The Occupational Safety and Health Administration (OSHA) issued a memorandum on October 11, 2018 to clarify its position on workplace incentives and post-accident drug testing, stating specifically that “it does not prohibit workplace safety incentive programs or post-incident drug testing.” This clarification not only eased the restrictive position previously taken by OSHA, it superseded it.
On May 12, 2016, OSHA had published a final rule that prohibited employers from retaliating against employees for reporting work-related injuries or illnesses. To the dismay of many employers, it found that “automatic” post-accident testing was retaliatory and unreasonable and would result in the underreporting of work-related injuries.
The new memorandum recognizes that an employer could take steps to create a workplace culture that emphasizes safety. For example, employers could implement:
- an incentive program that rewards employees for identifying unsafe conditions in the workplace;
- a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
- a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
The memorandum notes that testing to “evaluate the root cause of a workplace incident that harmed or could have harmed employees” is permitted. It also lists examples of permissible drug testing, which include:
- Random drug testing.
- Drug testing unrelated to the reporting of a work-related injury or illness.
- Drug testing under a state workers’ compensation law.
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
OSHA also notes that incentive programs can be an important tool to promote workplace safety and health. Those programs could include rewards to workers for reporting near-misses or hazards and a rate-based incentive (rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries). Finally, the memorandum specifies that “[a]ction taken under a safety incentive program or post-incident drug testing policy would only violate [the law] if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Employers should review company policies to ensure compliance with OSHA announcement.
Arkansas amended its Medical Cannabis Amendment in favor of employers
In November of 2016, Arkansas legalized medical marijuana in Initiative 6, the Arkansas Medical Cannabis Amendment (MCA). Since then, Arkansas has taken steps that demonstrate the state has an employer-focused approach to marijuana when it comes to the workplace.
The MCA allows “qualifying patients” with certain medical conditions to purchase cannabis from state-licensed dispensaries When it comes to employers, the MCA, like most legislation in other states, makes it unlawful for an employer to discriminate against an “individual” based on his or her past or present status as a “qualifying patient.”
In an effort to clarify the obligations and restrictions on employers, Arkansas recently amended the MCA. Some of the more significant changes include:
• The MCA now only applies to employers with nine or more employees (employers with 8 or less are not subject to the MCA’s anti-discrimination provisions).
• The anti-discrimination provisions now apply only to “applicants” and “employees,” not all “individuals.”
• An employer now cannot be sued under the MCA in the following circumstances:
– if he or she is acting in accordance with a drug-free workplace program or policy
– if he or she is acting on a good faith belief the marijuana was possessed or used on the premises of the employer or during hours of employment.
– if her or she is acting on a good faith belief that the employee or applicant was under the influence of marijuana while on the premises of the employer or during hours of employment.
– if excluding or removing an employee or applicant from a “safety sensitive position” based on the employer’s good faith belief that he or she was engaged in the current use of marijuana.
• The MCA has a one year statute of limitations.
• Damages under the MCA are statutorily capped.
• Individuals, such as managers or supervisors, cannot be individually sued under the MCA.
Employer Takeaway: Employers should update their written policies and implement new practices if operating in a state with a medical marijuana law. Drug testing policies and procedures should also be reviewed and updated and “safety-sensitive” positions should be identified, along with written job descriptions for them.
Recent court cases in Rhode Island and Massachusetts demonstrate that employers need to consider human resource and legal issues surrounding both applicants and employees who use medical marijuana. These cases not only complicate matters for employers who conduct drug testing for drug-free workplaces, but also create difficulty in reconciling their own safety policies with the courts’ decisions. With these decisions, an employer’s independent right to hire and fire become increasingly complicated when it comes to cannabis use.
Maintaining a safe and productive workplace is paramount for employers, and pre-employment and ongoing drug testing is key. However, tests for marijuana do not measure current impairment, making it nearly impossible for an employer to ensure a safe workplace. Some states significantly restrict the circumstances under which employers can drug test employees. As such, employers are increasingly finding themselves with no effective way to guard against impaired medical marijuana users and to protect not only that employee, but also those working with them.
