Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>

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Co-Chair, Global Employment and Labor Practice

Partner

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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As State Cannabis Approval Grows Higher, When Can You Fire?

As State Cannabis Approval Grows Higher, When Can You Fire? | Employment Law Commentary

As State Cannabis Approval Grows Higher, When Can You Fire? | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

For decades, many employers have categorically prohibited marijuana use given its illegal status under federal law. With a growing number of state and localities legalizing marijuana and creating protections for marijuana users, many employers have been left wondering whether they can continue to lawfully fire or refuse to hire employees and applicants who use marijuana. This Commentary discusses the seeming conflict between federal and state law regarding marijuana and the increasingly shaky grounds for federal preemption in the employment context.Federal Stance on MarijuanaUnder federal law, use and possession of marijuana is illegal, even for medical purposes. In 1970, the Federal Controlled Substances Act (CSA) established five schedules of controlled substances, ranging from schedule I (most potential for abuse) to schedule V (least potential for abuse).[1] The CSA has always categorized marijuana as a schedule I drug—i.e., as a drug with “no currently accepted medical use in the United States,” “no currently accepted medical use in treatment in the United States,” and “a high potential for abuse.”[2] Heroin, ecstasy, and peyote are three examples of other drugs listed on schedule I.[3]In addition to the CSA, certain federal contractors and recipients of federal grants are subject to the Drug-Free Workplace Act of 1988 (DFWA). The DFWA requires covered companies to prohibit employees from engaging in the “unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance” in the workplace, including any location where the work is done “in connection” with a covered contract or grant.[4] The DFWA requires contractors to take direct action against employees who violate the DFWA, which can include terminating their employment or requiring satisfactory participation in a drug-abuse assistance or rehabilitation program. Contractors who fail to comply with the DFWA can face harsh penalties, such as cancellation of their federal contracts or grants.Using or possessing marijuana may also jeopardize an individual’s ability to obtain a security clearance, which is necessary for some employees to access classified information.[5]Workplace Drug TestingMany employers have drug testing programs that screen for marijuana. Testing might include pre-employment testing, testing employees based upon reasonable suspicion of drug use, and, where permitted, random drug testing. Companies have good reason to test for drugs, including ensuring a safe and productive workplace, reducing possible claims of negligent hiring, and even obtaining discounts on workers’ compensation premiums in certain states.If testing complies with applicable law, employers have typically been able to lawfully decline to hire applicants or terminate employees who test positive for marijuana. The Americans with Disabilities Act (ADA) does not add any protection for marijuana users. Although the ADA protects employees from being disciplined or terminated for taking legally prescribed drugs in accordance with their prescriptions, the ADA does not protect individuals who use schedule I drugs under the CSA, which means it does not protect medical marijuana users.Unlike alcohol tests, current marijuana tests are not sophisticated enough to determine whether someone is under the influence at the time of test. Instead, marijuana tests typically show whether someone has used marijuana during the weeks leading up to the test. Given the difficulty of determining whether a positive test is the result of marijuana usage during work or during non-work hours, some employers have found it easier to ban marijuana use outright.A Growing Chorus of States Legalize Marijuana for Medical and Recreational UseOver the last decade, a growing number of states have legalized marijuana use. Thirty-three states and the District of Columbia have approved comprehensive medical marijuana legislation, and thirteen states have legalized the use of “low THC, high cannabidiol (CBD)” products for medical reasons in limited situations or as a legal defense.[6] Recreational use of marijuana has also been legalized by eleven states (Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington) and the District of Columbia.[7]While the majority of these state laws do not address whether an employer can take adverse action against employees for marijuana use, fourteen states so far have gone a step further by limiting an employer’s ability to discipline or terminate employees for off-duty medical marijuana use.[8] For example, New Jersey law prohibits employers from taking adverse employment action against an employee or applicant “based solely on the employee’s status” as a registered medical marijuana patient.[9] The law also requires employers to give employees or applicants an opportunity to provide a “legitimate medical explanation” if they test positive for marijuana before taking any adverse action.[10] Other states, such as Illinois,[11] Maine,[12] and Nevada,[13] impose even stricter limitations by prohibiting employers from rescinding job offers or taking adverse action for off-duty marijuana use—even recreational use.New York City and Nevada also recently passed legislation barring employers from testing applicants for jobs in those jurisdictions for marijuana. Both laws are subject to certain exceptions. For example, the New York City law, which will go into effect on May 10, 2020, exempts certain jobs that have the potential to impact the health or safety of employees or the public, such as commercial drivers and medical staff, or if such testing is required by federal contracts, grants, or other laws. Whether other jurisdictions will follow suit remains to be seen.Reconciling Federal and State Laws on MarijuanaAlthough the CSA does not expressly preempt state law “unless there is a positive conflict” with the state law,[14] some courts have found that the CSA preempts state laws permitting medical marijuana use.