MARIJUANA, OPIOIDS, ANDTHE WORKPLACE34th Annual Labor & Employment Law Conference
Christopher M. Trebilcock Daniel A. Krawiec(313) 965-8575 (313) 309-9497
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WHO ARE WE?
Christopher M. TrebilcockDetroit, MIB.A., cum laude, Alma College, Alma, Michigan, 1997J.D., Wake Forest University School of Law, Winston-Salem, North Carolina, 2000
Daniel A. KrawiecDetroit, MIB.A., University of Michigan, Ann Arbor, Michigan, 2005J.D., magna cum laude, University of Miami School ofLaw, Coral Gables, Florida, 2008
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OVERVIEW
The Opioid Crisis
– Who is impacted and
– What is the scope of the problem?
– When did this situation arise?
– Why do we have such a growing problem?
– How do we address the problem?
Marijuana and the workplace
– How did we get here?
– The rights of employers and employees
– Additional considerations
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HOW SERIOUS IS THE OPIOID CRISIS?
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JAMA – MARCH 21, 2018
In mid-August 2016, Cabell County, in thesouthwestern part of the state, made headlineswhen public health officials reported 20 opioidoverdose cases in a 53-hour period
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OVERVIEW
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HOW DID WE GET HERE?
The People of the State of New York, Respondent, v StanXuHui Li, Defendant-Appellant.
Judgment, Supreme Court, New York County (Michael R.Sonberg, J.), rendered December 19, 2014, convictingdefendant, after a jury trial, of 2 counts of manslaughter in thesecond degree, 3 counts of reckless endangerment in the firstdegree, 3 counts of reckless endangerment in the seconddegree, 170 counts of criminal sale of a prescription, 1 count ofscheme to defraud in the first degree, 2 counts of grand larcenyin the third degree, 9 counts of falsifying business records inthe first degree, and 8 counts of offering a false instrument forfiling in the first degree, and sentencing him to an aggregateterm of 10 to 20 years, unanimously affirmed.
Homicide Conviction Upheld for Prescribing Physician
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71% of employers impacted byemployee misuse of legallyprescribed medication
81% lack comprehensive drug-free workplace policy
•Do not include misuse of prescriptionsdrugs or testing of prescription drugs
76% do not offer training onidentifying abuse
41% do not test for syntheticopioids
65% of supervisors do not feelthey can spot the warning signs
•Source: National Safety Council 2017
OPIOIDS & EMPLOYERS BY THE NUMBERS
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EMPLOYERS COST OF OPIOID USE
Workers’ Comp: Prescription painkillers profoundly increase workers’ compensationcosts, increase the length of worker disability and increase work time lost
– $1.5 billion spent on opioids by workers compensation insurers alone
Source: CompPharma Survey 2015
Medical Costs: Opioid prescription abuse also significantly increases the use ofemergency room services, hospitalizations and other medical costs
Productivity: A 2016 study of 337K claims in 25 states by the Workers’ CompResearch Institute found that 55-85 percent of injured workers who missed sevendays or more of work received at least one opioid prescription
– “Opioid abuse costs employers approximately 10 billion from absenteeismalone”
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EMPLOYERS COST OF OPIOID USE
March 29, 2017 Executive Order,President Trump established aCommission chaired by Governor ChrisChristie
The Commission issued its final reportcontaining fifty-six (56) recommendationson November 1, 2017 (plus nine (9) fromthe preliminary report)
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FEBRUARY 27, 2018 BIPARTISAN SENATE BILL‘‘COMPREHENSIVE ADDICTION AND RECOVERY ACT(CARA 2.0 ACT OF 2018)’’
Three-day limit on initial opioid prescriptions
PAs and nurse practitioners prescribe buprenorphine,
Loosen restrictions on physician prescribing buprenorphine
Mandatory use of prescription drug monitoring programs for doctors and pharmacists
Increase civil and criminal penalties for opioid manufacturers if they fail to reportsuspicious orders or don’t do enough to prevent diversion
Create a national standard for addiction recovery housing
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THE REGULATORS ARE COMING. THE REGULATORS ARECOMING.
Expanded opiates testing
– Jan. 23, 2017 – U.S. Department of Health and Human Services (DHHS) andDepartment of Transportation (DOT) published notices to expand federal urinedrug testing programs’ panel to include Schedule II synthetic opioids –hydrocodone, hydromorphone, oxycodone and oxymorphone
– Drug testing labs have notified customers of expanded testing
– Effective Oct. 1, 2017 for federal drug testing
– DOT has issued notice to use old Drug Testing and Custody Control Form (CCF)and procedures until June 30, 2018
– Does it apply to non-federal, non-DOT, private employers?
