Sunday, September 16, 2018
American states that have legalized marijuana have been wrestling with the question of how to deal with it in the workplace. On the one hand, employers have legitimate reasons to want employees to refrain from using it on the job. On the other, medical marijuana raises issues regarding discrimination against those with medical conditions.
While the American courts have been addressing things in a piecemeal fashion, all Canadian provinces and territories will have to deal with the issue beginning on October 17, which is Day 1 of the new Marijuana Era there. Employment lawyer Patrick Essaminy of Montréal's Stikeman Elliott LLP discusses the looming issue on an interesting new podcast. There is a lot of good discussion, but Essaminy points out some of the difficulties employers will have in dealing with employees who are impaired at work. What should employers do?
This is a very interesting question and a great challenge for employers in that, unlike alcohol testing, testing for cannabis is tricky. The first priority for employers should be to ensure that their workplace is safe and that any employees that are demonstrating signs of impairment be managed accordingly.
In the world of law enforcement officers rely on the Standardized Field Sobriety Test, also called the SFST. Drug recognition experts are highly trained under the Drug Evaluation and Classification Program and employers can certainly decide to implement testing based on these sophisticated programs. However for now, we can talk about the standard signs of impairment which by the way can be the result of cannabis use, but also in other cases it can be when someone is simply fatigued or overworked.
Given that random testing or testing without proper justification is difficult in Canada, we recommend that employers manage situations of potential impairment by properly training their managers to recognize signs of impairment, whatever the cause is, and to act upon these signs by meeting with the employees, and if necessary removing the employees from the workplace in order to protect both the affected employee and any other people that may come into contact with that employee.
Some of the signs that employers need to be sensitive to in assessing whether someone is impaired include the following: glossy or red eyes; slurred speech; poor coordination; lack of focus or concentration; someone who is easily irritable or demonstrates inappropriate or emotional responses. Other signs may include an unsteady posture, someone whose personal hygiene or appearance is getting worse, someone who has a delayed reaction or appears to have an increased appetite while at work.
I want to emphasize that all of these signs should make an employer proactively react, but it does not mean that the employer can conclude automatically that an employee is impaired as a result of the use of cannabis. That said, the obligation of an employer is to ensure health and safety at the workplace and therefore the cause of the impairment is not the relevant immediate concern in this case. There may be other situations where an employer may be reacting to a near miss, an incident, or a serious accident, which will warrant specific testing and that is a whole different topic.
Thursday, September 6, 2018
Employers in the Garden State are not required to waive drug tests for employees who use medical marijuana under a state-legal system. In a recent case, Cotto v. Ardagh Glass Packing, Inc. (D.N.J. Aug. 10, 2018), the plaintiff was a forklift operator who was injured on the job and was prescribed marijuana and other painkillers. The employer required him to pass a drug test before returning to work.
The employee sued, arguing that he could not pass a drug test with medical marijuana in his system, and argued that the employer was required to accommodate his disability under the state's Compassional Use Medical Marijuana Act.
The federal district court refused to do so. Attorney Mark Saloman of NYC's FordHarrison LLP offers a nice and succinct rundown of the case:
Disability vs. Treatment: The court accepted Cotto's argument he was qualified to perform his work as a forklift operator and that he suffered from a known disability (i.e., neck/back pain). The key distinction here is that Cotto did not claim Ardagh discriminated against him based on his disability; rather, he claimed to be the victim of discrimination because Ardagh refused to accommodate his use of medical marijuana by waiving a drug test.
This required analysis of whether "treatment" of the disability can be distinguished from the "disability" itself. The court gave the cogent example that discrimination against wheelchair use (i.e., the treatment) is inseparable from discrimination against the disability. That was absent here because Ardagh had no objection to Cotto's disability but only "with a consequence of his treatment." This follows the LAD, which prevents discrimination premised upon the disability, not upon conduct resulting from the disability. Because the dispute was based upon conduct resulting from treatment (passing a drug screen), Cotto's disability itself was not an issue. Cotto's possession of a medical marijuana card and a note from his doctor stating that he could operate machinery while taking prescription drugs were equally unpersuasive.
