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Marijuana — Colorado

Marijuana Use

On November 6, 2012, Colorado passed Amendment 64 that established limits for the legal use of recreational and medicinal marijuana within in the state.  The amendment permits individuals 21 years or older to possess and consume marijuana. Colorado was one of the first states in the nation to legalize the recreational use of marijuana. Currently, many states have laws allowing for the use and possession of recreational and medical marijuana. (The passage of Amendment 64 does not affect the medical marijuana laws already on the books in Colorado in Amendment 20.)  Federal law, on the other hand, still considers marijuana to be an illegal drug.

Understandably, the discrepancy between federal and state law causes many employers to question how this new law impacts their business, if at all, and what changes they need to make to their existing drug policies. Indeed, Colorado’s marijuana laws could conceivably affect all of the following policies in the workplace:

  • recruiting and hiring
  • drug testing policies and procedures
  • employee discipline and termination
  • discrimination
  • disabilities and reasonable accommodation
  • workplace safety and health
  • federal employees.

However, neither Amendment 64 nor Colorado’s medical marijuana law affords affirmative employee work rights with respect to marijuana. In fact, Amendment 64 specifically exempts employers from accommodating marijuana use in or around the workplace, stating:

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Therefore, the current state of the law (which could change in the near future) is that these new laws do not affect the status quo of dealing with drugs in the workplace, including marijuana.

On-the-job use of marijuana protected

The easiest question to answer with regard to marijuana use is whether employers must now accept the use of marijuana on the job, for medical reasons or otherwise. The answer is unequivocally no. Marijuana is an intoxicating substance that affects an employee’s ability to perform the job - especially in safety-sensitive positions. As a result, as with alcohol use, on-the-job marijuana use is not protected for any reason.

Off-duty conduct for recreational and medical marijuana use

In Colorado, it is generally unlawful for an employer to terminate an employee for engaging in “lawful” activity off the premises of the employer during non-working hours. As a result, employees could conceivably use this statute to argue that because marijuana use is now legal under Colorado law, an employer cannot prohibit an employee from engaging in such use while the employee is off duty.

However, employers should note several important facts with respect to their ability to drug test and/or regulate employees’ marijuana use under Colorado law. First, marijuana possession and use remains illegal under the federal Controlled Substances Act. In fact, in the wake of Colorado’s legalization, the U.S. Attorney’s Office stated the U.S. Department of Justice’s enforcement of the marijuana laws remains unchanged, and that “[i]n enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance.”  Consequently, even with the passage of Amendment 64, recreational marijuana use may not be a “lawful” off-duty activity under Colorado’s statute.

Second, the lawful off-duty conduct statute is subject to two exceptions:

  1. where the restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee
  1. where the restriction is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

Both of these provisions could potentially allow for the prohibition of recreational use of marijuana by a company’s employees depending on the particular position at issue.

Finally, at least three Colorado court decisions have held that the use of medical marijuana does not constitute lawful off-duty conduct and that employees cannot claim protection under the statute:

  • In Beinor v. Industrial Claim Appeals Office, the Colorado Court of Appeals affirmed the denial of unemployment benefits to a claimant and concluded that, although the Colorado Constitution precluded a claimant from being criminally prosecuted for using marijuana for medical purposes, “it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer’s express zero-tolerance drug policy.”
  • Similarly, in Hall v. Direct Checks Unlimited, the El Paso County District Court found that using medical marijuana does not qualify as “lawful” off-duty conduct because medical marijuana was not per se legal in Colorado.
  • Most notable is a decision before the Colorado Supreme Court, Coats v. DISH Network. In this case, the Colorado Court of Appeals specifically ruled in April 2013 that Colorado’s lawful off-duty conduct statute did not apply to medical marijuana use. In this precedent setting decision, the court upheld the firing of a quadriplegic man for off-the-job medical marijuana use that was necessary for the employee’s pain management. The court ruled that because the statute does not define “lawful” as applying to only state law, the activity must be legal under both state and federal law in order for the statute to apply. Although the case addressed medical marijuana, this rationale would also likely extend to the use of marijuana for recreational purposes.

    In 2015, the Colorado Supreme Court upheld the prior rulings. Thus, the current state of the law gives employers full authority to terminate an employee for testing positive for marijuana, even if use was during non-working hours and for medical reasons. The highest courts in California, Montana, Washington, and Oregon have also heard similar cases, and have consistently ruled in favor of the employers. The courts have concluded that medical marijuana laws only protect patients from criminal penalties, not from termination by their employers.

Federal employees

There is even further support for the position that federal employees are prohibited from marijuana use despite Colorado’s recent legalization. The clear prohibition of federal employees using marijuana was established in a 1986 executive order, known as the “Drug-free federal workplace.”  According to the order, “federal employees are required to refrain from the use of illegal drugs.”  Because marijuana is still illegal under federal law, the effect of the order is as true today as when it was written.

