Help Wanted: MRO guidance in a THC world. RMAOEM April 6, 2018

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1 Help Wanted: MRO guidance in a THC world RMAOEM April 6, 2018

2 Disclaimer This presentation should not be considered legal advice.

3 History of legalized marijuana Drug screening process State and employer policies

4 History of legalized marijuana 1996 California is the first state to legalize medical marijuana

5

6 Legal marijuana 30 states with medical marijuana, plus DC, Puerto Rico, and Guam 15 states by senate/house bill 10 states by ballot bill (amendment) 5 by proposal (administrative) 10 states with legalized recreational marijuana 2012 Washington and Colorado first to allow recreational marijuana use

7

8 Each state has different levels Decriminalization Possession and grow limits Employee protections Medical registrant protections

9 Initial laws provided only criminal protection Newer laws included protections for housing, domestic relations, and employment

10 Colorado amendments Amendment Authorized medical marijuana up to 2 oz., 6 plants, 3 mature and flowering Specified that no employer must accommodate medical use of marijuana in the workplace

11 Colorado amendments Amendment Allowed recreational marijuana States an employer is permitted to restrict the use of marijuana by its employees

12 Colorado Amendment 64

13 States with no employee protections

14 States likely with no employee protections

15 States with explicit protections

16 States with unclear employee protections

17 Maine is the only state that prohibits employers from taking adverse actions vs. employee when marijuana is used off-site.

18 Department of Justice October 2009 DOJ memo instructed US attorneys not to prosecute medical marijuana if legal under state law August 2013 DOJ deferred prosecution of marijuana in WA and CO Federal employees continue prohibition on marijuana use at any time

19 January 2018 DOJ memo marijuana is a dangerous drug and that marijuana activity is a serious crime and previous nationwide guidance specific to marijuana enforcement is unnecessary and rescinded, effective immediately

20

21 Drug screening process Collection Testing Review

22 Drug screen collection Similar to collection of evidence ID of donor Empty pockets Select collection cup Bathroom with limited access to soap/water Water is tinted with blue Sample is checked for temperature and appearance Sample is sealed and matched to paperwork

23 ID of donor Donor may have somebody else do the test Empty pockets Donor may bring in adulterants

24 Limited access to water and soap Water is tinted with blue Donor may dilute sample

25 Sample is checked for temperature and appearance Donor may bring in a sample

26 Sample is sealed and matched to paperwork

27 Testing Initial screen with immunoassay, and validity testing Confirmation testing MRO

28 MRO Receive, review and report test results Evaluate alternative medical explanations for lab test results

29 MRO Legitimate medical explanations Prescription medication Verify prescription Report result to employer

30 MRO for marijuana Legitimate medical explanation FDA approved drugs Marinol (dronabinol) Cesamet (nabilone) Syndros (dronabinol) Outside of US Sativex (nabiximols)

31 MRO for marijuana Federal drug testing does not allow for medical marijuana Claim for medical marijuana Check employer policies Refer to state regulations Some states have 5ng/ml (blood) as impaired

32 MRO marijuana If test is +, MRO reports as positive, and employer determines implications under policy and state laws If Federal, MRO reports as positive and employee must be removed from safety sensitive tasks, e.g., commercial driving

33 Positive Marijuana rates CO and WA marijuana rates increased faster than the national average since WA CO Gen US workforce Quest Diagnostics

34 2.50% 2.00% 1.50% 1.00% 0.50% 0.00% Colorado Healthcare Jul-14 Aug-14 Sep-14 Jul-17 Aug-17 Oct-14 Nov-14 Dec-14 Jan-15 Feb-15 Mar-15 Apr-15 May-15 Jun-15 Jul-15 Aug-15 Sep-15 Oct-15 Nov-15 Dec-15 Jan-16 Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17 Sep-17 Oct-17 Nov-17 Dec-17 Jan-18 Feb-18 % pos for THC % pos for THC Linear (% pos for THC)

35

36 State Regulations Court cases have generally sided with the employer More recent state marijuana regulations define more rights to employees

37 California Pre-employment screen positive and employee was fired Court agreed with employer, did not violate state s antidiscrimination statue, housing or public policy

38 Colorado [Colorado s] anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer s standard policies against employee misconduct. Curry v Miller Coors, 2013

39 Colorado

40 MI Employee with cancer, had med marijuana, failed drug screen Employer favor, law does not regulate private employment, only a defense to criminal prosecution MT- Employee with work injuries, did not inform employer about Med Marijuana, failed drug screen. Offered last chance agreement, not signed. Terminated. Law does not require accommodation of marijuana in work place

41 WA Medical Use of Marijuana Act does not prohibit an employer from discharging an employee for medical marijuana use, nor does it provide a civil remedy against an employer

42 ME approved recreational marijuana in 2016, effective in 2018 Feb 1, 2018 Employee protections. An employer is not required to permit or accommodate use of possession of marijuana in the workplace or allow an employee to work under the influence of marijuana. Employer may not refuse to hire or penalize an employee or applicant solely because that person consumes marijuana outside of the workplace.

43

44 Recommendations Employers should determine and specify their policy regarding medical marijuana and recreational marijuana Employer policies may vary among different states In CO, employers are not required to accommodate medical or recreational marijuana

45 References Recreational marijuana in Maine: Holstein, MG: Clearing the Haze: How state marijuana laws impact leave and disability, Reed Group, Jupe, N: Employee protections in the era of medical marijuana legislation, Quest Diagnostics, Jupe, N: Increasesin illicit drugs, including cocaine, drive workforce positivity to highest rate in 12 years, Quest Diagnostics, White paper: Marijuana detection using oral fluid drug testing, Quest Diagnostics, History of Colorado s Medical Marijuana Laws: Phillips, JA, Holland MG, et al: Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers, JOEM 57:4, , 2015

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