DGRead 22.02.15

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DGRead 22.02.01

How Could a Politically Divided Government Affect the Regulation of the Sale of Marijuana in Virginia?; Policy doesn’t apply to closures caused by COVID orders: Because There Might be “TROUBLE AHEAD AND TROUBLE BEHIND” the ADA Does Not Protect a Railroad Engineer from Having to Turn Over His Medical Records after a Positive Drug Test


Because There Might be “TROUBLE AHEAD AND TROUBLE BEHIND” the ADA Does Not Protect a Railroad Engineer from Having to Turn Over His Medical Records after a Positive Drug Test

On January 14, 2022 the Fourth Circuit Court of Appeals ruled that a Railroad engineer did not comply with the ADA when he did not provide employer railroad with sufficient paperwork about his positive drug test that showed signs of amphetamines and codeine, which the Engineer said he was prescribed for his bad back and ADHD. The unanimous panel found that the lower court had properly granted summary judgment to the Railroad employer who was allowed to, and indeed was required to follow the Federal Railroad Administration’s regulations in obtaining the medical records to determine if the engineer was fit to continue his employment. The Fourth Circuit stated:

[a]s to the improper medical inquiry issue, the district court concluded that Norfolk Southern’s records requests were permissible under the ADA because it had an objectively reasonable basis to believe that Coffey could not properly carry out his duties and that he posed a safety risk. Coffey v. Norfolk S. Ry. Co., No. 2:19CV509, 2021 WL 879121, at *4, 7 (E.D. Va. Feb. 5, 2021). It also noted that the requests were consistent with business necessity because Norfolk Southern was required by federal safety regulations to inquire into employees’ use of controlled substances. Id. at *5–6. As to the discrimination claim, the district court applied the McDonnell Douglas burden-shifting framework. It found that Coffey failed to make out a prima facie case because he did not show that he was disabled, id. at *8–9, nor did he provide evidence that Norfolk Southern’s legitimate, non-discriminatory reasons for terminating him were pretextual, id. at *12. Coffey now appeals the district court’s determination that the medical inquiries were proper under the ADA

At part II of the Opinion, the Court provided a lengthy discussion about the history of the railroads and the potential substantial harm, then, as well as presently, for litigation and liability were a train locomotive engineer not fit to keep the train from derailing and the like. The Court emphasized the importance of the safety regulations that were enacted to protect the public and the railroad.

Moreover, the legal regulation required that the medical records be fully provided even if the railroad did not then have a reason to believe that the Engineer could not do his job.  The railroad not only wanted the medical records but also wanted its questions addressed as to what were the side effects of the medications, was there any reaction between these medications and any other that the Engineer was taking, and whether the doctors had concluded that he could perform all of his duties if taking the medications.  Although the Engineer provided the Railroad with over 400 pages of medical documents, the specific information regarding the medications interactions and effects on his ability to do his difficult job was not addressed.  Ultimately the Court held that:

“[i]n requesting medical records from [the Engineer], Norfolk Southern was fulfilling its regulatory obligation to investigate his drug usage with due diligence. Were a failure to investigate to cause a train wreck, Norfolk Southern would be told under the unremitting glare of hindsight of all it should have done.

That being the case, it is like the Grateful Dead sing about the Engineer Casey Jones who was taking a different substance, “trouble ahead and trouble behind, and you know that notion just crossed my mind.” The Norfolk Southern was well aware of the trouble it was presented and decided that it was not required by the ADA to ignore its regulatory obligations. The Fourth Circuit unanimously agreed.

Lastly, ironically, the Engineer in this case was represented by the Casey Jones Law Firm.

How Could a Politically Divided Government Affect the Regulation of the Sale of Marijuana in Virginia?

By M. Jarrad Wright

Last year, the Commonwealth of Virginia became the first state in the deep south to legalize marijuana. While legalization was relatively easy, regulating the manufacture and sale of marijuana is proving to be more difficult. The legalization law contained various plans for government agencies, tax schemes, and permitting that is to go into effect by 2024. However, in a compromise to ensure passage of legalization, the General Assembly included language in the bill requiring a future approval of the plan after more study and consideration after the November 2021 elections. Of course, the Republican takeover of the Virginia House of Delegates and the Governor’s mansion in Richmond and a Democrat controlled state Senate means that divided government is now the norm in Virginia. How that divided government will impact the regulation of the sale of marijuana is now at the forefront of Virginia politics.

The primary question of whether the Republican House majority would attempt to repeal legalization was answered quickly after the election when House members indicated that they would not try to recriminalize marijuana, and instead, they would attempt to speed up the long-time table for setting up the regulatory mechanisms. In fact, news reports out of Richmond have indicated that lawmakers on both sides share this goal and share the goal of getting rules in place quickly to lower the chance of an illegal black market undercutting legal sales and tax revenue.

However, the devil is in the details, and the details of marijuana regulation are being fought in the General Assembly. At this time, Republican law makers have filed at least eight bills to amend the original statute in order to alter the regulatory scheme. This includes bills that would redirect marijuana sales revenue from a cannabis equity reinvestment fund to the general fund and other priorities and includes provisions that would eliminate any consideration for giving licenses based upon social or equity concerns in favor of to people living in economically distressed areas and for persons who have previously legally grown hemp. Other amendments involve the tax rate to apply to sales.

At the time of original passage, supporters of the legalization bill touted the regulatory structure as a means of correcting historical injustices on certain communities, including people disproportionately impacted by marijuana criminalization laws. However, that bill passed on party lines, and the new compensation of General Assembly, a new Republican governor, and a bill that requires reenactment before it takes effect guarantees that changes to the bills structure will occur and that new priorities may be emphasized. Ultimately, it is still early in the legislative process, and the final position of each party, and individual members, remains unknown. That said, both sides want to proceed so the chance for compromise remains. In the meantime, businesses that may be impacted by the legalized sale of marijuana should continue to monitor the legislative session as important updates are likely to occur this year.

If you have any questions or comments on this article, contact Jarrad Wright at jwright@dimuro.com.