The U.S. Department of Justice reached a January 31, 2019 settlement of an American with Disabilities Act (“ADA”) Title III complaint against health care provider Selma Medical Associates relating to provision of medical services to an individual with opioid use disorder (“OUD”).  The settlement is notable for health care providers and employers as it makes clear that DOJ considers OUD as a disability under the ADA thereby triggering the full panoply of ADA rights for those with OUD.

The DOJ complaint was premised on the alleged refusal of Selma Medical to schedule a new patient family practice appointment after the patient disclosed he takes Suboxone.  Suboxone is a prescription medication approved by the Food and Drug Administration for treating OUD.  The complaint further alleged that Selma refused to treat patients with narcotic controlled substances, including Suboxone, thus imposing “eligibility criteria that screen out or tend to screen out individuals with OUD.”  The compliant also alleged a failure to make reasonable accommodations to policies, practices or procedures when necessary “to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

Under the settlement, Selma agreed to:

  1. Not discriminate or deny services on the basis of disability, including OUD;
  2. Not use eligibility standards, criteria or methods of administration that tend to deny benefits on the basis of disability including OUD;
  3. To modify its policies as necessary;
  4. To draft and submit within 30 days for DOJ approval a non-discrimination policy and to remove any inappropriate existing policies;
  5. After DOJ approval, to adopt and disseminate to all employees the new non-discrimination policy;
  6. To train all management and employees within 60 days and annually for three years as to the new policy and ADA compliance with the initial training conducted live, with a Q&A opportunity, and by a trainer to be approved by DOJ;
  7. Submit compliance reports to DOJ for three years; and
  8. To pay compliant $30,000 in damages and a civil penalty to the U.S. of $10,000.

The DOJ-Selma Medical settlement is highly significant in an environment where in 2015, OUD affected 2 million people aged 12 and over (Drug and Alcohol Dependence, Vol. 169, Dec. 2016, pp. 117-127) and .6 million persons aged 12 or over had heroin use disorder (id.) and the lifetime percentage of individuals with Diagnostic and Statistical Manual-IV prescription OUD among adults 18 and over had more than doubled from 1.4% in 2001-2002 to 2.9% in 2012-2013 (id.), and likely higher today.  And, of course, this does not include those who are OUD for reasons other than prescriptions.  This means that health care providers are highly likely to encounter significant numbers of potentially challenging OUD patients.  DOJ has now made clear that providing the full range of care and services to such patients is required under the ADA – and that any failure to do so can lead to litigation, costly settlements and adverse publicity.

All employers, not just health care providers, should take note of this settlement as it clearly means that employers will also need to reasonably accommodate employees who seek time off for treatment or other accommodations unless the employer cannot show the requested accommodations would be an undue hardship.

The Selma Medical settlement is also a reminder that health care providers should make sure they have appropriate non-discrimination policies in place as required pursuant to Health and Human Services regulations for compliance under Title III of the ADA, the Rehabilitation Act of 1973, and the non-discrimination requirements of Section 1557 of the Affordable Care Act.  We can assist with any questions regarding the required policies and other issues as to compliance with the ADA, the Rehab Act and Section 1557.

 

Our colleague at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the health care industry: “DOJ Finally Chimes In On State of the Website Accessibility Legal Landscape – But Did Anything Really Change?

Following is an excerpt:

As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business’ website is inaccessible to individuals with disabilities. One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year. Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ’s Office of Legislative Affairs recently issued a statement clarifying DOJ’s current position on website accessibility. Unfortunately, for those hoping that DOJ’s word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ’s response makes that highly unlikely.

DOJ’s long-awaited commentary makes two key points…

Read the full post here.

Almost ten months into the Trump Administration, the executive and legislative branches have been preoccupied with attempting to repeal and replace the Affordable Care Act (“ACA”) – but each attempt has thus far proved fruitless.  While the debate rages over the continued viability of the ACA, as we stated in our previous Take 5, employers should remember that obligations to comply with Section 1557 (the non-discrimination provision of the ACA) and the final rule implementing that provision remain.  But there have been developments regarding which characteristics are protected by Section 1557.  In this Take 5, we explore whether Section 1557 continues to cover gender identity and transition services.

Although the health care debate has received the bulk of the media attention, other legal developments also promise to have significant impact on health care employers.  For instance, the  Equal Employment Opportunity Commission (“EEOC”) appears to have set its sights on the accommodation of disabled workers in the health care industry, and recent decisions regarding employees’ rights to use medical marijuana may impose new burdens on employers.

