Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

By Chris Leh

On February 5, 2013, a task force convened by Colorado’s governor to address issues arising out of Amendment 64, a state constitutional amendment that purports to legalize the recreational use of marijuana by adults in Colorado, recommended that “employers may maintain, create new, or modify existing policies in response to the passage” of the law. The recommendation is a preliminary signal that even as the state liberalizes its marijuana laws concerning medical and recreational use, employers still may regulate all marijuana use, even off-duty and off-premises use, by their employees.

In 2000, Colorado voters approved Amendment 20, which created a legal framework regarding medical marijuana. The law did not purport to legalize the drug. But those who suffered from “debilitating medical conditions” and whose physicians stated that they “might benefit from the medical use of marijuana” could obtain state registry cards that permit them to possess, grow, and use small amounts of the drug for medicinal purposes. Amendment 20 immunized users and their caregivers from prosecution for minor state law marijuana crimes. It contained a single brief reference to employment issues: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” During the 12 years since Amendment 20’s passage, Colorado employers have continued to create and enforce zero-tolerance policies and discipline employees for testing positive for marijuana, whether they were medical marijuana patients or not. With the exception of a case in which the drug test of a medical marijuana patient failed to pass statutory muster to support disqualification for unemployment benefits, the Colorado Court of Appeals has supported this approach.

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By Katie Goetzl

The U.S. Court of Appeals for the District of Columbia Circuit, in Americans for Safe Access v. Drug Enforcement Agency, No. 11-1265 (Jan. 22, 2013), ruled that the Drug Enforcement Administration’s (DEA) denial of a petition to initiate proceedings to reschedule marijuana was not arbitrary and capricious. The court’s decision means that the rejected petition will not be sent back to the DEA for reconsideration.

Marijuana is currently classified as a Schedule I drug under the Controlled Substances Act (CSA). A Schedule I drug has, among other things, a high potential for abuse and no currently accepted medical use in treatment in the United States. Non-Schedule I drugs may be obtained for personal medical use by prescription. Interested parties can petition the DEA to reclassify drugs to less restrictive schedules. In 2002, the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana. As required, the DEA submitted the petition to the Department of Health and Human Services (HHS) for scientific and medical evaluation and a recommendation regarding the appropriate schedule. HHS’s recommendation is binding on the DEA as long as it is based on scientific and medical determinations. In 2006, HHS concluded that marijuana lacks a currently accepted medical use in the United States. Five years later, the DEA denied the petition, finding that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.” The Coalition to Reschedule Cannabis, two other advocacy groups, and several individuals petitioned for review of the DEA’s action.

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By Katie Goetzl

On December 3, 2012, the U.S. Department of Transportation's (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes.

The DOT requires testing of applicants and employees in safety-sensitive transportation positions – such as pilots, truck drivers, train engineers, ship captains, school bus drivers, and pipeline emergency response personnel – for marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). Applicants must be drug tested before they begin performing DOT-covered safety-sensitive duties, and employees must be drug tested in certain circumstances, including following an accident, randomly, and when reasonable suspicion of drug use exists. All confirmed positive drug tests are reviewed by a medical review officer (MRO). During that review process, the test subject is permitted to provide the MRO with information that would explain the positive test result, such as a prescription. If the test subject provides a legitimate medical explanation for the confirmed positive test result, then the MRO will report the test result to the (prospective) employer as verified negative. If the test subject does not provide a legitimate medical explanation, he or she must be removed from safety-sensitive duties and referred to a substance abuse professional for evaluation.

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The 2012 elections placed a number of marijuana initiatives before state voters around the United States, ranging from efforts to legalize the sale and use of marijuana for recreational purposes to further expansion of the "medical marijuana" laws that currently exist in 17 states and the District of Columbia. Voters in Colorado and Washington passed initiatives directing their states to decriminalize the possession of marijuana by adults for recreational use. Oregon voters, in contrast, rejected a ballot initiative that would have legalized marijuana for recreational use. Massachusetts has adopted a "medical marijuana" law that decriminalizes the use and possession of marijuana by state residents with debilitating medical conditions. Montana voters appear to have authorized amendments to that state's existing medical marijuana law that narrow who is eligible to use marijuana for medical reasons. To learn more, please see Littler's ASAP, Marijuana Laws Liberalized in Colorado, Washington – But Effect on Workplace Policies Likely Small, by Nancy Delogu and Chris Leh.

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Recently enacted legislation in Massachusetts will significantly affect employers’ use of criminal history information for employment purposes. While most provisions of the new law (pdf) do not go into effect until May 2012, one provision, effective on November 4, 2010, requires the immediate attention of multi-state employers.

This provision generally prohibits employers from inquiring in an “initial written application form” about an applicant’s criminal history. Two narrow exceptions permit questions about criminal history if a federal or state regulation (1) disqualifies the applicant from employment in the open position based on a criminal conviction; or (2) bars the employer from hiring for one or more positions an individual with a criminal conviction. The second exception, as written in the statute, is ambiguous. It is unclear whether an employer who is barred from hiring a convicted criminal for certain positions may inquire into an applicants’ criminal history on the initial employment application used for a variety of positions, including those that can be filled by a convicted criminal. This issue is particularly important for multi-state employers who use a standard job application form for all jurisdictions.

Before the new law’s November effective date, all multi-state employers should carefully reviewany job application form that is completed by Massachusetts applicants. If the employer has no position for which federal or state law prohibits the hiring of a convicted criminal, the employer should add an instruction to Massachusetts applicants, immediately below any question seeking information about criminal history, directing Massachusetts applicants not to respond. If the employer has one or more positions for which federal or state law prohibits the hiring of a convicted criminal, the employer should consider an instruction which directs Massachusetts applicants not to answer the question unless they are applying for one or more of a list of specified positions. The list would include those positions for which state or federal law prohibits the hiring of a convicted criminal.