What about CUMMA? The court held nothing within CUMMA supports or invalidates Cotto's claims or requires an employer to permit the use of medical marijuana in the workplace. Likewise, CUMMA does not waive an employer's obligations under the LAD. Citing precedent from jurisdictions where recreational marijuana already is legal, the court confirmed decriminalization of marijuana does not shield employees from adverse employment actions.
Besides dismissing the discrimination claim, the court also rejected Cotto's failure to accommodate claim under the LAD because neither CUMMA nor the LAD require Ardagh to waive its drug test as a condition for continued employment. Likewise, his retaliation claim failed because refusing to take a drug test is not a protected activity under New Jersey law.
Bottom Line: The federal court predicts the state judiciary will reach the "similarly obvious conclusion" that the LAD does not require accommodation of an employee's use of medical marijuana with a drug test waiver. This follows New Jersey courts' general acceptance of drug testing in private employment. It would not, however, be surprising if the competing bills pending in our legislature to legalize adult-use recreational marijuana carve out further protections for New Jersey employees.
Saturday, September 1, 2018
Proponents and adversaries of marijuana legalization can agree that a new regulated industry will create jobs. Unfortunately for those who indulged in cannabis prior to legalization, legal marijuana businesses are often not welcoming of job applicants with prior marijuana-related criminal convictions. This weeds out many applicants who's loyalty to cannabis helped drive its legalization.
The Orlando Sentinel reports that only about ten percent of applicants who applied for Florida's new cannabis market are considered employable by hiring companies. The industry has been working hard to fight "stoner stereotypes" and are not looking to employ applicants with a "strong admiration for weed" according to Forbes writer Mike Adams.
Thursday, August 30, 2018
Marijuana industry employers are rejecting job applicants who regularly smoke. Particularly in states where only medical use is permitted, employers tend to disqualify roughly 9 out of every 10 applicants. A main reason why is the criminal history of many users, and the reluctance of employers to hire felons, even if the felony was directly related to marijuana.
In Florida, where the state’s medical marijuana market is just now starting to build some momentum, cannabis operations are in a frenzy to hire budtenders, cultivation experts and various other team members to assist in serving the hundreds of thousands of patients expected to participate in the program. The state already has around 147,000 patients in the pool, so finding quality, reliable talent to run the show is top of mind for most human resources managers.
However, the process is not going as smoothly as expected. Many of these businesses are simply refusing to hire marijuana users and people with drug-related blemishes on their record -- regardless of their qualifications. Such high standards have disqualified the majority of job applicants. Roughly only about “10 percent” of those who apply for positions in Florida's cannabis market are employable, according to the Orlando Sentinel.
Employers tend to be more lenient in states that have legalized adult use of marijuana, but marijuana related job recruitment firms recommend not bragging to your interviewer about any intense passion for weed or prior criminal activity.
-- Alex Bennett
Sunday, September 3, 2017
A Connecticut act that protects applicants and employees who are prescribed medical marijuana is not preempted by federal law according to a recent federal district court ruling. The opinion is Noffsinger v. SSC Niantic Opeprating Co., LLC, No. 3:16-cv-01938 (JAM) )D. Conn. Aug. 8, 2017). In the opinion, Judge Jeffrey Meyer held that federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA), which prohibits employers from firing or refusing to hire employees who use medical marijuana. Over at the National Law Review, lawyer Sara J. Robertson of Polsinelli PC gives a good rundown of the case.
Plaintiff Katelin Noffsinger was prescribed a daily dose of Marinol (capsulated synthetic marijuana) to treat symptoms arising from post-traumatic stress disorder, which she took only at night. Bride Brook, a nursing home, extended an offer of employment to Noffsinger, contingent upon passage of a drug test. Noffsinger disclosed her Marinol prescription to Bride Brook, and, as anticipated, tested positive for marijuana metabolites. Thereafter, Bride Brook rescinded her job offer. Noffsinger filed a lawsuit against Bride Brook alleging a violation of PUMA’s anti-discrimination provision.
[The court . . . held that PUMA did not create an “actual conflict” with any of the three federal statutes. First, the [Controlled Substances Act] did not preempt PUMA because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. Second, the ADA did not preempt PUMA because, while the ADA allows employers to prohibit the illegal use of drugs in the workplace, PUMA does not authorize individuals to use marijuana while at work, and the ADA does not address use of drugs outside of the workplace. Finally, the FDCA did not preempt PUMA because the FDCA does not regulate employment, but PUMA does.
