MEDICAL MARIJUANA and Workplace Safety Legal Issues Presented by: Phillip B. Russell

Transcription

1 MEDICAL MARIJUANA and Workplace Safety Legal Issues Presented by: Phillip B. Russell Feb. 9, 2018 Construction Conference.

2 Phillip B. Russell Practical OSHA and Employment Lawyer for Businesses Results-focused legal solutions to workplace safety and other legal issues National Speaker and Author Represents many FTBA members Long-time FTBA Member FTBA Safety Committee Ogletree Deakins Shareholder

3 Do These Things Now! Post OSHA 300A Summary of Work-Related Injuries and Illnesses From February 1 April 30 Company executive must review and certify Silica Written Exposure Control Plan

4 OSHA Developments to Watch Scott Mugno s Nomination SecLabor s status? Multi-employer citation policy status Challenge to construction standards Increased penalty amounts (1/1/18) $12,934 OTS and SER; $129,336 REP and WIL

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6 Times Are Changing 57% of the public favors complete legalization of marijuana, according to a survey by the Pew Research Center. Compare this to 10 years ago, when only 32% favored full-sale legalization, according to Pew. Quest Diagnostics released a report stating that workplace drug testing is showing marijuana use has been on the rise since Oregon had the highest rate of positive workplace drug testing for marijuana, at 3.9%. Many cannabis products are marketed as wellness products.

7 28 states (plus D.C.) permit some form of medical marijuana. 8 states (plus D.C.) now permit recreational marijuana. 11 states (AR, AZ, CT, DE, IL, ME, MN, NV, NY, PA, and RI) law contain anti-discrimination provisions. BUT, not Florida!

8 Current State of Marijuana Law Map by Marijuana Policy Project

9 Potential Negative Effects Effects to the Central Nervous System Changes in sensory perception Short-term memory problems Impaired thinking Impaired motor performance Loss of balance and coordination Decreased attentiveness and alertness Prolonged response time to stimuli and danger Decreased ability to judge distance and space Impaired ability to perform complex tasks

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11 OSHA General Duty Clause Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

12 U.S. DOT Under DOT regulations, marijuana use prohibited for safety-sensitive employees. Bus drivers and subway operators (FTA) Truck drivers (FMCSA) Pilots and aircraft maintenance personnel (FAA) Locomotive engineers (FRA) Ship captains and crews (USCG)

13 Federal DFWA DFWA applies to certain federal contract/grant recipients. Does not require drug testing or firing of employees who test positive. Requires continuous good faith efforts to maintain a drug-free workplace by: 1. Publishing and distributing a policy 2. Specifying actions for policy violations 3. Providing education about drug use and employee assistance programs

14 U.S. Department of Transportation The Department of Transportation s Drug and Alcohol Testing Regulation CFR Part 40, at (e) -- does not authorize medical marijuana under a state law to be a valid medical explanation for a transportation employee s positive drug test result.

15 Other Federal Considerations? Employers with federal contracts may be prohibited from accommodating marijuana use under the terms of those contracts read carefully On January 4, 2018, Attorney General Jeff Sessions announced a retreat from the USAO s previous approach to state marijuana laws

16 Florida DOT? 2018 Safety Plan -- We re still studying it!

17 Florida Drug-free Workplace Act Two kinds of drug-free workplaces in Florida Short-form with no WC premium discount Long-form with the WC discount Long-form Requires testing: post-accident, pre-hire, reasonable suspicion (but, not of specific substances marijuana?) Detailed procedures

18 Most MML Provide Employers Are Not Required To Accommodate Intoxication, Use, Or Possession At Work AZ, CT, DE, IL, ME, MN, NV, PA, and RI law contain antidiscrimination provisions, for example: [A]n employer may 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... a patient s positive drug test for cannabis... unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Minn. Stat. Ann (3)(c).

19 Article X, Section 29: Medical Marijuana Production, Possession & Use (a) PUBLIC POLICY. (1) The medical use of marijuana by a qualifying patient or caregiver in compliance with this section. (2) A physician shall not be subject to criminal or civil liability or sanctions under Florida law solely for issuing a physician certification with reasonable care to a person diagnosed with a debilitating medical condition in compliance with this section. (3) Actions and conduct by a Medical Marijuana Treatment Center registered with the Department, or its agents or employees, and in compliance with this section and Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law.

