Drug Abuse and Rehabilitation

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Employment & Labor Law for Public Safety Agencies

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Drug Abuse & Rehabilitation

• Unlawful drug use
• Prescriptive drugs

Monthly Law Journal Article: Medical Marijuana and Public Safety Personne l,2011 (11) AELE Mo. L. J. 201.

UNLAWFUL DRUG USE

     The plaintiff was issued a medical marijuana registry card under state law. Based on this, and relying on a letter issued by the federal ATF, a firearms dealer refused to sell her a firearm. She claimed that federal statutes, regulations, and guidance that prevented her from buying a gun because of her medical marijuana use violated her Second Amendment rights. Intermediate scrutiny was applied, and the court properly held that 18 U.S.C. 922(d)(3), 27 C.F.R. 478.11, and the ATF's Open Letter at issue did not place a severe burden on the plaintiff's Second Amendment rights. The degree of fit between the laws and guidance and the goal of preventing gun violence was reasonable and survived intermediate scrutiny. The appeals court also rejected First Amendment and Fifth Amendment due process claims. There was no constitutionally protected liberty interest in holding a medical marijuana registry card at the same time as buying a firearm. Wilson v. Lynch, #14-15700, 2016 U.S. App. Lexis 16108 (9th Cir.).
     While the state of Colorado has legalized the use of marijuana for both medical and recreational purposes, the Colorado Supreme Court has ruled that a quadriplegic employee who uses marijuana, even with a prescription and even off-duty can be fired for such use. In this case, an employee who tested positive for THC during random drug testing could not sue for wrongful discharge under state law despite being a medical marijuana patient, with a prescription granted for the drug to help control violent muscle spasms. Because the use of marijuana is unlawful under federal law, its use does not fall within the protection of a state statute governing "lawful" activities. Under the Supremacy Clause of the U.S. Constitution, when there is a conflict between federal and state law, federal law prevails, including in the context of marijuana regulation. While the case involved a private employer, the same reasoning would apply with a public employer. Coats v. Dish Network, LLC, #13SC394, 2015 Colo. Lexis 520.
     In Colorado, where recreational use of marijuana is now legal, along with medical use of marijuana, an intermediate state appeals court has ruled by 2-1 that users of either recreational or medical marijuana in the state can legally be fired, despite the fact that Colorado also has a law providing employment protection for doing legal things while off duty. The decision is based on the illegal status of marijuana under federal law. The case involved a private employer who fired a quadriplegic medical marijuana patient for off the job marijuana use. He tested positive for marijuana The court also said that a showing that the drug use impaired job performance was not required. Coats v. Dish Network, #12-CA0595, 2013 Colo. App. Lexis 616, 2013 COA 62.
     An employee of a private company was fired for testing positive for marijuana on a drug test. He sued for wrongful termination, and claimed that the fact that he was a legal registered user of medical marijuana under state law barred the employer from firing him for its use. The appeals court held that the state law provided no protection to the employee against termination for drug use. The statute did not purport to regulate private employment actions, and, if the legislature intended any such broad extension of employee rights against termination for the use of marijuana, illegal under federal law, and illegal under state law too, except for permitted medical purposes, it would have expressly enacted it. Casias v. Wal-Mart, #11-1227, 2012 U.S. App. Lexis 19634, 2012 Fed. App. 0343P (6th Cir.).
