By: Gregory B. Cairns, Esq. CAIRNS & ASSOCIATES, P.C E. Mexico Ave., Suite 700 Denver, CO 80210

Transcription

1 By: Gregory B. Cairns, Esq. CAIRNS & ASSOCIATES, P.C E. Mexico Ave., Suite 700 Denver, CO 80210

2 Gregory B. Cairns, Esq. Gregory B. Cairns, Esq. CAIRNS & ASSOCIATES, P.C E. Mexico Ave., Suite 700 Denver, CO (303) direct line (866) fax gcairns@cairnslegal.com - Biography: Mr. Cairns practice focuses on workers compensation defense and related employment law. Mr. Cairns attended the University of Wisconsin at Madison where he received a Bachelor of Arts degree with honors in Psychology in He also attended the University of Wisconsin at Milwaukee where he pursued a Master's in industrial psychology. Following graduate school, he obtained his law degree from the University of Texas at Austin in Mr. Cairns has been licensed to practice law in the State of Colorado since Mr. Cairns has twenty-nine years of experience as a defense attorney in matters relating to workers' compensation and employment law. He has published several articles in The Colorado Lawyer concerning employment issues and pre-judgment interest, and has been a frequent speaker concerning workers' compensation, pre-employment testing, the American with Disabilities Act of 1990, and the Family and Medical Leave Act of He has taught basic legal research in the paralegal training programs for Metropolitan State College in Denver and the Denver Paralegal Institute. In addition, he is the founder and principal instructor for The Center for Workers' Compensation Training, a private occupational school. Mr. Cairns, who hails from Wisconsin, currently practices as president and founder of Cairns & Associates, P.C., Denver, Colorado. In 2004 he was named an Outstanding Lawyer of America.

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4 1. Sixteen (16) States and the District of Columbia have explicitly legalized Medical Marijuana (MM). Multiple States have symbolic laws on the book with no practical utility. 15 States have never had a positive MM law. 2. MM is classified by the Food & Drug Administration ( FDA) as a Schedule I controlled substance, which means it is illegal and considered to have a high potential for abuse without any medicinal value. 3. Several states disagree with the federal government about medical efficacy: Specific illnesses covered include cancer, glaucoma, pain/chronic illness and HIV/AIDS. 4. There have been 3 key federal cases regarding MM: Raich v. Ashcroft (federal government can arrest and prosecute patients in states where usage is legal); U.S. v. Oakland Cannibis Buyers Cooperative (OCBC) (medical necessity defense cannot be used to avoid federal prosecution); and Conant v. Walters (9 th Circuit held doctors cannot be prosecuted for recommending usage). 5. On 2/25/09, the US Attorney General announced that the Drug Enforcement Agency (DEA) would no longer raid dispensaries authorized by state law; on 10/19/09, the US Deputy Attorney released a memo authorizing the use of MM so long as it complies with state law.

5 6. About 99% of arrests for possession of MM are at state level. 7. State laws do not regulate MM s quality or potency, and the majority do not address ways to obtain the drug. Only 4 states (California, Colorado, New Mexico and Maine) and the District of Columbia regulate dispensaries; most states allow home cultivation. Some designate the National Institute of Drug Abuse (NIDA) or some state agency as primary source. 8. Most states limit the amount of MM that patients or caretakers can possess or cultivate. 9. States vary whether they require registry and identification cards: 13 states (and soon the District of Columbia) have a registry. In states where users are issued an ID, patients are protected from arrest and prosecution; in some states users can be arrested but have an affirmative defense. 10. A 2004 poll commissioned by AARP found 72% of Americans 45 or older thought MM should be legal if recommended by a doctor.

