Implications and Issues of Medical Marijuana

A wider lens on workplace law

Implications and Issues of Medical Marijuana

Megan Walawender


Medicinal and Recreational Marijuana in the Workplace Has Left Many Employers...


What we will cover

• Basics about Marijuana, both recreational and medicinal

• The Standoff between Federal and State Laws • Guidance for Employers

• State law issues that pose the greatest risk to employers • Current cases • Why you should review your job descriptions • Accommodation considerations • Other best practices


Marijuana Use is Common

• Marijuana is the most commonly used illicit drug in the U.S.

• Any use among general population age 12+ in past month: • 2011: 7% • 2008: 5.8%

• Use is most common among people age 18-25 (19% of population)

• 48% of adults in the US report having used marijuana at some time in their life

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SOURCES: SAMHSA 2012; Pew Charitable Trust, 2013.


Except for this guy


Marijuana: What is it?

• Dry, shredded mix of leaves, flowers, stems, and seeds, usually from Cannabis sativa or Cannabis indica plant

• Both are common subspecies of the hemp plant, which is common throughout the world

• Contains over 400 chemical compounds

• Common names: grass, weed, pot, reefer, Mary Jane, ganja

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How is Marijuana Used?

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SMOKED VAPORIZED EATEN/DRUNK

Smoked in a pipe, bowl, cigarette

Inhaled through machine that converts active compounds into

inhalable form

Consumed as ingredient in baked

goods, candies, sodas

Rapid effects Rapid effects Takes time to reach brain, so effects are

delayed

Burning marijuana releases toxins that can

cause pulmonary problems

Does not release toxins that cause pulmonary

problems

Does not release toxins that cause pulmonary

problems

SOURCE: University of Utah, 2013

Marijuana: Other Forms

• Hashish

• Compressed resin of cannabis plant • More concentrated and potent than marijuana plant

• Hash Oil (“Wax”) • Psychoactive chemicals extracted from cannabis plant with

butane • Three to four times as potent as marijuana plant

• Synthetic Marijuana (“Spice”, “K2”) • Herbal and chemical mixtures that produce experiences similar to

marijuana • The five most common active chemicals in synthetic marijuana

are now illegal in the U.S.

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Marijuana: How Does it Work?

• THC’s chemical structure is similar to the brain chemical anandamide. Similarity in structure allows drugs to be recognized by the body and to alter normal brain communication

• Stimulates “high” by triggering receptors in parts of brain that influence pleasure, memory, thinking, concentration, coordination

• THC’s molecular structure also is similar to that of neurotransmitters that affect cannabinoid receptors (affect pain, appetite, vomiting reflex)

• Effects generally last 1-4 hours

SOURCES: Eddy, 2010; National Institute on Drug Abuse. 9


Marijuana: Immediate Effects

• Effects can vary by strains

• Sativa: More euphoria, stress relief • Indica: Relaxation, physical (especially pain) relief • Sativa and Indica often combined, leading to variable effects

Altered Mood Reduced Anxiety

Cognitive Impairment (Attention, Judgment)

Sedation/Drowsiness

Altered Perception Sensory Intensification

Impaired coordination/balance Increased heart rate

Hunger Hallucinations (in large doses)

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SOURCE: National Institute on Drug Abuse


Marijuana: Negative Effects on Behavior and Mental Health

• Similar to alcohol/other drugs if misused (impairment) • Large doses may cause acute psychosis (hallucinations & delusions) • Long term use has negative impact on learning and memory • Long term use reduces motivation (“amotivational syndrome”) • Use as youth correlates with lower IQ • Associated with mental health problems

• Unclear if marijuana use is cause or effect • Heavy use is highly associated with serious mental illness –

particularly among those with high risk (e.g., family history)

SOURCES: Ben Amar, 2006; Bostwick, 2012; NIDA.

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As Marijuana Goes Legit, Investors Rush In

“Pot entrepreneurs have high expectations for a future

market in legalized marijuana.”

• http://www.usatoday.com/story/money/business/2013/04/07/medical-marijuana-industry-growing-billion-dollar-business/2018759/

States With Medical and/or Recreational Marijuana

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Recreational Use Laws

Age 21 and Over One Ounce or Less No Public Use Regulated Grow/Retail/Taxation

DUI = 0.05 Nanograms or Higher in CO & WA (Some states, like AZ, have a zero tolerance standard)


Medical Marijuana and Federal Law

• Controlled Substances Act (1970) • Marijuana is a Schedule I drug: “No

currently accepted medical use & high abuse potential”

• No legal distinction between medical and recreational use

• Up to 1 year in federal prison, $100,000 fine for first possession offense

• Up to 5 years in federal prison, $250,000 fine for first manufacturing offense

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Medical Marijuana and Federal Law

• Supreme Court ruled that medical necessity is no excuse to break federal law (U.S. v. Oakland Cannabis Buyers’ Cooperative 2001)

• FDA affirmed smoked

marijuana is not considered medicine (2006)

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Federal Law vs. State Law: What Does it Mean?

