refusing to hire someone because of a protected disability or perception of that disability without demonstrating that the employer could not safely accommodate the applicant. In this case, the Court held that the employer violated both sides of the law; the employer refused to hire the applicant because of his use of a prescribed medication (a treatment for a disability) and for (wrongly) perceiving that the applicant had some disease or addiction he did not have. Once everything was said and done,
the employer was required to pay the driver over $79,000 in back pay and $5,700 in noneconomic damages for mental anguish or emotional distress associated with the episode.
What Does This Mean for Employers?
Te answer to this question depends on where your company operates, what state and federal laws apply, what court and agency decisions have been issued, and the details within your company’s policy and procedures. These cases are of particular
importance to employers in safety- sensitive industries, since many legally prescribed medications could impair an employee’s ability to safely function. Even so, safety concerns may not shield employers from liability when medication is legally prescribed. Employers must begin to recognize
that STATE disability discrimination laws exist and will limit employment actions when it comes to the medical use of marijuana and when testing for prescription medications. It is important to continue to train
your human resources professionals, managers, and supervisors regarding employees’ rights and employers’ obligations under state and federal discrimination laws. Employers must evolve. Procedures
must be implemented to ensure that, when 46 datia focus
appropriate, an “interactive dialogue” takes place with employees in an atempt to accommodate a disabled employee. Te Clipse case emphasizes that employer assumptions of capability and risk are insufficient to overcome the legal duty to accommodate where safely reasonable. Employers should review, and if
necessary revise, handbooks, policies, and procedures pertaining to the issues of employee marijuana and prescription- drug use. Marijuana in the workplace and
prescription-drug use is, unfortunately, an ever-changing, complicated landscape of regulations. While the complexity may be frustrating and a bit daunting, the cost of non-compliance (potentially reaching into the millions of dollars) all but forces you to be proactive and knowledgeable about the issue. This part of the marijuana question (whether federal regulations take precedence over state protections) will dramatically alter an employer’s requirements in certain states because it will answer the question, “Which rules do I need to follow?” We strongly recommend that you take steps to monitor this topic and regularly stay tuned for updates that will inevitably come with the potential to impact how you conduct your business. ❚
References 1 2 21 U.S.C. §801 et seq. (CSA).
Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. Conn. 2017). PUMA at Conn. Gen. Stat. §21a- 408 et seq.
3
Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-cv-01938 (JAM) (D. Conn. Sept 5, 2018), Order on Cross Motions for Summary Judgment. Copy available upon request.
4
Conn. Gen. Stat. §21a-408p(b)(3). Copies of the statute available upon request. See our Compliance MAP for the other states with similar language prohibiting discrimination due to status as a medical marijuana patient.
5
The Court ruled in the Company’s favor, denying Noffsinger’s request for punitive damages and attorney’s fees and Noffsinger’s claim for negligent infliction of emotional distress.
6 7 8 41 U.S.C. §8102.
Noffsinger, at page 6. Noffsinger, at page 6.
Nick Hartman has been involved with workplace substance abuse screen- ing programs for more than 10 years. He has consulted, designed, implemented, and
managed drug-free workplace programs for thousands of employers across the U.S. and globally. Together, Nick and Bill have co-found- ed the Drug Screening Compliance Institute (DSCI), providing guidance, research, educa- tion, training, and consulting for employers and service providers regarding workplace drug and alcohol testing program compliance.
winter 2019
©2018 Drug Screening Compliance Institute (“DSCI”). All rights reserved. DSCI is NOT a law firm. Te information contained herein is for general informational purposes only. DSCI does not practice law, is not licensed to practice law, and is not providing legal advice. Best efforts are made to present the most up-to-date information available; however, this material changes oſten. You should consult an atorney regarding the use of information obtained fom the Services before taking any action. Redistribution of this content in any form must first be approved by DSCI.
Bill Judge is an attorney with over 33 years of experience in the workplace drug and alcohol testing industry. He is a past co-chairman of the Illinois State Chamber of
Commerce Drug-Free Workplace Program, a 10-year member of the American College of Occupational and Environmental Medicine (ACOEM) MRO Faculty, a past advisor to the American Society of Addiction Medicine (ASAM) MRO Committee, a 5-year participant in the White House Office of National Drug Control Policy (ONDCP) Regional Student Drug Testing Summits, and much more. He has played a role in many workplace drug testing court cases, written numerous articles and publications, and regularly shares his industry expertise and thought leadership at several lo- cal, regional, and national speaking events.
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