20 Article X, Section 29: Medical Marijuana Production, Possession & Use (b) DEFINITIONS. For purposes of this section, the following words and terms shall have the following meanings: (1) Debilitating Medical Condition means cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn s disease, Parkinson s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

21 Article X, Section 29: Medical Marijuana Production, Possession & Use (3) Identification card means a document issued by the Department [of Health] that identifies a qualifying patient or a caregiver. (5) Medical Marijuana Treatment Center (MMTC) means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department.

22 Article X, Section 29: Medical Marijuana Production, Possession & Use (7) Caregiver means a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient s medical use of marijuana and has qualified for and obtained a caregiver identification card issued by the Department. The Department may limit the number of qualifying patients a caregiver may assist at one time and the number of caregivers that a qualifying patient may have at one time. Caregivers are prohibited from consuming marijuana obtained for medical use by the qualifying patient.

23 Article X, Section 29: Medical Marijuana Production, Possession & Use (9) Physician certification means a written document signed by a physician, stating, the patient suffers from a debilitating medical condition the medical use of marijuana would likely outweigh the potential health risks and for how long the physician recommends the medical use. A physician certification may only be provided after the physician has conducted a physical examination and a full assessment. a parent or legal guardian of the minor must consent in writing.

24 Article X, Section 29: Medical Marijuana Production, Possession & Use (c) LIMITATIONS. (1) Nothing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section. (4) Nothing in this section shall permit the operation of any vehicle, aircraft, train or boat while under the influence of marijuana. (5) Nothing in this section requires the violation of federal law or purports to give immunity under federal law.

25 Article X, Section 29: Medical Marijuana Production, Possession & Use 6) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place. 7) Nothing in this section shall require any health insurance provider or any government agency or authority to reimburse any person for expenses related to the medical use of marijuana.

26 Article X, Section 29: Medical Marijuana Production, Possession & Use On June 23, 2017, Governor Scott signed Senate Bill 8A, regulating the use of medical marijuana, that allows for edibles, vaping, oils and pill form of medical cannabis, but the current legislation prohibits smoking the drug. What else did the Legislature do?

27 Section , Florida Statutes. Administered by the Florida Department of Health s Office of Compassionate Use. Medical use does not include the use of marijuana in a qualified patient s place of employment, except when permitted by his or her employer. Does not exempt a person from any requirement under law to submit to a breath, blood, urine, or other test to detect the presence of a controlled substance.

28 Section , Florida Statutes. Qualifying medical conditions: A patient must be diagnosed with at least one of the following conditions: cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, amyotrophic lateral sclerosis, Crohn s disease; Parkinson s disease, MS. Medical conditions comparable to those enumerated. A terminal condition. Chronic nonmalignant pain.

29 Section , Florida Statutes. Medical use does not include [p]ossession, use, or administration of marijuana in a form for smoking. Smoking'" means burning or igniting a substance and inhaling the smoke.

30 Section , Florida Statutes. This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

31 What Does this Mean for a Drug-Free Workplace? Duty To Provide Safe Workplace Paramount. Medical marijuana may have positive medical benefits, but there are potential negative effects, particularly in an inherently hazardous work environment

32 What Can Employers Do? Remind employees that on-the-job impairment is not tolerated and that medical marijuana is no exception Update your drug-free workplace policy and drug-testing policy and procedures Provide employee education on company policies and impact of legal changes (with emphasis on safety) Train supervisors and managers on how to spot issues that may need further consideration Offer employee assistance where appropriate (e.g. for serious health conditions under the FMLA or disabilities under the ADA)

33 ADA/FMLA Considerations No Duty To Accommodate Illegal Drug Use Under ADA. Recovering Addict Provisions Apply. But, An Employer May Have A Duty To Engage In The Interactive Process If The Employer Has Reason To Believe The Employee Is Disabled. Employer May Also Have To Consider Whether FMLA Or Other Leave Is Appropriate For Underlying Medical Condition.

34 Family and Medical Leave Act Treatment and/or rehabilitation for addiction generally a Serious Health Condition. Absences caused by illegal drug use not protected.

35 Religious Freedom? We will not, therefore, subscribe to the dangerous doctrine that the free exercise of religion accords an unlimited freedom to violate the laws of the land relative to marijuana. United States v. Middleton, 690 F.2d 820, 825 (11th Cir. 1982) In August 2004, DEA agents, with the assistance of deputies from the Lake County sheriff's department, confiscated an additional 32,500 marijuana plants from the property. Multi-Denominational Ministry of Cannabis & Rastafari, Inc. v. Gonzales, 474 F. Supp. 2d 1133 (N.D. Cal. 2007).

