Marijuana and the Workplace

Utah SHRM Crossroads Conference
September 24 and 25
Davis Convention Center | Layton, Utah
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Marijuana and the Workplace
Mark A. Wagner
801.536.6776 | mwagner@parsonsbehle.com

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Backdrop – Federal Law
State Law
o Utah Law
o Other State Laws
o Possible Trends
Workplace Marijuana Issues
o Discrimination/Retaliation Laws
o “Lawful Of-Duty Conduct” laws
o Workers Compensation and Unemployment
o Drug Testing Challenges
Recommendations for Employers

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Disclaimer
 Information is current as of September 2019.

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Federal Law – Statutory Treatment
 1937 Marihuana Tax Act
o Held unconstitutional in 1969 by Leary v. United States
 1970 Federal Controlled Substances Act (CSA)
o Marijuana – Schedule I Drug
• High potential for abuse
• No currently accepted medical use in treatments in U.S.
• Lack of accepted safety for the use of the drug under medical supervision

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Federal Law – Enforcement
 Federal government could crack down but has not.
o Gonzales v. Raich (2005) – CSA may validly be applied to individuals’
cultivation, distribution, and possession for personal, medical use.
o Ogden (2009) & Cole (2013) Memos gave some protections
(although the Cole Memo was rescinded in 2018 by Jeff Sessions).
o Rohrabacher-Blumenauer Amendment (2014) gave additional
protection – however, it has to be renewed each year.
o The R-B Amendment precludes only law enforcement action; it
doesn’t legalize.

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(cont.)
 Weakening of Federal Prohibition
o Epidolex (CBD-based epilepsy drug) has been moved to Schedule V
o 2018 Farm Bill
• Removes cannabis plants with less than 0.3% THC from the CSA
• Lets states permit the cultivation of industrial hemp
• Provides for interstate transport, even through states prohibiting production
 However CSA Is Still the Law

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Utah Law
 1915: Prohibition–Utah is second state to expressly ban cannabis.
 2014: CBD Legalization
o Legalized possession and use of low-THC CBD oil by registered
patients with a physician's recommendation and intractable epilepsy.
 2018 (Feb): Medical Cannabis—legalized "right to try" and to
grow medical marijuana plants for terminally ill patients.
 2018 (Nov): Ballot Proposition 2 enacts Utah Medical
Cannabis Act.
 2018 (Dec): Utah Legislature passed HB3001, amending the
Utah Medical Cannabis Act as enacted by Prop. 2.

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Utah Medical Cannabis Act
 Directs Utah Department of Health (UDOH) to issue medical
cannabis cards to patients, register medical providers who
wish to recommend medical cannabis treatment for their
patients, and license medical cannabis pharmacies by
March 1, 2020. (Utah Code § 26-61a-101 et seq.)
o 16 specified qualifying conditions.
o Must be in “medicinal form”
o Can vape – but not smoke.
 CBD Oil and other industrial hemp products <.3% THC legal
for all.

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(cont.)
 Employment Protections
o State and local government employees – use must be treated the
same as legal opioid use, unless it would jeopardize federal funding
(or other federal requirements) for that employee’s position.
o Private employers – statute is silent.
• No express protections. Possible negative inference in contrast to public
employee protections.
• Some statutes in other states that are silent on private employer protections
have been construed to provide protection – either directly or in combination
with another state law (e.g., state antidiscrimination law).
• Probably no private employee protections in Utah
• But this could change.

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Medical
Marijuana
2012
Recreational
Marijuana

27
Medical
Marijuana
2013
Recreational
Marijuana

28
Medical
Marijuana
CBD
Oil
2014
Recreational
Marijuana

29
Medical
Marijuana
CBD
Oil
2015
Recreational
Marijuana

30
Medical
Marijuana
CBD
Oil
2016
Recreational
Marijuana

31
Medical
Marijuana
CBD
Oil
2017
Recreational
Marijuana

32
Medical
Marijuana
CBD
Oil
2018
Recreational
Marijuana

33
Medical
Marijuana
CBD
Oil
2019
Recreational
Marijuana

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Medical Marijuana Laws
 Each state law is different
o Varying qualifying medical conditions
o Varying registration and verification requirements
o Varying oversight
o Varying job protections
• Utah – express protections for public employees; silent about private employees
• Other states – some are also silent; others have widely varying protections
 Constant Change

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Issues
 Federally Regulated Employees
o DOT–mandated testing
o Federal Contractors and Grant Recipients
 Workplace Safety (federal or state OSH)
 State Medical Marijuana Laws
 Antidiscrimination Laws – Federal, State, and Local
 Other Workplace Enforcement Concerns
o Public Policy
o Outside-of-Work Activities

