weed in the workplace: medical marijuana and the ...weed in the workplace: medical marijuana and the...

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Nesheba M. KittlingJessica D. Huynh

Phone: (312) 346-8061Email: [email protected]

[email protected]

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Weed in the Workplace: Medical

Marijuana and the Implications on the

Employee/Employer Relationship


How Did We Get Here?

Criminalization of marijuana at federal level underControlled Substances Act

Decriminalizing medical use at state levelRelaxed enforcement at federal level

Confusion over workplace impact


How Did We Get Here?

First States to legalize marijuana formedicinal purposes:

•California: 1996

•Alaska: 1998

•Oregon: 1998

•Washington: 1998

•Today: 23 states and DC


State-by-State

• Alaska• Arizona• California• Colorado• Connecticut• District of Columbia• Delaware• Hawaii• Illinois• Maine• Maryland• Massachusetts• Michigan

• Minnesota• Montana• Nevada• New Hampshire• New Jersey• New Mexico• New York• Oregon• Rhode Island• Vermont• Washington


Medical Effectiveness

• 2.4 Million Individuals in the United States utilize medicalmarijuana

• Prescribed with increased frequency for ailments suchas glaucoma, cancer, HIV, Hepatitis C and MS

• Pain relief benefits are widely debated

• FDA has yet to approve it for medical use (THC isapproved, however)

• Deemed a controlled substance with high potential forabuse

• AMA does not support medical use, but only furtherinvestigation


Unique Properties of Marijuana

• Carry-over impairment effect

• Slow rate of metabolization

• Remains in system for extended period

• Easily accessible

• Pervasive unlawful use

• High rates of chronic and habitual use


Business of Pot . . .

“Pot entrepreneurs have highexpectations for a future market in

legalized marijuana.”


Colorado Legalization

As of January 1, 2014, Colorado Amendment 64 allows adults aged 21and older to grow and/or possess marijuana for recreational use.

Actually the second state in the United States to legalize recreationalmarijuana – Washington.

Why LEGALIZATION? It is estimated that Colorado’s law will net thestate an additional $67 million per year in tax revenue. Sales surpassed $5 million in the first week of legalization.

Can only smoke in private residences.


Washington Legalization

WELCOME ABOARD!!!

On July 9, 2014, marijuana effectively went onsale in the State of Washington.


Business of Pot . . .

• Hemp, Inc. is a publicly traded company (Stock Symbol HEMP)that is working to expand its infrastructure while investing inprofitable, legal, and diversified ventures, bringing reward andvalue to its shareholders

• Marijuana, Inc. foresees and recognizes the possible benefitsthat may be derived from the many uses for industrial hempand recognizing the profits that could be made


1. Impaired forklift operator misgauges distance and injuries fellow employee;

2. HR opens the mail and employee (who was about to be fired) files complaintunder state medical marijuana law;

3. Impaired painter using propane torch to remove paint forgets to turn off flame andburns down the factory;

4. Company is notified by a state EEOC agency that it has been served with an ADACharge for failure to reasonably accommodate;

5. Worker with Medical Marijuana permit feels empowered and smokes during lunchbreak to “ease the pain,” etc;

6. Employee claims unlawful termination because he “utilized” marijuana in a statethat was “legal;” or

7. Possible increase in number of employees being referred to EAP.

Why Does It Matte?Why???


“State” of the LawWhy???

1. Who the law applies to;

2. Quantity of marijuana permitted;

3. How marijuana may be obtained/accessed;

4. Employer implications; and

5. The statutory requirements for authorized use and theillnesses/medical conditions covered by each statute.


Alaska

Sections 17.37.010-.080 (2002)

Applicability:

•Law applies to patient, caregiver andalternate caregiver and physician

Quantity Allowed:

•Less than or equal to 1oz., 6 plants withonly 3 able to produce usable product.

How Obtained:

•Growing permitted, otherwise notspecified

Employer Implications:(d) Nothing in this chapter requires anyaccommodation of any medical use ofmarijuana(1) in any place of employment;(2) in any correctional facility, medical

facility, or facility monitored by thedepartment or the Department ofAdministration;

(3) on or within 500 feet of school grounds;(4) at or within 500 feet of a recreation or

youth center; or(5) on a school bus.


