Medical Marijuana Legalization Summit 2017 Effects on Employers Adam D. Kemper, Esq., Greenspoon Marder Stephanie C. Mazzola, Esq., Tripp Scott Disclaimer Legal advice may only be provided by an attorney licensed to practice law in your jurisdiction. This presentation is for informational and educational purposes only. It is not intended to provide legal analysis or advice on any specific issues. No portion may be copied or reprinted without written permission. Legalization of Marijuana Limitations to use (in public and in the workplace) Limitations to purchase Cannot drive under the influence Just because it is recommended by physicians, does not make it safe or acceptable to consume in workplace 1
Federal Illegal Marijuana is considered a Schedule 1 controlled substance under the controlled substances act. This means that a federal level, it is a banned substance, considered highly addictive and dangerous. May be enforced more under Trump/Sessions No obligations under the ADA to offer reasonable accommodation to use marijuana. Can terminate employee for utilizing marijuana or for failing drug test. Florida s History of Medical Marijuana In 2014, Florida Governor Rick Scott signed into law SB 1030, also known as the Charlotte s Web bill. This bill legalized a low-thc strain of marijuana for terminally ill patients and patients suffering from chronic seizures or severe muscle spasms. (Fla. Stat. 381.986) In 2014, a similar initiative, also named Amendment 2, was placed on the ballot on November 4, 2014, but was defeated. After some changes to the language, The Florida Medical Marijuana Legalization Initiative (i.e. 2016 s Amendment 2 ) was placed on the November 8, 2016 ballot. Florida November 8, 2016-Florida legalized Use of Marijuana for Debilitating Medical Conditions (e.g. cancer, HIV/AIDS, epilepsy, Parkinson's, multiple sclerosis, ALS, PTSD). Ballot Summary: Allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician. Allows caregivers to assist patients medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not immunize violations of federal law or any non-medical use, possession or production of marijuana. 2
Florida (continued) Limitations Doesn t repeal laws on non-medical use, possession, production or sale Doesn t authorize the use of medical marijuana by anyone other than a qualifying patient Cannot operate a vehicle, aircraft, train or boat while under the influence of marijuana No immunity under federal law nothing in this section shall require any accommodation of any on-side medical use of marijuana in any correctional institution, detention facility or place of education or employment, or smoking medical marijuana in any public place. The Florida legislature is going to attempt a bill this upcoming session (March-May). The Florida Department of Health has until July 2017 to issue regulations which will hopefully clarify many of these issues. Our Firm will be monitoring this closely. Florida now joins the ranks of 27 other states and the District of Columbia to have medical marijuana laws in place. Employer Obligations Hiring Pre-Employment Drug Screen Background check Review of prior arrests/conviction Application materials ( ban the box ) Employer Obligations During Employment Maintenance of a safe workplace Drug and Alcohol screening Comply with wage and hour laws Avoiding liability to third parties ADA and AIDS-related compliance (Fla. Stat. 760.50) and avoidance of discrimination 3
Best Practices Notify your employees of your policy Zero-tolerance means zero-tolerance Draft policies narrowly tailored to company needs Don t ignore a disability Don t discriminate Consistency is key Best Practices Apply policies consistently Keep in mind HIPAA with respect to medical marijuana related doctor visits Engage in interactive process upon receipt of ADA request for accommodation Be aware of state and local laws in jurisdictions where your company operates Do not go at this alone Comply, comply, comply Best Practices- Drug Testing Florida and federal drug testing laws generally allow employers to test employees for cause. Private employers may conduct random testing in Florida. Florida followed federal law and enacted the Florida Drug-Free Workplace Act in 1990 (Fla. Stat. 440.102 and 112.0455). DFWA allows for drug testing as follows: (i) job applicant testing; (ii) reasonable suspicion testing (e.g. workplace accident involving safety procedure); (iii) routine fitness-forduty testing; and (iv) follow-up drug testing. 4
Best Practices- Drug Testing Drug-testing policies should be consistent (i.e. apply to all employees). Tests for marijuana do not always indicate current impairment since marijuana can stay in an individual s system for weeks. Thus, an employee s off-duty medical marijuana use can lead him or her to fail an employer s drug test. Some states offer protection to medical marijuana users by requiring employers to prove evidence of impairment in addition to the positive drug test. Florida currently does not have an impairment plus regulation and employers can maintain current zero tolerance drug policies. Best Practices-Zero-Tolerance Drug Policies Employers should maintain a zero-tolerance drug policy Policy should articulate zero-tolerance for use of drugs and abusive alcohol use or other illegal behavior. Policy may also allow for discharge or discipline of an employee or refusal to hire an applicant if an employee or applicant refuses to submit to a drug test. (Fla. Stat. 440.102(7)(f)). Require employees toacknowledge the drug policy in writing. Documentation is always critical if taking an adverse employment action. Ensure HR is aware that steps should be taken to document violations of company policies. Utilize progressive discipline where necessary. Best Practices-Employee Handbooks Employers should review and update employee handbooks Policies that previously prohibited working under the influence should be updated since THC can remain in system many days after off-duty use. SUGGESTION: Amend language in handbooks to also prohibit employees from being under any influence of marijuana or any detectable level of any controlled substance. Policies that previously permitted use of legally prescribed or recommended drugs should be updated since medical marijuana is now legal in Florida. SUGGESTION: Amend language to state that the use of a drug that can be legally prescribed or recommended under both federal and state law does not violate the employer s policy. 5
