan mentioned and I've mentioned probably a couple more times is this you know the the dichotomy of marijuana remaining a legal under federal law but being lawful in some states and not others and then in recreational being lawful in other states you know that patchwork of laws creates so many uncertainties for for employers when trying to implement and apply workplace the workplace policies across state lines it's not even easy if you're only in one state but employers who are in multiple states with all of these different you know some being unlawful some being partly muffled some being all lawful really really creates uncertainties especially when you you know deal with the ABA and like that Barbuto case I mentioned from Massachusetts that implied state law obligations in a sense over overrode the a DA's obligations and as ban had also meant earlier you also need to make sure you comply with drug testing procedures in each state when dealing with medical marijuana issues and you know one more list I have for you here on this next slide is about which states have specific anti-discrimination provisions in their medical marijuana laws of course you know Massachusetts does because based on that state based on that case I I explained to you a few minutes ago and you know hopefully the the counsel who was representing the company in that case knew about that law because those tho that's exactly the law that the plaintiffs suit under and eventually prevailed so if you are located in any of these states you really need to be careful based on these specific anti-discrimination statutes where you want to consult with your your legal counsel and really really be careful before you potentially take an adverse employment action or decide not to hire an individual because of a positive drug test so back to the kind of overarching question where we had to use this in the beginning of the slide is you know whether you may lawfully impose discipline you know such as including termination for an employee who test positive for marijuana and and based on what I just said in the last slide with the different states with those anti-discrimination statutes I think it's pretty clear at this point that the answer really does vary depending on the state in which you are located and again if you are located and more than one stay it will likely depend on where is the employee located and where is the disciplinary action going to a car but yeah you know if I have to just give you one answer you can see on the next slide generally answer still is yes the employer that there's no Supreme Court case or there's no law at this point that from a general federal perspective says that that that calls into question that you do have the right to discipline an employee for a positive drug test including a positive marijuana test for the most part the answer is yes you can do that and specifically most states do allow employers to prohibit the use of marijuana on the employers premises as well as on the job intoxication that is that is pretty much a guaranteed no no unless there's a specific medical related reason but for the most part you certainly can have policies where you prohibit on the job in classification and or use and there is some case law supporting an employer's right to terminate when an employee test positive and I'll get to one other case in a minute that that I will want to talk to you about but but just just to reiterate here I purposely set this up in this next slide is a key question can an employer discipline an employee for off hours and off-site use or influence and you just need to keep in mind is it pursuant to a valid prescription for medical marijuana States or is it for off hours and off sites recreational use in recreational states and then keep in mind whether those states that were on that list a few slides ago such as you know Massachusetts Minnesota Rhode Island whether there's a statue in your state expressly prohibits employers from firing an employee for a positive marijuana test or having a merit valid marijuana card you know interestingly enough some of those states that you that people assume are kind of at the forefront of marijuana that were some of the initial ones to legalize marijuana such as Colorado and California actually don't have those anti-discrimination statutes and and and you know employers may lawfully implement zero-tolerance drug use policies in some of those states and I'll talk about I'm going to end the presentation a few minutes talking about the positives or negatives in doing so but before I do that I just want to get to this issue of lawful off-duty activities and a handful of states have lawful off-duty statutes that are typically aimed at protecting employees rights to free speech so they cannot be fired for engaging in political activities that their employers may disagree with but these statutes also apply to personal and lifestyle decisions so you need to be careful if you take an action against an employee with a positive drug test it's possible that that action could run into issues with these lawful off-duty activity statutes so this is something else that you need to be aware whether your state actually has such a statute because an employee who test positive for marijuana could potentially claim that he is protected from termination so long as his use of the drug occurred during non-working hours and that the most well-known case occurred in Colorado under this under a lawful us through the activity statute called Coates verse dishnetwork and I'm not going to get to a to far into the weeds on this case but in this case the employer actually won the employer the the court found that its termination decision was lawful when it terminated the employment of an individual because he took medical marijuana and the that the employer said it was lawfully entitled to enforce its zero tolerance policy the employee argued based on the fact that he was engaging in lawful off-duty conduct and again the Supreme Court of Colorado held for the employer and said you know what in this case the zero tolerance