marijuana in the workplace: perspectives from the provider ... · 11/18/2019 3 maria michas, md,...

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Marijuana in the Workplace: Perspectives from the Provider, Employer, and the Lawyer

Maria Michas, MD, MPH, FACOEM

Najjar Employment Law Group, PC

www.nelgpc.com

Kenji Saito, MD, JD, FACOEM

President-Elect, NECOEMChair, Specialty Medicine Medical Director, Workplace Health, Wellness and EAPClinical Assistant Professor –Dartmouth, UNEAdjunct - UPenn

Debra Dyleski-Najjar, Esq.

Jacqueline Cook, MD, MPH, FACOEM

Assistant Professor of Medicine at the Yale University School of Medicine, and currently serves as the Medical Advisor and Headquarters Medical Review Officer for the Veterans’ Health Administration

Associate Vice President/Medical Director, Employee Health Services, Occupational Injury Care & Wellness,University of Massachusetts Memorial Health Care. Associate Professor, Department of Family Medicine & Community Health, Umass Medical School

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NAJJAR EMPLOYMENT LAW GROUP, P.C.• Debra Dyleski‐Najjar founded the Najjar Employment Law Group, P.C. in April, 2008as a labor, employment and benefits boutique law firm providing top quality legaladvice, as well as litigation expertise, for employers to keep employers ahead of thecurve.

• Ms. Najjar is a graduate of Boston University School of Law, third in her class, and amagna cum laude graduate of Wellesley College. She is admitted to practice in thestate and federal courts of Massachusetts, Maine and New Hampshire as well asthe United States Supreme Court.

• Ms. Najjar is a fellow of the College of Labor and Employment Attorneys, a certifiedmember of the American Society of Pension Professionals and Actuaries, AV ratedby Martindale Hubbell, and recognized as a New England Super Lawyer over tenconsecutive years.

• Over her 30 plus year career, Ms. Najjar has advised many employers regardingdesign of compliant drug testing programs, development of job descriptions, andthe interactive dialogue for ADA accommodations, as well as successfully defendedADA claims before state and federal agencies as well as in the courts.

www.nelgpc.comwww.pollev.com/medlaw

Jacqueline Cook, MD, MPH, FACOEM

• Jacqueline Cook, MD, MPH, FACOEM is an Assistant Professor of Medicine at the Yale University School of Medicine, and currently serves as the Medical Advisor and Headquarters Medical Review Officer for the Veterans’ Health Administration Office of Occupational Safety and Health. Dr. Cook earned her medical degree from New York Medical College and completed both her internal medicine residency and occupational and environmental fellowship at the Yale University School of Medicine, before assuming the position of Chief of Occupational Health Services at the VA Connecticut Healthcare System, and later transitioning to her current role as a Medical Advisor at the national level. Dr. Cook also serves on the Board of Directors for the New England College of Occupational and Environmental Medicine and is a delegate for New England on the ACOEM House of Delegates.

www.pollev.com/medlaw

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• Maria Michas, MD, MPH, FACOEM is a board certified occupational and environmental medicine specialist with over 20 years of clinical, administrative, teaching and research experience in a variety of healthcare settings. She is a certified Medical Review Officer, a certified Medical Examiner for the Federal Motor Carrier Safety Administration , holds a Certificate in Traveler's Health from the International Society of Travel Medicine, is a fellow of the American College of Occupational and Environmental medicine and is a current board member of the New England College of Occupational and Environmental Medicine. Dr. Michas completed her medical school training, internship in Family Medicine, Master of Public Health, and residency in Occupational and Environmental Medicine at the University of Texas Health Science Center in Houston, Texas. She has worked as a medical director for Memorial Hermann Healthcare System in Houston, US HealthWorks in Houston and Seattle, Group Health in Seattle, Molina Healthcare of Washington and SeaBright Insurance Company. Currently, Dr. Michas serves as Associate Vice President and Medical Director of Employee Health Services, Occupational Injury Care and Wellness for University of Massachusetts Memorial Health Care where she is responsible for the health and safety of over 14,000 employees. Dr. Michas is also an Associate Professor at the University of Massachusetts Medical School in the Department of Family Medicine and Community Health and at the University of Massachusetts Preventive Medicine Residency Program.


MedLaw, LLC www.MedLawPractice.com• Dr. Saito is board certified in preventive medicine with specialty training in occupational and environmental medicine. Following graduation from the University of Pennsylvania, he went on to complete a six‐year medical and law dual degree program. He continues apply his medicolegalbackground and leadership aptitude on the Board of Directors at ACOEM and NECOEM where he is President‐elect, Delegate to the AMA and part of the Founding Board Member for Kids’ Chance of Maine, helping children of injured workers pursue educational or training beyond high school.

• Dr. Saito currently serves as Chair of Specialty Medicine and Medical Director of the occupational medicine practice, health promotion and wellness, employee assistance program and the Teaching Kitchen at MaineGeneral Medical Center, and as Regulatory Liaison at MaineGeneral Health. He continues his academic endeavors as an adjunct professor at UPenn, as Clinical Assistant Professor at Dartmouth GieselCollege of Medicine, and Clinical Assistant Professor of Preventive Medicine at the University of New England. Dr. Saito is an avid mentor of undergraduate and medical students, residents, advance practice trainees and has created several internships at Workplace Health for students interested in pursuing preventive medicine, public health and occupational and environmental medicine.

• Dr. Saito enjoys connecting with both local and national audiences and continues to deliver presentations nationwide quarterly while continuing his research interest with publications yearly. He joined MaineGeneral to pursue his passion for improving the health of the community where he has helped lead the organization to national recognition as a leader in employee wellbeing by receiving Honorable Mention recognition for the 2018 C. Everett Koop National Health Awards presented by the Health Enhancement Research Organization.


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http://www.dtidrugmap.com/

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https://www.dailyherald.com/business/20191110/testing‐shows‐increasing‐marijuana‐use‐before‐legalization

Don’t forget the MRO qualification – ACOEM just updated this in 2019!

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Agenda

• Current Status of Marijuana in the Federal System and States

• Impact on Workplace Health and Safety

• Employer Challenges of Marijuana in the Workplace from a Legal perspective

Marijuana in the Workplace: Perspectives

from the Provider, Employer, and the Lawyer

Jacqueline M. Cook, MD, MPHMedical Advisor, VHA Office of Occupational Safety, Health, and GEMS Programs

VHA National Medical Review Officer Consultant, VHA Central Office

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DISCLAIMER

The content expressed here does not represent the views of the Federal government or Department of Veterans Affairs.

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What we will cover

1. Federal drug testing panel (including what is and is not tested in urine and oral fluid)

2. Cannabis and marijuana derivatives in the Federal Drug-Free Workplace Program (DFWP)

3. 2018 Agriculture Improvement Act and how it affects the Federal DFWP

4. Messages from SAMHSA re: marijuana derivatives

5. FDA approvals for marijuana derivatives 18

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FEDERAL URINE DRUG TESTING PANEL, AS OF 10/01/17

Maine has their own non‐regulated laboratory testing standards

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Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid

National Laboratory Certification Program Notice:

The Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Health and Human Services (HHS), has published the following Notice in the October 25, 2019 Federal Register, with an effective date of January 1, 2020.

