Medical Marijuana Use In the Workplace, Quirky Question # 21 (California Issue)
Quirky Question # 21:
We recently made a job offer to a gentleman as a lead systems administrator in the California division of our telecommunications company. As part of our routine pre-employment drug testing, he tested positive for marijuana. However, the applicant presented us with a doctor’s note allowing him to use “medical marijuana” for chronic back pain cause by injuries he suffered while on active duty in the Air Force. He explained that he’s been using it for years, he only uses it at home, and it has never had a negative impact on his job performance.
It’s our company’s policy not to hire anyone who tests positive for illegal drug use. But this is the first time we have been presented with a doctor’s note authorizing the marijuana use for medical reasons. Are we going to be in trouble if we refuse to hire him?
[As promised, today marks the introduction of our West Coast Quirky Question analyses. On the first Wednesday of each month, we will post a question pertaining to issues arising in California, Washington or Alaska. Our firm's attorneys in our two California offices, located in Irvine and Palo Alto, or our Seattle or Anchorage offices will share their insights in response to the questions.
Today's analysis is provided by Karen Wentzel. Karen, who practices in our Palo Alto office, is a Stanford Law School grad, who has been practicing employment law for more than 20 years. Karen's biography can be found at www.dorsey.com. Her email address is: wentzel.karen@dorsey.com. If you have any particularly unusual questions pertaining to California law, you can send them either to me or to Karen.
We hope you enjoy this new, monthly feature of our Blog. Regards, Roy]
Karen’s Analysis:
I suspect that those of you whose companies are located in, or do business in, California, recognize that these facts are drawn not from a client inquiry but instead from a very recent case from the California Supreme Court. In that case, Ross v. Ragingwire Telecommunications, Inc. (Cal. No. S138130, January 24, 2008), the state’s high court affirmed a bright line test that employers need not accommodate the use of illegal drugs.
The employee in the Ross case argued that his employer had to accommodate a person using marijuana under a doctor’s care based on a 1996 initiative passed by California voters called the Compassionate Use Act. Federal law prohibits the possession of marijuana, even by medical users. But the Compassionate Use Act gives a person in California who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug. Mr. Ross argued that this meant his potential employer could not refuse to hire him based on the results of his pre-employment drug test.
The California Supreme Court disagreed. The Compassionate Use Act, the court said, does not address the rights and duties of employers and employees. And, the California Fair Employment and Housing Act (which prohibits discrimination on the basis of a disability as well as other protected categories) permits an employer to condition an offer of employment on the results of a medical examination, and to deny employment to applicants who test positive for illegal drugs. Therefore, there was no basis for Mr. Ross’ claim of disability discrimination.
The ruling is important to employers for several reasons. The opinion affirms that an employer may condition an offer of employment on the results of a medical exam. Medical exams may be required by an employer after an offer of employment is made but before the employee begins work to ensure that the applicant can perform the essential functions of the job. This means that the medical exam must be job related. But the court said that the employer had a legitimate interest in avoiding well-documented problems associated with the abuse of drugs and alcohol by employees – increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover. This was true even though Mr. Ross would not have had responsibilities for driving a company vehicle or operating potentially dangerous machinery.
Notwithstanding this decision, as is always the case, if an employer is going to require conditional medical exams and reject applicants who test positive for illegal drug use, it is important to apply the rule fairly and across the board. Treating applicants differently without a legitimate and well-articulated business reason for doing so can lead to claims of differential treatment and discrimination. In addition, the tests should be administered to preserve the applicant’s right to privacy under the California Constitution. Finally, remember that the Ross case involved the current use of an illegal drug. A past addiction or alcoholism may be a covered disability that cannot be the basis for an adverse employment action and may require a reasonable accommodation (e.g., a modified schedule to allow the employee to attend Alcoholic Anonymous meetings).
