The Impact of Legalized Marijuana in the Workplace Vance Knapp Partner, Labor & Employment vknapp@shermanhoward.com

Transcription

1 The Impact of Legalized Marijuana in the Workplace Vance Knapp Partner, Labor & Employment

2 Background 23 states and the District of Columbia have legalized possession and use of limited amounts of marijuana for medical purposes. Colorado and Washington state have also legalized limited amounts of marijuana for recreational purposes.

3 Marijuana is Still Illegal Under Federal Law or Is It? We ve got bigger fish to fry, President Obama in response to a question concerning prosecution of marijuana users by Barbara Walters on ABC s Good Morning America on December 14, 2012.

4 Marijuana is Still Illegal Under Federal Law or Is It? On August 29, 2013, The U.S. Department of Justice issued a memorandum to all U.S. Attorneys updating its Guidance on marijuana enforcement. The DOJ is deferring its right to challenge legalization efforts at this time.

5 Drug Free Workplace Act Applies to any organization that receives a Federal contract of at least $100,000 to establish a drug-free workplace. It also requires that all organizations receiving Federal grants of any size establish and maintain such a policy. Does not require employers to drug test employees.

6 ADA Issues Involving Marijuana ADA does not require employers to accommodate the use of marijuana. However, if an employee enters a substance abuse program, employers have to accommodate the employees participation. ADA does not consider drug testing to be a medical examination.

7 Accommodation of Medical Marijuana Beware, some state anti-discrimination laws do not address marijuana use as an accommodation. Plaintiff s counsel could argue in states that have legalized medical marijuana, that under state antidiscrimination laws, an employee s use of marijuana to ameliorate the effects of a disability constitutes a reasonable accommodation.

8 Federal Status Bottom Line marijuana remains classified as a Schedule I narcotic under the Federal CSA. Marijuana cultivation, distribution, possession and use are still criminal acts under federal law. Marijuana is in the same category as Cocaine, Heroin, LSD and Ecstasy.

9 Can I Regulate My Employees Use of Marijuana? YES! At a minimum, employers in all 50 states and the District of Columbia can regulate an employee s use of marijuana by: Prohibiting marijuana possession and use at work; and Reporting to work impaired or under the influence of marijuana.

10 Court s Upholding Employer s Right to Terminate Employees Using Marijuana Roe v. Teletech Customer Care Management, LLC, 257 P.3d 586 (Wash. App. 2011) Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (CA. 2008) Johnson v. Columbia Falls Aluminum Co., 213 P.3d 789 (Mont. 2009)

11 Court s Upholding Employer s Right to Terminate Employees Using Marijuana Washburn v. Columbia Forest Products, Inc., 134 P.3d 161 (Ore. 2006) Casias v. Wal-Mart Stores, Inc., 635 F.3d 428 (6 th Cir. 2012) Coats v. Dish Network, 303 P.3d 147 cert. granted (Colo. App. 2013)

12 Can I Regulate My Employees Use of Marijuana? Employers may restrict the use of marijuana by employees; but can employers prohibit, the lawful offduty and off-premises use. Does having a trace amount of THC in your body constitute use or possession at work? When is an employee impaired or under the influence by THC? Combating employees perceptions concerning their constitutional right to use marijuana v. reality.

13 Can I Regulate My Employees Use of Marijuana? Colorado s Lawful Off-Duty Activities Statute, C.R.S , makes it a discriminatory or unfair employment practice to terminate an employee who is engaged in lawful off-duty, off-premises activities. Coats v. Dish Network The Colorado Court of Appeals held that medical marijuana use is not lawful for purposes of Colorado s Law Off-Duty Activities Statute. Oral arguments in Colorado Supreme Court are pending for this fall.

14 Policy Options No Testing v. Reasonable Suspicion/Post Accident Testing v. Random Testing

15 Policy Options Beware local drug testing ordinances. Is there a threshold for impairment? Is Marijuana use addressed in your collective bargaining agreement with your unionized workers? If so, what are the requirements for drug testing and discipline?

16 How Should I Address Marijuana Use in My Employment Policies? Review your substance abuse policy to ensure its restrictions concerning marijuana use are consistent with the restrictions contained your respective jurisdiction. E.g., Acme Company does not permit the possession, distribution or use of illegal substances (including medical and recreational marijuana).

17 How Should I Address Marijuana Use in My Employment Policies? Review your job descriptions. Can you make a case for all employees having safety sensitive positions? If not, why? Treat similarly-situated employees the same.

18 How Should I Address Marijuana Use in My Employment Policies? Educate your employees, vendors, customers and guests about your marijuana possession and use policies.

19 The Impact of Legalized Marijuana in the Workplace Vance Knapp Partner, Labor & Employment