2016 Legal Update. Faye Caldwell SAPAA Conference September 16, 2016

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1 2016 Legal Update Faye Caldwell SAPAA Conference September 16, 2016

2 Marijuana: Terms and Definitions O THC: Tetrahydrocannabinol Psychoactive O CBD: cannabidiol Non-psychoactive Common medical benefits: Anticonvulsant, anti- inflammatory, antipsychotic/ anxiolytic/anti-depressant, anticancer (combats tumor and cancer cells), anti-oxidant

3 Medical Marijuana Today: State Laws O 26 states, D.C. and 2 U.S. territories (Guam and Puerto Rico) have comprehensive medical marijuana laws O Additional 16 states have low THC/high CBD laws Laws allow use of low THC, high CBD products for medical purposes in limited situations or as a legal defense Total of 42 states + D.C. + 2 U.S. territories have some form of legally recognized marijuana for medicinal purposes

4 Recreational Marijuana Today: State Laws O 4 States + D.C. have recreational marijuana Regulates marijuana like alcohol: laws allow adults 21+ to lawfully use/possess certain amounts of marijuana All recreational states also have comprehensive medical marijuana laws O Some cities have legalized possession of marijuana by voter initiative even in states where illegal

5 Marijuana Today: Medical, Recreational, & CBD

6 Marijuana Legislation 2016 O Introduction of marijuana legislation in 2016 Recreational Legislation: at least 18 states At least 14 failed 2016 ballot: Up to 9 Medical Legislation: at least 19 states

7 Medical Marijuana: State Law Trends O Providing Explicit Employee Protections O Limiting Methods of Ingestion Most recent legislation O Minnesota O New York O Louisiana (2015/2016) O Pennsylvania (2016) O Ohio (2016) O Including PTSD as a Qualifying Condition

8 Louisiana O SB 271: amends law passed in 2015 Changes prescribed to recommended O Prohibits smoking O THC levels must be reduced to the lowest acceptable therapeutic levels available through scientifically accepted methods O Still current issues for implementation

9 New York O Implemented January 2016 O Prohibits Smoking O Employment Protections Certified patients and caregivers shall not be subject to penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau solely for certified medical use or for any other action/conduct in accordance with act Certified patients deemed to have a disability under New York State Human Rights Law Employer may enforce policy of prohibiting employee from performing employment duties while impaired by controlled substance

10 Pennsylvania O Signed by Governor April 17, 2016 O Prohibits smoking O Employment Protections May not discharge, threaten, refuse to hire, discriminate or retaliate against employee regarding compensation, terms, conditions, location or privileges solely on basis of status to use medical marijuana NOT required to accommodate use on property/premises of place of employment May discipline employee under the influence in workplace or for working under the influence when conduct falls below standard of care normally accepted for that position Does not define under the influence or standard of care Silent on whether can rely on positive test for adverse action alone or as evidence of impairmentappears to require contemporaneous documentation of characteristics of physical impairment for adverse action Includes specific identification for some types of safety sensitive functions that cannot be performed w/ more than 10 ng/ml of active THC in blood

11 Ohio O Effective September 6, 2016 O Prohibits smoking Permits use in form of oils, edibles, plant material, tinctures, patches and vapor O Explicitly provides no employee protections Employers have right to establish and enforce zero-tolerance drug testing policies and law does not give employees right to sue employer for taking action related to use of medical marijuana Not required to permit/accommodate employee s use, possession, distribution of medical marijuana; Can terminate/refuse to hire because of use, possession, distribution of med marijuana Unemployment: employer has just cause to fire for use of medical marijuana in violation of employer s drug policy Workers Comp: employee may be deemed ineligible for benefits if under the influence of marijuana at time of injury and use was cause of injury

12 2016 Proposed Legislation: Employment Protections New Jersey: S 2161 O Would prohibit adverse employment action based on cardholder status or positive test for marijuana unless establishes by preponderance of evidence use impaired ability to perform job responsibilities O 5/9/2016: Introduced in Senate, Referred to Senate Health, Human Services and Senior Citizens Committee Rhode Island: HB 7807 O Would have made it unlawful to terminate on basis of positive test unless possessed or impaired on premises of place of employment or during hours of employment O Added provision authorizing action for civil liability O Held for further study; legislature adjourned

