Seeing through the Smoke: Preparing Your Workplace for Legalized Marijuana. October 23, 2018

Transcription

1 Seeing through the Smoke: Preparing Your Workplace for Legalized Marijuana October 23, 2018

2 Let s Be Blunt... With the many new state laws being passed legalizing medical and recreational marijuana, employers are overwhelmed when applying their drug-free workplace policies, especially when more employees are failing drug screens as a result. 1. Are you allowed to refuse to hire an applicant who tests positive for marijuana? 2. Can employers enforce their Drug Free Workplace Policies? 3. Do you have to comply with state law, federal law, or both? 4. What does a robust Company drug policy look like?

3 Burning Issues 1. Federal Law vs. State Law 2. Medical vs. Recreational Marijuana 3. Proposal 1: November 6 4. Employers Covered by the Drug Free Workplace Act 5. Maintaining a Drug-free Workplace a) Drafting a workplace drug policy b) Discipline and Discharge c) Drug Testing: pre-employment or random 6. Practical Considerations

4 Federal Law Marijuana is still illegal under federal law. The Federal Controlled Substances Act a) Use, possession, and sale of marijuana (medical or recreational) is illegal and considered a federal crime. b) Marijuana is classified as a Schedule I Drug. A high potential for abuse and dependency, with no recognized medical use or value. Federal law will always preempt state law, but federal authorities are going to focus on high profile and high-volume distributors and growers. Cole Memo (2013) vs. Sessions Memo (2018)

5 States Permitting Use of Medical Marijuana To date 29 states, including Michigan, and the District of Columbia have legalized marijuana for medicinal purposes. Address Employment: Some laws are silent or ambiguous, while others offer some type of employee protection.

6 Michigan Medical Marihuana Act 2008: Michigan voters approve a ballot proposal to legalize medical marijuana per the Michigan Medical Marihuana Act ( the Act ). The Act states that: A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act. MCL The Act states that it does not require: An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana. MCL

7 Casias v Wal-Mart Stores, Inc., et al Can an employee with a medical marijuana card be fired for testing positive for marijuana? 2009: Employee legally using medical marijuana prescribed by his doctor for pain management. Employee fully complied with the Act. Employee suffered a injury on the job, which prompted Wal-Mart to test him for drug use per the Company s policy. Employee tested positive for marijuana and was fired.

8 Casias Takeaway for Employers 1. The Act provides limited protection for medical marijuana users from state actions, such as arrest and prosecution, but it does not regulate private employers or employment decisions. 2. The Casias holding supports a private employer's decision to refuse to accommodate an employee's use of medical marijuana and to continue to enforce the employer's policies prohibiting the use of marijuana, including medical marijuana. 3. Michigan state courts are not legally bound to follow this Federal Court of Appeals Opinion.

9 Braska v. Challenge Manufacturing Co. Can an employee who possesses a valid marijuana card and is terminated for testing positive for marijuana, collect unemployment benefits? The Braska: Employees tested positive for marijuana, but had medical marijuana registration cards. No evidence that the employees had used or possessed marijuana in the workplace. The sole basis for termination was that the employee tested positive for marijuana on a drug test administered in accordance with the employer s established policies.

10 Braska Takeaway for Employers 1. An employee who tests positive for marijuana, but who possesses a medical marijuana card will not be disqualified from receiving unemployment benefits so long as the employee s use of marijuana is in accordance with the Act. 2. Keep in mind whether the decision to fire or not hire a worker has to do with the marijuana or the underlying medical condition.

11 Medical Marijuana and the ADA When an employer takes adverse action on the basis of illegal use of drugs, the employee or applicant is not protected by the Americans with Disabilities Act ( ADA ). The ADA defines illegal use of drugs as follows: The term illegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. The ADA offers an exception to: drugs taken under supervision by a licensed health care professional, or other uses authorized by the CSA or other provision of Federal Law.

12 ADA Compliance: What We Know Now Employer policies should fall back on the ADA basics: 1. Is the employee disabled? 2. Can the employee perform the essential functions of the job with or without a reasonable accommodation? Engage in the interactive process. 3. Is permitting the employee to have marijuana in their system a reasonable accommodation? Onus is on employer to prove it is an undue hardship.

13 ADA Compliance: What We Know Now Medical marijuana use is illegal under the federal law no matter what the state law says. It is considered a Schedule I drug, and as such, even medical use is not permitted and it is irrelevant whether such drug use is authorized by state law. Gonzales v. Raich, 545 U.S. 1, (2005), Barber v. Gonzales, 2005 U.S. Dist. (E.D. Wash. 2005)

14 Medical Marijuana and the FMLA The Family Medical Leave Act ( FMLA ) requires covered employers to provide leave for eligible employees for serious health conditions. What happens if an employee uses medical marijuana while on FMLA leave, and per Company policy, is required to take a drug test upon return and tests positive?

