Presenting a live 90-minute webinar with interactive Q&A Employer Policies on Medical Marijuana Use: Navigating Conflicting Federal and State Laws Avoiding ADA Liability, Applying Workers' Comp Laws, and Amending Drug Policies WEDNESDAY, FEBRUARY 11, 2015 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Lawrence P. Postol, Partner, Seyfarth Shaw, Washington, D.C. David L. Zwisler, Of Counsel, Ogletree Deakins, Denver The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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Marijuana and The Workplace Issues For Employers And Employees Presented by Lawrence P. Postol, Esquire SEYFARTH SHAW LLP 975 F Street, N.W. Washington, DC 20004-1454 (202) 828-5385 Lpostol@seyfarth.com
Presenter 5 Copyright 2015 Seyfarth Shaw LLP 18832729_1 Lawrence P. Postol, Partner (202) 828-5385 Lpostol@seyfarth.com Mr. Postol is a partner in the Washington, DC office of Seyfarth Shaw, LLP which has offices in Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Sacramento, San Francisco, Washington, DC, London, Shanghai, and Australia. Mr. Postol represents management in employment and labor law matters. Mr. Postol graduated with distinction from Cornell University in 1973 with a degree in engineering physics, and he graduated from Cornell Law School in 1976, cum laude, where he was also an editor of the Cornell Law Review. He is admitted to practice in the District of Columbia, Virginia and Maryland federal courts. Mr. Postol has successfully argued two cases before the United States Supreme Court and over three dozen cases before the United States Courts of Appeals.
Drug and Alcohol Testing 6 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Why Should a Company Test Its Applicants And Employees for Drugs and Alcohol? To comply with federal laws and regulations To take advantage of state laws that provide: a workers compensation premium reduction to an employer that complies with its provisions protection from liability in connection with an employer s administration of its policy To provide a safe and productive work environment for its employees, and to protect its customers and other members of the public from hazards that may arise as its employees work on the company s premises, in the field, or on premises other than those owned by the company 7 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Why Should a Company Test Its Applicants And Employees for Drugs and Alcohol? Testing After Workplace Accident, Since Drug Use Maybe a Defense To A Workers Compensation Claim, and The Knowledge of Drug Testing After Accidents Can Have a Positive Effect Contractual obligation to a customer 8 Copyright 2015 Seyfarth Shaw LLP 18832729_1
If a Company Wants to Test, What Should It Do? 9 Copyright 2015 Seyfarth Shaw LLP 18832729_1
If a Company Wants to Test, What Should It Do? Adopt a written drug and alcohol policy with information regarding the following: The company s drug and alcohol related work rules Sources of help for drug abuse and alcohol misuse problems The types of tests it conducts and who is subject to testing: Pre-employment Reasonable suspicion Random Post-accident Return-to-duty Follow-up The consequences that flow from testing positive or committing other violations of the policy and consistently enforce the policy The company s commitment to maintain the confidentiality of test results and other medical information to the greatest extent possible 10 Copyright 2015 Seyfarth Shaw LLP 18832729_1
If a Company Wants to Test, What Should It Do? A company should also: Notify applicants during the application process that the company has a policy and inform them of any testing If it is adopting a policy for the first time, or modifying an existing policy, tell all employees about the adoption or modification of the policy in advance (preferably at least 30 days) Distribute copies of its policy to all employees and have them acknowledge their receipt of the policy 11 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations 12 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations General Principles: Employers should be aware of the various state and local laws governing drug and alcohol testing of employees in order to avoid invasion of privacy, wrongful termination, and other constitutional, common law, and statutory claims Although drug and alcohol testing is unregulated in many states and in the District of Columbia, several states and two cities have restricted, either by statute/ordinance or judicial decision, the types of drug and alcohol testing that employers may lawfully conduct and/or the collection and testing procedures that an employer and its service providers must follow in conducting such testing 13 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations Types of Drug and Alcohol Testing 1. Pre-employment testing Generally, pre-employment drug testing of applicants is lawful. In those states in which such testing is regulated, it is typically limited to those applicants who have been made conditional offers of employment. 