LINK: https://www.federalregister.gov/documents/2019/10/25/2019-22684/mandatory-guidelines-for-federal-workplace-drug-testing-programs-oralfluid

The Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) will allow federal executive branch agencies to collect and test an oral fluid specimen as part of their drug testing programs. An agency may choose to use urine, oral fluid, or both specimen types. The OFMG establish standards and technical requirements for oral fluid collection devices, initial oral fluid drug test analytes and methods, confirmatory oral fluid drug test analytes and methods, processes for review by a Medical Review Officer (MRO), and requirements for federal agency actions.

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Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid

National Laboratory Certification Program Notice (continued):

SAMHSA and RTI are currently developing National Laboratory Certification Program (NLCP) and HHS documents based on the final OFMG. SAMHSA estimates an implementation date 12 to 18 months after the effective date of January 1, 2020.

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Federal oral fluid Drug Testing Panel, as of 1/1/2020

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WHAT ABOUT CANNABIDIOL (CBD)?

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2015: A NOTICE TO FEDERAL EMPLOYEES - THE DECRIMINALIZATION OF MARIJUANA

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Noteworthy points

1. Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substance Act.

2. Executive Order 12564, Drug-Free Federal Workplace, mandates that

a) Federal employees are required to refrain from the use of illegal drugs

b) the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service

c) persons who use illegal drugs are not suitable for Federal employment

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CONTROLLED SUBSTANCES ACT SCHEDULING

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Reference: https://www.fda.gov/media/97498/download

STATE-BASED MARIJUANA REGULATIONS

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http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx

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CANNABIDIOL AND MARIJUANA DERIVATIVES IN THE FEDERAL DRUG

FREE WORKPLACE PROGRAM – WHERE ARE WE NOW?

FEDERAL REGISTER RELEASE IN SEPTEMBER 2018

In the Federal Register on 9/28/2018, an order was announced that places certain drug products that have been approved by the Food and Drug Administration (FDA) and which contain cannabidiol (CBD) in schedule V of the Controlled Substances Act (CSA). Specifically, this order places FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1% tetrahydrocannabinols in schedule V.

At present, Epidiolex (a natural FDA-approved CBD product), is the only CBD product with less than 0.1% THC in Schedule V, and the remainder of CBD products remain in Schedule I (for which there is no currently accepted medical use in accordance with the Controlled Substances Act).

https://www.federalregister.gov/documents/2018/09/28/2018-21121/schedules-of-controlled-substances-placement-in-schedule-v-of-certain-fda-approved-drugs-containing

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2017: A NOTICE TO DFWP MEMBERS FROM SAMHSARE: CANNABIDIOL

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2019: A NOTICE TO DFWP MEMBERS FROM SAMHSARE: MARIJUANA DERIVATIVES AND 2018 FARM BILL

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WHAT IS THE AGRICULTURE IMPROVEMENT ACT (FARM BILL) OF 2018?

With respect to cannabis, the Act removes cannabis derivatives that contain no more than 0.3% delta-9 tetrahydrocannabinol (THC) on a dry weight basis (defined as “hemp” under the 2018 Farm Bill) from the Controlled Substances Act and no longer classifies this as controlled substances under

Federal law…

However, the 2018 Farm Bill preserved FDA’s authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic

Act (FD&C Act).

Cannabis-derived products are subject to the same authorities and requirements as FDA-regulated products containing any other substance, regardless of whether the

products fall within the definition of “hemp” under the 2019 Farm Bill.

Since the FDA does not currently check the THC levels in hemp products, there could be products that contain THC greater than 0.3%.

FDA has taken action against companies illegally selling cannabis and cannabis-derived products that out the health and safety of consumers at risk.

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2018 AGRICULTURAL IMPROVEMENT ACT (COMMONLY KNOWN AS THE 2018 FARM BILL)

The DFWP position on marijuana has remained unchanged since the Department of Health and Human Services issued a warning in 2017, stating that CBD (like marijuana) was classified as a Schedule I drug and that CBD products could contain THC.

While the Farm Bill removed certain hemp-derived products such as CBD from CSA Schedule I, the Food and Drug Administration does not certify levels of THC in the products.

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FDA-APPROVED MARIJUANA DERIVATIVES: DRONABINOL

Dronabinol (Marinol) is a schedule III substance under the Controlled Substances Act, and can be an explanation for a positive marijuana result.

Per the FDA,

https://www.accessdata.fda.gov/drugsatfda_docs/label/2017/018651s029lbl.pdf

INDICATIONS AND USAGE

MARINOL® (Dronabinol) Capsules is indicated for the treatment of:

1. anorexia associated with weight loss in patients with AIDS; and

2. nausea and vomiting associated with cancer chemotherapy in patients who have failed to respond adequately to conventional antiemetic treatments.

The active ingredient of dronabinol is THC, and this can therefore produce a positive test for THCA.

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FDA-APPROVED MARIJUANA DERIVATIVES: NABILONE

Nabilone (Cesamet) is a schedule II substance under the Controlled Substances Act, and cannot be an explanation for a positive marijuana result.

Per the FDA,

https://www.accessdata.fda.gov/drugsatfda_docs/label/2006/018677s011lbl.pdf


CESAMET® (Nabilone) capsules are indicated for the treatment of the nausea and vomiting associated with cancer chemotherapy in patients who have failed to respond adequately to conventional antiemetic treatments.

The active ingredient of nabilone is not THC, and this cannot therefore produce a positive test for THCA.

The use of nabilone is not an acceptable medical explanation for a positive confirmed drug test. 36

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FDA-approved marijuana derivatives: cannabidiol

Cannabidiol (Epidiolex) is a schedule V substance under the Controlled Substances Act, and cannot be an explanation for a positive marijuana result.

Per the FDA,

https://www.accessdata.fda.gov/drugsatfda_docs/label/2018/210365lbl.pdf


EPIDIOLEX® (Cannabidiol) is indicated for the treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome in patients 2 years of age and older.

The active ingredient of cannabidiol is not THC (it is CBD), and this cannottherefore produce a positive test for THCA.

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Cannabis dose labeling accuracy

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FDA work on marijuana

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Reference: https://www.fda.gov/media/97498/download

MARIJUANA IN THE WORKPLACE


Associate Vice President/Medical Director, Employee Health Services, Occupational Injury Care & Wellness,University of Massachusetts Memorial Health Care

Associate Professor, Department of Family Medicine & Community Health, University of Massachusetts Medical School

NECOEM December 2019 Nothing to Disclose

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OUTLINE

• Scope of Marijuana Use

• Therapeutic and Adverse Effects

• Impact on Workplace Health and Safety

• Methods for Determining Impairment

What is Marijuana?

