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MarijuanaDilemmaWhat Employers Should Know and What They Can Do About It
Employer Webinar
December 13, 2012
• Founder and President of WFC & Associates, LLC (1998)
• Publisher of the On-Line Ultimate Guide to State Drug Testing Laws at www.StateDrugTestingLaws.com.
• Director of the Annual Survey of Drug Testing Industry Trends now in its 14th year
• Former Executive Director of the American Council for Drug Education, Director of the Institute for a Drug-Free Workplace,
• Vice President of Consulting for a national third-party administrator
• Author of 10 books on substance abuse and drug testing issues including Why Drug Testing?
Today’s Presenter: William F. Current
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December 13, 2012
• Drug Abuse – Latest trends – Federal report
• Medical Marijuana – Medical Marijuana Legislation – State Laws
• Synthetic Cannabinoids – K2/Spice – Federal Laws – State Laws
• What Employers Can Do • Conclusion
Marijuana Dilemma
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December 13, 2012
Drug Abuse
December 13, 2012
• In 2011, an estimated 22.5 million Americans aged 12 or older were current (past month) illicit drug users. – This estimate represents 8.7 percent of the population
aged 12 or older (up from 8.0 percent in 2008). • An increased rate in the current use of marijuana is one
of the prime factors in the overall rise in illicit drug use. In 2011, 18.1 million Americans were current users of marijuana compared to 17.4 million in 2010 and 14.5 million in 2007.
• This represents an increase in the rate of current marijuana use in the population 12 and older from 5.8 percent in 2007 to 7.0 percent in 2010.
Source: SAMHSA’s National Survey on Drug Use and Health
Drug Abuse
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December 13, 2012
• 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).
Source: www.samhsa.gov/data/NSDUH/2k11Results/NSDUHresults2011.htm
Drug Abuse
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December 13, 2012
Medical Marijuana
December 13, 2012
1. Alaska 2. Arizona 3. California 4. Colorado 5. Connecticut 6. Delaware 7. District of Columbia 8. Hawaii 9. Maine 10. Massachusetts 11. Michigan 12. Montana 13. Nevada 14. New Jersey 15. New Mexico 16. Oregon 17. Rhode Island 18. Vermont 19. Washington
States with Medical Marijuana Laws
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December 13, 2012
• To decriminalize use for individuals with serious, debilitating medical conditions where a physician recommends (not prescribes) marijuana for therapeutic use
• Conditions: A long list of medical conditions including cancer, Multiple sclerosis, etc., and… “other chronic or persistent medical symptoms.”
Intent?
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December 13, 2012
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.”
Intent?
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December 13, 2012
Oregon • “Removes state-level criminal penalties on the use,
possession and cultivation of marijuana by patients who possess a signed recommendation from their physician stating that marijuana ‘may mitigate’ his or her debilitating symptoms.”
Intent?
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December 13, 2012
Alaska • “Removes state-level criminal penalties on the use,
possession and cultivation of marijuana by patients who possess written documentation from their physician advising that they ‘might benefit from the medical use of marijuana.’”
Intent?
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December 13, 2012
Colorado • “Removes state-level criminal penalties on the use,
possession and cultivation of marijuana by patients who possess written documentation from their physician affirming that he or she suffers from a debilitating condition and advising that they ‘might benefit from the medical use of marijuana.’ Patients must possess this documentation prior to an arrest.”
Intent?
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December 13, 2012
Massachusetts • “Nothing in this law requires any accommodation of any
on-site medical use of marijuana in any place of employment, school bus or on school grounds, in any youth center, in any correctional facility, or of smoking medical marijuana in any public place.”
Workplace
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December 13, 2012
Connecticut • The medical marijuana law contains a brief provision that
states individuals are not permitted to "ingest" medical marijuana while at work. It also states employees may not be under the influence of medical marijuana while at work.
• Yet, the law specifically prohibits employers from refusing to hire individuals due to their use of medical marijuana. In fact, the law also includes prohibitions on terminating, penalizing or even threatening such individuals.
Workplace
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December 13, 2012
Connecticut • In what appears to be an effort to appease both the
business community and the pro-marijuana movement, the Connecticut law confuses matters. It is unclear on the state of drug testing, especially regarding what employers can do in response to a positive marijuana test when the donor claims to have used legally-obtained medical marijuana.
Workplace
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December 13, 2012
• Physician recommendation - not a prescription • No way to verify appropriate use • No verifiable prescription dose
Concerns
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December 13, 2012
“Marijuana is properly categorized under Schedule I of the Controlled Substances Act (CSA), 21 U.S.C. § 801, et seq. The clear weight of the currently available evidence supports this classification, including evidence that smoked marijuana has a 1) high potential for abuse, 2) has no accepted medicinal value in treatment in the United States, and 3) evidence that there is a general lack of accepted safety for its use even under medical supervision.”