14 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations 2.2. Reasonable suspicion testing Employers who have reasonable suspicion, based on specific, contemporaneous objective and articulable facts concerning an employee s appearance, behavior, speech or body odors, that an employee is using alcohol and/or drugs or is under the influence of alcohol and/or drugs, may require the employee to submit to drug and/or alcohol testing with little or no risk in most jurisdictions if they have given their employees advance notice of such requirement 15 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations Several jurisdictions, including Connecticut, Boulder, Iowa, Maine, Minnesota, Montana, Oklahoma, Rhode Island, San Francisco, and Vermont, have statutes or ordinances that define reasonable suspicion, cause, or probable cause, and in some instances place additional minor restrictions on such testing. 16 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations 3.3. Post-accident testing An employer may generally subject employees to postaccident testing Some jurisdictions, however, such as Boulder, Connecticut, Maine, Rhode Island, San Francisco, and Vermont, forbid such testing unless the employer also has reasonable suspicion to believe that the employee was under the influence of drugs and/or alcohol at the time of the accident 17 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations Employers who desire to subject employees in California to post-accident testing are advised to limit such testing to situations in which they can show some indicia of causation by the employee and a threshold level of personal injury, such as immediate off-site medical treatment, or property damage A few states, such as Iowa and Montana, have statutorily imposed a threshold level of personal injury and/or property damage required to subject employees to post-accident testing 18 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations 4.4. Random Testing Random testing (periodic, suspicionless testing in which employees are selected without advance notice) is the most heavily regulated and scrutinized type of testing That said, employees can be subject to random drug and/or alcohol testing by their employers in many states, including in states that have drug and alcohol testing statutes 19 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations In several states, including California, Massachusetts, New Jersey, and West Virginia, the courts balance an employer s competing or legitimate interests against employees privacy rights in determining whether random drug testing is permissible, and have held that random testing should be limited to employees in safety- or security-sensitive positions Random testing is regulated by statute, but permitted, in Connecticut, Maine, Minnesota, Montana, and Oklahoma, although the restrictions in the Maine statute cause many employers to refrain from conducting random tests Random testing is prohibited in Boulder, Rhode Island, and San Francisco, and is prohibited in Vermont unless the testing is required by federal law or regulation 20 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State and Local Law Considerations Other Statutory Restrictions In addition to placing limits on the types of testing employers may conduct, some jurisdictions: Impose written policy and notice requirements Regulate the specimen collection and testing process Impose rehabilitation requirements Mandate appeal procedures 21 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Medical And Recreational Use Of Marijuana State law: 16 states and the District of Columbia have enacted laws that decriminalize or authorize, to varying degrees, the use of marijuana for medicinal and in some states recreational purposes Marijuana Use Still Violates Federal Criminal Law. 22 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Federal Law 1. ADA Does Not Protect Current Use Of Illegal Drugs. 2. ADA Can Protect Past Use If Use Was Due To A Disability - So When Was The Use From A Positive Drug Test? 3. Congress Will Not Change The Federal Law And The President Can Not (Although He Can Limit Enforcement). 23 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Employee s Status and State Off-Duty Activities Laws 1. At-Will Employees - No Protection Unless Inconsistent Enforcement By Employer Has Disparate Impact. 2. Collective Bargaining Agreements A. If Off-Duty Use, Issue Is Whether That Is A For Cause Ground For Discipline B. Arbitrator May Find That Termination Of Employment Is Too Severe A Penalty C. CBA May Have Drug Testing Provision 24 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Employee s Status and State Off-Duty Activities Laws 3. Executives May Have For Cause Contract Clauses 4. State Off-Duty Activities Laws A. Normally Only Protects Legal Activities B. Could Be Preempted By Federal Law For Government Contractors 25 Copyright 2015 Seyfarth Shaw LLP 18832729_1
