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Is Medical Marijuana Legalization Setting a Nationwide Trend To Ban Cannabis Drug Testing?

By Andrew David Easler, Esq.

Key Takeaways:

  • Concerns over employee privacy and protection from discrimination has led to a trend among employers across the nation to remove marijuana from workplace drug testing panels.
  • The ADA does not protect medical marijuana users, but the FMLA might.
  • The Florida Drug-Free Workplace Act may protect participating employers from certain types of legal liability.
  • For most employers, there is no easy solution to accommodate the legal use of marijuana, to protect employee privacy, and to ensure safety and productivity in the workplace.

There are many reasons why employers may have concerns about employees who may use controlled substances in the workplace. The likelihood of accidents that could affect the employee, other employees, the employer, and the public increases substantially because most drug-induced intoxication makes workers less alert.[1] As a result of these accidents, employers could be faced with paying millions in workers’ compensation claims and negligence lawsuits.

Survey statistics have revealed widespread consequences of drugs, particularly marijuana.[2] For example, a study conducted by the Journal of the American Medical Association concluded that “marijuana users have 55 percent more occupational accidents, 85 percent more injuries, and a 78 percent higher absence rate at work.”[3] When deciding whether to remove marijuana/cannabis from drug testing programs, Florida employers should consider the following:

  • The legalization of medical marijuana is a factor that may create dilemmas and conflict between workplace policies, federal law, and state law. This could lead to potential discrimination and wrongful termination suits by medical marijuana users.
  • The recently enacted law banning pre-employment drug testing in New York could give rise to constitutional claims in many states. [4]

Although marijuana is prohibited throughout the United States because of its classification under the Controlled Substances Act  as a Schedule I narcotic,[5] the legality of medical marijuana in Florida can cause concerns for employers.[6] Private sector employment drug testing may be affected by state and federal laws that require employers to provide reasonable accommodation, which can translate into discrimination lawsuits by their employees if there is a perceived failure to accommodate.[7] For example, Title I of the American with Disabilities Act (ADA) is a federal law that prohibits employers with 15 or more employees from discriminating against employees with a disability or perceived disability.[8]

Generally, if an employee is a qualified individual with a disability and can perform the essential functions of the job at issue, an ADA-regulated employer must provide reasonable accommodations so that the employee may perform the essential functions of the job.[9] Currently, Florida’s medical marijuana laws are silent on whether employers are prohibited from discriminating against medical marijuana users under state law; therefore, the popular consensus is that these employers have no legal duty to accommodate them.[10]  Although federal laws under the ADA remove protections for disabled persons when the accommodation is the use of illegal drugs under federal law,[11] the silence on the topic in state medical marijuana laws can give employees the ability to make creative arguments to exploit the ambiguity.

For example, the State of Washington maintains a medical cannabis provision that is nearly identical to Florida’s.[12] In Roe v. TeleTech Customer Care Mgmt., the plaintiff (Roe) argued that an employer must accommodate an employee’s “off-site” use of medical marijuana because the phrase “on-site” in Washington’s cannabis law provision implied that the employer had an obligation to accommodate an employee’s off-site medical marijuana use.[13]

The Family Medical Leave Act is another avenue for an employee to make a discrimination claim based on the Florida medical marijuana law’s silence on an employer’s duty to accommodate the offsite use of medical marijuana. The FMLA allows qualifying employees to take unpaid, protected leave for specified medical reasons, up to 12 weeks.[14] Therefore, if an employee qualifies for both medical marijuana and leave under FMLA, then like under the ADA, the employer faces a potential conflict between workplace policy prohibiting marijuana use and federal law.

New York’s recent ban on pre-employment marijuana drug screening is another factor that Florida employers in the private sector should consider when deciding whether to remove marijuana from their drug testing programs. New York is the first major US city to ban marijuana testing of prospective employees, substantially due to its legalization of medical marijuana.[15] Many citizens of New York supported this ban because they believed that jobseekers were being judged unfairly based on private behavior.[16] Supporters argue that the professional ability of these job seekers was usually overlooked because of this pre-judgment while opponents have said that private companies should have the choice to determine whether the use of marijuana is relevant to hiring.[17] Medical marijuana users in multiple states have won lawsuits against companies that have either rescinded job offers or fired workers due to positive tests for marijuana on similar arguments.[18]