• Marijuana (cannabis, weed, pot, dope, grass, ganja, mary jane, hemp) is a hallucinogenic drug made from dried leaves, flowers, stems or seeds of Cannabis plant

• Cannabis plant exists in multiple strains; 3 major (Cannabis Sativa, Cannabis Indica, Cannabis Ruderalis)

• Cannabis contains over 500 chemicals including terpenes, flavonoids and aldehydes

• Over 100 called cannabinoids are unique to the cannabis plant

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Cannabinoids: THC and CBD

• delta 9 tetrahydrocannabinol (THC) is the major cannabinoid in cannabis responsible for most psychoactive (mind-altering) effects

• Cannabidiol (CBD) is most abundant non psychoactive cannabinoid; may modify effects of THC, reduce cravings and risk of addiction

• Other compounds in cannabis not well understood, require further study

Hall W, et al. Lancet. 2009

Endocannabinoid System (ECS)• Humans produce their own endogenous cannabinoids

(endocannabinoids), similar to those in the cannabis plant (phytocannabinoids)

• Specific cannabinoid receptors are present in body: type 1 (CB1 mostly CNS) and type 2 (CB2 mostly immune system and PNS)

• Cannabinoid receptors play role in regulating many body processes (pleasure, body movement, appetite, pain, anxiety, memory, concentration, sense of taste, touch, smell, sight, hearing, metabolic regulation, inflammation, immune function)

• CB1 regulates CNS, pleasure & pain perception, memory & judgement, balance & coordination, nausea & appetite, GI motility

• CB2 modulates inflammatory response, intestinal motility, smooth muscle contractions in urinary & reproductive systems

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THC vs CBD

• Effects of cannabis due to binding of its cannabinoids to specific cannabinoid receptors

• THC binds to brain CB1 receptors and affects areas that influence pleasure, memory, thinking, concentration, movement, coordination and time perception

• THC also binds CB2 receptors in body which can account for its analgesic effects, appetite stimulation and antiemetic properties

• CBD displays very low affinity for CB1 and CB2 receptors

• CBD may indirectly activate CB1 by increasing availability of the naturally occurring endocannabinoids through interference, blocking enzymatic degradation, intracellular uptake

• CBD known to have effects outside ECS; binds other receptors (serotonin 5-HT1A, capsaicin TRPV1) which may account for its potential anti-inflammatory and antioxidant properties

Potency of Marijuana

• Potency determined by percent plant material that is THC

• Data from US. Drug Enforcement Administration shows THC concentration in seized marijuana increased from 4% THC in 1995 to 12% in 2014

• Potency increased due to selective cultivation, changes in growing and production techniques

• American Chemical Society tests have found marijuana strains close to 30% THC

https://www.acs.org/content/acs/en/pressroom/newsreleases/2015/march/legalizing-marijuana-and-the-new-science-of-weed-video.html

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Marijuana Laws and Policies• Under Federal Law, Schedule I Controlled Substance

• Medical marijuana legal in 33 States & DC; recreational legal in 11 States & DC

• Several States have decriminalized possession of small amounts; allow home cultivation; others legally protect and regulate storefronts (dispensaries)

• Some limit medical marijuana for certain qualifying medical conditions; require users to register

• Qualifying conditions vary: Pain, Cancer, HIV/AIDS, Glaucoma, Parkinson’sEpilepsy/Seizures, Nausea/Vomiting, Spasticity/MS, PTSD, IBS

• Physicians have no authority to prescribe; can only recommend

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Scope of Use• Globally, most commonly used psychoactive substance with estimated

181.8 million users ages 15-64 (World Health Organization 2016)

• Most common illicit drug in US; 43.5 million people 12 and older in 2018

• Between 2002-2018, use increased across almost all age groups

• 3,099,934 million authorized medical marijuana users in US

• https://www.samhsa.gov/data/sites/default/files/cbhsq-reports/NSDUHffrBriefingSlides2018_w-final-cover.pdf

Past Year Illicit Drug Use among People Aged 12 or Older in 2018 (SAMHSA 2018)

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Past Year Marijuana Use among People Aged 12 or Older: 2002‐2018 (SAMSHA 2018)

Age 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

12 or Older 11.0+ 10.6+ 10.6+ 10.4+ 10.3+ 10.1+ 10.4+ 11.4+ 11.6+ 11.5+ 12.1+ 12.6+ 13.2+ 13.5+ 13.9+ 15.0+ 15.9

12 to 17 15.8+ 15.0+ 14.5+ 13.3 13.2 12.5 13.1 13.7+ 14.0+ 14.2+ 13.5+ 13.4+ 13.1+ 12.6 12 12.4 12.5

18 to 25 29.8+ 28.5+ 27.8+ 28.0+ 28.1+ 27.5+ 27.8+ 30.8+ 30.0+ 30.8+ 31.5+ 31.6+ 31.9+ 32.2+ 33.0+ 34.9 34.8

26 or Older 7.0+ 6.9+ 7.0+ 6.9+ 6.9+ 6.8+ 7.0+ 7.7+ 8.0+ 7.9+ 8.6+ 9.2+ 10.1+ 10.4+ 11.0+ 12.2+ 13.3

+ Difference between this estimate and the 2018 estimate is statistically significant at the 0.5 level.

Scope of Use

• Most often detected substance in workplace drug testing programs

• Failed workplace drug tests for marijuana have increased in nearly all workforce categories and reached 14 year high in 2018

• In general workforce, marijuana positivity increased nearly eight percent in urine testing (2.6% in 2017 versus 2.8% in 2018) and almost 17 percent since 2014 (2.4%)

• In federally mandated, safety‐sensitive workforce, marijuana positivity grew nearly five percent between 2017 (0.84%) and 2018 (0.88%) and nearly 24 percent since 2014 (0.71%)

https://www.questdiagnostics.com/home/physicians/health‐trends/drug‐testing0

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Routes of Administration

• Inhalation: smoking, vaporization

• Ingestion: edibles, tea, oils, tinctures, pills (Dronabinol, Nabilone)

• Topical application: ointments, creams, patches, tinctures, sprays, suppository

Route of administration affects onset of action,

intensity and duration of action, clinical and adverse effects

Smoked Marijuana

• Most common method of use (joints, blunts, pipe, bong)

• THC quickly passes from lungs, to blood stream, brain, other organs

• Allows titration of dose to desired effect for symptom management

• Pharmacokinetics --Rapidly absorbed, psychoactive affects within minutes--After single use, plasma THC peaks at 100-200ng/ml--Peak plasma THC concentrations in 10-30min --THC levels 1-4 ng/mL at 3-4 hours

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Vaporization

• Marijuana leaves and buds heated but not burned

• Volatile cannabinoids (THC, CBD) released and inhaled

• Previously considered less irritating to lungs due to inhalation of less by-products of combustion

• Toxins/carcinogens/pesticides may still be present in vapor

• 1,888 cases of e‐cigarette, or vaping associated lung injury (EVALI) reported from 49 states, DC, and U.S. Virgin Island; 37 confirmed deaths in 24 states (Centers for Disease Control 10/29/2019)

Ingestion

• Consumed via oils, butter, teas, edibles (brownies, cookies, chocolate, candy, lollipops)

• Marijuana typically heated in butter or oil to prepare edibles

• Edibles attractive to novice users and those who do not want to smoke/inhale

• Once ingested, gets absorbed through intestines, metabolized by liver, distribution to blood stream, brain, other organs

• Pharmacokinetics –Slower onset of action, 30-90 minutes –Peak effect 2-3 hours –Duration 4-12+ hours (more prolonged high)