State Law Actions 1. Workers Compensation Medical Marijuana To Treat Work Injury (Michigan allowed) 2. Unemployment Compensation A. Off-Duty Use Is Not Gross Misconduct So Unemployment Compensation Not Barred By Firing For Off Duty Marijuana Use (New Mexico) 26 Copyright 2015 Seyfarth Shaw LLP 18832729_1
Marijuana and The Workplace Issues For Employers And Employees Presented by Lawrence P. Postol, Esquire SEYFARTH SHAW LLP 975 F Street, N.W. Washington, DC 20004-1454 (202) 828-5385 Lpostol@seyfarth.com
Medical Marijuana Use: Navigating Title Goes Here Conflicting Federal and State Laws Presented By: David L. Zwisler 303.764.6822 david.zwisler@odnss.com
A Brief History Legislation beginning in 1906 Controlled Substances Act of 1970 Cannabis (marijuana) is a classified as a Schedule 1 drug No currently accepted medical use and high potential for abuse In the same category: heroin, lysergic acid diethylamide (LSD), methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote 29
A Brief History 1996 California Proposition 215 or the Compassionate Use Act of 1996 Doctors can recommend use Patients and Primary Caregivers can possess and cultivate Gonzales v. Raich Individuals who were in compliance with State law were arrested by DEA. In 1998, individuals brought civil suit against Attorney General alleging that it had violated the commerce clause. 30
A Brief History Gonzales v. Raich, 545 U.S. 1 (2005) Court held that the federal government may enforce the Controlled Substances Act s prohibition on the use of marijuana for medical reasons against individuals who use marijuana under the protection of state medical marijuana laws. Court relied on federal government s preemption over laws affecting interstate commerce. 31
THE OGDEN MEMO Use of marijuana remains illegal under the Federal Controlled Substances Act. A Brief History BUT, the U.S. DOJ, in October 2009, stated that it will only target those users who violate both federal and state laws. According to Eric Holder s official statement: As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. http://www.justice.gov/opa/documents/medical-marijuana.pdf 32
33 Colorado s Medical Marijuana Law
Colorado s Medical Marijuana Law: Amendment 20 Colo. Const., Art. XVIII, Section 14 Passed by voters in 2000. The stated purpose of the Amendment was to allow patients with debilitating medical conditions to assert an affirmative defense to enforcement of state drug possession laws. 34 The proponents of Amendment 20 acknowledged that it did not allow for the commercial sale of marijuana and certainly did not provide for commercial dispensaries or clinics.
Why Is This Such a Big Deal? 2010 Medical Marijuana Dispensaries in Colorado: over 1,100 2010 - Starbucks in Colorado: 208 Alan Gaithright, Denver Pot Dispensaries: 390; Colo. Starbucks: 208, 7News (January 4, 2010). Between 2000 and 2008, Colorado issued approximately 2,000 medical marijuana cards. By the middle of December in 2009, the number grew to approximately 60,000. Jim Spellman, Colorado s Green Rush: Medical Marijuana, CNN (December 14, 2009). 35
States with Medical Marijuana Laws 36 Alaska Arizona California Colorado Connecticut D.C. Delaware Hawaii Illinois Maine Maryland Massachusetts Michigan Minnesota Montana Nevada New Hampshire New Jersey New Mexico New York Oregon Rhode Island Vermont Washington
Number of Registered Medical Marijuana Patients California: 572,762 (14.9 patients per 1,000 residents) Colorado: 111,804 (21.2) Michigan: 146,811 (14.8) Washington: 103,444 (14.8) Oregon: 69,429 (17.7) TOTAL: 1,137,069 (7.7 patients per 1,000 residents) ProCon.org (11/13/2014) Number of Legal Medical Marijuana Patients 37 http://medicalmarijuana.procon.org/view.resource.php?resourceid=005889
An example Colorado Amendment 20 (2) (c)(ii) [A physician may] provide a patient with written documentation... stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. (5)(a) No patient shall: (i) Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or (ii) Engage in the medical use of marijuana in plain view of, or in a place open to, the general public. (10)(b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place. 38
Federal Agencies DOT Medical Marijuana Notice October 2009 We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors. Drug Free Workplace Act Federal contractors and recipients of federal grants must prohibit the use of marijuana as a condition of participation. 39
Realities of the testing process Typical testing process Confirm chain of custody Confirm sample has not been altered, adulterated, diluted, tampered with or damaged Immunoassay test (50 ng/ml) Confirmatory gas chromatography/mass spectrometry (GC/MS) (15 ng/ml) Review by Medical Review Officer 40