     While Washington state law allows the medical use of marijuana for patients with a certificate for certain conditions, the Washington Supreme Court has ruled that this does not bar employers in the state from firing employees with such certificates for marijuana use, nor require employers to "reasonably accommodate" medical marijuana users. The decision prohibits the state's Human Rights Commission from investigating complaints about such firings. The court reasoned that, despite the allowance for medical use under state law, it would violate public policy to require employers to sanction criminal conduct by retaining such workers, since use of the drug is a federal crime. Roe v. TeleTech Customer Care Mgmt., #83768-6, 2011 Wash. Lexis 393.
     Oregon Supreme Court holds that employees who smoke marijuana to relieve pain or nausea can be fired for drug use even if they have a state-issued medical marijuana card. Laws requiring employers to accommodate disabled workers do not extend to medical marijuana use. Emerald Steel v. Bur. of Labor & Indus., #S056265, 2010 Ore. Lexis 272, 348 Ore. 159, 230 P.3d 518. Note: U.S. Supreme Court has concluded that the federal Controlled Substances Act does not contain a "medical necessity" exception that permits the manufacture, distribution, or possession of marijuana for medical treatment. U.S. v. Oakland Coop., #00-151, 532 U.S. 483 at 49 (2001).
     Arbitrator concludes that management had just cause to discharge a police officer who tested positive for barbiturates; the grievant’s reliance on the Douglas Factors was misplaced because, under the agency’s "Table of Penalties," the punishment for the first drug offense is removal. D.C. Metro. Police Dept. and FOP, FMCS Case #08/54130-A, 126 LA (BNA) 151 (Evans, 2008).
    Arbitrator sustains the termination of a police officer who tested positive for benzoylecgonine (ecgonine benzoate), the primary metabolite of cocaine. Although the grievant claimed that he was "an excellent candidate for rehabilitation," the arbitrator noted that "an employer has no legitimate interest in whether or not a discharged employee ever achieves rehabilitation." Management did not act in capricious, unreasonable, or arbitrary manner when it terminated the grievant. City of Pharr, Tex. and Individual Grievant, 125 LA (BNA) 1729, AAA Case #A70-390-00593-08 (Jennings, 2009).
     California Supreme Court, in a 5-to-2 holding, allows an employer to fire workers who use medical marijuana, even when the employee has a doctor's written approval. Ross v. Ragingwire Tel., #S138130, 2008 Cal. Lexis 784.
     Appellate court dismisses the appeal of a police applicant that was rejected because his polygraph examination indicated deception concerning his involvement with illegal drugs and narcotics. Management did not act irrationally or arbitrarily in relying on the results of their own polygraph test as well as a secondary review conducted by the Vermont state police. Mullen v. County of Suffolk, #2006-03220, 2007 N.Y. App. Div. Lexis 9671 (3rd Dept.)
     Oregon Supreme Court rules, under its state disabilities law, that an employer is not obligated to retain workers who use medical marijuana. Washburn v. Columbia For. Prod., #S52254, 2006 Ore. Lexis 354 (Ore. 2006).{N/R}
     Maryland reverses the termination of a nonsensitive corrections employee that tested positive for marijuana. There was no showing she used it on the job or was impaired while on duty. Bond v. Dept. of Public Safety and Corr. Servs., 2400-03, 2005 Md. App. Lexis 29, 22 IER Cases (BNA) 551 (Md. Spec. App. 2005). [2005 FP May]
     Appellate court reverses a trial court order reinstating a firefighter who twice tested positively for amphetamine and methamphetamine. Termination was the appropriate response. Coweta Co. v. Henderson, A04A1686, 270 Ga.App. 153, 606 S.E.2d 7, 2004 Ga. App. Lexis 1152 (2004). {N/R}
    Supreme Court declines to review the ADA suit of a firefighter who was fired after a drug arrest and for failing to undergo outpatient therapy as required by an earlier disciplinary settlement. O'Brien v. Hackensack, #03-906, 124 S.Ct. 1422, 2004 U.S. Lexis 1111 (2004); prior decis. at 2003 U.S. App. Lexis 12434 (Unpub. 3d Cir. 2003). {N/R}
     Oregon courts affirm an arbitrator's decision to reinstate an officer who used marijuana and lied about it. Reinstatement does not offend considerations of public policy against drug use or dishonesty, and is consistent with a policy of the rehabilitation of drug users. Washington Co. Police Assn. v. Washington Co., Ore. Empl. Rel. Bd. #UP 76-99; aff'd, SC#S49518, 335 Ore. 198, 63 P.3d 1167, 2003 Ore. Lexis 120, 172 LRRM (BNA) 2037 (Ore. 2003); action on remand at #A114208, 69 P.3d 767; 2003 Ore. App. Lexis 629, 172 LRRM (BNA) 2592 (Ore. App. 2003). [2003 FP Sep]