Arizona

ARS Title 26, Chapter 28.1

Applicability:

•Law applies to patient, caregiver andphysician

Quantity Allowed:

•2.5 oz of marijuana or 12 plants (if pre-approved to cultivate)

How Obtained:

•Growing permitted; non-profitdispensaries

Employer Implications:B. Unless a failure to do so would cause anemployer to lose a monetary or licensing relatedbenefit under federal law or regulations, anemployer may not discriminate against a person inhiring, termination or imposing any term orcondition of employment or otherwise penalize aperson based upon either:

1. The person's status as a cardholder.

2. A registered qualifying patient's positive drugtest for marijuana components or metabolites,unless the patient used, possessed or wasimpaired by marijuana on the premises of theplace of employment or during the hours ofemployment.


California

Cal. Health and Safety Code Sections11362.5-83

Applicability:

•Law applies to physicians, patientsand caregivers

Quantity Allowed:

•8 oz. or less dried; 6 oz. or lessmature; or 12 or less immature plants

How Obtained:

•Growing permitted – otherwise notspecified

Employer Implications:

“Plaintiff's position might have merit if the Compassionate UseAct gave marijuana the same status as any legal prescriptiondrug. But the act's effect is not so broad. No state law couldcompletely legalize marijuana for medical purposes because thedrug remains illegal under federal law (21 U.S.C. ßß 812,844(a)), even for medical users (see Gonzalez v. Raich and U.S.v Oakland Cannabis Buyers' Cooperative). Instead of attemptingthe impossible, as we shall explain, California's voters merelyexempted medical users and their primary caregivers fromcriminal liability under two specifically designated state statutes.Nothing in the text or history of the Compassionate Use Actsuggests the voters intended the measure to address therespective rights and obligations of employers and employees.“

- Ross v. RagingWire, California Sup. Ct. (2008)


Illinois

410 ILCS 130/et. seq/

“Compassionate Use of MedicalCannabis Pilot Program Act”

Applicability:

•Law applies to physicians, patients andcaregivers

Quantity Allowed:

•2.5 oz of marijuana during a 14 dayperiod

How Obtained:

•From “cultivation centers” and“dispensing organizations


Sec. 40. Discrimination prohibited.(a)(1) No school, employer, or landlord may refuse to

enroll or lease to, or otherwise penalize, a person solelyfor his or her status as a registered qualifying patient or aregistered designated caregiver, unless failing to do sowould put the school, employer, or landlord in violation offederal law or unless failing to do so would cause it tolose a monetary or licensing-related benefit under federallaw or rules. This does not prevent a landlord fromprohibiting the smoking of cannabis on the premises.


Illinois Continued . . .

Employer Implications Cont:

Sec. 50. Employment(a) Nothing in this Act shall prohibit an employer from adopting reasonable regulations

concerning the consumption, storage, or timekeeping requirements for qualifyingpatients related to the use of medical cannabis.

(b) Nothing in this Act shall prohibit an employer from enforcing a policy concerning drugtesting, zero-tolerance, or a drug free workplace provided the policy is applied in anondiscriminatory manner.

(c) Nothing in this Act shall limit an employer from disciplining a registered qualifyingpatient for violating a workplace drug policy.

(d) Nothing in this Act shall limit an employer's ability to discipline an employee for failinga drug test if failing to do so would put the employer in violation of federal law or causeit to lose a federal contract or funding.


Michigan

Voter ballot driven legislation.

Applicability:Qualified patients and primary caregivers.

Quantity Allowed:12 plants in an enclosed, locked facility or2.5 oz. usable marijuana. Primarycaregivers may keep up to 60 plants (12for each of 5 patients and 12.5 oz ofmarijuana in an enclosed, locked facility).

How Obtained:Law does not address.

Employer Implication:Sec. 7. (a) The medical use of marihuanais allowed under state law to the extentthat it is carried out in accordance with theprovisions of this act.

(b) This act shall not permit any person todo any of the following:

***(2) An employer to accommodate theingestion of marihuana in any workplaceor any employee working while under theinfluence of marihuana.


Montana

Authority:A Medical Marijuana initiative vote expanded therestrictions on the use of Medical Marijuana perSB0423 on November 6, 2012.

Applicability:Law applies to physicians, patients andcaregivers

Quantity Allowed:Less than or equal to 6 plants and/or 1oz ofmarijuana.

How Obtained:Qualifying patient may grow marijuana ordesignate a provider (limited to three patients).


(4) Nothing in this part may beconstrued to require:

****(b) an employer to accommodate theuse of marijuana by a registeredcardholder;

***Great deal of constitutional litigationsurrounding Montana’s law***


Nevada

Applicability:Law applies to physicians, patients andcaregivers.

Quantity Allowed:Less than or equal to 1oz of marijuana or 3mature or 4 immature plants.