6 1. Amendment 20, now codified as Article 18, Section 14 of the Colorado State Constitution, makes it lawful for Colorado residents to use medical marijuana IF THEY FOLLOW THE RULES. 2. One of the rules is that a patient must have a recommendation (or advisement) from a physician licensed in the State of Colorado that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition. 3. Another rule is that, absent special needs, it is lawful to possess no more than two ounces of a usable form of marijuana and no more than 6 marijuana plants, with no more than 3 which are flowering (mature). 4. Medical marijuana can be smoked, inhaled, ingested through food or tincture, absorbed through the skin, taken in pill form or drunk. 5. There are very few double blind, peer-reviewed studies about the efficacy of medical marijuana; anecdotal evidence suggests that it is helpful for those who suffer from nausea, sleeplessness, pain and lack of appetite.

7 6. It is still a federal crime to possess, use, sell and grow marijuana; however, the federal Justice Department instructed federal officers to refrain from prosecution of users of medical marijuana in the then 14 states where usage is allowed by state law. 7. It is estimated that there are between 200,000 to 300,000 Colorado residents who possess recommendations from physicians for use of medical marijuana; not all of them have been registered with the State (which affords even greater protection from prosecution than possessing just a recommendation from a doctor). Over 154,000 residents have applied to the registry; 121,476 are registered (10/23) 8. The average age of registered MM users is 41; 47 are minors 9. It is estimated that there are as many as 600 dispensaries operating in Colorado, at least 329 of which are in Denver. 10. The 2010 and 2011 legislatures have produced legislation regulating dispensaries and the physician/patient relationship, but issues pertaining to employment, workers compensation, child welfare, criminal prosecution, waste disposal, parolees/probationers etc. will need future legislation or judicial determinations.

8 Can Municipalities Manage Risk By Zoning? Ban production, storage, sale, manufacturing, etc. Moratorium Careful zoning In Colorado, yes! In California & Elsewhere, Maybe

9 Can Municipalities Manage Risk by Licensing? In Colorado and New Mexico, Yes! Elsewhere, Maybe In Colorado, local governments can require licensing with them before application with the State. In Colorado, local governments can impose restrictions greater than the State s. Licensing is a source of funds.

10 Can Municipalities Tax Medical Marijuana? In Colorado and california, Yes! Elsewhere, Maybe Currently only California and Colorado tax and regulate MM sales. In Colorado, both the State and local governments can tax MM. If all marijuana were legalized and taxed, at least one expert projects 20.1 billion dollars boost to government budgets (6.4 billion in tax revenue, remainder in reduced enforcement costs) (Miron, 2010)

11 Are There Special Enforcement Issues for Municipalities Regarding Medical Marijuana? Not Really Public usage is usually banned by state law. For DUID, police should focus on impairment, not possession. There is no specific scientific standard for impairment from drug usage in most states; in 4 states, 5-10 nanograms per blood liter is per se impaired ; 15 zero tolerance states Apply same rules regarding confiscation of any contraband: If you break it, you own it. Is it worth the lawsuit to keep the product and paraphernalia?

12 Does a private health insurance carrier, governmental entity, or any private entity providing health insurance have to reimburse a user of medical marijuana? In Colorado, NO! There is no federal or state law that requires a governmental, private or any other entity providing health insurance to pay for it. Amendment 20 relieves a governmental, private or any other entity providing health insurance of the liability for any claim for reimbursement for the use of medical marijuana. Further, its usage is still a violation of federal law, and insurance regulations may prohibit payment for illegal treatment.

13 Does a private health insurance carrier, governmental entity, or any private entity providing health insurance have to reimburse a user of medical marijuana? Across the USA, Probably NO! There is no federal or state law that requires a governmental, private or any other entity providing health insurance to pay for it. Medicare and Medicaid will not pay for it, so why would a private or other public plan? Further, its usage is still a violation of federal law, and insurance regulations may prohibit payment for illegal treatment.

