employer policies on medical marijuana use: navigating...

Employer Policies on Medical Marijuana Use: Navigating Conflicting Federal and State Laws Avoiding ADA Liability, Applying Workers' Comp Laws, and Amending Drug Policies

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WEDNESDAY, FEBRUARY 11, 2015

Presenting a live 90-minute webinar with interactive Q&A

Lawrence P. Postol, Partner, Seyfarth Shaw, Washington, D.C.

David L. Zwisler, Of Counsel, Ogletree Deakins, Denver

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Marijuana and The

Workplace – Issues

For Employers And

Employees

Presented by

Lawrence P. Postol, Esquire

SEYFARTH SHAW LLP

975 F Street, N.W.

Washington, DC 20004-1454

(202) 828-5385

[email protected]

5 | Copyright 2015 Seyfarth Shaw LLP | 18832729_1

Presenter

Lawrence P. Postol, Partner

(202) 828-5385

[email protected]

Mr. Postol is a partner in the Washington, DC office of Seyfarth

Shaw, LLP which has offices in Atlanta, Boston, Chicago,

Houston, Los Angeles, New York, Sacramento, San Francisco,

Washington, DC, London, Shanghai, and Australia. Mr. Postol

represents management in employment and labor law matters.

Mr. Postol graduated with distinction from Cornell University in

1973 with a degree in engineering physics, and he graduated

from Cornell Law School in 1976, cum laude, where he was

also an editor of the Cornell Law Review. He is admitted to

practice in the District of Columbia, Virginia and Maryland

federal courts.

Mr. Postol has successfully argued two cases before the United

States Supreme Court and over three dozen cases before the

United States Courts of Appeals.


Drug and Alcohol Testing


Why Should a Company Test Its Applicants

And Employees for Drugs and Alcohol?

• To comply with federal laws and regulations

• To take advantage of state laws that provide: • a workers’ compensation premium reduction to an employer that

complies with its provisions

• protection from liability in connection with an employer’s administration

of its policy

• To provide a safe and productive work environment for its employees, and to protect its customers and other members of the public from hazards that may arise as its employees work on the company’s premises, in the field, or on premises other than those owned by the company


Why Should a Company Test Its Applicants

And Employees for Drugs and Alcohol?

• Testing After Workplace Accident, Since Drug Use Maybe a Defense To A Workers’ Compensation Claim, and The Knowledge of Drug Testing After Accidents Can Have a Positive Effect

• Contractual obligation to a customer


If a Company Wants to Test,

What Should It Do?


Adopt a written drug and alcohol policy with information regarding the following:

The company’s

drug and alcohol

related work rules

Sources of help for

drug abuse and

alcohol misuse

problems

The types of tests it

conducts and who is

subject to testing:

Pre-employment

Reasonable suspicion

Random

Post-accident

Return-to-duty

Follow-up

The consequences

that flow from

testing positive or

committing other

violations of the

policy and

consistently enforce

the policy

The company’s

commitment to

maintain the

confidentiality of test

results and other

medical information

to the greatest extent

possible


What Should It Do?


A company should also:

• Notify applicants during the application process that the company has a policy and inform them of any testing

• If it is adopting a policy for the first time, or modifying an existing policy, tell all employees about the adoption or modification of the policy in advance (preferably at least 30 days)

• Distribute copies of its policy to all employees and have them acknowledge their receipt of the policy


What Should It Do?


State and Local Law

Considerations


State and Local Law Considerations

General Principles:

• Employers should be aware of the various state and local laws governing drug and alcohol testing of employees in order to avoid invasion of privacy, wrongful termination, and other constitutional, common law, and statutory claims

• Although drug and alcohol testing is unregulated in many states and in the District of Columbia, several states and two cities have restricted, either by statute/ordinance or judicial decision, the types of drug and alcohol testing that employers may lawfully conduct and/or the collection and testing procedures that an employer and its service providers must follow in conducting such testing



Types of Drug and Alcohol Testing 1. Pre-employment testing

— Generally, pre-employment drug testing of applicants is lawful. In those states in which such testing is regulated, it is typically limited to those applicants who have been made conditional offers of employment.



2.2. Reasonable suspicion testing

― Employers who have reasonable suspicion, based on specific, contemporaneous objective and articulable facts concerning an employee’s appearance, behavior, speech or body odors, that an employee is using alcohol and/or drugs or is under the influence of alcohol and/or drugs, may require the employee to submit to drug and/or alcohol testing with little or no risk in most jurisdictions if they have given their employees advance notice of such requirement



― Several jurisdictions, including Connecticut, Boulder, Iowa, Maine, Minnesota, Montana, Oklahoma, Rhode Island, San Francisco, and Vermont, have statutes or ordinances that define reasonable suspicion, “cause,” or “ probable cause,” and in some instances place additional minor restrictions on such testing.