In Rhode Island, a Superior Court Judge recently ruled on summary judgment that an employer violated the state’s medical marijuana statute when they refused to hire an applicant based on her use of medical marijuana. Callaghan v. Darlington Fabrics, C.A. No. P.C. 2014-5680 (May 23, 2017). The applicant disclosed to her prospective employer, Darlington, when she was applying for an internship that she was a medical marijuana cardholder and current user. She said she would likely fail the required drug test but would not use the substance on property. Darlington chose not to offer employment, stating that passing the drug test is a mandatory condition of employment since they have a drug-free workplace. The applicant sued under the Hawkins-Slater Act (Rhode Island Medical Marijuana Law) and the Rhode Island Civil Rights Act (RICRA).
The judge found that Darlington’s refusal to hire violated the Hawkin-Slater Act’s prohibition against refusing to “employ . . . a person solely for his or her status as a cardholder.” This finding differed from other recent opinions in which courts have rejected claims that refusing to hire a medical marijuana user constitutes disability discrimination. The judge rejected Darlington’s claim that RICRA excuses an employer from having to reasonably accommodate an applicant currently engaged in the illegal use of drugs as defined by federal law, and that they are not required to accommodate the use of medical marijuana among workers.
Other judges may interpret this situation differently and there is a chance that the Supreme Court of Rhode Island could overrule this decision. In the meantime, Rhode Island employers need to be aware of potential legal issues that can arise when dealing with applicants and employees using medical marijuana.
The Massachusetts Supreme Judicial Court recently heard oral arguments in Barbuto v. Advantage Sales & Marketing LLC et all, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes.
The employee in the case started a new job and explained her use of marijuana in treatment of Crohn’s Disease to her new employer when asked to submit to a drug test. She was terminated the following day after failing the test. In making its decision, the employer reasoned that they follow federal law under which marijuana, for any use, is illegal, rather than state law.
The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy. The trial court dismissed all claims, other than her invasion of privacy claim and the employee appealed.
The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.” The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment. This could have an impact on the outcome, as the court has traditionally given a significant amount of weight to the opinions of the MCAD.
On the other hand, the employer in the case argues that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since, under federal law, marijuana for any use is against the law.
The current law in Massachusetts, while specifically not requiring employers to accommodate for on-site use of marijuana for medical purposes, is silent as to an employee’s off-site use of the drug. As such, the decision in this case should clarify an employer’s obligation, if any, moving forward in these circumstances. A decision is expected in the coming months. For additional information, download the parties’ briefs.
The coming months should reveal whether these cases in Rhode Island and Massachusetts courts will impact employers rights to a drug-free workplace and whether other states will follow. In the interim, employers should review all of their policies and procedures with regard to drug testing, hiring and termination. They should also keep informed of any additional rulings and cases on this matter. One thing is certain – the issue of medical marijuana in the workplace is here to stay.
It’s understandable that the overwhelming shift in society toward a more lenient view of drug use can be construed as a sign that you should “get with the times” and abandon the rules that have kept your workplace safe for years. From the “greening” of America through the legalization of marijuana for medicinal or recreational purposes in many states, and governmental agency guidance that doubles as a thinly veiled threat, to the convergence of drug testing restrictions at various jurisdictional levels, it’s easy to believe that your drug testing program is just too much work.
The Occupational Safety and Health Administration (OSHA) published a final rule in the Federal Register last month titled “Improve Tracking of Workplace Injuries and Illnesses”, in which it is stated that “blanket post-injury drug testing could discourage employees from reporting work-related injuries or illnesses for fear of retaliation”. Perhaps you winced at the work involved with revising your policy to more subjectively apply post-accident testing rules. After reading the quote below, regarding how the courts interpret the application of state specific laws, no one could blame you for curling up under your desk and dreaming of a career where the hardest decision you’re required to make all day is what color umbrella should be used to decorate the mai tais.
“Both federal and state law in the area of employee and applicant drug testing continues to evolve. Earlier this year, the Eighth Circuit Court of Appeals ruled in the case of Olson v. Push, Inc. that Minnesota’s strict drug testing statute applied to a Wisconsin-based company that hired (and tested) an applicant in Minnesota to work in West Virginia. Specifically, the court held that the Minnesota law applies to any company “doing business in Minnesota.” Multi-state employers need to look carefully at where they are testing applicants to make sure they are in compliance with local and state drug testing laws.” — V. John Ella, Attorney & MSBA Certified Specialist in Labor and Employment Law at TREPANIER MACGILLIS BATTINA P.A.
