Marijuana Legalization

Marijuana Legalization Impact on the Workplace

• Marijuana use is a growing problem in the U.S. and it has a direct impact on the workplace and safety.

• Laws that legalize marijuana, either for recreational or medicinal purposes can complicate employers’ efforts to maintain workplaces free from impairment caused by marijuana use.

According to the 2013 National Survey on Drug Use and Health, an estimated 2.9 million people age 12 or older used an illicit drug other than alcohol or non-medically used a prescription drug for the first time in the past year. Two thirds (66 percent) of new users reported marijuana was the first drug they tried.

A Gateway Drug?

Today’s marijuana is not the marijuana of the 1960s.

In the past 15 years, marijuana potency has tripled and since 1960

it’s grown 5 times stronger.

Increased Potency

4Source: Mehmedic et al., (2010)

• There is a wealth of studies that prove that marijuana impacts the brain in ways that impair judgment, intelligence, reasoning and clarity of thought.

• The adverse effects of pot can continue for

weeks after intoxication has worn off. People can function at below normal intellectual capacity for weeks or sometimes even months after they stop smoking.

Does smoking cannabis affect work performance?

•Linked with:• dropping out of school, • unemployment, • social welfare dependence,• and lower self-reported quality of life

Marijuana use is linked to low productivity and job performance

Source: Fergusson, D. M. and Boden, J.M., 2008

Does smoking pot affect work commitment?

• Employee marijuana use is also linked with increased:• absences, • tardiness,• accidents,• worker’s compensation claims,• and job turnover

Marijuana use is linked to low productivity and job performance

Source: NIDA, 2011

Does smoking pot affect work commitment?

Christen Hyggen. Addiction. Volume 107, Issue 7, pgs 1309-1315, July 2012

Setting: The survey was a nation-wide study set in Norway

Participants: 1,997 respondents born between 1965 and 1968: separated into groups of “abstaining”, “exposed”, “experimenters”, and “involved”

Findings:

• The level of work commitment was associated with involvement with marijuana•“involved” group and “experimenter” reported less work commitment compared to the “abstainer” group•“involved” reported decreasing work commitment into adulthood •Factors related to socio-economic background, education, labor market experiences, mental health and family characteristics were factored in

The legalizer’s strategy has been to legalize…

Does smoking pot affect work commitment?

Marijuana as Medicine

• Twenty-one states and the District of Colombia have legalized marijuana for medicinal purposes. As of November 6, 2012, two states had legalized the "recreational" use of marijuana by those 21 and older. And more states are poised to follow suit.

• Can companies still drug test for marijuana? Can they prohibit employees from bringing marijuana to work or being under its influence while on the job? What should their drug- free workplace policies say about marijuana use?

Marijuana as Medicine?

Therapeutic Potential:

1)Relieving pain

2)Controlling nausea

3)Stimulating appetite

4)Decreasing ocular pressure

Cannabinoid-based medications:

1)Dronabinol (Marinol®)

2)Nabilone (Cesamet®)

3)Sativex®

Marijuana as Medicine?

Marijuana has medical properties, BUT we don’t need to smoke or eat it!We don’t smoke opium to derive the benefits of morphine.So we don’t need to smoke marijuana to receive its potential benefits.•A distinction must be made between raw, crude marijuana and marijuana’s components

Is marijuana medicine?

No: smoked or inhaled raw marijuana is not medicine

Yes: there are marijuana-based pills available and other medications coming soon

Research is ongoing

Is marijuana medicine?

Marijuana-based medicines are being scientifically developed.

•However this process needs improvement.•Research must be done on marijuana’s components, not the raw, crude plant.

Marijuana-based medicines

• 87.9% had tried marijuana before age 19

• 75% of Caucasian patients had used cocaine and 50% had used methamphetamine in their lifetime.

Average medical marijuana patients

Source: O’Connell, T.J. & Bou-Matar, C.B., 2007

Profile: •32-year old white male •history of alcohol and substance abuse •no history of life-threatening illnesses

• In Colorado, 2% reported cancer, less than 1% reported HIV/AIDS, and 1% reported glaucoma as their reason for using medical marijuana.

• In Oregon, these numbers are less than 4%, 2%, and 1%, respectively.

Only a small proportion of medical marijuana users report any serious illness.

Source: Colorado Department of Public Health and Environment, 2011; Oregon Public Health Authority, 2011

Majority of medical marijuana users report using marijuana to treat ‘chronic or

severe pain.’

•96% in Colorado•91% in Oregon•93% in Montana

Chronic pain

Source: Colorado Department of Public Health and Environment, 2011; Oregon Public Health Authority, 2011; Montana Department of Public Health and Human Services, 2011

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“If pot is medicine and sanctioned by the state, then it must be safe to use.”

