Management Update

Weeding Out: Marijuana as Doping for Student-Athlete Employees

By: Kayla M. Jacob and David Fleshman

Picture it: March Madness 2025 is about to begin. And while there are still brackets, buzzer beaters, the Elite Eight, and the Final Four, this March Madness is a tad different. Stepping onto the court for the first time ever are student-athlete employees.

Consistent with the opinion of the National Labor Relations Board, student-athletes participating in March Madness 2025 are joint employees of their academic institutions and the National Collegiate Athletic Association (NCAA). But there may be cause to blow the whistle on the unresolved issue of drug testing these student-athlete employees for marijuana.

Historic perspective of marijuana in sports

“Doping” regards athletes using banned substances in competitive sports to gain a competitive advantage. In an effort to prevent doping, sports organizations, like the NCAA, maintain a prohibited list of substances they deem to be performance-enhancing drugs, such as human growth hormones, stimulates, diuretics, and anabolic steroids.

Historically, the prohibition of marijuana in sports has been a result of anti-doping efforts. From an anti-doping perspective, marijuana use in competition may endanger athletes and others because of increased risk-taking, such as slower reaction times. Marijuana use is also viewed as inconsistent with the athlete as a role model, and thus, is said to violate the spirit of sport.

The NCAA has opined that marijuana is not considered a performance-enhancing substance; yet, marijuana remains banned alongside doping agents and illicit substances, such as cocaine and fentanyl.

Current buzz about marijuana in collegiate sports

Now less polarizing, the stigma of marijuana use is evolving and has become more socially acceptable. On trend, many sports leagues are changing marijuana drug testing policies.

The NCAA announced last year that it was changing its approach to cannabis testing. Although marijuana is still a prohibited substance, the NCAA has increased the threshold levels of marijuana that trigger a positive test result, which could potentially lower the number of student-athletes who test positive for marijuana. Additionally, the NCAA proposed a new penalty structure to lower the marijuana penalties for student-athletes who test positive for marijuana.

Drug testing student-athlete employees – game changer or status quo?

In a 1995 landmark decision, the United States Supreme Court held that drug testing student-athletes is constitutional.

Similarly, in 1994 the California Supreme Court opined that there is no constitutional violation when the NCAA’s drug testing program is enforced as a student-athlete's lower expectation of privacy are balanced against the NCAA's countervailing interests.

Subsequently, a Louisiana appellate court held that a state university’s athletic drug testing program was constitutional considering the diminished expectation of privacy in the context of intercollegiate sports and the university’s shared interest with the NCAA to ensure fair competition in intercollegiate sports and protect the health and safety of student-athletes.

However, these decisions were based on collegiate sports being voluntary and, at least in part, the NCAA’s classification as a voluntary, unincorporated, private association. But what happens if the NCAA is classified as an employer?

As an employer, the NCAA may be forced to develop a new playbook on drug testing with consideration of the following:

Players may have greater protections under federal anti-discrimination laws as employees. If classified as an employer, NCAA’s drug testing policies could be scrutinized under federal anti-discrimination laws like Title VII (which covers discrimination based on race, color, sex, national origin, and religion) and the ADA (which covers disability discrimination). Thus, players may have a cause of action against the NCAA if its drug testing policies are not uniformly applied or its selection criteria for random drug testing is discriminatory. These federal laws provide additional protections to student-athletes as employees that would not be available without employment status.

Players may have the right to unionize and bargain. If found to be employees, student-athletes may choose to unionize. Unions in sports are common and unions often bargain with sports associations/employers for the benefit of professional athletes. For example, the National Basketball Players Association is a labor union that represents NBA players. Recently, that union successfully negotiated a collective bargaining agreement that ditches marijuana testing. College athletes could soon be just as empowered to negotiate drug testing policies. Such negotiations and participation in unionized activity would be protected under federal laws governing unions.

