Medical Marijuana Compliance. Neil Alexander and Sarah Watt Littler Mendelson P.C. May 9, 2017

Transcription

1 Medical Marijuana Compliance Neil Alexander and Sarah Watt Littler Mendelson P.C. May 9, 2017

2 Presented by: Neil Alexander Shareholder, Littler Phoenix , Sarah Watt Associate, Littler Phoenix ,

3 State Legalization of Marijuana Use

4 Legalizing Marijuana for Recreational Use November 2012: Colorado and Washington voters approve marijuana for recreational use. Intent is to regulate marijuana like alcohol : Washington amends driving laws to set limit DUI for marijuana. Colorado rejects revised DUI for marijuana. White House confirms it will continue to enforce federal drug laws in Colorado and Washington but only as to individuals/groups that are not manufacturing/selling in accordance with state law.

5 Legalizing Marijuana for Recreational Use November 2014: Alaska, Oregon, and District of Columbia voters approve marijuana for recreational use. D.C. s law effective late February 2015; contains no provision allowing for legal sale or distribution.

6 Legalizing Marijuana for Recreational November 2016: Use California, Maine, Massachusetts, and Nevada approve recreational use. Alaska and Oregon approve retail sales. None of these recreational use laws include employment provisions.

7 Where Workplace Accommodation Of Medical Marijuana is Required: Arizona Connecticut Delaware Illinois Maine Minnesota Nevada New York Pennsylvania Rhode Island

8 Where You Must Extend Offer of Employment Before Conducting Pre-Hire Drug Test The following jurisdictions require you to extend an offer of employment before conducting a prehire drug test: Boulder, CO District of Columbia (Marijuana only, but impractical for all as a result.) Maine Minnesota Ohio Oklahoma Puerto Rico Rhode Island Vermont

9 Where You Should Extend Offer Of Employment Before Conducting Pre-Hire Drug Test Also, based on case law interpreting state privacy protections, a conditional offer of employment should be extended before moving forward with a pre-hire drug test in: California Massachusetts New Jersey West Virginia

10 Cases Involving Medical Marijuana U.S. v. Oakland Cannabis Buyers Cooperative (2001) Gonzales v. Raich (2005) Americans for Safe Access v. Drug Enforcement Agency (D.C. Cir. 2013)

11 Employment Cases Involving State Medical Marijuana Laws Ross v. RagingWire Telecommunications (California 2008) Johnson v. Columbia Falls Aluminum (Montana 2009) Emerald Steel Fabricators v. Bureau of Labor and Industries (Oregon 2010) Roe v. Teletech Customer Care Management (Washington 2011) Casias v. Wal-Mart Stores (6 th Cir. 2012) Coats v. Dish Network (Colorado Ct. App. 2013) Henry v. Outback Steakhouse (Michigan 2017)

12 Coats v. Dish Network Brandon Coats, a quadriplegic, worked in customer service for Dish Network. Used medical marijuana at home to treat painful muscle spasms. Did not use marijuana at work, performed satisfactorily. Dish Network has a zero tolerance drug policy. Coats tested positive in a random drug test. Dish Network terminated Coats under its Zero Tolerance Drug Policy. Coats sued, alleging violation of Colorado Lawful Activities Statute.

13 Henry v. Outback Steakhouse Bobbie Henry (age 48), licensed medical marijuana caregiver authorized to sell to patients Outback coworker was one patient Outback investigated suspected drug use and sales Terminated with five younger employees Sued for age discrimination Michigan law does not impose restrictions on private employers

14 Treating Pot as Not Really Legal: What Next? If you elect to take the legal posture that Federal Criminal Law trumps state accommodation / non-discrimination laws, what are the helpful arguments? Argue the states can t require accommodation of illegal drug use. Impaired individuals may compromise safety. Liability concerns to third parties. Assert that FMLA, STD would be required for users unable to work. Contracts and grants at risk (though usually a state law exception). DOT compliance (again exceptions already apply). Marijuana on site enhances risk of dealing, even law enforcement activity.

15 Pot Is Not Really Legal: What Next? Risks of refusing to accommodate: You will be the test case! Judge s could easily rule federal criminalization only impacts the government and does not preempt specific state laws which require accommodation and non-discrimination. No case to date has held to the contrary. ALL the published decisions requiring no employer accommodation come from states where there was no state statutory obligation to do so. State law penalties/lawsuits not accommodating violates state law Employees feel unfairly treated Unemployment compensation Criticism in the press (i.e., Wal-Mart, Dish Network) Employee morale issues

16 Requiring Prior Notification of Use Can we require employees to disclose use of medications? Yes, if your request is job-related and consistent with business necessity: Ask employees to reveal use of medications that may impair their ability to work safely. Act on this information in a non-discriminatory manner: Leave Reassignment Job modifications Best not to ask for identification of specific meds just generic notification of using a drug that may cause impairment.

17 Recommendations 1. Not required to allow possession, use or impairment at work 2. Safety Sensitive Jobs a) i.e., virtually all field construction, maintenance and installation and/or repair jobs, working with power tools, heavy equipment, motorized equipment, power-driven equipment, self-propelled equipment b) Forklift drivers, mechanics, warehouse packers c) BUT transfers may need to be offered

18 Positive Test but No Suspicion? Law defers to employers when good faith belief employee was impaired/in possession during working hours But what about positive pre-hire/random tests with no evidence or concerns? Best practices: written policy When, how, why subject to testing No possession, use, impairment while at work No automatic termination for positive test Treat similarly to lawfully prescribed medication (including notice to supervisor) Antidiscrimination policy

19 Questions?

20 Medical Marijuana Compliance Neil Alexander Shareholder Littler Mendelson, P.C. Phoenix Sarah Watt Associate Littler Mendelson, P.C. Phoenix