3.3. Post-accident testing

― An employer may generally subject employees to post- accident testing

― Some jurisdictions, however, such as Boulder, Connecticut, Maine, Rhode Island, San Francisco, and Vermont, forbid such testing unless the employer also has reasonable suspicion to believe that the employee was under the influence of drugs and/or alcohol at the time of the accident



― Employers who desire to subject employees in

California to post-accident testing are advised to

limit such testing to situations in which they can

show some indicia of causation by the employee

and a threshold level of personal injury, such as

immediate off-site medical treatment, or property

damage

― A few states, such as Iowa and Montana, have

statutorily imposed a threshold level of personal

injury and/or property damage required to subject

employees to post-accident testing



4.4. Random Testing

― Random testing (periodic, suspicionless testing in which employees are selected without advance notice) is the most heavily regulated and scrutinized type of testing

― That said, employees can be subject to random drug and/or alcohol testing by their employers in many states, including in states that have drug and alcohol testing statutes



― In several states, including California, Massachusetts, New Jersey, and West Virginia, the courts balance an employer’s competing or legitimate interests against employees’ privacy rights in determining whether random drug testing is permissible, and have held that random testing should be limited to employees in safety- or security-sensitive positions

― Random testing is regulated by statute, but permitted, in Connecticut, Maine, Minnesota, Montana, and Oklahoma, although the restrictions in the Maine statute cause many employers to refrain from conducting random tests

― Random testing is prohibited in Boulder, Rhode Island, and San Francisco, and is prohibited in Vermont unless the testing is required by federal law or regulation



Other Statutory Restrictions

In addition to placing limits on the types of testing

employers may conduct, some jurisdictions:

• Impose written policy and notice requirements

• Regulate the specimen collection and testing process

• Impose rehabilitation requirements

• Mandate appeal procedures


Medical And Recreational Use Of

Marijuana

• State law: 16 states and the District of Columbia have enacted laws that decriminalize or authorize, to varying degrees, the use of marijuana for medicinal and in some states recreational purposes

• Marijuana Use Still Violates Federal Criminal Law.


Federal Law

1. ADA Does Not Protect Current Use Of Illegal Drugs.

2. ADA Can Protect Past Use If Use Was Due To A Disability - So When Was The Use From A Positive Drug Test?

3. Congress Will Not Change The Federal Law And The President Can Not (Although He Can Limit Enforcement).


Employee’s Status and State Off-Duty

Activities Laws

1. At-Will Employees - No Protection Unless Inconsistent Enforcement By Employer Has Disparate Impact.

2. Collective Bargaining Agreements

A. If Off-Duty Use, Issue Is Whether That Is A “For Cause” Ground For Discipline

B. Arbitrator May Find That Termination Of Employment Is Too Severe A Penalty

C. CBA May Have Drug Testing Provision


Employee’s Status and State Off-Duty

Activities Laws

3. Executives May Have For Cause Contract Clauses

4. State Off-Duty Activities Laws

A. Normally Only Protects Legal Activities

B. Could Be Preempted By Federal Law For Government Contractors


State Law Actions

1. Workers’ Compensation – Medical Marijuana To Treat Work Injury (Michigan allowed)

2. Unemployment Compensation

A. Off-Duty Use Is Not Gross Misconduct So Unemployment Compensation Not Barred By Firing For Off Duty Marijuana Use (New Mexico)

Marijuana and The

Workplace – Issues

For Employers And

Employees

Presented by

Lawrence P. Postol, Esquire

SEYFARTH SHAW LLP

975 F Street, N.W.

Washington, DC 20004-1454

(202) 828-5385

[email protected]

Title Goes Here

Presented By:

David L. Zwisler

303.764.6822

[email protected]

Medical Marijuana Use: Navigating

Conflicting Federal and State Laws

29

A Brief History

Legislation beginning in 1906

Controlled Substances Act of 1970

Cannabis (marijuana) is a classified as a

Schedule 1 drug

No currently accepted medical use and

high potential for abuse

In the same category:

heroin, lysergic acid diethylamide

(LSD), methylenedioxy-

methamphetamine (ecstasy),

methaqualone, and peyote

30

A Brief History

1996 – California Proposition 215 or the

Compassionate Use Act of 1996

Doctors can recommend use

Patients and Primary Caregivers can possess and

cultivate

Gonzales v. Raich

Individuals who were in compliance with State law

were arrested by DEA. In 1998, individuals brought

civil suit against Attorney General alleging that it had

violated the commerce clause.

