Drugs and Drug Testing

Have You Ever Heard of the Higher Education Opportunity Act?

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Every so often, I encounter a statute that makes my eyes glaze over and starts me on a search for chocolate and coffee before I jump in. ERISA may have been the last statute that made me feel that way, but the Higher Education Opportunity Act (20 U.S.C. §§ 1001-1611aa-1) is certainly another. “Why would you want to make your eyes glaze over?” you ask. Well, this is one of those statutes that you have to at least attempt to understand if you are working in higher education because it impacts issues such as accreditation and federal aid to students. The December 2008 “Dear Colleague” letter will help you to understand a lot of it, but here is a very very VERY brief summary:

  • Who does it apply to?: Institutions of higher education.
  • Who does it protect?: Students at institutions of higher education.
  • What does it do?: Before the HEOA, there was the Higher Education Act of 1965; the HEOA reauthorizes and/or changes programs authorized under the HEA, authorizes new programs, and makes changes to other laws. These statutes do what feels like millions of things. I might be exaggerating, but here are a few of the things:
    • Regulates the accreditation of institutes of higher education, including by holding accrediting agencies accountable for enforcing accreditation standards.
    • Prohibits discrimination on the basis of race, religion, sex, or national origin in studies, programs, and contracts.
    • Requires a [fairly detailed] program preventing drug and alcohol use and abuse. 
    • Regulates the provision of educational loans.
    • Regulates the Integrated Postsecondary Education Data System (“IPEDS”), which collects data on institutional characteristics, costs, admissions, enrollment, financial aid, degrees, student success, etc.
    • Regulates various programs with which you are familiar – Teach for America, for one. 
  • Who enforces it?: U.S. Department of Education.
  • Reporting deadlines: None.
  • Document retention requirements: None.

There’s really so much here, honestly. I have my reasons for reading it, including because I have to draft/revise policies at my institution. But I suspect that folks in your financial aid departments and in your various academic programs are (or should be) very familiar with its requirements for their own purposes, too. I would suggest just reviewing the table of contents, at a minimum, so you can try to spot the sections that will be most relevant to you. Because there’s A LOT. 

Of course, ask me if you have any general questions, and I’ll try to point you down the right path.

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NFL Suspends Player with Crohn’s Disease for Marijuana Use

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As I mentioned in my biography, I started in labor and employment by researching medical marijuana in Arizona, so marijuana and drug testing as they relate to employment law will always hold a special place in my heart. In that regard, today’s Deadspin article on Seantrel Henderson’s suspension seemed like a great place to start this blog.

By way of background, the NFL suspended the Buffalo Bills’ offensive tackle for ten games without pay for violating the NFL Policy and Program for Substances of Abuse, which prohibits players from the illegal use, possession, or distribution of drugs, including but not limited to marijuana. I am curious to know, however, how the NFL or the Bills discovered Mr. Henderson’s drug use. I realize that he has not denied it, but it seems to me that a different outcome would result if he were impaired during practice or during a game, as compared to if his use were discovered based only on a positive random drug test. I will update you all as I learn more.

I should also share with you that New York legalized the medical use of marijuana in 2014, under its Compassionate Care Act. That Act allows a person who has a “severe debilitating or life-threatening condition” (e.g., HIV/AIDS, ALS, Parkinson’s disease, multiple sclerosis, inflammatory bowel disease (i.e., Crohn’s disease)) to follow the state’s process to become certified to use medical marijuana. I have not seen any indication one way or another as to whether Mr. Henderson is a certified patient who is authorized to use medical marijuana under New York law for his condition, but I will certainly update you if I do.

Without opining as to how Mr. Henderson’s situation should or could end up, I encourage employers considering these issues to keep a couple of things in mind: (1) the use of marijuana remains illegal under federal law; and (2) many states have legalized the medical and/or recreational use of marijuana, but none of those states have required an employer to allow an employee to use, possess, or distribute marijuana at work or during work hours, nor to be impaired by marijuana at work or during work hours. In that regard, I generally do not have any concerns about prohibiting the use, possession, distribution, or impairment by illegal drugs while at work or during work hours. However, as we will discuss on this blog quite often, it can be difficult to prove or articulate impairment, particularly where there is no state law defining such term. I am quite curious to see how this area of the law develops as the number of states legalizing some form of marijuana use increases – and the number of employers affected by this increases, as well. As I said, this is a special focus of mine, so we will be discussing this often.