These and other developments are discussed in this edition of Take 5:

  1. Will The Affordable Care Act’s Non-Discrimination Regulations Continue to Cover Gender Identity and Transition Services?
  2. Restrictive Covenants – How Effective are Non-Competes and Non-Solicits in the Health Care Industry?
  3. Navigating the Interactive Process:  Best Practices for Complying with the ADA
  4. A Growing Trend In Favor of Medical Marijuana Users in the Employment Context
  5. ERISA Withdrawal Liability: Make Sure to Look Before You Leap Into Mergers and Acquisitions

Read the full Take 5 online or download the PDF.

Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.

Background

In Noffsinger v. SSC Niantic Operation Company (3:16-cv-01938; D. Conn. Aug. 8, 2017), the federal district court ruled that “qualified users” are protected from criminal prosecution and are not subject to penalty, sanction or being denied any right or privilege under federal laws, such as the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act (FDCA), because the federal laws do not preempt Connecticut’s Palliative Use of Marijuana Act (PUMA).

PUMA prohibits employers from refusing to hire, fire, penalize, or threaten applicants or employees solely on the basis of being “qualified users” of medical marijuana. PUMA exempts patients, their caregivers and prescribing doctors from state penalties against those who use or distribute marijuana, and it explicitly prohibits discrimination by employers, schools and landlords.

In Noffsinger, Plaintiff was employed as a recreational therapist at Touchpoints, a long term care and rehabilitation provider, and she was recruited for a position as a director of recreational therapy at Bride Brook, a nursing facility. After a phone interview, she was offered the position at Bride Brook and accepted the offer, and she was told to give notice to Touchpoints, which she did to begin working at Bride Brook within a week. Plaintiff scheduled a meeting to complete paperwork and routine pre-employment drug screening for Bride Brook, and at the meeting, she disclosed her being qualified to use marijuana for PTSD under PUMA. The job offer was later rescinded because she tested positive for cannabis; in the meantime, Plaintiff’s position at Touchpoints was filled, so she could not remain employed there.

Litigation

Plaintiff sued for violation of PUMA’s anti-discrimination provisions, common law wrongful rescission of a job offer in violation of public policy and negligent infliction of emotional distress. Defendant filed a Rule 12(b)(6) pre-answer motion to dismiss based on preemption under CSA, ADA, and FDCA. The federal court denied the motion and ruled that PUMA did not conflict with the CSA, ADA or FDCA, because those federal laws are not intended to preempt or supersede state employment discrimination laws. The court concluded that CSA does not make it illegal to employ a marijuana user, and it does not regulate employment practices; the ADA does not regulate non-workplace activity or illegal use of drugs outside the workplace or drug use that does not affect job performance; and the FDCA does not regulate employment and does not apply to PUMA’s prohibitions.

The court’s decision is notable in that it is the first federal decision to determine that the CSA does not preempt a state medical marijuana law’s anti-discrimination provision, and reaches a different result than the District of New Mexico, which concluded that requiring accommodation of medical marijuana use conflicts with the CSA because it would mandate the very conduct the CSA proscribes. The Noffsinger decision supplements a growing number of state court decisions that have upheld employment protections for medical marijuana users contained in other state statutes. These decisions stand in stark contrast to prior state court decisions California, Colorado, Montana, Oregon, and Washington that held that decriminalization laws – i.e., statutes that do not contain express employment protections – do not confer a legal right to smoke marijuana and do not protect medical marijuana users from adverse employment actions based on positive drug tests.

Key Takeaways

Employers may continue to prohibit use of marijuana at the workplace; and qualified users who come to work under the influence, impaired and unable to perform essential job functions are subject to adverse employment decisions. Employers in Connecticut, however, may risk being sued for discrimination for enforcing a drug testing policy against lawful medical marijuana users.  In those cases, employers may have to accommodate off-duty marijuana use, and may take disciplinary action only if the employee is impaired by marijuana at work or while on duty.

It remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana. Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment, and, in any event, observation alone does not indicate the source of impairment. Employers following this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it: (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; and (c) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test.

Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users. Eight other states besides Connecticut have passed similar medical marijuana laws that have express anti-discrimination protections for adverse employment actions: Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota and Rhode Island. Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user. Additionally, courts in Massachusetts and Rhode Island have permitted employment discrimination lawsuits filed by medical marijuana users to proceed.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but also to applicants.