For example, in Noffsinger v SSC Niantic Operating Co., LLC, a prospective employee won a case against her potential employer for rescinding a job offer following a positive marijuana drug test  despite her qualification for medical marijuana use under state law.[19] Noffsinger, the plaintiff,  used medical marijuana after she was diagnosed with post-traumatic stress disorder (PTSD) following a car accident and subsequently accepted a job offer from SSC Niantic Operating Company (the defendant employer).[20] Although the offer was contingent on a drug test, the plaintiff employee had informed her employer that she was qualified under the Connecticut Palliative Use of Marijuana Act (PUMA) to use marijuana to treat her PTSD.[21] Despite this information, SSC Niantic Operating Company rescinded the Noffsinger’s job offer after her drug test came back positive for THC, consistent with the use of marijuana.[22] The United States District Court for the District of Connecticut granted plaintiff’s motion for summary judgment on the issue of whether defendant’s rescission of plaintiff’s job offer constituted employment discrimination in violation of PUMA.[23] The Court reasoned that there was no legitimate dispute that defendant’s rescission of plaintiff’s job offer was contrary to plaintiff’s right not to be subject to discrimination because of her status as a qualifying patient under PUMA.[24] In other words, despite being illegal at a federal level, the Connecticut marijuana law protecting certain employees from discrimination on the basis of marijuana use is not preempted[25] by federal law and thus Connecticut employers cannot rescind job offers on the basis of a positive marijuana drug test when used or prescribed legally under state law.[26]

The issue here is whether, based on recent legal developments, Florida employers should remove marijuana from their drug testing programs. Medical marijuana patients are currently prohibited from any protection under the language of the ADA. Because marijuana use is federally prohibited under the Controlled Substances Act and because the ADA maintains its illicit drug exception, medical marijuana users will likely fail in a discrimination suit under the ADA against an employer if they are terminated or disciplined by their employer. However, case law in Florida has not been established for discrimination lawsuits under the Family and Medical Leave Act, leaving the potential for employees to bring lawsuits against their employers for legal use of medical marijuana while on leave under this act.[27]

Florida employers can adopt a drug-free workplace program under Florida’s Drug-Free Workplace Act (DFWA) which gives employers protections from certain employment claims and discounts on worker’s compensation premiums when in compliance with its rules and procedures.[28] Adopting a drug-free workplace under the DFWA provides additional protections for employers including removing those who confirm positive under the program from the definition of a person with a handicap under the 1973 Rehabilitation Act[29] and providing that any employer under the program “who discharges or disciplines an employee or refuses to hire a job applicant . . . shall be considered to have [done so] for cause.”[30][31].  Therefore, the adoption of this program not only helps to ensure that Florida employers maintain a safe and drug-free workplace but can provide protection under state law from certain claims[32] from employees who use medical marijuana.

Lastly, the New York City ban on pre-employment drug screening for marijuana has appeared to catalyze legal change in arguments in the courts and in legislatures.[33] Other states have followed New York City and provided protection to prospective employees who test positive for marijuana.[34] Cases such as Noffsinger are based on explicit language in state medical marijuana statutes which provide protection from employment discrimination for marijuana use.[35] Therefore, employment protection for medical marijuana users is generally unavailable unless a state legislature intends to add protection for medical marijuana users in their statutes. In Florida, the Medical Marijuana Employee Protection Act was first filed in November 2019 and introduced as legislation in January 2020.[36] This Act, if passed, would prohibit employers discriminating against employees who are medical marijuana users and provide a cause of action for damages.[37] However, employers will still be able to enforce a drug-free, zero-tolerance workplace.[38]

Although employees who use medical marijuana may bring claims against their employers under the ADA and FMLA, these employees will likely not be protected if marijuana remains illegal federally under the Controlled Substances Act. However, employers should continue to watch for the Medical Marijuana Employee Protection Act (MMEPA) or its future iterations and their progression through Florida Congress. This legislation would give employees who use medical marijuana protection from discrimination under state law. Under the MMEPA, employers would still be able to adopt a voluntary drug-free workplace program and maintain a drug-free workplace.[39]

Until the law changes, there is no perfect solution for employers to fully mitigate safety risks while avoiding the risk of legal liability. The current proposed employee protection legislation may lead Florida employers to follow New York City and ban pre-employment drug testing for marijuana.

However, is banning pre-employment marijuana testing akin to throwing the baby out with the bath water? In Florida, recreational use of marijuana is still illegal and its use at work can still pose a real threat to safety and productivity. For example, a hypothetical employer interviews and offers employment to two individuals contingent on passing a drug test that excludes marijuana: one an office worker, the other a forklift driver in a warehouse. The office worker is prescribed medical marijuana under Florida law, the forklift driver uses marijuana recreationally and habitually. They both pass their drug test (which excludes marijuana) and start work.

The office worker poses little threat to safety, does not bring medication to work, and is able to perform her job functions. The employee and employer are satisfied and likely avoid legal conflict. However, the forklift driver shows up to work under the influence of marijuana and has poor coordination and reaction time as a result. He damages a rack in the warehouse which causes it to collapse and fatally injure another employee.

