medical marijuana in the workplace - scce official site€¦ · medical marijuana in the workplace...

1/27/2014

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Medical Marijuana In the Workplace

Lisa M. Coulter

602-382-6348

[email protected] 1

Rebecca Winterscheidt

602-382-6343

[email protected]

Society of Corporate Compliance and Ethics

Michael Walker

480-333-3232

[email protected]

©2014 Snell & Wilmer L.L.P.

Family Feud

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What is Medical Marijuana?

• Federal Law◦ Controlled Substance

◦ Unlawful to use, possess, sell, grow

• State Law◦ Creature of statute

◦ Decriminalizes possession of marijuana by:

- Those suffering from debilitating illness

- Caregivers

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States that have Legalized MM

Map KeyMedical marijuana legalizedMarijuana legalized for medical/recreational useNo laws legalizing marijuana

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States with Pending Legislation to Legalize Medical Marijuana

• Minnesota

• New York

• Ohio

• Pennsylvania

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States where Medical Marijuana Legislation has Failed

• Alabama

• Iowa

• Florida

• Kansas

• Kentucky

• Maryland

• Mississippi

• Missouri

• North Carolina

• Oklahoma

• South Dakota

• Texas

• West Virginia

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States that have Approved Recreational Usage

• Colorado

• Washington

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The Basics

States require:◦ Registration or identification card

- Most states have registry for verification

◦ Certification that person suffers a debilitating medical condition or is a caregiver

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The Basics

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The Basics

• No medical prescriptions involved

◦ Doctors cannot prescribe controlled substances

• Certification that patient has been diagnosed with a debilitating medical condition

• Certification can come from broad array of sources

◦ Medical Doctor

◦ Osteopathic Doctor

◦ Naturopathic Doctor

◦ Homeopathic Doctor

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What is a Debilitating Medical Condition

Examples of Approved Conditions by some States

• Cancer

• Glaucoma

• HIV/AIDS

• Chronic Pain

• Hepatitis C

• Arthritis

• Fibromyalgia

• ALS

• Crohn’s Disease

• Epilepsy

• Hospice

• Spine Damage

• Migraines

• PTSD

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What is a Debilitating Medical Condition

• May also require:◦ Cachexia/Wasting Syndrome

◦ Severe and Chronic Pain

◦ Severe Nausea

◦ Seizures

◦ Muscle Spasms

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Statistics

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State Cardholders M/F Chronic Pain Age Stats

Arizona 41,750 70% to 30% 73% 25% 18-3017% 41-5021% 51-60

California 70,639

Colorado 109,622 67% to 33% 94% Avg. Age 42

Connecticut 1,343

DC 98 77% to 23% HIV/Aids (42)Cancer (19)

Glaucoma (7)Muscle Spasms (30)

Hawaii 8,000

Maine 1,455

Michigan 118,000

Montana 7,150 64% Avg. Age 4713% 21-3019% 31-5029% 51-6014%61-70

Nevada 4,643 91% 23% 55-6483% 25-64

New Mexico 10,382

Oregon 58,484 97%

Rhode Island 4,849

Vermont 960


Right to Use (Arizona Example)

• Example of Limits◦ May receive 2.5 ounces

◦ In a 14 day period

◦ From a registered non-profit medical marijuana dispensary

◦ May grow marijuana under certain circumstances

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Other States

• Low – 1 oz in MT and NV

• High – 24 oz in OR, WA

• 1 month supply – CT

• 60 day supply – MA

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Professionals

No disciplinary action against a licensed professional because of medical marijuana use consistent with state law – AZ, CT, DE, IL, ME, MI, MT, NV, OR, RI

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Professionals

• What does that mean:◦ Cannot be impaired while performing

tasks that would subject a licensed professional to a malpractice claim

- Examples:

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Pharmacist BarberAppraiser TeacherMasseuse ContractorPolice Officer AccountantDoctor Lawyer


Use of Medical Marijuana in the Workplace

• Employers not generally required to accommodate Medical Marijuana in the workplace◦ May prohibit

- Use

- Sale

- Possession

• Key – May prohibit impairment◦ Same as with any other substance

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States that Impose Affirmative Obligations upon Employers

• Many states merely decriminalize possession◦ Cannot be arrested

• Other states impose affirmative obligations on employers

Arizona Illinois

Connecticut Maine

Delaware

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States that Impose Affirmative Obligations upon Employers

• May not discriminate in terms and conditions of employment because employee is a patient who qualifies for using medical marijuana or is a caregiver

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Hiring Terms and Conditions

Firing Position

Hours Discipline

Pay Benefits

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©2014 Snell & Wilmer L.L.P. 21

Lessons from Other States

Emerald Steel Fabricators, Inc., v. BLI(Oregon 2010)

◦ Temporary Employee used medical marijuana for anxiety and panic attacks 2 to 3 times/day

• Told employer about his use when offered a permanent position;

• Terminated one week later.