13 2016 Proposed Legislation West Virginia O Would have created drug free workplaces act O House judiciary committee 3/1/2016

14 Connecticut: Statute O Prohibits refusing to hire, discharging, penalizing, or threatening employee solely on basis of person s status as qualifying patient or primary caregiver O Does not restrict employer s ability to: Prohibit use of intoxicating substances during work hours; or Discipline employee for being under the influence during work hours

15 Connecticut: Case Law State of Connecticut v. Connecticut Employees Union Independent, (SC 19590) (August 30, 2016) O Public policy of Connecticut does not require termination of state employee for smoking marijuana during work hours Maintenance worker at University of Connecticut Health Center- terminated for violation of Health Center s drug and alcohol testing policy and smoke-free workplace policy after observed smoking marijuana in state van; admitted to smoking Arbitrator found misconduct but determined termination too harsh because policy permitted but did not mandate termination Trial court vacated on public policy grounds CT Supreme Court held public policy did not mandate termination

16 Massachusetts: Statute O Act for the Humanitarian Medical Use of Marijuana: Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment; (law silent on off-duty use) No punishment under state law for qualifying patients; provides protection from state prosecution and penalties Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions

17 Massachusetts: Case Law Barbuto v. Advantage Sales and Marketing, LLC, Civil Action No (Mass. Superior Ct., May 31, 2016) O 1st case challenging Massachusetts Act: Employee w/medical marijuana card terminated after testing positive; filed suit alleging disability discrimination, invasion of privacy, violation of medical marijuana act and regulations, and termination in violation of public policy O Court dismissed disability discrimination, violation of medical marijuana act, and termination in violation of public policy claims No duty to accommodate use of drug illegal under federal law No private right of action under medical marijuana act Act does not evince clear public policy to forbid employer from discharging employee when uses medical marijuana; doesn t restrict employer s ability to discipline employee for medical marijuana O Notice of Appeal filed July 12, 2016

18 New Mexico O Statute provides criminal protections but silent on employment protections O DOH FAQ: statute does not provide employment related protections Garcia v. Tractor Supply, No. 15-cv (D. N.M. Jan. 7, 2016) O Employer no duty to accommodate and no violation of New Mexico law or public policy for termination based on failed test

19 Oregon O Statute does not require an employer to accommodate medical marijuana use in the workplace O 2010: Oregon Supreme Court explicitly found Act provided no protection to employees Emerald Steel Fabricators, Inc., v. Bureau of Labor and Indus., 230 P.3d 518 (Or. 2010)

20 Oregon 2016: Arbitrator reinstates county employee fired for offduty medical marijuana use O Union employee- senior programmer and systems analyst fired after tested positive after reported smelled marijuana on jacket; admitted to using medical marijuana after work O Arbitrator found Contract language and past practices key; no evidence employee used marijuana at work or off-duty use hurt job performance Union contract: required just cause for termination; permitted discipline for off-duty use only when the employee s ability and effectiveness to perform his/her job is impaired; and required progressive discipline process County s drug-free workplace policy contained exception for prescribed drugs: if substance taken under supervision of licensed health care professional and does not present a safety hazard or otherwise adversely impact an employee s performance

21 Washington O Statute provides protections for Criminal and Civil Consequences O 2011: Washington Supreme Court held Act does not provide a cause of action for wrongful termination based on authorized medical marijuana use Roe v. Teletech Customer Care Mgmt., LLC, 257 P.3d 586 (Wash. 2011) O Swaw v. Safeway, Inc., No. C (W.D. Wash. Nov. 20, 2015) No duty to accommodate medical marijuana in drug free workplaces under Washington law even when use outside workplace

22 Montana Montana Cannabis Industry Ass n v. Montana, 2016 Mont. LEXIS 168 (Mont. Feb. 25, 2016) O State law limiting the scope and availability of medical marijuana under Act was upheld by the supreme court