Realities of the testing process SAMSHA Medical Review Officer Donor claims the results are from taking a prescription: Marinol There are no other prescription or over-the-counter medications that contain cannabinoids or any other substances that might be identified as or metabolized to THC or its acid metabolite. Passive inhalation: Passive inhalation of marijuana smoke does occur and can result in detectable levels of THC and its metabolites in urine. Clinical studies have shown, however, that it is highly unlikely that a nonsmoking individual could unknowingly inhale sufficient smoke by passive inhalation to result in a high enough drug concentration in urine for detection at the cutoff levels used in the Federal program. 41
State law issues The use/possession of marijuana is still illegal under federal law. No state (except Arizona) has taken any specific position requiring employers to accommodate the use of medical marijuana in the workplace. Workers Compensation (state specific) Some states, such as Colorado, create a presumption of being under the influence at work if an employee fails a test. Some states, such as Connecticut, prohibit the presumption. Unemployment (state specific) 42
43 Case Law
Some cases Gonzales v. Raich Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 978 (Colo. App. 2011). Medical marijuana use was not lawful activity under Colorado law. Amendment did not establish state constitutional right to state-licensed medical marijuana use, but rather created an affirmative defense from prosecution.) Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 204 (Cal. 2008). No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users. 44
Some cases Coates v. Dish Network, LLC., 303 P.3d 147 (Colo.App. 2013). Thus, because plaintiff s state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, we conclude that it was not lawful activity for the purposes of section 24-34-402.5. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6 th Cir. 2012) The district court concluded, therefore, that private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace. Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562 (Mont. 2009) The [Medical Marijuana Act] MMA specifically provides that it cannot be construed to require employers to accommodate the medical use of marijuana in any workplace. 45
Some cases Coors v. MillerCoors, Inc., Civil Action No. 12-cv-02471- JLK (D. Colo. Aug. 21, 2013). Disability claim Therefore, though Mr. Curry may never have used medical marijuana absent his disability, MillerCoors did not unlawfully terminate him because of his disability. Invasion of privacy claim (Policy) I will not here consider a standalone constitutionality claim.... Even were Mr. Curry to have disclosed his status as a medical marijuana patient, an employer's request for such information does not constitute an unreasonable manner of intrusion or an intrusion for an unwarranted purpose. Invasion of privacy (Drug Test) There is no allegation suggesting that the mouth swab test was anything other than minimally intrusive. Because Mr. Curry does not allege that the method of the test swabbing for saliva is highly offensive and because I see no way a jury could reasonably consider the test highly intrusive, I find Mr. Curry's claim fails. 46
Collective Bargaining Agreements Drug testing is a mandatory subject of bargaining. Arbitration requirements Eastern Associated Coal v. Mine Workers, 531 U.S. 57 (U.S. 2000) We recognize that reasonable people can differ as to whether reinstatement or discharge is the more appropriate remedy here. But both employer and union have agreed to entrust this remedial decision to an previous arbitrator. We cannot find in the Act, the regulations, or any other law or legal precedent an explicit, well defined, dominant public policy to which the arbitrator's decision runs contrary. 47
Practice Pointers There is no requirement under state law (other than Arizona) to accommodate the use of medical marijuana. No state law (except Arizona) or court decision has mandated an employer accommodate the use of medical marijuana. Employers (except in Arizona) may still enforce drug testing policies to exclude employees who test positively for marijuana. Confusion over the use of medical marijuana exists consider a communication to employees. Drug testing policies must be uniformly enforced. 48
Practice Pointers (cont. d) There is absolutely no benefit for employers to inquire into, maintain records concerning, or discuss whether or not an employee is a medical marijuana user or possesses a valid registration card. The marijuana lobby is actively looking for test cases. The ACLU is doing its best to help them out. When employees request a smoking room for medical marijuana (and many have) the answer is no (even in Arizona). 49
Medical Marijuana Use: Navigating Title Goes Here Conflicting Federal and State Laws Presented By: David L. Zwisler 303.764.6822 david.zwisler@odnss.com 50