Kathryn Russo is an attorney with Jackson Lewis, a nationwide

Transcription

1 Medical Marijuana Laws Perplex Employers Companies are struggling to reconcile state, federal laws over use of the drug. Kathryn Russo is an attorney with Jackson Lewis, a nationwide workplace law firm based in White Plains, N.Y. In this interview with CQ Researcher, she explains the complexities of states medical marijuana laws. In mid-july, a Massachusetts court issued a decision on medical marijuana when Russo was unavailable for a follow-up question on that case; attorney Matthew Nieman of Jackson Lewis answered that question in her stead. The interviews have been edited for space and clarity. CQR: Currently, 29 states and the District of Columbia have medical marijuana laws. In all of these places, employers can test for marijuana use. But how common is workplace drug testing? K.R.: It s pretty common. Most employers who conduct drug testing do so for safety reasons. For example, employers in the construction industry and the health care industry. Have you seen employers stop testing for marijuana in states allowing medical marijuana? I haven t seen a lot of employers eliminating marijuana from their drug-testing panels. How long do traces of marijuana linger in the body? Alcohol is processed through the kidneys and is basically flushed out of your system pretty quickly, within hours, whereas drugs go into the fatty tissues of the body and stay there. That s why you can test positive on a workplace drug test days or even weeks after you use the drugs. So someone testing positive for marijuana may not necessarily be under the influence or be impaired at work? That is really the whole controversy, right there. Drug tests can t tell an employer exactly when or where a person used drugs. How many states offer strong workplace protections for certified medical marijuana users? There are about 12 states where the medical marijuana law has anti-discrimination language of some type. It will say something like, An employer cannot discriminate against a person on the basis that he or she is a qualified medical marijuana patient. The states are Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Pennsylvania, Rhode Island and West Virginia. Do these states allow an employee to be fired if he or she is obviously impaired on the job or using marijuana on the premises? Almost every state with a medical marijuana law has a provision saying that employers don t have to allow people to use marijuana at work or to be under the influence of marijuana at work. So even if you have a medical marijuana user who is protected by these anti-discrimination provisions in certain states, if they are using at work, the employer can fire them. The problem is, what if you are not certain they are using at work but they are acting as if they are under the influence? If you send them for a drug test and the test is positive, we re back to the dilemma of a positive test result that doesn t prove when the person used it. How many qualified medical marijuana users in any of these 12 states have challenged their firing because of a positive drug test? The only case is in Rhode Island. In that case, Darlington Fabrics refused to hire someone for a paid internship because she disclosed she was a certified medical marijuana user and would fail a drug test. She sued, and the state court sided with her. This is the first employment discrimination case where the court ruled in favor of the medical marijuana user. There had been previous cases in other states not these 12 states and employers always won. What was the court s reasoning? The court didn t seem to think there was a conflict between federal law, which says marijuana is illegal, and state law. What the court zeroed in on is that Rhode Island state law regulates drug, according to Lee. California and federal law enforcement officers began arresting growers, dispensary owners and even patients with valid doctor recommendations. 49 In 1998, citizens of Alaska, Oregon and Washington state voted to legalize medical marijuana. But unlike California, which allowed doctors to recommend marijuana as they saw fit, these states allowed recommendations only for a small number of medical conditions. 50 The next year, the National Institute of Medicine, part of the nonprofit National Academy of Sciences, issued a review of the scientific evidence and assessed the potential health benefits and risks of marijuana and its constituent cannabinoids. The report provided ammunition for both sides of the medical marijuana debate. For patients who suffer simultaneously from severe pain, nausea, and appetite loss, such as those with AIDS or who are undergoing chemotherapy, cannabinoid drugs might offer broadspectrum relief not found in any other single medication, it said. 618 CQ Researcher