Unfortunately, even though Ross was an opinion of the California Supreme Court, the issue of accommodating medical marijuana use in the workplace is not necessarily settled. The dissent argued that the result was anything but compassionate and will unfairly force employees to choose between medical treatment for serious illnesses and unemployment, or continuing employment and chronic pain. At least one state legislator has said he plans to introduce legislation to protect medical marijuana users’ right to employment. Stay tuned.
Reasonable Suspicion of Drug Use, Quirky Question # 20
Quirky Question # 20:
We recently saw in the newspaper that one of our employees had been arrested for DUI and marijuana possession. Based on the newspaper article, we insisted on drug testing the employee under the “reasonable suspicion” section of our drug testing policy. The employee adulterated his urine sample by adding soap to it. The testing facility advised us that they consider an adulterated sample to be the same as a positive test.
We have asked the employee to go through a treatment program, as required by a “first positive” result of a drug test under our policy. The employee is balking. Are we being unreasonable? Can’t a newspaper article provide us reasonable suspicion to warrant a drug test?
Roy’s Analysis:
I am not aware of specific judicial decisions that clearly would support your company’s decision. In my view, however, with just one caveat, I believe your company has acted reasonably and should be able to persuade a court of that fact in the event your employee challenges your company’s actions.
As you described in your question, based on the newspaper article, you learned that your employee was “arrested for DUI and marijuana possession.” Ideally, when your company was made aware of this situation, it should have conducted an independent investigation. Your investigation could have consisted of obtaining the police arrest record or other public information regarding this incident through the City or County Attorney’s Office.
Alternatively, your investigation could have simply involved interviewing the employee to ascertain the relevant factual information directly from him. You could have confirmed the accuracy of the newspaper report, ensuring that your employee actually was arrested for DUI and that drugs were found in the vehicle. If the employee admitted the accuracy of the report and offered no explanation for the situation, you would have received independent confirmation in support of your suspicion.
It is possible, though unlikely, that your employee could have presented additional information to you that both cast doubt on the information in the article and assuaged your concerns. For example, he might have informed you that he is a diabetic and the erratic driving leading to his “DUI” arrest was caused by low blood sugar. (These facts would have been easily verifiable.) Similarly, he might have informed you that although there were drugs in the vehicle, they belonged to his passenger, who admitted they were his. (Again, these facts would have been verifiable.) If these facts had been uncovered and confirmed, you may not have elected to require the employee to engage in the random drug test. In short, it usually is advisable to conduct a prompt investigation of your own into the issues that caused your firm concerns, or aroused your suspicions, whatever the underlying issues might have been.
Let’s assume for this discussion, however, that no investigation was conducted. Even without an investigation, your employee’s destruction of the urine sample is corroborative of the fact that there was prior wrongful conduct. Indeed, your employee’s behavior following the company’s request that he take the drug test (which the testing company advised you is equivalent to a positive test) provides ample justification for treating his conduct as a “first positive” under your policy.
You also have asked whether your firm is justified in relying on a newspaper article. Although as noted above, I would recommend that your firm conduct its own investigation regardless of the source of your concerns (e.g., a newspaper, an employee’s report, an anonymous tip on your company’s hotline, your own observations, etc.), a newspaper report may provide you a legitimate basis for having “reasonable suspicion” of wrongful conduct, with resulting disciplinary action. This issue is particularly timely here in the Twin Cities, where a group of students at a local high school recently included pictures of their underage drinking escapades on their Facebook pages. The school disciplined the students based on the pictures they had displayed on Facebook. While the school’s actions have precipitated some protests from the students themselves, their parents, and a few of their fellow students, the school’s disciplinary decision seems to have been well grounded.
Another way of evaluating the appropriateness of your company’s conduct is to consider how an alternative hypothetical scenario might have played out. For example, if your company took no action in response to the newspaper report and did not require a drug test, presumably the employee would have continued working without interruption. Imagine that the employee caused an accident at your facility due to impairment relating to alcohol or drug use. If another employee or a member of the public were injured in this accident and sued the company for negligence, it would be difficult to explain the company’s complete inaction after seeing the newspaper story.
