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Marijuana* use in the Workplace Amanda O’Leary (207) 623-7902 [email protected]

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  • Marijuana* use in the Workplace

    Amanda O’Leary

    (207) 623-7902

    [email protected]

    PresenterPresentation NotesAlso referred to as Cannabis or Cannabinoids

    mailto:[email protected]

  • Marijuana Legalization

    Recreational Marijuana

    Medical Marijuana

    Maine Department of Labor - Bureau of Labor Standards 2

    PresenterPresentation NotesIs there any difference?

    For the most part, it’s the same – although the dispensaries and care givers do try to have certain strains that may be more helpful to an individual’s illness (for ex. – there are some strains that are higher CBD than THC so there isn’t as much of the psychoactive effect OR there are some that will be better for someone that has anxiety than others)CBD = cannabidiol, one of at least 113 active cannabinoids identified in cannabis. Does not contain any of the psychoactive effects that THC (tetrahydrocannabinol) causes.

    Use in the workplace can pose possible threats to safety

  • Recreational Marijuana

    • Currently found under Title 7, Ch 417 of Maine’s Revised Statutes

    • Soon to be moved to Title 28-B

    • Amendment effective as of 5/2/2018• Public Law Chapter 409: amended employer provision as

    well as retail sales oversight and personal use cultivation

    Maine Department of Labor - Bureau of Labor Standards 3

    PresenterPresentation Notes give background of law – previously effective 2/1/18

    Anti-discrimination language

  • Recreational Marijuana

    Public Law Chapter 409, Section 112Except as otherwise provided in the Maine Medical Use of Marijuana Act, an employer:

    1. Marijuana in workplace. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;

    2. Workplace policies regarding marijuana use. May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment; and

    3. Discipline of employees. May discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer's workplace policies regarding the use of marijuana and marijuana products by employees.

    Maine Department of Labor - Bureau of Labor Standards 4

    PresenterPresentation Notes Both laws allow employers to prohibit the use of marijuana in general while in the workplace

  • Medical Marijuana

    • Currently found under Title 22, Ch 558-C of Maine’s Revised Statutes

    • Soon to be moved to Title 28-B with recreational law

    • 2 Amendments approved• Public Law Chapter 447: oversight of dispensaries and

    caregivers updated – effective as of 7/9/18• Public Law Chapter 452: amends laws governing

    cultivation, possession and use of medical marijuana –effective 90 days after legislature adjournment (adjourned 9/13)

    Maine Department of Labor - Bureau of Labor Standards 5

    PresenterPresentation NotesPublic Law 447 – involves testing, caregivers and dispensary oversight

    Public Law 452 – this one will allow for a medical provider to issue a written certification for any medical condition that the physician believes may be alleviated by the patient’s using marijuana for medical use. It does require consultation with a minimum of 3 medical professional.

  • Medical Marijuana22 MRS, Chapter 558-C, §2426

    2. Construction. This chapter may not be construed to require: B. An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.

    Maine Department of Labor - Bureau of Labor Standards 6

    PresenterPresentation NotesAs you can see – the medical marijuana law does give employers something to work with but… because of the condition for which someone may be using med. Marijuana it could become an ADA issue and the employer could have to make accommodations. (still would go through the process – is it reasonable, would the accommodation cause undue hardship)

  • Medical Marijuana22 MRS, Chapter 558-C, §2423-E2. School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person’s status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. 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.

    Maine Department of Labor - Bureau of Labor Standards 7

    PresenterPresentation NotesHere’s where it gets tricky – when an employer tests an applicant or employee and they test positive for marijuana can the employer refuse to hire them or discipline them?

    Would the employer be discriminating against them SOLELY for being a patient or for having a card OR are they following their policy by not hiring due to a positive result?

  • Are the marijuana laws set in stone?

