2 New Efforts to Clarify Employee Cannabis Drug Testing by Meghana Shah, Greg Kaufman, Melissa Fox and Brittany Cambre

Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] 2 New Efforts To Clarify Employee Cannabis Drug Testing By Meghana Shah, Greg Kaufman, Melissa Fox and Brittany Cambre (May 3, 2019, 5:28 PM EDT) As legalization of cannabis and cannabis-derived products spreads across the United States, a considerable patchwork of sometimes-conflicting regulatory schemes has emerged, creating significant uncertainty and increasing the cost of compliance for employers and industry participants in the United States and abroad. Meghana Shah This regulatory uncertainty is not limited to just those in the cannabis industry. Multistate employers are struggling to keep up with the various state and local laws blessing medical or recreational cannabis use. Many new laws and regulations even include special employment protections for marijuana users who are complying with state or local law. In the United States, federal guidance on cannabis is lacking, particularly where “War on Drugs” era employment laws are colliding with the growing number of state-level Greg Kaufman legalized medical and recreational use programs. In this absence, local and state governments are confronting these issues in myriad ways, with some prohibiting employers from drug testing certain job applicants and employees for marijuana. By way of example: • In Oklahoma, employers are prohibited from taking action against employees and applicants based on having a medical marijuana license or the license holder testing positive for tetrahydrocannabinol, the psychoactive Melissa Fox compound in a cannabis plant. The law has exceptions for safety-sensitive jobs and employees demonstrating impairment at work. • In states like New York and Nevada, medical marijuana users are treated as legally disabled and cannot be fired based solely on a failed drug test. Of course, employers in those states can prohibit employees from working while impaired. Brittany Cambre • In states like Ohio, Colorado and California, no accommodation is currently made for marijuana users. • Illinois provides an example of yet another approach to the issue. Illinois prohibits discrimination against medical marijuana patients unless it would cause the employer to violate federal law. For example, the Drug-Free Work Place Act of 1988 requires federal government contractors and grantees to maintain a “drug-free workplace.” To further complicate the landscape, federal and state judiciaries have weighed in on an employer’s right to terminate an employee for using marijuana. For example, federal courts in Arizona and Connecticut have found employees who used marijuana pursuant to state palliative care statutes were entitled to certain protections from adverse employment actions by the anti-discrimination provisions in those statutes.[1] And most, recently, a New Jersey appellate court ruled that the state’s Law Against Discrimination prohibited an employer from terminating a funeral director for his medical marijuana use, despite the fact that New Jersey’s Compassionate Use Medical Marijuana Act specifically proclaims that nothing in the act requires an employer to make an accommodation for an employee’s medical marijuana use.[2] Employers navigating this terrain need to be aware of statutes that legalize marijuana use and how courts will view those statutes in relation to an employer’s reliance on drug test results when making employment decisions. The intersection of legal marijuana and conflicting employment laws is a vexing issue for employers, causing many companies to consider halting testing for THC or simply ignore positive tests when safety is not a component of the job. This article does not attempt to compare and contrast federal law with the laws of the 50 states (and the District of Columbia). Rather it highlights two recent legislative attempts to bring clarity to the conundrum facing many employers. Developments in New York City are poised to affect employers’ abilities to impose drug tests for marijuana, and recently proposed federal legislation, if enacted, would remove limitations on federal employment for an individual legally using marijuana under state law. Local Governments Act Alone As the efforts of some state lawmakers in New York to legalize marijuana have stalled, New York City officials have taken their own steps to ease cannabis restrictions. In early April 2019, the New York City Council overwhelmingly approved a bill that prevents employers in New York City from forcing applicants to take drug tests for marijuana use. But the bill is not without limits; if a worker appears to be under the influence of marijuana at work, employers are permitted to drug test that individual. It also exempts jobs requiring the supervision of children or medical patients and carves out some safety-sensitive industries like law enforcement and construction. The legislation resoundingly passed by a vote of 40 to 4 and is awaiting signature by Mayor Bill de Blasio, whose administration has indicated it fully supports the measure. The bill is not slated to go into effect until one year after it is signed into law. Once implemented, the drug-screening legislation would not stop federal employees or contractors from being tested, or disrupt drug test requirements the federal government imposes on certain transportation workers such as pilots. State employees or contractors, who are not subject to the city’s jurisdiction, could also still be tested. The recent actions of the New York City Council and those state lawmakers that provide employment protections to marijuana users signal a shift in concerns about how drug screening for marijuana impacts employees and job applicants. And, the concerns voiced by some local jurisdictions over employer drug testing for marijuana are not without justification. In fact, traditional drug tests for marijuana can turn up false positives when the individual being tested has consumed hemp-derived cannabidiol, one of hundreds of compounds found in cannabis, because CBD can contain trace amounts of THC. Hemp, which has been legalized in many states, contains 0.3% or less THC, the psychoactive ingredient in cannabis, and is the type of cannabis from which most CBD is derived. Thus, the consumption of CBD does not pose the same safety concern for employers and the consumption of hemp-derived CBD, even where legal, can generate a false positive for marijuana on a drug test. Often the consequence of testing positive for marijuana will result in an employee’s discharge or an applicant being refused a position. Possible Federal Action Impacting Federal Employees and Contractors Although its fate remains unknown, recently proposed legislation would provide some clarity to the drug screening of federal employees and contractors. On March 12, 2019, Rep. Charlie Crist, D-Fla., introduced H.R. 1687, called the “Fairness in Federal Drug Testing Under State Laws Act.” The bill would amend Title 5 of the United States Code to remove limitations on federal employment for an individual legally using marijuana under the law of the state in which the individual resides. Specifically, the bill provides that an individual who tests positive for marijuana but lives in a state where private use is not prohibited should not be denied employment or subject to any adverse personnel action based solely on such positive test. The bill does exclude any individual applying for a position that requires a top-secret clearance or access to a highly sensitive program. H.R. 1687 may not become law and may well be subject to revision during consideration, but it signals some movement at the national level to address the unusual circumstances that have arisen given the conflicting state and federal positions with respect to marijuana. The vacuum of federal guidance in this area has cultivated the conflicting patchwork of drug screening regulations to which employers are currently being subjected. We anticipate that some state and local governments will continue to step in and attempt to ease marijuana restrictions where more widespread efforts to do so have stalled. Employers need to be aware of, and adapt to, the emerging authorities across various levels of government that govern drug testing job applicants and employees for marijuana. Meghana D. Shah and Greg S. Kaufman are partners and Melissa L. Fox and Brittany M. Cambre are associates at Eversheds Sutherland. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 774-782 (D. Ariz. 2019); Noffsinger v. SSC Niantic Operating Co., LLC, 273 F. Supp. 3d 326 (D. Conn. 2017). [2] Wild v. Carriage Funeral Holdings Inc., No. 3072-17T3, 2019 WL 1371206 (N.J. Super. Ct. App. Div. Mar. 27, 2019). .

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