      Arbitrator reinstates a municipal equipment operator who was fired for testing positive on a random drug test. A two month suspension was proper, in light of 19 years of good service. City of Oklahoma City and AFSCME L2406, FMCS Case #01/16221, 116 LA (BNA) 1117 (Jennings, 2002). [N/R]
    Arbitrator reinstates a firefighter who was terminated for unlawful drug use, because he was placed in a diversion program, which will remove the conviction. Back pay was disallowed, and the city can test him for drug use discharge him if he fails to complete the diversion program or tests positive for drug use. Stockton (City of) and Stockton Firefighters L-1229, CSMCS Case #ARB-00-0413, 116 LA (BNA) 390 (Staudohar, 2001). [2002 FP Feb]
     Federal court rejects the privacy and wrongful termination claim of an ex-trooper who had been videotaped at a pot party before he had been hired. Dasey v. Mass. State Police, #00-11232, 2001 U.S. Dist. Lexis 16149 17 IER Cases (BNA) 1708 (D. Mass. 2001). [2002 FP Jan]
     Drug Free Workplace law, with a confidential assistance provision, did not protect a lieutenant who admitted marijuana use following a random test, and then began treatment. Miss. Dept. of Corr. v. Corley, #1999-CC-0261, 769 So.2d 866, 2000 Miss. App. Lexis 478, 16 IER Cases (BNA) 1597. [2001 FP 6-7]
     Termination of a city employee, following his arrest for possession of cocaine, did not violate the ADA. Pernice v. City of Chicago, #00-1865, 237 F.3d 783, 2001 U.S. App. Lexis 372, 11 AD Cases (BNA) 608 (7th Cir.). {N/R}
     Ohio appellate court sustains the termination of a firefighter who was in a drug abuse assistance program. Allgood v. City of Akron, #19554, 2000 Ohio App. Lexis 183 (9th Dist.). [2000 FP 41-2]
     Termination of police officer for drug use upheld, following an EMIT and GC-MS confirmation. Casey v. NYCHA, 672 N.Y.S.2d 305 (A.D. 1998). {N/R}
     Recovering drug abusers are a protected group under the N.J. state discrimination laws, and could challenge coercion, intimidation and biased police enforcement activity, allegedly intended to harass them from the neighborhood. Fowler v. Bor. of Westville, 97 F.Supp.2d 602, 2000 U.S. Dist. Lexis 6612 (D.N.J.). {N/R}
     A Pennsylvania city violated the ADA rights of a firefighter, who was discharged after his arrest, by agreeing to rehire him on stated conditions and thereafter requiring him to participate in a $7,000 drug treatment program which he could not afford. The city failed to accommodate his disability when it denied him the opportunity to participate in an acceptable alternative drug program that was covered by his insurance. Herman v. Allentown, 7 AD Cases (BNA) 1326 (E.D.Pa. 1997). {N/R}
     Federal appeals court upholds termination of NYC firefighter who abused cocaine. Dept. had no obligation to refer him for treatment and rehabilitation. D'Amico v. City of N.Y., 955 F.Supp. 294; aff'd, 132 F.3d 145, 1998 U.S. App. Lexis 113 (2d Cir.). [1998 FP 53-4]
     ADA and rehabilitation counseling will not prevent the termination of a firefighter for drug use and possession. Dauen v. Bd. Fire & Police Cmsnrs., 656 N.E.2d 427 (Ill.App. 1995). [1996 FP 71-2]
     NY appellate court sustains termination of a detective who refused to take a drug test. Her ID was found at a "known drug location" which raised a "reasonable suspicion" of drug use. Felder v. Kelly, 619 N.Y.S.2d 46 (A.D. 1994). {N/R}
     Appellate court confirms termination of NOFD captain who tested positive for cocaine use. The laboratory's alleged failure to inform him that he had the right to have an independent lab retest his urine same did not warrant a reversal of the decision to fire him. Recasner v. Dept. of Fire, 645 So.2d 1291 (La.App. 1994). {N/R}
     Federal MSPB upholds termination of a correctional program officer for refusal to take a drug test predicated on the reasonable suspicion standard. Garrison v. Dept. of Justice, 33 (1609) G.E.R.R. 471 (MSPB 1995). {N/R}
     Appeals court upholds rejection of a police applicant who abused several drugs and admitted to false statements. Havern v. Senko, 620 N.Y.S.2d 470 (A.D. 1994). [1995 FP 86]