•Among youth (12-17) marijuana use rates in states with medical marijuana laws is 8.6% compared to 6.9% in states without such laws•In states with medical marijuana laws, adolescents’ perception of the harmful effects of marijuana have significantly decreased.

Increased use among teens

Source: Wall, M., et al., 2011; Johnston, L.D., et al., 2011. 18

Marijuana is a Schedule I drug under the federal Controlled Substances Act

•Makes possession, usage, purchase, sale, and/or cultivation of

marijuana illegal•Crude marijuana may not be prescribed, administered, or dispensed•Other Schedule I drugs include:

• Lysergic acid diethylamide (LSD)• Diacetylmorphine (Heroin)• Gamma Hydroxybutyric Acid (GHB)• MDMA (“ecstasy”)• Mescaline• Jan. 2013 Court Case: U.S. Court of Appeals

Marijuana as Medicine?

Risks of Marijuana UsePhysiological Risk:•Acute use: diminished psychomotor performance, dry mouth (xerostomia), reddening of the eyes• Chronic use:

Effects from Smoking Effects from THC•Abnormalities of respiratory

tract cell lining• ↑risk of cancer, lung

damage and poor pregnancy outcomes

• Cognitive impairment• Apathy• Psychic decline• Sexual dysfunction• Abnormal menstruation

Marijuana Drug Related Emergency Room Admissions for misuse or abuse of marijuana

Source: Substance Abuse and Mental Health Services Administration, Center for Behavioral Health Statistics and Quality. (December 4, 2012). The Dawn Report: Drug-related emergency department visits involving synthetic cannabinoids. Rockville, MD.

Risks of Marijuana Use

Medical Risks of Marijuana Use

Source: SAMHSA. Drug Abuse Warning Network, 2011.

Substance Abuse and Mental Health Services Administration 2009:

• 120 million Emergency Room visits

• 4.5 million drug related

• 2.1 million drug misuse or abuse

• 1, 079, 683 (52%) pharmaceuticals

• 973, 591 (47%) illicit drugs

• 376, 467 (39%) marijuana

•In 2011, 455,668 ER visits involving marijuana

•ER visits for marijuana increased 19 percent

between 2009 and 2011

Risks of Marijuana Use

Marijuana MythsMYTH: No one has ever died from using Marijuana

• Daily pot users have a 30% higher risk of injuries.

• That pot can cause accidents is not surprising, since marijuana has been shown to degrade short-term memory, concentration, judgment, and coordination of complex tasks including driving.

• There have been numerous reports of pot-related accidents -- some of them fatal, belying the myth that no one has ever died from marijuana.

• One survey of 1,023 emergency room trauma patients in Baltimore found that fully 34.7% were under the influence of marijuana, more even than alcohol (33.5%).

• Accidents are the number one hazard of moderate pot use. In addition, of course, the psychoactive effects of cannabis can have many other adverse effects on performance, school work, and productivity.

Source: http://norml.org/pdf_files/NORML_Marijuana_Health_Mythology.pdf

Marijuana MythsMYTH: Marijuana is Harmless• Research shows that the two major risks of excessive marijuana use are: (1)

respiratory disease due to smoking and (2) accidental injuries due to impairment.

• A survey by the Kaiser Permanente Center found that daily marijuana-only smokers have a 19% higher rate of respiratory complaints than non-smokers.

• It has long been known that marijuana smoke contains virtually the same toxic gases and carcinogenic tars as tobacco. Human studies have found that pot smokers suffer similar kinds of respiratory damage as tobacco smokers, putting them at greater risk of bronchitis, sore throat, respiratory inflammation and infections.

• Marijuana smoking causes cancer. Studies have found pre-cancerous cell changes in pot smokers. Some cancer specialists have reported a higher-than-expected incidence of throat, neck and tongue cancer in younger, marijuana-only smokers. A couple of cases have been fatal.

Source: http://norml.org/pdf_files/NORML_Marijuana_Health_Mythology.pdf

MARIJUANA IS NOT ADDICTIVEFacts on use/abuse and addiction

9% of marijuana users become addicted. 1 in 6 (17%) are dependent if they start use in their teens.

Source: SAMHSA, 2012 National Survey on Drug Use and Health, Ages 12 or olderASAM, July 25, 2012

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% of Alcohol and Marijuana Users With Abuse/Dependency

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Marijuana Myths

Driving SafetyIn October of 2013, an 18 year old passenger was killed when the vehicle she was riding in hit a power pole just outside of Lynden, Washington. The driver admitted to being high on pot at the time of the crash. Within the same week, a motorcyclist was killed when a car pulled in front of him. The vehicle was driven by a man who had a medical marijuana card and told police he has smoked pot before the crash.

Q13Fox.com: Police Say Lynden Driver Admitted to Smoking Pot Before Fatal Crash 10/8/13.