[15] For example, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus.,[16] an employee who used medical marijuana to manage pain from his sinus cancer and inoperable brain tumor claimed that his employer violated the Oregon Medical Marijuana Act (OMMA) by terminating him for testing positive for marijuana. The employer argued that the OMMA was preempted by the CSA. The Supreme Court of Oregon agreed, finding that the employer did not discriminate against the employee because he was engaged in the illegal use of drugs under federal law.A handful of more recent cases, however, have gone the other way. In Noffsinger v. SSC Niantic Operating Co., LLC,[17] the employer argued that the federal law preempted an employee’s claim that it violated Connecticut’s Palliative Use of Marijuana Act (PUMA) by terminating him for testing positive for marijuana, despite him allegedly using marijuana to treat post-traumatic stress disorder. Distinguishing Emerald Steel, the court held that PUMA, unlike OMMA, explicitly barred employment discrimination for marijuana use by providing that no “employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient” under the law.[18] A federal court in Arizona reached a similar conclusion when it found that a plaintiff terminated for a positive marijuana test could claim discrimination because, like PUMA, Arizona’s medical marijuana law had an anti-discrimination provision.[19]Even where state medical marijuana laws did not have those same protections, some courts have found that taking adverse action against employees or applicants for marijuana use could violate state disability discrimination laws. In Barbuto v. Advantage Sales & Marketing, LLC, [20] for instance, an employee who used medical marijuana to treat her Crohn’s disease filed suit after being terminated for failing a drug test. The Massachusetts Supreme Court found that she could pursue a claim for handicap discrimination under Massachusetts disability law. The court held that federal law did not preempt state law, stating:[t]o declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.[21]Similarly, in Wild v. Carriage Funeral Holdings, Inc., [22] the New Jersey appellate court held that an employee who was fired after testing positive for medical marijuana he used to treat pain caused by his cancer could sue his former employer for disability discrimination under New Jersey law for failing to accommodate his medical marijuana use during “off-work hours.”Companies covered by the DFWA should also proceed cautiously before relying on the DFWA to terminate employees testing positive for marijuana. For example, in Noffsinger, the court found that the DFWA did not require the employer to rescind a job offer to the plaintiff. The court reasoned that the “DFWA does not require drug testing. . . . Nor does the DFWA prohibit federal contractors from employing someone who uses illegal drugs outside the workplace, much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.”[23]Practical TakeawaysGiven the trend of states and courts limiting employers’ ability to take adverse action against employees for marijuana use, employers should continue to monitor developments in this area and reexamine their drug-free and drug testing policies. Employers may need to allow for flexibility. Testing for marijuana should be eliminated for applicants and employees in jurisdictions prohibiting such testing, unless there is a clear exception under the law. Even where there are no outright bans, employers should consider allowing exceptions to their policies for employees using marijuana for documented medical reasons.Marijuana use is also on the rise, particularly in states allowing recreational use. Given the tight labor market, employers may want to consider whether testing for marijuana might hinder their ability to recruit talent.Morrison & Foerster associate Alison Frost has contributed to the writing of this post. [1] 21 U.S.C.S. § 812(a).[2] <a target="_blank" href="https://www.deadiversion.usdoj.gov/schedules">https://www.deadiversion.usdoj.gov/schedules</a>; 21 U.S.C.S. § 812(b)(1); 21 C.F.R. § 1308.11.[3] 21 C.F.R. § 1308.11.[4] Federal Acquisition Regulation (FAR) subpart 23.5 implements the prohibitions of the DFWA, and the subpart’s implementing clauses are incorporated into government contracts. FAR 23.505; 52.223-6.[5] Bradley Wine and Steven Cave, “Don’t mean to harsh your mellow, but … contractors and the Drug-Free Workplace Act,” Thomson Reuters (Jan. 16, 2018), <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltc5c17497d0464a1b/627316214886af2aa2be107a/180116-contractors-drug-free-workplace.pdf">https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltc5c17497d0464a1b/627316214886af2aa2be107a/180116-contractors-drug-free-workplace.pdf</a>.[6] National Conference of State Legislatures, State Medical Marijuana Laws (2019), http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.[7] National Conference of State Legislatures, Marijuana Overview (2019), http://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx.[8] States that prohibit adverse actions against employees for off-duty use of marijuana are Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oklahoma, and Rhode Island.[9] The New Jersey Jake Honig Compassionate Use Medical Cannabis Act, 9(a).[10] The New Jersey Jake Honig Compassionate Use Medical Cannabis Act, 9(b).[11] H.B. 1438, 101st Gen. Assembl., Reg. Sess. (Ill. 2019).[12] Me. Rev. Stat. Ann. tit. 7, § 2454 (repealed 2018).[13] Assemb. B. 132, 80th Sess. § 2 (Nev. 2019).[14] 21 U.S.C. § 903.[15] See, e.g., Ross v. RagingWire Telecomms., Inc., 42 Cal. 4th 920, 926 (2008) (dismissing claim under California’s Fair Employment and Housing Act, Government Code, § 12900 et seq., for employer’s refusal to accommodate employee’s use of medical marijuana pursuant to the California Compassionate Use Act of 1996, Health & Safety Code, § 11362.5 and finding “[n]o state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law”); Brandon Coats v. Dish Network, LLC, 2015 CO 44 (Colo. 2015) (dismissing wrongful discharge claim because employee’s medical marijuana use did not fall within “lawful” activities under Colo. Rev. Stat. § 24-34-402.5 in light of its illegal status under federal law); Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225, 1230 (D.N.M. 2016) (“To affirmatively require [Defendant-Employer] to accommodate [Plaintiff-Employee’s] illegal drug use would mandate [Defendant-Employer] to permit the very conduct the CSA proscribes.”).[16] 348 Ore. 159 (2010).[17] 338 F. Supp. 3d 78 (D. Conn. 2018).[18] Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 334-35 & n.2 (“The very different question presented in Emerald Steel was whether the CSA more generally preempted a provision of Oregon law that authorized the use of medical marijuana. Here, by contrast, the question is whether the CSA preempts a provision that prohibits an employer from taking adverse action against an employee on the basis of the employee’s otherwise state-authorized medicinal use of marijuana.”).[19] Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 780-81 (D. Ariz. 2019).[20] 477 Mass. 456 (2017).[21] Id. at 465-66.[22] 458 N.J. Super. 416, 433-34 (N.J. Super. Ct. App. Div. 2019), cert. granted, No. C-1043, 2019 N.J. LEXIS 926 (N.J. July 11, 2009).[23] See Noffsinger, 338 F. Supp. 3d at 84.

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