impact of marijuana legalization in the workplace

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IMPACT OF MARIJUANA LEGALIZATION

IN THE WORKPLACE

2016


SLIDE TITLEIs Marijuana Legal?

2016

• Yes and No. – Under federal law, all marijuana use is illegal. – Some states have legalized certain uses of marijuana.

• Under the federal Controlled Substances Act, 21 U.S.C.S. §§ 801-904, (“CSA”), Cannabis is on the Schedule I list of controlled substances – Schedule I drugs have a high potential for abuse and

dependency, with no recognized medical use or value– Any possession, use, or distribution is a crime


SLIDE TITLEState Law: It’s Complicated

2016

States where medical marijuana is legalStates where medical marijuana is legal an employer must accommodateStates where non-psychoactive use is legalStates where marijuana is legalStates where marijuana is decriminalizedStates where cannabis is prohibited


Text Marijuana is illegal under federal law. What

does that mean if I work for the federal

government?


SLIDE TITLEFederal Government Employer

2016

• Federal employees must follow federal law: all marijuana use is prohibited.

• Thompson v. Dep't of Army, No. SF-0752-11-0551-I-2, 2013 WL 9678484, at *2 (M.S.P.B. June 12, 2013) (employee terminated for possession of marijuana while operating a government owned vehicle noting that although California has decriminalized marijuana, it is still illegal under federal law).


SLIDE TITLEExecutive Order 12564

2016

Executive Order 12564, Drug-Free Federal Workplace, September 15, 1986, mandates:• (a) Federal employees are required to refrain from the use

of illegal drugs; • (b) the use of illegal drugs by Federal employees, whether

on or off duty, is contrary to the efficiency of the service; and

• (c) persons who use illegal drugs are not suitable for Federal employment.


SLIDE TITLEFederal Government Employer

2016

• An applicant for federal employment must disclose marijuana use.


Text Is it true that the government isn’t

prosecuting marijuana offenses?


SLIDE TITLEFederal Government Not Prosecuting?

2016

• Yes. The federal government has exercised its discretion to not prosecute marijuana offenses.

• DOJ August 29, 2013 Guidance Regarding Marijuana Enforcement: Based on assurances from states where marijuana is legalized, DOJ stated that it will defer its right to challenge their legalization laws at this time. “But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department challenge the regulatory scheme themselves in these states.”


Text I work in a state where marijuana has been decriminalized. Can I

fire someone for failing a drug test?


SLIDE TITLEDecriminalization Implications

2016

• Yes, even in states where marijuana has been decriminalized, an employee can be fired for failing a drug test. Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Colo.2015).

• Courts have held that decriminalization is a defense to criminal prosecution and not an affirmative right to use.


Text What are drug testing best practices?


SLIDE TITLEDrug Testing Best Practices

2016

• Comply with state law– Some states require employers to use state-licensed labs

for testing. – Some states have banned random drug testing and blanket

drug testing. • Have it in writing, distribute to employees, and have

them sign it.• Apply testing consistently. • Never take disciplinary action against an employee

without confirming the result via a second test.


Text How do I respond when an employee

contests the legitimacy of a testing center?


SLIDE TITLEThird Party Drug Tester

2016

• Partnering with an experienced and reputable drug testing company will give you comfort that proper procedures have been followed, including:– Random testing– Chain of custody– Privacy – State and federal regulations

• Direct the employee to contact the third party testing provider about its practices.


Text I work in a state where recreational use of

marijuana is legal. Can an employee be terminated for a positive drug test?


SLIDE TITLERecreational Use

2016

• Yes. Even in states where recreational use is legal, an employee can be terminated for marijuana use.

• Just as with decriminalization, recreational use is viewed as a defense to criminal prosecution and not a right.


Text My employer received an accommodation request from an employee to use medical marijuana. Does

medical marijuana have any medicinal benefits?


SLIDE TITLEAccommodation Request

2016

• Yes. Many medical conditions such as glaucoma and epilepsy are ameliorated or treatable with marijuana and also qualify as disabilities under the ADA.

• Marijuana has proven effective to treat:– Muscle spasms caused by multiple sclerosis– Nausea from cancer chemotherapy– Poor appetite and weight loss caused by chronic illness,

such as HIV, or nerve pain– Seizure disorders– Crohn's disease


Text Does the Americans with Disabilities Act require an

employer to accommodate an employee’s use of medical marijuana?


SLIDE TITLEAmericans with Disabilities Act

2016

• No. An employer is not required to accommodate an employee’s use of medical marijuana. – Emerald Steel Fabricators, Inc. v. Bureau of Labor

and Industries, 230 P.3d 518 (Ore. 2010). – James v. City of Costa Mesa, 700 F.3d 394 (9th Cir.

2012). • ADA's protections do not extend to those

currently engaged in the “illegal use of drugs.”



2016

• Medical marijuana laws in Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, Rhode Island, Vermont and Washington explicitly prohibit marijuana use at work, and/or provide that employers need not accommodate any form of marijuana use in the workplace.

• New Jersey, N.J. Stat. Ann. Section 24:6I-14 is explicit, stating that "nothing in this act shall be construed to require ... an employer to accommodate the medical use of marijuana in any workplace."



2016

• State courts in California, Colorado, Washington and Montana, as well as the federal appellate courts for the Sixth and Ninth Circuits, all have held that state medical marijuana laws do not require employers to accommodate medical marijuana use in the workplace.


Text What if I work in a state that requires an accommodation for medical marijuana?


SLIDE TITLEStates that Require an Accommodation

2016

• Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island medical marijuana laws contain anti-discrimination and/or reasonable accommodation provisions addressed to employers.