14 Does a workers compensation carrier or self-insured employer have to pay for medical marijuana? In Colorado, Probably No. Amendment 20 probably relieves insurance carrier and self-insured employers from payment, although it does not specifically refer to workers compensation insurers and it refers to reimbursement rather than direct pay. If Amendment 20 does not specifically protect insurance carriers and selfinsureds from liability, there is an equal protection argument that it does. It is still a federal crime to use it and no carrier can provide illegal treatment. The DOWC has no fee schedule, treatment guideline, rule of procedure or other pronouncement regarding it. (However, at least one arbitrator has ordered MM in several cases to allow respondents to submit an order to Medicare authorities and thereby avoid liability for narcotics). The FDA has not approved it. There is no federal or state case law requiring a carrier or self-insured carrier to provide it to a workers compensation claimant.

15 Does a workers compensation carrier or self-insured employer have to pay for medical marijuana? Across the USA, Probably No. No state statute addresses the issue, but none requires payment of MM either. It will be up to the state courts and legislatures to address the issue. An administrative judge in Iowa has ordered payment for MM, but that case may be under appeal. It is still a federal crime to use it and no carrier can provide illegal treatment. The FDA has not approved it. There is no federal or state case law requiring a carrier or self-insured carrier to provide it to a workers compensation claimant. However, a carrier MAY want to consider paying for MM if it can avoid a massive liability for lifetime narcotics.

16 Can workers compensation penalties be applied to users of medical marijuana who are injured? It Depends on the State, but probably Yes! Avoidance of Claim Safety Rule Violation Intoxication Responsible for separation from employment

17 If an employee is injured in Colorado while under the influence of medical marijuana, can the employer/carrier take a 50% penalty for a safety rule violation? It depends on the following: 1. Does the employer have a safety rule which prohibits use of controlled substances prohibited by federal or state law? 2. Was the rule communicated to the employee? 3. Can the employer show that the employee knew there were consequences for a violation of the rule? 4. Does the employer uniformly enforce the rule? 5. Can the employer/carrier demonstrate a causal connection between violation of the rule and the claimant s accident? 6. Can the employer/carrier demonstrate that the employee s usage was willful?

18 Can a Colorado employer/carrier take a 50% penalty for a violation of the intoxication statute? It depends on the following: 1. Did the test provider retain duplicate samples of the claimant s drug test? 2. Can the employer/carrier convince the administrative law judge that marijuana is a non-prescribed controlled substance? 3. Will the claimant be able to rebut the presumption that there is a causal connection between the presence of cannabinoids in his/her system and the accident?

19 Can a Colorado employer/carrier avoid paying temporary disability benefits if the claimant is terminated for cause because of the presence of medical marijuana in his/her system? YES, if the employer/carrier can prove the following: 1. The employer publishes a rule which mandates termination for usage of controlled substances forbidden by federal or state law. 2. The employer/carrier can prove that the employee knew the rules and consequences of breaking them. 3. The employer/carrier can convince the ALJ that the usage of medical marijuana was willful in the sense of a volitional act. 4. The employer uniformly enforces the rule. 5. The use of marijuana was NOT the cause of the accident (per Colorado Springs Disposal)(which means that the employer/carrier would not get the intoxication penalty).

20 Does an employer have to accommodate the use of medical marijuana in the workplace? Probably NO! 1. Accommodation for MM usage may include longer breaks; ignoring positive findings on drug screens; or special storage; smoking or napping areas. 2. Many state statutes specifically state that no employer need accommodate the use of medical marijuana in the workplace. 3. The ADA (as amended) does not require reasonable accommodation for current users of illegal drugs. 4. CAUTION: The ADA may require interactive discussion of accommodation for the medical condition for which the employee takes MM.

21 Does a Colorado employer have to accommodate the use of medical marijuana in the workplace? NO! 1. Amendment 20 specifically states that no employer need accommodate the use of medical marijuana in the workplace. 2. The ADA (as amended) does not require reasonable accommodation for current users of illegal drugs. 3. The Colorado Anti-Discrimination Act follows the ADA in this regard. 4. The Colorado statute which prohibits termination of an employee for lawful off premises behavior, if it even applies, does not prohibit an employer from taking negative employment actions other than termination. 5. CAUTION: The ADA may require interactive discussion of accommodation for the medical condition for which the employee takes MM.

