Is It Time to Rethink Your Zero Tolerance Drug Policy?

By William W. Bowser

Background

In my practice, drug and alcohol issues came to the forefront in the 90’s. There was a lot of publicity then about transit workers and big rig drivers causing accidents when they were high.

The Department of Transportation (“DOT”) responded by adopting regulations 5161819684_6b310a493b_zrequiring CDL drivers to be tested for drugs under various scenarios. These scenarios included pre-employment, post-accident, and at random. Every employer with at least one CDL driver had to adopt a pretty comprehensive drug and alcohol policy.  I drafted a lot of them.

Once the CDL drivers were covered, employers started expanding the scope of these policies to cover other employees. The stated purpose was to have an efficient and productive workplace and to protect the public. Continue reading

Compassionless Court Kicks Marijuana Claim

By Michael P. Stafford

Marijuana is back in the news here in Delaware. Our state’s first Compassion Center is set to open later this month and legislation decriminalizing the sacred herb has been signed into law by Governor Jack Markell.  medical marijuana_3

Delaware is by no means unique-it is part of a national trend towards decriminalization and even legalization occurring at the state level across the nation. However, as far as the federal government is concerned, marijuana remains illegal. Essentially, America is becoming a veritable patchwork quilt of differing, and inconsistent approaches-a situation that is creating headaches for employers, particularly those with national or multi-state operations, striving for consistency and uniformity in their drug policies. Continue reading

DOT Regs vs. Lawful Marijuana Use

Medical-marijuana laws have been passed in several states. Although Delaware passed a law permitting medicinal use of marijuana, implementation was blunted by potential prosecution by the federal government. And, last month, Colorado and Washington voters made recreational use of marijuana legal in those states. Both medical- and recreational-marijuana-use laws raise lots of questions for employers.

One such question is how these laws will impact an employer’s ability to drug test employees and applicants. The U.S. Department of Transportation (DOT) requires drug testing for safety-sensitive positions. Applicants must be tested before beginning work. Current employees must be tested in certain circumstances, including following an accident. Marijuana is one of the drugs that must be included in the DOT-required screenings.

In 2009, in response to the passage of medical-marijuana laws in several states, the DOT clarified that marijuana remained unlawful under federal law. The DOT reiterated that medical use of marijuana was still “use” and was still considered a violation of the DOT’s regulations.

In response to the Colorado and Washington laws permitting recreational use of marijuana, the DOT has spoken yet again. On December 3, 2012, the U.S. Department of Transportation’s (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes. Not surprisingly, the DOT’s position is unaffected by these State’s laws and the prohibition against marijuana use by anyone in a safety-sensitive position remains fully intact.

The conflict between state and federal drug laws will be resolved eventually. But, until then, the questions and contradictions will continue to cause confusion for employers.

Feds Blunt Delaware’s Medical-Marijuana Law

Delaware’s medical-marijuana program has gone up in smoke. According to the News Journal, Gov. Markell “has suspended the regulation-writing and licensing process for medical-marijuana dispensaries–effectively killing the program.” The decision comes in response to a letter from U.S. Attorney Charles M. Oberly III.

The governor’s office sought guidance from Oberly about the legal implications of state employees who work at a dispensary. Oberly’s response was clear: “State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability” under the Controlled Substances Act.

The death of the Delaware Medical Marijuana Act (DMMA), which was passed in May, 2011, is not due to a unique defect in the statue itself, which shares common elements with other state medical marijuana laws. Instead, the crux of the problem is the intersection of state and federal law and the shifting approach to enforcement taken by the Obama administration.

Despite state statutes like the DMMA, marijuana, medicinal or otherwise, remains illegal under the federal Controlled Substances Act as a “Schedule 1” controlled substance–the same category as drugs like heroin and LSD.

When the DMMA was passed in May 2011, legislators were under the impression that the federal government would not prosecute employees in future dispensaries. This understanding was due to representations by the Obama administration that it would not prosecute individuals for marijuana offenses made legal under state law. That position has changed, however, and the federal Department of Justice is now drawing a distinction between physicians prescribing medicinal marijuana, and individual cardholders, on the one hand, and “large scale, privately owned industrial cultivation centers” on the other. This is problematic for Delaware because the DMMA initially centralizes marijuana distribution in just three Compassion Centers (with one located in each county).

