April 2019 HL Quarterly Update

01 Apr April 2019 HL Quarterly Update

Marihuana and the Workplace: An Explanation of Employer Rights
As of December 6, 2018, marihuana was made legal for recreational use in Michigan.  The use of medical marihuana has been legal in Michigan since 2008 when Michigan enacted the Michigan Medical Marihuana Act (MMMA). Marihuana use is becoming mainstream as voters across the nation approve ballot incentives for the legalization of marihuana for recreational, social and medical use. When Michigan passed incentives for the legalization of the recreational use of marihuana in December of 2018, Michigan joined nine other states and the District of Columbia. States that have approved recreational and medical use of marihuana grapple with setting limits on marihuana use as it pertains to drivers behind the wheel.

THC, the principal psychoactive component of marihuana, can stay in the bloodstream for weeks after it has been ingested.  A person can test positive for THC in their blood or urine long after ingesting the drug and long after the “high” passes. Toxicologists, neurologists, and pharmacologists don’t know how to measure when and to what extent marihuana causes impairment.  At present, there is no agreed upon medical science as to how many nanograms of THC equals impairment. For alcohol, the measure for impairment is a bright line test.  If your blood alcohol is 0.08 or higher, you are impaired. 

Michigan’s legalization of both recreational and medical use of marihuana does not limit an employer’s right to establish and enforce drug policies. Many of the protections afforded under the MMMA are no longer necessary given the legalization of the use of recreational marihuana. While Michigan law recognizes marihuana as a viable medical treatment, employers often express concerns over their ability to maintain safe worksites and the legal risks created by marihuana in the workplace. This article will help employers assess these legal risks, and will clarify employers’ rights with regards to employees who use medical marihuana.

Despite Being Generally Inconsistent, Michigan and Federal Law Agree on Employer’s Right to Drug Test

Many employers’ confusion about their rights stems from the disparate treatment of marihuana under Michigan and federal law. While Michigan recognizes marihuana as a viable medical treatment, the Controlled Substances Act (CSA) lists marihuana as a Schedule I substance with no redeeming medicinal qualities. The Michigan legislature expressly acknowledged this conflict with federal law when it enacted the MMMA in 2008, observing that “states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.” More recent changes to Michigan law have paved the way for the production and sale of marihuana infused products, have established a legal framework under which dispensaries can operate, and have established the Medical Marihuana Licensing Board to regulate virtually every aspect of marihuana production and distribution.

Despite Michigan’s general tolerance for medical marihuana and a more recent relaxation of its marihuana laws, federal law remains contradictory. The Americans with Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals because of a disability, reflects the federal law position that marihuana is an unsafe substance with no legitimate medical use. Thus, the ADA allows private employers to test both applicants and employees for the presence of “illegal” drugs and make employment decisions based upon the results of that testing. The ADA accomplishes this, in part, by excluding from its definition of “qualified individual[s] with a disability,” people engaged in the use of illegal drugs as defined under the CSA.

Given conflicting federal and state laws, many courts have addressed the question of which law applies to employers – federal or state. When faced with a decision between the two, the answer is federal. However, when examining an employer’s rights concerning employees with medical marihuana prescriptions, answering this question is unnecessary. Instead, the MMMA specifically provides that “nothing in th[e] act shall be construed to require . . . [a]n employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.” MCL 333.26427(c)(2). Michigan law places further limitations on medical marihuana, including prohibiting people from performing tasks under the use of marihuana when doing so would constitute negligence or professional malpractice and possessing or using medical marihuana on a school bus, on school grounds, and in a correctional facility. Additional limitations include prohibitions against smoking marihuana on any form of public transportation, in any public place, or operating all manner of motor vehicles while under the influence of marihuana.
Despite general disagreements between Michigan and federal law regarding marihuana, Michigan law is consistent with federal law to the extent that employers can establish and enforce drug policies.

Employer Drug Testing Guidelines

Under both state and federal law, Michigan employers are not required to accommodate employees who choose to use medical marihuana. Employers have the right to:

1. Test for illegal drugs as a precondition to employment.
2. Test for illegal drugs or alcohol based on a reasonable suspicion that an employee is working under the influence of illegal drugs or alcohol.
3. Test for drugs, randomly, if such tests are job-related and consistent with a business necessity.
4. Enforce disciplinary policies evenhandedly for positive drug tests, up to an including termination.

