Weed & Work: The Hazy State of Marijuana in the Workplace

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Weed and Work:The Hazy State of Marijuana in the Workplace

Douglas R. Steinmetzdsteinmetz@verrilldana.com

(203) 222-3107

Patricia D. Weitzmanpweitzman@verrilldana.com

(203) 222-3116

A panel discussion moderated by:

Panelists: Tawny Alvarez, Rob Brooks, Doug Currier, Richard Moon

Outline

1. Federal Laws regarding Marijuana

2. Medical Marijuana Law

3. Substance Abuse Testing Law

4. Marijuana Legalization Act (Recreational Use)

5. Takeaways

Some Statistics

• According to a Recent Gallup Poll:

• 60% of Americans say marijuana should be legal

• Ages 18 to 34 - Up 33 points to 77%

• Ages 55+ - Up 16 points to 45%

28 States and D.C. Have Enacted Laws to Legalize Medical Marijuana Since 1996:

• Alaska*• Arizona• Arkansas• California*• Colorado*• Connecticut• DC*• Delaware• Florida• Hawaii

• Illinois• Maine*• Maryland• Massachusetts*• Michigan• Minnesota• Montana• Nevada*• New Hampshire• New Jersey

• New Jersey• New Mexico• New York• North Dakota• Ohio• Oregon* • Pennsylvania• Rhode Island• Vermont• Washington*

*HAVE ALSO LEGALIZED RECREATIONAL USE OF MARIJUANA

15 Additional States have some form of limited medical marijuana use

Qualifying Conditions

• Alzheimer’s disease

• Amyotrophic Lateral Sclerosis

• Cachexia or wasting syndrome

• Cancer

• Chronic pain

• Crohn’s disease

• Epilepsy

• Glaucoma

• Hepatitis C

• HIV or AIDS

• Huntington’s disease

• Inflammatory bowel disease

• Multiple Sclerosis

• Nausea

• Nail-patella syndrome

• Parkinson’s disease

• Post-traumatic stress disorder (PTSD)

State v. Federal Law Conflict

• Federal laws continue to outlaw the production, sale, or possession of marijuana.

• Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. U.S. CONST. art. VI, cl. 2. State laws have no effect on federal laws.

• Thus, those who engage in this business, as well as their customers, are in a difficult legal position: their activities are legal under state law but illegal under federal law.

Federal Law: Marijuana

A Schedule I drug under the federal Controlled Substances Act• Possession, usage, purchase, sale, and/or cultivation of

marijuana is illegal

• May not be prescribed, administered, or dispensed

• Other Schedule I drugs include:– Lysergic acid diethylamide (LSD)

– Diacetylmorphine (Heroin)

– Gamma Hydroxybutric Acid (GHB)

– MDMA (Ecstasy)

– Mescaline

– Peyote

The Ogden Memorandum

• In 2009, the Department of Justice issued a memorandum (Ogden Memorandum) announcing that the Justice Department would no longer make it an enforcement priority to pursue those who are in “clear and unambiguous compliance” with state medical marijuana laws in the then 14 states that had passed legislation legalizing medical marijuana.

The Cole Memorandum

• DOJ 2011 Guidance:

• The Ogden Memorandum was never intended to shield large scale cultivation, sale or distribution of marijuana from federal enforcement action and prosecution, even where those activities purport to comply with state law.

• Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.

• Such persons are subject to federal enforcement action.

• State laws or local ordinances are not a defense to civil or criminal enforcement of federal law.

“Cole 2” Memorandum

• On August 29, 2013, the DOJ issues new guidance regarding marijuana enforcement priorities:o Preventing distribution to minors;

o Preventing revenue from going to criminal enterprises, gangs, and cartels;

o Preventing diversion of marijuana from states where it is legal in some form to other states;

o Preventing marijuana activity from being used as a cover for the trafficking of other illegal drugs;

o Preventing violence and the use of firearms;

o Preventing drugged driving;

o Preventing the growing of marijuana on public lands

o Preventing marijuana possession or use on federal property.

Federal Position in Maine

• In 2011, the U.S. Attorney for Maine issued a letter stating:o “while the department does not focus its limited resources

on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law…we will enforce the (Controlled Substances Act) vigorously against individuals and organizations that participate in the unlawful manufacturing and distribution activity…even if such activities are permitted under state law.”

Maine Medical Use of Marijuana Act

• Title 22 Section 2423-E

• An employer may not refuse to: employ; or otherwise penalize a person solely for that person’s status as a qualifying patient unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.

• A business owner may prohibit the smoking of marijuana by nonemployees for medical purposes on the premises of the business if the business owner prohibits all smoking on the premises and posts notice to that effect on the premises.

Maine Medical Use of Marijuana Act

• Medical provider may provide a written certification for the medical use of marijuana

• 2 1/5 ounces possession limit

• 6 mature marijuana plants limit on home cultivation

• Approx. 1723 registered certified users in Maine

Maine Medical Use of Marijuana Act

• Maine Substance Abuse Testing Law, 26 M.R.S.A. Sections 681-690.

• Negative Test Result: A substance of abuse is present in the tested sample in a concentration below the cutoff level.

• For marijuana, the cutoff level is (in urine ) --50 nanograms/millilleter

Maine Substance Abuse Testing Law (MSAT)

WHO IS COVERED?