2 only workplace conduct. So an employer can regulate only what an employee does in the workplace and not what an employee or applicant does outside. Darlington Fabrics said it would appeal. But in the meantime, are there implications for Rhode Island employers? It would seem to me that an employer would have to hire an applicant who is using medical marijuana even if they say, as this applicant did, I m going to fail the drug test because I use medical marijuana. Most employers in this situation are looking at how dangerous is the person s job, and [asking] if that person is using medical marijuana, Am I confident that they re going to be able to do their job safely? So this ruling is troubling to Rhode Island employers who have people in dangerous jobs. Are there implications for employers outside of Rhode Island? No, this was a state court ruling. But I suspect we re going to start seeing other state courts follow suit. Certified medical marijuana users have lost workplace anti-discrimination cases in other states. I think the courts followed federal law, which says marijuana is illegal. Some of the older medical marijuana statutes have been tested in court, in California, Colorado, Michigan, Montana and a few other states. And those are the states where employers have prevailed in litigation. One of the reasons employers prevailed there is that those laws did not contain any protections for employees. The newer medical marijuana laws include this anti-discrimination language. The Massachusetts Supreme Judicial Court ruled on July 17 that an employee who used medical marijuana for Crohn s disease can proceed with her lawsuit challenging her firing after failing a drug test. Is this ruling a big deal? Yes, it s significant. The court rejected the idea that just because marijuana is illegal under federal law, employers can refuse to accommodate a medical marijuana user who is considered disabled under state disability law. The court expressly noted that the employee could lose at trial. But it said that because the employee shared information about her Crohn s disease, the employer was required to determine if they could accommodate her even if her request was to use an illegal federal drug. It remains to be seen how the case develops, but, at a minimum, Massachusetts employers need to reflect before terminating someone for a failed drug test when presented with a medical marijuana card. Do any states expressly allow employers to fire certified medical marijuana users who test positive for marijuana? Ohio law does permit employers to establish zero-tolerance drug policies. It also has some language that prohibits employees from suing employers who take action against them because they use medical marijuana. And Florida s recently signed medical marijuana law also has some language prohibiting claims against employers for discrimination or wrongful discharge. To add to the confusion, companies that contract with the federal government are required to have drug-free workplaces. Does the federal Drug Free Workplace Act conflict with state medical marijuana laws? It does. If you are a federal contractor, you don t have to do drug testing but you do have to have a drug policy that prohibits the employees working under that contract from using illegal drugs. But the question is, is it illegal? Marijuana is illegal under federal law but not under certain state laws. The way most federal contractors look at it is, marijuana is illegal under federal law, so if we re going to comply with the Drug Free Workplace Act, we need to prohibit it. Have any court cases dealt with this contradiction? Not yet. I m waiting to see that case. Barbara Mantel The report dismissed the notion that marijuana leads to the use of harder drugs. But it said that smoked marijuana delivers most of the same harmful substances found in tobacco smoke and that variability of the mix of compounds in each plant makes it difficult to predict marijuana s precise effect. 51 As a result, the report concluded, the future of cannabinoid drugs lies not in smoked marijuana but in chemically defined drugs that act on the cannabinoid systems that are a natural component of human physiology. Until such drugs can be developed and made available for medical use, the report recommends interim solutions. These included limited use of smoked marijuana for patients suffering debilitating pain for whom all other medicines had failed. 52 In 1999, Maine became the fifth state to legalize medical marijuana, and the next year, Hawaii, Colorado and Nevada followed. In 2002, the 9th U.S. Court of Appeals prohibited the federal government from revoking a physician s July 21,

