Drugs and Alcohol in the Workplace - 2025 SLC

parsonsbehle.com
May 14, 2024 | The Grand America Hotel – Salt Lake City
Drugs and Alcohol in the Workplace
Susan Baird Motschiedler

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This presentation is based on available information as of May 14,
2024, but everyone must understand that the information provided is
not a substitute for legal advice. This presentation is not intended and
will not serve as a substitute for legal counsel on these issues.
Legal Disclaimer

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Informal Audience Survey
 Do you have a drug testing policy?
o Written
o Signed by Employee
 Do you not have a drug testing policy?
o Do you test anyway?
 Do you not test for marijuana?
o Industrial work force?
 Have you had an increase in the past 5 years of drug or alcohol use
impacting the workplace?
 Which causes more problems in the workplace: marijuana, alcohol,
or other

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Medical
Marijuana
Evolution of Marijuana Legalization:1996

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Medical
Marijuana
Evolution of Marijuana Legalization: 1998

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Medical
Marijuana

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Medical
Marijuana

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Medical
Marijuana

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Medical
Marijuana

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Medical
Marijuana

11
Medical
Marijuana

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Medical
Marijuana

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Medical
Marijuana

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Medical
Marijuana

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Medical
Marijuana
Recreational
Marijuana

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Medical
Marijuana
Recreational
Marijuana

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Medical
Marijuana
CBD
Oil
Recreational
Marijuana

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Medical
Marijuana
CBD
Oil
Recreational
Marijuana

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Medical
Marijuana
CBD
Oil
Recreational
Marijuana

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Medical
Marijuana
CBD
Oil
Recreational
Marijuana

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Medical
Marijuana
CBD
Oil
Recreational
Marijuana

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Medical
Marijuana
CBD
Oil
Recreational
Marijuana

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Were is Marijuana Legal Today?

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Current Opinions on Marijuana in the U.S.

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Current Opinions on Marijuana in the U.S.
 50.3% of U.S. adults say they have used
marijuana at least once, ever
 84.1% of U.S. adults say they have
consumed alcohol at least once, ever
 23.0% of adults have used marijuana in the
past year
 15.9% of adults have used marijuana in the
past month
 Of adults who drink alcohol:
o 69% had a drink within the last week
o 32% had a drink within the last 24 hours

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Trends in Marijuana and the Workplace
 NYC ban on employer preemployment drug testing, April 2019.
 Only Half of CO Employers Will Fire for a Single Pot Test, Denver
Post, March 2019.
 Quest Diagnostics Study, April 11, 2019:
o Workforce drug testing positivity climbs to highest rate since 2004.
o 2.8% of workers test positive for marijuana nationwide, up from 2.4% in
2014.

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Trends in Court Cases and Marijuana and the Workplace
 Judicial interpretation trending more favorably to employees
o Before 2017 (outside of workers’ compensation and unemployment),
employers won each case brought based on alleged violation of right to use
medical marijuana.
• Washburn v. Columbia Forest Products, Inc., (Or. 2006)
• Ross v. RagingWire Telecomms., Inc. (Cal. 2008)
• Johnson v. Columbia Falls Aluminum Co., LLC (Mont. 2009)
• Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries (Or. 2010)
• Roe v. Teletech Customer Care Mgmt. LLC (Wash. 2011)
• Casias v. Wal-Mart Stores, Inc. (6th Cir. 2012) (construing Mich. law)
• Savage v. Maine Pretrial Services, Inc. (Me. 2013)
• Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015)

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Trends in Court Cases and Marijuana and the Workplace
 After 2017, employers have lost almost every such case.
o Callaghan v. Darlington Fabrics Corp. (R.I. Superior Ct. 2017)
The judge started the opinion with the Beatles song quote “I get high with a little help from
my friends.
o Barbuto v. Advantage Sales & Marketing, LLC (Mass 2017)
o Noffsinger v. SSC Niantic Operating Co., LLC (D. Conn. 2017)
o Chance v. Kraft Heinz Food’s Co. (Del. Superior Ct. 2018)
o Wild v Carriage Funeral Holdings, Inc. (N.J. App. Div. 2019)
But see Cotto v. Ardagh Glass Packaging, (D.N.J. 2018)