     Revised FBI employment guidelines ease prohibition against former drug users. 32 (1556) G.E.R.R. 345 (3/7/94). [1994 FP 87]
     Police officer was lawfully fired for cocaine use, although there was an irregularity in the numbering procedures on the urine samples. Snelson v. Bd. of Police Cmsnrs., St. Louis, 859 S.W.2d 794 (Mo.App. 1993). {N/R}
     A police applicant who was rejected for former casual and minor drug use is not disabled under the A.D.A. Hartman v. City of Petaluma, 841 F.Supp. 946 (N.D.Cal. 1994). [1994 FP 72]
     Air Force was not required to reinstate a civilian fire inspector who tested positive for cocaine use. Repress v. McPeak, #03930064, 17 (6) MPDLR (ABA) 617 (EEOC 1993). [1994 FP 72]
     Appeals court rejects a police officer's defense he "inadvertently" ingested cocaine. Harmon v. New York City Police Dept., 591 N.Y.S.2d 411 (A.D. 1992). [1993 FP 86]
     Appellate court upholds rejection of police powers sought by a railroad police officer who tested positive for cocaine use. Arana v. Constantine, 592 N.Y.S.2d 835 (A.D. 1993). [1993 FP 136]
     N.Y. Appellate Courts uphold termination of correction officer for presence of cocaine metabolites in urine and state trooper for marijuana use. Torres v. Koehler, 562 N.Y.S.2d 697 (A.D. 1990); Nolan v. Constantine, 563 N.Y.S.2d 141 (A.D. 1990). [1992 FP 5]
     N.Y. Governor vetoes bill preventing discipline of police who fail a drug screen. N.Y. Senate and Assembly Bill #S-2229-A, vetoed 7/26/91.
     State law requiring employers to offer counseling before terminating a first-time, drug-abusing employee, does not prevent a city for discharging a police officer for misconduct that is intertwined with his drug abuse problem. Matter of Copeland, 455 N.W.2d 503 (Minn. App. 1990).
     Pennsylvania police dept. did not have to rehire former undercover narcotics officer who resigned, following his rehabilitation for drug use. Desper v. Montgomery Co., Pa., 727 F.Supp. 959 (E.D. Pa. 1990).
     A Minnesota police officer's single use of cocaine warranted his termination, although single time marijuana abusers are not fired. Likewise, a N.Y. trooper's dismissal for single use was not excessive punishment. City of Minneapolis v. Johnson, 450 N.W.2d 156 (Minn. App. 1990); Garnes v. N.Y. State Police, 549 N.Y.S.2d 876 (A.D. 1989).
     Good record and alcohol dependency did not prevent the termination of a police officer for possession of cocaine; city did not have to provide a rehabilitation program. Minneapolis, City of v. Moe, 450 N.W.2d 367 (Minn. App. 1990).
     Employer could reject rehabilitation of trooper who abused alcohol and illicit drugs, and provide more lenient, treatment-oriented program for alcoholics. Lavery v. Dept. of Highway Safety, 523 So.2d 696 (Fla. App. 1988).
     Veterans administration acted unlawfully in refusing to hire recovering drug addict as nurse. Wallace v. Veterans Admin., 683 F.Supp. 758 (D. Kansas, 1988).
     State trooper's good-faith effort to get treatment for drug & alcohol dependency did not compel employer to retain him pending rehabilitation. Lavery v. Dept. of Highway Safety, 523 So.2d 696 (Fla. App. 1988).
     U.S. Supreme Court holds that employees fired after using drugs in religious ceremonies would be entitled to unemployment benefits if such use is legal in state. Employment Div., Dept. of Human Res. v. Smith, 108 S.Ct. 1444 (1988).
     State officials were entitled to qualified immunity against lawsuit by fired employee claiming religious use of peyote. Warner v. Graham, 845 F.2d 179 (8th Cir. 1988).
     Dismissal of fire fighter for marijuana use not unfair; lab records of urine tests admissible as "business records." Lumsden v. New York City Fire Dept., 522 N.Y.S.2d 4 (A.D. 1987).
     School not liable for teacher's distribution of marijuana to students. Rubio v. Carlsbad Mun. School Dist., 744 P.2d 919 (N.M. App. 1987).
     Termination of police officer appropriate for off-duty drug possession. Willis v. Meehan, 516 N.Y.S.2d 761 (A.D. 1987).
     U.S. Supreme Court unanimously holds that federal court could not set aside arbitrator's reinstatement of employee fired for alleged use or possession of drugs. United Paperworks Intern. Union v. Misco, Inc., 108 S.Ct. 364 (1987).
     Postal employee could be terminated for aiding the sale of drugs, despite the fact that no connection to work place drug use was shown. Parker v. United States Postal Service, 819 F.2d 1113 (Fed. Cir. 1987).
