Legalized Marijuana & Its Impact on Employment

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1 Legalized Marijuana & Its Impact on Employment April 14, 2019 ABVE Conference 2019 Tucson, AZ Presented by Lisa Suhonos, MS, CDMS, CEAS, IPEC, ABVE/D Vocational Consultant & Expert Suhonos Occupational Services, Inc.

2 Session Agenda The Legal Marijuana Empire: Global & U.S. Perspectives U.S. Federal Laws related to Medical Marijuana State of the Union- Where s it legal? Marijuana related State Court Cases Implications on Employment Marijuana - New Employment Sector Barriers to Employment? Implications for Forensic Analysis & Testimony

The Legal Marijuana Empire: Global Legalizing Medical Marijuana starts with agreed upon regulations- Global Regulations. Let s follow the money and governmental involvement.

3 The Legal Marijuana Empire: Global Legalizing Medical Marijuana starts with agreed upon regulations- Global Regulations. Let s follow the money and governmental involvement. For countries considering or having legalized Medical Marijuana use, Global Regulation outlines the following: Age for consumption Maximum quantity per person and tax % Number of plants per person per year Consumption in Public places

4 GLOBAL REGULATION FOR MEDICAL USE Country/City CANADA URUGUAY Amsterdam/ Holland AGE Maximum Possession 30 grams 40 grams 5 grams Tax % 5-15% none none Number of plants Use 4 medical 6 medical Prohibited medical Public places Allowed in some provinces Allowed with conditional permits Prohibited

The Legal Marijuana Empire: North America CANADA Canada as legalized medicinal use for the past 17 years, resulting in market regulation & leading to reliable high

5 The Legal Marijuana Empire: North America CANADA Canada as legalized medicinal use for the past 17 years, resulting in market regulation & leading to reliable high quality product. Has regulated cultivation. There is Corporate Involvement & Income Reported. Canadian Industry Leaders: Canopy Growth, Tilray, Cronos Group, Aurora

Closer Look- North America Founded in 2013 by Bruce Linton, CANOPY GROWTH serves patients with high quality medical marijuana and today is the largest production company in the world for legal

6 Closer Look- North America Founded in 2013 by Bruce Linton, CANOPY GROWTH serves patients with high quality medical marijuana and today is the largest production company in the world for legal marijuana, with operations in 12 countries and 5 continents. It s valued at $43.50 per share on the Canadian Stock Market. In 2018, it had an income of $78 M. In 2017 & 2018, Constellation Brands (US owned) purchased 38% of Canopy Growth shares for $4.2 M. In 2018, Canada legalized recreational use, an estimated market of $4 M. Other Marijuana Publicly Traded Canadian Corporations: TILRAY 2017 Revenue $20.5 M., Trading since June 2018, Market valued at $9 Billion CRONOS GROUP September, 2018 Revenue $8.7 M., Market valued at $2.81 Billion AURORA June 2018 Revenue $41 M., Market valued at $5 Billion. These corporations exemplify a new growing employment sector with tax revenue for the government.

7 The Legal Marijuana Empire: Mexico 2015 Legislation takes preliminary steps for consideration of personal cultivation and recreational use Congress considers proposals for medical related purposes. But warns that changes are needed in; General Health Law and Penal Codes Secretary of Government, Olga Cordero, proposal to Senate: New law to regulate & control cannabis; amongst its uses are, commercial, therapy, palliative, and scientific. Scientific use need an authorized protocol of investigation for medicines with cannabis or derivatives that can only be listed and promoted via scientific publications. Commercial use has to be determined, i.e., pharmaceutical, therapy, palliative, herbs, adult or industrial.

8 Closer Look- Mexico Mexico s Employment Sector Growth Opportunities: 10/31/2018 Mexican Supreme Court renders decision that citizens can solicit government permission to cultivate & consume recreational marijuana. 11/5/ licenses issued for use of products with cannabis. CBD and its subsidiary HempMeds (a 2012 California based company),in conjunction with RHC FARMA (a 2012 Mexican pharmaceutical company that has been developing botanical and herbal medicines), plans to sell these products in Europe, Canada & US, with a 2018 projection of $50 Million in sales.