The employer in this situation may be exposed to legal liability for wrongful death and/or negligence actions because of its failure to mitigate the risk of injury by screening for marijuana use (a likely proximate cause of the injury) before hiring the forklift driver.

There is a middle ground, however, where the hypothetical forklift driver never poses a threat to safety and the office worker avoids possible discrimination. A Florida employer could, through the use of a physician known as a Medical Review Officer (MRO), choose only revoke employment offers to those prospective employees who test positive for marijuana without a medical prescription or only subject safety-sensitive employees to pre-employment marijuana testing. However, this would require a change in the employer’s drug-free workplace policy which must nevertheless comply with state law and notice requirements. There is no easy solution to the changes in marijuana law in Florida and throughout the United States, but employers should be closely monitoring changes from the legislature and the courts to ensure ongoing compliance.

References:

[1] See Gary S. Mogel, Proof of Violation of Privacy Rights in Employment Drug Testing, 28 Am. Jur. Proof of Facts 3d 185(1994). [2] Id. [3] Id. (citing Efficacy of Preemployment Drug Screening for Marijuana and Cocaine in Predicting Employment Outcome, JAMA 1990, 264:2639–43). [4] New York City Int. No. 1445A (2019). [5] See 21 U.S.C. § 812 (2018) (indicating that a Schedule I narcotic is a drug that is illegal because it is deemed to have high potential for abuse, no known medical use, and severe safety concerns). [6] See Joshua Weisenfeld, Note: Medical Marijuana Patients: Discrimination & the Search for Employment Protections, 27 Cardozo J. Equal Rts. & Soc. Just. 375 (2021). [7] See Gregory A. Hearing & Michael A. Balducci, Medical Marijuana’s Effect on Employment Law: The Highs, The Lows, and The Unanswered Questions, 91 Fla. Bar J. 22 (2017). [8] Weisenfeld, supra note 6, at 5 [9] Hearing, supra note 7, at 3 [10] Id. at 5 [11] See 42 U.S.C. §12210(a) (precluding from the ADA definition of “individual with a disability” an “individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use”). [12] Compare, Wash. Stat. § 69.51A (2015) with Fla. Const. Art. 10 § 29. [13] P.3d 586, 590 (Wash.,2011) (citing the language from the statute that, “’[n]othing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking medical marijuana in any public place as that term is defined in RCW 70.160.020.’ RCW 69.51A.060 (2007 amendment italicized).”). Roe v. TeleTech Customer Care Management (Colorado) LLC, 257 [14] Hearing, supra note 7, at 6. [15] 2 Zeese, Drug Testing Legal Manual § 7:3 (2d ed.). [16] See, e.g., Jennifer Peltz, Help Wanted, No Pot Test Required: New NYC Law Takes Effect, https://www.nbcnewyork.com/news/local/help-wanted-no-pot-test-required-new-nyc-law-takes-effect/2414148/ (last visited May 13, 2020). [17] See New York City Int. No. 1445A; see also, Peltz, supra note 16. [18] See, e.g., Noffsinger v. SSC Niantic Operating Co., LLC, 338 F. Supp. 3d 78 (D. Conn. 2018). [19] Id. at 88. [20] Id. at 82. [21] Id. [22] Id. at 83. [23] Noffsinger, 338 F. Supp. at 88. [24] Id. at 83-86. [25] Meaning the federal law does not supersede or have control over Connecticut law in this particular case. [26] Note: this rule applies to employment relationships covered by a drug-free workplace program under Connecticut law. If an employee, like a covered commercial truck driver, is covered by a federal workplace drug and alcohol testing program then this rule does not apply. [27] See, e.g., 1 Investig. Emp. Conduct § 3:58 (2021). [28] See, Fla. Stat. § 112.0455 (2020). [29] A Florida law aiding those with a disability, see Fla. Stat. § 413.20 (2020). [30] Fla. Stat. § 112.0455(10)(b). [31] 1 Emp’t in Fla. § 12-3 (2020) [32] Such as wrongful termination, workers’ compensation disputes, unemployment claims, and certain claims of discrimination. [33] See, e.g., H.R. 3884 U.S. House of Representatives (2020 Legislative Session). [34] See, e.g., Nevada Assembly Bill 132 (2019) (excepting certain federally regulated and safety-sensitive positions as explicitly defined in the law as well as those workers who, “in the determination of the employer, could adversely affect the safety of others”). [35] Weisenfeld, supra note 6 at 17. [36] See H.B. 595 Fla. House of Representatives (2020 Regular Session) (died in Oversight, Transparency & Public Management Subcommittee on March 14, 2020); see also, H.B. 335 Fla. House of Representatives (2021 Regular Session) (died in Government Operations Subcommittee on April 30, 2021). [37] H.B. 595. [38] Id. [39] Excepting, of course, the offsite, legal medical use of marijuana.

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