Smoke and Mirrors: Navigating Medical Marijuana in the Workplace

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1 Smoke and Mirrors: Navigating Medical Marijuana in the Workplace Douglas P. Currier Elizabeth Connellan Smith (207) (207)

2 Some Statistics 53% of Americans say marijuana should be legal 44% say it should be illegal

3 20 States and D.C. Have Enacted Laws to Legalize Medical Marijuana Since 1996: Alaska* Arizona Hawaii Illinois New Hampshire New Jersey California Colorado* Maine Massachusetts New Mexico Oregon* Connecticut DC Michigan Montana Rhode Island Vermont Delaware Nevada Washington*

4 Maine Medical Use of Marijuana Act Medical provider may provide a written certification for the medical use of marijuana 2 1/5 ounces possession limit 6 mature marijuana plants limit it on home cultivation Approx registered certified users in Maine

5 Qualifying Conditions Alzheimer's disease Hepatitis C Amyotrophic Lateral HIV or AIDS Sclerosis Huntington's disease Cachexia or wasting Inflammatory bowel syndrome disease Cancer Multiple Sclerosis Chronic pain Nausea Crohn's disease Nail-patella syndrome Epilepsy Parkinson's disease Glaucoma Post-traumatic stress disorder (PTSD)

6 State v. Federal Law Conflict Because these state laws have no effect on federal laws which continue to outlaw the production, sale, or possession of marijuana, those who engage in this business, as well as their customers, are in a difficult legal position: their activities iti are legal l under state t law but illegal under federal law. Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. U.S. CONST. art. VI, cl. 2; see also Gibbons v. Ogden, 22 U.S. 1, 42 (1824).

7 The Ogden Memorandum On October 19, 2009, Deputy United States Attorney David W. Ogden issued a memorandum (Ogden Memorandum) announcing that the Justice Department would no longer make it an enforcement priority to pursue those who are in clear and unambiguous compliance with state medical marijuana laws in the then 14 states that had passed legislation legalizing medical marijuana.

8 Federal Drug-Free Workplace Act of 1988 Applicants and/or employees who are a qualifying patient and/or primary caregiver cannot be discriminated against solely for that person s status as a qualifying patient or primary caregiver UNLESS failing to do so would put the employer in violation of Federal law or lose a Federal contract or funding

9 But Then The Cole Memorandum In a July 29, 2011 memorandum, however, Deputy Attorney General James M. Cole repeated the position taken in the 2009 Ogden Memorandum, but noted the increase in the scope of commercial cultivation, sale, distribution ib ti and use of marijuana for purported medical purposes, including multiple large- scale, privately-operated industrial marijuana cultivation centers.

10 The Cole Memorandum Mr. Cole then stated: The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply pywith state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA.

11 Maine Medical Use of Marijuana Act Title 22 Section 2423-E An employer may not refuse to employ or otherwise penalize a person solely for that person's status as a qualifying i patient t unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding. A business owner may prohibit the smoking of marijuana for medical purposes on the premises of the business if the business owner prohibits all smoking on the premises and posts notice to that effect on the premises.

12 Maine Medical Use of Marijuana Act Maine Substance Abuse Testing Law, 26 M.R.S.A. Sections Negative Test Result: A substance of abuse is present in the tested sample in a concentration below the cutoff level. For marijuana, the cut off level is (in urine) nanograms/milliliter

13 Case Scenario Company has a drug testing policy pursuant to a CBA Employee tests positive at 400 ng/ml Employee then presents a medical marijuana certificate t Says for chronic back pain This is all new news to the Company He also claims he never works impaired

14 Employee scase Any adverse action is disability discrimination Cannot hold against him the fact that he uses medical marijuana based on the Maine Medical Use of Marijuana Act Violates patient s right to choice of treatmentt t

15 Employee scase Other employees are prescribed medication which violates testing standards and not held against them No one ever observed anything at work raising a concern about his fitness for duty and he performed his job satisfactorily. The Employee only used marijuana well before reporting to work such that he was not under the influence while at work.

16 Employee scase Employer cannot prove that the employee is impaired, and impairment should be the only concern

17 How to Prove Impairment? Traditional roadside tests (e.g. fingers to your nose) do not work Urine /Blood tests are inconclusive in regard to whether the individual is actually impaired Not like testing for alcohol Science has not caught up with the problem

18 Employer scase Requiring Employer to refrain from disciplining this employee is in essence requiring Employer to tolerate violations of federal law -- the Controlled Substances Act (CSA) (21 U.S.C. 811), which does not recognize the difference between medical and recreational use of marijuana.

19 Employer scase State law designates the threshold that is impermissible when working (in urine ng/ml) and in turn allows an employer to take action against the employee. This employee was at 400 ng/ml 8 times the permissible level under State t law. State law on substance abuse testing was not amended in connection with the medical marijuana law even though it could have been standard still applies.

20 Employer scase CBA agreed to by the parties states that discipline and suspension shall occur if the employee violates the 50 ng/ml standard the parties have never agreed to do anything differently. In the interest of positive and functional labor relations, any changes to CBA terms agreed to by the parties should be negotiated by the parties.

21 Employer scase The Maine Medical Use of Marijuana Act provides that an employer cannot discriminate solely because an employee has a medical marijuana card; the law does not require that an employer disregard the terms of its state approved drug testing policy.

22 Employer scase The Employee was so far above the threshold of non reportable use that to uphold the employee s position is akin to authorizing any employee to work regardless of the level of cannabinoids in his or her system. OSHA requires providing a safe workplace trumps the State medical marijuana law.

23 Employer scase State Substance Abuse Testing law has a presumption of impairment No other requirement for Employer to prove impairment Employee physician i cannot issue a letter indicating employer is not impaired

24 Prescription v. Certification Marijuana is unlike prescribed medication, no control over amount or potency FDA has to have approved all prescribed medications FDA law pre-empts Maine s medical marijuana law

25 Reasonable Accommodation Courts looking at the issue have ruled that Courts looking at the issue have ruled that allowing use of medical marijuana is not a reasonable accommodation.

26 Effects of Marijuana in the Workplace Short-term term memory problems Impaired thinking Loss of balance and coordination Decreased concentration Changes in sensory perception Impaired ability to perform complex tasks Decreased alertness Decreased reaction

27 Take-Aways This is going to a growing challenge for employers Marijuana use is still illegal under federal law Employers do not have to tolerate t drug use at work or employees being impaired while at work Impairment is difficult to prove There is uncertainty in the law

28 Take-Aways If an employee has a medical marijuana certificate, that cannot be a basis for action That employee s use of medical marijuana probably can be a basis for action Need clear proof pursuant to observed behavior or positive test t results pursuant to State approved drug testing program.

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