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 • 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? 2

Medical Marijuana and Accommodation

Overview of Law s - Maine • Maine Medical Use of Marijuana Act • Marijuana Legalization Act • Maine’s Substance Abuse Testing Law 4

Medical Marijuana - Maine • Employer “may not refuse to… employ… or 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)) 5

Medical Marijuana – Maine Accom m odation • 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 outside of work unless exception applies 6

Bourgoin v. Tw in Rivers Paper Co. ( Me. June 1 4 , 2 0 1 8 ) • 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. 7

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 on 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 of a positive test despite cardholder status. – Open question whether the Law Court would hold that the statute requires employers to hire after positive test 8

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 9

Overview of Law s – New Ham pshire • Use of Cannabis for Therapeutic Purposes • No recreational marijuana law (possession of small amounts decriminalized) 10

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 on 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)) 11

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 12

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) 13

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. 14

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 or possession, as both activities could expose the employer to civil and/ or criminal liability. 15

Overview of Law s – Verm ont • Medical marijuana law • Recreational marijuana law (limited in scope) • Drug Testing law 16

Medical Marijuana – Verm ont • The law “shall not exempt any person from arrest or 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 or 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 17

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” 18

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 19