23 Marijuana Today: Federal LawStill Prohibited O While states are passing laws allowing medical and recreational marijuana: Marijuana is still illegal under Federal Law Marijuana is still classified as Schedule I drug by DEA No currently accepted medical use in treatment, lack of accepted safety for use under medical supervision, and high potential for abuse O Medical Marijuana is NOT a legitimate medical explanation under DOT drug testing regulations November 2015 DOT Notice re-affirming issue

24 Medical Marijuana: Federal Law O 2013 DOJ Memo: Guidance on marijuana enforcement DOJ will not intervene with state medical marijuana laws if legalized and implemented effective regulatory measures O 2014: Medical Marijuana Protection Provision in Spending Bill Prohibits DOJ/DEA from using funds or resources to prevent states from implementing their State laws that authorize medical marijuana Defunds raids in states where medical marijuana legal O June 2015: DEA de-funding renewed O July 28, 2015: DEA Chuck Rosenberg: heroin is probably more dangerous than marijuana; agents not prioritizing enforcement

25 Medical Marijuana: Federal Law O May 2015: 1st time Senate Committee voted in favor of pro-marijuana amendment Allows VA to recommend marijuana O June 2015: Federal Budget plan on D.C. Recreational Initiative 71 Federal Budget would prohibit legal sales in DC until 2017; did not roll back Initiative O July 2015: 1st time Senate Panel voted in favor of recreational marijuana in banking O CARERS Act

26 Medical Marijuana: Federal Law O February 2015: Surgeon General We have some preliminary data showing that, for certain medical conditions and symptoms, that marijuana can be helpful O Publications by government citing studies with positive effects NIDA: recognizes effectiveness in killing certain cancer cells NIDA: recognizes effectiveness of CBD O June 2015: eliminated additional requirement of Public Health Service review for non-federal research O April 2016: 1st approved study on effectiveness of marijuana on PTSD in veterans

27 Medical Marijuana: Federal Law O August 11, 2016: DEA denied petitions to reschedule marijuana; research does not support reclassification O FDA/HHS supporting documentation No single reproducible strain of marijuana has gone through entire FDA approval process Insufficient data, lack of information; too many variables (potency, methods of consumption, etc.) Recommended that studies focus on consistent administration and reproducible dosing using methods of ingestion other than smoking Cited studies

28 Medical Marijuana: Federal Law O 8 factors considered (1) Actual/relative potential for abuse SAMHSA 2012 Nat l Survey on Drug Use & Health: marijuana most commonly used illicit drug with 18.9 million Americans using w/in last month (2) Scientific evidence of pharmacological effect (3) State of current scientific knowledge regarding the substance (4) History and current pattern of abuse (5) Scope, duration, and significance of abuse (6) Risk to Public Health (7) Psychic or physiologic dependence liability (8) Whether immediate precursor of other controlled substance

29 Medical Marijuana: Federal Law O But, more importantly, DEA made policy change to remove restrictions and allow more research into effectiveness Effectively ended NIDA monopoly on supply for federal research-manufacturers may apply for registration w/dea for FDA authorized marijuana research; ends NIDA monopoly on supply for federal research O Letter also cited increased research efforts Registrants with DEA to research marijuana more than doubled in past 2 years April 2014: 161 Present: 354 DEA and NIDA increased amount marijuana available for research December 2015: waived regulatory requirements for FDA clinical trials on CBD and have approved every waiver application so far

30 Federal Law 9th Circuit: United States v. McIntosh, No , 3:14-cr-00016MMC-3 (9th Cir. 2016) 10 criminal defendants from CA and WA engaged in manufacture of marijuana facing federal marijuana offenses under CSA O Held DOJ prohibited under Congressional appropriations rider from prosecuting individuals engaged in conduct permitted by state medical marijuana laws and who fully complied w/laws Section 542 of the Consolidated Appropriations Act, Pub. L. No (2015): prohibits DOJ from spending money to prevent states implementation of medical marijuana laws Remanded to district court; Defendants entitled to evidentiary hearings on whether conduct strictly complied w/state law