In short, as with many aspects of employment law, once the company is on notice of problematic behavior (e.g., drug use, sexual harassment, potential workplace violence, etc.), it needs to act. The fact that the source of this knowledge might be a newspaper – here, the report of an arrest – does not alter this equation. (Keep in mind, however, that regardless of the source, all allegations are not true. That observation is easily illustrated by reference to just two words, even in the context of an “arrest” – “Duke Lacrosse.” Hence the need for your own, objective investigation.)
Drug & Alcohol Testing, Employment of Minors, Quirky Question # 13
Quirky Question # 13:
I read your Quirky Question # 12 regarding sexual harassment and the issue of whether the policies need to be tailored to minors. Your question alerted me to a related issue. Like the company described in your last question, our firm also employs a number of minors under age 18. We have a pre-employment and post-accident drug and alcohol testing policy.
We are wondering whether the minors’ parents have to sign the authorization for the drug testing? Do the minors themselves? Is a drug-testing authorization signed by the parents at the start of the minors’ employment sufficient to cover all future drug and alcohol testing of the minors?
Roy’s Analysis:
Good questions. Unfortunately, the answer under Minnesota law is not clear. (Laws of other states may differ.) Your company will need a consent for this testing, but the law is vague as to whether minors can effectively consent to medical procedures.
We recommend a conservative approach. Companies want their drug testing process to be fair and reasonable, to non-minors and minors alike. In addition, companies want to eliminate the prospect that parents will object to such tests after the fact, or insist that they should have been informed in advance. Therefore, we recommend that both the minor and the parent sign the consent form. (This conservative approach is consistent with the 7th Circuit’s analysis described in QQ # 12, where the appellate court pointed out that in certain circumstances minors must act through their parents or other legal guardians.)
Of course, this can lead to another, equally important issue. Let’s assume that the parents and the minor both sign the consent form, and the test is conducted. Let’s assume further that the test results demonstrate that the minor has been ingesting drugs. Who gets the test results? The drug testing statute says that the “applicant” gets the results, and it includes a lot of privacy provisions. HIPAA issues may be implicated as well. Consequently, we recommend only providing the results of the test to the minor, unless the minor provides permission in writing to the employer to release the test results to the parents.
An even safer and more proactive approach, that would provide for complete transparency, would be to advise the minor applicant and the co-signing parent, at the time the consent form is executed, that the results only will be shared with the minor, absent a specific, written directive from the minor and parent. Without that written instruction, a parent would be hard pressed to argue that he/she should have been provided with a copy of the test results.
Finally, there is a question in Minnesota regarding whether a consent signed at the outset of employment is effective on an ongoing basis. Minnesota’s drug testing statute has a provision requiring employers to give written notice of the testing policy upon hire or adoption of the policy. See Minn. Stat. § 181.952, Subd. 2. There is a separate provision requiring the employer to give the employee/applicant a form on which to acknowledge that they have seen the policy before requesting a test. Minn. Stat. § 181.953 subd. 6(a). We are not aware of any case law discussing whether one notice can satisfy both of these requirements. Adhering, then, to the generally conservative approach described above, our recommendation is to have minors and their parents sign a separate acknowledgment at the time the minors are asked to take a drug or alcohol test not linked to the hiring process.
Lastly, as the 7th Circuit’s analysis illustrates (see QQ # 12), your company’s drug and alcohol testing policy will need to be written in a way that minors can understand. (We also recommend that you include a provision in your company’s drug and alcohol testing policy specifically stating that your company reserves the right to impose discipline, up to and including termination, upon someone who refuses to take an appropriate drug or alcohol test.)
Drug Testing Drivers, Quirky Question # 8
Quirky Question # 8:
We provide a number of our sales employees with company automobiles. We were wondering whether we could randomly test these individuals for alcohol or drug use. Needless to point out, we would like to ensure that employees driving our company vehicles do not endanger either themselves or members of the public.
Roy’s Analysis:
You pose a good question. Like so much of employment law, your question illustrates the tension between competing societal interests. Here, the tension exists between employees’ rights to privacy and public safety.