    • No aspect of either law has yet been tested in Maine Courts nor clarified by Legislature* There have been 3 cases decided in New England (MA,

    RI, CT)All three dealt with medical marijuanaAll three cases were won by the defendant (not the employer)

    • The laws can change at any time both laws have recently been amended

    Maine Department of Labor - Bureau of Labor Standards 8

    PresenterPresentation Notes**WC comp case – Maine Supreme Court said medical marijuana is illegal under the Controlled Substances Act so cannot be reimbursed for WC

    SOME EMPLOYERS ARE ALREADY REMOVING MARIJUANA FROM THEIR TESTING PANEL FOR APPLICANTS AND OTHERS PLAN ON KEEPING IT AND BEING CONSISTENT. Some employers are only testing for marijuana if testing for cause.

  • Maine Department of Labor Recommendation:

    • Contact your own legal counsel for advice on testing for marijuana and how to proceed with medical marijuana positives

    Maine Department of Labor - Bureau of Labor Standards 9

    PresenterPresentation NotesExplain the testing process and what “should” be happening

    Also explain why it is complicated…Federal contractors do not have to followMRO’s are federally mandatedThe process is not laid out in our statute or rules

    **In addition, From the unemployment side, employers need to have clear policies and communicate them to employees. When terminating an employee, use of recreational Marijuana may or may not be regarded as misconduct, there needs to be a clear relationship/nexus to employment. (see Nancy’s notes on this if there are questions)

  • Questions?

    Maine Department of Labor - Bureau of Labor Standards 10

  • Marijuana: What king of drug is it?

    Maine Department of Labor - Bureau of Labor Standards 11

    Can be a stimulant, depressant or hallucinogenTypes of Cannabis or marijuana:

    1. Hash / hashish – can be in an oil or solid form

    2. Butane Honey oil* – extracted using butane3. Marinol (Dronabinol) – only obtained via

    prescription4. Synthetic – man-made; ex. Spice, K2

    1

    * Using butane honey oil is often referred to as “dabbing”

    2 3 4

    PresenterPresentation NotesThe primary psychoactive ingredient in Cannabis is: Delta-9 Tetrahydrocannabinol (THC)Some medical marijuana strains are produced with no or very little THC

    Butane honey types – shatter, ear wax, budder or BHO – butane honey oilSteps for making BHOCannabis materials are stuffed into the tube, glass or stainless steel.Butane is introduced (under pressure) to the cylinder and allowed to run through the tube.The result is a high octane THC/butane liquid Allow it to dry. BHO.Too many cooks try to accelerate the drying process with heat. Explosions result

    Synthetic marijuana – we’ll get into that more in the next couple of slides

  • Duration of Effects

    Maine Department of Labor - Bureau of Labor Standards 12

    METHOD OF INGESTION ONSET DURATION

    • Oral / Edibles 30-90 minutes 2-5 hours*

    • Smoked 0-15 minutes 1-3 hours*

    • Vaped 0-15 minutes 1-3 hours*

    *depends on how much and how often used

  • Signs & Symptoms

    Maine Department of Labor - Bureau of Labor Standards 13

    SIGNS: WHAT YOU SEE

    • Elevated mood - laughing• Bloodshot and glassy eyes• Sleepy or lethargic look• Lack of coordination• Increase in appetite• Unusually talkative• Odor of marijuana• Dilated pupils• Inability to pay attention• Decrease in ability to multi-task• Resin or residue on fingers

    SYMPTOMS: FELT BY USER

    • Dry mouth• Distorted perception of time and

    distance• Relaxed inhibitions • Confusion• Paranoia• Impaired memory • Panic attacks

  • Synthetic Marijuana

    Maine Department of Labor - Bureau of Labor Standards 14

    SIGNS: WHAT YOU SEE

    • Extreme anxiety• Confusion• Excessive sweating• Inability to speak• Aggression

    SYMPTOMS: FELT BY USER

    • Elevated mood• Relaxation• Blurred vision• Paranoia• Hallucinations

    Sold as herbal incense, liquid incense. Illegal to sell but manufacturers change the formulation just enough so that it cannot be categorized as illegal.

    PresenterPresentation NotesSynthetic marijuana – chopped up herbs coated with synthetic cannabinoids – a family of over 700 research chemicals. some synthetic cannabinoids are 100X stronger than THCThe most popular brands sold today are Spice and K2, but Spice is sold under more than 600 names including Mojo, Scooby Snax, Black Mamba and Annihilation.