Without a doubt, there is some work involved in order to keep your drug testing policy and procedures in step with current laws, but there is also plenty of evidence available that points to why it’s worth it. In the Substance Abuse and Mental Health Services Administration’s (SAMHSA) publication “Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health”, it was reported that were an estimated 27 million illicit drug users in 2014. Twenty-two percent of the survey respondents aged 18-25 and 8.3% of those over 26 years of age admitted to using illicit drugs during the previous month. Of the respondents 18 years of age and older, 10.6% of those with full time employment and 13.2% with part time employment reported to using illicit drugs in the previous month. Additionally, according to the Quest Diagnostics Drug Testing Index (DTI), the positivity rate for nearly 6.6 million urine drug tests increased overall by 9.3% from 2013 to 2014. In states such as Colorado and Washington, where recreational marijuana use was legalized in 2012, positivity rates for marijuana between 2012 and 2013 increased 20% and 23% respectively. In 2014, urine test positivity rose by 9.1% for cocaine, 7.2% for amphetamines, and 21.4% for methamphetamines. In oral fluid tests, the methamphetamine positivity rate rose 37.5%. It is clear that, without drug testing, your business can be at risk. In fact, the US Department of Labor has reported statistics about drug users and the toll they can have on the workplace. Your employees who use drugs are:
- 2.2 times more likely to request early dismissal or time off
- 3 times more likely to be late for work
- 2.5 times more likely to be absent for 8 or more days each year
- 3.6 times more likely to be involved in an accident at work
- 5 times more likely to file a worker’s compensation claim
When considering the risk these statistics pose to workplace safety, business reputation, and your bottom line, the effort involved with periodically reviewing your drug testing policies and procedures is fairly insignificant. Hire Image always recommends, first and foremost, that you consult with your employment attorney to ensure your program meets or exceeds the requirements of your industry, as well as the laws within the jurisdictions that govern your business practices.
To help kick off your policy review, Hire Image, in partnership with TREPANIER MACGILLIS BATTINA P.A. is offering a FREE webinar on Wednesday, June 15th – “States With Unique Drug Testing Laws: What You Need to Know to Avoid Liability” . During this 1 hour presentation, we’ll look at several state and local laws that have requirements reaching well beyond their borders, industry specific requirements, the future of drug testing, and much more. The webinar is pre-approved for 1 HR (general) re-certification credit through HRCI and is valid for 1 PDC for the SHRM-CP and SHRM-SCP.
Can a drug screening policy keep a company out of legal hot water? What should be included in such a policy in order to ensure a company – and its employees – are protected from lawsuits or harm?
All human resource policies are created to protect employees and companies from unsafe and discriminatory actions, and to keep the workplace fair. Let’s face it: having something in writing to refer to when an employee misbehaves or steps out of line helps HR managers and employers hold the employee accountable. Having a written guideline for employees regarding rules, regulations, and ethical or compliance standards provides a framework for enforcement, and inherently can be the most basic foundation for protecting a company should a lawsuit arise. (more…)
If you’ve been contemplating whether a drug screening program is the right choice for your company, the results of a recent study by Quest Diagnostics may help in your decision making process.
Analysis of the Quest Diagnostics Drug Testing Index (DTI) revealed that the percentage of American workers testing positive for drugs such as marijuana, cocaine, and methamphetamine has increased for the second consecutive year. The positivity rate for nearly 6.6 million urine drug tests increased overall by 9.3% from 2013 to 2014. In states such as Colorado and Washington, where recreational marijuana use was legalized in 2012, positivity rates for marijuana between 2012 and 2013 increased 20% and 23% respectively.
It might be easy to focus solely on positive marijuana results given its place atop the list of most commonly abused illicit drugs and constant presence in the news with more states looking to legalize or decriminalize it, but the Quest study shows that positivity rates for other drugs are increasing as well. For example, last year urine test positivity rose by 9.1% for cocaine, 7.2% for amphetamines, and 21.4% for methamphetamines. In oral fluid tests, the methamphetamine positivity rate rose 37.5%.
Given these disturbing upward trends of illegal drug use, you’re probably ready to start drug testing today! Here are a few questions to answer in order to get your program off to the right start: (more…)