31

Gonzales v. Raich, 545 U.S. 1 (2005)

Court held that the federal government

may enforce the Controlled Substances

Act’s prohibition on the use of marijuana for medical

reasons against individuals who use marijuana under

the protection of state medical marijuana laws.

Court relied on federal government’s preemption

over laws affecting interstate commerce.

A Brief History

32

THE OGDEN MEMO

Use of marijuana remains illegal

under the Federal Controlled

Substances Act.

BUT, the U.S. DOJ, in October 2009,

stated that it will only target those

users who violate both federal and

state laws.

According to Eric Holder’s official

statement: As a general matter, pursuit of these priorities

should not focus federal resources in your States

on individuals whose actions are in clear and

unambiguous compliance with existing state laws

providing for the medical use of marijuana.

http://www.justice.gov/opa/documents/medical-marijuana.pdf

A Brief History

33

Colorado’s Medical Marijuana Law

34

Colorado’s Medical Marijuana

Law: Amendment 20

Colo. Const., Art. XVIII, Section 14

Passed by voters in 2000.

The stated purpose of the Amendment

was to allow patients with debilitating

medical conditions to assert an

affirmative defense to enforcement of

state drug possession laws.

The proponents of Amendment 20

acknowledged that it did not allow for the

commercial sale of marijuana and

certainly did not provide for commercial

dispensaries or clinics.

35

Why Is This Such a Big Deal?

2010 – Medical Marijuana

Dispensaries in Colorado:

over 1,100

2010 - Starbucks in Colorado: 208 Alan Gaithright, Denver Pot Dispensaries: 390; Colo. Starbucks: 208, 7News (January 4, 2010).

Between 2000 and 2008, Colorado issued approximately

2,000 medical marijuana cards. By the middle of

December in 2009, the number grew to approximately

60,000. Jim Spellman, Colorado’s Green Rush: Medical Marijuana, CNN (December 14, 2009).

36

States with Medical Marijuana

Laws

Alaska

Arizona

California

Colorado

Connecticut

D.C.

Delaware

Hawaii

Illinois

Maine

Maryland

Massachusetts

Michigan

Minnesota

Montana

Nevada

New

Hampshire

New Jersey

New Mexico

New York

Oregon

Rhode Island

Vermont

Washington

37

Number of Registered Medical

Marijuana Patients California: 572,762 (14.9 patients per 1,000 residents)

Colorado: 111,804 (21.2)

Michigan: 146,811 (14.8)

Washington: 103,444 (14.8)

Oregon: 69,429 (17.7)

TOTAL: 1,137,069 (7.7 patients per 1,000 residents) ProCon.org (11/13/2014) Number of Legal Medical Marijuana Patients

http://medicalmarijuana.procon.org/view.resource.php?resourceID=005889

38

An example

Colorado Amendment 20

(2) (c)(ii) [A physician may] provide a patient with written

documentation. . . stating that the patient has a debilitating

medical condition and might benefit from the medical use of

marijuana.

(5)(a) No patient shall:

(i) Engage in the medical use of marijuana in a way that

endangers the health or well-being of any person; or

(ii) Engage in the medical use of marijuana in plain view

of, or in a place open to, the general public.

(10)(b) Nothing in this section shall require any employer to

accommodate the medical use of marijuana in any work

place.

39

DOT “Medical” Marijuana Notice – October 2009

“We want to make it perfectly clear that the DOJ

guidelines will have no bearing on the Department of

Transportation’s regulated drug testing program. We

will not change our regulated drug testing program

based upon these guidelines to Federal prosecutors.”

Drug Free Workplace Act

Federal contractors and recipients of federal grants

must prohibit the use of marijuana as a condition of

participation.

Federal Agencies

40

Realities of the testing process

“Typical” testing process

Confirm chain of custody

Confirm sample has not been altered,

adulterated, diluted, tampered with or

damaged

Immunoassay test (50 ng/ml)

Confirmatory gas chromatography/mass

spectrometry (GC/MS) (15 ng/ml)

Review by Medical Review Officer

41

Realities of the testing process

SAMSHA Medical Review Officer

Donor claims the results are from taking a prescription:

Marinol – “There are no other prescription or over-the-counter

medications that contain cannabinoids or any other substances that

might be identified as or metabolized to THC or its acid metabolite.”