Compliance with state marijuana laws. Several states have passed anti-discrimination laws that prohibit employers from discriminating against employees who use marijuana. Compliance with some state laws could restrict the penalties that the NCAA currently enforces. These penalties would be equivalent to adverse employment actions if the NCAA is reclassified as an employer. Moreover, as a multi-state employer, the NCAA would need to comply with laws in each state in which it operates which may not fit a national, one policy fits all approach.

Revisions to local drug testing policies. Colleges and universities that are members of the NCAA typically implement local drug testing policies for student-athletes that comply with NCAA standards. If classified as employers, these educational institutions would also have to comply with relevant state laws that govern the procedures for drug testing in the workplace (e.g. requiring a confirming test if positive and confidentiality of results). Some states also limit testing to reasonable suspicion or probable cause situations. These restrictions may sometimes be imposed on only public universities and not private universities in some states. Thus, college athletes at public educational institutions may be subject to different drug testing criteria than athletes at private educational institutions.

Bottom line

The move from student-athletes to student-athlete employees will not be a slam dunk. One critical issue to consider is how colleges, universities, and the NCAA will eliminate potential exposure when implementing drug testing policies under their new status as employers and with deference to marijuana’s complex legal landscape.

Employment Law—Stay in the Know!

By: Melissa M. Shirley

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.

Pregnant Worker Fairness Act Effective on June 27

By: Jerry L. "Jay" Stovall, Jr.

For those who neglected to calendar the date, the federal Pregnant Worker Fairness Act goes into effect on June 27, 2023. You may recall the PWFA applies to both private and public sector employers with at least 15 employees to provide a reasonable a ccommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions, much like the ADA requires employers to accommodate known disabilities. This is a significant change in federal law, which has, up until now, primarily required unpaid leave, as opposed to the whole realm of possible accommodations for pregnancy-related conditions.

June 27, 2023, should not pose a challenge to most employers in Louisiana. As of August 2, 2021, employers with at least 25 employees have been obliged to provide these same types of pregnancy-related reasonable accommodations under LSA-R.S. 23:342.

Be Careful When Conducting Pre-Hire Criminal Background Checks

By: Jerry L. "Jay" Stovall, Jr.

Most employers are at least vaguely aware that there are some limitations on their ability to conduct pre-hire checks of an applicant’s criminal history. The two primary limitations are the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. and Louisiana statute LSA-R.S. 23:291.2.

FCRA: The FCRA does not say when an employer may or may not require a criminal background report; it simply places some requirements on what an employer must do when requesting and using such a report. Among other things, the FCRA requires employers who request criminal background checks (“consumer reports”) to provide applicants with a Summary of Rights form published by the Consumer Financial Protection Bureau (CFPB) along with the FCRA-required pre-adverse action notices required by 15 U.S.C. § 1681b(b)(3)(A)(ii).

The CFPB recently issued an updated Summary of Rights form. Employers must start using this new form no later than March 20, 2024. The CFPB has modified the new form a couple of times since publishing it, so it would be prudent for employers to wait until 2024 to download the new form.

LSA-R.S.23:291.2: Unlike the FCRA, this Louisiana statute does limit when an employer may request and use an applicant’s arrest records.

A. Unless otherwise provided by law, when making a hiring decision, an employer shall not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check.

LSA-R.S. 291 D(2) defines “background check” as:

(2) The term "background check" shall mean research by any lawful means, including electronic means, into the background of a "prospective employee" or "employee" as defined in Section C of this Subsection, including research into state or federal criminal history repositories, social security status or verification, and research conducted pursuant to the U.S.A. Patriot Act, 31 U.S.C. §5318l, regarding politically exposed persons, including known or suspected terrorists, money launderers, drug kingpins, and persons debarred from conducting business with the United States government, as well as any permissible purposes under the Fair Credit Reporting Act, 15 U.S.C. §1681.

Subsection C of the statute defines “employee” as: "Employee" means any person, paid or unpaid, in the service of an employer.” Not too helpful…..

So, employers should double-check to ensure that they are complying with both the FCRA and Louisiana law when contemplating conducting a criminal background check as part of the hiring process.