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Ingestion• Delayed and variable onset of effects makes titration difficult, may lead to excessive use and

overdose

• 2006-2014 accidental ingestions in children <6 years more than doubled (Onders B et al, Clin Pediatric 2015)

• Calls to Poison Control Center for MJ exposure 1 year after legalization 71% increase in CO 55% increase in WA

• In 2014, 19 year old college student jumped to his death from hotel balcony after eating marijuana infused cookies (https://www.denverpost.com/2014/04/02/denver-coroner-man-fell-to-death-after-eating-marijuana-cookies/)

• Study of Emergency Room visits at University of Colorado Hospital from 2012 to 2016 found more than 3-fold increase in cannabis-associated ED visits with 10.7% attributed to edible cannabis

Volkow & Baler, “Emergency Department Visits From Edible Versus Inhalable Cannabis”, Ann Intern Med. 2019;170(8):569-570

Marijuana Edible Sales Up In Four States (8/23/2019 ‐10/6/2019)

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Topical Application

• Cannabinoids can be absorbed through skin and mucosal tissues

• Ointments, creams, lotions containing cannabis oil, dermal patches

• Dermal patches newer vehicle for delivery; worn on skin and gradually release cannabinoids

• Onset and duration of effects unclear; onset 15‐30 minutes? last 8‐12+ hrs?

Therapeutic and Adverse Effects

• In January 2017, The National Academies of Sciences, Engineering, and Medicine released a scientific report: The Health Effects of Cannabis and Cannabinoids: Current State of Evidence and Recommendations for Research

• Committee of 16 experts conducted comprehensive, in‐depth review of existing evidence regarding potential therapeutic uses and health effects of cannabis

• Arrived at nearly 100 research conclusions and categorized the weight of evidence (conclusive, substantial, moderate, limited, no or insufficient)

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Report Conclusions:Conclusive/Substantial Evidence

Benefits:

• Decreased chronic pain in adults

• Decreased chemo induced N/V

• Improved patient reported MS spasticity

Risks:

• Worsens resp symptoms, bronchitis

• Increased risk MVA

• Development of schizophrenia/psychosis among frequent users

• Development of problem use with increased cannabis use frequency

• Lower birthweight babies

Moderate Evidence

Risks:• Increased impairment of learning,

attention, memory • Increased social anxiety • Increased mania/hypomania in those

with bipolar disorder • Increased suicide ideation/attempts/

completion among heavier users• Increased substance dependence on

other substances, alcohol, tobacco• Increased severity of PTSD with

problem use• Increased risk overdose injuries among

pediatric populations

Benefits:• Improved short term sleep outcomesfor OSA, chronic pain, fibromyalgia, MS (CBD)

• Moderate evidence of no statistical association of cannabis and increased rick of lung or head & neck cancers

• Moderate evidence that cessation of cannabis smoking improves respiratory symptoms

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Limited Evidence

• Increased appetite and decreased weight loss in HIV/AIDS

• Improved anxiety symptoms

• Improved PTSD

• Improved clinician measured MS spasticity symptoms

• Decreased production of several inflammatory cytokines

• Increased risk of COPD

• Triggers acute MI, ischemic stroke or subarachnoid hemorrhage

• Non‐seminoma type testicular germ cell tumors (frequent smoking)

• Impaired academic achievement

• Increased unemployment/low income

No/Insufficient Evidence to Support or Refute

• Cancer associated anorexia cachexia

• Epilepsy

• Symptoms of IBS

• Symptoms in Parkinson’s, ALS

• Chorea in Huntington’s

• Spasticity in patients with paralysis due to spinal cord injury

• Esophageal, prostate, cervical, penile, anal, bladder, gliomas, non‐Hodgkinslymphoma

• Asthma development or exacerbation

• Hospital admissions for COPD

• Death due to cannabis overdose

• Development of PTSD

Occupational accidents or injuries (general, nonmedical cannabis use)

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Impact on Workplace Health & Safety

• SAMHSA estimates 68.9% illicit users 18 and older employed full or part-time

• Drug abuse estimated to cost employers $81 billion annually (National Council on Alcoholism and Drug Dependence)

• Major concerns: Cognitive impairmentDriving impairmentIncreased risk of occupational injury (absenteeism, decreased productivity)Addiction

Cognitive Impairment• Regular use of marijuana associated with cognitive and psychomotor impairment

• Short term effects include: impaired short term memory, impaired motor coordination, impaired attention/judgement, anxiety, paranoia, psychosis

• Impairment periods vary with dose administered, route of administration, frequency of use, concentration of THC

• Many studies on duration of impairment were done with marijuana was of lower THC concentration

• Colorado Department of Public Health and Environment found substantial evidence of memory impairment lasting at least 7 days after last use, and potential of acute psychotic symptoms immediately after use

Retail Marijuana Public Health Advisory Committee. (2014). Monitoring Health Concerns Related to Marijuana in Colorado: 2014. Denver, CO: Department of Public Health and Environment.

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Driving Impairment

• Marijuana second substance found after alcohol when driving under the influence

• Meta-analysis and simulated driving studies have shown good evidence that marijuana negatively affects a number of cognitive and motor skills needed for safe driving

• Effects are dose dependent with minimal to no impairment at low doses, progressive impairment with increasing doses

• Two systematic reviews show MVA risk 2-2.6x; no safe level of acute use per functional MRI

• When marijuana is consumed with alcohol, significant combined effect occurs:

Crash risk: MJ < EtOH < EtOH and MJ

Driving Impairment

• Currently no definitive test to determine extent of driving impairment from marijuana

• Level of THC in body fluids cannot reliably indicate degree of impairment

• Heavy chronic users may show less signs of impairment than infrequent users

• 2012 study indicates that blood THC concentration 2-5ng/ml associated with substantial driving impairment

• Several States statutorily define impairment/DUI as THC blood 5ng/ml (WA, CO, MT)

JOEM Vol 57, Number 4, April 2015 Marijuana in Workplace: Guidance

for Occupational Health Professionals and Employers

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Occupational Injuries

• Some studies found an association

• Due to limitations in available studies, not currently possible to determine if general, non‐medical use of cannabis is statistically associated with occupational accidents or injuries

• Because of risks for impairment, marijuana poses danger in workplace, particularly in safety sensitive industries such as transportation, construction, law enforcement, healthcare

Addiction

• Moderate evidence shows that marijuana can produce addiction, withdrawal

• Approximately 10% develop addiction, 17% if begin use during adolescence, 25‐50% among daily users

• Long term users trying to quit have reported withdrawal symptoms: sleeplessness, decreased appetite, anxiety/agitation/irritability, cravings, depression/mood swings, fatigue

• Per 2016 National Survey on Drug Use and Health, nearly 4 million with marijuana use disorder

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Determination of Impairment

• Drug Screening

• Fitness for Duty Evaluation

• Field Sobriety Testing

Marijuana Impairment• Users have varying sensitivity to effects of THC

• Acute intoxication: difficulty concentration, difficulty with coordination, decreased muscle strength, decreased hand steadiness, postural hypotension, lethargy, slowed reaction time, slurred speech, conjunctival injection

With large doses: confusion/disorientation, amnesia, delusions, hallucinations, anxiety/agitation/panic

• Chronic user/long term user: depressed mood, constricted/flat affect, apathy/lack of motivation, irritability, difficulty concentrating, paranoia, panic disorder