As we have previously reported, there has been an uptick of new employment decisions finding in favor of registered medical marijuana users.  In keeping with these decisions, an administrative law judge (“ALJ”) at New York City’s Office of Administrative Trials & Hearings (“OATH”) also issued a report and recommendation, subsequently adopted by the relevant City commissioner, to dismiss a petition against a taxi driver that would have stripped him of his driver license because of his lawful medical marijuana use.

In Taxi & Limousine Comm’n v. W.R., OATH Index. No. 2503/17 (July 14, 2017), adopted, Comm’r Dec. (July 25, 2017), the Taxi & Limousine Commission (“TLC”) filed a petition seeking the revocation of the respondent taxi driver’s TLC Driver License because the driver tested positive for marijuana.  OATH disagreed and recommended that the petition be dismissed, finding that revocation solely because of the driver’s status as a certified medical marijuana patient would violate New York City and State laws.  The TLC adopted the OATH decision.

The rationale was simply stated. Under the New York Compassionate Care Act, certified patients may not be subject to penalty or denied any right or privilege solely for the certified use of medical marijuana.  Because the patient certification is analogous to a prescription, the certified use of marijuana could not constitute an illegal drug use that would serve as the basis to revoke a license.  Further, certified patients are deemed to have a disability under the New York State Human Rights Law.  Because the New York State Human Rights Law prohibits discrimination on the basis of disability, as does the New York City Human Rights Law, the driver had additional protections against revocation of his license.

Key Takeaways

This case serves as another illustration of the intersection of medical marijuana use and disability, and the potential pitfalls for those companies that maintain zero-tolerance drug policies.

New York City employers should be particularly cautious in the use of drug tests and the enforcement of their drug policies. While this decision involves a licensee rather than an employee, the reasoning employed by the ALJ could be equally applied to the employment context.  Additionally, OATH—as an independent administrative tribunal within the City—hears cases brought by any City agency, board, or commission, including the New York City Commission on Human Rights (“CCHR”).  In a case brought by the CCHR, OATH issues a report and recommendation to the City Human Rights Commissioner.  While the Commissioner has discretion to adopt, modify, or reject the report and recommendation, if such rationale were applied in an employment case, there is little doubt that this rationale would be followed by the Commissioner in employment discrimination cases.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Latest Website Accessibility Decision Further Marginalizes the Viability of Due Process and Primary Jurisdiction Defenses.”

Following is an excerpt:

In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds.  In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided businesses with hope that the tide of recent decisions might turn in their favor. …

Read the full post here.

What obligations does an employer have to an employee returning from leave under the Family and Medical Leave Act (FMLA)?

What must the employer do if it was forced to fill that employee’s position during the employee’s absence?

How long after the employee returns must the employer wait before taking an adverse action against that employee?

The U.S. Court of Appeals for the Fourth Circuit recently provided guidance to employers who frequently face these questions in the context of FMLA administration. In Waag v. Sotera Defense Solutions, Inc., the employer, Sotera, filled the position of an employee, Gary Waag, while he was out on FMLA leave, and assigned Waag to a different position when he returned.  Less than six weeks later, Sotera laid off Waag in a workforce reduction.  Waag filed suit claiming FMLA interference and retaliation.  The Fourth Circuit affirmed the lower court’s dismissal of the case, holding that Sotera was not required to return Waag to his original position and that Sotera reassigned him to a bona fide equivalent position, not a “sham position” meant to mask a discriminatory or retaliatory reason for his termination.  Most importantly, the court held that the “temporal proximity” of six weeks’ time between Waag’s return from medical leave and his termination was insufficient by itself for him to succeed on his FMLA interference claim.

Plaintiff Waag took a two-month medical leave to recuperate from a severe head injury. During Waag’s absence, Sotera filled his position.  Upon his return, Waag was assigned to a new position in a different division, albeit with the same salary, benefits, and terms and conditions of employment.  Six weeks after Waag returned to work, a drastic drop in work and revenue caused Sotera to begin a series of reductions in force, and Waag was included in the first round of layoffs.  Waag filed suit, alleging that Sotera violated his FMLA rights by putting him in a “sham position” that Sotera planned to eliminate shortly after his return from leave.

The Fourth Circuit rejected Waag’s claims. Addressing Waag’s claim of FMLA interference for failure to restore him to the same or an equivalent position, the court emphasized that Waag did not have an absolute right to reinstatement to his original position.  Rather, an employee “has the right to be restored either to his original position or to an equivalent position,” and an employer is not required to restore the employee to his original position if that position is no longer vacant.  Sotera fulfilled its obligations under the FMLA by reassigning Waag to a bona fide equivalent position with “substantially similar duties and responsibilities.”