Accommodating medical marijuana for disabilities

Amendment 20, which legalized the use of medical marijuana in Colorado, explicitly says employers are not required to “accommodate the medical use of marijuana in any workplace.” Likewise, Amendment 64 specifically states that employers are not required to accommodate the use of marijuana. Because of marijuana’s continuing illegality under federal law, the American’s with Disabilities Act (ADA) also does not require accommodation for medical marijuana use.

Marijuana and drug-testing policies

Drug testing for marijuana is still permissible in Colorado, and employers can take action against employees found to be in violation of carefully fashioned drug policies. Still, though the landscape of regulating drug use has not yet shifted in the wake of marijuana’s decriminalization, employers should be very careful with how they approach drug regulation moving forward. Specifically, the following steps are recommended:

  • Drug testing plans should be specific in their terms and should explain the following:
    • exactly what substances are not allowed
    • when the employer can and will test for drug use
    • what the consequences of a positive test entail.
  • This explanation should include a specific provision clarifying that marijuana is considered an illegal drug under federal law, the Controlled Substances Act, and will thus be treated as an illegal substance by the employer.
  • Ensure drug policies and their implementation are consistent with Colorado’s anti-discrimination statutes.
  • Consistently follow stated procedures, especially if a zero-tolerance policy is in effect.
  • Clearly state that refusal to take a drug test will also result in termination of employment.

Boulder

Drug testing in Colorado is not highly regulated, and there are no Colorado statutes related to drug testing policies and procedures. However, employers operating in Boulder, Colorado, should be familiar with local ordinances that closely regulate drug testing by employers. These regulations are set forth in Boulder City Ordinance No. 5688, Title 12, Chapter 12.3, Drug Testing, and can be found at:

Federal drug-free workplace requirements

Requirements

Under the federal Drug-Free Workplace Act (enacted in 1988 and modified in 1994), employers with federal contracts of $250,000 or more (or any employer receiving a federal grant of any size) must take several steps related to controlled substances in the workplace. The law also applies to federal grantees and individuals with federal contracts but no subcontracts or subgrantees. Although drug testing is not mandated by this law, the employer must do at least the following:

• certify to the contracting or granting agency that the employer will meet specified requirements to ensure their workplace is free of illegal drugs

• establish a formal drug-free workplace policy statement clearly prohibiting the unlawful manufacture, distribution, or use of controlled substances in the workplace and specify the actions that will be taken against employees for violations of the policy (no specific format for the policy is given)

• include in the policy a notice to employees that, as a condition of employment on the government contract, the employees will:

  • abide by the terms of the policy
  • notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five calendar days after such conviction

• publish the policy and provide a copy to each employee to be engaged in the performance of the contract

• establish a drug-free awareness program to inform employees about:

  • the dangers of drug abuse in the workplace
  • the employer’s policy of maintaining a drug-free workplace
  • any available drug counseling, rehabilitation and employee assistance programs
  • the specific penalties that may be imposed upon employees for drug abuse violations

• notify the government contracting or granting agency of any criminal convictions of employees within 10 days of the employer receiving notice

• impose a sanction on any employee who is so convicted or must require satisfactory participation in a drug abuse assistance or rehabilitation program

• make a good faith effort to maintain a drug-free workplace by complying with these requirements.

For more information see:

  • https://webapps.dol.gov/elaws/drugfree.htm

Employer penalties

The employer may have a federal contract or grant suspended or terminated and may be prohibited from further participation in the federal procurement process for up to five years for violation of this act. Sanctions can be triggered if the organization falsely certifies that it abides by the act, fails to comply with the specifics of the act or has such a large number of employees convicted of illegal drug activity that it appears the firm has not made a good-faith effort to maintain a drug-free workplace.

Department of Transportation drug regulations

Testing procedures for the transportation industry

For five DOT agencies, there are DOT-wide regulations dealing with drug and alcohol testing procedures (such as specimens, laboratories, etc.) and dealing with employee referral, evaluation and treatment requirements. These regulations are contained in Procedures for Transportation Workplace Drug and Alcohol Testing Programs. See:

  • https://www.transportation.gov/odapc

for additional information from the DOT’s Office of Drug and Alcohol Policy and Compliance. In addition, individual DOT agencies have supplemental regulations regarding that particular agency’s rules on drugs, alcohol and mandatory tests for covered employees.

FMCSA regulations for drivers

The supplemental drug and alcohol testing regulations from the Federal Motor Carrier Safety Administration (FMCSA), which apply to drivers in interstate commerce, are contained in 49 C.F.R. Part 382 (Controlled Substances and Alcohol Use and Testing). In Colorado, most owners and drivers of commercial motor vehicles that are operated on the public highways of the state while engaged in commerce are subject to the rules and regulations contained in 49 C.F.R. Part 382. Operators of a farm vehicle controlled and operated by a farmer and used to transport agricultural products, farm machinery, or farm supplies, are exempt so long as the farm vehicle is not used in the operations of a for-hire motor carrier, and it is used within 150 miles of the farmer’s farm. Below is a detailed summary of the requirements for covered driver employees.

