Dazed and Confused: Current Status of State Medical Marijuana Laws and What They Mean for Employers 1

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1 ASSOCIATION OF CORPORATE COUNSEL JUNE 4, 2014 Kathryn J. Russo, Esq. Jackson Lewis P.C. (631) Dazed and Confused: Current Status of State Medical Marijuana Laws and What They Mean for Employers 1

2 INTRODUCTORY STATEMENT THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THE PARTICIPANTS OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS P.C. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. 2

3 MEDICAL MARIJUANA: BACKGROUND Under the federal Controlled Substances Act, marijuana is a Schedule I illegal drug that may not be used, possessed, manufactured or distributed, even for medical purposes. Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. 21 U.S.C. 812(b)(1). The U.S. Supreme Court has reiterated this fact. United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 121 S. Ct (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana). In 2011, the federal Drug Enforcement Administration rejected a petition to re-schedule marijuana to Schedules III, IV or V of the federal Controlled Substances Act. This decision was upheld by a federal appeals court in January

4 MEDICAL MARIJUANA LAWS States that have medical marijuana laws: AK, AZ, CA, CO, CT, DE, DC, HI, IL, MD, ME, MA, MI, MT, NV, NH, NJ, NM, OR, RI, VT, WA Medical marijuana laws stating employers need not accommodate marijuana use at work or prohibiting use at work: AK, AZ, CA, CO, CT, HI, MA, MI, MT, NH, NJ, RI, VT, WA States where employers have prevailed in medical marijuana litigation: CA, CO, MI, MT, OR, WA States where employees have prevailed in medical marijuana litigation: None. States with laws containing anti-discrimination or reasonable accommodation provisions: AZ, CT, DE, IL, ME, NV 4

5 RECREATIONAL MARIJUANA: COLORADO AND WASHINGTON In 2012, Colorado and Washington enacted laws permitting the use of recreational marijuana. Washington s law does not mention employment. Colorado s law explicitly states: Nothing in this law is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees. On August 29, 2013, the Department of Justice announced that it would not challenge Washington s and Colorado s laws legalizing marijuana (not just medical marijuana). 5

6 EMPOYEES REGULATED BY FEDERAL AGENCIES Safety standards imposed by federal agencies, such as the Federal Mine Safety and Health Administration and the Department of Transportation, do not provide for the use of medical marijuana by regulated employees. The Department of Transportation has issued a statement that the Department of Transportation s Drug and Alcohol Testing Regulation 49 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 It remains unacceptable for any safetysensitive employee subject to drug testing under the Department of Transportation s drug testing regulations to use marijuana. What does this mean for employers? o Here, you should follow the federal safety requirements. 6

7 BALANCING STATE AND FEDERAL LAWS Employers in states that have legalized and/or medical marijuana laws will need to balance a number of competing interests: and 1. Complying with federal law, versus 2. Complying with state law 1. The employer s right and duty to establish and maintain a safe and productive workforce, versus 2. The employer s obligation to accommodate, when reasonable, employees with disabilities that may require provide for the use of medicinal marijuana 7

8 BALANCING STATE AND FEDERAL LAWS So far, no court has concluded that any state law requires employers to accommodate medical marijuana use. However, the previous cases all involved medical marijuana statutes without an anti-discrimination provision. We do not yet know how the anti-discrimination provisions of medical marijuana laws will be interpreted. Even in these states, there is a strong argument that federal law pre-empts state law. Recent New Mexico case may indicate the path of future cases it highlighted that although marijuana still is illegal under federal law, the federal government s current position is not to oppose state medical and legal marijuana laws. Court upheld a workers comp ruling requiring an employer to reimburse an employee for medical marijuana expenses. 8

9 BALANCING STATE AND FEDERAL LAWS In the states with anti-discrimination provisions, when analyzing accommodation requests, consider: o Can the applicant/employee really perform the essential functions of the job with or without a reasonable accommodation? (Consider nature of employee s illness, when and how frequently must he/she use medical marijuana). o Is the job safety-sensitive? If yes, the applicant/employee may pose a direct threat to the health and safety of himself/herself and/or others. o What is your tolerance for risk? How important is it to have one nationwide policy with regard to marijuana use? 9

10 FINAL THOUGHTS If you employ safety sensitive employees, you might elect not to comply with state medical marijuana laws (even though there may be some risk in some states). Greater legal risk is that a known marijuana user causes an accident that injures/kills people. Remember there is little case law out there if you choose to follow federal law, you may run the risk of being your state s test case for medical marijuana accommodation. But if you make the decision to accommodate, you are choosing to abandon compliance with federal law. 10

11 Thank You! Questions? 11

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