Impact of Marijuana Legalization in the Workplace

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IMPACT OF
MARIJUANA LEGALIZATION
IN THE WORKPLACE
2016

SLIDE TITLEIs Marijuana Legal?
2016
• Yes and No.
– Under federal law, all marijuana use is illegal.
– Some states have legalized certain uses of marijuana.
• Under the federal Controlled Substances Act, 21
U.S.C.S. §§ 801-904, (“CSA”), Cannabis is on the
Schedule I list of controlled substances
– Schedule I drugs have a high potential for abuse and
dependency, with no recognized medical use or value
– Any possession, use, or distribution is a crime

SLIDE TITLEState Law: It’s Complicated
2016
States where medical marijuana is legal
States where medical marijuana is legal an employer must accommodate
States where non-psychoactive use is legal
States where marijuana is legal
States where marijuana is decriminalized
States where cannabis is prohibited

TextMarijuana is illegal
under federal law.
What does that mean
if I work for the
federal government?

SLIDE TITLEFederal Government Employer
2016
• Federal employees must follow federal law: all
marijuana use is prohibited.
• Thompson v. Dep't of Army, No. SF-0752-11-
0551-I-2, 2013 WL 9678484, at *2 (M.S.P.B.
June 12, 2013) (employee terminated for
possession of marijuana while operating a
government owned vehicle noting that
although California has decriminalized
marijuana, it is still illegal under federal law).

SLIDE TITLEExecutive Order 12564
2016
Executive Order 12564, Drug-Free Federal Workplace,
September 15, 1986, mandates:
• (a) Federal employees are required to refrain from the use
of illegal drugs;
• (b) the use of illegal drugs by Federal employees, whether
on or off duty, is contrary to the efficiency of the service;
and
• (c) persons who use illegal drugs are not suitable for
Federal employment.

SLIDE TITLEFederal Government Employer
2016
• An applicant for federal employment must
disclose marijuana use.

TextIs it true that the
government isn’t
prosecuting
marijuana
offenses?

SLIDE TITLEFederal Government Not Prosecuting?
2016
• Yes. The federal government has exercised its discretion to
not prosecute marijuana offenses.
• DOJ August 29, 2013 Guidance Regarding Marijuana
Enforcement: Based on assurances from states where
marijuana is legalized, DOJ stated that it will defer its right
to challenge their legalization laws at this time. “But if any
of the stated harms do materialize—either despite a strict
regulatory scheme or because of the lack of one—federal
prosecutors will act aggressively to bring individual
prosecutions focused on federal enforcement priorities and
the Department challenge the regulatory scheme
themselves in these states.”

Text
I work in a state where
marijuana has been
decriminalized. Can I
fire someone for failing
a drug test?

SLIDE TITLEDecriminalization Implications
2016
• Yes, even in states where marijuana has been
decriminalized, an employee can be fired for
failing a drug test. Coats v. Dish Network, LLC,
2015 CO 44, 350 P.3d 849 (Colo.2015).
• Courts have held that decriminalization is a
defense to criminal prosecution and not an
affirmative right to use.

Text
What are drug
testing best
practices?

SLIDE TITLEDrug Testing Best Practices
2016
• Comply with state law
– Some states require employers to use state-licensed
labs for testing.
– Some states have banned random drug testing and
blanket drug testing.
• Have it in writing, distribute to employees, and
have them sign it.
• Apply testing consistently.
• Never take disciplinary action against an
employee without confirming the result via a
second test.

TextHow do I respond
when an employee
contests the
legitimacy of a
testing center?

SLIDE TITLEThird Party Drug Tester
2016
• Partnering with an experienced and reputable
drug testing company will give you comfort that
proper procedures have been followed, including:
– Random testing
– Chain of custody
– Privacy
– State and federal regulations
• Direct the employee to contact the third party
testing provider about its practices.

TextI work in a state where
recreational use of
marijuana is legal. Can
an employee be
terminated for a
positive drug test?

SLIDE TITLERecreational Use
2016
• Yes. Even in states where recreational use is
legal, an employee can be terminated for
marijuana use.
• Just as with decriminalization, recreational use
is viewed as a defense to criminal prosecution
and not a right.

TextMy employer received an
accommodation request
from an employee to use
medical marijuana. Does
medical marijuana have
any medicinal benefits?

