Medical Marijuana In the Workplace Society of Corporate Compliance and Ethics Lisa M. Coulter 602-382-6348 lcoulter@swlaw.com Rebecca Winterscheidt 602-382-6343 bwinterscheidt@swlaw.com Michael Walker 480-333-3232 1 Michael.walker@insight.com Family Feud 2 What is Medical Marijuana? Federal Law Controlled Substance Unlawful to use, possess, sell, grow State Law Creature of statute Decriminalizes possession of marijuana by: - Those suffering from debilitating illness - Caregivers 3 1
States that have Legalized MM Map Key Medical marijuana legalized Marijuana legalized for medical/recreational use No laws legalizing marijuana 4 States with Pending Legislation to Legalize Medical Marijuana Minnesota New York Ohio Pennsylvania 5 States where Medical Marijuana Legislation has Failed Alabama Iowa Florida Kansas Kentucky Maryland Mississippi Missouri North Carolina Oklahoma South Dakota Texas West Virginia 6 2
States that have Approved Recreational Usage Colorado Washington 7 The Basics States require: Registration or identification card - Most states have registry for verification Certification that person suffers a debilitating medical condition or is a caregiver 8 The Basics 9 3
The Basics No medical prescriptions involved Doctors cannot prescribe controlled substances Certification that patient has been diagnosed with a debilitating medical condition Certification can come from broad array of sources Medical Doctor Osteopathic Doctor Naturopathic Doctor Homeopathic Doctor 10 What is a Debilitating Medical Condition Examples of Approved Conditions by some States Cancer Glaucoma HIV/AIDS Chronic Pain Hepatitis C Arthritis Fibromyalgia ALS Crohn s Disease Epilepsy Hospice Spine Damage Migraines PTSD 2013 Snell & Wilmer L.L.P. 11 What is a Debilitating Medical Condition May also require: Cachexia/Wasting Syndrome Severe and Chronic Pain Severe Nausea Seizures Muscle Spasms 12 4
Statistics State Cardholders M/F Chronic Pain Age Stats Arizona 41,750 70% to 30% 73% 25% 18-30 17% 41-50 21% 51-60 California 70,639 Colorado 109,622 67% to 33% 94% Avg. Age 42 Connecticut 1,343 DC 98 77% to 23% HIV/Aids (42) Cancer (19) Glaucoma (7) Muscle Spasms (30) Hawaii 8,000 Maine 1,455 Michigan 118,000 Montana 7,150 64% Avg. Age 47 13% 21-30 19% 31-50 29% 51-60 14%61-70 Nevada 4,643 91% 23% 55-64 83% 25-64 New Mexico 10,382 Oregon 58,484 97% Rhode Island 4,849 Vermont 960 13 Right to Use (Arizona Example) Example of Limits May receive 2.5 ounces In a 14 day period From a registered non-profit medical marijuana dispensary May grow marijuana under certain circumstances 14 Other States Low 1 oz in MT and NV High 24 oz in OR, WA 1 month supply CT 60 day supply MA 15 5
Professionals No disciplinary action against a licensed professional because of medical marijuana use consistent with state law AZ, CT, DE, IL, ME, MI, MT, NV, OR, RI 16 Professionals What does that mean: Cannot be impaired while performing tasks that would subject a licensed professional to a malpractice claim - Examples: Pharmacist Appraiser Masseuse Police Officer Doctor Barber Teacher Contractor Accountant Lawyer 17 Use of Medical Marijuana in the Workplace Employers not generally required to accommodate Medical Marijuana in the workplace May prohibit - Use - Sale - Possession Key May prohibit impairment Same as with any other substance 18 6
States that Impose Affirmative Obligations upon Employers Many states merely decriminalize possession Cannot be arrested Other states impose affirmative obligations on employers Arizona Connecticut Delaware Illinois Maine 19 States that Impose Affirmative Obligations upon Employers May not discriminate in terms and conditions of employment because employee is a patient who qualifies for using medical marijuana or is a caregiver Hiring Firing Hours Pay Terms and Conditions Position Discipline Benefits 20 Lessons from Other States Emerald Steel Fabricators, Inc., v. BLI (Oregon 2010) Temporary Employee used medical marijuana for anxiety and panic attacks 2 to 3 times/day Told employer about his use when offered a permanent position; Terminated one week later. BLI and Court of Appeals found that Employer failed to accommodate Employee s disability. 21 7
Lessons from Other States Emerald Steel Fabricators, Inc., v. BLI (Oregon 2010), cont. Oregon Supreme Court reversed Employers have no duty to accommodate the use of marijuana even when that use is sanctioned by the Oregon Medical Marijuana Program 22 Lessons from Other States Rationale: Still illegal under federal law and preempts state law Oregon statute a bar to controlled substances act Still an illegal drug under disability discrimination law Oregon bar ineffective 23 Lessons from Other States Ross v. Ragingwire Telecommunications (California) Facts: Employee fired after pre-employment test revealed marijuana use. Use prescribed by doctor for strain and muscle spasms. Not using marijuana at work. 24 8