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OPIOIDS IN THE WORKPLACE & EMPLOYER LIABILITY
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NATIONAL SAFETY COUNCIL
While many companies have Employee AssistancePrograms (EAP), few employees use them.
Many employees don’t understand the value ormay fear negative ramifications if they seek help.
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HOW ARE ADA AND FMLA IMPLICATED WITH DRUGTESTING FOR SYNTHETIC OPIOIDS?
Americans with Disabilities Act (ADA) prohibits discrimination against qualifiedindividuals with a disability. Must provide reasonable accommodation.
Family and Medical Leave Act (FMLA) – Employee entitled to 12 weeks of unpaidleave for their serious health condition or to help a family member with a serioushealth condition
ADA and FMLA do not protect an individual who “currently” engages in illegal use ofdrugs, including the misuse of prescription drugs
Employer can require that they meet same job requirements and standards ofperformance and conduct as all other employees. Employee must abide by Drug andAlcohol Policy.
However, ADA and FMLA may protect employee’s underlying disability or serioushealth condition
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CASE EXAMPLES
Farr v. S.C. Elec. & Gas Co., Case No. 3:16-cv-2668, (D. South Carolina) summaryjudgment partly denied 3/21/18
Ferrari v. Ford Motor Co., 96 F.Supp.3d 668 (E.D. Mich. 2015)
Colby v. Assurant Employee Benefits, 818 F.Supp.2d 365 (D. Mass. 2011)
Lamberson Reynolds v. Commonwealth of Pennsylvania, Case No. 3:09cv1492,(W.D.Penn. 2010)
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TRUMP COMMISSION
One of the 56 recommendations by the Trump Commission is forthe ONDCP, federal partners, the DOL, large employers, EAPs, andrecovery support organizations to develop best practices onsynthetic opioids and the workplace.
This includes providing information to employers to address druguse and ensure that employers are able to seek help for syntheticopioid abuse through EAPs or other means, supporting health andwellness, including recovery and hiring those in recovery.
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WHAT CAN YOU DO?
Recognize the impact thatopioids are having on the
workplace.
Work with health plan providerto evaluate the use of
prescription opioids in workerscomp claims
Update drug-free workplacepolicy
•If federal employer, update to includeexpanded opiate panel
•If DOT, not that expanded opiate panelmay come into effect in June 2018
•If non-Dot, non-Federal, considerwhether you should add testing forexpanded opiate panel
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WHAT CAN YOU DO? (CONT.)
Educate employees regarding pain management, the epidemic anddangers of opioids and alternatives to pain management
Common risks and side effects
Prescriber-patient relationship is confidential, but employees should know that theycan discuss concerns of taking an opioid painkiller with their physician and ask for analternative non-opioid prescription and pain management plan
– Include this education with any work-related injury
Practice safety at work and home
– Safe storage
– Safe disposal
– Don’t mix
– Don’t share
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WHAT CAN YOU DO? (CONT.)
Provide effective EmployeeAssistance Program (EAP) toworkers for opioid addiction, notjust illegal drugs and alcohol
• Review EAP to make sure there iscoverage for issues related to nonmedicalprescription drug use
• Encourage employees to seek help forthemselves, family or co-workers even ifnot sure there is a problem
Provide training to HR andmanagers/supervisors
• How to identify opioid abuse
• Understand the scope of the drug-freepolicy to include testing of opioids andwhat the policy prohibits.
• Promoting EAP services
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WHAT CAN YOU DO? (CONT.)