Persons covered by regulations

The FMCSA regulations cover a driver and all employers of a driver, who operates a commercial motor vehicle in commerce and who is required to hold a CDL (commercial driver’s license). This refers to a vehicle which:

• is a straight vehicle that has a gross vehicle weight rating or gross vehicle weight of 26,001 or more pounds, whichever is greater

• is a combination vehicle that has a gross combination weight rating or gross combination weight of 26,001 or more pounds, whichever is greater, inclusive of a towed unit with a gross vehicle rating or gross vehicle weight of more than 10,000 pounds, whichever is greater

• is designed to transport 16 or more passengers, including the driver

• is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Materials Regulations.

Information provided to drivers

The employer must distribute its written substance-abuse policy and educational materials to drivers and the employer must retain a signed acknowledgment-of-receipt of those materials. The materials must be provided to each driver prior to the start of alcohol and controlled substances testing, and to each driver subsequently hired or transferred into a position requiring them to drive a commercial vehicle. The employer must also provide written notice of the availability of this information to representatives of any employee organizations. The materials provided to drivers must include the following information:

• person designated by the employer to answer driver questions about the materials

• categories of drivers who are subject to the regulatory provisions

• safety-sensitive functions during which the driver is required to be in compliance

• driver conduct that is prohibited

• circumstances under which a driver will be tested for alcohol and/or controlled substances under the regulations

• procedures that-will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing processes, safeguard the validity of the test results and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions

• the requirement that a driver submit to alcohol and controlled substances tests administered in accordance with the regulations

• what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences

• the consequences for drivers found to have violated the regulatory prohibitions, including the requirement that the driver be removed immediately from safety-sensitive functions and the required referral, evaluation and follow-up procedures

• the consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04

• information concerning:

  • the effects of alcohol and controlled substances use on an individual’s health, work and personal life
  • signs and symptoms of an alcohol or a controlled substances problem (the driver’s or a co-worker’s)
  • available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to any employee assistance program and/or referral to management

• the requirement that the following personal information collected and maintained under the regulations must be reported to the FMCSA Commercial Driver’s License Drug and Alcohol Clearinghouse:

  • a verified positive, adulterated or substituted drug test result
  • an alcohol confirmation test with a concentration of 0.04 or higher
  • a refusal to submit to any test required by the regulations
  • an employer’s report of actual knowledge of on duty alcohol use, pre-duty alcohol use, alcohol use following an accident and controlled substance use
  • a substance abuse professional report of the successful completion of the return-to-duty process
  • a negative return-to-duty test
  • an employer’s report of completion of follow-up testing.

Safety sensitive functions

The FMCSA drug and alcohol regulations govern drivers anytime they are engaged in “safety sensitive functions” which include:

• all time at an employer or shipper plant, terminal, facility or other property or on any public property, waiting to be dispatched, unless the driver has been relieved from duty

• all time inspecting equipment or servicing or conditioning any commercial motor vehicle at anytime

• all time spent at the driving controls of a commercial motor vehicle in operation

• all time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth

• all time loading or unloading a vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle or giving or receiving receipts for shipments loaded or unloaded

• all time repairing, obtaining assistance for or remaining in attendance upon a disabled vehicle.

Prohibited conduct

The conduct specifically prohibited by the FMCSA regulations include the following:

• Drug use

No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any Schedule I controlled substance. No driver may report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non-Schedule I controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle. An employer having actual knowledge that a driver has used a controlled substance must not permit the driver to perform or continue to perform safety-sensitive functions.

• Positive test for drugs

No driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive for controlled substances or has an adulterated or substituted specimen. An employer having knowledge that a driver has tested positive or has adulterated or substituted a specimen must not permit the driver to perform or continue to perform safety-sensitive functions

• Alcohol concentration

No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. An employer having knowledge that a driver has such an alcohol concentration must not permit the driver to perform or continue to perform safety-sensitive functions

• On-duty alcohol use

No driver shall use alcohol while performing safety-sensitive functions. An employer having actual knowledge of such use must not permit the driver to perform or continue to perform safety-sensitive functions

• Pre-duty alcohol use

No driver shall perform safety-sensitive functions within four hours after using alcohol. An employer having actual knowledge of such use must not permit a driver to perform or continue to perform safety-sensitive functions

• Refusal to submit to a test

No driver shall refuse to submit to a pre-employment-controlled substance test, a post-accident alcohol or controlled substance test, a random alcohol or controlled substance test, a reasonable suspicion alcohol or controlled substance test, a return-to-duty alcohol or controlled substance test, or a follow-up alcohol or controlled substance test. An employer must not permit a driver who refuses to submit to a test to perform or continue to perform safety-sensitive functions.