The Noffsinger decision creates further complications for employers that conduct drug testing for marijuana, particularly in states that have enacted laws that protect medical marijuana patients from adverse employment actions based solely on their use of medical marijuana. While the Noffsinger decision is not binding on other courts, courts in other jurisdictions with similar medical marijuana statutes might follow its lead. Therefore, employers may wish to reevaluate policies that either automatically deny employment to, or require termination of, an employee following a positive drug test resulting from the employee’s use of prescribed medical marijuana.
Friday, September 1, 2017
Although the health-related NFL issue currently occupying major headlines are focused on chronic traumatic encephalopathy (CTE), increasing rates of former and current players becoming addicted to pain killers are quietly becoming the NFL's second largest health issue. In response to the pain killer addiction crisis, the NFL reached out to NFL Players Association and agreed to use a portion of the “joint contribution funds” to study medicinal marijuana effects on treating players dealing with chronic pain. The players' union has claimed that the NFL has not been transparent regarding which players they treat for chronic pain and how the treatment is conducted, but it apparently will push for more study of the issue and ultimately for use of medical marijuana for treating current and former players.
A good overview of the debate is Peter King’s Lesson of the Week: Medical Marijuana, Painkillers Could Be Next NFL vs. NFLPA Battleground. A sample:
The MMQB has obtained the correspondence between the two sides—comprised of four letters, two from NFL general counsel Jeff Pash to the PA, and two from union lawyer Ned Ehrlich back to Pash—and it’s largely what you’d expect. Last week, we said if you give these guys a walking-on-eggshells topic (like domestic violence) then these guys will just fight on the eggshells, and this is more proof of it.
And that is on the heels of comments made by union president/Bengals tackle Eric Winston on the potential damage another work stoppage could do. (Though I’ll agree with Pro Football Talk in that Winston’s “dies out in 20 years” quote was blown way out of proportion.)
But it’s still important, and there’s a lesson in here to be learned. That lesson is this: While the public has focused on the issue of traumatic brain injury and CTE, there’s another topic out there that’s just as important and potentially scary, and that’s how painkillers are affecting the NFL.
-- Jake Wiggins
Tuesday, June 30, 2015
With recreational marijuana arriving tomorrow (Wednesday, July 1) the incidence of employees testing positive for weed is likely to go up substantially. What obligations do employers have to take into account the fact that ingesting THC is now legal? That's the subject of a very nice Q&A on The Oregonian's web site: Recreational pot and the workplace: Q&A on Oregon's new marijuana law.
Short answer: there won't be much of a change. But the whole exchange is worth checking out.
Monday, June 29, 2015
The federal government drug tests potential employees for certain positions. Young people who want those positions, and who use drugs, need to game the system to avoid having the feds find out. That's the take from a piece in the New York Times: State Marijuana Laws Complicate Federal Job Recruitment:
For all the aspiring and current spies, diplomats and F.B.I. agents living in states that have liberalized marijuana laws, the federal government has a stern warning: Put down the bong, throw out the vaporizer and lose the rolling papers.
It may now be legal in Colorado, in Washington State and elsewhere to possess and smoke marijuana, but federal laws outlawing its use — and rules that make it a fireable offense for government workers — have remained rigid. As a result, recruiters for federal agencies are arriving on university campuses in those states with the sobering message that marijuana use will not be tolerated.
So members of a new generation are getting an early lesson in what their predecessors have done for as long as there has been espionage, diplomacy and bureaucracy. They are lying and, when necessary, stalling to avoid failing a drug test.
As any regular marijuana smoker will tell you, it usually takes about two weeks for evidence of marijuana use to disappear from urine, a urine sample being the method by which drug use ordinarily is tested.
“Delaying something is part of what a good diplomat is supposed to know how to do,” said John, a young American diplomat who lives in Washington, D.C., where marijuana use became legal this year. “If you can’t put off a test for two weeks, I mean, come on.” He spoke on the condition that only his first name be used in an effort to avoid losing his job.
I suppose it's bound to come to this. In a culture where we expect the country's leaders to lie to us, we probably can't expect to get honesty from the ordinary folks. Of course the key to successful lying is to make sure you deny it in public:
Based on interviews with a handful of federal workers living here, John’s marijuana-smoking story is not unique. One recent federal hire with a security clearance said he and many of his friends believed that the government was basically asking them to lie when applying for jobs. The hire, a university graduate from a Western state with liberal marijuana laws, was adamant that neither his name nor the agency where he was about to start working appear in print.