9 The Legal Marijuana Empire: United States U.S. Federal Law States: US outlawed addictive drugs in early 1900 s The International Opium Convention (11/23/1912) helped lead international agreements regulating trade Federal Food, Drug, and Cosmetic Act (1938), the beginning of 200+laws of public health and consumer protections. 1969, President Richard Nixon and Attorney General, John Mitchell, announced preparing a new comprehensive measure to more effectively meet the narcotic and dangerous drug problems at the federal level by combining all existing federal laws into a single new statute.

Health Act (1970) 4) Federal Department of Transportation (DOT)

10 U.S. Federal Laws Overview 1) Controlled Substances Act (CSA) May ) Drug-Free Workplace Act (1988) 3) Occupational Safety & Health Act (1970) 4) Federal Department of Transportation (DOT) ) Federal Motor Carrier Safety Administration Guidance

11 Controlled Substances Act (CSA) May 1971 Establishes US drug policy regarding manufacturing, importation, possession, use, and distribution of certain substances is regulated. It expanded Federal Law Enforcement pertaining to controlled substances, i.e.; Drug Enforcement Administration (DEA)combining, Bureau of Narcotics & Dangerous Drugs (BNDD) and Customs Drug Agents. Subchapter 1 lists chemicals used in the manufacture of controlled substances, and differentiates lawful and unlawful manufacturing, distribution, and possession of controlled substances, including possession of Schedule I drugs for personal use; also specifies dollar amounts of fines and durations of prison terms for violations. It defines schedules of controlled substances I-V. Subchapter 2 describes the laws for exportation and importation of controlled substances, specifies fines and prison terms for violations.

12 Controlled Substances Act - Schedules I-V Potential for Abuse Accepted Medical Use? Potential for Addiction Schedule I (marijuana, heroin, LSD) Schedule II (Cocaine, Fentanyl, Methadone, Codeine) Schedule III (Anabolic Steroids, Ketamine, Benzphetamine HCI) High None Drug not safe for use, even under medical supervision High Yes; sometimes allowed with severe restrictions Abusing the drug can cause severe physical & mental addiction Medium YES Abusing the drug can cause severe mental addiction, or moderate physical addiction Schedule IV (Xanax, Soma) Schedule V (Appetite Suppressant, Lyrica, Cough Suppressant) Low Lowest Yes Yes Abusing the drug may lead to mild mental or physical addiction

Drug-Free Workplace Act (1988) Requires employers who are federal contractors to maintain a drug-free workplace (CSA-Schedule I, Marijuana), and thus, the act prohibits use & possession of marijuana

13 Drug-Free Workplace Act (1988) Requires employers who are federal contractors to maintain a drug-free workplace (CSA-Schedule I, Marijuana), and thus, the act prohibits use & possession of marijuana in the workplace. Department of Labor No drug testing required, but it does not preclude employers from conducting drug testing programs. Employees that have been terminated for possession of legally recommended marijuana under State law(s) do not have any legal protection against such dismissal.

14 Drug-Free Workplace Act- 6 Employer Requirements 1) Publish & distribute information; use of a controlled substance is prohibited in the workplace and specify actions that will be taken against employees who violate the policy 2) Create a drug-free awareness designed to make employees aware of (a) the dangers of drug abuse in the workplace; (b) the policy of maintaining a drug-free workplace; (c) any available drug counseling, rehabilitation, and employee assistance programs; and (d) the penalties that may be imposed upon employees for drug abuse violations 3) Notify employees that as a condition of employment on a Federal contract or grant, the employee must (a) abide by the terms of the policy statement; and (b) notify the employer, within five calendar days, if he or she is convicted of a criminal drug violation in the workplace; 4) Alert the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace; 5) Impose penalty or require participation in assistance program or drug rehabilitation 6) Maintain good faith efforts, to maintain a drug-free workplace under the requirements of the Act.

Occupational Safety & Health Act (1970) Requires that employers ensure their workplaces have appropriate measures of safety for all employees.

15 Occupational Safety & Health Act (1970) Requires that employers ensure their workplaces have appropriate measures of safety for all employees. The primary goal of this law is to reduce workplace hazards and implement safety and health programs for both employers and their employees. Employers must recognize hazards that are causing or are likely to cause death or serious physical harm. Impairment is subjective and a legally risky measure for employers, as an employee may not be impaired at the time of legitimate accident at work, but test positive for a drug which could cause impairment. However, liability for the employer could be significant.

