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The Marijuana Dilemma:

What Employers Can

Do About It

A Presentationby Bill Current

Sponsored byOraSure Technologies

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Bill Current

� Founded WFC & Associates, LLC in 1998� Specializing in drug testing policy development� Drug-free workplace education and training� Business development for drug testing providers

� Publisher of the On-Line Ultimate Guide to State Drug Testing Laws at StateDrugTestingLaws.com

� Director of the Annual Survey of Drug Testing Industry Trends (now in its 16th year)

� Former Executive Director of the American Council for Drug Education, Director of the Institute for a Drug-Free Workplace, and Vice President of Consulting for a national third-party administrator

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Overview

� Magnitude of the Marijuana Problem

� A Word About Fake Marijuana

� Medical Marijuana Laws

� Legal Pot (Colorado & Washington)

� Addressing Marijuana In Your Drug Testing Policy

� Lab-based Oral Fluid Drug Testing & Marijuana Detection

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Magnitude of the

Marijuana Problem

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� In 2012, an estimated 23.9 million Americans aged 12 or older were current (past month) illicit drug users, meaning they had used an illicit drug during the month prior to the survey interview.

� This estimate represents 9.2 percent of the population aged 12 or older.

� In 2012, marijuana was the most commonly used illicit drug, with 18.9 million users. It was used by 79.0 percent of current illicit drug users. About two thirds (62.8 percent) of illicit drug users used only marijuana in the past month.

� Also, in 2012, 8.9 million persons aged 12 or older were current users of illicit drugs other than marijuana (or 37.2 percent of illicit drug users aged 12 or older). Current use of other drugs but not marijuana was reported by 21.0 percent, and 16.2 percent of illicit drug users reported using both marijuana and other drugs.

Marijuana Usage in America

Source: SAMHSA’s National Survey on Drug Use and Healthwww.samhsa.gov/data/NSDUH/2k11Results/NSDUHresults2011.htm

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� According to the government's report: "The rate of current marijuana use among youths aged 12 to 17 decreased from 8.2 percent in 2002 to 6.7 percent in 2006, remained unchanged at 6.7 percent in 2007 and 2008, then increased to 7.4 percent in 2009.

� Rates in 2010 (7.4%) and 2011 (7.9%) were similar to the rate in 2009."

� Among young adults, the 2011 rate of current marijuana use (19.0 percent) was similar to the 2009 (18.2 percent) and 2010 (18.2 percent) rates, but it was higher than the 2008 rate (16.6 percent).

Marijuana Usage by Young People

Source: SAMHSA’s National Survey on Drug Use and Healthwww.samhsa.gov/data/NSDUH/2k11Results/NSDUHresults2011.htm

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• The number and percentage of persons aged 12 or older who were current users of marijuana in 2012 (18.9 million or 7.3 percent) were similar to the estimates for 2011 (18.1 million or 7.0 percent, but it was higher than rates from 2002 to 2009. Between 2007 and 2012, for example, the rate of use increased from 5.8 to 7.3 percent, and the number of users increased from 14.5 million to 18.9 million.

• An estimated 8.9 million persons aged 12 or older (3.4 percent) were current users of illicit drugs other than marijuana in 2012. The majority of these users (6.8 million persons or 2.6 percent of the population) were nonmedical users of psychotherapeutic drugs, including 4.9 million users of pain relievers, 2.1 million users of tranquilizers, 1.2 million users of stimulants, and 270,000 users of sedatives.

Marijuana Usage in America

Source: SAMHSA’s National Survey on Drug Use and Healthhttp://www.samhsa.gov/data/NSDUH/2012SummNatFindDetTables/NationalFindings/NSDUHresults2012.htm#ch2

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Marijuana Compared to Other Drugs

Source: SAMHSA’s National Survey on Drug Use and Healthhttp://www.samhsa.gov/data/NSDUH/2012SummNatFindDetTables/NationalFindings/NSDUHresults2012.htm#ch2

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• In 2012, 7.2 percent of youths aged 12 to 17 were current users of marijuana compared to 2.8 percent who were current nonmedical users of psychotherapeutic drugs, 0.8 percent who were current users of inhalants, 0.6 percent who were current users of hallucinogens, and 0.1 percent who were current users of cocaine.