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(cont.)
o At-Will v. For-Cause (employment agreements) v. Just Cause (CBAs)
o Workers’ Compensation
o Unemployment Benefits
o Drug Testing
o Pre- v. Post-Employment
o Random
o Suspicion of Impairment
o Market forces

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Federal Contractors and Grant Recipients
 Drug Free Workplace Act
o Required for many federal contractors and all federal grant recipients.
• Develop and publish a written policy and ensure that employees read and
consent to it as condition to employment (should clearly prohibit the
manufacture, use, and distribution of controlled substances in the workplace
and spell out the consequences of violating the policy).
• Establish a drug-free awareness program to educate employees of the
dangers of drug abuse, the workplace policy, and any available drug counseling,
rehabilitation programs, and employee assistance programs.
• Require notifications from employees within 5 days of a criminal drug conviction.
• Notify the federal contracting agency within 10 days of any covered violation.
• Take action against an employee convicted of a workplace drug violation; e.g.,
impose a penalty or require participation in rehabilitation or counseling program.
• Make an ongoing good faith effort to maintain a drug-free workplace.
o NOTE: The Act does not require mandatory drug tests.

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DOT
 The Omnibus Transportation Employee Testing Act requires
DOT Agencies to implement drug & alcohol testing of safety-
sensitive transportation employees.
 DOT-regulated drug testing is not changed by state laws
permitting medical marijuana.
 Medical Review Officers will still treat as positive test.

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OSHA
 General Duty Clause
 Employers can still expect employees to work to the required
standards.
o Marijuana laws do not diminish need for a safe, productive workplace.
 But, off-duty use is not a violation of the OSHA general duty clause.
 Post-incident drug testing policies must be consistent or will be
considered retaliatory.

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State Medical Marijuana Laws
 It depends on the wording of the specific state statute(s).
o Express Accommodation and/or Non-Discrimination Provisions:
AR, AZ, CT, DE, IL, ME, MN, OK, NM, NV, NY, RI
• Protecting language varies and exceptions vary.
• Common Exceptions:
– Poessession or use on the job or at the workplace (e.g.,AR, AZ, CT, DE, NM, PA)
– Under the influence/impairment while working (e.g., AR, AZ, CT, DE, NM)
• Some statutes use “under the influcence,“ some “impaired,“ some both.
• Some specify that influcence/impairment may not be based solely on a positive drug test
(OK); oithers say a positive drug test “of an insufficient concentation to cause
impairment.“ (AZ)

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(cont.)
– Loss of benefit to employer under federal law (e.g., AZ, CT, DE, IL, ME, MN, NM, NV, PA)
– Safety-sensitive positions or tasks, such as-operating machinery, driving, handling
medicine, handling regulated chemicals, working in high or confined spaces, etc. (e.g., AR,
IL, NM, NV, PA)
– Where performing task that would constitute negligence, professional negligence, or
professional misconduct (e.g., DE, NV, PA, WV)
• Questions Caused by Exceptions
– Employers Not Required to Accommodate Medical Marijuana Use “In the Workplace” or
“During Work Hours” -- Are Employers Required to Accommodate Outside the Workplace
and Outside of Work Hours?
– Employers Not Required to Accommodate if Would Pose Threat of Harm “to Persons or
Property”” – Does “property” include lost employer profits or customer goodwill?
– Employers not required to allow employees to work “under the influence” when doing so is
not “negligence,” “professional malpractice,” or “professional misconduct”? Is working
under the influence ever NOT negligence, etc.?

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(cont.)
o Statute has express “NO-accommodation” provisions.
FL, GA*, OH, MT, WA.
o Statute refers to obligations it does NOT impose on an employer, but
does not clearly provide that there is no obligation to accommodate.
AK, CA, HI, LA, MA, MD, MI, MO, ND, NH, NJ, PA, VT, WV
• Q: Negative inferences? E.g., nothing in this law requires an employer to
accommodate use in the workplace. Does this mean required to accommodate
use outside the workplace?
• Q: Can you be “under the influence” but not “impaired?” When? Who decides?
• Q: If nothing “in this [statute/Act/section]” requires . . .” ; what about other statutes?
*CBD Oil

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(cont.)
o Statue is silent about effect on private employment.
• CO, DC, OR, UT

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Challenges-Antidiscrimination/Retaliation Laws
 Americans with Disabilities Act
o ADA does NOT require accommodation of medical marijuana use.
 State Antidiscrimination Laws
o It depends. (On what?)
o Utah Antidiscrimination Act
• "Disability" means a physical or mental disability as defined and covered by
the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102.” (Utah
Code § 34A-5-102(1)(f)).