Regarding Waag’s claim of FMLA interference based on his termination, the court held that although the close, six-week temporal proximity between his protected activity (medical leave) and the adverse action (termination) could demonstrate causation for purposes of establishing a prima facie case, it was insufficient standing alone to satisfy Waag’s burden of showing that his reassignment and the budgetary reduction-in-force were pretext for his termination.  Finally, the court rejected Waag’s claim of FMLA retaliation for failing to prove retaliatory intent.

This decision provides important guidance for employers reintegrating employees returning from FMLA leave. It makes clear that employers are not required to restore an employee to the exact same position held before taking leave, particularly where the original position had to be filled during the employee’s leave.  Indeed, employers are not required to hold open the employee’s original position while that person remains on leave.  Employers instead may place the employee in an equivalent position with the same status, pay, benefits, and “substantially similar duties and responsibilities.”  If intervening factors arise causing the employer to terminate the employee, either while on leave or shortly after returning from leave, the temporal proximity between the leave and the termination decision alone will not substantiate an FMLA claim – at least in the Fourth Circuit.  (Employers should be aware that courts in other jurisdictions may more closely scrutinize the temporal proximity and rely upon it in assessing pretext.)  In these instances, however, it is particularly important that an employer can point to documentary evidence of the legitimate, non-discriminatory reasons supporting the termination decision.  As a best practice, employers should contemporaneously document and clearly communicate their reasons for taking such adverse actions.

Finally, while the subject was not raised in this case, employers should always be cognizant of their obligations under the Americans with Disabilities Act (ADA), especially after an employee has exhausted FMLA leave. Depending on the employee’s reason for leave, the ADA may impose additional obligations – beyond those of the FMLA –to extend the employee’s leave, transfer or reassign the employee, or otherwise accommodate the employee.  In matters involving the interplay of the FMLA and ADA, employers are advised to consult with counsel to determine the proper course of action.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Nation’s First Website Accessibility ADA Trial Verdict Is In and It’s Not Good for Places of Public Accommodation.”

Following is an excerpt:

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility. In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). …

Read the full post here.

shutterstock_633954278In a departure from the recently developing law, a federal court judge from the Eastern District of Pennsylvania ruled that the Americans with Disabilities Act (“ADA”) may cover gender dysphoria, and other conditions related to gender identity disorder – opening the door to expanding employment protections to some transgender individuals under the ADA.

In Blatt v. Cabela’s Retail, Inc., a transgender woman filed Title VII and ADA claims against her former employer claiming that she had suffered disability discrimination and retaliation based on her gender dysphoria. The plaintiff alleged that her gender dysphoria was characterized by clinically significant stress and substantially limited one or more of her major life activities, including but not limited to, interacting with others, reproducing, and social and occupational functions. The employer sought dismissal of the ADA claims on the grounds that gender identity disorders are expressly excluded from coverage under Section 12211 of the ADA. In response, the plaintiff argued that the ADA’s exclusion of gender identity disorders violated her equal protection rights under the Constitution.

What makes this case unique, and its holding potentially narrow, is its reliance on the legal “constitutional-avoidance canon” which, if possible, requires the court to interpret a statute in a way that avoids any constitutional questions raised by the plaintiff. Here, the court interpreted the ADA to allow plaintiff to proceed with her disability discrimination claim because “this interpretation allows the Court to avoid the constitutional questions raised” by the plaintiff.

In reaching its holding, the court noted that two categories of conditions are explicitly excluded from protection under the ADA: non-disabling conditions concerning sexual orientation and identity (e.g., homosexuality and bisexuality), and conditions associated with harmful or illegal conduct (e.g., pedophilia and kleptomania). The court narrowly interpreted these exceptions and found that the ADA does not exclude protection of “conditions that are actually disabling but that are not associated with harmful or illegal conduct” – such as the gender dysphoria affecting the plaintiff. This line of reasoning in many ways mimics how the ADA approaches pregnancy: while the ADA does not cover ordinary pregnancies, complications arising from the pregnancy can trigger ADA protection.

The court also noted that this interpretation is consistent with the Third Circuit’s mandate that the ADA is “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society. . . [and] must be broadly construed to effectuate its purposes.” Thus, the judge wrote, any exceptions in the ADA “should be read narrowly in order to permit the statute to achieve a broad reach.” As such, the Court denied the employer’s motion to dismiss.