Marijuana Usage by Young People

Source: SAMHSA’s National Survey on Drug Use and Healthhttp://www.samhsa.gov/data/NSDUH/2012SummNatFindDetTables/NationalFindings/NSDUHresults2012.htm#ch2

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“Buzz Abounds Over Denver County Fair's New Pot Pavilion”— 1/31/14 NBCnews.com

“Majority of Americans Support Efforts to Legalize Marijuana”—1/28/13 NBCnews.com

“High Crimes: Robber Gangs Terrorize Colorado Pot Shops”—2/3/14 NBCnews.com

“Pot-Friendly States Can't Really Stop Carry-On Weed”—1/30/14

“Minnesota Family Moves to Colorado for Medical Marijuana”—1/31/14 Chann. 11 MN

“Exclusive: Arizona Medical Marijuana Sales Hit $40M in First Year”—12/19/13

Marijuana Business Daily

“Seniors Boosting Medical Marijuana Usage in AZ”—1/22/14 Marijuana Business Daily

“LA Mom of Sick Child Lobbies State to Approve Medical Marijuana” —1/30/14

WWLTV.com

“Study: Fatal Car Crashes Involving Marijuana Have Tripled” —2/4/14 CBS Seattle

Headlines

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A Word About Fake Marijuana

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� Spice is slang for synthetic cannabinoids applied to or sprayed on a mixture of herbs or other substances… (there are no rules).

� There are many synthetic cannabinoids.

� JWH-018 is one of several with JWH initials in the name. (John W. Huffman, a chemistry professor at Clemson University who developed it in the early 1990s.)

Synthetic Marijuana

Source: Drug Enforcement Administration; JWH-018; March 2011.Aung, M.M., et al. Influence of the N-1 alkyl chain length of cannabimimetic indoles upon CB1 and CB2 receptor binding. Drug and Alcohol Dependence, 60, 133-140 (2000)

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� The Synthetic Drug Abuse Prevention Act of 2012was signed into law on July 9, 2012.

� The federal law adds certain classes of synthetic cannabinoids and two substituted cathinones —mephedrone and MDPV—to the federal controlled substances act. As such, these substances are now under federal control and regulation.

Synthetic Marijuana

Source: www.justice.gov/dea/pubs/pressrel/pr030111.html.DATIA Focus: The Next High: Synthetic Marijuana & Other Designer Drugs, June 2011

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� 42 states have banned synthetic cannabinoids*

� 44states have banned substituted cathinones* (bath salts)

� 40 states have banned both*

* Including Puerto Rico

Synthetic Marijuana

Source: National Conference of State Legislatureswww.ncsl.org/issues-research/justice/synthetic-drug-threats.aspx

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� Think of Spice as a marijuana herbal replacement.

� Spice is often sold today as incense and buyers are typically warned not to consume it.

� It is not organic. It is made in a lab (or at a kitchen table) and the finished product looks like crushed grass.

� There are countless names and brands including: k2 Algerian Blend, Genie, Smoke, Chill X, Sense, Yucatan Fire, Spice Diamond, Spice Silver, Spice Gold, etc.

Synthetic Marijuana

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� Forbes Magazine reports that one chemical compound of Spice, HU-210, is “between 100 to 800 times more potent than THC.”

� Effects of spice include agitation, racing heartbeat, vomiting, intense hallucinations and seizures

� American Association of Poison Control Centers reports that calls about the harmful effects of Spice jumped from 13 in 2009 to 2,906 in 2010 and 6,958 in 2011 (639 calls were received in January alone in 2012.)

� In 2011, 11.4% of 12th graders reporting using Spice or K2 in the past year according to the Monitoring the Future Survey.

� One researcher reported a disturbing trend after testing 100 packets from several distributors: “there is no trend.”

Synthetic Marijuana

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Return On Investment

• A kilo of the raw material is about $1,500-$2,500.

• A metric ton of the plant material is about $1,500

• Add packaging

• Divide into 3-5 grams per package

• Sell a package for about $30

• Bottom line: A $5,000 investment will yield a $250,000 return at the “retail“ level

Barbra Roach, special agent in charge of the Denver division of the DEA

http://www.huffingtonpost.com/2013/09/11/synthetic-marijuana_n_3908171.html

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Fake Pot

• Easily modified chemical structures allow “chemists” to stay in front of state and DEA regulations

• Easily distributed and accessible online, at gas stations and convenience stores

• Not typically ordered on a routine lab test panel… in fact, a drug test for real marijuana will not detect synthetic cannabinoids

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Is Fake Pot Like Real Pot?

• The comparison to real marijuana has angered the proponents of the legalization of marijuana, but it’s called synthetic “cannabinoids” for a reason.

• The effects of usage are very much like using real

marijuana (THC)… but may be hundreds of times stronger than marijuana.

• The duration of the effect is around 30 minutes.

• The individual at work would have similar impairment issues as with real marijuana.