  • Edibles

    Maine Department of Labor - Bureau of Labor Standards 15

    PresenterPresentation Notes marijuana can be added to just about anything – foods that contain oils or butters are most often seen. Notice the Olive oil – in the whole bottle 125 mg THC and suggested serving is 5mg THC which is supposed to = 1 teas.

    There is no standard serving size of THC, I’ve also seen 10mg as a serving size – who can eat only a portion of a cookie or brownie? And how does someone guarantee that the THC is distributed evenly throughout that cookie/brownie?

  • ParaphernaliaHere’s what you might see in the workplace …

    Maine Department of Labor - Bureau of Labor Standards

    16

    PresenterPresentation NotesTop left – dipped marijuana cigarette, this one is PCP and is called “wet” - a street name for liquid PCP, and can be applied to cigarettes and joints and then smokedTop Middle – Roach clipsTop Right – nail with oil / Bottom right – dome, nail, seat Bottom left – different types of pipes and bongs Bottom middle – grinderBottom right – hemostatic forcepsTo use the oil 1. Heat the seat with a torch (usually its tungsten or crystal)2. Put the dome over the seat3. Use the nail to rub a little BHO onto the red hot seat,4. Inhale the fumes

  • Questions?

    Maine Department of Labor - Bureau of Labor Standards 17

  • What does this mean for employers?

    1. Review your policies

    Drug-Free Workplace policies Substance Abuse Testing policies Safety policies Employee Handbooks Etc.

    2. Learn how to detect impairment

    Maine Department of Labor - Bureau of Labor Standards 18

    PresenterPresentation NotesWhy is detecting impairment important?Prevention of injuriesPrevent loss of productionPrevention of damage Anything else?

  • PoliciesMake sure policies address:

    Prescription drug use in the workplace Are they okay to use?

    Medical marijuana and other “legal” substances in the workplace, including alcohol and recreational marijuana Will your company accept medical marijuana cards for positive

    results?

    Does your company host events where alcohol may be served?

    Impairment in the workplace How will impairment be determined and handled?

    What is the company’s definition of “in the course and scope of employment”?

    Maine Department of Labor - Bureau of Labor Standards 19

    PresenterPresentation NotesCan employers prohibit prescription drug use in the workplace? YESCan employers refuse to accept medical marijuana cards? YES, but could be sued by employee/applicant especially if company does not have federal contract / funding that requires drug testing and a drug-free workplaceMake sure that if your company does host events where alcohol will be served that they have written rules around what the expectations are.For impairment situations – does your company have a plan in place for this? Employers should define what “in the course and scope of employment means” in their policy – this may come up in unemployment cases.

  • To Test or Not to Test: that is the question…

    Maine Department of Labor - Bureau of Labor Standards 20

    PresenterPresentation NotesMany employers that decide not to test base disciplinary actions and termination decisions on performance and safety; and not on whether someone tests positive. Whether an employer decides to test or not – they should have a written Drug-Free Workplace policy (DFWP) that outlines the following, at the very least:Employee ExpectationsAny Prohibited Activities (does your company sponsor/hold events where alcohol may be served? If so, this needs to be addressed in the policy)Consequences of Violating the policy

  • Testing

    Maine Department of Labor - Bureau of Labor Standards 21

  • Testing

    Maine Department of Labor - Bureau of Labor Standards 22

    The Law: No employer may require, request or suggest that any employee or applicant submit to a substance abuse test without a written substance abuse testing policy approved by the Maine Department of Labor.

    **Exceptions: • Employers with employees that are federally mandated to

    be tested under federal testing requirements, OR• Employers who have federal contracts and receive federal

    funding

    PresenterPresentation NotesExplain federal exemptionTesting non-DOT employees/applicants under federal exemption does not prevent someone from suing the company

  • Testing

    Maine Department of Labor - Bureau of Labor Standards 23

    Maine Law allows for the following types of testing:

    • Applicant or Pre-Employment: Applicant policies are used to screen job candidates who have been offered a position contingent upon passing a drug test.