36 California and Washington California: California s medical marijuana statute merely exempt[s] medical users from criminal liability. Ross v. RagingWire Telecoms, Inc., 174 P.3d 200, 209 (Cal. 2008). Washington: Implying a cause of action against a private entity is inconsistent with a statutory scheme intended to provide an affirmative defense to state criminal prosecution. Roe v. Teletech Customer Care Mgmt, LLC, 257 P.3d 586, 594 (Wash. 2011).

37 Coats v. Dish Network, LLC, 350 P.3d 849 (Colorado Sup. Ct. 2015) This case requires us to determine whether the use of medical marijuana in compliance with Colorado s Medical Marijuana Amendment, but in violation of federal law, is a lawful activity Colorado s lawful activities statute. This statute generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee s lawful outside-of-work activities.

38 Coats v. Dish Network, LLC, 350 P.3d 849 (Colorado Sup. Ct. 2015) Brandon Coats claimed Dish Network violated the lawful activities statute by firing him because of his state-licensed use of medical marijuana at home during non-working hours. He claimed that the Medical Marijuana Amendment makes such use lawful for purposes of lawful activities statute notwithstanding any federal laws prohibiting medical marijuana use.

39 Coats v. Dish Network, LLC, 350 P.3d 849 (Colorado Sup. Ct. 2015) Nothing in the language of the statute limits the term lawful to state law. Instead, the term is used in its general, unrestricted sense, indicating that a lawful activity is that which complies with applicable law, including state and federal law.

40 Barbuto v. Advantage Sales and Marketing, Mass. 456 (Mass. S. Ct. 2017) Christina Barbuto had a prescription for medical marijuana to her Crohn s disease under Massachusetts law for Crohn s disease and tested positive for marijuana. She filed suit under the State ADA. The MML also provides, 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.

41 Barbuto v. Advantage Sales and Marketing, Mass. 456 (Mass. S. Ct. 2017) A handicapped employee has a right under [Mass ADA], not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her... To declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients.

42 Practice Pointers (cont.) Legalization Accommodation -- (Except Maybe In AZ, CT, DE, IL, ME, MN, NV, PA, And RI) Duty To Provide Safe Workplace Paramount. No State Currently Restricts Employer Prohibition On Recreational Use. Beware of Lawful Off-duty Conduct Litigation and Massachusetts.

43 Practice Pointers (cont.) Establish And Communicate Clear Drug Policies Employers (Except In AZ, CT, DE, IL, ME, MN, NV, PA, And RI) May Enforce Drug Testing Policies To Exclude Employees Who Test Positive For Marijuana. Beware ADA Risks In Drug Tests Positive For Rx Drugs. Uniformly Enforce Drug Testing Policies To Avoid Discrimination Claims.

44 Sample Multi-State Drug Testing Language On Marijuana ConstructCo puts safety first. The safety of our employees, other contractors employees, and the general public is our highest priority. Although many states have recently passed laws attempting to legalize marijuana usage, marijuana usage for any purpose remains illegal under federal law and is a serious risk to health and safety on a job site. ConstructCo strictly prohibits illegal drug possession, use, or impairment, and medical marijuana is no exception, even if a state has a medical marijuana law. ConstructCo intends to follow all state and federal laws, but where they conflict, the company will follow the stricter federal law.

45 Something Else to Consider Application question Performance of the job s primary duties with or without reasonable accommodation Post-offer medical questionnaire Medical conditions and history Ask whether the person has a medical marijuana card?

46 Upcoming Events Workplace Safety Symposium, Dec. 5-7 (Nashville) For safety directors, executives, and in-house counsel Workplace Strategies, May 9-12 (Phoenix) For human resources professionals, in-house counsel, and other business professionals. Tampa Office Annual Seminar (date TBA) HR professionals, in-house counsel, executives

47 Ogletree Updates and Publications Blog postings eauthority Other Newsletters OSHA, employment law, other workplace legal issues and updates

48 Keep in Touch! linkedin.com/in/phillipbrussell 100 N. Tampa St., Suite 3600 Tampa, FL (813) ogletree.com