3 license solely for recommending medical marijuana. The U.S. Supreme Court denied an appeal. 53 Changing Federal Posture Also in 2002, a group of medical marijuana users sued the DEA and Attorney General John Ashcroft, arguing that the Controlled Substances Act violated the Constitution s Commerce Clause, which gives Congress authority to regulate interstate but not intrastate commerce. The federal government argued that local cultivation and use of marijuana affected interstate commerce in the drug, and in 2005, the Supreme Court agreed. Gonzalez v. Raich allowed the federal government to continue prosecuting those who cultivate marijuana, distribute it and use it in states with medical marijuana laws. 54 But in October 2009, the Justice Department under President Obama issued a path-breaking memorandum. It instructed the Justice Department s U.S. Attorneys not to focus limited federal resources on prosecuting seriously ill patients and their caregivers who were complying with state medical marijuana laws, although large-scale, for-profit commercial enterprises remained a potential target. 55 While the memorandum was not intended to impact the behavior of states, cities or individuals, there was huge growth in the medical marijuana industry after it was issued, wrote then- Yale law student Samuel Kleiner in Yale Law & Policy Review. 56 In 2010, Arizona became the 15th state to legalize medical marijuana. In 2011, the DEA once again refused to reclassify marijuana as a Schedule II drug. 57 The Justice Department further restricted prosecutions in In a memorandum, it advised federal prosecutors to no longer consider the size or commercial nature of a marijuana operation alone in determining whether to investigate it for selling to minors or violating other priorities of the federal government. And in 2014, the Obama administration gave banks guidance on conducting transactions with marijuana dispensaries. Because marijuana is illegal under federal law, banks had refused to deal with dispensaries, and dispensaries were forced to operate as all-cash businesses. 58 That same year, Congress blocked the Justice Department from allocating funds to prosecute the cultivation, sale or use of medical marijuana in states where it was legal. Rep. Dana Rohrabacher, R-Calif., co-sponsor of the measure, known as the Rohrabacher-Farr amendment, told conservatives that it would force the federal government to respect states rights. 59 Congress has continued to extend the amendment, most recently in May as part of the Consolidated Appropriations Act of In 2016, the DEA once again rejected petitions to reschedule marijuana, but it announced a policy change to make marijuana research easier: It would expand the number of DEA-registered manufacturers of experimental marijuana from its single supplier at the University of Mississippi. The agency is considering 25 applications so far, according to DEA spokesman Melvin Patterson. As of July 2017, 29 states and the District of Columbia had legalized medical marijuana. CURRENT SITUATION Action in Congress Eight Republican and Democratic members of Congress are pushing a bill that would prohibit federal law enforcement officials from prosecuting the manufacture, distribution, possession or use of medical marijuana in states where it is legal. The Compassionate Access, Research Expansion and Respect States Act would not legalize medical marijuana in all 50 states but would amend the Controlled Substances Act to allow states to set their own medical marijuana policies. If it becomes law, patients, caregivers, doctors and businesses, including banks, participating in state medical marijuana programs would no longer be in violation of federal law. Federal marijuana policy has long overstepped the boundaries of common sense, fiscal prudence and compassion, said Sen. Cory Booker, D-N.J., a co-sponsor. This bill will help ensure that people who can benefit from medical marijuana from children suffering from chronic illnesses to veterans battling PTSD can do so without worrying about the federal government standing in the way. 61 The bill also would lift a prohibition against doctors in the Department of Veterans Affairs from recommending marijuana for certain conditions, such as PTSD and chronic pain, in states where it is legal. And it would remove cannabidiol from the Controlled Substances Act s schedules, thus expanding its availability to patients in states without medical marijuana laws. 62 Sens. Booker, Kirsten Gillibrand, D- N.Y., Rand Paul, R-Ky., Lisa Murkowski, R-Alaska, Al Franken, D-Minn., and Mike Lee, R-Utah, along with Reps. Steve Cohen, D-Tenn., and Don Young, R-Alaska, introduced the bill on June 15. Booker, Gillibrand and Paul had introduced a version in the Senate in 2015, but the bill never got out of committee. Supporters are hoping this year will be different. The addition of Sens. Lee and Murkowski as original co-sponsors should inspire other Republicans to seriously consider this legislation and the absurd federal overreach that it seeks to correct, said Don Murphy, director of conservative outreach at the Marijuana Policy Project. 63 But Sabet of Smart Approaches to Marijuana opposes the legislation. This bill would completely undermine the FDA approval process and encourage Continued on p CQ Researcher