Federal Department of Transportation 2009 (DOT) DOT issued guidelines, which prohibits medical marijuana for transportation workers in safety sensitive jobs; pilots, school bus drivers, subway

16 Federal Department of Transportation 2009 (DOT) DOT issued guidelines, which prohibits medical marijuana for transportation workers in safety sensitive jobs; pilots, school bus drivers, subway operators, ship captains, fire-armed transit security workers. DOT subjects these workers to regular and/or random drug testing. Prohibition exists regardless of State Laws which decriminalize the possession and use of medical marijuana.

Federal Motor Carrier Safety Administration Guidance 382.

controlled substances tests conducted under this part are unannounced.

17 Federal Motor Carrier Safety Administration Guidance (K) (random drug testing) (1) Each employer shall ensure that random alcohol and controlled substances tests conducted under this part are unannounced. (2) Each employer shall ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year.

State of the Union 2018 30 States & DC have legalized Medical and/or Recreational Marijuana Medicinal Marijuana refers to the use of cannabis or marijuana, including constituents of cannabis, THC,

18 State of the Union States & DC have legalized Medical and/or Recreational Marijuana Medicinal Marijuana refers to the use of cannabis or marijuana, including constituents of cannabis, THC, and other cannabinoids, as a physician-recommended form of medicine or herbal therapy. Recreational drug refers to any substance with pharmacologic effects that is taken voluntarily not for medicinal purposes, but for personal pleasure or satisfaction.

19 Examples of State Court Cases Ruling th Circuit Conant v. Walters court ruled no justification for DEA policy as it violated 1 st Amendment rights of free speech for physicians regarding possible treatment. Ruling 2008 California Supreme Court, Ross v. Raging Wire Telecom, Inc., found; not discriminatory to fire an employee using medical marijuana, no need to accommodate employee even if smoked or ingested away from workplace. Decision The court held that a recommendation as opposed to a prescription is fine. The court issued an injunction and blocked DEA patient recommendation for marijuana. Decision California law permits an employer to require pre-employment drug tests and take illegal drug use into consideration in making employment decisions. California 1 st State to legalize medical marijuana (1996) under the California Compassionate Use Act (Feds responded take away medical license of prescribing doctor. DEA saw no difference in prescribing versus recommending marijuana). October 2009 DOJ issued a policy memo stating legal users of marijuana (under State medical laws) would not be a high priority for prosecution, unless to pursue large networks.

20 Ruling 2009 Montana Supreme Court, Johnson v. Columbia Falls Aluminum Co., Inc.- Court found, employer not required to accommodate under ADA nor Montana Human Rights Act, no workplace protection was available under either Federal or State disability laws. Ruling 2010 Oregon Supreme Court, Emerald Steel Fabricators v. Bureau of Labor & Industryruled FEDERAL criminal law takes precedence over Oregon Medical Marijuana Law, because Oregon medical marijuana statute is silent on the issue of employment discrimination. Employers do not have to accommodate for marijuana use. Decision Employee was suspended from work due to testing positive for marijuana. Employer provided last chance agreement, outlining conditions for return to work, non-positive marijuana test. Employee refused and was terminated. Employee argued accommodation under ADA, court rejected. The Montana Medical Marijuana Act, clearly states that the law cannot be construed to require employers to accommodate the medical use of marijuana in the workplace. Decision Employee sought protection under Oregon Disability Law which prohibits discharging employees for previous illegal drug use or for participating in a drug rehabilitation program. But Oregon Disability Law still permits discharge for current use of illegal drug, State or Federal.

21 Ruling 2009 Washington State Court of Appeals Roe v. Teletech Customer Care Management, LLC - Court affirmed trial court s ruling that Washington s Medical Use of Marijuana Act (NUMA) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on employer s drug testing policies, employee failed drug test. Ruling 2011 Michigan Court, Garcia v. Walmart Stores- Court dismissed wrongful termination against Walmart. Employer successfully argued that Michigan Medical Marijuana Act (MMMA) is preempted by both CSA and ADA. MMMA neither creates any kind of private right of action nor confers any employment protection relative to the use of medical marijuana. The employee had inoperable brain tumor and sinus cancer, he was terminated for positive test for legal medical marijuana. Decision NUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act. NUMA merely protects Qualified patients and doctors from State criminal prosecution related to authorizing medical use of marijuana. Decision MMMA does not state that private employees are protected from disciplinary actions by their employers for their use of medical marijuana nor does it require that employers accommodate the use of medical marijuana in the workplace. It found that the overall structure and purpose of the Act is to address potential criminal prosecution or other adverse actions by the State and nothing more. Michigan Statute is silent on employment.