policy he applies and the employer was permitted to enforce it regardless of that lawful off-duty activity while it was lawful for the plaintiff to take medical marijuana and not criminal there was nothing in that statute that protected him from any adverse employment consequences so that is a case as I say in this next slide that is a significant case for employers and it strengthens the right of all employers in all states to continue to enforce zero-tolerance policies but that being said I want to put a big caveat there you know there's always test cases that that are occurring and then that was that was four years ago and the climate has changed even since then so employers still should reassess blanket plans on marijuana use and you know think about whether or not policies should be should be revised don't just you know this is only a case in Colorado and even in Colorado it doesn't mean that at some point the Colorado Supreme Court can't change its mind so with that being said I'm just going to the last few slides here are going to be more about practical aspects for you to consider instead of just talking about a peace law or talking about the actual law well let's talk about practicality when you're deciding what to do you need to think about really zero tolerance policy on marijuana reduce your pool of qualified candidates potentially to to an unaccepted level you know that that is certainly something that you really need to consider will failing to test for marijuana increase workplace injuries or absenteeism and will treating marijuana differently than other illegal drugs create problems in my workforce and depending on the answer to those questions you know you could be further towards your conclusion of whether or not you want to continue to test for marijuana in terms of zero-tolerance policies we're finding that that more of our clients want more flexibility and less bright-line policies but that's certainly not unanimous across the board you know as the site says some employers are softening zero-tolerance policies particularly for jobs where safety is not an essential function state laws allow marijuana use are complicating recruiters efforts to find drug-free employees which is what I was referring to on that previous slide so before relaxing zero-tolerance policies you might want to you know make sure to get buy-in from company leadership that supports the move and how to deal with any consequences as a result you know you really want to consider your risk tolerance for the workforce and risk tolerance for litigation potentially were you know resulting from some sort of allegation of a discriminatory policy and you know changes in your policy or practices should excuse an employee who is impaired while working so even if you get rid of you know drug testing for marijuana in certain situations you want to make sure not to excuse any employee who is impaired for working and is there I haven't seen any indications that employers are relaxing standards for jobs that are safety critical but drug policies for positions that entail relatively low risk of injury or such as clerical or knowledge economy based jobs yeah those are the ones that that that we're seeing the most of and and just to finish up here so I want to keep this exactly at one hour is you know several notable updates from the last six months is that Illinois has legalized recreational marijuana use but specifically has provided workplace protection for employers you know it's a really good law for employers that most other states do not have to basically say you give a carve-out that drug testing the the burden of proof is assuming that drug testing is reasonable and non-discriminatory at least for random drug testing so anyone and they'll know I should really be aware of this this new law both New Mexico and Oklahoma have passed legislation that prohibits employers from discriminating against employees because of their status as a registered medical marijuana user so you should really you know put them in that Wizkid that I that I described earlier also Nevada specifically has been creating new laws and this is one specifically as of a few months ago that prevents employers from failing or refusing to hire an applicant because an applicant test positive for marijuana so again this is just another reason you need to be aware of these ever changing laws before January in Nevada you could do that and now you can in New York City passed a law barring most employers from conducting any pre-employment testing for marijuana or THC and likewise New Jersey now prohibits employers from disciplining or terminating employees solely based on that individual status as a registered medical marijuana user so all of those are slightly nuanced and slightly different from each other but they all contain you know some similar aspect and really they just as an employer they're things again you need to be aware of and knowledgeable about and then we have to figure out how to apply how to apply that knowledge to your drug testing policy and yeah we don't like keeping you more than an hour so this is our contact information here feel free to send us an email give us a call dan and I would be happy to answer any questions you have relating to drug testing or marijuana and you know help walk you through and any tricky issues that you might be experiencing and continue to look at our blogs this this presentation had both employment law and OSHA related aspects so check out our OSHA defense report and our employer defense report where dan and I and another members of our firm write about these issues all the time we try to at least publish an article at least once a week sometimes more and I mean our website has a lot of information included kovat related information if you need any any more assistance on that front and we will continue to be giving these webinars every every month both OSHA related and employment related webinars so on that note thank you very much for joining us we hope it was useful and we look forward to seeing you next month at our next webinar thank you