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Challenges – Off Duty Conduct
 Many states have “legal off-duty conduct” laws.
o CA, CO, NV, NY, ME, TN
o Application will come down to specific language in statute.
• i.e., “legal conduct” in Colorado law (Coats)
o Maine
• A school, employer, or landlord may not refuse to enroll, employ, or lease to
or otherwise penalize a person 21 years-of-age or older solely for that
person’s consuming marijuana outside of the school’s, employer’s, or
landlord’s property.

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Challenges-Workers Comp and Unemployment
 Workers’ Compensation
o Medical marijuana – reimbursable prescription/treatment in some
states
• Yes - CT, ME, NM; Limited – MI, OH, OK, VT; No – CO, MT, OR
o Accidents caused by use – AK, NM
 Unemployment Benefits
o Discharged for lawful medical marijuana use
o Discharged for illegal use
• On-Duty: No
• Off-Duty: Maybe

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Challenges – Drug Testing
 District of Columbia
o Pre-Employment Marijuana Testing Act of 2015
• Prohibited from testing prior to offer of employment
 Maine
o Department of Labor
• No pre-employment marijuana drug testing
 Under Influence/Impaired at work
o No objective testing standard of impairment (AZ, AK, DE)
o Drug test alone is not sufficient to establish impairment (ME)

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Possible Trends
 Changing public sentiment

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(cont.)
 NYC ban on employer preemployment drug testing, April 2019.
 Only Half of CO Employers Will Fire for a Single Pot Test,
Denver Post, March 2019.
 Quest Diagnostics Study, April 11, 2019:
o Workforce drug testing positivity climbs to highest rate since 2004.
o 2.8% of workers test positive for marijuana nationwide, up from
2.4% in 2014.

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(cont.)
 Judicial interpretation trending more favorably to employees?
o Before 2017 (outside of workers’ compensation and unemployment),
employers won each case brought based on alleged violation of right
to use medical marijuana.
• Washburn v. Columbia Forest Products, Inc., (Or. 2006)
• Ross v. RagingWire Telecomms., Inc. (Cal. 2008)
• Johnson v. Columbia Falls Aluminum Co., LLC (Mont. 2009)
• Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries (Or. 2010)
• Roe v. Teletech Customer Care Mgmt. LLC (Wash. 2011)
• Casias v. Wal-Mart Stores, Inc. (6th Cir. 2012) (construing Mich. law)
• Savage v. Maine Pretrial Services, Inc. (Me. 2013)
• Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015)

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(cont.)
 After 2017, employers have lost almost every such case.
o Callaghan v. Darlington Fabrics Corp. (R.I. Superior Ct. 2017)
NOTE: When the judge starts the opinion with the Beatles song quote “I get
high with a little help from my friends,” you can probably guess which way he is
going to rule.
o Barbuto v. Advantage Sales & Marketing, LLC (Mass 2017)
o Noffsinger v. SSC Niantic Operating Co., LLC (D. Conn. 2017)
o Chance v. Kraft Heinz Food’s Co. (Del. Superior Ct. 2018)
o Wild v Carriage Funeral Holdings, Inc. (N.J. App. Div. 2019)
But see Cotto v. Ardagh Glass Packaging, (D.N.J. 2018)

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Evolving Law - Looking Ahead
 Greater scrutiny of drug testing of applicants and employees
o THC in the blood and impairment don’t match up very closely.
o Employment actions (like impaired driving prosecutions) should be
based on impairment and testing should be evidence of that.
 States are more clearly specifying the scope of employer
protections.
o Where underlying conduct is legal under state law, it should be
clear that employers must permit employee use up to their
obligations under federal law.
 Litigation will be over what federal law requires.

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Recommendations
 Consider business needs/culture – drivers, operators, safety.
 Keep up to date on new developments in your state (and
neighboring states if multi-state employer).
 Keep drug and alcohol policy updated.
o Be specific; e.g., clarify federal and state law, not just “legally prescribed.”
o Address prescription medication that may affect ability to work.
o Define impairment based on observable characteristics.
o Consequences for refusal to submit to testing
 Know handbook and policies.
o Apply uniformly
o Publicize your policy and train supervisors
 Consider accommodation process.

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(cont.)
 Consider drug testing process.
 Consider whether drug testing for other drugs (but not
reading for marijuana) in states that have legalized
marijuana is an appropriate middle ground.

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 Mark A. Wagner
801.536.6776
mwagner@parsonsbehle.com
Thank You!

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