• Alcohol use following accident

No driver required to take a post-accident alcohol test under the regulations shall use alcohol for eight hours following the accident or until they undergo a post-accident alcohol test, whichever occurs first.

Candor with drivers

When an employer seeks a drug test from a driver, the employer must tell the driver whether the test is required by the FMCSA regulations. If the employer seeks the test under some other law or regulation, the employer must not falsely represent that the test is required by the FMCSA regulations.

Mandatory testing circumstances

The employer is required to conduct testing of drivers in each of the following circumstances:

• Pre-employment testing

A driver must undergo a drug test prior to the first time they begin performing safety-sensitive functions for an employer.

There is a limited exception to this rule when a new driver participated in a controlled substances testing program under the regulations within the previous 30 days and:

  • was tested for controlled substances within the six months prior to their application for employment or participated in the random controlled substances testing program for the 12 months prior to their application for employment
  • the employer ensures no prior employer of the driver has records of a violation of the regulations within the previous six months and gathers detailed information about the testing programs in which the new driver participated.

Employers are not required to conduct pre-employment alcohol testing. If an employer elects to conduct pre-employment alcohol testing, it must:

  • conduct a pre-employment alcohol test before the first performance of safety-sensitive functions by every covered employee
  • treat all safety-sensitive employees performing safety-sensitive functions the same for purposes of pre-employment alcohol testing
  • conduct the testing after making a contingent offer of employment or transfer, subject to the driver passing the test
  • conduct the testing in accordance with the regulations
  • not allow a covered employee to begin performing safety-sensitive functions unless the result of the test is an alcohol concentration of less than 0.04.

• Post-accident

As soon as practicable after an accident involving a commercial vehicle operating on a public road in commerce, an employer must test for alcohol and controlled substances each of its surviving drivers who was performing safety-sensitive functions with respect to the vehicle and either:

  • the accident involved the loss of human life
  • the driver received, within eight hours of the accident for an alcohol test or within 32 hours of the accident for a controlled substances test, a citation for a moving traffic violation arising from the accident and the involved accident either:
  • bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident
  • one or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

If a required alcohol test is not conducted within two hours after the accident, the employer must prepare and save a record stating the reasons the test was not promptly administered. If the test is not conducted within eight hours, the employer must stop attempting to obtain a test and prepare and save the same record.

If a required drug test is not conducted within 32 hours after the accident, the employer must prepare and save a record stating the reasons the test was not promptly administered.

• Random testing

The employer is required to randomly test drivers for drugs and alcohol. Annually, the employer must test randomly at the following rates:

  • For drugs – a number of tests equal to 50% of the average number of driver positions.
  • For alcohol – a number of tests equal to 10% of the average number of driver positions.

The random drug and alcohol testing rates are subject to change based on the number of positive tests reported throughout the industry. The current testing rate for all DOT agencies is available at:

The employer may use any scientifically valid selection method (for example, a random number table or a computer-based random number generator,) so long as each driver has an equal chance of being tested each time selections are made. Random selection tests must be unannounced and must be spread reasonably throughout the calendar year

• Reasonable suspicion

Testing is required whenever the employer has reasonable suspicion to believe that the driver violated the prohibitions described above. Reasonable suspicion testing is permitted only when a trained supervisor or company official has made specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. For drugs, the observations may also include indications of the chronic use and withdrawal effects of drugs.

The reasonable suspicion for alcohol testing must be based on observations made during, just preceding or just after the period of the workday that the driver is subject to the regulations.

Within 24 hours of the observed behavior giving rise to an alcohol or controlled substances reasonable suspicion test, or before the result of the test is released, whichever is earlier, the employer must make a written record of the observations leading to the test. The record must be signed by the supervisor or company official who made the observations.

If a required alcohol test is not conducted within two hours after the determination of reasonable suspicion, the employer must prepare and save a record stating the reasons the test was not promptly administered. If the test is not conducted within eight hours, the employer must stop attempting to obtain a test and prepare and save the same record

• Return-to-duty

Testing and follow-up testing are also required in accordance with the referral, evaluation and treatment provisions in the regulations at 49 C.F.R. Part 40, Subpart O, which are described later in this chapter. Before returning to duty to perform safety-sensitive functions after violating the above rules, the driver must submit a return-to-duty alcohol test below .02 if the conduct involved alcohol or a negative controlled substance test if the conduct involved a controlled substance. A substance abuse professional must establish a written follow-up testing plan, which shall, at a minimum, require the driver to be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the driver’s return to safety-sensitive functions.

Test methods

Testing procedures include the following features:

• For drugs – an initial drug urinalysis followed by a confirmatory drug test, conducted by a laboratory certified by the Department of Health and Human Services (HHS) under the National Laboratory Certification Program for all testing required under the regulations.