How Obtained:Growing is permitted through Department ofAgriculture – may also grow to provide andestablish a seed bank.

Employer Implications:The provisions of this chapter do not:

***2. Require any employer to allow the medicaluse of marijuana in the workplace.3. Require an employer to modify the job orworking conditions of a person who engages inthe medical use of marijuana that are based uponthe reasonable business purposes of theemployer but the employer must attempt to makereasonable accommodations for the medicalneeds of an employee who engages in themedical use of marijuana if the employee holds avalid registry identification card, provided thatsuch reasonable accommodation would not:

(a) Pose a threat of harm or danger topersons or property or impose an undue hardshipon the employer; or

(b) Prohibit the employee from fulfilling anyand all of his or her job responsibilities.


New Jersey

Applicability:Law applies to physicians, primary caregivers,and those authorized to produce marijuana formedical purposes.

Quantity Allowed:90-day supply of usable marijuana.

How Obtained:New type of pharmacy – called alternativetreatment centers.


C.24:6I-14 Construction of act:

***

16. Nothing in this act shall beconstrued to require a governmentmedical assistance program or privatehealth insurer to reimburse a person forcosts associated with the medical useof marijuana, or an employer toaccommodate the medical use ofmarijuana in any workplace.


Oregon

Applicability:Law applies to patients and caregivers.

Quantity Allowed:Less than or equal to 1oz of marijuana or 3mature or 4 immature plants.

How Obtained:Growing is permitted but details not specified.


Nothing in ORS 475.300 to 475.346shall be construed to require:

***(2) An employer to accommodate the

medical use of marijuana in anyworkplace.


Can An Employer Discipline/Term?

• Alaska (Probably Yes)

• Arizona (Generally No)*

• California (Yes)

• Colorado (Yes, even if not medicinallybased)

• Connecticut (Maybe)

• District of Columbia (Unclear, noprohibition)

• Delaware (Generally No)*

• Hawaii (Yes)**

• Illinois (Yes)

• Maine (Unclear, no prohibition)

• Maryland (Unclear, no prohibition)

• Massachusetts (Yes)**

• Michigan (Yes)

• Montana (Yes)

• Nevada (Maybe)

• New Hampshire (Probably Yes)**

• New Jersey (Yes)

• New Mexico (Unclear, lawsuit pending)

• New York (Probably Not)***

• Oregon (Yes)**

• Rhode Island (Probably Yes, noprohibition)**

• Vermont (Unclear)**

• Washington (Yes, even if not medicinallybased)

*No “merit” challenges ruled upon in court as of yet.**Legalization on horizon.***New York law automatically deems a “qualifying patient” as “disabled.”


Guns and Marijuana

Growing Problem . . .

• Under federal law, you can't buy any kind of firearm if you have a state-issuedmedical marijuana card because marijuana is still illegal (in fact, to purchase a firearmwith a valid FOID card, you actually are required to affirm that you are not using or underthe influence of any “illegal drug”).

• There are several proposals floating in Congress that would resolve the conflict ofgun ownership versus state-approved marijuana possession. One proposal would blockthe ATF from using any funds to prevent guns sales to people who are approved to havepot in their own states. Another proposal would remove cannabis from the federal list ofdrugs that are patently illegal like cocaine and heroin.

• Only time will tell . . .


Hypothetical

Nick works in Michigan. Nick is a qualified medical marijuana patientwith a valid state license to utilize medical marijuana. During lunch,Nick approaches his supervisor, who knows that Nick possesses a

medical marijuana license, and informs the supervisor that he intendsto smoke medical marijuana while on his lunch break. Nick claims it isnecessary to do so because his qualifying medical condition has been

suppressing his appetite and he needs to eat. In Michigan, Nick’ssupervisor is required to allow him to smoke on Company premises

during his break.

TRUE or FALSE

What about if Nick does it off Company premises during his break?


Hypothetical

Nancy reports to work. You notice that Nancy smells likemarijuana and that her eyes are red. Nancy begins operating

the Company’s forklift, and you observe her running into thingsaround the warehouse. When you ask Nancy whether or notshe is okay, you notice that Nancy is slurring her words andseems impaired. Based on your observations, you require

Nancy to take a drug test. She quickly informs you that she hasglaucoma and is taking medical marijuana. Sure enough,

Nancy’s drug test comes back positive. Based on her positivedrug test results, you may discipline Nancy for violating the

Company’s drug-free workplace policy under Illinois law.