    • Probable Cause (Reasonable Suspicion): is based on a determination by a qualified observer that the employee may be impaired or under the influence of a substance.

    • Random: is based on randomly selecting individuals from a pool.

    • Arbitrary: is based on an event. This may be an employment anniversary, a contract obligation, or other non-cause related occurrence.

  • TestingAllowable Substances

    • Alcohol*• 6-Acetylmorphine (heroin)• Amphetamine, Methamphetamine• MDA, MDEA, MDMA (Ecstasy)• Barbiturates• Benzodiazepines• Cocaine and/or metabolites• Marijuana and/or metabolites• Opiates and/or metabolites

    • Morphine • Codeine

    • Phencyclidine (PCP)

    *Alcohol breath tests are not regulated by MDOL, can be conducted by anyone

    Allowable Specimen Types

    • Urine• Oral Fluids / Saliva• Hair• Sweat• Blood *

    *Blood samples can only be requested by the employee at the time of drug test

    Maine Department of Labor - Bureau of Labor Standards 24

    PresenterPresentation NotesTalk about adding substances (DOT and others)

  • Testing

    Maine Department of Labor - Bureau of Labor Standards 25

    Things to know about employee testing policy types: Probable Cause:

    • The determination cannot be based on any of the following exclusively –• Information received from an anonymous informant• Any information tending to indicate that an employee may

    have possessed or used a substance of abuse off duty, except when the employee is observed possessing or ingesting any substance of abuse either while on the employer's premises or in the proximity of the employer's premises during or immediately before the employee's working hours; or

    • A single work-related accident

  • What is “Safety-Sensitive”?

    Maine Department of Labor - Bureau of Labor Standards 26

    Recommended definition:

    • A “safety-sensitive task or occupation” means a work task or an employee occupation that based on its nature, machinery, location, surroundings, or its influence upon other operations could potentially pose a threat to the safety of that worker, a co-worker, or others.

    • Employers may limit impairment detection activities to what they consider “safety-sensitive” positions. While the DOT “safety-sensitive” positions are limited to a certain list of occupations, MDOL recommends a broader definition if employers wish to determine safety-sensitive positions at their worksites.

    PresenterPresentation NotesWe are not suggesting that employers limit their impairment detection activities to safety sensitive tasks or occupations, but if they want to do so in order to target their ID resources and efforts, we suggest this definition.

    Ultimately, it is the employer who defines what “safety-sensitive” tasks/positions are. For example, one employer may decide that because they run a nursing home everyone is considered safety-sensitive because they have contact with patients OR that same employer could decide that those in the kitchen are not safety-sensitive.

  • Federally designated safety-sensitive employees include:

    Maine Department of Labor - Bureau of Labor Standards 27

  • Questions?

    Maine Department of Labor - Bureau of Labor Standards 28

  • What can employers do:COMMUNICATE AHEAD OF TIME

    Maine Department of Labor - Bureau of Labor Standards 29

    • Seek guidance from legal counsel for substance use policies that may affect employees

    • Educate employees on substance use policies AND keep them aware

    • Educate supervisors/employees on substance abuse and/or mental health first aid

    • Give clear information to employees about expectations and consequences

    • Have options for employee assistance, through health insurance, a formal EAP, access to community programs or other means

    • Seek assistance from a healthcare professional for any medical guidance, or for fitness for duty /return to work evaluations

    • Be persistent in applying your approach

    PresenterPresentation NotesThink about after-hours collections for probable cause testing, who is going to be open on a Saturday or Sunday or at 1am during the week if someone on the third shift / overnight shift is impaired and testing is required?

  • What can employers do:Train managers/supervisors to detect and respond to

    impairment

    Maine Department of Labor - Bureau of Labor Standards 30

    If supervisors and managers are able to detect employee impairment when it happens:

    • Accidents can be avoided

    • Help/treatment can be initiated

    PresenterPresentation NotesAre there performance measures and standards already developed and in place or do they need to be developed??Are they based on testing policies or performance only?