     Firefighter's lose suit against chief for making public a report and charges they used drugs; broken promise of confidentiality does not give employees a right to sue. Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986).
     Firefighter's possession of marijuana and drug paraphernalia not sufficient cause for discharge; privilege against self-incrimination properly invoked during hearings. In Matter of Discharge of John D. Kelvie, 384 N.W.2d 901 (Minn. App. 1986).
     Louisiana appellate court sustains termination of firefighters for on-duty marijuana use; dept. need not provide accused with copy of test results prior to hearing absent a demand. Chauvin v. Houma Fire & Police Civil Service Bd., 496 So.2d 441 (La. App. 1986).
     Police officer properly discharged for drug addiction when it rendered him unfit for duty; department's policy of dismissing heroin addicts but treating alcoholics did not violate equal protection. Heron v. McGuire, 803 F.2d 67 (2d Cir. 1986).
     Court finds dismissal of police officer for possession of marijuana (and other crimes) "shockingly severe" even if charges had been proven. Berenhaus v. Ward, 504 N.Y.S.2d 412 (A.D. 1986).
     Probationary employee could be terminated on failure of two urinalysis tests. Giannandrea v. Meehan, 499 N.Y.S.2d 129 (A.D. 1986).
     Federal Court upholds termination of police officer for possession of marijuana. Hopkins v. City of Wilmington, 615 F.Supp. 1455 (D. Del. 1985).
     Use of cocaine during period of suspension could not be used as a basis to deny reinstatement. Ray v. City and Co. of Denver, 677 P.2d 399 (Colo. App.), cert. den. (1984).
     Use of marijuana warranted suspension, not termination. State Board could not withdraw peace officer certification after civil service commission reduced the penalty. Matter of Ackerson, 335 N.W.2d 342 (S.D. 1983).
     Illinois appellate court orders employment of firefighter applicant who used marijuana, hashish and cocaine. Murbach v. Anderson, 422 N.E.2d 41 (Ill.App. 1981).
     Misinformation to other police officers concerning friend's drug use warranted termination. Slayton v. Board of Fire and Police Cmsnrs. of Streamwood, 430 N.E.2d 41 (Ill.App. 1981).
     Possession of marijuana at correctional facility warrants termination of guard. Stone v. Commonwealth Correctional Instit., 422 A.2d 1227 (Pa. Cmwlth. 1980).
     Pot use distinguished from pot smuggling; federal court denies reinstatement. Richter v. City of Tallahassee, 361 So.2d 205 (Fla. App. 1978).
     Arizona appellate court affirms termination of officer who smoked pot while on undercover assignment. bishop v. Law Enf. Merit System Council, 581 P.2d 262 (Ariz. App. 1978).
     Federal court in Philadelphia orders city to employ former drug addicts. Davis v. Bucher, 451 F.Supp. 791, 17 FEP Cases 918 (E.D. Pa. 1978).
     Federal appeals court reinstates pot smoker; government could not show conviction affected job performance. Young v. Hampton, 568 F.2d 1253 (7th Cir. 1977).
     California fireman wins reinstatement and back pay in marijuana case. Cann v. Civil Service Board of City of Oakland, #456166-0, Super Ct. Alameda Co. (Cal. 1975).
     Fire Dispatcher, fired for on-the-job marijuana use, reinstated by arbitrator; delayed charging process and reliance on mercy, mitigated punishment. City of Madison and AFSCME L-60, (Marshall, 1975).

• PRESCRIPTIVE DRUGS

The highest court in Massachusetts has ruled that an employee who qualifies for the use of medical marijuana under state law but who is fired from her job because of testing positive for marijuana as a result of such lawful use may sue her employer for damages under the state’s handicap discrimination law. The court rejected, however, the argument that there was also an implied private cause of action under the medical marijuana act and for wrongful termination in violation of public policy, holding that there is no implied statutory private cause of action under the medical marijuana statute and that the plaintiff failed to state a claim for wrongful termination in violation of public policy. Barbuto v. Advantage Sales & Marketing, LLC, #SJC-12226, 477 Mass. 456, 78 N.E.3d 37 (2017).

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