SLIDE TITLESample State Statute

2016

Del. Code Ann. Tit. 16, §4905A(a)(3). Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following: (a) the person's status as a cardholder; or, (b) a registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.


Text

Can I have a zero tolerance drug policy?


SLIDE TITLEZero Tolerance Drug Policy

2016

• Employers are generally free to set their own drug policies, whether zero tolerance or otherwise.

• But if you work in a state that requires an accommodation for medical marijuana, then you will need flexibility with your zero tolerance policy.

• Unintended consequence: reduction in candidate pool?


SLIDE TITLETips for an Effective Drug Policy

2016

• Written policy acknowledged by employee • Review legality and appropriateness of drug policy

on an annual basis • Apply your policy consistently • Make sure drug testing policies comply with state

and federal law• Make sure your policy states that it applies to

drugs that are illegal under “federal, state, OR local law”


SLIDE TITLEWhat is Wrong with this Drug Policy?

2016

Company A has a zero tolerance drug and alcohol policy. This means that employees, contractors, and consultants are expected to be drug and alcohol free when they report for work and shall remain drug and alcohol free during the performance of their duties.Failure to follow the zero tolerance policy is reason for discipline up to, and including termination of employment.

“Drugs” covered under this policy are defined as illegal under federal, state, and local laws.


SLIDE TITLEWhat is Wrong with this Drug Policy?

2016

Company A has a zero tolerance drug and alcohol policy. This means that employees, contractors, and consultants are expected to be drug and alcohol free when they report for work and shall remain drug and alcohol free during the performance of their duties.Failure to follow the zero tolerance policy is reason for discipline up to, and including termination of employment “Drugs” covered under this policy are defined as illegal under federal, state, and local laws.

to the extent allowable by local law.

or

Signed and acknowledged by employee on x date


SLIDE TITLESample Drug Policy

2016

Company A has a zero tolerance drug policy. This means that employees, contractors, and consultants are expected to be drug free when they report for work and shall remain drug free during the performance of their duties.Failure to follow the zero tolerance policy is reason for discipline up to, and including termination of employment as allowed by state law. Below is a non-exhaustive list of possible ways to violate the zero tolerance drug policy.• Testing positive on a drug test• Reporting to work under the influence of illegal drugs• Use, possession, sale, or solicitation of illegal drugs • Refusal to submit to a drug test• Intentional adulteration of drug test results

*Note – this information is not intended to serve as legal advice*


SLIDE TITLESample Drug Policy Continued

2016

“Drugs” covered under this policy are defined as illegal under federal, state or local laws.

Company A retains the right to drug test its employees in accordance with state law in the following circumstances:• Pre employment• Reasonable suspicion• Post accident• Follow up

<Signed and acknowledged by employee on x date>


Text If an employee is terminated for violating his or her

employer’s drug policy, will he or she qualify for

unemployment benefits?


SLIDE TITLEUnemployment Compensation

2016

• Braska v. Challenge Mfg. Co., 307 Mich. App. 340 (Mich. Ct. App. 2014).

• Beinor v. Indus. Claims Appeals Office of Colo. & serv. Group, Inc., 262 P.3d 970 (Colo. Ct. App. 2011).


Text What best practices can I institute today to protect my employer

from liability?


SLIDE TITLEEmployer Best Practices

2016

• Make sure your policies clearly define illegal drug use to include all drugs made illegal under federal, state or local law.

• Make clear that because marijuana is (still) illegal under federal law, it is considered an illegal drug under your policy.

• Workplace testing policies need updating to ensure that you reserve the right to take adverse action based on a verified positive marijuana test “to the fullest extent permitted by law.”

• Revisit prescription medication policies. • Policies should prohibit all illegal drug use. • Be careful when your alcohol and drug policies are combined.• If applicable for your drug policy, differentiate between CBD (non-

psychoactive) and THC (psychoactive) in the bloodstream.


Text I advise employees.What if my client requires a

medical marijuana accommodation? What best

practices should my client follow?


SLIDE TITLEEmployee Best Practices

2016

• Know your drug policies• Provide clear notice to employer of your need for

accommodation using employer’s stated accommodation process

• Provide medical certification and documentation outlining your need for medical marijuana

• Engage in good faith interactive process with employer• Address any of employer’s alternate accommodation

suggestions


SLIDE TITLEKey Takeaways

2016

• Ensure your zero tolerance drug policies have a carve out for employees who work in states that require an accommodation for medical marijuana

• Annually review drug policies • Faithfully engage in the interactive process


Text

Where is the law headed?


SLIDE TITLELegislative Developments

2016

• In March 2015, Sens. Cory Booker (D-N.J.), Rand Paul (R-Ky.) and Kirsten Gillibrand (D-N.Y.) introduced the Compassionate Access, Research Expansion and Respect States Act– To date, no hearing on the bill has been held

• Appropriation bills


SLIDE TITLEApril 4, 2106 DEA Letter

2016

• April 4, 2016 DEA letter announced it will decide whether marijuana should be reclassified under federal law in the “first half of 2016.”

• The DEA has twice before considered rescheduling marijuana.

• The FDA completed a review of the safety and effectiveness of marijuana which it forwarded to the DEA.


SLIDE TITLEThe Future

2016

• Marijuana eventually be legal at the federal level

• Medical marijuana use be protected under the ADA

• Zero tolerance drug policies fall out of favor


R. Scott Oswald, Managing Principal

R. Scott OswaldThe Employment Law Group,

P.C.888 17th St. NW, 9th FloorWashington, D.C. 20006

888-826-5260injury

@employmentlawgroup.com@TELGLawyers

mailto:[email protected]

mailto:[email protected]