Provide effective Employee Assistance Program (EAP) to workers for opioidaddiction, not just illegal drugs and alcohol
– Review EAP to make sure there is coverage for issues related to nonmedicalprescription drug use
– Encourage employees to seek help for themselves, family or co-workers even ifnot sure there is a problem
Provide training to HR and managers/supervisors
– How to identify opioid abuse
– Understand the scope of the drug-free policy to include testing of opioids andwhat the policy prohibits
– Promoting EAP services
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LEGALIZATION OF MARIJUANA – A SELECTED HISTORY
1996 – California passes Proposition 215 allowing the medical use of marijuana
1998 - Alaska, Oregon, and Washington legalize medical marijuana
2000 – Hawaii, Colorado and Nevada legalize medical marijuana
2017 – West Virginia becomes the 29th state to legalize medical marijuana
2018 – Presently, nine states – including Alaska, California, Colorado, Maine,Massachusetts, Nevada, Oregon, Vermont, and Washington – plus the District ofColumbia have some form of legal recreational marijuana
Sources: https://medicalmarijuana.procon.org/view.timeline.php?timelineID=000026#1990-1999;https://www.thoughtco.com/states-that-legalized-marijuana-3368391;https://www.burlingtonfreepress.com/story/news/politics/government/2018/01/22/vermonts-legal-marijuana-law-what-you-should-know/1045478001/
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THE LEGAL STATUS OF MARIJUANA IN MICHIGAN
2008 – Michigan voters passed the Michigan Medical Marihuana Act, which allowedqualified patients to use marijuana with their doctor’s approval. Among other things,the law also allowed patients and their caregivers to cultivate and to possess limitedamounts of medical marijuana.
2016 – Governor Rick Snyder signed into law several new medical marijuana bills,including the Medical Marihuana Facilities Licensing Act to license and regulate thegrowth, processing, transport and provisioning of medical marijuana; an amendmentto Michigan Medical Marihuana Act to allow for the manufacture and use ofmarijuana-infused products by qualified patients and the Marihuana Tracking Act anda seed-to-sale tracking system to track all medical marijuana
2018 – On November 6, 2018, voters will decide the fate of another ballot initiative,the Michigan Regulation and Taxation of Marihuana Act, which if passed will, amongother things, legalize possession and sale of up to 2.5 ounces of marijuana forpersonal use and impose a 10% additional excess tax on marijuana sales
Sources: http://www.legislature.mi.gov/(S(wvd11thzlicaw4mpf2nhfcdk))/mileg.aspx?page=getObject&objectName=mcl-333-26423;http://www.mlive.com/news/index.ssf/2016/09/gov_snyder_signs_medical_marij.html;https://www.michigan.gov/documents/sos/Petition_-_Coalition_to_Regulate_Marijuana_Like_Alcohol_572185_7.pdf
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MARIJUANA AND STATE EMPLOYMENT LAW
States have begun to pass laws regulating the impact of legal marijuana use on theprivate employment relationship
Some states offer employees protection from adverse job decisions by theiremployers relating to their legal marijuana use
Other states, while permitting some form of legal marijuana use generally, offer noadditional protections for legal users
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EXAMPLE OF AN EMPLOYEE FRIENDLY STATE
In the State of Arizona:
– Unless a failure to do so would cause an employer to lose a monetary or licensingrelated benefit under federal law or regulations, an employer may not discriminateagainst a person in hiring, termination or imposing any term or condition ofemployment or otherwise penalize a person based upon either:
o The person's status as a [medical marijuana] cardholder
o A registered qualifying patient's positive drug test for marijuana componentsor metabolites, unless the patient used, possessed or was impaired bymarijuana on the premises of the place of employment or during the hours ofemployment
Ariz. Rev. Stat.§ 36-2813
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ADDITIONAL EMPLOYEE FRIENDLY STATES
Other states have passed legislation providing the same or substantially similar newprotections for employees who legally use medical marijuana:
– Connecticut: Conn. Gen. Stat.§ 21a–408p(b)
– Delaware: Del. Code. tit. 16,§ 4905A
– Illinois: 410 Ill. Comp. Stat. 130/40
– Maine: Me. Rev. Stat. tit. 22,§ 2423-E
– Nevada: Nev. Rev. Stat.§ 452A.800
– New York: N.Y. Pub. Health Law§ 3369
– Minnesota: Minn Stat.§ 152.32
– Rhode Island: R.I. Gen. Laws§ 21-28.6-4
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NOFFSINGER V. SSC NIANTIC OPERATING COMPANY, LLC,273 F. SUPP. 3D 326 (D. CONN. 2017)
Facts: A prospective employee was denied employment based upon a positivecannabis result during a pre-employment screening test. The prospective employeewas a qualifying patient under Connecticut’s Palliative Use of Marijuana Act (PUMA)and sued alleging he was illegally discriminated against on that basis. Employerargued no right of private action existed and its conduct was exempt because the lawonly precluded discrimination “unless required by federal law or required to obtainfederal money” and it was a nursing home subject to federal regulation, including theControlled Substances Act.
Held: Prospective employee had a private right of action under PUMA for wrongfuldiscrimination. Employer could not rely on exemption because the mere act of hiringa medical marijuana user does not violate any law.