4 Continued from p. 620 the use of marijuana and marijuana products that have not been proven either safe or effective, he said. 64 The bill s introduction in June came just two days after Attorney General Sessions letter to congressional leaders became public asking Congress to undo the Rohrabacher-Farr amendment, which must be renewed annually. I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, Sessions wrote, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime. 65 However, the drug epidemic Sessions referred to involves opioids and heroin, not marijuana, and some research has shown that in states with medical marijuana programs, opioid-related deaths and overdoses have fallen. 66 John Hudak, deputy director of the Center for Effective Public Management at the Brookings Institution, a centrist think tank in Washington, called Sessions arguments a scare tactic that could appeal to rank-and-file members or to committee chairs in Congress in ways that could threaten the future of this Amendment. 67 State Actions Medical marijuana enjoys bipartisan support on the state level, as recent legislative activity shows. When West Virginia legalized medical marijuana in April, its bill was passed by a Republican-controlled Legislature. The same was true in Pennsylvania U.S. Sen. Cory Booker, D-N.J., visits with 4-year-old Morgan Hintz, who has epilepsy, during a Capitol Hill news conference on medical marijuana on March 10, Her mother wants her to be able to use cannabidiol to control her seizures. Eight members of Congress are pushing legislation that would, among other things, expand its availability to patients in states without medical marijuana laws. Getty Images/Mark WIlson and Ohio, which passed medical marijuana laws in In Arkansas, Florida and North Dakota, whose legislatures are Democratic-controlled, the issue went straight to citizens, who voted to legalize medical marijuana last November while also helping put Donald Trump in the White House. 68 States are breaking even, and in some cases, making money on their medical marijuana programs. States require medical marijuana dispensaries to pay annual licensing fees, and individuals to purchase registration cards that are renewed every year or two. That revenue covers the cost of state oversight. Some states, such as Arizona, Michigan and Oregon, generate a surplus, according to the Marijuana Policy Project. In addition, most states impose a sales tax on dispensary sales. 69 Several states are expanding the list of medical conditions covered by existing laws. In June alone, New Hampshire added moderate-to-severe chronic pain to the list of serious conditions that can be treated with cannabis; Vermont added post-traumatic stress disorder (PTSD), Parkinson s disease and Crohn s disease; and Colorado added PTSD. The New York legislature passed a bill adding PTSD, and it awaits Gov. Andrew Cuomo s signature. 70 In fact, 26 states now include PTSD as a qualifying condition. Veterans with PTSD should not have to choose between FDA-approved medications that carry a blackbox suicide warning and off-label drugs with no clinical efficacy and horrible side effects, said Michael Krawitz, executive director of Veterans for Medical Cannabis Access, as New York debated the change to its law. There is another way: Medical marijuana has helped veterans have a restful night s sleep instead of night terrors, and thus experience a better quality of life. 71 Military veterans have been lobbying states for years to add PTSD to their list of conditions treatable with cannabis, despite the lack of randomized controlled studies evaluating marijuana s effectiveness for the condition. According to scientists at the U.S. Department of Veterans Affairs, there is no evidence at this time that marijuana is an effective treatment for PTSD. In fact, research suggests that marijuana can be harmful to individuals with PTSD. These individuals, the scientists said, have particular difficulty stopping their use of marijuana and responding to treatment for marijuana addiction. 72 But the research drought could soon become at least a trickle. In 2016, the DEA and the FDA approved the firstever randomized controlled trial of 622 CQ Researcher

