Mark A. de Bernardo is a Partner in the Washington, DC Region Office of Jackson Lewis, a preeminent labor and employment law firm with more than 650 employment lawyers in 46 offices. He is a nationally recognized expert on workplace drug-testing and substance-abuse-prevention issues, and concentrates his practice in these areas. He also represents employers on employment litigation and counseling, senior executive personnel actions, labor-management relations, legislative and regulatory issues, alternative dispute resolution, and management of employment-related class actions.
Mr. de Bernardo has testified more than 40 times before Congress and various federal and state regulatory agencies and legislative committees on employment and labor law issues. He has submitted 11 amici curiae briefs to the United States Supreme Court, and nearly 30 amici briefs overall to various courts on behalf of trade associations, business coalitions, and corporate clients. He has provided legal representation to more than 30 Fortune 200 corporations; five federal executive branch agencies; the states of Kansas, Louisiana, and California; the governments of Japan, Spain, and the Bahamas; and nearly 20 national trade associations.
He was the founder (in 1989), and is the Executive Director of the Institute for a Drug-Free Workplace, a national coalition dedicated to promoting and preserving the rights of employers and employees in effective substance-abuse-prevention programs, and is the founder (in 1995), and served as the President of the Foundation for Drug Education and Awareness.
Mr. de Bernardo is the author of four state drug-testing laws, and the only workplace drug-testing law endorsed by the President’s Commission on Model State Drug Laws. Among the many clients he has represented on drug-testing issues are the National Basketball Association, the U.S. House of Representatives, and more than 20 Fortune 200 corporations.
Mr. de Bernardo is the Practice Leader for the Jackson Lewis Practice Group on Drug Testing and Substance-Abuse Prevention, which includes nearly 15 lawyers in the Firm.
On the substance-abuse-prevention issue, Jackson Lewis drafts, reviews, and revises policies and attendant employer documents (including DOT-compliant policies); provides manager and supervisor training; designs and conducts employee education and awareness programs; represents employers in arbitration; litigates in defense of challenges to corporate policies and actions; negotiates collective bargaining agreement provisions; performs compliance audits; and advises employers on state and federal statutory and regulatory requirements.
He is the author or co-author of 18 books on employment and labor law topics, primarily on drug testing and substance-abuse prevention in the workplace, including the two-volume, 1220-page Guide to State and Federal Drug-Testing Laws, now in its 15th Edition.
He is a frequent speaker at conferences, and has appeared on the Today Show, Good Morning America, Crossfire, Larry King Live, and the ABC, CBS, and NBC evening news. Mr. de Bernardo has been quoted in such publications as Time, Newsweek, U.S. News and World Report, The Wall Street Journal, The New York Times, and The Washington Post.
Mark is AV-rated by Martindale-Hubbell, and is listed among the best labor lawyers in Virginia by Chambers USA.
Mr. de Bernardo is active in a number of professional and community organizations. He has served as Special Counsel for Domestic Policy and Director of Labor Law for the U.S. Chamber of Commerce. He was appointed, and twice reappointed, by the Japanese government as the American management representative to the Japan Institute of Labour. He is the founder (in 1998), and serves as Executive Director and President of the Council for Employment Law Equity. He also has contributed a chapter to several ABA publications, and has been a guest lecturer at the U.S. Army War College, NYU, Georgetown, Johns Hopkins, George Washington, American, and the University of Kansas.
Mark’s community activities include serving on the Board of Directors of the Oblates of Saint Francis de Sales. He has been a member of the Gonzaga College High School Fathers’ Club, and has served on The Hunger Project’s Global Investment Committee, and on the executive committee of the Lido Civic and Community Club.
Mr. de Bernardo is a member of the District of Columbia Bar and the U.S. Supreme Court Bar, and has been active in the American Bar Association.
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Mr. de Bernardo was awarded a B.A. cum laude from Marquette University in 1976, and a J.D. from the Georgetown University Law Center in 1979.
He, his wife Jennifer, and their sons Joseph, Matthew, and Jonathan reside in Vienna, Virginia.
Schools are prohibited from discriminating against (failing to enroll) children who use “medical” marijuana under the Act, and children can obtain medical-marijuana cards with parental consent.
“Medical marijuana” for kids? That’s right. But only with parental consent. There’s a safeguard. The parents will be too high to care or to guard their respective 2.5 ounces of readily replenishable stash or their respective 12 marijuana plants. And schools cannot discriminate against medical-marijuana kids. Come on in. Take a desk chair. Sure hope your “debilitating medical condition” and its heretofore illegal “treatment” don’t interfere with our teaching the non-medical-marijuana kids. This is what our schools need.
Moreover, as education in America falls further and further behind many other industrialized nations (are we still considered industrialized?), more dope at school and creating a protected class of marijuana-smoking children will help us in an increasingly competitive global economy.
Proposition 203 is the only state medical-marijuana law with a specific workplace component — and it is a bad one.
Regarding the workplace, employers are prohibited from:
(1) Discriminating against a person registered under the Act (i.e., a medical-marijuana “cardholder”) in hiring, terminating, or imposing employment conditions — unless failing to do so would result in the employer losing a monetary or licensing benefit under federal law (DOT certification, for example); and/or
(2) Penalizing a qualifying patient/cardholder for a positive drug test for marijuana — unless the “patient” used, possessed, or was impaired by marijuana on the employment premises or during hours of employment.
Thus, employers are allowed to prohibit use or possession at work. Moreover, they can prohibit impairment at work — which, of course, often is a difficult burden to meet. Unlike alcohol, there is no universal legal standard for what constitutes marijuana impairment. A drug-test positive will not likely be enough — instead, the burden shifts to the employer to demonstrate impairment.
Perhaps even more troubling, pre-employment drug testing will be rendered meaningless for “cardholder” job applicants since an employer cannot “discriminate” against job applicants unless they possess, use, or are impaired on the job.
I vividly remember the news broadcasts of San Francisco’s counter-culture youth (and burned-out ex-youth) giddily celebrating the passage of California’s medical-marijuana law in 1996. Crowded into Washington Square, the cloud of marijuana smoke seemingly hanging above their medically-treated heads as bong-after-bong and joint-after-joint was passed around. Brave souls. None of them looked to be terminally ill or to have a debilitating illness.
And now, a replay in Arizona. Some voters bought into the myth of the legalization advocates. Proposition 203 was sold as compassion for the terminally ill, but contradictorily includes provisions prohibiting discrimination by schools against pot-smoking kids, and by employers against pot-smoking job applicants who have the bullet-proof shield of a marijuana “gold card” or against employees who want to seek relief from their “debilitating illnesses” during work breaks or at lunchtime or before their factory shifts.
Proposition 203 is bad policy and bad law, has been intentionally mislabeled, and is going to lead to much greater access to marijuana, more marijuana use, more impairment, less safe workplaces, declining employee performance… and a lot of litigation.
And, oh yes, according to the U.S. Substance Abuse and Mental Health Services Administration, marijuana is highly addictive.
Upon further review, the law is a lie.
Mark A. de Bernardo is the executive director for the Institute for a Drug-Free Workplace. He is also a partner in the Washington, D.C. region office of Jackson Lewis, a national management-side employment law firm with more than 650 lawyers who exclusively advise and defend employers.
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