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EXAMPLE OF AN EMPLOYER FRIENDLY STATE
Nothing in the state of Ohio’s medical marijuana law:
– Requires an employer to permit or accommodate an employee's use,possession, or distribution of medical marijuana
– Prohibits an employer from refusing to hire, discharging, disciplining, or otherwisetaking an adverse employment action against a person with respect to hire,tenure, terms, conditions, or privileges of employment because of that person'suse, possession, or distribution of medical marijuana
– Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy
Oh. Rev. Code.§ 3796.28
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THE MICHIGAN MEDICAL MARIJUANA ACT DOES NOTPROVIDE EMPLOYMENT PROTECTIONS
Casias v. Wal-Mart Stores, Inc., 695 F. 3d 428 (6th Cir. 2012)
Facts:
– An employee suffered from sinus cancer and an inoperable brain tumor;consequently, the employee had a state registry card which permitted him to usemedical marijuana. The employee was injured on the job and received a drug testat the hospital in accordance with company policy. The employee was terminatedafter he tested positive for marijuana in violation of the company’s drug use policy.Employee contended the Michigan Medical Marihuana Act (MMMA) preventedhis termination on that basis because he neither used nor was under theinfluence of marijuana at work.
Held:
– The MMMA does not impose restrictions on private employers. Consequently, itdoes not violate state law to terminate an employee who fails a drug test as aresult of their legal use of medical marijuana.
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UNEMPLOYMENT COMPENSATION
Under many existing employment policies, failure of a drug test is grounds fortermination and could result in the employee losing her right to unemploymentcompensation. However, the law is changing in some jurisdictions.
– Braska v. Challenge Manufacturing Co., 861 N.W.2d 289 (Mich. Ct. App. 2014):An employee who has a medical marijuana card and is discharged consistentwith company policy after failing a drug test may not be denied unemploymentcompensation where there is no evidence the positive test was caused b anythingother than her use of medical marijuana in accordance with the MMMA.
– Beinor v. Indus. Claims Appeals Office. 262 P.3d 970 (Colo. Ct. App. 2011): Anemployee terminated for testing positive for marijuana in violation of anemployer’s zero-tolerance drug policy may be denied unemploymentcompensation even if his marijuana use is allowed under the Coloradoconstitution.
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INTERPLAY BETWEEN ADA AND MEDICAL MARIJUANA
Neither the Americans with Disabilities Act (ADA) nor the Family and Medical LeaveAct (FMLA) protect those currently engaged in the illegal use of drugs
However, employers must be mindful that if they perceive an employee as disabledbased upon her use of medical marijuana, then the employer may be liable underthe ADA
Employers must also be careful to maintain a consistent rationale for an employee’stermination if premised on marijuana use which may arguably be connected to adisability
For example, in EEOC v. The Pines of Clarkston (E.D. Mich. 2015), an employeealleged she was terminated because of her epilepsy. The employer contendedtermination was for violation of its zero-tolerance policy barring marijuana use,including a belief she also sold drugs on the premises. However, the court denied theemployer summary judgment because during the EEOC’s investigation theemployer’s rationale focused on the employee’s ability to perform her duties.
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DRUG TESTING
May 11, 2016 OSHA Publishes New Rule
– “Although drug testing of employees may be a reasonable workplace policy insome situations, it is often perceived as an invasion of privacy, so if an injury orillness is very unlikely to have been caused by employee drug use, or if themethod of drug testing does not identify impairment but only use at some time inthe recent past, requiring the employee to be drug tested may inappropriatelydeter reporting”
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PRACTICAL ADVICE
Maintain updated and clear policies as to whether a zero tolerance approach to illegaldrug use will be followed
Follow the policy consistently
If the policy permits the use of medical marijuana on the employee’s personal time,but the employee engages in other misconduct requiring termination, then documentthe reasons carefully to avoid the appearance of termination based upon anyemployee disability associated with his medical marijuana use
Update your hiring and termination policies to comply with new laws in jurisdictionswhich provide a protected status to medical marijuana users
Consider whether relaxation of policies relating to medical marijuana is foreclosed byfederal requirements applicable to your business
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QUESTIONS?
Christopher M. Trebilcock
(313) 965-8575
Daniel A. Krawiec
(313) 309-9497
THANK YOULegal Disclaimer: This document is not intended to give legal advice. Itis comprised of general information. Employers facing specific issuesshould seek the assistance of an attorney.