• For alcohol – an initial saliva and/or breath screening by a screening test technician or a breath alcohol technician using an approved screening device, with confirmatory breath test by a breath alcohol technician utilizing an evidential breath test device.

• A medical review officer (MRO) serves as an independent and impartial “gatekeeper” and advocates for the accuracy and integrity of the drug testing process. The MRO reviews all positive and negative results and reports the results of controlled substances tests to employers.

Consequences related to substance use

In general, disciplinary action is governed by company policy, not FMCSA regulations. However, the minimum required consequences for a driver violating the FMCSA regulations are:

• Immediate removal from performance of safety-sensitive functions (the employer must act upon receiving the initial report of a verified positive result and must not wait to receive the written report or the result of a split specimen test)

• referral to a substance abuse professional (SAP) for evaluation, education and/or treatment as recommended and further testing (the employer must provide to the employee a listing of SAPs readily available to the employee and acceptable to the employer, including the name, address and telephone number of the SAPs)

• return-to-duty testing and follow-up testing if the driver is not discharged

• alcohol tests between .02 and .04 are governed by a separate regulation and do not trigger the mandatory referral process for evaluation. Instead, if an alcohol test result is .02 or greater but less than .04, the driver must be removed from performing safety-sensitive functions and cannot resume such functions until the start of the driver’s next regularly scheduled duty period, but not less than 24 hours following administration of the test.

Driver admission of alcohol or drug use

Employers may adopt a voluntary self-identification program or policy allowing drivers to report their own alcohol misuse or drug use. Adopting a qualifying program or policy would allow a driver, under certain circumstances, to voluntarily report their alcohol misuse or drug use. To be a “qualified” program or plan under the regulations, the program or plan must:

• prohibit the employer from taking adverse action against a driver if the driver’s admission is within the parameters of the program or policy

• allow the employee the opportunity to seek evaluation, education or treatment to address the drug or alcohol problem

• permit the employee to return to safety sensitive duties only after completing an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert

• ensure the employee does not participate in a safety sensitive function until the employee undergoes a return to duty test indicating an alcohol concentration of less than 0.02 or a negative return to duty-controlled substance test.

The employer’s program or policy may incorporate employee monitoring and include non-DOT follow-up testing.

If an employer adopts a qualifying voluntary self-identification program or policy, and a driver admits to alcohol misuse or drug use, they are not subject to the referral, evaluation and treatment requirements of the regulations, so long as they:

• make the admission in accordance with the employer’s written voluntary self-identification program or policy

• are not self-identifying to avoid testing

• make the admission prior to performing a safety sensitive function (i.e., prior to reporting for duty)

• do not perform a safety sensitive function until they have been evaluated and have successfully completed education or treatment requirements in accordance with the employer’s self-identification program guidelines.

Required training for supervisors

All persons designated to supervise drivers must receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training, which must include the physical, behavioral, speech and performance indicators of probable alcohol misuse and use of controlled substances, will be used by those supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing. Supervisory personnel are not required to undergo recurrent training.

Information from previous employers

The FMCSA regulations require the employer to ask the driver-applicant’s previous employers for specific information regarding previous tests for alcohol and controlled substances. According to the driver-applicant’s written authorization, the employer must inquire about the following information from the driver’s previous employers during the preceding two years from the date of application:

• FMCSA alcohol test results of .04 or greater

• FMCSA verified positive controlled substance test results

• refusals to be tested (including verified adulterated or substituted drug test results)

• other violations of the FMCSA drug and alcohol testing regulations

• with respect to an employee who violated a DOT drug and alcohol regulation, documentation of the employee’s successful completion of the return-to-duty requirements (including follow-up tests).

If feasible, the above information must be obtained and reviewed by the employer before the driver first performs safety-sensitive functions. If this is not feasible, the information must be obtained and reviewed as soon as possible. However, the employer must not permit the driver to perform safety-sensitive functions after 30 days unless the employer has obtained the information or made and documented a good faith effort to do so.

The regulations require employers to provide to each applicant a written consent for the release of the information from the previous employer and requires the applicant to provide such consent to be considered for employment. The employer must maintain (for three years) a written, confidential record of the information obtained or of the good-faith efforts made to obtain the information.

If the information from previous employers shows violations of FMCSA regulations, the employer may not allow the driver to perform safety-sensitive functions without obtaining information on subsequent compliance with the return-to-duty requirements.

The employer must also ask each applicant whether there are any positive test results or refusals to be tested, on any pre-employment drug or alcohol test administered in the past two years by a transportation employer to which the employee applied for safety-sensitive work covered by the DOT drug and alcohol testing rules. If the applicant admits to such positive tests or refusals to be tested, the employer must not use the applicant for safety-sensitive functions until and unless the applicant documents successful completion of the return-to-duty process.