15 Medical Marijuana and the FMLA Terminating an employee for a positive test could lead to a FMLA retaliation claim. BUT as we saw in the Casias holding, Employers may be permitted to enforce their zero-tolerance drug policies.

16 States Permitting Recreational Marijuana Alaska California Colorado District of Columbia Maine Massachusetts Nevada Oregon Washington Is Michigan next?

17 States Permitting Recreational Marijuana No states legalizing recreational marijuana contain employment protections for recreational users and none limit an employer s ability to enforce a zero-tolerance policy. Most state laws do, however, allow employers to prohibit smoking medical marijuana on its premises, prohibit employees from using or consuming marijuana in the workplace, and can prohibit employees from working while under the influence.

18 Proposal 1: Legalize Recreational Marijuana for adults 21 and over in the state. If approved the Proposal would: l 1. Allow individuals 21 and older to purchase, possess and use marijuana and marijuana-infused edibles, and grow up to 12 marijuana plants for personal consumption. 2. Impose a 10-ounce limit for marijuana kept at residences and require amounts over 2.5 ounces to be secured in locked containers. 3. Create a state licensing system for marijuana businesses and allow municipalities to ban or restrict them. 4. Permit retail sales of marijuana and edibles subject to a 10% excise tax, dedicated to implementation costs, clinical trials, schools, roads, and municipalities where marijuana businesses are located. 5. Change several current violations from crimes to civil infractions.

19 Initiative Language and Guidance for Employers This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer's property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's violation of a workplace drug policy or because that person was working while under the influence of marihuana.

20 Drug Free Workplace Act For employers who have federal contracts or whose employees are licensed through federal agencies, there is no gray area on the federal government s stance: marijuana is an illegal substance. A. Because marijuana is still an illegal substance under federal law and is covered under the DFWP regulations, employers with federal contracts must maintain policies that prohibit the use of the illegal drug, including marijuana despite being in a state where it is legalized. B. If employers do not comply, their contracts/grant money are at risk.

21 Drug Free Workplace Act Requirements Employers regulated by the DFWP must: (1) Develop and publish a written policy; (2) Initiate awareness programs to educate employees about the dangers of drug abuse; (3) Require that all employees notify the employer within five days of any conviction for a drug offense in the workplace; and (4) Make an ongoing good faith effort to maintain a drug-free workplace. The Act does not require that employers conduct mandatory drug tests. What if your company is not required to comply with the DFWP?

22 It s High Time to Review Your Company Drug Policies 1. Recreational marijuana should be treated like recreational alcohol, with the understanding that unlike alcohol, marijuana remains illegal under federal law. 2. Make sure the policy is clear, communicated, and applied consistently.

23 It s High Time to Review Your Company Drug Policies 3. Consider changes to the drug policy based on your workplace culture. Conservative Approach: include language banning those drugs that are illegal under federal law, but be mindful of the potential pitfalls. Testing: Consider only testing in cases of reasonable suspicion/post-accidents to avoid testing for off-duty use. Or test only those employees in a safety sensitive positions.

24 Manager Responsibility Managers should be trained on the policy. Managers must practice diligent oversight. Managers should be trained on recognizing signs of impairment.

25 Reasonable Suspicion Reasonable suspicion testing is performed when supervisors have evidence or reasonable cause to suspect that an employee is using drugs. Evidence is based upon direct observation, either by a supervisor or another employee. Make sure employees know that they are subject to reasonable suspicion drug testing. Determinations should always be made based on current information.

26 Remain Best Buds with 1. Employers must still comply with the Occupational Safety and Health Administration, especially when employees perform dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. 2. Such employers should institute a written zero tolerance policy for those workers in safety-sensitive positions. A safety-sensitive position, generally, is one in which an employee is responsible for the safety of herself or others. Use common sense.

27 Remain Best Buds with OSHA 3. The Department of Transportation s Drug and Alcohol Testing Regulations does not authorize medical marijuana under a state law to be a valid medical explanation for a transportation employee s positive drug test result. a) If an employee s position requires a commercial driver s license, then the employer is mandated to drug test the employee. b) Prescribed by a physician or not, it does not matter. 4. Employee Training 5. Supervisor Training

28 Don t Get Stuck in the Weed(s) 1. Know your law. 2. Know your obligations. 3. Know your rights. 4. Make sure your employees know your policies.