SLIDE TITLEAccommodation Request
2016
• Yes. Many medical conditions such as glaucoma
and epilepsy are ameliorated or treatable with
marijuana and also qualify as disabilities under
the ADA.
• Marijuana has proven effective to treat:
– Muscle spasms caused by multiple sclerosis
– Nausea from cancer chemotherapy
– Poor appetite and weight loss caused by chronic
illness, such as HIV, or nerve pain
– Seizure disorders
– Crohn's disease

Text
Does the Americans
with Disabilities Act
require an employer to
accommodate an
employee’s use of
medical marijuana?

SLIDE TITLEAmericans with Disabilities Act
2016
• No. An employer is not required to
accommodate an employee’s use of medical
marijuana.
– Emerald Steel Fabricators, Inc. v. Bureau of Labor
and Industries, 230 P.3d 518 (Ore. 2010).
– James v. City of Costa Mesa, 700 F.3d 394 (9th Cir.
2012).
• ADA's protections do not extend to those
currently engaged in the “illegal use of drugs.”

2016
• Medical marijuana laws in Alaska, Arizona, California,
Colorado, Connecticut, Hawaii, Massachusetts,
Michigan, Montana, New Hampshire, New Jersey,
Rhode Island, Vermont and Washington explicitly
prohibit marijuana use at work, and/or provide that
employers need not accommodate any form of
marijuana use in the workplace.
• New Jersey, N.J. Stat. Ann. Section 24:6I-14 is explicit,
stating that "nothing in this act shall be construed to
require ... an employer to accommodate the medical
use of marijuana in any workplace."

2016
• State courts in California, Colorado,
Washington and Montana, as well as the
federal appellate courts for the Sixth and
Ninth Circuits, all have held that state medical
marijuana laws do not require employers to
accommodate medical marijuana use in the
workplace.

TextWhat if I work in a
state that requires an
accommodation for
medical marijuana?

SLIDE TITLEStates that Require an Accommodation
2016
• Arizona, Connecticut, Delaware, Illinois,
Maine, Minnesota, Nevada, New York and
Rhode Island medical marijuana laws contain
anti-discrimination and/or reasonable
accommodation provisions addressed to
employers.

SLIDE TITLESample State Statute
2016
Del. Code Ann. Tit. 16, §4905A(a)(3). Unless a failure to
do so would cause the employer to lose a monetary or
licensing-related benefit under federal law or federal
regulations, an employer not discriminate against a
person in hiring, termination, or any term or condition of
employment, or otherwise penalize a person, if the
discrimination is based upon either of the following: (a)
the person's status as a cardholder; or, (b) a registered
qualifying patient's positive drug test for marijuana
components or metabolites, unless the patient used,
possessed, or was impaired by marijuana on the premises
of the place of employment or during the hours of
employment.

Text
Can I have a zero
tolerance drug policy?

SLIDE TITLEZero Tolerance Drug Policy
2016
• Employers are generally free to set their own
drug policies, whether zero tolerance or
otherwise.
• But if you work in a state that requires an
accommodation for medical marijuana, then you will
need flexibility with your zero tolerance policy.
• Unintended consequence: reduction in candidate
pool?

SLIDE TITLETips for an Effective Drug Policy
2016
• Written policy acknowledged by employee
• Review legality and appropriateness of drug
policy on an annual basis
• Apply your policy consistently
• Make sure drug testing policies comply with state
and federal law
• Make sure your policy states that it applies to
drugs that are illegal under “federal, state, OR
local law”

SLIDE TITLEWhat is Wrong with this Drug Policy?
2016
Company A has a zero tolerance drug and alcohol policy. This means that
employees, contractors, and consultants are expected to be drug and alcohol
free when they report for work and shall remain drug and alcohol free during
the performance of their duties.
Failure to follow the zero tolerance policy is reason for discipline up to, and
including termination of employment.
“Drugs” covered under this policy are defined as illegal under federal, state, and
local laws.

