January 8, 2020
By Hugh D. Brown
Hugh Brown and Rebecca Huting are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or firstname.lastname@example.org.
For many employers, pre- and post-employment drug testing policies present a dilemma. How can an employer promote its legitimate safety goals while staying compliant with federal and state law allowing certain drug use? The legal and medical use of cannabis is rapidly expanding throughout the United States, and blanket prohibition may no longer be an option for employers. Second, the rapid increase in the abuse of prescription opioids makes it more important for employers to monitor and test for that abuse. This briefing paper provides guidance to employers navigating those issues.
While recreational use of cannabis is still illegal in Minnesota as of the date of this writing, medical use of cannabis is legal in limited circumstances. Minnesota passed its Medical Marijuana Law (MML) on May 29, 2014, forcing employers to ensure that their testing policies are consistent with the law and avoid taking adverse action against employees who may be on the MML patient registry program. Patients who have one of nine qualifying medical conditions are eligible for the registry program, which includes cancer, severe or chronic pain, HIV, seizures, terminal illness with specific aggravating circumstances present, among several others. According to the Minnesota Department of Health, 15,960 patients are currently active in the registry. It is natural for employers to be concerned that the MML could lead to employees on the registry program being under the influence at work and causing accidents. The MML appears to contemplate this to some degree, and outright prohibits the following activities while under the influence of medical cannabis: “operating, navigating, or being in actual physical control of any motor vehicle, aircraft, train, or motorboat, or working on transportation property, equipment, or facilities . . .”
The opioid addiction epidemic is the second area of rapid change. The increase in the abuse of these drugs has been well-publicized. According to the National Safety Council, the majority of preventable drug overdose deaths (69%) involve opioids, totaling 37,814 in 2016. Common prescription opioids are prescribed as painkillers and include Oxycontin, Hydrocodone, and Morphine. Employers must be careful to mitigate the risks that the abuse of these drugs can cause in the workplace while avoiding illegal restrictions on the legitimate use of opioids.
Under DATWA, employers are prohibited from discriminating against a person based upon their status as an enrolled patient in the registry program, and they may not fire an employee for a positive drug test for cannabis components or metabolites unless that employee used, possessed, or was impaired by medical cannabis while at work. But what does it mean to be impaired? “Impairment” or the definition of “under the influence” is undefined. Employers may choose to utilize a benchmark used in federally-regulated testing such as 50 ng/ml (followed by a confirmatory test at a lower threshold) because a very small reading may be difficult to demonstrate impairment. Beyond a quantity threshold, however, it would be wise for a drug-free policy to define impairment in terms of a failure of fitness to perform the employee’s core job functions.
The Americans with Disabilities Act (ADA) (42 US.C. §§ 12101-12113) prohibits employers from discriminating against employees and applicants based on their disability and requires employers to make reasonable accommodations for employees with disabilities. Importantly, active alcoholics may be regarded as “disabled” under the ADA, as may many legal users of prescription drugs. However, the ADA does not protect the illegal use of prescription drugs or the use of illegal drugs. Moreover, employers may prohibit the legal use of drugs in safety-sensitive positions.
There can be significant consequences for getting this wrong. In one Federal District Court of Washington case from 2017, an employer fired an employee who tested positive for opioids. This employee had a prescription for sedating opioid migraine medication and was not in a safety-sensitive position. The employer had no exception for prescription medication from their drug test policy. The court upheld a $ 1.8 million judgment against the employer who failed to accommodate the worker’s opioid use. In another case, an employer was found liable after taking adverse action against employees and instructing them to cease taking prescription medications that contained substances in violation of their drug-free workplace policy.
The Minnesota Drug and Alcohol Testing in the Workplace Act (“MDATWA”) governs drug and alcohol testing and applies to all Minnesota employers. If an employer wishes to perform drug tests, it must have a written testing policy that it provides to all applicants and employees. The employer only may test in five specific circumstances: pre-employment screening, reasonable suspicion testing, treatment program testing, routine physical exam testing, or random testing. Finally, the tests must be conducted with fairness and reliability safeguards.
Employers must also be mindful of the Occupational Safety and Health Administration (OSHA) policies on drug testing. In a recent memo, OSHA clarified its stance that many kinds of drug testing are permissible, including to evaluate the root cause of a workplace accident. However, OSHA emphasized that “the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” Hence, employers must make sure that they do not use drug testing as a tool to discourage reporting of workplace safety incidents.
Unionized employers must contend with another layer of legal compliance. It is a violation of the National Labor Relations Act to establish an employment policy that conflicts with a “mandatory subject of bargaining” in a collective bargaining agreement. It is clear that drug testing after employment is a mandatory subject of bargaining under the NLRA, and therefore an employer cannot test contrary to its collective bargaining agreement. This conclusively precludes a unionized employer from doing any post-employment drug testing without a provision in the CBA permitting it to do so.
For pre-employment testing, the analysis is somewhat more complicated. For applicants not hired through a “union hall” hiring arrangement, pre-employment drug testing is a permissive subject of bargaining, which permits, but does not require, an employer to bargain with a union about the permissibility and terms of such testing. For union hall hiring situations, however, pre-employment drug testing is a mandatory subject of bargaining, which must be agreed between the union and the employer. Therefore, unionized employers in the construction industry will generally need to consult their collective bargaining agreements before testing pre- or post-employment.
The law is rapidly evolving in Minnesota and other states concerning the legality of cannabis as well as employer obligations surrounding testing policies. Employers are rightly concerned with ensuring their workplaces are free of substance-impaired employees who could cause accidents and cause liability for the organization. At the same time, employers should be mindful of the intersection of disability law protections involved in these issues and ensure that policies tolerate legally-permissive substance use as well. Regardless, now is the right time for employers to review their drug testing policies and consider adapting them based on current state and federal law.
Nathan Sellers will be speaking at the Judicial Engagement State Forum – Minnesota at the University of St. Thomas School of Law on Thursday, February 20th from 2:45-3:45 on the panel for Panel II: What Provisions in the Minnesota Constitution Should We Be Enforcing (But Don’t).
For more information go to https://ij.org/event/mnstateforum/
Fabyanske, Westra, Hart & Thomson, P.A. has been honored as a 2020 U.S. News-Best Lawyers “Best Law Firm” with a First Tier ranking in Minnesota in the practice areas of Banking and Finance, Construction, Litigation-Construction, Litigation-Real Estate and Real Estate Law.
Firms included in the 2020 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
Congratulations to the Fabyanske, Westra, Hart & Thomson, P.A. attorneys who have been named 2019 Minnesota “Rising Stars”. They are Hugh Brown, Julia Douglass and Katie Welsch. “Rising Stars” are nominated by their peers and must be 40 years old or under, or have been practicing for 10 years or less. No more than 2.5 percent of the lawyers in the state are named to the list.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2020 FWH&T