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Medical Marijuana

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States with Medical Marijuana Laws

1. Alaska

2. Arizona

3. California

4. Colorado

5. Connecticut

6. Delaware

7. District of Columbia

8. Hawaii

9. Illinois

10. Maine

11. Massachusetts

12. Michigan

13. Montana

14. Nevada

15. New Hampshire

16. New Jersey

17. New Mexico

18. Oregon

19. Rhode Island

20. Vermont

21. Washington

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2014 Medical Marijuana Bills by State

• Florida

• Kentucky

• Minnesota

• Missouri

• New York

• Ohio

• Pennsylvania

• Tennessee

• West Virginia

• Wisconsin

Source: Marijuana Policy Project: Marijuana Policy Reform Bills 2014, http://www.mpp.org/legislation/marijuana-policy-reform-bills.html

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Intent?

� To decriminalize use for individuals with serious, debilitating medical conditions where a physician recommends (not prescribes) marijuana for therapeutic use.

� California: “Removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a "written or oral recommendation" from their physician that he or she "would benefit from medical marijuana." Patients diagnosed with any debilitating illness where the medical use of marijuana has been "deemed appropriate and has been recommended by a physician" are afforded legal protection under this act.”

� Conditions: A long list of legitimate medical conditions including cancer, MS, etc., and… “Other chronic or persistent medical symptoms.”

Source: ProCon.org

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New Hampshire: Impact on Workplace

"Nothing in this chapter shall exempt any person from arrest or prosecution for:

(a) Being under the influence of cannabis while:

(1) Operating a motor vehicle, commercial vehicle, boat, vessel, or any other vehicle propelled or drawn by power other than muscular power; or

(2) In his or her place of employment, without the written permission of the employer; or

(3) Operating heavy machinery or handling a dangerous instrumentality.”

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New Hampshire: Impact on Workplace

It also specifically protects employers with this provision:

"Nothing in this chapter shall be construed to require… Any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment ... This chapter shall in no way limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis."

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Illinois: Impact on the Workplace

Illinois' new law has an extensive employment section, which is largely employer friendly. It is one of the rare medical marijuana state laws that actually mentions drug testing:

"Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner."

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Illinois: Impact on the Workplace

It also states that:

"Nothing in this Act shall limit an employer from disciplining a registered qualifying patient from violating a workplace drug policy."

The Illinois law, which becomes effective January 1, 2014, includes specific language that protects an employer when taking disciplinary action based on a drug test result or when a registered patient uses marijuana on the employer's premises or during work hours.

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Legal Pot

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"We've got bigger fish to fry," Obama told ABC News' Barbara Walters. "It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal."

Federal Response

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Legal Pot, Where? Colorado

� Intent is to treat cannabis in a manner similar to alcohol.

� Possession: State criminal penalties for possession of 1 ounce of marijuana are eliminated. Permits the cultivation of up to six marijuana plants (3 immature, 3 mature) for personal use. Permits the gifting of up to 1 ounce of marijuana to a person 21 or older.

� Employment: The new law contains a provision for the workplace.

� DUI: A bill is pending that would establish a cut-off level for THC that would qualify as driving under the influence.

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Colorado’s Law & the Workplace

As it concerns the workplace: Section 16(6)(a) of the Colorado law says –

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

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Legal Pot, Where? Washington

� Possession: State criminal penalties for possession of 1 ounce of marijuana for those 21 and older are eliminated. Public consumption of marijuana, like alcohol, can mean a $50 fine.

� Employment: The new law does not change the right of employers to drug-test employees.

� DUI: A level of 5 nanograms of THC, marijuana's active ingredient, in a driver's blood becomes equivalent to a 0.08 percent blood-alcohol level for driving under the influence.

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Washington’s Law & the Workplace

?The Washington bill did not include a provision

for the workplace.

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Federal Government’s Position

� Department of Justice issued guidelines for federal prosecutors in states that have enacted laws authorizing the use of medical marijuana (October 2009).

� "It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal."

� "This balanced policy formalizes a sensible approach that the Department has been following since January [2009]: effectively focus our resources on serious drug traffickers while taking into account state and local laws."

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DOT’s Position

“We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.

“Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used "recreational marijuana” when states have passed "recreational marijuana” initiatives.

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DOT’s Position

“We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use "medical marijuana” when states have passed "medical marijuana” initiatives.

“It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

“We want to assure the traveling public that our transportation system is the safest it can possibly be.”

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Wal-Mart v. Casias

� Joseph Casias, a brain cancer patient who lived in Battle Creek, MI was fired by Wal-Mart after he tested positive for marijuana use.

� Casias is a registered medical marijuana patient who contends that he never went to work high.

� Wal-Mart's policy does not condone the use of marijuana for any reason.

� The judge concurred.

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Wal-Mart v. Casias

� "The fundamental problem with [Casias'] case is that the [medical marijuana law] does not regulate private employment.”