This is yet another case in a recent wave of litigation concerning protections for LGBT individuals under the federal employment statutes, including Title VII. This ADA challenge represents a different approach to gender equity litigation that will warrant close monitoring to see how it impacts the development of jurisprudence – particularly since it is possible that the court may not have ever engaged in this exercise had the plaintiff had not raised a constitutional argument. In the meantime, employers should be mindful of their duties under the ADA to accommodate disabling impairments, even if the underlying condition is arguably not covered by the ADA.

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.

Background

Plaintiff applied for an internship at Darlington, and during an initial meeting, she signed a statement acknowledging she would be required to take a drug test prior to being hired.  At that meeting, Plaintiff disclosed that she had a medical marijuana card.  Several days later, Plaintiff indicated to Darlington’s human resources representative that she was currently using medical marijuana and that as a result she would test positive on the pre-employment drug test.  Darlington informed Plaintiff that it was unable to hire her because she would fail the drug test and thus could not comply with the company’s drug-free workplace policy.

Plaintiff filed a lawsuit alleging Darlington violated the Hawkins-Slater Act (“the Act”), the state’s medical marijuana law, and the Rhode Island Civil Rights Act (“RICRA”). The Hawkins-Slater Act provides that “[n]o school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”  After concluding that Act provides for a private right of action, the court held that Darlington’s refusal to hire Plaintiff violated the Act’s prohibition against refusing to employ a cardholder.  Citing another provision that the Act should not be construed to require an employer to accommodate “the medical use of marijuana in any workplace,” Darlington contended that Act does not require employers to accommodate medical marijuana use, and that doing so here would create workplace safety concerns.  The court rejected this argument, concluding:

  • The use of the phrase “in any workplace” suggests that statute does require employers to accommodate medical marijuana use outside the workplace.
  • Darlington’s workplace safety argument ignored the language of the Act, which prohibits “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” In other words, employers can regulate medical marijuana use by prohibiting workers from being under the influence while on duty, rather than refusing to hire medical marijuana users at all.
  • By hiring Plaintiff, Darlington would not be required to make accommodations “as they are defined in the employment discrimination context,” such as restructuring jobs, modifying work schedules, or even modifying the existing drug and alcohol policy (which prohibited the illegal use or possession of drugs on company property, but did not state that a positive drug test would result in the rescission of a job offer or termination of employment).

The court thus granted Plaintiff’s motion for summary judgment on her Hawkins-Slater Act claims.

With respect to Plaintiff’s RICRA claim, the court found that Plaintiff’s status as a medical marijuana cardholder was a signal to Darlington that she could not have obtained the card without a debilitating medical condition that would have caused her to be disabled. Therefore, the Court found that Plaintiff is disabled and that she had stated a claim for disability discrimination under RICRA because Darlington refused to hire her due to her status as a cardholder.  Importantly, the court held that the allegations supported a disparate treatment theory.

Finally, while noting that “Plaintiff’s drug use is legal under Rhode Island law, but illegal under federal law [i.e. the Controlled Substances Act (the CSA”)],” the Court found that the CSA did not preempt the Hawkins-Slater Act or RICRA. According to the court, the CSA’s purpose of “illegal importation, manufacture, distribution and possession and improper use of controlled substances” was quite distant from the “realm of employment and anti-discrimination law.”

Key Takeaways

While this decision likely will be appealed, it certainly adds additional confusion for employers in this unsettled area of the law – particularly those who have and enforce zero-tolerance drug policies. The decision departs from cases in other jurisdictions – such as California, Colorado, Montana, Oregon, and Washington – that have held that employers may take adverse action against medical marijuana users.  The laws in those states, however, merely decriminalize marijuana and, unlike the Rhode Island law, do not provide statutory protections in favor of marijuana users.  In those states in which marijuana use may not form the basis for an adverse employment decision, or in which marijuana use must be accommodated, the Callaghan decision may signal a movement to uphold employment protections for medical marijuana users.

While this issue continues to wend its way through the courts in Rhode Island and elsewhere, employers clearly may continue to prohibit the on-duty use of or impairment by marijuana. Employers operating in states that provide employment protections to marijuana users may consider allowing legal, off-duty use, while taking adverse action against those users that come to work under the influence.

Of course, it remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana.  Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment and, in any event, observation alone does not indicate the source of impairment.  Employers choosing to follow this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; (b) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users.  Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user.

The Callaghan decision also serves as a reminder of the intersection of medical marijuana use and disability.  Here, the court allowed a disability discrimination claim to proceed even though Plaintiff never revealed the nature of her underlying disability because cardholder status and disability were so inextricably linked.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well. In Callaghan, the court found the employer in violation of state law before the employee was even offered the internship or had taken the drug test.