Marijuana in the Workplace: The 411 on 420 Richard Moon rmoon@verrilldana.com Tawny Alvarez talvarez@verrilldana.com
Outline Super-brief history of legal cannabis Federal position as to marijuana State position(s) as to marijuana Recent court rulings concerning marijuana in the workplace Takeaways/Best Practices
Federal Position A Schedule I drug under the federal Controlled Substances Act Possession, usage, purchase, sale, and/or cultivation of marijuana is illegal May not be prescribed, administered, or dispensed Other Schedule I drugs include: Lysergic acid diethylamide (LSD) Diacetylmorphine (Heroin) Gamma Hydroxybutric Acid (GHB) MDMA (Ecstasy) Mescaline Peyote
The Ogden Memorandum In 2009, the Department of Justice issued a memorandum (Ogden Memorandum) announcing that the Justice Department would no longer make it an enforcement priority to pursue those who are in clear and unambiguous compliance with state medical marijuana laws in the then 14 states that had passed legislation legalizing medical marijuana.
The Cole Memorandum DOJ 2011 Guidance: The Ogden Memorandum was never intended to shield large scale cultivation, sale or distribution of marijuana from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Such persons are subject to federal enforcement action. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law.
Cole 2 Memorandum On August 29, 2013, the DOJ issues new guidance regarding marijuana enforcement priorities: Preventing distribution to minors; Preventing revenue from going to criminal enterprises, gangs, and cartels; Preventing diversion of marijuana from states where it is legal in some form to other states; Preventing marijuana activity from being used as a cover for the trafficking of other illegal drugs; Preventing violence and the use of firearms; Preventing drugged driving; Preventing the growing of marijuana on public lands Preventing marijuana possession or use on federal property.
Rohrabacher-Farr Amendment Signed into law on December 16, 2014, this amendment to an Omnibus spending bill prevents DOJ from using federal funds to go after state-legal medical marijuana programs: [n]one of the funds made available in this Act to the Department of Justice may be used with respect to [list of states with existing medical marijuana laws] to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
Sessions Memorandum January 4, 2018 References the Controlled Substances Act as well as the Bank Secrecy Act Marijuana is a dangerous drug and marijuana activity is a serious crime. Given the Department s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.
30 States and D.C. Have Enacted Laws to Legalize Medical Marijuana Since 1996: Alaska* Arizona Arkansas California* Colorado* Connecticut DC* Delaware Florida Hawaii Illinois Louisiana Maine* Maryland Massachusetts* Michigan Minnesota Montana Nevada* New Hampshire New Jersey New Mexico New York North Dakota Ohio Oregon* Pennsylvania Rhode Island Vermont Washington* West Virginia *HAVE ALSO LEGALIZED RECREATIONAL USE OF MARIJUANA 15 Additional States have some form of limited medical marijuana use
Is there anywhere it s not legal? Well remember it s still not legal under federal law, so arguably it s still not legal anywhere in the U.S. Also, however the following states have no statutes legalizing marijuana in any form: Texas -South Dakota -Nebraska Idaho -Kansas
Maine Maine Medical Use of Marijuana Act: A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person s status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when the administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises.
Maine Recreational Use: People over 21 years old may grow six mature plants and possess 2.5 ounces (effective January 30, 2017) Retail sales effective 2/1/2018 7 M.R.S.A. 2454 (effective 2/1/2018): This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. A school, employer, or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person s consuming marijuana outside of the school s, employer s or landlord s property.
Effects of Marijuana in the Workplace Short-term memory problems Impaired thinking Loss of balance and coordination Decreased concentration Changes in sensory perception Impaired ability to perform complex tasks Decreased alertness Decreased reaction
Biggest Issues Currently no way to test under the influence of marijuana when in the workplace Interactions with state drug testing laws Marijuana listed as appropriately tested Interaction with federal DOT regulations No exception as set forth in the medicinal statute
Recent Case Law Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456 (Mass. July 17, 2017) The act also makes clear that it does not require any accommodation of any on-site medical use of marijuana in any place of employment. St. 2012, c. 369, 7 (D). This limitation implicitly recognizes that the off-site medical use of marijuana might be a permissible accommodation, which is a term of art specific to the law of handicap discrimination. Callaghan v. Darlington Fabrics Corp., PC-2014-5680, 2017 WL 2321181 (R.I. Sup. Ct. May 23, 2017) Regardless, this Court agrees that Defendants are not required to make any accommodations for Plaintiff as they are defined in the employment discrimination context. They do not need to make existing facilities readily accessible. Sec. 42-87-1.1(4)(i). They do not need to restructure jobs, modify work schedules, reassign to a vacant position, or acquire or modify devices or examinations. Sec. 42-87-1.1(4)(ii). They do not even need to alter their existing drug and alcohol policy, which prohibits the illegal use, sale or possession of drugs or alcohol on company property. While that policy provides that all new applicants who are being considered for employment will be tested for drug or chemical use, it does not state that a positive result of such test will be cause for withdrawal of the job offer.
Best Practices Review of Policies/Practices Affect on Hiring Decisions Drug Testing Termination/Adverse Action Decisions