SHRM Law Day 2017 WORKPLACE DRUG POLICY CONUNDRUMS: MARIJUANA LEGALIZATION, ALCOHOL, AND MORE Presented by: Christopher W. Olmsted Ogletree Deakins Prop 64, California Marijuana Legalization Initiative aka Adult Use of Marijuana Act. On the November 8, 2016, CA will vote on whether to legalize recreational marijuana and hemp. Recent polls: likely to pass. Recreational marijuana on ballot in *5 states, California, Arizona, Maine, Massachusetts and Nevada. Medical marijuana on ballot *4 states - Arkansas, Florida, Montana, Missouri Proposed Prop 64 Changes Over 21 may possess/ use marijuana for recreational purposes. Taxes on cultivation and retail - revenue spent on research, treatment, and enforcement. Smoking okay in private home or at licensed business. Smoking illegal while driving, where tobacco prohibited, in public places. May possess 28.5/8 grams of marijuana or concentrate. Illegal to possess at school, day care center, youth center while children present. May grow up to 6 plants at home in locked area not visible from a public place. 1
A Brief History of Marijuana Federal prohibition (1937-present) Controlled Substances Act (1970) Medical Marijuana (1996-present) Starting in CA, now includes 20+ states plus D.C. Recreational Use (Nov. 2012-present) CO, AK, WA, OR and D.C. legalize Marijuana in the Workplace Marijuana is legal medically in 26 jurisdictions: Alaska Arizona California Colorado Connecticut District of Columbia Delaw are Haw aii Illinois Maine Maryland Massachusetts Michigan Minnesota Montana Nevada New Hampshire New Jersey New Mexico New York Ohio Oregon Pennsylvania Rhode Island Vermont Washington Marijuana in the Workplace Marijuana is legal recreationallyin five jurisdictions: Alaska Oregon Colorado Washington District of Columbia Eight states have measureson the ballotto legalize recreational marijuana: Arkansas California Maine Missouri Arizona Florida Massachusetts Florida Marijuana usage is broad-based,particularlyamong youngeramericans: 31.6% of people ages 18-25 and 9.2% of people age 26 and older used marijuana in 2013. A CDC reportshows thatfrom 2002-2014,marijuana use increased among people aged 45-54 by50 percent. Marijuana use in people over 65 is up 333 percent since 2002.And use in the 55- to 64-year-old age group spiked byan incredible 455 percent. 2
Federal Prohibition: Controlled Substances Act Marijuana Remains a Schedule I Narcotic Manufacture, sale, distribution, possession are still prohibited under federal law No DEA-certified doctor may prescribe marijuana California s Compassionate Use Act of 1996 Seriously ill persons authorized to use for medical purposes upon their doctor s recommendation Includes treatment of: cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief Marijuana in the Workplace Generally, there is no legal protection for use, possession or intoxication at work. Some jurisdictions including California (Colorado, Delaware, Illinois, Montana, Nevada, New Hampshire, and Washington) expressly allow employers to enforce their drug-free workplace policies. 3
Marijuana in the Workplace CA Health & Safety Code 11362.7-11362.83: Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment Ross v. Raging Wire (CA Supreme Court 2008) Applicant for employment tested positive for marijuana, used marijuana for medical reasons. Evaluated on premises v. off premises use. Held that employer need not accommodate on or off premises use. Coats v. Dish Network (CO Supreme Court 6/2015) Alleged Conduct Off duty, medical, not recreational, marijuana use; non-safety sensitive job; failed random drug test; zero tolerance drug policy; terminated. Argument CO s Lawful Activities Act prohibits discharge for engaging in any lawful activity off the premises of the employer during nonworking hours. Court: Under CO s Lawful Activities Act, lawful activity must be permitted by state and federal law; marijuana illegal under federal law (Controlled Substances Act); discharge was lawful. 4
Coats v. Dish Network Potential Impact Lawful off-duty conduct statutes exist in approximately thirty-five states. California Labor Code section 96(k) Other states courts may follow Coats v. Dish Network (but it is not legally binding). Marijuana laws (recreational and medical) vary widely state to state. CO s recreational marijuana statute (and CA Prop 64) expressly allows employers to enforce their drug-free workplace policies. What Do Evolving Marijuana Laws Mean for Employers? Most state medical marijuana laws: employers not required to accommodate use, consumption, possession, sale, etc. of marijuana in the workplace. Employers in most states can prohibit marijuana use by employees, even off duty. Exceptions: AZ, CT, DE, IL, ME, MN, RI Might California also become an exception in the future? Stay tuned. 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. 5
Should Marijuana Use be Permitted? Risk of injury to employees, customers, property. Protection of safe work environment. OSHA General Duty Clause Section 5(a): Each employer (1) shall furnish to each of his employees employmentand a place of employmentwhich are free from recognized hazards that are causing orare likelyto cause death or serious physical harm to his employees. Workplace Safety Standards 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) Workplace Safety Standards DFWA (Drug-Free Workplace Act) applies to certain federal contract/grant recipients: Does notrequire drug testing in the workplace Does notrequire employers to fire employees for positive drug test Requires continuous good faith efforts to maintain a drug-free workplace by: 1. Publishing and distributinga policy 2. Specifyingactions for policy violations 3. Providing education aboutdrug use and employee assistanceprograms 6
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 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 thought Up to 24-48 hours Increased potency of product Casual vs. chronic user 5 ng/ml THC serum level (not blood level) cutoff proposed by ACOEM What Should Employers Do Now? Review Drug Free Workplace Policy Implement supervisor training Provide employee education Consider drug testing Offer employee assistance 7
Sample Policy Language Note that it is the intention of the company to comply with state and federal laws. Where state and federal law differ, however, the company will typically comply with federal law. The company also may be required 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, the company considers marijuana to be an illegal drug for purposes of this policy in all locations even those that allow for medical and/or non-medical use. Legal Challenges, Hurdles, Pitfalls Invasion of Privacy Intentional Infliction of Emotional Distress Retaliation ADA Voluntary disclosure Prior drug use or abuse v. current use 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 notban post-accidentdrug testing Limited to incidents in which employee drug use is likelyto have contributed to the incident and where testing can accuratelyidentifyimpairmentcaused by drug use Bee sting,repetitive motion strain,injurydue to lackof guard Reasonable possibilitythat drug use was a factor in injury 8
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. Hypothetical #1 Walter White is a receptionist at a software development company. He s distributing the mail and slams the mail cart into a co-worker, injuring the co-worker. Can the company send Walter out for drug testing? Hypothetical #2 Jesse Pinkman works in a warehouse as a forklift operator. He drives the forklift into a pallet of goods, which then fall on him. He becomes injured and submits a worker s compensation claim. Can the company send Jesse out for drug testing? 9
Hypothetical #3 Mary Jane comes to work with red eyes and smells of marijuana. Can you send her for drug testing? What if she tells you she ll fail because she is using medical marijuana because she has cancer? Questions? Chris Olmsted Christopher.olmsted@ogletreedeakins.com (858) 652-3100 10