22 State Legislation 2010 New Jersey Compassionate Use of Medical Marijuana Act designed to offer protection to patients and doctors from arrest and prosecution not intended to confer with any work rights. Nothing in Act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace Arizona Medical Marijuana Act states that an employer does not have to allow an employee to use or possess medical marijuana while on the job and that an employer can fire an employee for being impaired on the job, whether medical marijuana or other substances. However, employer cannot terminate an employee for testing positive for marijuana on a drug test, unless failure to do so would result in monetary loss or licensing penalties under federal law. The Act does not provide any legal standard or guidance to determine when testing positive stops and impairment starts Nevada Medical Marijuana Program (Code 453A) issue of accommodation for medical marijuana needs, as long as the accommodation would not; 1) pose a threat of harm or danger to persons or property or impose undue hardship on employer, 2) prohibit the employee from fulfilling any and all job responsibilities. (New York takes similar stance.)

23 State Court Cases 2017 Massachusetts Supreme Court, Barbuto v. Advantage Sales& Marketing, LLC. Massachusetts Supreme Court was asked to interpret the State s Disability Discrimination Statute as it relates to the use of medical marijuana that was deemed legal by the State. The court held that protections extended to qualified handicapped employees, who lawfully used medical marijuana to treat their handicaps Rhode Island Supreme Court, also issued a decision pushing forward protections for medical marijuana card users, Callaghan v. Darlington Fabrics & The Moore Co. Employer attempted to argue that even though it could not discriminate against a potential employee based on the cardholder s actual use of medical marijuana. It could decide not to hire. The Court disagreed and issued a decision pushing forward protections for medical marijuana card users.

Employment Benefits Health Plan Coverage of Medical Marijuana Carriers are not required to provide coverage for

24 CA Legalizes Recreational Use Jan Court s ruling stand to allow employers to use and enforce zero tolerance policies. Employment Benefits Health Plan Coverage of Medical Marijuana Carriers are not required to provide coverage for medical marijuana in any state where it is legal, because of Federal Schedule I. Benefits paid to participants for medical marijuana are taxable by IRS. Not excusable from income and taxable as reported in W-2 or 1099.

25 Implications on Employment Zero tolerance policies, even if employer is not a federal contractor, Employer can still institute zero tolerance policy for those workers who are in Safety-sensitive positions, meaning an employee is responsible for the safety of oneself or others, i.e., driving machinery. Commercial Driver License holders are regulated by the Omnibus Transportation Employee Safety Act (1991), which requires all employers drug test employees whose job duties require a Commercial Driver License. Drug Testing

26 Implications on Employment Drug Testing THC metabolizes quickly into a compound that can remain in a user s body for weeks after marijuana consumption. Blood and Saliva tests can provide more accurate impairment reading. But, blood tests are more invasive and may violate employee privacy rights. Saliva tests are developing quickly and more accessible. Reasonable cause testing for existing employees, i.e., red eyes, distant gaze, strong aroma of marijuana, indicators that an employee is under the influence of marijuana.

27 Workers Compensation Benefits Compensable Marijuana in Comp? New Mexico, Connecticut, Maine, Minnesota, New Jersey have found that medical marijuana is a permissible workers compensation treatment that requires insurer reimbursement. In Noll v. Lepage Bakeries, Inc., the Supreme Court of Maine recently overturned a previous Maine Workers Compensation Board decision ordering a self-insured employer to reimburse an injured worker for costs associated with the reasonable and proper medical use of marijuana ( ).

28 Reasonable Accommodation In States where there is a duty to accommodate an employee with medical marijuana, employers must usually consider the specific needs of the job as well as any applicable regulations before acting. Some States have enacted laws specifically to medical marijuana accommodation, i.e., New York a certified patient, shall be deemed to be having a disability under the State s Human Rights Law. Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota & Nevada, also have laws containing either anti-discrimination or reasonable accommodation provisions applicable to employers, with exception to Drug- Free Workplace Act.

Marijuana Industry - New Employment Sector Canada best exemplifies the recent need for workers in its cultivation production areas, processing, packaging and distribution centers.