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Drug Screening• Urine, blood, hair and oral fluids can be used

• Urine is the testing method approved for federally mandated drug testing

• Urine: tests for inactive THC metabolite 11‐nor‐delta‐ tetrahydrocannabinol 9‐carboxylic acid (delta9‐THC‐COOH) which can be present for days to weeks after last use

• Approximate window of detection time in urine using federal cutoffs:

Up to 3 days for single users

Up to 4 ‐7 days for moderate users (4x per week)

Up to 10 – 15 days for frequent users

30+ days for chronic, heavy users

• Urine drug screening merely indicates the presence of marijuana; no correlation with acute impairment (except under Federal law where all marijuana use illegal)

Drug Screening

• Blood plasma screening for marijuana targets psychoactive metabolite 11‐hydroxy‐THC (11‐OH‐THC); used to investigate accidents, DUIs

• Studies indicate serum levels of 3.8 (3.1‐4.5) after oral marijuana ingestion and 3.8 (3.3‐4.5) after smoking causes impairment equal to BAC 0.05g%

ESTABLISHING IMPAIRMENT

THC Plasma Casual User Chronic User0-2ng/ml unknown unknown2-5ng/ml likely possibly>5 ng/ml likely likely

• Further studies needed to define serum levels for marijuana impairment

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Fitness for Duty Evaluation• Behavioral/Psychological and Workplace Observations

Behavioral/psychological: impaired motor coordination, difficulty concentrating (lack of focus, confusion), impaired learning and memory, inappropriate verbal or emotional responses (overreact to criticism, interpersonal conflicts), anxiety/irritability/panic, socially withdrawn, depression, sleepy/fatigued, stumbling, increased appetite, uncontrolled laughter, insomnia/disturbing dreams, loose association/flight of ideas, paranoia, hallucinations/delusions/psychosis, erratic behavior

Work performance: arriving late/leaving early, increased absences, changes in work quality/errors in judgement/deterioration in work performance, noncompliance with policies, extended breaks, socially withdrawn

• Complete medical history, medication history, physical and mental status exam, alcohol/drug screen

Physical: glassy/red eyes, pupil dilation, dry mouth/throat, hypertension, tachycardia, tremors, headache, abdominal pain, sweating, odor of marijuana, unsteady gait, changes in speech (slurred, slow, pressured, rambling, confused)

Behavior Observation Checklist

1. Demeanor normal sudden mood swings silent/withdrawn irritable hyper excited crying

2. Speech normal slurred slow incoherent rambling shouting whispering

3. Attention normal drowsy confused difficulty in focusing on task difficulty with memory

4. Eyes normal change in pupil size droopy bloodshot watery glassy difficulty keeping

open 5. Movements normal fumbling nervous jerky

hyperactive slow 6. Actions normal erratic hostile resistant

threatening using profanity 7 Walking/standing normal stumbling unsteady staggering

swaying tremors 8 Face normal flushed pale sweaty 9. Appearance normal unclean disheveled inappropriate

dress unusual odor on body or clothing 10. Breath normal odor of alcohol unusual odors 11. Quality of work normal inconsistent deteriorating unable to

perform usual and customary tasks 12. Other safety concerns

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Montreal Cognitive Assessment (MOCA)

https://onlinelibrary.wiley.com/doi/epdf/10.1002/gps.5162

Field Sobriety Tests• National Highway and Traffic Safety Administration (NHTSA) sponsored research that led to the development of standardized field sobriety tests to evaluate motorists suspected of driving while impaired by alcohol (horizontal gaze nystagmus, one leg stand, 9 step walk and turn)

• Field sobriety tests have not been validated to correlate with marijuana impairment

• Some states are using trained police officers as Drug Recognition Experts to determine if driver is impaired, or if impairment is due to medical condition

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Drug Recognition Expert 12 Step Process

• Breathalyzer test

• Interview of arresting officer

• Preliminary examination and pulse

• Eye Exam

• Divided Attention Tasks

• Vital Signs and second Pulse

• Dark Room Examination

• Muscle Tone

• Injection Sites and Pulse

• Interrogation statements

• Analysis and Opinion of Evaluator

• Toxicologic Examination

http://www.drugdetection.net/PDF%20documents/DRE%20Matrix.pdf

Cognitive Assessment Tool

• DriveAble developed a Cognitive Assessment Tool (DCAT) that uses a computer application to assess drivers at potential risk for unsafe driving because of brain injury, disease or medication use

• The assessment presents 6 tasks that measure cognitive processes needed for safe driving and is promoted as being able to predict actual on‐road performance

• Testing only determines impairment, not the cause of the impairment (ex. sleep deprivation, alcohol, prescription medications, substance abuse, etc.)

https://driveable.com/index.php/products/dcat

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Fitness for Duty (FFD) Pearls:

• FFD exams are important, complex service line for OHS programs which provide tremendous value for an employer

• In addition to a physical and/or mental status exam, a FFD exam requires a detailed review of medical records and background information from multiple sources.

• Depending on the situation conferring with a treating physician, FCE testing, cardiovascular testing, drug & alcohol testing, job site analysis (JSA), and other specialized testing may be necessary

• A Fitness for Duty Evaluation must include assessment for

The Risk of• Sudden or

• Gradual

• Impairment/Incapacitation

82www.MedLawPractice.com, all rights reserved

Fit Not Fit

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Marijuana Breathalyzer

• Hound Labs has developed a breathalyzer capable of detecting THC and alcohol

• Testing has shown THC can be detected in breath within 15 minutes and up to two to three hours after inhaling; correlates with peak period of impairment

• Would show recent marijuana use; currently being tested with law enforcement

https://houndlabs.com/

Summary

• Studies have shown marijuana to have some important therapeutic uses and many adverse health effects

• Legalization of marijuana, growing acceptance, accessibility and increased use raises concern for workplace health and safety

• More research needed into the therapeutic and adverse effects of marijuana, as well as how best to detect marijuana impairment

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Thank you!


[email protected]

508‐334‐6179

Resources• https://www.questdiagnostics.com/home/physicians/health-trends/drug-testing

• https://www.livescience.com/53644-marijuana-is-stronger-now-than-20-years-ago.html

• https://mjbizdaily.com/sales-of-marijuana-edibles-up-in-at-least-four-states-in-wake-of-vape-health-scare/

• https://www.chicagodefensefirm.com/criminal-defense-blog/2014/september/can-testing-measure-marijuana-impairment-/

• http://www.employer-solutions-resources.com/downloads//quest-diagnostics-marijuana-white-paper.pdf

• https://www.digitaltrends.com/cars/thc-blood-marijuana-useless/

• https://www.dallaralaw.com/how-do-police-determine-impairment-for-marijuana/

• https://www.pressrepublican.com/opinion/did-you-know-no-test-measures-impairment-due-to-pot/article_006a63af-d238-5313-a410-1f04fb3c62fb.html

• https://www.medscape.com/viewarticle/914256?nlid=130177_5294&src=wnl_dne_190613_mscpedit&uac=322095FG&impID=1993382&faf=1#vp_2

• https://img.en25.com/Web/XpertHRUS/%7Bf933970e-22e9-460b-8b9e-468cae4d9282%7D_FC0187_XHR_201906_Marijuana_in_the_Workplace.pdf

• https://nccih.nih.gov/health/marijuana

• https://www.drugabuse.gov/publications/drugfacts/marijuana-medicine

• https://img.en25.com/Web/XpertHRUS/%7Bf933970e-22e9-460b-8b9e-468cae4d9282%7D_FC0187_XHR_201906_Marijuana_in_the_Workplace.pdf

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Agenda

A New England State Law Overview of Marijuana in the Workplace: MA, ME, NH, VT, CT, and RI

State Legal Status of Marijuana: Medical and Recreational

State Drug Testing Restrictions

Marijuana Law: Private Right of Action?