31 Medical Marijuana and 2nd Amendment 9th Circuit: Wilson v. Lynch, No (9th Cir. Aug. 31, 2016) O Ban on sale of gun to medical marijuana card holder doesn t violate 2nd Amendment right to bear arms Nevada medical marijuana cardholder attempted to buy gun, gun dealer knew she was cardholder and refused based on federal rule banning gun sales to illegal marijuana users 9/21/11 ATF Open Letter: any person who uses marijuana regardless of state legislation authorizing use in unlawful user and should not transfer firearm Plaintiff sued challenging Federal statutes, regulation, and guidance 9th Circuit affirmed dismissal

32 What if marijuana is rescheduled? O Courts that have addressed employment protections generally find no protections but those cases have been in states with no explicit protections and based on classification of marijuana as illegal under federal law O States with legal off-duty use laws Coats v. Dish (Colo. 2015)

33 DNA Testing of DOT Specimens O Case regarding subpoenas/request for DNA testing of DOT specimen FACTS O 2007: donor commercial airline pilot subjected to random test; flew in, delayed collection by 45 minutes Lab A: specimen positive for morphine (8x legal limit), cocaine (63x legal limit), and heroin (49x legal limit) Requested split; lab B reconfirmed O FAA issued emergency order revoking pilot license; donor appealed National Transportation Safety Board (ALJ and full Board) affirmed Upheld by the 11th Circuit

34 DNA Testing of DOT Specimens 2012: Donor filed negligence suit against collection site O Sent 3rd party subpoena to lab A seeking urine specimen for DNA testing O Lab refused citing DOT regulations prohibiting release absent consent; DOT unwilling to consent 40.13(c): a laboratory is prohibited from making a DOT urine specimen available for a DNA test or other types of specimen identity testing (f): a lab must not release or provide a specimen or a part of a specimen to a requesting party, without first obtaining written consent from ODAPC O Laboratory fought subpoena up to supreme court of Florida and won Appellate court quashed order finding federal law prevented discovery w/out DOT consent-lab cannot be ordered to produce the specimen for DNA testing in state law case when prohibited by federal regs absent DOT consent; supreme court denied petition for review

35 DNA Testing of DOT Specimens O 2014: Federal Court of Appeals DC-Donor sued DOT for refusal to consent to release of his urine specimen Argued refusal to release and regulations prohibiting release arbitrary and capricious O 2016: DC Court of Appeals decision Court refused to set aside regulation against releasing urine specimen and found it reasonable O Case supports laboratory cannot turn over DOT specimen for DNA testing without consent

36 OSHA Post-Accident Testing May 2016 Electronic Record Keeping Rule: antidiscrimination and anti-retaliation provisions O Workplaces must establish a reasonable procedure for employees to report workrelated injuries and illnesses promptly and accurately A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness 81 Fed. Reg. 29,691, amending 29 C.F.R (b)(1)(i) O The final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses O Preamble suggests automatic post-accident testing may violate law (81 Fed. Reg. 29,673) Drug-testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use Likely not reasonable to drug-test employee who reports a bee sting, repetitive strain injury, or injury caused by lack of machine guarding or machine/tool malfunction

37 OSHA Post-Accident Testing O July 8, 2016: lawsuit filed TEXO ABC/AGC v. Perez, No (N.D. Tex. July 8, 2016) Industry groups and employers filed suit seeking to block enforcement of anti-retaliation provision/seeking injunction Arguing rule unlawful to extent it prohibits/limits incident- based employer safety incentive programs and/or routine mandatory post-accident drug testing programs O July 13, 2016: OSHA announced 3 month delay in effective date from August 1, 2016 to November 1, 2016 O OSHA answer filed August 19, 2016 O Outcome uncertain?

38 Opioids O Opioid epidemic O 49 states have a prescription drug monitoring law Missouri only state currently without a law on subject At least 16 states have law requiring physician to consult prescription database before prescribing opiates 2012: KY first state to require

39 Opioids O At least 10 states require or recommend drug testing E.g., KY, IN, WA O March 2016: CDC issued national opioid prescribing guidelines O July 22, 2016: Obama signed Comprehensive Addiction and Recovery Act of 2016 to address opioid epidemic (Pub. L ) O August 31, 2016: HHS awards $53 million to help address opioid epidemic (HHS press release) To 44 states, D.C., and 4 tribes

40 Questions? Faye Caldwell Attorney at Law