The federal DOT, Office of Drug and Alcohol Policy and Compliance, has noted that several states have passed initiatives to permit the use of marijuana for so-called “recreational purposes.” In an updated compliance letter dated May 27, 2014, the DOT stated: “We want to make it perfectly clear that these state initiatives will have no bearing on the department of Transportation’s regulated drug testing program.” The DOT noted that it does not authorize the use of Schedule I drugs, including marijuana, for any reason. In another statement, the DOT noted that its drug and alcohol testing regulations do not authorize “medical marijuana” recommended by a physician in accordance with state law, to be a valid medical explanation for a transportation employee’s positive drug test result.

As a consequence, the DOT has directed medical review officers not to verify a drug test as negative based upon learning that the employee used “recreational marijuana” or “medical marijuana” when states have passed marijuana initiatives. The DOT noted that marijuana remains a drug listed in Schedule I of the Controlled Substances Act and that marijuana remains unacceptable for any safety-sensitive employee subject to drug testing under the DOT drug testing regulations. The DOT has also directed medical review officers not to accept an assertion of consumption or other use of a hemp or other non-prescription marijuana-related product as a basis for verifying a negative marijuana test because “consuming or using such a product is not a legitimate medical explanation.”

The DOT also noted that even though the U.S. Department of Justice issued guidelines for its federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana,” those guidelines have no bearing on the DOT’s regulated drug testing program. The DOT categorically stated: “We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.”

Americans with Disabilities Act

Although the ADA is not primarily directed at drug and alcohol use or testing, the statute has special provisions addressing drug and alcohol abuse. Employers, therefore, must take the ADA into account when dealing with employee drug and alcohol use and when drafting drug-free workplace policies.

One important provision in the ADA specifically excludes from protection individuals who are “currently engaging in the illegal use of drugs.” On the other hand, former rehabilitated drug abusers and individuals “erroneously regarded as” drug abusers, may be considered disabled under the ADA.

Another provision of the ADA exempts drug tests from the law’s definition of “medical examination.” However, because alcohol tests are considered medical examinations, alcohol tests are subject to the ADA’s requirements related to medical examinations.

In other provisions, the ADA places restrictions on employers in connection with seeking medical information from employees and applicants. The law also requires employers to keep such medical information confidential.

The Equal Employment Opportunity Commission (EEOC) has made it clear that although marijuana may be prescribed for a medical reason, it does not fall within the coverage of ADA. In a September 9, 2013, letter, Peggy R. Mastroianni, EEOC legal counsel, wrote “because the ADA does not protect individuals who are currently engaging in the illegal use of drugs, asking applicants about current illegal drug use is not a disability-related inquiry.” Ms. Mastroianni wrote “questions asking applicants about their current use of illegal drugs or illegal use of non-prescription drugs…would not violate the ADA. However, questions about past addiction to illegal drugs or questions about whether an applicant has ever participated in a rehabilitation program are disability-related inquiries because past drug addiction generally is a disability.” Ms. Mastroianni’s letter noted that her letter was serving as an informal discussion of the issue and did not constitute an official opinion of the EEOC.

The EEOC’s position in litigation recently has been that if an employee discloses a medical reason for taking marijuana and the employer terminates the employee, not for the marijuana use, but for the underlying disability, then the employer has violated the ADA.

Illegal use of drugs

The ADA specifically provides that any employee or job applicant who is currently engaging in the illegal use of drugs is not a “qualified individual with a disability.” However, because of the broad definition of that phrase, qualified individuals with a disability may include:

• individuals who have completed a drug rehabilitation program or otherwise been successfully rehabilitated and are no longer engaging in the illegal use of drugs

• individuals who are participating in a rehabilitation program and no longer engaging in the illegal use of drugs

• individuals who are erroneously regarded as engaging in illegal use of drugs.

An individual’s past illegal drug use will make that person an individual with a “disability” only if the rehabilitated drug user’s past use substantially limited the person’s ability to perform at least one major life activity. Therefore, “casual” users and former occasional users of illegal drugs are unlikely to be entitled to the ADA’s protection.

In light of these principles, employers must exercise care not to discriminate against former illegal drug addicts, although employers are permitted to decline to hire or continue to employ individuals currently engaging in the illegal use of drugs. This raises the question as to what does it mean to be “currently engaging in the illegal use of drugs?” Current use includes:

• an individual who tests positive on a drug test

• illegal use of drugs that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem

• “current” is not limited to the day of use or recent weeks or days but is determined on a case-by-case basis.

Courts have also been willing to find that drug use within several weeks or even a few months constituted “current” use.

Alcohol abuse

Individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic. Also, a person erroneously regarded as being an alcoholic may qualify for the ADA’s protection.