Interplay of ADA and Amendment 2 Under the Americans with Disabilities Act, employers cannot discriminate against a qualified employee with a disability. Under the ADA, employers must make reasonable accommodations that enable employees with disabilities to enjoy equal benefits of employment. Question: Does the ADA require an employer to provide a reasonable accommodation to an employee at work who is a registered medical marijuana card holder? Answer: An employer would not be required to permit an employee to use medical marijuana on his or her break to alleviate a qualified debilitating medical condition. Is a Medical Marijuana User a Qualified Individual with a Disability Under the ADA? ADA states that a person currently using illegal drugs is not a qualified individual with a disability and are expressly excluded from protection under the ADA, where an employer acts on the basis of such use. 42 U.S.C. 12114(a). Key Takeaway- If an employee is terminated for illegal drug use, and he is engaging in such use, he does not qualify as disabled under the ADA subject to its protections. REMINDER: Medical marijuana is still illegal under federal law. We will be monitoring developments in Florida law to see if Florida employers will be required to accommodate an employee s off-duty medical use. What if the Underlying Medical Condition Constitutes a Disability under the ADA? If an employee s underlying medical condition is a disability under the ADA, the employer should discuss reasonable accommodations (other than medical marijuana use) prior to taking any adverse employment action. One Example: providing FMLA leave to the employee if they qualify for such leave based upon the underlying medical condition. 6
Other States Courts in California, Oregon, Washington, Montana, Colorado and New Mexico have ruled in favor of employers who fired employees for using marijuana in violation of company policy. Pennsylvania and Maine-explicitly prohibit employers from discriminating against employees because of their status of medical marijuana cardholders. New Jersey-employers need not accommodate marijuana use in the workplace, butissilent onoff-duty medical use. In Arizona, Delaware, New York and Minnesota, the burden is on the employer to prove the employee tested positive, but was also impaired at work. A Closer Look at Case Law There are no cases in Florida regarding Amendment 2 in the employment context to date. However, there are many cases discussing employer obligations across the U.S. in states that have enacted medical marijuana laws previously. Overall theme of these cases: Pro-Employer- Employers are not restricted in their ability to discipline employees for authorized medical marijuana use (including discharge) if they test positive at work. Rationale: In most circumstances, medical marijuana laws do not regulate private employment actions. REMINDER: Florida s Amendment 2 states that the law does not require any accommodation of on-site medical marijuana in any place of employment. It also does not contain any prohibition against discrimination on the basis of an individual carrying a medical marijuana registration card. Case Law- Washington Swaw v. Safeway, Inc. (Case No. C15-939, W.D. Wash., Nov. 20, 2015)- Employer may lawfully terminate an employee for using medical marijuana, despite the employee s defenses that he had a valid prescription and used the marijuana when he was off-duty. Key Takeaway- Medical marijuana users are not in a protected class and thus, cannot argue disparate treatment. Roe v. Teletech Customer Care Management (Colorado) LLC, 171 Wash. 2d 736 (Jun. 9, 2011)- Private employer may rescind a conditional offer of employment based on prospective employee s failing of a drug test despite being an authorized medical marijuana user. Key Takeaway- Washington s medical marijuana law did not require accommodation or protect an applicant or employee from adverse consequences under an employer s drug policy. 7
Case Law- Colorado Coats v. Dish Network, LLC, 350 P. 3d 849 (Sup. Ct. Jun. 15, 2015)- Supreme Court of Colorado upheld a decision of the lower court finding that employer Dish Network LLC lawfully terminated employee based on violation of company s drug policy after employee tested positive for THC during a random drug test even though employee was a registered medical marijuana patient and did not use medical marijuana during work. Case Law- California Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 920 (Cal. Jan. 24, 2008) Newly hired employee filed suit against former employee for firing him after he failed a preemployment drug test due to use of medical marijuana, alleging such termination violated his rights as medical marijuana use was permitted under California s Compassionate Use Act of 1996. Holding: Employee could not state a claim for disability based discrimination or wrongful termination since nothing in the California law suggested the intent to address rights and duties of employers and employees. Key Takeaway: Employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions. Federal Case Law Casias v. Wal-Mart Stores, Inc., 695 F. 3d 428 (6th Cir. Sept. 19, 2012)- Former employee sued former employer claiming wrongful discharge in connection with his termination after he tested positive for marijuana in violation of the company s drug use policy. Under Michigan s Medical Marijuana Act, this employee had a registry card and was using marijuana for pain management purposes for his sinus cancer and brain tumor after work, and never at work. After an injury on the job, a standard drug test was administered and the positive test result led to the employee s termination. Holding: Michigan s Medical Marijuana Act did not restrict private employer s ability to discipline employee for medical marijuana use. 8
Trends in Case Law Case law across the nation has demonstrated that Courts are willing to uphold an employer s refusal to hire an applicant or their discipline of an employee with a medical marijuana prescription who tests positive on a drug test. Further examples: Oregon (Emerald Steel Fabricators, Inc. v. BOLI, 230 P. 3d 518 (Or. 2010) Montana (Johnson v. Columbia Falls Aluminum Co., 213 P. 3d 789 (Mont. 2009) James v. City of Costa Mesa, 700 F. 3d 394 (9th Cir. 2012) Q&A????? Any questions? For any follow up on the topics we discussed or any other HR, employment or labor-related issues, please contact Adam Kemper at adam.kemper@gmlaw.com or by phone at 954-491-1120; or Stephanie Mazzola at scm@trippscott.com or by phone at 954-765-2915. 9