◦ BLI and Court of Appeals found that Employer failed to accommodate Employee’s disability.



Emerald Steel Fabricators, Inc., v. BLI(Oregon 2010), cont.

◦ Oregon Supreme Court reversed – Employers have no duty to accommodate the use of marijuana even when that use is sanctioned by the Oregon Medical Marijuana Program

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◦ Rationale:

• Still illegal under federal law and preempts state law

• Oregon statute a bar to controlled substances act

• Still an “illegal drug” under disability discrimination law

• Oregon bar “ineffective”



Ross v. Ragingwire Telecommunications (California)

Facts:

◦ Employee fired after pre-employment test revealed marijuana use.

◦ Use prescribed by doctor for strain and muscle spasms.

◦ Not using marijuana at work.

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Ruling: California law does not require employers to accommodate the use of illegal drugs.

Grounds:◦ California Compassionate Use Act exempted

medical uses from criminal liability.◦ Does not address employee and employee

relations.◦ Marijuana remains illegal under federal law.


Casias v. Wal-Mart Stores, Inc.(Michigan)

• Casias: Inoperable brain tumor

• Used Medical Marijuana after his shift.

• Tested positive for marijuana and was fired.

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Claim:

While Wal-Mart did not have to accommodateEmployee, "they do have to refrain from firing him”.

Defense:

The statute meant to decriminalize the use of Medical Marijuana, but not provide (civil) protections.



• “Holding – Walmart did not violate state law, public policy or disability laws when it discharged an employee who tested positive for drugs because of authorized medical marijuana use.”

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Coats v. Dish Network (2013, Colorado Court of Appeals)

Coats:

◦ Quadriplegic

◦ Never used medical marijuana at work

◦ Never under the influence at work

◦ Tested positive for marijuana in violation of drug policy

Claim:

◦ Colorado Lawful Activities Statute

◦ Prohibits employers from discharging employee for lawful activities during off-duty hours

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Coats v. Dish Network (2013, Colorado Court of Appeals)

Ruling:◦ “Lawful” means lawful under State AND

Federal law

◦ Still subject to Colorado Supreme Court review

Meaning:◦ Can terminate an employee for use of

marijuana

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Beinoir V. Industrial Commission(Colorado)

• Denial of unemployment benefits for employee terminated after testing positive for marijuana

• Holding: Employees not shielded from employer policies

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Areas of Conflict

• Controlled Substance Act◦ Obama does not “intend” to prosecute

- Compassionate use

- Caregivers “clear and unambiguous compliance” with their state law

◦ Prosecution of commercial enterprises that unlawfully market or sell for a profit remain an “enforcement priority”

◦ Solely a “guide to prosecutorial discretion”

◦ Strict compliance required – good faith efforts to comply have not been a defense

◦ Future Administrations – ?????

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Areas of Conflict

• American with Disabilities Act

• Federal Drug Testing Statutes◦ DOT Drivers

◦ Federal Contractors

◦ Pilots

• State Drug Statutes

• State Worker’s Compensation Laws

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Areas of Concern

What are the concerns?◦ Possibility of wrongful termination

claims.

◦ Possibility of violation of employee privacy rights.

◦ Shouldn't it be treated like any other legal drug?

Note: not required to be covered by insurance

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Areas of Concern

Most current drug-test procedures measure presence, not impairment

• Cannot be measured like BAC

• Some Police Agencies are experimenting with equipment

More opportunities for liability

More opportunities for inconsistent application of policies

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Areas of Concern

Impairment is the standard for Medical Marijuana

You and your team should be trained to detect impairment

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Appearance Speech

Odor Gait

Dexterity Agility

Accident Demeanor

Behavior Disregard for others

Disrupting Operations Carelessness

Other symptoms

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What Can Employers/Supervisors Do

• Remember: Impairment extends beyond Medical Marijuana◦ Alcohol

◦ Legal Drugs/Prescriptions

◦ OTC Drugs

◦ Any other substance

• Consult with HR or someone with experience

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What are Medibles

“Cannabis foods, more informally known as edibles, are food products made with cannabis in herbal or resin form as an ingredient. They are consumed as an alternate delivery means to experience the effects of cannabinoids without smoking or vaporizing cannabis or hashish.”

Wikipedia

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Medibles

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Medibles

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Medibles

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Medibles

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Medibles

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Medibles

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Medibles

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Police Officer

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Questions??

©2014 All rights reserved.

Notice: As part of our effort to inform you of changes in the law, Snell & Wilmer L.L.P. provides legal updates and presentations regarding general legal issues. Please be aware that the materials included within are provided as a courtesy and will not establish or reestablish an attorney-client relationship or assumption of responsibility by Snell & Wilmer to take any action with respect to your legal matters.

The purpose of this material is to provide seminar attendees general information about recent changes in the law that may impact their business. This material should not be considered legal advice or opinion because their individual contents may not apply to the specific facts of a particular case.

medical marijuana in the workplace - scce official site€¦ · medical marijuana in the workplace...

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