As with any individual claiming to be a person with a disability, alcoholics must show that their alcoholism substantially limits their ability to perform a major life activity. In any event, employers are free to discharge, discipline or deny employment to an alcoholic whose use of alcohol adversely affects his or her job performance to the extent that the person is no longer qualified to perform the job. Again, the Technical Assistance Manual provides a useful example:

“If an individual who has alcoholism often is late to work or is unable to perform the responsibilities of his or her job, an employer can take disciplinary action on the basis of the poor job performance and conduct. However, an employer may not discipline an alcoholic employee more severely than it does other employees for the same performance or conduct.”

By contrast, an alcoholic who has not violated work rules and who asks for time off for rehabilitation most likely is entitled to such an accommodation under the employer’s ADA duty to make reasonable accommodations to an individual with a disability.

The ADA provides that an employer may hold an alcoholic to the standards of performance and behavior applied to other employees. Also, an employer may prohibit employees from reporting to work under the influence of drugs and alcohol and alcoholic employees are not exempt from this rule. However, the employer may not discipline alcoholic employees more severely than non-alcoholic employees who come to work with alcohol in their systems. As always, a consistently applied employment policy is essential to minimize potential liability.

Policies and testing

The ADA permits employers to implement drug testing, adopt drug-free workplace policies and prohibit employees from engaging in illegal use of drugs. Thus, employers may prohibit employees from using drugs and alcohol while at work, from coming to work under the influence of such substances and from working with any number of illegal drugs in their systems. Employees who violate the employer’s drug-free workplace rules may be disciplined or discharged and this does not violate the ADA as long as such disciplinary action is applied to both disabled and non-disabled employees. Even so, employers must ensure they are complying with any other laws applicable to drug or alcohol tests of employees.

Because tests for illegal use of drugs are excluded from the definition of “medical examination,” the ADA allows employers may require a drug test at any time. An employer who does pre-employment drug testing, however, may not require an applicant to disclose medication he is taking unless the applicant first fails the drug test. Even though the ADA permits drug tests, employers must ensure they are complying with any other laws applicable to drug tests of employees.

In contrast, an alcohol test is a medical examination under the ADA, so the ADA’s restrictions on medical examinations apply to alcohol tests. Therefore, an employer may not require a pre-employment alcohol test until a conditional offer of employment has been made to the applicant (and only if such tests are required of all applicants offered jobs in that job classification). Similarly, after an employee has been employed, random testing for alcohol is prohibited unless an applicable law, such as DOT regulations, requires random testing for alcohol. Current employees may be tested for alcohol, as with other medical tests, when the test is job-related and consistent with business necessity (for example, when the employer has objective evidence of alcohol use during work).

Because the status of drugs differs from the status of alcohol under the ADA, employers may implement a zero-tolerance standard for drugs (prohibiting any illegally used drugs “in the employee’s system”), but employers should generally follow an “under the influence” standard for alcohol. To avoid ambiguity, it is helpful to define “under the influence” (such as a .04 blood alcohol level from DOT rules or another level such as the state’s DUI standard – .08 blood alcohol level in Colorado). Employers should also reserve the right to take disciplinary action for lesser amounts of alcohol in appropriate circumstances.

Any medical information that an employer gleans from a drug test regarding the medical history or condition of an employee is subject to the ADA’s confidentiality provisions. For example:

• medical information may not be used for any purpose inconsistent with the goals of the ADA

• such medical information may not be used to screen out any individual with a disability unless the employer can show that the decision was job-related and consistent with business necessity

• such medical information must be kept confidential and in a separate medical file.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) has an impact on drug-free workplace programs because the FMLA permits eligible employees to take job-protected leave in order to receive treatment for substance abuse or to care for an immediate family member receiving treatment for substance abuse. Employees covered by the FMLA are those who:

  • work at a site where the employer has 50 or more employees within a 75-mile radius
  • have worked for the employer for at least 12 months
  • have worked at least 1,250 hours for the employer in the past 12 months.

An employee with a substance-abuse problem may be eligible for FMLA leave if the employee’s condition constitutes a “serious health condition” within the meaning of the statute and the regulations. A serious health condition is an illness, injury, impairment or physical or mental condition that involves either:

  1. inpatient care (an overnight stay) in a hospital, hospice or residential medical-care facility
  1. continuing treatment by a healthcare provider.

Under the regulations, a condition involving such “continuing treatment” can exist in several different ways summarized briefly as follows:

  • an incapacity of more than three consecutive calendar days requiring healthcare treatment on two or more occasions or healthcare treatment on one occasion which results in a regimen of continuing treatment
  • an incapacity due to a chronic serious health condition which requires periodic visits for treatment, which continues over an extended period of time, and which may cause episodic periods of incapacity
  • a permanent or long-term incapacity for which treatment may not be effective
  • absence for multiple treatments either for restorative surgeries or for certain conditions requiring multiple medical interventions such as chemotherapy, radiation, physical therapy, dialysis, etc.