Disability Statute: Duty of Accommodation?

Workers’ Compensation: Covered Benefits?

Unemployment Benefits Following Termination for “Impairment”

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Medical and Recreational Use Permitted

Massachusetts-Legal Status of Marijuana

Medical Use: Mass. Gen. Laws, c. 94I, §§1 to 8.

Massachusetts allows the medical use of marijuana to treat, or alleviate the symptoms of certain debilitating medical conditions. Qualifying patients can possess a 60-day supply of medical marijuana (up to 10 ounces), or as otherwise defined by the Massachusetts Cannabis Control Commission; Registration card.

Recreational Use: Mass. Gen. Laws, c. 94G, § 7.

Massachusetts allows the personal use of marijuana by adults age 21 or older. These adults can possess up to one ounce of marijuana; within their residences they can possess up to 10 ounces of marijuana and any marijuana produced by cannabis plants cultivated on the premises. Limited to not more than 6 marijuana plants for personal use so long as not more than 12 plants are cultivated on the premises at once.

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Massachusetts-Drug Testing No statute in Mass. Limiting drug or alcohol testing.

Drug testing that interferes with an individual's reasonable expectation of privacy may violate the Massachusetts Privacy Act (M.G.L. c. 214, § 1B)(Webster v. Motorola, Inc., 637 N.E.2d 203, 206 (Mass. 1994)).

Employees also have challenged drug testing under Article 14 of the Massachusetts Constitution, which prohibits unreasonable search and seizure (Mass. Const. pt. 1, art. 14).

Massachusetts courts will balance an employer's legitimate business interest in investigating suspected drug use against the "significant invasion" of the employee's privacy (Folmsbee v. Tech Tool Grinding & Supply, Inc., 630 N.E.2d 586, 589 (Mass. 1994)).

Post-accident testing depends on the duties of the employee being tested. Post-accident testing of an employee who uses dangerous equipment has been found sufficiently important to justify requiring the employee to provide a urine sample in conditions of partial privacy (Harrison v. Eldim, Inc., 2000 WL 282446, at *5 (Mass. Super. Ct. Feb. 17, 2000)).

Consider OSHA Rule on Post Accident Drug Testing which “chills” employee’s from reporting a work-related injury or illness.

Massachusetts-Private Right of Action Under Marijuana Law? Under the The Regulation and Taxation of Marijuana Act, there is no requirement that

Massachusetts employers accommodate the use of medical marijuana in the workplace or impairment:

This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees. (2016 Mass. Acts c. 334)

No private right of action under Medical Use of Marijuana law.

Nothing in 105 CMR 725.000: Requires any accommodation of any on-site medical use of marijuana in any place of employment (105 Mass. Code Regs. 725.650(B)(4); See also Barbutov. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017)(holding while there is no private cause of action under the medical marijuana law, medical marijuana patients do have a cause of action under the Law Against Discrimination M.G. L. c. 151B).

Duty to Accommodate Possession? See Brown v. Woods Mullen Shelter/Boston Public Health Commission, Suffolk Super. 16-805-C (Aug. 28, 2017)

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Massachusetts-Disability Accommodation Allowing off-site use of medical marijuana despite an employer's drug-free workplace

policy may be a reasonable accommodation under Massachusetts' disabilitydiscrimination law, if it is not an undue hardship on the employer's business. Barbutov. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017).

Plaintiff may seek a remedy under state disability discrimination law against anemployer who discriminates due to off-site medical marijuana use.

No private right of action under state medical marijuana law.

No wrongful termination action under public policy doctrine.

Must use interactive process to assess reasonable accommodation.

If no equally effective alternative exists, the employer bears the burden of proving“undue hardship”.

But employer not required to “accommodate” if employee cannot perform the essentialjob functions with reasonable accommodation. (Melo v. City of Somerville, Civil ActionNo. 18-10786-RGS (D. Mass. 2019)

Massachusetts-Unemployment/Workers’ Compensation A positive marijuana test alone does not render a claimant ineligible for

unemployment benefits. (BR- 0012004801(08/04/14); see also, BR-00183168 60 (7/29/16)).

Workers’ Compensation insurer not required to reimburse under MA law. SeeWright v. Pioneer Valley, Board No. 04387-15 (02/14/19).

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Maine-Legal Status of Marijuana

Medical Use: 22 Me. Rev. Stat. §§ 2421 to 2430-B

Maine allows the medical use of marijuana to treat or alleviate the symptoms of certain debilitating medical conditions. Qualifying patients can possess up to 2.5 ounces of prepared marijuana and six mature marijuana plants.

Recreational Use: 28-B Me. Rev. Stat. §§1501 to 1504

Maine allows the personal use of marijuana by adults age 21 and older. These adults can use, possess, or transport up to 2.5 ounces of marijuana or 2.5 ounces of a combination of marijuana and marijuana concentrate that includes no more than 5 grams of marijuana concentrate; up to three mature marijuana plants, 12 immature marijuana plants, and an unlimited number of seedlings. Anyone who violates these provisions is guilty of a civil violation and can be fined not more than $100.

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Maine-Drug Testing Maine Substance Abuse Testing Law (MSAT): 26 M.R.S.A. §§ 681 to 690

Applies to all employers, except nuclear facilities and employers subject to federal drug testing.

Testing employees and applicants is unlawful unless the employer has a drug testing policy that both: (1) Is pre-approved by the Maine Department of Labor (MDOL); and (2) Complies with the MSAT. (26 M.R.S.A. §§ 683 and 686(1)).

Random, Probable Cause and Return To Work testing is authorized under MSAT, subject to the requirements of the law.

For an alcohol or marijuana test, the employee may request that a blood sample be taken for testing. The employee must make this request at the time a test sample is taken. If the employee requests a blood test, no other sample from the employee will be tested for alcohol or marijuana. (26 M.R.S.A. § 683(5)(B)).

The Maine Department of Labor may enforce the Maine Substance Abuse Testing Law by: (1) Collecting a judgment on behalf of the employee or employees; and (2) Supervising the payment of the judgment and the reinstatement of the employee or employees. (26 M.R.S.A. § 689(4)).

Based on studies done in 2015, MDOL is shifting its emphasis from drug testing for specified substances to encouraging employers to detect and respond to impairment in the workplace regardless of its cause, in order to protect employees from harming themselves and others at work.