Passive inhalation:

“Passive inhalation of marijuana smoke does occur and can result

in detectable levels of THC and its metabolites in urine. Clinical

studies have shown, however, that it is highly unlikely that a

nonsmoking individual could unknowingly inhale sufficient smoke by

passive inhalation to result in a high enough drug concentration in

urine for detection at the cutoff levels used in the Federal program.”

42

State law issues The use/possession of marijuana is still illegal under

federal law.

No state (except Arizona) has taken any specific

position requiring employers to accommodate the

use of medical marijuana in the workplace. Workers Compensation (state specific)

Some states, such as Colorado, create a presumption of

being under the influence at work if an employee fails a test.

Some states, such as Connecticut, prohibit the

presumption.

Unemployment (state specific)

43

Case Law

44

Some cases

Gonzales v. Raich

Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 978

(Colo. App. 2011). Medical marijuana use was not “lawful

activity” under Colorado law. Amendment did not

establish state constitutional right to state-licensed

medical marijuana use, but rather created an affirmative

defense from prosecution.)

Ross v. RagingWire Telecommunications, Inc., 174 P.3d

200, 204 (Cal. 2008). “No state law could completely

legalize marijuana for medical purposes because the drug

remains illegal under federal law, even for medical users.”

45

Some cases Coates v. Dish Network, LLC., 303 P.3d 147 (Colo.App.

2013).

“Thus, because plaintiff’s state-licensed medical marijuana use was,

at the time of his termination, subject to and prohibited by federal

law, we conclude that it was not “lawful activity” for the purposes of

section 24-34-402.5.”

Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir.

2012)

“The district court concluded, therefore, that private employees are

not protected from disciplinary action as a result of their use of

medical marijuana, nor are private employers required to

accommodate the use of medical marijuana in the workplace.”

Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562

(Mont. 2009)

“The [Medical Marijuana Act] MMA specifically provides that it

cannot be construed to require employers ‘to accommodate the

medical use of marijuana in any workplace.’”

46

Some cases

Coors v. MillerCoors, Inc., Civil Action No. 12-cv-02471-

JLK (D. Colo. Aug. 21, 2013).

Disability claim – “Therefore, though Mr. Curry may never have

used medical marijuana absent his disability, MillerCoors did not

unlawfully terminate him “because of” his disability.”

Invasion of privacy claim (Policy) – “ I will not here consider a stand-

alone constitutionality claim. . . . Even were Mr. Curry to have

disclosed his status as a medical marijuana patient, an employer's

request for such information does not constitute ‘an unreasonable

manner of intrusion or an intrusion for an unwarranted purpose.’”

Invasion of privacy (Drug Test) – “There is no allegation suggesting

that the mouth swab test was anything other than minimally

intrusive. Because Mr. Curry does not allege that the method of the

test—swabbing for saliva—is highly offensive and because I see no

way a jury could reasonably consider the test highly intrusive, I find

Mr. Curry's claim fails. ”

47

Collective Bargaining

Agreements

Drug testing is a mandatory subject of

bargaining.

Arbitration requirements

Eastern Associated Coal v. Mine Workers,

531 U.S. 57 (U.S. 2000) “We recognize that reasonable people can differ as to

whether reinstatement or discharge is the more appropriate remedy here. But both employer and union have agreed to entrust this remedial decision to an previous arbitrator. We cannot find in the Act, the regulations, or any other law or legal precedent an explicit, well defined, dominant public policy to which the arbitrator's decision runs contrary.”

48

Practice Pointers

There is no requirement under state law (other than

Arizona) to accommodate the use of medical

marijuana.

No state law (except Arizona) or court decision has

mandated an employer accommodate the use of

medical marijuana.

Employers (except in Arizona) may still enforce drug

testing policies to exclude employees who test

positively for marijuana.

Confusion over the use of medical marijuana exists

– consider a communication to employees.

Drug testing policies must be uniformly enforced.

49

Practice Pointers (cont.’d)

There is absolutely no benefit for employers to

inquire into, maintain records concerning, or discuss

whether or not an employee is a medical marijuana

user or possesses a valid registration card.

The marijuana lobby is actively looking for test

cases. The ACLU is doing its best to help them out.

When employees request a “smoking room” for

medical marijuana (and many have) the answer is

“no” (even in Arizona).

50

Title Goes Here

Presented By:

David L. Zwisler

303.764.6822

[email protected]

Medical Marijuana Use: Navigating

Conflicting Federal and State Laws

employer policies on medical marijuana use: navigating...

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