TRUE or FALSE





WORKPLACE IMPLICATIONS


Legal Obligations to MaintainSafe Work Environment

• Drug-Free Workplace Act

• OSHA


Drug-Free Workplace Act

• To maintain eligibility for federal contracts or grants,employers must certify that they will meet specifiedrequirements to ensure a workplace free of illegaldrugs

• Establish a drug-free awareness program

• Require employees to report criminal convictions fordrug-related offenses in the workplace within fivedays from conviction

– Employers must impose penalty or requiresatisfactory participation in EAP.


OSHA

• Each employer shall furnish to each of hisemployees employment and a place ofemployment which are free from recognizedhazards that are causing or are likely to causedeath or serious physical harm to his employees

• Catch-all provision designed to requireemployers to assure that all workplaces arereasonably safe and free from known hazards





FEDERAL VS. STATE


The Supreme Court

• Gonzales v. Raich, 541 U.S. 1 (2005)– Congress may ban use of cannabis even where

approved by states for medicinal use

– Controlled Substances Act trumps California law(Prop. 215) pursuant to Commerce clause

– Banning marijuana growth for medical use is apermissible way of limiting its access for other uses

– As a result, employers in most states may safelyrefuse to accept medical marijuana as a reasonableexplanation for a positive test result.


Gonzales v. Raich

“For now, federal law is blind to the wisdomof a future day when the right to usemedical marijuana to alleviate excruciatingpain may be deemed fundamental.Although that day has not yet dawned,considering that during the last ten yearseleven states have legalized the use ofmedical marijuana, that day may be uponus sooner than expected.”


DOJRelaxes Enforcement

On October 19, 2009, the U.S. Dept. ofJustice (“DOJ”) issued a statement that itwill not “focus federal resources in yourstates on individuals whose actions are inclear and unambiguous compliance withexisting state laws providing for the use ofmedical marijuana.”


D.O.T.Does Not Relax

The DOT motor carrier regulations cover “safety-sensitive”transportation employees

Pilots, bus drivers, truck drivers, train engineers, subwayoperators, aircraft maintenance personnel, transit fire armedsecurity personnel, ship captains and pipeline emergencyresponse personnel, among others.

No driver may report for or remain on safety-sensitive dutywhile using any controlled substance

No driver shall report for or remain on safety-sensitive dutyafter testing positive for unlawful drugs


D.O.T.Does Not Relax . . .

On 10/22/09, DOT issued a statement asserting that its regulated drugtesting program will not change based upon the DOJ’s 10/19 statement.

DOT regs do not authorize ‘medical marijuana’ under state law to be avalid medical explanation for a transportation employee’s positive drugtest result.

“Therefore, Medical Review Officers will not verify a drug test asnegative based upon information that a physician recommended that theemployee use ‘medical marijuana...’ It remains unacceptable for anysafety-sensitive employee subject to drug testing under the Dept. ofTransportation’s drug testing regulations to use marijuana.”


Hypothetical

TRUE OR FALSE

After failing a drug test while working for Company XYZ inNevada, Jennifer claims she had smoked marijuana legallywhile in Colorado for a ski trip.

Company XYZ can terminate Jennifer if she fails a randomdrug test or other drug test administered pursuant tocompany policy?

What about if Jennifer worked in Oregon?


Recent Developments

Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 431-436 (6thCir. 2012) (holding that the Montana Medical Marijuana Actdoes not regulate private employment)

Roe v. Teletech Customer Care, 171 Wn. 2d 736, 753-760(Wash. 2011) (holding that the Medical Use of Marijuana Actdoes not create a private cause of action against anemployer who discharges an employee for authorizedmedical marijuana use, nor does it create a clear publicpolicy that would support a claim for wrongful discharge inviolation of such a policy)


Recent Developments

Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 972-73 (Colo. Ct.App. 2011) (affirming the denial of unemployment benefits where anemployee was terminated for testing positive for marijuana in violation ofan employer’s zero tolerance drug policy, even though the employee’suse of marijuana was medicinal)

• Wilson v. California Dept. of Corrections and Rehab., H-37281, at *7-10(Cal. Ct. App. Sept. 20, 2012) (affirming the State Personnel Board’sdecision to revoke an employee’s termination for failing a random drugtest where the employee used marijuana pursuant to a validprescription, never received a memo regarding her employer’s drug-freeworkplace policy, competently performed the essential functions of herposition, and conducted research reading the legality of medicinalmarijuana)





FMLA AND THE ADA:


The Family and Medical Leave Act

• Marijuana is not deemed addictive

• Absence tied to medical use (as opposedto underlying impairment) is not likely to bedeemed a serious health condition


American’s With Disabilities Act

(1) Employers may prohibit current illegal use ofdrugs and alcohol in the workplace and requirethat employees report for duty withoutengaging in the unlawful use of drugs.