Maine: Private Right of Action Under Marijuana Law? Maine Medical Use of Marijuana Act: prohibits employers from refusing to employ or

otherwise penalizing a person solely for that person's status as a registered qualifying patient or a registered primary caregiver unless failing to do so would either:

(1) Put the employer in violation of federal law; or

(2) Cause it to lose a federal contract or funding. (22 M.R.S.A. § 2430-C(3)).

“A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises.” (22 M.R.S.A. §2430-C(3)).

Recreational Use: prohibition against discrimination removed by P.L. 2017, ch. 409 (effective 05/02/18).

Original recreational marijuana law included the following provision: “A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside of the school's, employer's or landlord's property.”

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Maine-Disability Accommodation

Medical Marijuana law does not require an employer to accommodate either: (1) Theingestion of marijuana in any workplace; or (2) Any employee working while under theinfluence of marijuana. (22 M.R.S.A. § 2426(2)).

Recreational Marijuana Law provides that (1) an employer need not permit or accommodatethe use, consumption, or possession of marijuana in the workplace; (2) May enact andenforce workplace policies restricting the use of marijuana by employees in the workplace orwhile working; and (3) May discipline employees under the influence of marijuana in theworkplace. (28-B M.R.S.A. § 112.)

No duty to accommodate use at work, but medical marijuana law provides that employercannot discriminate by “refusing to employ or otherwise penalizing” a person solely becauseof their status as a registered medical marijuana user.

Anti-discrimination provision removed from recreational marijuana law.

No Maine case law interpreting anti-discrimination provision/duty to accommodate.

Recommend employers engage in interactive process as required in MA

Maine-Unemployment Benefits and Workers’ Compensation “An Act To Clarify the Disqualification from Unemployment Benefits of a

Person Who Is Terminated from Employment for Being Under the Influence of Marijuana”

Law enacted May 16, 2019 and amended 26 M.R.S.A. §1043 to clarify that “misconduct” for unemployment purposes includes: “Intoxication while on duty or when reporting to work, or unauthorized use of alcohol or marijuana while on duty except for the use of marijuana permitted under Title 22, chapter 558-C.” (Maine Medical Use of Marijuana Act).

Bourgoin v. Twin Rivers Paper Co., 2018 ME 77 (2018): Maine Supreme Court holds employer not required to reimburse employee for medical marijuana expenses because it would force the employer to aid and abet the employee’s possession.

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Medical Use Permitted

Possession Decriminalized

New Hampshire-Legal Status of Marijuana

Medical Use: N.H. Rev. Stat. §§ 126-X:1 to 126-X:11

New Hampshire allows the therapeutic use of cannabis to treat or alleviate the symptoms of treatment of qualifying medical conditions. Qualifying patients can possess no more than two ounces of usable cannabis for therapeutic purposes.

Possession Decriminalized: N.H. Rev. Stat. § 318-B:2-c

Anyone age 18 or older who knowingly possesses 0.75 ounces or less of marijuana or five grams or less of hashish; and anyone age 21 or older who knowingly possesses a personal use amount of marijuana-infused product containing up to 300 milligrams of THC is subject to a $100 fine for a first or second offense, and $300 for a third offense. Four offenses within three years results in misdemeanor charges.

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New Hampshire-Drug Testing

No drug and alcohol testing law in New Hampshire

Balance employee privacy interest with employer’s legitimate business interest. (See O’Brien v. Papa Gino’s of America, Inc., 780 F.2d 1067 (1st Cir. 1986)).

New Hampshire-Private Right of Action Under Marijuana Law? Employers are not required to accommodate medical marijuana use or

possession in the workplace. (N.H. Rev. Stat. §126-X:3 (II)(2))

Nothing in this chapter shall be construed to require . . . [a]nyaccommodation of the therapeutic use of cannabis on the property or premises of any place of employment . . . .This chapter shall in no way limit an employer's ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.” (N.H. Rev. Stat. § 126-X:3 (III)(c))

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New Hampshire-Disability Accommodation

New Hampshire medical marijuana law does not include an anti-discrimination provision.

Statute clearly says no duty to accommodate.

No NH case law under the state disability statute on accommodation of medical marijuana users.

Conservative approach: engage in interactive dialogue.

New Hampshire-Unemployment/Workers’ Compensation Unemployment benefits can be denied when employee engaged in

misconduct in connection with the employee’s work. (RSA 282-A:32).

No unemployment cases involving marijuana. But see In Appeal of Roy Brooks, 161 N.H. 457 (2011) which held single instance of reporting for duty under the influence of alcohol was deemed a disqualifying misconduct.

Appeal of Andrew Panaggio, No. 2017-0469 (NH Supreme Court, 03/07/19): Requires reimbursement for medical marijuana expenses under workers’ compensation.

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Vermont-Legal Status of Marijuana

Medical Use: 18 Vt. Stat. §§ 4471-4474m

Vermont allows the medical use of marijuana to alleviate the symptoms or effects of certain debilitating medical conditions. Registered patients and their caregivers collectively can possess no more than two mature marijuana plants, seven immature plants, and two ounces of usable marijuana.

Recreational Use: 18 Vt. Stat. §§4230-4230i

Vermont allows the possession of recreational marijuana by adults age 21 or older. These adults can possess up to one ounce of marijuana, or up to five grams of hashish and up to two mature marijuana plants or four immature marijuana plants. Recreational marijuana can't be consumed in public places, and can't be smoked in any place where smoking is prohibited by law.

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Vermont-Drug Testing

The Vermont Drug Testing Act governs drug testing by employers in Vermont (Vt. Stat. Ann. tit. 21, §§ 511 to 519).

Pre-employment drug test allowed if the applicant both: (1) Has been given an offer of employment conditioned on receiving a negative test result; and (2) Received written notice of the drug testing procedure, stating that therapeutic levels of medically prescribed drugs will not be reported. (21 V.S.A. § 512(b)).

Random testing not allowed unless required by federal law.

Reasonable suspicion testing allowed only if probable cause to believe the employee is using or is under the influence of a drug on the job (21 V.S.A. § 513(c)).

Employers cannot discharge any employee if the test result is positive and the employee agrees to participate in and successfully completes a rehabilitation program.

Vermont-Private Right of Action Under Marijuana Law? Vermont’s medical marijuana statute is written as a criminal statute

exempting licensed medical marijuana users from prosecution.

Provides, however, that individuals may be subject to arrest or prosecution for being under the influence of marijuana while in a workplace (18 V.S.A. § 4474c(a)(1)(B)).

Similarly, Vermont’s recreational marijuana law does not require employers to permit or accommodate marijuana possession or use in the workplace; or prevent an employer from adopting a policy that prohibits marijuana in the workplace. (18 V.S.A. § 4230a(e)).

Recreational statute specifically states it does not create a cause of action against an employer that terminates an employee for violating any policy restricting or prohibiting marijuana use by employees; or prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on the employer's premises. (18 V.S.A. § 4230a(e)).

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Vermont-Disability Accommodation

See VT Attorney General “Guide to Vermont’s Laws on Marijuana in the Workplace” published June 2018.

Guidance suggests medical marijuana users and those dealing with substance abuse may be protected under VT Fair Employment Practices Act.

Vermont law protects workers who can safely do their job, even if they are currently struggling to overcome addiction.

