Issue link: http://palletcentral.uberflip.com/i/522141
28 PalletCentral • May-June 2015 palletcentral.com which require employees to: (1) provide employees with a written statement of their drug testing policy; (2) require confirmatory tests in the case of an initial positive test result; (3) allow employees or applicants who have tested positive to have the sample retested at their own expense; (4) offer employees who test positive the opportunity to enroll in a drug rehabilitation program; and (5) allow termination of employees testing positive only when they refuse to participate in such a program, fail to complete such a program, or violate the terms of the rehabilitation program. Other states, such as Connecticut and West Virginia, require employers to have reasonable grounds to suspect that employees are using drugs before subjecting employee to drug test. In canvassing the evolving case law in this area, it becomes clear that there is no "black letter law" on what employers can and cannot do. More than half of the states have some version of legality and differing statutory language applying the laws. Here is what we currently know about recreational marijuana laws: • New recreational laws in Alaska and DC state explicitly that nothing requires employer to permit or accommodate use, consumption, possession in workplace, or to have policies restricting use by employees. • Oregon's law provides it does not amend any state or federal law regarding employment matters, and permits federal contractors and grantees to prohibit use as needed to satisfy federal requirements. • Colorado's Amendment 64 provides that nothing is intended to require employer to permit or accommodate use in workplace. For medical marijuana, the laws differ more widely. Maine and Rhode Island have attempted to protect workers from termination due to medical marijuana consumption. Their laws prohibit employers from discriminating against employees who legally use medical marijuana, but do not offer explicit protections for users who test positive during drug testing. States with similar protections include: AZ, CT, DE, IL, ME, MN, NV and NY. The Arizona and Delaware laws, in particular, seek to prevent discrimination in "hiring, termination, or any term or condition of employment, or otherwise penaliz[ing] a person…status as a cardholder" or due to positive drug test for marijuana. One case worth watching is pending now in Rhode Island, where a woman who applied for work at Darlington Fabrics claimed discrimination because she disclosed use of medical marijuana for migraine headaches during her interview, and promised not to come to work under influence, but was told she would not be hired because of current use by prescription. The plaintiff has not alleged discrimination under the federal ADA, but under Rhode Island's state Act, which prohibits employment discrimination based on individual's status as medical marijuana cardholder. The outcome of this case could be influential in states with similar statutory provisions. Other recently decided cases include: • Coats v. DISH Network, (2013). The court reinforced the employer's right to terminate a "positive" employee who held a medical marijuana card, even in absence of evidence of impairment on the job. The decision is on appeal. • Roe v. TeleTech Customer Care (2011). The Washington State Supreme Court held that an employer was not regulated by the Washington State Medical Use of Marijuana Act, and did not protect an employee (or prospective) employee from being discharged after a positive drug test. While the trend in these cases has been to support the employer's right to test applicants and employees, and to use positive tests as the basis for non-selection or termination, this is an evolving area of case law and employers should stay abreast of new developments in the states where they conduct business. PC SAFETY Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and also pro- vides safety training and consultation. The Law Office of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV. Adele can be reached at 301-595- 3520 or www.safety-law.com.