Jennifer Domingue, Cannabis Legal Group

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Employment Law in the
Cannabusiness Workspace
JENNIFER DOMINGUE | CANNABIS LEGAL GROUP

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Sources of Cannabis Law in US
Cannabis Law
Controlled
Substances
Act
Food, Drug
and Cosmetic
Act
State Law

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Sources of Labor and Employment Law
Labor and
Employment
Law
Occupational
Safety and Health
Act (OSHA)
Equal
Employment
Opportunity
Act
Drug Free
Workplace Act
National Labor
Relations Act
(NLRA)
Family
Medical
Leave Act
(FMLA)
Fair Labor
Standards ActAmerican with
Disabilities Act
(ADA)

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Equal Employment and Anti-
Discrimination Laws
Federal law protects certain classes from discrimination in the workplace:
◦ Race………………………………………………………………………… (31.3%)
◦ Color……………………………………………………………………….. (1.1%)
◦ Religion/Creed…………………………………………………………. (4.6%)
◦ National Origin or Ancestry……………………………………… (6.3%)
◦ Sex (including pregnancy)……………………………………….. (26.7%)
◦ Age………………………………………………………………………….. (20.3%)
◦ Disability (mental or physical)………………………………….. (3.1%)
◦ Veteran Status
*2017 EEOC Charge Receipts for Michigan in 2017, out of 2489 claims

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State and Local Laws Can Add to
Protected Classes
Sexual orientation
Gender Identity
Arrest Record
Marital Status

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Disability
• Likely to be most significant category at risk of discrimination in cannabis
industry.
• Medical marijuana cards à disability
• Can NOT discriminate against prospective or current employees on the
basis of whether they have a medical marijuana card
• Americans with Disability Act – applies to businesses with 15+ people
- Difficult to reconcile with EEOA
- Employers do not have to provide accommodation for medical
marijuana use

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Drug Free Workplace
Employers have broad discretion on whether to ban drug use within the
workplace
2 limitations
◦ Can’t discriminate against employee if drug testing uncovers a disability
◦ Can’t discriminate against a recovering drug addict
Does it make sense in a cannabusiness workplace?

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Drug Free Workplace
Bottom Line:
Employers do not have to accommodate cannabis use in the workplace.
Employers may take adverse actions against employees who are under the
influence at work.

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Disability Harassment
Employees may file a claim for disability harassment IF:
• The employee is part of a protected group
• There is unwanted harassment
• The harassment is based on disability
• The harassment is severe and pervasive enough to affect
employment
• Employer fails to address the harassment

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Sexual Harassment
43%

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Sexual Harassment
• EEOC has defined “sexual harassment” as unwelcome sexual advances, requests for sexual
favors, and other verbal or physical harassment of a sexual nature.
•Can include offensive remarks about a person’s sex. For example, it is illegal to harass a
woman by making offensive comments about women in general.
•Both victim and the harasser can be either sex, and the victim and harasser can be the
same sex.
•Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive
work environment or when it results in an adverse employment decision (such as the victim
being fired or demoted).
•The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or
someone who is not an employee of the employer, such as a client or customer.

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Retaliation
Makes up 39% of the state’s EEOC charges in 2017
Can be prevalent for a variety of issues:
◦ Whistle-blowers
◦ Harassment claims
◦ Internal complaints
◦ Lawsuits
◦ Wage and Hour Violations, etc.

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Health and Safety
Occupational Safety and Health Act addresses procedures for handling
machinery, toxic materials, compressed gasses, air quality controls, etc.
Extremely important to follow OSHA guidelines for cannabis businesses
where the regulatory system is heightened.

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Family Medical Leave Act
50+ employees
Protection for up to 12 weeks during an employer-specified 12 month
period.
Can provide other forms of sick leave, maternity/paternity leave, vacation
days, etc., but not required under law.

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Workers Disability Compensation Act
WDCA requires that every covered employer must provide some way of
assuring that benefits are paid to its workers if they become injured while
on the job.
Most employers do this by purchasing an insurance policy from a private
insurance company. However, some employers are granted self-insured
status, and others join a group fund.
Some debate amongst states as to whether medical marijuana is an
acceptable workers’ compensation treatment.

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What is the takeaway?
LIABILITY.
LIABILITY IS EVERYWHERE IN THE CANNABUSINESS WORKPLACE.

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What can we do to minimize our liability?
Employee Handbook
- Anti-Discrimination Policy
- Drug Use Policy (testing, consequences, etc.)
- Harassment Procedures (reporting procedures, investigation procedures,
remedial measures)
- Anti-retaliation Policy
- Health and Safety Policies
- Workers Compensation Information
- Clearly defined benefits - Make sure they comply with state law
Acknowledgement form for receipt

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What can we do to minimize our liability?
Employee Training
◦ Cannabis Specific Training
◦ SOPs
◦ Regulatory compliance training
◦ Training pursuant to MMFLA guidelines
◦ Retaliation Training
◦ Harassment Training
◦ Safety Training
◦ EEOC Training as needed
Training completion forms for records!

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What can we do to minimize our liability?
Cannabis Legal Group
520 North Main Street
Royal Oak, MI 48067
jennifer@cannabislegalgroup.com
Office: (248) 541-2600
Cell: (734) 770-9529
Ask a Labor and Employment Law
Attorney who specializes in the
Cannabis Industry!

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Thank You