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Up in Smoke: Drug Testing and the Marijuana Legalization Movement May 2, 2013 Presented By: Nancy N. Delogu, Esq. Katherine A. Goetzl, Esq. Littler Mendelson, P.C. www.littler.com 2
The Beginning of the Medical Marijuana Legalization Movement California Proposition 215 in 1996 Arizona Proposition 200 in 1996 3
Other states followed CA and AZ 1998 AK, DC,* OR, WA 1999 ME 2000 CO, HI,* NE 2004 MT, VT 2006 RI 2007 - NM 2008 MI 2010 NJ 2011 DE 2012 CT, MA 2013 MD 4
Provisions of Medical Marijuana Laws Generally Specifically related to employment 5
States Where Accommodation Of Medical Marijuana Use Is Required Arizona Connecticut Delaware Maine Rhode Island 6
Wait Can They Do That? Is state law in conflict with federal law? Is state law preempted by federal law? If state law allows medical marijuana use, is refusing to accommodate that use disability discrimination under state law? 7
Employment Cases Involving State Medical Marijuana Laws Ross v. RagingWire Telecommunications (California 2008) Johnson v. Columbia Falls Aluminum (Montana 2009) Emerald Steel Fabricators v. Bureau of Labor and Industries (Oregon 2010) Roe v. Teletech Customer Care Management (Washington 2011) Casias v. Wal-Mart Stores (6 th Cir. 2012) Coats v. Dish Network (Colorado 2013) 8
Federal Cases Involving Medical Marijuana U.S. v. Oakland Cannabis Buyers Cooperative (2001) Gonzales v. Raich (2005) Americans for Safe Access v. Drug Enforcement Agency (D.C. Cir. 2013) 9
Legalizing Marijuana for Recreational Use November 2012: Colorado and Washington voters approve marijuana for recreational use Intent is to regulate marijuana like alcohol Washington amends driving laws to recognize DUI for marijuana Colorado rejects revised DUI for marijuana White House confirms it will continue to enforce federal drug laws in Colorado and Washington 10
If Pot is Legal, What Must Employers Do? Washington s new law makes it clear employers need not accommodate or tolerate marijuana use. Consistent with Roe v. Teletech Customer Care Management Colorado s Task Force to implement Amendment 64 urges no change in employment law: the intent of the voters was to maintain the status quo for employers and employees, and that employers may maintain, create new, or modify existing policies in response to the passage of the measure. 11
If Pot is Legal, What Must Employers Do? Maine: employers subject to state law may owe treble damages for terminating an individual for testing positive under state law anyway, and very difficult to test in any event Rhode Island: employers may test only with probable cause to believe employee is impaired at work Few tests = hard to measure impact of obligation to accommodate individual who uses. 12
If Pot is Legal, What Must Employers Do? Arizona: if the employee is under the influence at work, the employee may be subject to discipline, even if the employee is a registered medical marijuana user Employers may conclude an employee is under the influence if a drug test conducted in accordance with voluntary state law is positive for marijuana Applicants may be denied work if the position is safety-sensitive 13
Pot Is Not Really Legal: What Next? Decide how to handle medical and non-medical marijuana use as a general rule Risks of accommodating: In states like CA and CO, the exception swallows the rule Impaired individuals may compromise safety Liability concerns Contracts and grants at risk DOT compliance Marijuana on site enhances risk of dealing, even law enforcement activity 14
Pot Is Not Really Legal: What Next? Decide how to handle medical and non-medical marijuana use as a general rule Risks of refusing to accommodate: State law penalties/lawsuits Criticism in the press (i.e., Wal-Mart) Employee morale issues 15
Medical marijuana not a basis to report negative result Marijuana use is disqualifying from covered positions 16
Drug-Free Workplace Act Applies to employers who have: with $150,000 services contracts from federal government and any amount of grant $ Publish policy prohibiting illegal drug use Report Drug-Related Crimes Occurring in the Workplace Risk contracts if non-compliant 17
What Next? Decide how to handle medical and non-medical marijuana use as a general rule Who weeds out the impaired from those with prescriptions? Focus on other drugs of abuse? 18
What Can Employers Do? Employers may typically discipline individuals for conduct inconsistent with their rules, even if conduct arguably related to a disability, if all workers are treated alike Employers may refuse to employ workers in jobs when the workers cannot perform safely (i.e., without posing a risk to themselves or others) 19
Integrate Marijuana Rules Into Policy Communicate your Policy to Employees and Applicants Ensure your testing policies comply with all other federal/state requirements Propose alternative reasonable accommodations for disabled workers Contemplate need for different approaches in different jurisdictions Stay abreast of developments 20
Questions? 21
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