Driving Safety

• According to the National Highway Traffic Safety Administration, drugs other than alcohol (e.g., marijuana and cocaine) are involved in about

18 percent of motor vehicle driver deaths. • A recent survey found that 6.8 percent of drivers, mostly

under age 35, who were involved in accidents tested positive for THC; alcohol levels above the legal limit were found in 21 percent of such drivers.

(Source: http://www.drugabuse.gov/publications/marijuana-abuse/does-marijuana- use-

affect-driving)

HERE IS WHAT HAPPENDED IN COLORADOFatal Motor Vehicle Crashes After “Medical Marijuana”

Over 135 killed in 3 years in Colorado when the driver tested positive for Marijuana

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Source : Colorado Department of Transportation

Note: Use of marijuana doubles the risk of a motor vehicle crash, Epidemiologic Reviews, October 2011

Driving Safety

If businesses care about employee productivity and safety they need to oppose marijuana legalization. Why?

•Because studies show that marijuana use is associated with increased absences, tardiness, workers’ compensation claims, and job turnover.

•Because 6.6% of High School Seniors already smoke pot every day making them virtually unemployable.

•Because those who tested positive for pot on pre-employment urinalysis test had 55% more industrial accidents, 85% more injuries, and a 75% increase in absenteeism compared with those who tested negative for marijuana use. Box Factory Example NIDA Research Report Series: Cannabis 2010.

Marijuana & Safety

Impact of Legalization on Business (Productivity & Safety)

Increased marijuana use will negatively impact Georgia businesses in many ways.

If employers care about a reliable workforce – they need to care about marijuana legalization.

__________________________________________________Employees who abuse drugs are:

•10x more likely to miss work•3.6x more likely to be involved in on-the-job accidents•5x more likely to file a workers’ comp claim__________________________________________________•Medical pot will increase pot use and all associated work consequences.

Impact of Legalization on Business• Businesses that require pre-employment drug tests will find a

smaller pool of potential hires. • Small businesses that do not drug test will end up with more

employees who use marijuana, effecting job performance, safety and liability issues.

• Companies who care about getting bright, trainable employees need to care about opposing legalization.

• Marijuana legalization will result in lower workplace performance, business output and work product.

• Businesses with employees who drive company vehicles need to care about highway safety.*

• Drivers who tested positive for pot in fatal crashes in Colorado DOUBLED between 2006 & 2010 (Colorado DOT)

HOW DOES MARIJUANA USE AFFECT WORKERS AND EMPLOYERS?•Even if they decrease their usage later in life, those who begin using marijuana by age 13 are more likely to report lower income.1

•Several studies associate workers' marijuana smoking with increased absences, tardiness, accidents, workers' compensation claims, and job turnover.2

1. Eisner, Robin. 2005. “Marijuana Abuse: Age of Initiation, Pleasure of Response Foreshadow Young Adult 2. Gruber AJ, Pope HG, Hudson JI, Yurgelun-Todd D. 2003. Attributes of long-term heavy cannabis users: A case control study. Psychological Med 33(8):1415–1422.Outcomes.” National Institute on Drug Abuse (NIDA) Notes. 19 (5).

Impact of Legalization on Business

Alcohol, Tobacco and Drug Usein America

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Source: SAMHSA, 2012 National Survey on Drug Use and Health, Ages 12 or older

FACTS

- The illegal status has prevented tens of millions of Americans from using marijuana and other illegal drugs

- Legalization would dramatically increase its use and abuse and would not reduce crime or costs

- Public health consequences would be devastating, adversely affecting safety in the workplace, on the highways, personal health and educational achievement

Social Economic Costs and Tax Revenue SOCIAL ECONOMIC COST TAX REVENUE GENERATED ALCOHOL: 185 – 235 Billion * 14 Billion ***

TOBACCO 200 Billion ** 25 Billion **** National Institute on Alcohol Abuse and Alcoholism (ASAM, July 25, 2012)

** Center for Disease Control and Prevention (ASAM, July 25, 2012)*** Urban Institute and Brookings Institute (ASAM, July 25, 2012)

Why Drugs Should Remain Illegal

Issues for Employers • Washington State Human Rights Commission: “will decline to

investigate any claims of discrimination involving MM”

• CO, HI, MI, MT, NJ, NM, VT: only on-the-job consumption/impairment is grounds for termination

• Battle Creek, Mich: Walmart terminated cancer patient for using MM

• RI, ME: “no school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a card holder” § 21-28.6-4

What Have Other States Done?

What Have Other States Done? New Hampshire Medical Marijuana Law:

"Nothing in this chapter shall exempt any person from arrest or prosecution for: (a)Being under the influence of cannabis while: (1) Operating a motor vehicle, commercial vehicle, boat, vessel, or any other vehicle propelled or drawn by power other thanmuscular power; or (2) In his or her place of employment, without the written permission of the employer; or (3) Operating heavy machinery or handling a dangerousinstrumentality.”