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Less than one week after a state court judge halted New York state’s emergency regulation requiring mandatory H1N1 flu shots for most health care workers, Governor Paterson announced that the State Health Commissioner is suspending the requirement due to a limited supply of vaccine - approximately 23% of the anticipated amount. Available vaccines will instead be used for populations most at risk of serious illness or death, e.g., pregnant women and young people between the ages of 6 months and 24 years.

This entry was written by Philip L. Gordon.

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In response to the swine flu pandemic sweeping the nation, New York in August 2009 became the only state in the United States to adopt an emergency regulation requiring most health care workers who come into contact with patients to get annual vaccinations for both seasonal and swine flu (H1N1) by no later than November 30, 2009. The regulation, issued by the New York State Commissioner of Health, provides a limited exemption for workers with “medical contraindications,” but not for those with a religious or ideological opposition to the vaccination.

In response to the emergency regulation, several unions and other groups filed suit in New York, challenging the mandatory vaccinations and the authority of the New York State Health Commissioner to institute mandatory vaccinations.

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The swine flu pandemic means that employers need information about employees who have swine flu, or who have been exposed to it, but what exactly can employers ask, and what are their obligations when they get an answer? Here are some answers to these and other frequently asked questions about the intersection between swine flu and workplace privacy.

Q: Is it a HIPAA violation to require employees to disclose whether they have swine flu, have symptoms of swine flu, or have been exposed to swine flu?

A: No. HIPAA does not apply to questions that an employer asks employees about their health. In the workplace, HIPAA applies only to individually identifiable health information created or received by, or on behalf of, the employer in its capacity as the administrator of a HIPAA-covered plan, such as self-insured group health, dental or vision plans; a health care reimbursement flexible spending account; or an employee assistance program. Put more succinctly, HIPAA applies only to individually identifiable health information created or received to administer a HIPAA-covered plan.

Q: Does any other law apply to an employer’s efforts to obtain information about whether an employee is, or maybe, infected with swine flu?

A: In certain circumstances described below, the Americans with Disabilities Act (ADA) will apply.

Q: Can an employer require that employees with symptoms of swine flu be tested?

A: Yes. Under the ADA, an employer who reasonably believes, based on an individualized assessment, that an employee has symptoms of swine flu can require that the employee undergo medical testing to determine whether the employee, in fact, is infected. Before requiring testing, the employer should be familiar with the symptoms of swine flu and have sufficient information to confirm that the employee has those symptoms. Any required testing must be limited to a test for swine flu. In addition, the employer is required to pay any costs associated with the test. The employer must treat the test results as confidential.

Note: The answer above is based upon the conservative assumption that the ADA’s restrictions on medical examinations of current employees applies regardless of whether swine flu is a “disability" as defined by the ADA. We are taking this conservative approach based on EEOC guidance which defines a "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairments or health" and provides as an example, "blood, urine, saliva, and hair analyses to detect disease or genetic markers." This definition would encompass the nasal swab test for swine flu. A court might find the EEOC’s guidance to be overbroad to the extent that it encompasses medical tests, like the test for swine flu, directed exclusively at discerning the presence of a temporary condition that is not subject to protection under the ADA.

 

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The rumors are flying: The TV news ran a story last night on the evacuation and de-contamination of the local public school after one of the football players missed Saturday’s game because of infection with the MRSA Superbug.  One of your employees happens to have a son on the football team, and she called in sick on the Monday after the game.  Employees who work in the area of her cubicle have “petitioned” HR not to let the mother return to work until she has submitted written documentation from her physician that she is not infected or contagious.  Where does HR even start to unravel the privacy concerns of the mother and her child, and how should those concerns be weighed against the health interests of the mother’s co-workers? 

The legal analyses related to this issue are among the most complex in the area of workplace privacy, involving the interplay of the Americans with Disabilities Act (ADA); the Family and Medical Leave Act (FMLA); the Health Insurance Portability and Accountability Act of 1996 (HIPAA); state privacy statutes, such as California’s Confidentiality of Medical Information Act; state common law; and, at least in California, state constitutional law. 

Before wading into this quagmire, HR professionals should consider the following guidelines for balancing the privacy interests of potentially infected workers and the health interests of co-workers.

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On November 6, 2007, the California Supreme Court heard long-awaited arguments in the closely watched "medical marijuana" case of Ross v. RagingWire Telecommunications, Inc.  Gary Ross, a network administrator, was terminated eight days into his employment after testing positive for marijuana.  Ross challenged the termination because he had a doctor's recommendation that he use marijuana to relieve chronic back pain.  Ross has alleged that because his use of marijuana was lawful under California's Compassionate Use law, his employer was obligated under state law to accommodate his disability by permitting him to use marijuana as recommended by his physician.  Ross’s attorneys also argued that his discharge violated California's public policy, including California’s constitutionally created right to privacy.

Marijuana use is illegal under federal law.  California has effectively “decriminalized” marijuana use by adopting the Compassionate Use Act of 1996.  The Act allows individuals to purchase, possess, cultivate, and use small quantities of marijuana for medicinal purposes without fear of prosecution by state officials.  Federal officials may prosecute those who use marijuana pursuant to the state law, but as a practical matter, enforcement efforts are much more likely to be focused on cultivation and distribution networks.  The statutory language makes it clear that employees may not possess or use marijuana at work – leading Ross’s attorneys to argue that by implication, the law intended that employees be permitted to use the drug outside of work. Continue Reading...

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