This Webcast Will Begin Shortly

Transcription

1 This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via at: Thank You!

2 Recreational and Medical Marijuana Laws What Sports and Entertainment Employers Need to Know September 22, 2016 Presented By: Michael Clarkson, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. One Boston Place, Suite 3220 Boston, MA (617)

3 Presentation Overview State Marijuana Laws Anti-Discrimination Provisions ADA/FMLA Considerations Effects on Workplace Safety Practice Pointers Elements of a Defensible Drug Policy Sample Policy Language

4 Map Prepared by Marijuana Policy Project

5 State Laws At least 14 states have legislation pending 4 states (plus D.C.) permit recreational marijuana 23 states (plus D.C.) permit some form of medical marijuana Individuals who suffer from a debilitating medical condition are authorized to use medical marijuana upon the receipt of a registry identification card BEWARE: A debilitating medical condition can meet the definition of a disability under applicable state and/or federal law

6 What Do MMLs Mean for Sports and Entertainment Employers? Most MMLs provide that employers are not required to accommodate intoxication, use, or possession in the workplace AZ, CT, DE, IL, ME, MN, NV, PA, and RI law contain anti-discrimination provisions

7 Anti-Discrimination Provisions No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person s or employee s status as a qualifying patient nothing in this subdivision shall restrict an employer s ability to prohibit the use of intoxicating substances during work hours or restrict an employer s ability to discipline an employee for being under the influence of intoxicating substances during work hours. Conn. Gen. Stat. s. 21a-408p No employer may refuse to employ or otherwise penalize, a person solely for his or her status as a cardholder. R.I. Gen. Laws s

8 Compare 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).

9 Medical Marijuana ADA/FMLA Considerations No duty to accommodate illegal drug use Recovering addict provisions But, 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

10 Workplace Safety Standards OSHA General Duty Clause Section 5(a): Each employer (1) 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. 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)

11 Workplace Safety Standards DFWA (Drug-Free Workplace Act) applies to certain federal contract/grant recipients Does not require drug testing in the workplace Does not require employers to fire employees for positive drug test 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

12 New OSHA Rules Regarding Post-Accident Drug/Alcohol Testing OSHA is concerned that certain post-accident drug/alcohol tests could act to chill reporting of workplace inquiries 5/12/16 Anti-retaliation provisions attempt to address this How new rule will be enforced is unclear Does not ban post-accident drug testing Limited to incidents in which employee drug use is likely to have contributed to the incident and where testing can accurately identify impairment caused by drug use Bee sting, repetitive motion strain, injury due to lack of guard Reasonable possibility that drug use was a factor in injury

13 New OSHA Rules Regarding Post-Accident Drug/Alcohol Testing Recommended language Post-Accident Testing: Covered Persons will be drug/alcohol tested if the following conditions occur (where permitted by applicable law): (A) there is a reasonable possibility that drug/alcohol use may have been a contributing factor to the reported injury or accident, and (B) the injury or accident resulted in medical treatment beyond first aid or property damage in any amount. Drug testing under this section will be applied in a neutral fashion, to foster a safe work environment, and only to identify drug/alcohol use in the recent past. Testing under this section will not be undertaken to retaliate against employees for reporting workplace injuries.

14 Safety Concerns It Is Not Just Pot Central nervous system effects Short-term memory problems Impaired learning and thinking Changes in sensory perception Altered thought formation and expression 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

15 Safety Concerns Worker Impairment Acute vs. Residual Impairment Decreased hand-eye coordination (even when not acutely intoxicated) Amotivational syndrome (even when not acutely intoxicated) Duration of impairment may be longer than previously reported Up to hours Increased potency of product Casual vs. chronic user 5 ng/ml THC serum level (not blood level) cutoff proposed by ACOEM

16 Practice Pointers Legalization accommodation No requirement under state law (except in AZ, CT, DE, IL, ME, MN, NV, PA, and RI) to accommodate medical use Duty to provide safe workplace paramount No state currently restricts employer prohibition on recreational use Beware lawful off-duty conduct litigation 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 Drug testing policies must be uniformly enforced to avoid discrimination claims

17 Elements of a Defensible Drug Policy Confront medical and recreational marijuana use in policy Reference (explicitly) the federal law prohibition on marijuana Prohibiting working under the influence is not enough Must make it impermissible to have any detectable level of any illegal controlled substance Informed consent for testing Which employees are covered? When will tests occur? Will you provide employee assistance (rehab)? Beware state-specific provisions: one size does not fit all!

18 Sample Drug and Alcohol Policy Language on Marijuana Note that it is the intention of to comply with state and federal laws. Where state and federal law differ, however, will typically comply with federal law. ( may be obligated to comply with federal law for employees in federally-regulated positions.) For example, some state laws permit the use and possession of marijuana for medical and/or non-medical purposes. Federal law does not. In the absence of state law to the contrary, considers marijuana to be an Illegal Drug for purposes of this policy in all states even those states that allow for medical and/or nonmedical use. Typically? In the absence of state law to the contrary?

19 Thank you for attending another presentation from ACC s Webcasts Please be sure to complete the evaluation form for this program as your comments and ideas are helpful in planning future programs. If you have questions about this or future webcasts, please contact ACC at webcast@acc.com This and other ACC webcasts have been recorded and are available, for one year after the presentation date, as archived webcasts at