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Must Employers Accommodate Medical Marijuana?
 Under Federal Law, Marijuana remains illegal.
 Under Utah Law:
o Medical Marijuana is legal
o Recreational Marijuana is not legal.
 Neighboring states have some level of legality:
o Colorado, Nevada, Arizona, and New Mexico
 Neighboring states where cannabis remains illegal:
o Wyoming and Idaho

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 Qualifying Conditions for a Medical Cannabis Card in UT:
o HIV or acquired immune deficiency
syndrome
o Alzheimer's disease
o Cancer
o Persistent nausea that is not
significantly responsive to
traditional treatment, except for
nausea related to pregnancy or
various conditions.
o Epilepsy or debilitating seizures
o Multiple sclerosis or persistent and
debilitating muscle spasms
o Post-traumatic stress disorder that
is being treated and monitored by a
licensed mental health therapist
o Autism
o A terminal illness when the
patient's remaining life expectancy
is less than six months
o Pain lasting longer than two weeks
that is not adequately managed
with various treatments

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 Public vs. Private in Utah
o Public Employers MUST Accommodate Medical Marijuana Usage
o Utah Medical Cannabis Act : state and political subdivision employees
cannot be discriminated against on the basis of their use of medical
cannabis, as long as they are otherwise in compliance with the law.
• Cannabis card
• No evidence of impaired or otherwise adversely affected job performance due to
medical cannabis usage
o 34A-5-115. Nondiscrimination for medical cannabis use while
employed by the government -- Medical cannabis and prescription
use.

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 However, private employees’ medical cannabis use is not
protected under the Utah Medical Cannabis Act.
 Although private employers do not have to accommodate, should
you?
 The top questions that clients ask about Drug Testing is:
o Can I drug test for serious stuff like cocaine, meth, etc. and not test for
marijuana?
o Can I have different testing requirements for different parts of my
workforce?

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 How is Marijuana different from Alcohol?
 Problem with testing for Marijuana/THC:
o Does not test for impairment
o THC stays in the system for a long time after use
o So: the user can test positive but not be impaired
• Same with cocaine, amphetamines, prescription drugs, but has a much longer half life
in the body
• Testing sensitivity varies wildly
o May not always differentiate between THC and CBD
Drug-Testing Considerations for Current and
Prospective Employees

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 Tests are getting more practical:
o Portable (testing “in the field”)
o Detect level of THC and can determine impairment levels, similar to a
breathalyzer or BAC test
o Some states are identifying THC thresholds: 5ng/mL
 Not necessarily widely available
 Some are marketed as medical devices for medical marijuana users

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 Legal and Practical Considerations:
o Federally Regulated Employees:
• DOT- mandated testing
• Federal Contractors and Grant Recipients
o Workplace Safety: Federal or State MSHA and OSHA
o Other Workplace Enforcement Concerns
• Public Policy
• Policing Outside-of-Work Activities
o At-will vs. For-Cause (employment agreements) vs. Just Cause (Collective
Bargaining Agreements)

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 Workers’ Compensation
 Unemployment Benefits
 Issues with types of drug testing:
o Pre-employment v. post-hire
o Random
o Suspicion of Impairment
o Post Accident
 Market Forces
 Company Culture

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Drug Free Workplace Act (federal contractors/grant recipients)
 Develop and publish a written policy that prohibits manufacture, use,
distributions in the workplace; ensure that employees read and consent to it as
condition to employment.
 Establish a drug-free awareness program to educate employees of the dangers
of drug abuse.
 Require notifications from employees within 5 days of a criminal drug conviction.
 Notify the federal contracting agency within 10 days of any covered violation.
 Does not require drug tests and does not prohibit drug use OUTSIDE of the
workplace.