Then there's this, which is particularly appalling:
Now, [a State Department] official owns his home here in Washington, [D.C.,]where it is legal to grow up to six plants, though only three can be mature at any given time. If discovered, he said, he would claim that the plants belonged to his wife, who does not work for the government.
This has got to be reassuring to foreign leaders who have to decide whether to believe what an American State Department official says.
Tuesday, June 16, 2015
Colorado employees who demand drug-free workplaces can fire employees who test positive for marijuana, even if the employees have a medical marijuana authorization and consume the weed in their off-duty hours.
That's the ruling in Coats v. Dish Network, a much-watched decision, in which the Centennial State's highest court upheld an earlier decision by the state's court of appeals. The unanimous opinion (Justice Monica Márquez did not participate) was written by Justice Allison Eid, a former law professor.
At issue in the case was a state law prohibiting employers from terminating employees for engaging in "lawful" activities in their off-hours. The plaintiff argued that using marijuana was "lawful" under Colorado law.
The decision is a pretty straightforward application of statutory construction. The court finds that the word "lawful" means "not . . . prohibited by law." Marijuana possession is explicitly prohibited by federal law -- the Controlled Substances Act -- and so would generally not be considered "lawful." The court went on to consider whether the legislature, in using the word "lawful," meant only things prohibited by Colorado law. But the language, the court found, is not restricted. Ordinarily, something is not lawful if it is prohibited by any level of government. Thus, employers presumably can fire employees for engaging in federal crimes (such as tampering with the U.S. mail or violating customs laws) that are not expressly illegal under state law.
The case is a blow to MMJ patients whose employers have drug-free workplaces. They will have to decide whether to use their medication or find alternate employment. It's a win for employers who face pressure from the feds to be drug-free and faced the possibility of being whipsawed between state and federal law.
Because the court's opinion involved interpreting a statute, the Colorado legislature could reverse the decision simply by passing a new law saying that Coloradoans cannot be fired for using medical marijuana on their own time.
Thursday, October 23, 2014
WELL . . . MAYBE, BUT IT'S NOT VERY LIKELY, according to reports of a new study in the Journal of Analytical Toxicology.
Many people assume that simply being around pot-smokers and marijuana smoke isn’t likely to result in trouble during a drug test, and that has been the general scientific consensus.
But as weed has gotten more potent, scientists decided to investigate if secondhand smoke from strong strains of cannabis could lead to positive drug test results.
Urine tests look for a metabolite, or bodily by-product of THC, the chemical that accounts for many of marijuana’s psychoactive properties. In recent years, many strains of marijuana have been bred to contain more THC.
So researchers paired several regular pot smokers and nonsmokers and put them in a sealed compartment together for an hour, while one smoked a joint containing a relatively strong strain of marijuana.
The 12 nonsmoking participants were then tasked with peeing into a cup 13 times over the next 34 hours. Their urine was tested for 9-carboxy-THC, the marijuana metabolite commonly measured in standard drug tests.
The results, published this month in the Journal of Analytical Toxicology, gives nonsmokers with weed-using friends reason to breathe easy. The scientists found urine levels of this metabolite surpassed typically detectable levels (50 nanogram per milliliter) in only one experiment participant, and this happened during a brief window four to six hours after exposure.
Using a more sensitive test, however, which is not usually employed in the workplace, scientists could detect blood THC levels above the 20 nanogram per milliliter in several participants in the hours after exposure. But these concentrations dipped below this threshold for all participants within 24 hours, according to the study, conducted by researchers at the Johns Hopkins University School of Medicine and elsewhere.
Positive tests are “likely to be rare” from secondhand smoke, the authors concluded, “limited to the hours immediately post-exposure, and occurring only under environmental circumstances where exposure is obvious.” Like, for example, sealing yourself in a car with several smokers for several hours and then peeing in a cup shortly thereafter.
When researchers ventilated the smoking chamber, thus making the smoke fumes less concentrated, the urine levels of THC’s metabolite did not come close to reaching the 50 nanogram per milliliter threshold for any participant.