22 Is there any federal or state law which protects the job of an employee who tests positive for medical marijuana pursuant to a lawful drug screen at work or after injury? Usually, no. 1. None of the following federal statutes can be construed to protect a current user of a controlled substance prohibited by federal law: ADA, FMLA, Title VII, Older Workers Protection Act/ADEA, HIPAA, OSHA, ERISA, etc. 2. Further, certain federal laws mandate that some employers cannot retain current users of controlled substances prohibited by federal law: all federal contractors, employers regulated by the Department of Transportation regulations, etc. 3. CAUTION: The ADA may require interactive discussion of accommodation for the medical condition for which the employee takes marijuana.

23 Is there any federal or state law which protects the job of an employee who tests positive for medical marijuana pursuant to a lawful drug screen at work or after injury? Usually, no. 1. Most states are silent about whether non-impaired users of MM can be terminated without cause of action. 2. Courts in Washington, California, Michigan and Montana have ruled that MM users jobs are not protected. 3. Remember that certain federal laws mandate that some employers cannot retain current users of controlled substances prohibited by federal law: all federal contractors, employers regulated by the Department of Transportation regulations, etc.

24 Does Colorado s statute which protects an employee s job if he/she engages in lawful activities outside of work protect the job of a medical marijuana user? NO! Although some may make the argument that Section , C.R.S. ( The Philip Morris Law ), protects the jobs of employees engaged in lawful activities outside of work which do not pose a conflict of interest for the employer, they forget that the statute starts with engaging in any lawful activity off the premises of the employer during nonworking hours. IT IS STILL A FEDERAL CRIME TO POSSESS AND USE MARIJUANA!

25 Can an employer avoid paying unemployment compensation benefits if the claimant is terminated for cause because of the presence of medical marijuana in his/her system? Maybe. It depends on the applicable state statute. 1. Consult with your attorney or human resources specialist about whether your state s unemployment compensation statute allows disqualification or reduction of benefits for usage of medical marijuana. 2. In some states, the mere trace of THC in a worker s system is enough to preclude payment of benefits.

26 Can a Colorado employer avoid paying unemployment compensation benefits if the claimant is terminated for cause because of the presence of medical marijuana in his/her system? YES, if the employer can prove the following: 1. The employer publishes a rule which mandates termination for usage of controlled substances forbidden by federal or state law. 2. The employer can prove that the employee knew the rules and consequences of breaking them. 3. The employer uniformly enforces the rule. 4. The employer can convince the referee that the applicant has: engaged in onthe-job use of not medically prescribed controlled substances; engaged in offthe-job usage of not medically prescribed controlled substances resulting in interference with job performance; demonstrated the presence, during working hours, of not medically prescribed controlled substances; or violated a statute or company rule which resulted in serious damage to employer property/interest. 5. A recent Court of Appeals case allowed benefits where no proof of certified lab

27 It is recommended that employers implement the following ten-point plan to ensure that they control the usage of medical marijuana in the work place: 1. Publish clearly worded policies prohibiting the usage of controlled substances prohibited by federal or state law. 2. Test employees to demonstrate that they understand the rules. 3. Consistently enforce the rules. 4. Consider drug testing for reasonable suspicion. 5. Consider drug testing after work-related injury or property damage.

28 6. In Colorado, make sure your laboratory keeps a duplicate sample and make sure the intoxication defense is litigated within one year. 7. In Colorado, consider carefully whether you would rather have the intoxication penalty or avoidance of temporary benefits due to responsible for separation from employment. 8. Make sure, in appropriate cases, to send your samples to a medical review officer (MRO) for review. 9. Do not be intimidated by those who insist that medical marijuana users have the right to use the substance both off premises and on premises at work. 10. Do not rely on the media for the facts: they specialize in half-truths and sensationalism, rather than factual and legal accuracy.

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