� “All the [law] does is give some people limited protection from prosecution by the state, or from other adverse state action in carefully limited medical marijuana situations.“

� “Nowhere does the [law] state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace."

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Coats v. Dish Network

• The first major marijuana case in Colorado was decided in the employer's favor.

• It should be pointed out that this case started in 2010 when Brandon Coats, an employee with Dish Network, LLC, tested positive for marijuana and was terminated.

• Coats sued to get his job back but a trial court dismissed his claim in 2011… the judge agreed with Dish which claimed that medical marijuana use was not a lawful activity covered by law even though marijuana use for medical purposes was already legalized in Colorado.

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Coats v. Dish Network

• A Court of Appeals in April 2013 struck what might be a final blow to Mr. Coats' hopes of getting his job back. The Court ruled that marijuana use is still prohibited by the federal government:

• “… because activities conducted in Colorado, including medical marijuana use, are subject to both state andfederal law, for an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law.”

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Colorado Supreme Court…

• The Colorado Supreme Court will review a case holding that an employer did not violate the state’s “legal activities” law when it dismissed an employee who used “medical marijuana” while off duty. Coats v. Dish Network, No. 13SC394 (CO. Jan. 27, 2014).

• The two main issues in the case are: (1) whether the state’s Lawful Activities law protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance; and, (2) whether the state’s medical marijuana law makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered within the state.

Source: The National Law Review

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Roe v. TeleTech

• The Washington Supreme Court affirmed a lower court’s ruling holding that:

• “Medical Use of Marijuana Act (MUMA) does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.”

Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, No. 83768-6, 2011 Wash.

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Recreational Marijuana Use BillsNote: Green indicates the state already has a medical marijuana law

2013 Bills

� Alabama

� Hawaii

� Maine

� Maryland

� Massachusetts

� Nevada

� New Hampshire

� Ohio

� Oregon

� Pennsylvania

� Rhode Island

� Vermont

2014 Bills

� Alabama

� New Hampshire

Projected:

� Alaska

� Arizona

� California

� Oregon

� District of Columbia

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Marijuana Policy Project

“MPP has a robust plan to legalize marijuana in 14 more states between 2014 and 2017 by lobbying state legislatures and spearheading state ballot initiative campaigns. Each of these efforts will help to form a string of statewide successes and — by the spring of 2017 — 16 states will have legalized marijuana!

“With each of these state-level successes, we'll come that much closer to ending marijuana prohibition in Congress, with the ultimate goal of legalizing marijuana nationwide by 2019! But we can't make this overwhelming progress without your support. Please make your most generous financial contribution toward our efforts today.”

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Addressing Marijuana In YourDrug Testing Policy

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Your Company Policy

� Be clear about what your company policy is:

�Prohibited behaviors

�Drug testing (how, when and for what)

�Consequences for policy violations

� Be clear that an employee can not possess or use marijuana in the workplace

� Detection of any amount is a violation of policy

� Take measures based upon actions rather than drug test results (reasonable suspicion)

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Your Company Policy

� Employers can test for marijuana.

� Pre-employment drug testing is legal.

� Urine, oral fluid and hair

� Ensure your policy is compliant with state laws.

� Watch for legal challenges.

� Take into account workers’ compensation and unemployment compensation laws as they apply to drug testing for marijuana

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Lab-based Oral Fluid Drug Testing & Marijuana Detection

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Can Marijuana Be Detected In Oral Fluid?

The short answer is YES!

But there’s a little more to it than that.

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Factors to Consider…

1. Typically, marijuana is detectable through oral fluid testing within an hour of the use of the drug if not immediately.

2. Cut-off levels used have a huge impact on the detection of marijuana.

3. Testing method: Lab-based vs. POCT

4. Lab-based oral fluid testing provides a longer window of detection than current POCT devices on the market, especially with respect to marijuana. This is due to cut-offs for POCT devices being higher than lab-based oral fluid tests.

Source: Quest Diagnostics. Data on File.

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Cut-off Levels Make a Difference

Source: Quest Diagnostics. Data on File.

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Window of Detection by Specimen

Source: SAMHSA, Drug Testing Advisory Board (DTAB) Meeting, Ron Flegel Presentation 1/26/2011

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Conclusion

� Marijuana use is an increasing problem in the U.S. and it has a direct impact on the workplace and safety.

� Laws that legalize marijuana, either for recreational or medicinal purposes, complicate employers’ efforts to maintain workplaces free from impairment caused by marijuana use.

� The federal government still considers marijuana a Schedule l Controlled Substance.

� Employers still have the right to insist that workers are drug-free while at work.

� A written policy is still the critical components of a comprehensive drug-free workplace program, including a company’s position on marijuana use.

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Questions?

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