• Supreme Court ruled that federal marijuana laws have precedence over state law (Gonzales v. Raich, 2005)

• Supreme Court ruled that federal government cannot investigate physicians just because they recommend marijuana (Conant v. Walters, 2002)

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Federal vs. State Law: What Does it Mean?

• Most drug arrests are made by local/state law enforcement, who enforce state laws • Local/state law enforcement operate under specific state laws that

allow for medical marijuana and/or recreational marijuana • Federal law enforcement operates under Controlled Substances Act

(does not allow for medical marijuana)

• Federal law enforcement of marijuana laws is rare, varies depending on political climate • Federal authorities have been shutting down dispensaries they believe

are “profit-making” enterprises

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The War on Marijuana: Is It Going, Going, Gone?

• August 29, 2013

• U. S. Department of Justice • MEMORANDUM FOR ALL UNITED STATES

ATTORNEYS: • Guidance Regarding Marijuana

Enforcement • Example, Charles Lynch, opened dispensary

under California law, convicted of felonies under federal law

• To read more: http://www.nytimes.com/2015/04/09/us/medical-marijuana-dispensers-trapped-by-conflicting-laws.html?_r=0


Medical Marijuana Laws *Laws with Employment Protections

Alaska Colorado Florida Iowa Michigan Montana New Mexico New Hampshire *New York Oregon Virginia

California *Delaware *Illinois Maryland *Minnesota New Jersey

Vermont Wisconsin

*Arizona *Connecticut Hawaii *Maine Massachusetts *Nevada

*Rhode Island Washington Washington, D.C.

Marijuana: Legal Impairment? • Per Se Laws- Set at a defined cut-off for marijuana metabolites

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State Marijuana Blood

Marijuana Urine

Marijuana Metabolite Blood

Marijuana Metabolite Urine

Marijuana Metabolites + Other Drug

Colorado* 5 ng/mL (THC) N/A N/A N/A N/A

Montana 5 ng/mL (THC) N/A N/A N/A N/A

Nevada 2 ng/mL 10 ng/mL 5 ng/mL 15 ng/mL N/A

Ohio 2 ng/mL 10 ng/mL 35 ng/mL 50 ng/mL Urine15 ng/mL Blood 5 ng/mL

Pennsylvania 1 ng/mL N/A N/A N/A N/A

Washington 5 ng/mL (THC) N/A N/A N/A N/A


Detecting Marijuana Options

• Urine • Easily obtained / Not observed • Detection window days to weeks • Not correlated with impairment

• Hair • More specialized collection / Observed • Detects pattern of repetitive use • Not correlated with impairment

Confidential – Do not copy or distribute | 22


Detecting Marijuana Options continued

• Oral Fluid • Observed and non-invasive • Detection window, 1-2 days • No consensus yet on cut-offs for impairment • Measures residual THC in oral fluid mucosa

• Blood • Specialized/invasive collection / Observed • Best correlation with impairment • Few “per se” levels & vary by State

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State Medical Marijuana Statutory Considerations:

1. Who the law applies to 2. Quantity of Marijuana Permitted 3. How the Marijuana may be obtained/access –

Medical Marijuana Dispensaries/variations 4. The liability protections 5. The statutory requirements for authorized use

and the illnesses/medical conditions covered by each statute as applicable

6. How the law applies to employment

• NOTE: Each state law varies significantly

Cardholder Protection? • Qualifying Patient: A person diagnosed as having a

debilitating medical condition. • Diagnosis procedure and application requirements vary by state. • Debilitating medical condition also different by state. • Typically minors are permitted with various parental consents.

• Primary Caregiver: A person who assists qualifying patient with medical marijuana. • Protections vary, typically related to possession and obtaining and assisting

with the use of medical marijuana. • Unclear what “assisting with medical marijuana”

protections would entail in states.

• Number of patients caregiver can assist and permitted age of caregiver varies.

• Sometimes referred to as designated caregiver and other terms.

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Arizona

• STATE WITH EXPLICIT EMPLOYEE PROTECTION

• A.R.S. 36-2802 --unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer cannot discriminate in hiring, termination or other condition of employment if person is a cardholder, tested positive (unless possessed or impaired by marijuana on employer’s premises during work hours)

Connecticut • STATE WITH EXPLICIT

EMPLOYEE PROTECTION • Employers may not refuse to hire a

person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.

• Employers may discriminate if required by federal funding or contracting provisions & may continue to prohibit use of intoxicating substances, including marijuana, at work.

• Employers may continue to discipline employees for being under the influence of intoxicating substances at work, but cannot presume that positive drug test for marijuana means that employee used at work or was under influence at work.

Nevada • Law does not “require any employer to allow the

medical use of marijuana in the workplace.” • However, law also states it does not “require an

employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not: • (a) Pose a threat of harm or danger to

persons or property or impose an undue hardship on the employer; or

• (b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.”


