Hunton Employment & Labor Perspectives

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.”  Houston Area Safety Council, Inc, v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”).  In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees.  Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”).  In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests. 

Lost in the weeds of recent COVID-19 news is the increasing number of states and localities that have legalized medicinal and recreational use of marijuana.  Such legalization brings with it varying degrees of worker protections and employer obligations.  Philadelphia, PA and the state of Montana are two of the latest jurisdictions to add their names to the sprouting list of jurisdictions that protect not only medical use, but also recreational use of marijuana.  These protections will undoubtedly usher in a new wave of test cases and compliance questions, particularly as many workplaces shift to remote models.

Illinois joined the growing list of states to legalize marijuana as of January 1, 2020.  Employers with employees in Illinois should consider how the new law may affect their business, and review their policies to ensure compliance with the statute.

As an initial matter, state legalization will not affect employees in certain job positions.  The Illinois law states that corrections officers, law enforcement officers and several other public employees cannot use marijuana, even when they are off-duty.  In addition, employees with commercial drivers’ licenses subject to federal Department of Transportation regulations will remain subject to federal restrictions.

On June 5, 2019, Nevada Governor Steve Sisolak signed into law Assembly Bill No. 132 (“A.B. 132” or the “new law”), which is the first state law to curb pre-employment marijuana drug tests.  The new law has two primary effects: 1) it makes it unlawful for Nevada employers to fail or refuse to hire a prospective employee because the applicant submitted to a screening test and the results of the test indicate the presence of marijuana; and 2) it provides employees who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional screening test within the first 30 days of employment. 

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use.  Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

Massachusetts’ highest court last month became the first nationally to rule that many job applicants and employees who are medically certified to use marijuana cannot be automatically denied employment if they test positive for the drug.

Massachusetts is one of many states – now more than half – with statutes permitting marijuana use for medicinal purposes.  Those state laws protect users from criminal prosecution, but the large majority of the statutes (including in Massachusetts) are silent on whether employers are free to deny employment to those who test positive for “medical marijuana.”  Until now, every court to rule on the issue had held that employers may refuse to hire those individuals based simply on a positive test.

With this ruling, employers in the Bay State must revamp their thinking and possibly even hire or retain known medical marijuana users.

As we previously discussed, employers continue to grapple with the workplace effect of medical marijuana laws (enacted in twenty-three states and the District of Columbia), as well as the recreational marijuana laws of Colorado, Washington, Oregon and Alaska. Notwithstanding these laws, marijuana remains illegal under the federal Controlled Substances Act, and all courts to have addressed the issue thus far have held that employers may continue to insist on a drug-free workplace, conduct drug tests, and take adverse employment action based on positive drug tests. 

Twenty-three states and the District of Columbia have enacted laws which decriminalize the use of marijuana for medical purposes.  Under those statutory schemes, individuals with qualified medical conditions may become registered cardholders and obtain cannabis for medical purposes, often from state-regulated dispensaries.  These developments present an array of new challenges for employers to navigate.