Federal Case Law Demonstrates Employers’ Ability to Drug Test

Casias v Wal-Mart Stores, Inc, 695 F.3d 428 (6th Cir. 2012), provides a helpful demonstration of a Michigan employer’s ability to enforce a zero-tolerance drug policy under the MMMA’s employer protections. Plaintiff, a Wal-Mart employee, was prescribed medical marihuana – and carried a valid medical marihuana card – for treatment of sinus cancer and an inoperable brain tumor. Plaintiff was injured at work, and a post-injury drug test at occupational health returned positive for marihuana. Plaintiff was terminated for violating his employer’s drug policy. Plaintiff brought suit, arguing that he was wrongfully terminated because the plain language of the MMMA protects patients from disciplinary action in a private employment setting when the patient is legally taking. Interpreting the MMMA, the court confirmed that the MMMA does not impose restrictions on private employers.

Practical Considerations and Best Practices for Drug Testing

Even with an employer’s ability to administer a robust drug testing policy, unencumbered by Michigan’s marihuana laws, workers with prescriptions for medical marihuana will still be on the job site, which can raise liability concerns. In addressing these concerns, the importance of maintaining a strong substance abuse policy cannot be overstated. Employers with consistently applied, zero-tolerance substance abuse policies will be able to assert a willful misconduct defense in a workers’ compensation case and will be better-equipped to address other potential legal issues. In administering these policies, employers should be sure to:

1. Provide employees with a written substance abuse policy at the time of hire.
2. Develop guidelines to help supervisors identify signs of potential impairment.
3. Only test employees based on current observations.
4. Obtain a second opinion when a supervisor suspects impairment.
5. Test as soon as possible after relieving an employee from duty due to suspected impairment.
6. When a sample is obtained, maintain and document a chain of custody.
7. Maintain confidentiality.
8. Educate supervisors and employees on your company’s policy.
9. Consistently enforce your company’s policy.
10. Keep thorough records.

 
Medical Marihuana Remains a Non-Reimbursable Treatment Under the Workers’ Disability Compensation Act
 
From a workers’ compensation insurance perspective, medical marihuana remains a non-reimbursable treatment under Michigan’s Workers’ Disability Compensation Act. Whether medical marihuana eventually becomes a reimbursable treatment will depend on medical evidence. Currently, the Official Disability Guidelines (ODG), American College of Occupational and Environment Medicine Guidelines (ACOEM), and state medical treatment guidelines fail to list marihuana as a viable treatment option. This is due to the fact that there are no quality controlled clinical data with cannabinoids, which is partially the result of marihuana’s Schedule I classification under the CSA.
 
Employer Rights to Test for Medical Marihuana are Intertwined with the Controlled Substances Act
 
If marihuana’s classification under the CSA were to be downgraded from Schedule I, without corresponding amendments to the ADA, employees with medical marihuana prescriptions would be afforded much greater protections from drug testing. The CSA classification of marihuana is vital to the operation of the ADA. The ADA relies on this classification to define “illegal” drugs as well as for determining what a “medical examination” is. If marihuana were no longer a Schedule I drug under the CSA, then it would likely not be an “illegal” drug for someone with a valid prescription under the ADA. And if medical marihuana is not an “illegal” drug under the ADA, testing for marihuana likely would become a “medical examination” under the statute. And if testing for marihuana is a “medical examination” under the ADA, only drug tests for job-related inquiries would be proper, rather than the broader level of testing employers currently enjoy.
 
Despite some general confusion resulting from the disparity between Michigan and federal law as it pertains to marihuana, employers have the ability to enforce robust drug testing policies. Employers with strong drug testing policies are better able to protect themselves from liability issues, and ensure maintenance of a safe workplace.
 
For additional advice on developing, maintaining, and enforcing substance abuse policies, contact Hanba & Lazar at (810) 767-9400.


 New Workers’ Compensation Magistrates

 
Recently elected Governor Gretchen Whitmer announced several changes to the Workers’ Compensation Board of Magistrates on January 25, 2019. Three Magistrates did not seek reappointment: Bea Logan, Chief Magistrate Lisa Klaeren, and Brian Boyle. All of the vacant seats were filled with new appointments.
 
David DeGraw, a Republican, was appointed to succeed Bea Logan. While in private practice, Magistrate DeGraw spent time doing defense work and later became a member of the Workers’ Compensation Appellate Commission. Magistrate DeGraw’s appointment expires January 26, 2023.
 