Atty. Gen. Guidance: “the laws do not permit employers to discriminate against disabled applicants or employees who use medical marijuana outside of work to treat their disability. Remember that Vermont issues medical marijuana cards only to persons certified as having a “debilitating medical condition.” In many instances, such conditions count as legally-protected disabilities under VFEPA.”

Vermont-Unemployment/Workers’ Compensation

Employee may be denied unemployment benefits if he or she has been discharged by his or her last employing unit for misconduct connected with his or her work. (21 V.S.A. § 1344).

No decisions relating to marijuana use.

Hall v. Safelite Group, Inc., Opinion No. 06-18WC (01/02/18): Employee may be reimbursed for medical marijuana expenses under workers’ compensation, but insurer cannot be compelled to do so.

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Connecticut-Legal Status of Marijuana

Medical Use: Conn. Gen. Stat. §§ 21a-408 to 21a-408q

Connecticut allows the palliative use of marijuana to alleviate symptoms associated with certain debilitating medical conditions. Qualifying patients can possess up to a one-month supply of usable marijuana for palliative purposes, subject to statutory and regulatory definitions and limitations.

Possession Decriminalized: Conn. Gen. Stat. § 21a-279a

Possession of less than 0.5 ounces of a cannabis-type substance is a non-criminal infraction, punishable by a $150 fine for the first offense and a fine of between $200 and $500 for subsequent offenses.

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Connecticut-Drug Testing

Drug Testing Law: Conn. Gen. Stat. Ann. §§ 31-51t to 31-51aa

Pre-employment testing permitted.

Random testing permitted only if reasonable suspicion, authorized by federal law, high risk, safety sensitive, school bus driver, or conducted as part of voluntary employee assistance program.

Reasonable suspicion testing permitted if employer has reasonable suspicion the employee is under the influence of drugs or alcohol which either: Adversely affects the employee's job performance; or Could adversely affect the employee's job performance. (Conn. Gen. Stat. Ann. § 31-51x(a).)

Connecticut: Private Right of Action Under Marijuana Law? Employers are not required to accommodate on-site medical marijuana

use, and they may discipline an employee for being under the influence of marijuana during work hours (Conn. Gen. Stat. Ann. §§ 21a-408a(b)(2), 21a-408p(b)(3), and 31-51y(b)).

Employers cannot discriminate against an employee or potential employee based on the individual's status as a qualifying patient or primary caregiver, except as required by federal law or as a requirement for obtaining federal funding (Conn. Gen. Stat. Ann. § 21a-408p(b)(3)).

Employers cannot use the federal law exemption as a reason to discriminate against a qualifying patient in the absence of an actual federal requirement (See Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. Conn., 2017)).

In Noffsinger, Court found that PUMA creates a private right of action.

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Connecticut-Disability Accommodation

CT Palliative Use of Marijuana Act (PUMA) includes a provision that explicitly prohibits discrimination against qualifying patients and primary caregivers by schools, landlords, and employers. Conn. Gen. Stat. § 21a-408p(b).

“The language and purpose of the statute make clear that it protects employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA.”

“By negative implication, this language makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.”

No disability discrimination case reported.

Connecticut-Unemployment/Workers’ Compensation

May be disqualified for unemployment benefits for misconduct.

No unemployment decisions related to marijuana.

Petrini v. Marcus Dairy, Inc., 6021 CRB-7-15-7 (May 12, 2016)

Compensation Review Board found medical marijuana to be “reasonable and necessary” medical treatment, and therefore compensable

The Review Board noted that while the legislation specifically excluded health insurance coverage for the palliative use of marijuana, the statute was silent with respect to workers’ compensation insurance.

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Rhode Island-Legal Status of Marijuana

Medical Use: R.I. Gen. Laws §§ 21-28.6-1 to 21-28.6-7

Rhode Island allows the medical use of marijuana to treat certain chronic or debilitating medical conditions. A qualifying patient can possess up to 12 mature marijuana plants and 2.5 ounces of usable marijuana or its equivalent amount, subject to certain restrictions.

Possession Decriminalized: R.I. Gen. Laws. § 21-28-4.01(c)(2)

Anyone age 18 or older who possesses one ounce or less of marijuana faces a civil penalty of $150 and forfeiture of the marijuana.

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Rhode Island-Drug Testing

Rhode Island Urine and Blood Tests as a Condition of Employment Act: R.I. Gen. Laws § 28-6.5

Applies to all employers, except certain employers subject to federal drug testing.

Pre-employment testing allowed if the job offer is conditioned on the applicant receiving a negative test result.

Random drug testing prohibited.

Reasonable suspicion testing permitted if the employer has a policy and a reasonable belief that the employee's use of a controlled substance is impairing his ability to perform his job based on specific aspects of an employee's job performance and articulable contemporaneous observations about the employee's: appearance; behavior; or speech.

An employee who tests positive a first time cannot be terminated and must be referred for assistance to a substance abuse professional who is: experienced in the diagnosis and treatment of drug-related disorders and licensed in Rhode Island. (R.I. Gen. Laws § 28-6.5-1(a)(3)).

Rhode Island-Private Right of Action Under Marijuana Law? Hawkins-Slater Medical Marijuana Act shall not be construed to require “An

employer to accommodate the medical use of marijuana in any workplace.” (R. I. Gen. Laws § 21-28.6-7(b)(2)).

Employers may not refuse to employ or otherwise penalize a person solely for the person's status as a medical marijuana cardholder, except an employer may take action against an employee for:

using or possessing marijuana at the workplace;

undertaking a task under the influence of marijuana when doing so constitutes negligence, professional malpractice, or jeopardizes workplace safety;

operating a motor vehicle, machinery, equipment, or firearms while under the influence of marijuana;

violating employment conditions in a CBA; or

Where the employer is a federal contractor or otherwise subject to federal law such that failure of the employer to take such action against the employee would cause the employer to lose a monetary or licensing related benefit. (R.I. Gen Laws § 21-28.6-4.)

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Rhode Island-Disability Accommodation

Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680 (R.I. Super. May 23, 2017).

“The Hawkins-Slater Act must have an implied private right of action. Without one, § 21-28.6-4(d) would be meaningless.”

There is a private right of action under the state medical marijuana law.

But employers do not have to tolerate an employee working under the influence and unable to perform job duties.

Under marijuana law, not required to make accommodation as defined in the employment discrimination context.

Also a right of action under the disability discrimination act.

Rhode Island-Unemployment/Workers’ Compensation

A person discharged for proved misconduct connected with his or her work is ineligible for unemployment benefits. (R.I. Gen. Laws § 28-44-18).

“Misconduct" is defined as deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee's incompetence.

Rhode Island H5151 signed into law July 5, 2019 amended medical marijuana act to clarify medical marijuana expenses are not required to be reimbursed.

Nothing in this chapter shall be construed to require:

(1) A government medical assistance program or private health insurer (or workers' compensation insurer, workers' compensation group self-insurer or employer self-insured for workers' compensation under § 28-36-1) to reimburse a person for costs associated with the medical use of marijuana; (R.I. Gen. Laws § 21-28.6-7)

Provision in R.I. Gen. Laws § 21-28.6-7 stating “Nothing in this chapter shall be construed to require an employer to accommodate the medical use of marijuana in any workplace” remained unchanged by H5151.

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