Tony Comden Stephanie Quist - PDF Free Download

Tony Comden Stephanie Quist The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer. 2 2017 Miller Johnson. All rights reserved. 1

3 According to Gallup: 2013: 7% of American adults reported currently smoking marijuana 2016: 13% of American adults reported currently smoking marijuana Percentage nearly doubled over just 3 years 4 2017 Miller Johnson. All rights reserved. 2

AR Source: National Conference of State Legislatures 7 29 States and D.C. have medical marijuana laws: Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Hawaii Illinois 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 (2019) 8 2017 Miller Johnson. All rights reserved. 4

8 states and D.C. also permit recreational marijuana use: Alaska California Colorado Maine Massachusetts Nevada Oregon Washington 9 This is a fluid, developing area of the law State legislatures have not had a chance to remedy gray areas Courts have not had a chance to provide further guidance Source: National Conference of State Legislatures 10 2017 Miller Johnson. All rights reserved. 5

11 The Act s Protections Qualified patients shall not be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this Act. 12 2017 Miller Johnson. All rights reserved. 6

Amended effective December 2016 MMMA now covers edibles and other substances defined as marijuana infused products. Extensive and detailed rules about the amount of a marijuana infused product that can be possessed by a card holder (or caregiver) 2.5 ounces of regular medical marijuana = 36 ounces of liquid marijuana infused products = 16 ounces of solid marijuana infused product = 7 grams of gaseous marijuana infused product 13 If I have a Michigan Medical Marijuana Card, my employer cannot terminate me for having THC in my system when I have a drug test [True / False] The December 2016 amendments to the MMMA allow me to use marijuana infused edibles at work [True / False] Marijuana use is a protected characteristic under state and federal law [True / False] 14 2017 Miller Johnson. All rights reserved. 7

The MMMA does not: Regulate private employment Casias v Wal-Mart, 695 F.3d 428 (6th Cir. 2012) Protect Michigan employees from disciplinary action for otherwise lawful use of medical marijuana Create any obligation by employers to accommodate medical marijuana (including edibles) Require government medical assistance programs or commercial/non-profit health insurers to reimburse for costs associated with medical marijuana use (2013 amendments) 15 Employees who are terminated for medical marijuana use are eligible for unemployment benefits in Michigan Braska v Challenge Manufacturing Company, Michigan Court of Appeals (2014) Braska was a breakthrough decision, and not clear other states will follow suit 16 2017 Miller Johnson. All rights reserved. 8

17 State marijuana use laws do not change federal law Marijuana use, possession, and sale still illegal under federal law To date, the USDOJ has not prosecuted for legitimate medical marijuana use 18 2017 Miller Johnson. All rights reserved. 9

Will the Trump Administration change course? Attorney General Jeff Sessions is not a marijuana fan: Slightly less awful than heroin. What about Congress? Marijuana Effective Drug Study Act introduced by Sen. Orrin Hatch (R-Utah) last month. 19 Disability? Use of medical marijuana No ADA does not protect individuals currently engaging in the illegal use of drugs prohibited under federal law But: underlying condition may be disability Reasonable accommodation? Ingestion at work No Being under the influence while at work - No Leave to accommodate use outside of work -?? 20 2017 Miller Johnson. All rights reserved. 10

Use of medical marijuana is not a serious health condition under the FMLA But, FMLA leave may be required to accommodate medical use of marijuana due to a serious health condition Employee may be eligible for FMLA leave to seek treatment for substance abuse 21 What about federal contractors/dot regulations? No state requires employers to ignore federal contract requirements or violate federal licensing laws or regulations (such as DOT regulations) Some states have specific carve-out Arizona: May not discriminate unless a failure to do so would cause an employer to lose a monetary or licensing benefit under federal law or regulation CT, DE, IL, MN, NY, OH, PA have similar provisions 22 2017 Miller Johnson. All rights reserved. 11

23 Question #1: Can I discipline or discharge an employee who ingests/smokes marijuana while at work? Yes Two exceptions: Maine: Can only prohibit smoking of marijuana if owner prohibits all smoking on premises (not clear how this applies in employment context) Maryland: May prohibit only if employer has policy prohibiting marijuana use while at work 24 2017 Miller Johnson. All rights reserved. 12

Question #2: Can I refuse to hire or terminate employment based only on the fact that an individual possesses a medical marijuana card or license? 25 Yes: Oregon Emerald Steel Fabricators v. Bureau of Labor, 2010 Montana If employment contract contains provision prohibiting the use of marijuana for a debilitating medical condition No: AZ, AR, CT, DE, IL, ME, MA, MN, NV, NY, PA, RI, WV Everywhere else:??? 26 2017 Miller Johnson. All rights reserved. 13

Question #3: An employee tests positive for marijuana (THC) and presents me with a medical marijuana card. Can I refuse to hire, discipline or discharge the employee based solely on the positive test result (without any other evidence of impairment while at work)? 27 Yes: CA, CO, FL, GA, MI, MT, OH, OR, WA Yes, if you have a non-discriminatory policy: IA No: AZ, AR, DE, MA, MN, RI Note: Also use caution in states where adverse action based on possessing medical marijuana card prohibited, especially in pre-employment context Everywhere else:??? 28 2017 Miller Johnson. All rights reserved. 14