The uncertainty created by contradictory enforcement signals at the federal level has impacted the implementation of medicinal marijuana legislation in other states as well. As we posted previously, a Justice Department warning that “state employees who conducted activities mandated [under a proposed law] would not be immune from liability” led Washington Gov. Gregoire to veto that state’s medical-marijuana bill. Similar warnings of potential enforcement actions targeting marijuana dispensaries also led Rhode Island Gov. Chafee to halt plans to create state-licensed compassion centers, as well.

The news should be a relief to Delaware employers concerned about the workplace implications of the DMMA which, among other things, would have made it unlawful for an employer to terminate a cardholder for failing a drug test unless they “used, possessed, or (were) impaired by marijuana” while at work during normal hours. The DMMA also specified that the mere presence of marijuana components or metabolites in a cardholders system would not suffice to establish that they were under the influence of the drug.

While some effort to amend the DMMA to address federal enforcement concerns is likely, for now, medical marijuana’s future in Delaware appears hazy, at best.

Will Delaware’s Medical Marijuana Law Go Up In Smoke?

Delaware legalized marijuana for medicinal uses in May 2010. The law provides that Delaware residents with certain specific medical conditions will be able to legally purchase marijuana at “compassion centers” in the State. While the law is now technically in effect, there are no compassion centers to make a purchase. That’s because the Delaware Department of Health and Social Services has not yet issued the needed regulations. The law requires the DHSS to issue the regulations by July 1, 2012.

Even when the regulations are issued, the future of medical marijuana in Delaware will remain hazy.

Marijuana is currently classified as a “Schedule 1” controlled substance under federal law. That’s the same category as heroin and LSD. According to the federal government, there is “no currently accepted medical use in treatment in the United States” for a Schedule 1 drug.

According to a recent article in the New York Times, federal agencies have moved to block state efforts to expand the use of medical marijuana. For example, in response to an bill passed by the State of Washington Legislature to legalize and regulate marijuana dispensaries and growers, the U.S. Justice Department warned that growing and distributing marijuana was still against federal law, and said that “state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability.” The warning caused Washington Governor Christine Gregoire to veto the bill.

Similar actions froze Rhode Island plans, to permit state-regulated marijuana dispensaries. Federal prosecutors warned Rhode Island Governor Lincoln Chafee that the dispensaries could be targets of prosecution.

As Delaware moves forward with its plans to permit use of medical marijuana, a similar federal response seems possible, if not likely. Whether such actions will stomp out Delaware efforts remains to be seen.

Waiting to Exhale: Delaware’s Medical-Marijuana Law

Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996.  This year, the Delaware General Assembly began experimenting with marijuana legislation.  With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes. medical marijuana

S.B. 17 shares many common elements with medicinal marijuana legislation across the country.  But there are some key differences that could have a major impact on Delaware employers.  Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card.  Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers.”  There will be only one state licensed dispensary in each county.  The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

Unlike many other states’ medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.  Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.

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Somebody’s Watching You (and it’s not the money you could be saving on car insurance): New Drug-Testing Regs from DOT

Department of Transportation (DOT) regulations require employers to administer drug and alcohol testing to employees or applicants who operate or who will operate commercial motor vehicles. Employers must conduct pre-employment, reasonable suspicion, random, post-accident, return-to-duty, and follow-up testing. Geico Image

The DOT issued a new regulation today requiring that urine samples for return-to-duty and follow-up testing be submitted under “direct observation.” The regulation was announced last August but, after complaints from the AFL-CIO’s Transportation Trade Department, the DOT delayed the implementation of the new rules. (See DOT Delays Implementation of New Drug-and-Alcohol-Testing Procedures). The regulation eventually was challenged but recently upheld by the U.S. Court of Appeals for the District of Columbia.

The regulation, effective August 31, 2009, requires a same-gender observer to “watch the urine go from the employee’s body into the collection container.” To comply, employees must raise their shirts above the waist and lower their clothing so as to expose their genitals and allow the observers to verify the absence of any devices that would permit the employee to cheat the test.

Both return-to-duty and follow-up testing involve employees who are returning to safety-sensitive duties after failing or refusing to take a drug test. A copy of the DOT’s new regulation is here.

Employers should review their DOT drug and alcohol testing programs to ensure compliance with this new requirement.