An employee seeking rehabilitative services for drug addiction or alcoholism may have a “serious health condition” under the FMLA. Nevertheless, the regulations recognize two important limitations on such an employee’s ability to take job-protected FMLA leave:

  1. FMLA leave is time off for treatment, not time off due to the substance abuse itself. Thus, the regulations provide: Substance abuse may be a serious health condition if the conditions [set forth above] are met. However, FMLA leave may only be taken for treatment for substance abuse by a healthcare provider or by a provider of healthcare services on referral by a healthcare provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”
  2. A second rule limiting the employee’s right to FMLA leave provides that an employer who consistently enforces a nondiscriminatory policy against substance abuse may discharge an employee for a violation of that policy even if the employee has requested FMLA leave. Thus, the regulations provide:

Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a nondiscriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy an employee may be terminated whether or not the employee is presently taking FMLA leave. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

The principles quoted above are applied in an interesting opinion letter published by the Director of the Division of Policy and Analysis in the U.S. Department of Labor’s offices responsible for administering the FMLA. The opinion letter answers four scenarios described by a county employer in questions to the DOL:

Scenario 1

An employee comes up for random testing and tests positive for illegal narcotics and the employee has never requested FMLA. Under the county’s policy this employee is subject to immediate termination. FMLA does not require the county to allow the employee the opportunity to seek treatment and be reinstated.

Scenario 2

Either the [County] Sheriff or the State’s Attorney receives information that an employee is using illegal narcotics. As a result, the employee is required to submit to a drug test under the “for cause” provisions of the testing policy. The employee tests positive for illegal narcotics and the employee has never requested FMLA. Under the provisions of the testing policy, the employee is subject to immediate termination. FMLA does not require the county to allow the employee the opportunity to seek treatment and be reinstated.

Scenario 3

An employee comes forward and admits to the employer that he or she is addicted to drugs and indicates that a doctor is placing the employee in rehabilitative treatment. You state that there is an ongoing debate within your office as to whether such an employee should be subject to immediate termination under the county’s policy. In any event, you ask if the county’s policy so provides for immediate termination in this instance, would FMLA require the county to allow the employee the opportunity to seek treatment and be reinstated? The answer is “no.”

Scenario 4

An employee who tests positive for the presence of an illegal narcotic is granted FMLA leave, and the terms and conditions of reinstatement include a requirement that the employee submit to weekly testing. If the employee tests positive a second time and has either not used all of his or her allotted FMLA leave time or has used all the allotted FMLA leave time, you ask whether the FMLA requires the county to allow the employee the opportunity to seek treatment and be reinstated for a second time. The county’s policy could provide for termination of employment in either case, whether or not the employee has exhausted his or her FMLA leave allotment in the 12-month period.

Although the regulations and opinions cited above are helpful, employers must exercise caution in dealing with leave requests of employees with substance-abuse problems. For example, if the employee in Scenario 3 above had reported an alcoholism problem (not illegal drug use) and had requested treatment before engaging in any violation of the employer’s substance-abuse policy, the employer would appear to have no basis to deny FMLA leave (assuming the employee was otherwise qualified for FMLA leave) and the employer could be required to grant temporary leave as a reasonable accommodation under the ADA even if FMLA leave was not available to the employee.

Drug and alcohol testing

Federal law does not prevent an employer from issuing a pre-employment drug test. In fact, in cases of certain types of employees, such as DOT-regulated truck drivers, testing is required. It is not a violation of the ADA for employers to use drug tests to find out if applicants are currently using illegal drugs or legal drugs in an illegal manner. Under the ADA, a drug test is not considered a “medical examination” and therefore is not prohibited in the pre-employment stage. Alcohol tests, however, are considered medical examinations under the ADA. Therefore, an employer may test for alcohol use only after making a conditional offer of employment. An individual who abuses alcohol may be considered disabled if he is a recovering alcoholic. However, an employer can withdraw the offer based on the test result if failing the alcohol test establishes that the applicant is unable to perform his or her job.

The ADA specifically provides that any applicant who is currently an illegal drug user is not a qualified individual with a disability. However, people who have been rehabilitated and do not currently use drugs illegally may be protected by the ADA.

Like many employment actions, drug testing can also trigger Title VII claims, which prohibit discrimination on the basis of race, color, religion, sex or national origin. If drug tests are not administered equally, it could generate a claim of discrimination on the basis of one of these protected categories. Accordingly, employers should implement drug testing policies that are administered across the board, without regard to race or any other protected characteristic. Ultimately, whatever policy is in place must be applied fairly and equally to all employees.

Federal Drug-Free Workplace Act

Employers who receive federal contracts for $100,000 or more are subject to the federal Drug-Free Workplace Act. The contractor/employer must provide all employees a policy stating that illegal drug use is prohibited in the workplace and detail the consequences of a violation. Also, the employer must establish a drug-awareness program to educate employees about the drug-free workplace policy, the dangers of drug abuse, the availability of counseling programs and the penalties for violating the policy.