a consent form in the presence of other employees; (5) they were observed while providing urine samples; (6) the plaintiffs felt threatened and intimidated because they complained about unpaid overtime; and (7) they were never given the results of their drug tests. Aro v. Legal Recovery Law Offices, Inc., 2015 I.E.R. Cas. (BNA) 180703, 2015 WL 1577597 (Cal. App. 4th Dist. 2015).
• 2000—Employee was reinstated with back pay and atorney’s fees, where court concluded off-duty follow-up tests were an invasion of privacy in violation of the state Constitution. Edgerton et al. v. State Personnel Bd., 83 Cal. App. 4th 1350 (2000)
• 1997—Setled following Summary Judgment for Employee (amount unknown), where company had no reasonable suspicion to require a drug test. Kraslawsky v. Upper Deck Company, 56 Cal. App. 179 (1997)
Iowa • 2012—$40,000 paid by an employer for requiring an employee to take a drug test following treatment for carpal tunnel; Appellate Court said soſt tissue injuries do not meet the definition of an accident under state’s mandatory drug testing law. Skipton v. S & J Tube, Inc., No. 2-573/11- 1902 2012 Iowa App. LEXIS 737 (2012).
• 2006—Kraſt’s Motion for Summary Judgment denied aſter it failed to show that the employee received notice as required under the mandatory state statute. Munn v. Kraſt Foods global, Inc. No. 3:05-CV-00026-CFB, 2006 U.S. Dist. LEXIS 74445 (2006).
• 2003—Employee who tested positive for marijuana on a random drug test applied for unemployment and the employer contested the award of benefits. Te employer lost since it failed to follow the specific requirements regarding notification of a positive test in writing and delivery by certified mail. Harrison v.
www.datia.org
Employment Appeal Bd., 659 N.W.2d 581 (Iowa 2003).
• 2002—Employee who tested positive for marijuana and was fired applied for unemployment and the employer challenged his claim. Te employee was awarded unemployment. Te employer’s laboratory lost the sample and as a result the employee was unable to challenge the initial test as required by the state’s mandatory law. Te employer was bound by the mistakes of the laboratory and the former employee was eligible for unemployment. Artistic Solid Waste Systems, Inc. v. Employment Appeal Bd., No. 1-1012/00-2018 (IA App. 2002).
Oklahoma • 2010—“But we didn’t know” was essentially the employer’s argument when it was found liable and the issue was sent to a jury to consider damages; the employee tested positive for phenobarbital, a Schedule IV drug, but under the state’s mandatory statute— Standards for Workplace Drug and Alcohol Testing Act, (Okla. Stat. tit. 40, §§551-565 (Testing Act)) only Schedule I, II, or III drugs may be tested. Creekmore v. Pomeroy IT Solutions, Inc., 2010 U.S. Dist. LEXIS 97296; 31 I.E.R. Cas. (BNA) 435 (9-16-2010).
• 2009—An employer violated the notice and testing requirements of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act and was found in “willful” violation. Estes v. ConocoPhillips Co. 2009 U.S. Dist. LEXIS 4082; 28 I.E.R. Cas. (BNA) 1156 (N.D. Okla. 2009). REMEMBER, there are 22 states
with Mandatory laws. Tese are just a few examples.
Marijuana at Work: Another state law issue causing great concern is marijuana at work. Twenty-nine states have now authorized the medical use of marijuana; eight have authorized personal use for anyone age 21 or older.
Medical Marijuana AK AR AZ CA CO CT DE
FL HI IL
LA
MA MD ME
MI
MN MT ND NV NH NJ
WA Washington, D.C.
Personal Use AK CO
ME OR
Washington, D.C. Tese state laws are not all the same.
California was the first state to authorize the medical use of marijuana in 1996. As other states followed suit, the terms and limitations evolved. Some became more limiting of what employers could do, others more permissive of workplace disciplinary limitations. Tere are currently eight states that
limit employer action of any individual based on that person’s “status” as an authorized medical marijuana patient. (AZ, CT, DE, IL, ME, MN, PA and RI). In eight states employers can take action if an employee is found to be using or under the influence at work. (AZ, CT, DE, IL, MN, NH, NY and OH). But three state laws provide that a positive drug test for marijuana is not evidence of being under the influence. (AZ, DE and MN). Twelve states specifically provide that
employers need NOT accommodate a medical marijuana patient/employee’s use at work. (AK, CO, ME, MI, MT, NH, NJ, OH, OR, PA, RI and WA). Nevada and New York lawsmay require some accommodation by an employer. Nevada law states that,
“. . . the employer must atempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry
datia focus 43
NM NY OH OR PA RI
VT
CA
NV MA WA
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