DOT’s Position – October 22, 2009:

• The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

• -- Jim L. Swart, Director Office of the Secretary of Transportation, Office of Policy and Compliance, Department of Transportation


Medical Marijuana Case Law

•Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Or. 159 (Or. 2010) •Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914 (W.D. Mich. 2011) •Coats v. Dish Network LLC, (CO Ct Appeals April 25, 2014) (CO Sup Ct Oral Argument Sept. 30, 2014)

• Still Pending

A wider lens on workplace law Constangy, Brooks and Smith, LLP ©2014 All Rights Reserved 31

Steps an Employer Should Take:

1.Understand the laws on Medical Marijuana that are specific to their State;

2.Review Key Policies and update employee job descriptions;

3.Adopt an ADA complaint handbook policy on reasonable accommodations; and

4.Let employees know your stance on Medical and Recreational Marijuana use.


•Make sure current policy addresses consequences for the use of marijuana at work (no consumption or possession at work, on company time or at company functions). •Review safety processes and focus on safety!

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Review Key Policies

•Consider whether you want a policy that prohibits employees from using marijuana off the clock. •Remind Managers to lead— evaluate employee on a performance basis (effectiveness completing job duties), rather than by drug testing because positive test may not be enough


Update Employee Job Descriptions • Every job description to be in

compliance with the Americans with Disability Act (ADA) should list “Essential Job Functions.”

• If the employee works in a safety-sensitive job category, one of the essential functions listed should be “the ability to work in a constant state of alertness and in a safe manner.”

• Educate yourself on the workplace related impairing effects of Marijuana.


Update Employee Job Descriptions (cont) • Essential Functions & the ADA • In determining whether a job function is essential, EEOC & courts

look at: • employer’s assessment of which functions are essential, as

demonstrated by job descriptions written before employer posts or advertises for the position

• whether position exists to perform that function (if the entire job consists of one function, such as loading and unloading boxes then that function is essential)

• experience of employees who actually hold that position • time spent performing the function • the consequences of not performing the function • whether other employees are available to perform the function,

and • degree of expertise or skill required to perform the function.

• The weight each factor receives will depend on the facts. • Ex: security guard with gun.


Include in Job Descriptions Key Safety Information:

• Decreased cognitive reasoning • Decreased motor coordination • Inability to concentrate or remain

focused on a single thought or idea • Increased drowsiness, fatigue and

lethargy

Workplace Related Impairing Effects of Marijuana Include: •Inability to accurately gauge

lengths of time and distance as well as impairment of hearing and vision and short term memory •Inability to cope with sudden changes in surrounding and/or emergency situations •Loss of balance •Visual and/or auditory hallucinations •Non-caring, uncommitted, unconcerned attitude


Adopt an ADA Compliant Handbook Policy on Reasonable Accommodation

• Having ADA reasonable accommodation handbook language that discusses the typical interactive steps is a good risk reduction practice;

• The linchpin of the ADA is an individualized assessments based on essential job duties; and

• Suggest use of consulting MRO/Occupational Physician to guide you through the ADA reasonable accommodation dance steps.


Adopt an ADA Compliant Handbook Policy on Reasonable Accommodation Cont.

• KEY TO COMPLIANCE: Employee must be a qualified individual, who can perform the essential functions of the job, with or without a reasonable accommodation

• If each of these elements aren’t satisfied, there is no obligation to keep employed

• Ex: Applicant for accounting position discloses medical marijuana use in Nevada but lacks certification, does employer need to accommodate?


Let Employees Know Your Stance on Medical and Recreational Marijuana Use

• Include clear information about the Employer’s position on Medical Marijuana in its Drug and Alcohol Testing Policy.

• In your employee awareness session, go through the workplace related impairing effects of Marijuana.

• Make it all about safety. • Watch the state laws carefully and do not take adverse action or impose

disciplinary consequences against an employee or applicant that makes a Medical Marijuana claim without consulting knowledgeable legal counsel.

• In states where legal, treat Medical Marijuana like any other impairing effect prescription medication or substance.


Common Questions

Can an employer prohibit marijuana use in the workplace?


Common Questions

Can an employer prohibit employees

from working while under the influence of marijuana?


Common Questions

Can an employer refuse to hire an otherwise qualified applicant who tests positive for medical marijuana use in a pre-placement drug test?


Common Questions

Can employers drug test employees and take disciplinary action against an employee who tests positive for marijuana?


Common Questions

Can an applicant or employee with a marijuana prescription claim disability status and seek accommodation under the Americans with Disabilities Act?


Common Questions

How should employers who are federal contractors or grantees handle violations of drug-free workplace policies?


Common Scenarios

"I just wanted to know, would you accommodate my use of medical marijuana?"


Common Scenarios

• Excellent employee found to be high at work and says: “I’m getting chemo for cancer and the only way I can keep food down is to smoke pot first. I’m really sorry and I won’t do anything the rest of the afternoon that involves power equipment.”


Common Scenario

• Employee comes to you and says she's suffering from glaucoma and needs to deal with the symptoms. She tells you she's about to go outside, walk 50 feet off property, smoke, and come back.

• Manager says, “No, no, no, no. Go home, stay home, you're fired."


Common Scenario

• Social media check shows candidate smoking pot.

• Hiring manager does not select the candidate.


Contact Information and Questions

Megan Walawender 2600 Grand Blvd., Ste 750

Kansas City, MO 64108 (816) 329-5905

[email protected]

Implications and Issues of Medical Marijuana

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