(2) A positive test result establishes “current” use.

(3) Under federal law, medical marijuana use isconsidered illegal drug use.


ADA Amendments Act

• Took effect January 1, 2009

• Expands definition of “disability” to simply “aphysical or mental impairment”

• Provides non-exhaustive list of major lifeactivities

• Re-defines “regarded as” prong of ADA

• Calls for revised definition of “substantially limits”

• Prohibits consideration of “mitigating measures”in disability determination


Implications of ADAAA

• More employees will be deemed to be “disabled,”thereby claiming entitlement to “reasonableaccommodation.”

• Stated purpose is to provide broadest scope ofprotection possible to carry out original intent of ADA toeliminate disability discrimination

• More focus on:– Essential function issues– Reasonable accommodation issues– Interactive process– Undue hardship issues– Disparate treatment


State Disability Laws

To the extent state laws are modeled on theADA, such laws may not protect employeesusing medical marijuana.

Recent cases have almost universally upheldthe employer’s right not to accommodatemedical marijuana use.

Ross v. Ragingwire Telecomm., Inc. (California)Roe v. Teletech Cust. Care Mgmt., 152 Wash. App 3d (Wash. App 2009)

Washburn v. Columbia Forest Prod., Inc., All6664 (Jan. 12, 2005)





Skit: Medical Marijuana

in the Workplace





MYTHS


Myths About Medical Use

• Constitutional right to privacy

• Due process/probable cause

• Random testing restrictions

• Absolute protection in decriminalizedstates

• Right to purchase = right to report for duty

• Right to purchase = right to use on duty


Exceptions to the Rule

• Even if a state offers medical marijuana protection, theemployer typically is not bound to accept usage as alegitimate reason for positive test results. As of now, federallaw trumps (in most states – remember Nevada’s law).

• Nonetheless, many states prohibit employers from“penalizing” an employee based solely on his or her status asa “qualified patient” with a permit (e.g., Illinois, Rhode Island,Montana, etc).





WHAT TO DO


Practical Steps

1. Include information addressing how medical marijuana useis treated as part of an updated, comprehensive substanceabuse and testing policy.

2. Notify applicants and current employees of the policy.

3. Tailor policies to fit differing state requirements.

4. Ensure that all appropriate managers are of aware of theorganization’s policies with regard to medical marijuana.

5. Consider whether use poses a threat to workplace safety.


Practical Steps

6. Adopt measures for ensuring confidentiality.

7. Discipline consistently regardless of registry status.

8. Maintain uniformity in policy enforcement.

9. Refer specifically to drug use deemed unlawful underfederal law.


Substance Abuse Program

• Promulgation of written policy

• Delineation of testing occasions

• Chain of custody

• Confidentiality

• Specified discipline

• Consequences for refusal

• Manager’s procedural manual

• Lawful consent/acknowledgment/disclosure forms

• Any available assistance

• Education/Training


Avoid!!

Taking an adverse action against aqualified individual with a disability on

the basis of that person’s actual orperceived disability


Risks in Non-Uniformity

• Problems posed by inconsistency orexcessive managerial discretion

• Knowingly utilizing employees engaged inthe current use of unlawful drugs underfederal law

• Potentially open-ended vicarious liability


Hypothetical

George, a warehouse worker, injures his backwhile at work. Pursuant to Company policy,George completes a drug test following hisworkplace accident. Several days later,George’s drug test comes back positive formarijuana. George claims that he needs to usemedical marijuana for medical purposes. Giventhe Company’s zero-tolerance/drug-freeworkplace policy, can Company X terminateGeorge’s employment under New Jersey’s law?


Hypothetical

In Illinois, you are required by law to allowevery employee who fails a drug test for

marijuana (or any other drug) a “reasonableopportunity” to explain his or her positive

test result.

TRUE FALSE


Hypothetical

In Colorado, an employee posts on hisFacebook of himself smoking with the

caption “smoke weed errrryday all day LOL #smokeweed” while wearing the

Company’s uniform and pictured in front ofthe Company building. You, as the

employer, are made aware of this posting byanother employee. You may terminate theindividual’s employment based upon this

picture alone?


Hypothetical

What if during the termination meeting, he tellsyou that it was not marijuana, it was a

cigarette and he was just trying to be cool“because he didn’t have any friends and

wanted people to like him.”


Probably OK . . .


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weed in the workplace: medical marijuana and the ...weed in the workplace: medical marijuana and the...

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