Michael Heck, a Democrat, was appointed to succeed Chief Magistrate Lisa Klaeren. Magistrate Heck most recently spent time as associate counsel at SEVA Law Firm, and before that was a practicing Plaintiff attorney for many years. Magistrate Heck’s appointment expires January 26, 2023.
 
Philip Della Santina, a Democrat, spent time as a defense attorney many years ago, but more recently was a longtime member of the Plaintiff firm of Davidson, Breen & Doud. Magistrate Della Santina’s appointment expires January 26, 2023.
 
Additionally, a number of Magistrates sought and received reappointments from Governor Whitmer.
 
E. Louis Ognisanti, a Republican, was reappointed to the bench and will sit in both the Saginaw and Pontiac Agencies. While in private practice, Magistrate Ognisanti was a partner at the firm of Braun Kendrick, where he did defense work.
 
Chris Slater, a Republican, was reappointed to the bench and will sit in both the Kalamazoo and Grand Rapids Agencies. Magistrate Slater previously operated his own firm, Slater Law Office.
           
Luke McMurray, a Democrat, was reappointed to the bench and will sit in the Saginaw Agency. Like Magistrate Slater, Magistrate McMurray previously operated his own firm, McMurray & Associates, where he did defense work. Additionally, Magistrate McMurray was selected by Governor Whitmer as the Chairperson of the Board of Magistrates, also known by the title of Chief Magistrate.
 
David Grunewald, a Democrat, was reappointed to the bench and will sit in the Detroit Agency. Previously, Magistrate Grunewald served as a trial specialist with CAN Insurance Companies.
 
All four of the newly-reappointed Magistrates were will serve terms expire on January 26, 2023.
 
Source: https://www.michigan.gov/whitmer/0,9309,7-387-90487-488374–,00.html

The Five Ws

 
In order to engage in meaningful risk management of a Workers’ Compensation case, we must constantly evaluate the facts and circumstances involved. Whether we are considering a trial or a settlement, we can always use The Five Ws as a roadmap for approaching file valuation.
 
Who?
 
Plaintiff

• What is the Average Weekly Wage/Workers’ Compensation Rate?
• What is Plaintiff’s age/life expectancy?
• How long has Plaintiff been employed by Defendant?
• What was Plaintiff’s occupation?
• Are there any issues with Plaintiff’s credibility, such as a criminal history?
• Does plaintiff have transferable skills?

Plaintiff’s Attorney

• Are they competent?
• Are they credible?
• What reputation have they built during prior cases?

Medical Experts

• Who was Plaintiff’s treating physician?
• Who was our independent medical evaluator?
• What were the credentials of these physicians?
• Were these physicians credible?

Employer

• Is the employer supportive of the Plaintiff or not?
• Are the employer and their representatives credible?
• What meaningful input can the employer provide?

What?

Legal Issues

• Does the injury arise out of employment?
• Was Plaintiff engaging in misconduct at the time of the injury?
• Did Plaintiff make a timely claim for benefits?
• Can we apply the one or two year back rule to mitigate damages?

– Does Plaintiff have any relevant pre-existing medical conditions?
– What are the facts surrounding the injury, especially if the injury is questionable?
– Are there any possibilities for coordination of benefits?
– Do subrogation possibilities exist?
– Did we engage in surveillance? With what result?
– Are we dealing with significant present and future medical expenses?
– Are there any outstanding liens?
– Is Plaintiff Medicare eligible? Have we fully considered Medicare’s potential interest, including the possibility of a set-aside and conditional payments?

When?

– Are we facing pressure to settle before Medicare’s interest in a settlement attaches?
– Is Plaintiff still working? Are they working with Defendant or another employer?
– Can we reduce cost by evaluating and settling the case early?

Where?

Who is the presiding Magistrate?

• What is their reputation based on prior decisions?
• Do they have any possible bias or prejudice?

– Are there any issues regarding venue?
– Would facilitation be appropriate?

Why?

Can we eliminate older potential risks?

• Is there a possibility of a wrongful termination suit?
• Does Plaintiff have grounds for an EEOC claim?

– Is there a sum certain involved?
– Can we send a message by establishing precedence on a certain issue?



Please send us your comments or questions, and if there is a topic you would like to see discussed in the next Quarterly, let us know. We can be reached at (810) 767-9400 and email about the Quarterly should be sent to Jonathan Rea at [email protected].