29 Marijuana Industry - New Employment Sector Canada best exemplifies the recent need for workers in its cultivation production areas, processing, packaging and distribution centers. US, states such as Colorado report a growth in employment opportunities, as well as, governmental employment and taxation revenue. Employment projections in this industry are expected to grow rapidly as the product becomes more diversified; herbal therapy, edibles and drinks, have corporations investing largely and eager to bring approved products to market.

30 Marijuana-A barrier to employment? Federal Employment Yes An illegal Schedule I substance. State Employment in view of different state laws Yes, as seen in our sampling of court cases, it continues to pose barriers in obtaining employment and keeping employment. Private sector employment positions impacted by Federal/State mandates such as; Drug-Free Workplace Act, Zero tolerance policies, Safety Sensitive positions, drug testing pre and post-employment and employer policies.

What are Employers to do? Employers must be familiar with their State s enacted Statutes and local laws, legal consultation in both medicinal and recreational use of marijuana is growing quickly.

31 What are Employers to do? Employers must be familiar with their State s enacted Statutes and local laws, legal consultation in both medicinal and recreational use of marijuana is growing quickly. Human Resources Associations are recommending employers have workplace policies that clearly state that employees can t be drunk or high at work. Train and inform your employees on employment policies, workers need to know they cannot have a marijuana edible at lunch and go back to work. Review employment policies and job descriptions.

32 How is this applicable to VE s? Complex cases often present medical chronic pain issues (commonly treated by opiates) and patient self-procured marijuana with increase in psychological symptoms Cases where individual is a habitual recreational marijuana user, postinjury continues use of marijuana, plus prescribed medications, issues of cognitive impairment, memory loss, etc. Referral sources want your expertise to resolve case issues, federal and state laws pose many challenges in an employment setting, including reasonable accommodation, job re-structuring, etc.

Marijuana factors on Vocational Research & Opinions In disability/employment related matters, vocational research must include the impact of medical/psychological data, as well as, legally prescribed

33 Marijuana factors on Vocational Research & Opinions In disability/employment related matters, vocational research must include the impact of medical/psychological data, as well as, legally prescribed medications and illegal substances (severity of use). In a Return to Work process, the individual s functionality and job duties are analyzed for effective accommodations. Research must include related laws, employment policies, industry standards and studies to allow formulation of valid vocational opinions.

34 Implications for Forensic Analysis As a Vocational Consultant handling marijuana related issues, you need to understand and develop knowledge/skills in: 1) Federal and State laws & keep updated on developments. 2) Review Personnel policies, employment contracts, collective bargaining agreements, 3) Occupational classifications, licensing requirements, oversight agencies, Knowledge of Medical/Psychological conditions, treatment modalities (medications) and impairments caused by long term/habitual use of Marijuana (cognitive impairment, memory difficulties, etc.). 4) Review journals, studies and articles for quick reference. 5) To render an objective opinion, base it on substantial data & vocationally reasoned principles.

35 Implications for Forensic Testimony 1) The varying State statutes require careful consideration of the State of residency of the referred case, and/or the employment location. 2) A need to distinguish disability related laws, such as; ADA, State statutes of disability, and occupational specific guidelines. 3) Referral source s request(s) and maintenance of boundaries in your area of expertise. Presently, medical marijuana issues surface in employment settings, as well as, in pre-employment selection of qualified job candidates. 4) Your findings and recommendations must be applicable to the facts of the case.

36 Things to keep in Mind Can you include the issues of medical marijuana and/or recreational use in your present methodology? Are your resources and knowledge adequate to address the vocational challenges of this subject matter? Coordinate with other professional organizations (Human Resources Management Association) to increase your knowledge of industry standards. Research local drug testing facilities and engage in employer surveys to maintain updated information.

37 Discussion: What happens when the Injured Worker s preferred treatment is Marijuana over pharmaceutical medicine? How does this impact the VE s ability to find job opportunities for workers using medical/recreational marijuana? How do other co-workers react in working with a marijuana user? (Such as, working in a production line.) Is the marijuana usage information protected in the workplace as are personal medical records/information? What constitutes Reasonable Accommodation?

38 Thank you! Questions? Lisa Suhonos, MS, CDMS, CEAS, IPEC, ABVE/D Vocational Consultant & Expert

Seeing through the Smoke: Preparing Your Workplace for Legalized Marijuana. October 23, 2018

Seeing through the Smoke: Preparing Your Workplace for Legalized Marijuana October 23, 2018 Let s Be Blunt... With the many new state laws being passed legalizing medical and recreational marijuana, employers