5 marijuana to treat PTSD in U.S. veterans. The Multidisciplinary Association for Psychedelic Studies, a nonprofit in Santa Cruz, Calif., that promotes research on psychedelics and marijuana, is overseeing the study, funded by a grant from the state of Colorado. The study is testing the safety and efficacy of smoked marijuana with varying ratios of THC and cannabidiol in 76 military veterans who have not responded to traditional treatment of PTSD. 73 Not every state is expanding its medical marijuana laws. Citing a lack of supporting scientific research, New Mexico Health Secretary Lynn Gallagher in June rejected the state s Medical Cannabis Advisory Board s recommendation to add Alzheimer s disease and opioid addiction to the list of conditions suitable for marijuana treatment. 74 Not in My Backyard Under local zoning rules, municipalities decide such things as where marijuana businesses can locate, their hours of operation and their size. But some states allow local officials to go further and ban marijuana businesses. In June, for example, Marshall, Mich., voted to allow growers but not dispensaries. Fife, Wash., bans both medical and recreational marijuana sales. And dozens of California cities prohibit some or all types of marijuana operations. 75 After Ohio passed a medical marijuana law in September, Ohio state Sen. Kenny Yuko, a Democrat, pleaded with municipalities to keep an open mind. In a letter to towns, Yuko wrote, Please consider all the good that this medicine can do for the citizens of your communities. 76 But at least two dozen municipalities have ignored Yuko and banned or imposed a moratorium on growers, processors or dispensaries, even though medical marijuana won t become available to Ohio residents until 2018 as the state develops rules for its use. 77 Sidney, Ohio, is one such municipality. In May, the City Council told its law director to draft legislation to ban the cultivation, processing and dispensing of medical marijuana within city limits. Council member Janet Born said three doctors had told her that effective alternative medications to marijuana exist. Also, marijuana, no matter how mild or ineffectual it seems, still impairs the brain... and many of those people will try driving, Born said. And that s why I think we should not have it. 78 Residents of towns that have banned dispensaries can still use medical marijuana if recommended by a doctor, but they will have to buy it elsewhere. OUTLOOK Strong Growth Predicted The New Frontier Data research firm predicts that U.S. medical marijuana sales will grow at a compound annual rate of 12 percent in the next nine years, from $4.7 billion in 2016 to $13.2 billion in Those projections assume marijuana remains a Schedule I substance and that no more states pass legalization measures. 79 But the status quo, at least among states, is unlikely to remain, say advocates on both sides of the medical marijuana debate. There definitely will be more states working toward passing medical marijuana bills, as well as others improving their existing programs by, for example, adding qualifying medical conditions and allowing more kinds of cannabis products to be sold, says Fox of the Marijuana Policy Project. Sabet of Smart Approaches to Marijuana agrees that more states are likely to adopt medical marijuana programs, an outcome he opposes, and he blames a well-funded public relations campaign by the cannabis industry. Under the guise of compassion, for-profit businesses are bypassing the FDA and instead funding political advocacy to gain legitimacy, says Sabet. Fox responds that people directly involved in the legal marijuana industry are a small part of the Marijuana Policy Project s donor base only about 10 percent. The rest comes from regular donors and philanthropists who recognize that sick people deserve safe, reliable access to medical marijuana, he says, and that responsible adults should not be criminalized for using a substance that is safer than alcohol. Both Fox and Sabet expect the DEA under the Trump administration to continue to refuse to reschedule marijuana from the Schedule I category. Gitlow, the past president of the American Society of Addiction Medicine, says the DEA could fashion a compromise. It could create a Schedule I-A for drugs with an unknown medical application, implement rules to encourage well-designed clinical research for such drugs and place marijuana in that category, he says. The American Medical Association recommends the government review marijuana s status as a Schedule I drug and make the rules for its research easier. But the nation s largest association of physicians is quick to add that its recommendation is not an endorsement of state-based medical cannabis programs or the legalization of marijuana. 80 After the 2020 presidential election, federal policy may change, but the details are difficult to predict, according to New Frontier Data. It remains possible that there will be sweeping changes to federal cannabis laws within the next decade, including the rescheduling of cannabis from its current status as a Schedule I substance included in the ranks of the most dangerous drugs to Schedule II or III status, the research firm said, or potentially a complete de-scheduling, which would bring cannabis regulations closer to those for alcohol July 21,