Question #4: Can I discipline or discharge an employee who is working while under the influence of medical marijuana (i.e., has some evidence of impairment other than a positive drug test)? Yes, but what does under the influence mean? 29 Under the Influence Vast majority of states do not define the term Some state laws prohibit undertaking any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice DE, DC, MD, RI, WV 30 2017 Miller Johnson. All rights reserved. 15

Under the Influence (cont.) Arkansas: Good faith belief not based solely on positive test result New York: If employer has policy prohibiting performance of duties while impaired Pennsylvania: When an employee s conduct falls below the normal standard of care for the employee s position And then we have Illinois 31 An employer may consider a registered qualifying patient to be impaired when he or she manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others. 410 Ill Comp. Stat. Ann. 130/50 32 2017 Miller Johnson. All rights reserved. 16

Question #5: What should I do if an employee requests an accommodation due to side effects of medical marijuana use? 33 State law has little to say directly on this issue Likely do not need to make reasonable accommodation where state law does not protect cardholder status or permits discipline/discharge based on positive drug test 34 2017 Miller Johnson. All rights reserved. 17

Nevada Employer must attempt to make reasonable accommodations for lawful medical marijuana use unless accommodation would (1) pose a threat to others, (2) impose undue hardship on the employer, or (3) prohibit employee from fulfilling job responsibilities New York Individuals with medical marijuana card have disability under state discrimination law No further guidance on how employers must accommodate medical marijuana use 35 Rhode Island Callaghan v. Darlington Fabrics (state trial court 2017) Employer s written policy did not contain language disqualifying applicants who tested positive on preemployment drug screen Court: absent written policy, deciding not to automatically disqualify an individual with a medical marijuana card may be reasonable accommodation Don t forget about the ADA 36 2017 Miller Johnson. All rights reserved. 18

Case Study Barbuto v. Advantage Sales and Marketing Massachusetts Supreme Judicial Court (July 2017) Facts: Employee offered position with employer Employee informed supervisor she would test positive for marijuana on pre-employment drug test due to occasionally taking marijuana for Crohn s disease Employee had medical marijuana card Employer terminated employment under drug policy after employee tested positive for marijuana 37 Case Study (cont.) Trial Court: No claim under state medical marijuana law No claim under state disability discrimination law Request to accommodate medical marijuana use facially unreasonable because use of marijuana illegal under federal law Dismissed case/plaintiff appealed 38 2017 Miller Johnson. All rights reserved. 19

Case Study (cont.) State Supreme Court: Reversed Didn t need to decide whether employee could sue under state medical marijuana law, because Under MA disability discrimination law Crohn s disease characterized as debilitating condition under state medical marijuana act, and employee struggled with appetite and weight loss Request to accommodate marijuana use not facially unreasonable even though prohibited by federal law Employer had duty to engage in interactive process to assess alternative medication options If no alternative existed, employer had burden to prove undue hardship 39 Other considerations when addressing state marijuana laws: Unemployment Braska v Challenge Manufacturing Company (MI) Workers compensation Nevada: employer does not have to pay workers compensation if injury caused by effects of medical marijuana use Vermont: employers do not need to cover medical marijuana expenses under workers compensation 40 2017 Miller Johnson. All rights reserved. 20

41 1. Don t panic Medical marijuana may be a hot-button social issue, but not necessarily new policy ground In many cases, addressing medical marijuana can be addressed in the same manner as prescription narcotics or other performance-impairing substances 42 2017 Miller Johnson. All rights reserved. 21

2. Have a written substance abuse policy Prohibited substances: Should not be limited to illegal drugs Should include any substance that could adversely affect an employee s judgment, cognition, behavior, ability to perform job duties in a safe and effective manner Should cover drugs/substances prohibited under state and federal law 43 2. Written substance abuse policy (cont.) Prohibited Activities: Prohibit possession, use, transfer, being under the influence or impaired, having a detectable level in one s body (*where permitted by law) While on duty, while on company property, or while performing any activity in the course of employment Require notification if employees are taking drugs/substances that could impair performance 44 2017 Miller Johnson. All rights reserved. 22

2. Written substance abuse policy (cont.) Drug Testing Pre-employment (but be careful how you use it) Reasonable suspicion Signs of impairment; unexplained changes in performance, conduct, attendance; coworker observations; possession Post-incident (not post-accident ): After any incident that involves actual or potential personal injury, property damage, or unsafe behaviors 45 2. Written substance abuse policy (cont.) Drug Testing On-demand: Typically post-discipline, or under a last chance agreement Random: Required by DOT and other federal regulations for various safety-sensitive jobs Not widely used elsewhere Return to work/duty: Be careful if employee is returning from a protected leave such as FMLA or military leave 46 2017 Miller Johnson. All rights reserved. 23

3. Identify state-specific issues Now is the time to identify red flags Where practical, tailor your written policies to specific state requirements Understand that this is a new and fluid area of law, so periodically ensure relevant state laws have not changed 47 4. Train your supervisors regarding: Your policy Protocols/mechanics Spotting impairment Required documentation State-specific issues 48 2017 Miller Johnson. All rights reserved. 24

Tony Comden 616.831.1757 comdent@millerjohnson.com Stephanie J. Quist 616.831.1794 quists@millerjohnson.com millerjohnson.com 45 Ottawa Ave SW Suite 1100 Grand Rapids, MI 49503 100 W Michigan Ave Suite 200 Kalamazoo, MI 49007 51 2017 Miller Johnson. All rights reserved. 26