  • But remember…

    Maine Department of Labor - Bureau of Labor Standards 31

    Impairment is not only caused by drugs or alcohol – it is caused by many things, including:

    Health issues Mental health issues Fatigue, sleep-deprivation Personal issues the individual is going

    through

    PresenterPresentation NotesAre there performance measures and standards already developed and in place or do they need to be developed??Are they based on testing policies or performance only?

  • So…

    Maine Department of Labor - Bureau of Labor Standards 32

    Determining the CAUSE of impairment is not the most important objective - the focus of impairment detection should always be on SAFETY and PERFORMANCE

    • Is the employee unable do the job adequately or unable to do the work safely?

    PresenterPresentation NotesEven if you do not test - Employers are documenting observed behaviors not diagnosing or determining what specific substance someone may be impaired by

  • Next Steps:what to do after detecting impairment

    Maine Department of Labor - Bureau of Labor Standards 33

    • First, and most importantly, if you suspect someone is impaired –remove them from any potential safety hazards

    • Document the observable behaviors that led to your impairment detection

    • Have a discussion with the individual to confirm that he/she is really impaired. Always have another supervisory person with you for safety and validation, ideally an HR representative

    • Develop a plan for immediate action ( hopefully following your already-established protocols)

    • Then, as appropriate, develop a plan for returning the individual to work including treatment options and other such resources.

    PresenterPresentation NotesWhether you test or not, having a plan of action when a situation arises is important.

    Some employers have updated their testing policies to reflect the new legalization and how they will handle different situations, For example –

    If an employee is to be randomly tested – if they tell HR/supervisor, etc. that they have used marijuana recently but are not impaired, then they will still be tested but also may voluntarily submit to an assessment made by previously designated, independent review delegates to observe whether the employee is able to work.

  • MDOL Impairment Detection Training for Employers

    Maine Department of Labor - Bureau of Labor Standards 34

    The class is designed to help supervisors be more comfortable and confident in detecting when an employee is impaired at work and handling that impairment appropriately. At the end of the course, participants will:

    Understand the purpose and benefits of a drug-free workplace program

    Have a greater ability to recognize signs and/or symptoms of impairment in the workplace

    Be able to respond affirmatively to employee impairment when it is discovered

    Understand the options for treatment and recovery as well as the processes that lead to the employee’s return to work

    http://www.maine.gov/tools/whatsnew/v3/index.php : link to MDOL’s class registration site for the new “Impairment Detection Training for Employers” course.

    PresenterPresentation NotesThere are other classes available through different companies also.

    MDOL’s class will not:

    Train supervisors, managers or employers to identify the specific substances or other specific causes at the time an individual's impairment is detected.

    Teach supervisors, managers or employers to make independent medical judgements on employees’ fitness to work.

    Advise supervisors, managers or employers on whether or not, or under what circumstances, to formally discipline employees.

    http://www.maine.gov/tools/whatsnew/v3/index.php

  • In Summary

    Maine Department of Labor - Bureau of Labor Standards 35

    Be Prepared BEFORE a situation arises… because it will

    Seek the guidance of a professional employment attorney as you establish and implement substance use policies

    Focus on handling impairment that effects SAFETY and employee PERFORMANCE

    Determining the cause of impairment is less important than knowing if the employee can safely and adequately perform the job

    For additional information or assistance – contact MDOL or a lawyer who is knowledgeable in employment law

  • Final Questions?

    Maine Department of Labor - Bureau of Labor Standards 36

    Marijuana* use in the WorkplaceMarijuana LegalizationSlide Number 3Slide Number 4Slide Number 5Slide Number 6Slide Number 7Are the marijuana laws set in stone?Maine Department of Labor Recommendation:Questions?Slide Number 11Slide Number 12Slide Number 13Slide Number 14Slide Number 15ParaphernaliaQuestions?What does this mean for employers?PoliciesTo Test or Not to Test: that is the question…TestingTestingTestingTestingTestingWhat is “Safety-Sensitive”?Federally designated safety-sensitive employees include:Questions?What can employers do:�COMMUNICATE AHEAD OF TIMEWhat can employers do:�Train managers/supervisors to detect and respond to impairmentBut remember…So…Next Steps:�what to do after detecting impairment�MDOL Impairment Detection Training for Employers�In SummaryFinal Questions?