Lessons from Other States Ruling: California law does not require employers to accommodate the use of illegal drugs. Grounds: California Compassionate Use Act exempted medical uses from criminal liability. Does not address employee and employee relations. Marijuana remains illegal under federal law. 25 Casias v. Wal-Mart Stores, Inc. (Michigan) Casias: Inoperable brain tumor Used Medical Marijuana after his shift. Tested positive for marijuana and was fired. 26 Casias v. Wal-Mart Stores, Inc. (Michigan) Claim: While Wal-Mart did not have to accommodate Employee, "they do have to refrain from firing him. Defense: The statute meant to decriminalize the use of Medical Marijuana, but not provide (civil) protections. 27 9
Casias v. Wal-Mart Stores, Inc. (Michigan) Holding Walmart did not violate state law, public policy or disability laws when it discharged an employee who tested positive for drugs because of authorized medical marijuana use. 28 Coats v. Dish Network (2013, Colorado Court of Appeals) Coats: Quadriplegic Never used medical marijuana at work Never under the influence at work Tested positive for marijuana in violation of drug policy Claim: Colorado Lawful Activities Statute Prohibits employers from discharging employee for lawful activities during off-duty hours 29 Coats v. Dish Network (2013, Colorado Court of Appeals) Ruling: Lawful means lawful under State AND Federal law Still subject to Colorado Supreme Court review Meaning: Can terminate an employee for use of marijuana 30 10
Beinoir V. Industrial Commission (Colorado) Denial of unemployment benefits for employee terminated after testing positive for marijuana Holding: Employees not shielded from employer policies 31 Areas of Conflict Controlled Substance Act Obama does not intend to prosecute - Compassionate use - Caregivers clear and unambiguous compliance with their state law Prosecution of commercial enterprises that unlawfully market or sell for a profit remain an enforcement priority Solely a guide to prosecutorial discretion Strict compliance required good faith efforts to comply have not been a defense Future Administrations????? 32 Areas of Conflict American with Disabilities Act Federal Drug Testing Statutes DOT Drivers Federal Contractors Pilots State Drug Statutes State Worker s Compensation Laws 33 11
Areas of Concern What are the concerns? Possibility of wrongful termination claims. Possibility of violation of employee privacy rights. Shouldn't it be treated like any other legal drug? Note: not required to be covered by insurance 34 Areas of Concern Most current drug-test procedures measure presence, not impairment Cannot be measured like BAC Some Police Agencies are experimenting with equipment More opportunities for liability More opportunities for inconsistent application of policies 35 Areas of Concern Impairment is the standard for Medical Marijuana You and your team should be trained to detect impairment Appearance Odor Dexterity Accident Behavior Disrupting Operations Other symptoms Speech Gait Agility Demeanor Disregard for others Carelessness 36 12
What Can Employers/Supervisors Do Remember: Impairment extends beyond Medical Marijuana Alcohol Legal Drugs/Prescriptions OTC Drugs Any other substance Consult with HR or someone with experience 37 What are Medibles Cannabis foods, more informally known as edibles, are food products made with cannabis in herbal or resin form as an ingredient. They are consumed as an alternate delivery means to experience the effects of cannabinoids without smoking or vaporizing cannabis or hashish. Wikipedia 38 Medibles 39 13
Medibles 40 Medibles 41 Medibles 42 14
Medibles 43 Medibles 44 Medibles 45 15
Police Officer 46 Questions?? 2014 All rights reserved. Notice: As part of our effort to inform you of changes in the law, Snell & Wilmer L.L.P. provides legal updates and presentations regarding general legal issues. Please be aware that the materials included within are provided as a courtesy and will not establish or reestablish an attorney-client relationship or assumption of responsibility by Snell & Wilmer to take any action with respect to your legal matters. The purpose of this material is to provide seminar attendees general information about recent changes in the law that may impact their business. This material should not be considered legal advice or opinion because their individual contents may not apply to the specific facts of a particular case. 47 16