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Department of Transportation:
 The Omnibus Transportation Employee Testing Act requires DOT Agencies to
implement drug & alcohol testing of safety-sensitive transportation employees.
 DOT-regulated drug testing is not changed by state laws permitting medical
marijuana.
 Medical Review Officers will still treat as positive test.

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OSHA General Duty Clause
 Employers can still expect employees to work to the required standards.
o Marijuana laws do not diminish need for a safe, productive workplace.
 But off-duty use is not a violation of the OSHA general duty clause.
 Post-incident drug testing policies must be consistent or will be considered
retaliatory.
 OSHA allows Injury Illness Prevention Programs to address Medical Marijuana
P. Gillespie’s Article: State Medical Marijuana Legalization and OSHA Anti-Retaliation Rules: Post
Accident Drug Testing Consideration for Employers (SciTech Lawyer, Vol 13 No. 3, 2017).

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Disciplining and Terminating Medical Marijuana
Users: Current Legal Perspectives
 Some States specifically protect legal medical marijuana users under the
state’s disability act
o Must accommodate unless undue burden
o AZ, NM, NV have express accommodation or non-discrimination provisions
 Don’t have to allow possession on the job
 Don’t have to allow influence or impairment on the job
 Safety sensitive positions or tasks, such as heaving machine operators,
driving, handling medicine or regulated chemicals, or working in high or
confined spaces
 Where may constitute negligence, professional negligence, or
professional misconduct.

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Legal Considerations:
 Federal Law Enforcement has decreased enforcement.
 Many states have signaled they will not enforce federal laws and have
none/have modified/do not enforce possession and use.
 U.S. public sentiment towards marijuana usage has changed.
 In the last 20 years, judicial interpretation of medical marijuana usage (outside
UT) appears to be trending more favorably to employees in the last 20 years.
 Potential for ADA case down the road.

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Practical Considerations:
 There is a worker shortage.
 Some good workers use medical marijuana.
 Consider business needs/culture – drivers, operators, safety, image.
 Are you a multi-state employer in a state that has different laws?
 Consider testing and disciplining for other drugs, but not marijuana.
 Rely on fitness for duty and objective criteria to measure impairment on the job.

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 If you drug and alcohol test, you must have a written policy that
tracks information in the Utah Drug Testing Statute.
 Must identify what type of testing you will do:
o Post hire, random, post accident, regular, etc.
o If you do random, must include supervisors
 Make clear what you are testing for – marijuana,
methamphetamines, all the new variants of gas station drugs.
Creating Drug and Alcohol Policies That Leave No
Room for Interpretation

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 If you include marijuana in your testing panel, be clear whether
medical marijuana is included.
 If you will accommodate medical marijuana and a failed test, be
clear how you will accomplish that:
o Request for an accommodation?
• Safety sensitive positions?
• Potential undue hardship?
o Excuse a positive on appeal?

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 Consider reasonable suspicion/post accident testing instead of
mandatory or random.
 Make clear the policy for usage among on-call employees.
o Does the type of position matter?
• IT after hours help vs. EMT or ER MD
 Consider reasonable suspicion instead of mandatory.
o Train how to recognize impairment – poor concentration, dilated pupils,
impaired perception, abnormal behavior, slurred speech or movement,
gloss eyes, slow responses or reflexes, smell of marijuana or alcohol.
 Use/possession at work grounds for termination.

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 Keep drug and alcohol policy updated.
o Be specific; e.g., clarify federal and state law, not just “legally prescribed.”
o Address prescription medication that may affect ability to work.
o Define impairment based on observable characteristics.
o Consequences for refusal to submit to testing.
 Know handbook and policies.
o Apply uniformly.
o Publicize your policy and train supervisors.
o Sign receipt of the policy.
 Consider accommodation process.

Thank You
You can scan the QR code or visit
parsonsbehle.com/emp-seminar
to download a PDF handbook of
today’s seminar.

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Thank You
 Susan Baird Motschiedler
smotschiedler@parsonsbehle.com
801.536.6923

Drugs and Alcohol in the Workplace - 2025 SLC

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