GOING GREEN: MARIJUANA IN THE WORKPLACE Benjamin C. Ritchie Idaho State Council of SHRM Employment Law Conference September 30, 2016 www.moffatt.com BENJAMIN C. RITCHIE Ben Ritchie is a partner with the Idaho law firm, Moffatt Thomas, working from the firm’s office in Idaho Falls. He practices in the areas of personal injury defense, workers compensation, employment law, and transportation law. Ben serves on the Board of Directors for Habitat for Humanity Idaho Falls. Ben serves as pro bono counsel for Court Appointed Special Advocates in child protection proceedings. He also serves as pro bono legal counsel to the Idaho Suicide Prevention Hotline. Going Green • Current status of federal and state laws regarding marijuana use • Marijuana crossing state lines • Employee drug testing • Reasonable suspicion • Marijuana use and the ADA and FMLA 9/30/2016 3 1
Going Green – Statistics • 53% of Americans believe marijuana should be legalized. • 68% of “millennials” believe marijuana should be legalized. • Between 1999 and 2010, the percentage of fatally injured drivers testing positive for marijuana nearly tripled. 9/30/2016 4 Going Green – Statistics • There was a 397% increase in highway interactions resulting in seizures of Colorado marijuana from 2008- 2013. • A recent National Survey on Drug Use and Health found that 19% of millennials recently used marijuana. • The same study found that 6.6% of baby boomers surveyed had used marijuana in the past year. 9/30/2016 5 Going Green – Legal Status • Decriminalization v. • Colorado Legalization • Utah • Idaho • Nevada • California • Montana • Oregon • Wyoming • Washington • Federal Laws 9/30/2016 6 2
Going Green – Crossing State Lines • It is illegal to take marijuana across state lines. • Possession or use of marijuana is still a violation of federal law – Obama administration has “turned a blind eye” towards growers, dealers, and users. 9/30/2016 7 Going Green – Crossing State Lines • Legal marijuana must follow specific state laws, including being locally grown, and can usually only be used and sold legally by those who are licensed by the state to do so. • Moreover, most states have not yet legalized marijuana, so transporting the substance into those states at all would be a crime under any circumstances. This is true whether the drug originated in a state where the individual was legally authorized to possess it or not. 9/30/2016 8 Going Green – Drug Testing Idaho Employer Alcohol and Drug-Free Workplace Act (1) The purpose of this act is to promote alcohol and drug-free workplaces and otherwise support employers in their efforts to eliminate substance abuse in the workplace, and thereby enhance workplace safety and increase productivity. This act establishes voluntary drug and alcohol testing guidelines for employers that, when complied with, will find an employee who tests positive for drugs or alcohol at fault, and will constitute misconduct under the employment security law as provided in section 72-1366, Idaho Code, thus resulting in the denial of unemployment benefits. 9/30/2016 9 3
Going Green – Drug Testing Idaho Employer Alcohol and Drug-Free Workplace Act (2) It is the further purpose of this act to promote alcohol and drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the cost delays and tragedies associated with work-related accidents resulting from substance abuse by employees. I DAHO C ODE § 72-1701. 9/30/2016 10 Going Green – Drug Testing Idaho Employer Alcohol and Drug-Free Workplace Act • The Idaho Employer Alcohol and Drug-Free Workplace Act sets up voluntary guidelines that permit alcohol and drug testing of job applicants and employees as a condition of hiring or continued employment. • The law also enables an employer to classify a drug- or alcohol- related termination as work-related misconduct that can disqualify an employee from eligibility for unemployment compensation benefits. 9/30/2016 11 Going Green – Drug Testing Idaho Employer Alcohol and Drug-Free Workplace Act • The law contains specific rules on sample collection, handling, and confidentiality. • An employer must have a written policy on drug and/or alcohol testing that is communicated to all employees and “made available for review” by job applicants. The policy must state that violating the policy is grounds for a misconduct discharge. The policy must also list the types of tests an employee may be subjected to, including baseline, pre-employment, post- accident, random, return to duty, follow-up, and reasonable suspicion. 9/30/2016 12 4
Going Green – Drug Testing Should you even test for marijuana? • Pre-employment, random, or reasonable suspicion. • Target employees? Social acceptance. • Industry – A study in Washington state showed that for three industry groups (construction, manufacturing and services), injury rates declined significantly following the implementation of drug testing. 9/30/2016 13 Going Green – Drug Testing There are four ways to test for marijuana, each one looks for the parent drug (THC) or the drug metabolites (substances that prove the drug was present). 9/30/2016 14 Going Green – Drug Testing (cont’d) 1. Urine Tests – Can detect the length of time since someone has used marijuana betweena few days and several weeks. The test looks for drug metabolites. 2. Oral Fluid Tests – Also called saliva tests, oral fluid tests detect usage right after the most recent usage and up to three days later. They show the parent drug. 9/30/2016 15 5
Going Green – Drug Testing (cont’d) 3. Blood Tests – Like oral tests, blood tests also detect usage immediately and determine whether consumption took place within a few hours or a couple of days. Blood tests expose both the parent drug and metabolites. 4. Hair Tests – A hair sample is collected from the donor and sent to a lab for testing. Drug use can be detected after five to seven days and up to approximately 90 days. Hair tests show the presence of drug metabolites. 9/30/2016 16 Going Green – Reasonable Suspicion • Reasonable suspicion testing, also known as for cause drug testing, is performed when supervisors have evidence or reasonable cause to suspect an employee of drug use. • Evidence is based upon direct observation, either by a supervisor or another employee. • Specific reasons for reasonable suspicion testing include physical evidence of illicit substances, patterns of erratic or abnormal behavior, disorientation or confusion, and an inability to complete routine tasks. 9/30/2016 17 Going Green – Reasonable Suspicion Tips • Inform employees in advance • Train supervisors • Base decisions on current information • Document everything (checklist) 9/30/2016 18 6
Going Green – Reasonable Suspicion Tips • Reasonable suspicion must be based on an articulable belief that an employee uses illegal drugs, drawn from particularized facts and reasonable inferences from those facts. – Observable phenomena, such as direct observation of: (A) The use or possession of illegal drugs; or (B) The physical symptoms of being under the influence of drugs; – A pattern of abnormal conduct or erratic behavior; 9/30/2016 19 Going Green – Reasonable Suspicion Tips (Cont’d) – Arrest for a conviction of a drug-related offense, or the identification of the individual as the focus of a criminal investigation into illegal drug possession, use, or trafficking; – Information that is either provided by a reliable and credible source or is independently corroborated; – Evidence that an employee has tampered with a drug test; or – Temperature of the urine specimen is outside the range of 32-38 degrees centigrade or 90-100 degrees Fahrenheit. 9/30/2016 20 Going Green – Reasonable Suspicion Social Media • How many of you are friends with or follow employees on social media? • Can your reasonable suspicion be based on a social media post? • What if the social media post is old? • Can you believe everything that is on the internet? 9/30/2016 21 7
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