Posted on 03/22/2019 at 10:28 AM by Russell Samson
Part 1 of this blog post, discussed a decision of a Canadian provincial supreme court affirming an arbitrator’s decision that the medially- authorized use of medical cannabis created a risk of the employee’s impairment on the jobsite. In that case, the employer was determined to not have the “reasonable accommodation” of giving an employee who was medically using marijuana a safety-sensitive job because the employer was not able to readily measure impairment from cannabis with currently available technology and resources. (That inability to accurately measure impairment rendered the employer unable to manage the risk of injury or death to the employee or to co-workers. Thus, putting the employee who was using cannabis for medical reasons in a safety sensitive position was an “undue hardship” under Canadian law.) , ,.
The Canadian case leads to the question of how a similar case might be decided in the U.S., with our patchwork of state laws regarding marijuana use – both medicinal and recreational – as well as intertwined federal and state occupational safety and health laws. As I wandered the internet, I found a March 7, 2019 blog post from Obermayer Rebmann Maxwell & Hippel LLP entitled, “Employers Should Continue to Exercise Caution Regarding Marijuana Policies.” The focus of that post was a decision by a federal district court judge, applying Arizona law, in Whitmire v. Wal-Mart Stores Inc., (D. Ariz. Feb. 7, 2019)
Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon . . . [a] registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment. [Boldface emphases added.]
A.R.S. § 36-2814(A)(3) provides that the Arizona medical marijuana statute does not require,
An employer to allow . . . any employee to work while under the influence of marijuana, except that a registered qualifying patient 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. [Boldface emphases added.]
So, in Arizona, for an employee who is a qualified “patient” using medical marijuana, an employer must prove not just a positive drug test, but that the marijuana caused “impairment,” before any adverse action may be taken. While the Arizona law uses the term “impairment,” it does not define the standard for being “impaired.” It is clear, however, that under Arizona law, an employee certified to use marijuana for medical purposes is not impaired solely by virtue of a positive test result.
Whitmire involved a post-accident workplace drug test on an employee who was an Arizona registered qualifying user of medical marijuana. She had not, however, informed Wal-Mart of that status until after she had provided a specimen for the drug test. According to the Arizona federal district court judge’s opinion ruling on a summary judgment motion filed by Wal-Mart:
Plaintiff claims she smokes medical marijuana just before bed as a sleep aid and to help treat the chronic pain she suffers due to arthritis and a prior shoulder surgery. Plaintiff also asserts that she has never brought marijuana to work or used or been impaired by it during her hours of employment.
The GC/MS confirmed test result for Whitmire was greater than 1,000 ng/mL of marijuana metabolites. (The testing equipment apparently could not accurately determine how much more than 1,000 ng/mL was in the specimen.)
To put that 1,000 ng/mL in context, consider the U.S. Department of Transportation workplace drug testing regulations. 49 CFR § 40.87(a), establish the “cut off” levels for various drugs for which testing is required. For marijuana, if one is using an immunoassay test, the cut-off for THCA is 50 ng/mL. The cut-off for the confirmatory test is 15 ng/mL. Therefore, an over-the-road trucker, an airline pilot, or a railroad engineer in the U.S. who had a positive drug test of 15 ng/mL of THCA must be immediately removed from performing any safety-sensitive duties, and undergo a series of additional consequences before being able to perform safety-sensitive work for any covered employer in the United States. The 1,000 ng/mL found in Whitmire’s specimen might also be compared with Colorado Revised Statutes, Section 42-4-1301(6)(a)(IV): “If at such time the driver's blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant's blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.” To repeat, the Colorado statute uses a blood test standard.
The Arizona Wal-Mart employee, Whitmire, had at least 66.67 times the level which mandates a positive result under federal DOT standards. She apparently had at least 200 times the level which in Colorado gives rise to an inference that one is “under the influence.”
But Arizona’s law requires “impairment.”
In Whitmire, the judge noted that Wal-Mart had failed to timely designate an expert who was capable of rendering an opinion as to whether the level of marijuana metabolites present in the plaintiff Whitmire’s drug test screen indicated she was impaired at work. The judge, without being asked, took it upon himself to grant summary judgement to the plaintiff Whitmire “on non-filed cross motion for summary judgement solely on the question of liability [on her claim of] discrimination under the AMMA.”
I also found the March 15, 2019, post from the Oklahoma law firm of McAfee & Taft entitled, “Oklahoma Medical Marijuana and Patient Protection Act addresses workplace safety concerns for employers. The post announces that on March 14, 2019, Oklahoma’s governor signed a comprehensive measure designed to add regulatory clarity in the state’s medical marijuana industry – an industry made lawful with the enactment of Oklahoma State Question 788.
The Oklahoma constitution reserves to the people of the state, “the power . . . to enact or reject such laws or amendments independently from the Legislature, and also reserve the power own option to approve or reject at the polls any act of the Legislature.” State Question 778, was passed by the voters, adding several provisions regarding medical marijuana use to the Oklahoma Statutes. Section 6 of State Question 778, added “new section 425 to Title 63.” That new section provided in part:
B. 2. Employers may take action against a holder of a medical marijuana license holder if the holder uses or possesses marijuana while in the holder's place of employment or during the hours of employment. Employers may not take action against the holder of a medical marijuana license solely based upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its components.
From the comments in the McAfee & Taft blog post, this fairly open-ended prohibition left some Oklahoma employers – and perhaps Oklahoma employees and Oklahoma labor organizations concerned about members’ well-being -- with concerns about workplace safety. The “Unity Bill” amends the Oklahoma law to allow for an employer to take some adverse action against a person who seeking a bona fide “safety-sensitive” job based on that person’s positive drug test for marijuana metabolites.
I return to the Canadian decision that started this two-part blog post. A lynchpin of that decision was that, “there are no available testing methods to accurately determine impairment from cannabis use in the workplace.” It was that deficiency which led the Canadian arbitrator to conclude there was no way to reasonably accommodate the desire of an employee who was lawfully using medical cannabis to be given a safety-sensitive position.
There is apparently no real disagreement in the scientific community with the conclusion that marijuana use can result in “impaired” performance. Employers in states which permit marijuana use – recreational or medicinal – are well advised to consult with competent local counsel to determine what standards apply to them vis-à-vis employee and applicant drug testing for marijuana, and what risks there may be. In those states where employers are subject to federal OSHA and to state laws which are more liberal than the federal standard that marijuana is classified as a Schedule I substance under the federal Controlled Substances Act, employers need to consider whether the medical (or recreational) marijuana law may place obstacles to the obligation to have a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm. An employer with workplaces in several jurisdictions, each of which may impose its own standard, will need to think through very carefully how it is going to respond in each of those jurisdictions.
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