SLIDE TITLEWhat is Wrong with this Drug Policy?
2016
Company A has a zero tolerance drug and alcohol policy. This means that
employees, contractors, and consultants are expected to be drug and alcohol
free when they report for work and shall remain drug and alcohol free during
the performance of their duties.
Failure to follow the zero tolerance policy is reason for discipline up to, and
including termination of employment
“Drugs” covered under this policy are defined as illegal under federal, state,
and local laws.
to the extent allowable by local law.
or
Signed and acknowledged by employee on x date

SLIDE TITLESample Drug Policy
2016
Company A has a zero tolerance drug policy. This means that employees,
contractors, and consultants are expected to be drug free when they
report for work and shall remain drug free during the performance of
their duties.
Failure to follow the zero tolerance policy is reason for discipline up to,
and including termination of employment as allowed by state law.
Below is a non-exhaustive list of possible ways to violate the zero
tolerance drug policy.
• Testing positive on a drug test
• Reporting to work under the influence of illegal drugs
• Use, possession, sale, or solicitation of illegal drugs
• Refusal to submit to a drug test
• Intentional adulteration of drug test results
*Note – this information is not intended to serve as legal advice*

SLIDE TITLESample Drug Policy Continued
2016
“Drugs” covered under this policy are defined as illegal under
federal, state or local laws.
Company A retains the right to drug test its employees in
accordance with state law in the following circumstances:
• Pre employment
• Reasonable suspicion
• Post accident
• Follow up
<Signed and acknowledged by employee on x date>

Text
If an employee is
terminated for violating
his or her employer’s
drug policy, will he or she
qualify for
unemployment benefits?

SLIDE TITLEUnemployment Compensation
2016
• Braska v. Challenge Mfg. Co., 307 Mich. App.
340 (Mich. Ct. App. 2014).
• Beinor v. Indus. Claims Appeals Office of Colo.
& serv. Group, Inc., 262 P.3d 970 (Colo. Ct.
App. 2011).

TextWhat best practices
can I institute today
to protect my
employer from
liability?

SLIDE TITLEEmployer Best Practices
2016
• Make sure your policies clearly define illegal drug use to include all
drugs made illegal under federal, state or local law.
• Make clear that because marijuana is (still) illegal under federal law, it
is considered an illegal drug under your policy.
• Workplace testing policies need updating to ensure that you reserve
the right to take adverse action based on a verified positive marijuana
test “to the fullest extent permitted by law.”
• Revisit prescription medication policies.
• Policies should prohibit all illegal drug use.
• Be careful when your alcohol and drug policies are combined.
• If applicable for your drug policy, differentiate between CBD (non-
psychoactive) and THC (psychoactive) in the bloodstream.

Text
I advise employees.
What if my client requires
a medical marijuana
accommodation? What
best practices should my
client follow?

SLIDE TITLEEmployee Best Practices
2016
• Know your drug policies
• Provide clear notice to employer of your need for
accommodation using employer’s stated
accommodation process
• Provide medical certification and documentation
outlining your need for medical marijuana
• Engage in good faith interactive process with
employer
• Address any of employer’s alternate
accommodation suggestions

SLIDE TITLEKey Takeaways
2016
• Ensure your zero tolerance drug policies have
a carve out for employees who work in states
that require an accommodation for medical
marijuana
• Annually review drug policies
• Faithfully engage in the interactive process

Text
Where is the law
headed?

SLIDE TITLELegislative Developments
2016
• In March 2015, Sens. Cory Booker (D-N.J.),
Rand Paul (R-Ky.) and Kirsten Gillibrand (D-
N.Y.) introduced the Compassionate Access,
Research Expansion and Respect States Act
– To date, no hearing on the bill has been held
• Appropriation bills

SLIDE TITLEApril 4, 2106 DEA Letter
2016
• April 4, 2016 DEA letter announced it will
decide whether marijuana should be
reclassified under federal law in the “first half
of 2016.”
• The DEA has twice before considered
rescheduling marijuana.
• The FDA completed a review of the safety and
effectiveness of marijuana which it forwarded
to the DEA.

SLIDE TITLEThe Future
2016
• Marijuana eventually be legal at the federal
level
• Medical marijuana use be protected under
the ADA
• Zero tolerance drug policies fall out of favor

R. Scott Oswald, Managing Principal
R. Scott Oswald
The Employment Law Group, P.C.
888 17th St. NW, 9th Floor
Washington, D.C. 20006
888-826-5260
injury@employmentlawgroup.com
@TELGLawyers

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