• Applies to all employers with a few exceptions, e.g., nuclear electric facilities; employers subject to a federally mandated drug and alcohol testing program – pilots, air traffic controllers; commercial drivers

Maine Substance Abuse Testing Law (MSAT)

Employee Testing

• Written policy approved by Maine DOL

• What substances will be tested

• Marijuana in urine ≥ 50 nanograms/millileter = Positive

• Consequences of confirmed positive or refusal to submit

• Employee Assistance Programs required if you test and have > 20 FT employees

• Refusal to submit = termination

Maine Substance Abuse Testing Law (MSAT)

Applicant Testing

• Applicants must have copy of policy

• Testing only after a conditional job offer

• May be denied if positive and violation of Employer’s Drug Free Workplace Policy

• Consider no pre-employment testing for marijuana in Maine after Marijuana Legalization Act

• BUT!! MAINE DOL – Applicant will get unemployment

Maine Drug Testing Policies

Probable Cause Testing• “reasonable ground for belief in the existence of facts that induce a

person to believe that an employee may be under the influence of a substance of abuse”

• Not exclusively based on – Anonymous source

– Information that employee used off-duty

– Single work-related accident

• Usually probable cause testing based on a combination of factors

Effects of Marijuana in the Workplace

• Short-term memory problems

• Impaired thinking

• Loss of balance and coordination

• Decreased concentration

• Changes in sensory perception

• Impaired ability to perform complex tasks

• Decreased alertness

• Decreased reaction

Impairment?

• No current test for “impairment”

• Stays in the blood a long time for a positive test, even if not “impaired.”

• Is performance or safety affected?

• Is the position safety sensitive?

• Substance Abuse Law in direct conflict with recreational use statute

Case Scenario

• Employee tests positive at 400 ng/ml

• Employee then presents a medical marijuana certificate

• Says for chronic back pain

• This is all news to the Company

• He also claims he never works impaired

Employee’s Case

• Any adverse action is disability discrimination

• Cannot hold against him the fact that he uses medical marijuana based on the Maine Medical Use of Marijuana Act

• Violates patient’s right to choice of treatment

Employee’s Case

• Other employees are “prescribed” medication which violates testing standards and are not held against them.

• No one ever observed anything at work raising a concern about his fitness for duty and he performed his job satisfactorily.

• The Employee only used marijuana well before reporting to work such that he was not under the influence while at work.

Employee’s Case

• Employer cannot prove that the employee is impaired, and impaired should be the only concern

How to Prove Impairment?

• Traditional “roadside” tests (e.g. fingers to your nose) do not work

• Urine/Blood tests are inconclusive in regard to whether the individual is actually impaired

• Not like testing for alcohol

• Science has not caught up with the problem

Employer’s Case

• Requiring Employer to refrain from disciplining this employee is in essence requiring Employer to tolerate violations of federal law, which does not permit any marijuana use.

Employer’s Case

• State law designates the threshold that is permissible when working for medical users (in urine, -- 50 ng/ml); above this, it allows an employer to take action against the employee. This employee exceeded the permissible level.

• State law on substance abuse testing was not amended in connection with the medical marijuana law even though it could have been –standard still applies.

Employer’s Case

• The Maine Medical Use of Marijuana Act provides that an employer cannot discriminate solely because an employee has a medical marijuana card.

Employer’s Case

• The Employee was so far above the threshold of non reportable use that to uphold the employee’s position is akin to authorizing any employee to work regardless of the level of cannabinoids in his or her system.

Employer’s Case

• State Substance Abuse Testing law has a presumption of impairment

• No other requirement for Employer to prove impairment

• Employee physician cannot issue a letter indicating employer is not impaired

Reasonable Accommodation

• Courts looking at the issue pursuant to the Americans with Disabilities Act have ruled that allowing use of medical marijuana is not a reasonable accommodation.

Marijuana Legalization Act

§2452. Personal use of marijuana

1. A person 21 y/o may “Use, possess or transport . . . up to 2 ½ ounces of [pot and]”

5. “may consume [pot] in a nonpublic place, including a private residence.”

BUT

“This . . . [does] not shield any adult from federal prosecution.”

Marijuana Legalization Act

§2454. Construction1.This Pot Legalization Act cannot limit any rights under the Maine Medical Use of Pot ActBUT

2.Cannot require an employer to allow or accommodate the use, possession, sale, etc. of pot in workplace, nor

Stop employers from enacting and enforcing workplace policies restricting use of pot or disciplining employees “who are under the influence of pot in the workplace”

BUT

3.“Employer[s] may not refuse to . . . employ . . . or otherwise penalize a person . . . solely for [using pot] outside of the . . . employer’s . . . property.”

Marijuana Legalization Act

• Cannot discipline or terminate (or refuse to hire) someone solely because of marijuana use outside of workplace

• Can terminate for being impaired based on performance

• How to determine impairment? No numerical standards for recreational use

• Positive drug test without obvious impairment? – What are Employer options?

• Can you deny an applicant on the basis of a positive drug screen?

Takeaways

• This has been a growing challenge for employers

• Marijuana use is still illegal under federal law

• Employers do not have to tolerate drug use at work or employees being impaired while at work

• Impairment is difficult to prove

• There is uncertainty in the law

Takeaways

• If an employee has a medical marijuana certificate, that cannot be a basis for action

• That employee’s use of medical marijuana probably can be a basis for action

• Need clear proof pursuant to observed behavior or positive test results pursuant to State approved drug testing program

• But see neuro exams

Takeaways

• Review job descriptions – emphasize safety aspects

• Apply uniform standards of performance to all employees

• Await Maine DOL guidance regarding standards?

– 9 months to one year?

• Discipline based on documented performance

• Consult your attorney until clearer guidance