Source: The DEA Position on Marijuana, January 2011
Federal Government
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December 13, 2012
• 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.”
Medical Marijuana
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December 13, 2012
• Scheduled to become effective sometime in January. • 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.
Colorado
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December 13, 2012
• 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.”
Colorado’s Law and the Workplace
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December 13, 2012
• “The voters have spoken and we have to respect their will,” said Colorado Governer Hickenlooper in a written statement released by his office.
• "This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or Goldfish too quickly," he said, referring to two snack food products.
Source: CNN, November 8, 2012
Not so fast…
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December 13, 2012
• Washington’s law went into effect December 6. • 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 is treated with consequences that are equivalent to a 0.08 percent blood-alcohol level for driving under the influence.
Washington
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December 13, 2012
• Detroit voters approved removing local criminal penalties related to the possession of up to one ounce of marijuana by adults over age 21 while on private property.
• Flint approved a citizens’ initiative to amend the city code so that the possession of up to one ounce of marijuana or cannabis paraphernalia by those age 19 or older while on private property is no longer a criminal offense.
• Grand Rapids Proposal 2 allows local law enforcement the discretion to ticket first-time marijuana offenders with a civil citation, punishable by a $25 fine and no criminal record.
• Ypsilanti voters decided on a municipal proposal to make the local enforcement of marijuana possession offenses the city’s lowest law enforcement priority.
• How does Wal-Mart v. Casias (Battlecreek) factor in?
Michigan
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December 13, 2012
• Written report authored by Bill Current available online at www.StateDrugTestingLaws.com/marijuana
Additional Information
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December 13, 2012
Synthetic Cannabinoids
December 13, 2012
• 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 Cannabinoids
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December 13, 2012
• 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.
Spice
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December 13, 2012
• 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 6,959 in 2011 (639 calls were received in January 2021 alone.
• In 2011, 11.4 percent of 12th graders reporting using K2/Spice 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.”
Spice
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December 13, 2012
• According to the DEA, there are 1,000 synthetic drug makers in the U.S. alone.
• Approximately a $121 billion annual market for recreational drugs (Cato Institute)
• Illicit “incense” business generates as much as $5 billion annually according to the North American Herbal Incense Trade Association which has 650+ members including manufacturers, wholesalers and retailers.
• Drug courts have shown a 15 percent positive rate for synthetic cannabinoids.
• Probation Officers and Counselors report admission of use from cases that they are working.
Spice is here to stay, at least for a while.
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December 13, 2012
• The Synthetic Drug Abuse Prevention Act of 2012 was 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.
Source: www.justice.gov/dea/pubs/pressrel/pr030111.html DATIA Focus: The Next High: Synthetic Marijuana & Other Designer Drugs, 6/11
Federal Laws
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December 13, 2012
• 41 states have banned synthetic cannabinoids • 42 states have banned substituted cathinones (bath
salts) • 44 states have banned both synthetic cannabinoids
and substituted cathinones
Source: National Conference of State Legislatures www.ncsl.org/issues-research/justice/synthetic-drug-threats.aspx
State Laws
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December 13, 2012
What Employers Can Do
December 13, 2012
• Know the laws • Written Policy • Drug Testing
What Employers Can Do
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December 13, 2012
• Basic Principle #1 All laws apply.
• Basic Principle #2 Employers have rights.
• Basic Principle #3 Focus on what you can do rather what you cannot do.
Know the Laws
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December 13, 2012
• ODAPC Notice released December 3, 2012 • 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.
• Marijuana remains a Schedule I drug in the Controlled Substances Act and the use of marijuana is not tolerated under the Department of Transportation’s drug testing regulations.
Source: http://content.govdelivery.com/bulletins/gd/USDOT-5fa546
DOT ‘Recreational’ Marijuana Notice
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December 13, 2012
• 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 have 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)
Written Policy
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December 13, 2012
• Employers can test for marijuana. • Pre-employment drug testing is legal.
– Urine, oral fluid and hair testing • 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.
Drug Testing
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December 13, 2012
• Marijuana use is a growing problem in the U.S. • It has a direct impact on the workplace and safety. • Laws that legalize marijuana use, either for recreational
or medicinal use, complicate employers’ efforts to maintain drug-free workplaces.
• The federal government still considers marijuana a Schedule 1 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.
Conclusion
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December 13, 2012
www.EmployerSolutions.com
Bill Current www.StateDrugTestingLaws.com
Questions
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