It also specifically protects employers with this provision: "Nothing in this chapter shall be construed to require… Any accommodation 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."

What Have Other States Done? Illinois Medical Marijuana Law:

Illinois' new law has an extensive employment section, which is largely employer friendly. It is one of the rare medical marijuana state laws that actually mentions drug testing: "Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner."

It also states that: "Nothing in this Act shall limit an employer from disciplining a registered qualifying patient from violating a workplace drug policy."

The Illinois law, which became effective January 1, 2014, includes specific language that protects an employer when taking disciplinary action based on a drug test result or when a registered patient uses marijuana on the employer's premises or during work hours.

What Have Other States Done? Delaware Law: Delaware has a law that permits medical marijuana use. The law provides protection for workplaces/employers:

“§ 4907A: Acts not required, acts not prohibited. (a) Nothing in this chapter requires: … (3) An employer to allow the ingestion of marijuana in any workplace or to allow any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana.”

This allows employers to drug test and establish drug-free workplace programs, but in the case of marijuana, a positive result alone does not automatically mean an employee is under the influence at work.

What Have Other States Done? North Carolina Law: •"Intoxication" and "under the influence" shall mean that the employee shall have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.

•A result consistent with "intoxication" or being "under the influence" from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebuttable presumption of impairment from the use of alcohol or a controlled substance. (1929, c. 120, s. 13; 1975, c. 740; 2005-448, s. 2.)

Federal Government Statement • Department of Justice issued guidelines for federal prosecutors in

states that enacted laws authorizing the use of medical marijuana (October 2009).

• "It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal."

• "This balanced policy formalizes a sensible approach that the Department has been following since January [2009]: effectively focusing our resources on serious drug traffickers while taking into account state and local laws."

Marijuana Legalized for Recreational UseIn Colorado: Intent is to treat cannabis in a manner similar to alcohol.

•Possession: State criminal penalties for possession of 1 ounce of marijuana are eliminated. Permits the cultivation of up to six marijuana plants (3 immature, 3 mature) for personal use. Permits the gifting of up to 1 ounce of marijuana to a person 21 or older. •Employment: The new law contains a provision for the workplace.

Section 16(6)(a) of the Colorado law says – “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Marijuana Legalized for Recreational UseIn Washington:

•Possession: State criminal penalties for possession of 1 ounce of marijuana for those 21 and older are eliminated. Public consumption of marijuana, like alcohol, can mean a $50 fine.

•Employment: The new law does not change the right of employers to drug-test employees.

•DUI: A level of 5 nanograms of THC, marijuana's active ingredient, in a driver's blood becomes equivalent to a 0.08 percent blood-alcohol level for driving under the influence.

•The Washington Law did not contain a provision for the workplace.

Marijuana Legalized for Recreational Use

In Washington:

•The Washington Supreme Court affirmed a lower court’s ruling holding that: “Medical Use of Marijuana Act (MUMA) does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.”

Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, No. 83768-6, 2011 Wash.

• Alabama (dead) • Alaska (tried again in 2014)• Hawaii (dead) • Maine (defeated) • Maryland (did not advance out of committee) • Massachusetts (dead)• Nevada (dead) • New Hampshire (dead) • Ohio (dead)• Oregon (dead) • Pennsylvania (dead)• Rhode Island (dead) • Vermont (dead)

2013 Recreational Use Bills

Issues for EmployersWhat accommodations should employers make?

•Private sector: employers cannot accommodate medical or recreational use of marijuana if the company receives federal contracts (Drug-Free Workplace Act of 1988)

• DOT guidelines: prohibits MM for transportation workers

•OSHA: employers have general duty to provide safe work environment

• 2008 California Supreme Court case: Ross v. Ragingwire Telecommunications, Inc> drug testing is legal and not discriminatory

Issues for Employers

• Employers can test for marijuana. • Pre-employment drug testing is legal. (Urine, oral fluid)• Ensure policy is compliant with state laws. • Watch for legal challenges. • Take into account workers’ compensation and unemployment

compensation laws as they apply to drug testing for marijuana• Be clear about what the company policy says• Prohibited behaviors • Drug testing (how, when and for what) • Consequences for policy violations • Be clear that an employee cannot possess or use marijuana in

the workplace • Detection of any amount is a violation of policy • Take measures based upon actions rather than drug test results

(reasonable suspicion)

Recommendations for Employers

• The federal government still considers marijuana a Schedule l Controlled Substance.

• Employers still have the right to insist that workers are drug-free while at work.

• A written policy is still the most critical component of a comprehensive drug-free workplace program, including a company’s position on marijuana use.

Conclusion