States have different drug testing statutes, so the answer to your question is state-dependent. Since I practice out of Minneapolis, I’ll answer your question with reference to the applicable laws in Minnesota. The relevant Minnesota statute is the Minnesota Drug and Alcohol Testing in the Workplace Act. Under the statute, an employer is allowed to conduct random drug tests for employees who occupy “safety sensitive” positions. “Safety sensitive” positions are defined as those jobs in which “impairment caused by drug or alcohol use would threaten the health and safety of any person.” See Minn. Stat. § 181.950, subd. 13. Another way to frame your question, therefore, is to inquire: “Does a job that involves driving a company automobile fall within the definition of a “safety sensitive” position, such that your firm would be justified in engaging in random drug testing?”
There is not a great deal of case law in Minnesota defining precisely which positions are, or are not, “safety sensitive” positions. The courts have found that jail personnel, patrol officers, investigators, and court security deputies all occupied “safety sensitive” positions. Similarly, workers involved in the maintenance of railway lines have been held to occupy “safety sensitive” positions. In contrast, workers involved in loading, unloading and cleaning commercial aircraft have been held not to occupy “safety sensitive” positions, a fact that may cause some unease among airline passengers.
I am not aware of any Minnesota cases addressing the issue of whether driving a company vehicle involves a “safety sensitive” position. Some insights, however, can be obtained from parallel federal law. In the federal context, and the public employer arena, drug testing is considered a “search” within the meaning of the Fourth Amendment. Random drug testing has been deemed permissible only where it serves “special governmental needs . . ..” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The nation’s highest court has held that “special needs” exist where an employee works in a “safety sensitive” position. In deciding whether an employee occupies a “safety sensitive” position, courts have been directed to consider whether the employee’s duties are “fraught with such risks to others that even a momentary lapse of attention [could] have disastrous consequences.” Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 628 (1989).
Applying these standards, federal courts have found that the following positions are “safety sensitive” such that random drug testing should be permitted: a) air traffic controllers; b) aircraft maintenance personnel; c) railroad safety inspectors; d) highway and motor carrier safety specialists; e) lock and dam operators; f) heavy equipment operators (e.g., forklift, tractor and crane operators). However, federal courts have held that Department of Energy employees whose jobs included driving cars and vans containing documents and Department of Agriculture employees whose jobs included driving shuttle buses, mail vans, and cars, did not occupy “safety sensitive” positions.
Based on this analogous federal case law, it would appear that someone whose job responsibilities involve driving a company vehicle does not occupy a “safety sensitive” position that would subject that person to random drug testing. In my view, that analysis may be misguided. Certainly, someone behind the wheel of a 6000 pound SUV going 70 mph is engaged in an activity where “even a momentary lapse of attention [could] have disastrous consequences.” Moreover, I’d wager that someone driving an SUV traveling at 70 mph is a bit more dangerous to the general public than a forklift operator driving around a warehouse at 3 mph.
According to the U.S. Secretary of Transportation, there were approximately 43,000 automobile deaths on American highways, both in 2005 and 2006. Here in Minnesota, just two days after I posted QQ # 8, the Star Tribune reported on a tragic situation involving a van driver for the Forest Lake Area School District who caused a crash that killed his passenger, a 14-year-old student, and himself. Exacerbating the tragedy, as reported by the Star Tribune, the driver had marijuana in his system, and additional marijuana was found in the van. See, Student’s Driver Had Drugs In, With Him, Star Tribune, November 14, 2007, p. A-1. Both the national statistics and this recent, profoundly sad story here in Minnesota, suggest that it is time for state legislatures to re-examine the balance between employee privacy and public safety. In my view, companies providing employees with company vehicles should be permitted to randomly drug test these individuals. (Keep in mind that it will be the companies that are sued if there is an accident involving a serious injury or fatality.) But, that is not the current state of the law, and therefore, random drug testing would seem ill-advised.
Follow
