W HAT E VERY T OM, D ICK AND M ARY J ANE S HOULD K NOW A BOUT M EDICAL M ARIJUANA IN THE W ORKPLACE Presented by Catherine Tallerico

Managing Medical Marijuana 14 states as well as the District of Columbia have authorized medical or “compassionate” use of marijuana California 1998 Alaska, Oregon, Washington 1999 Maine 2000 Colorado, Hawaii, Nevada 2004 Montana, Vermont 2006 Rhode Island 2007 New Mexico 2008 Michigan 2010 New Jersey, District of Columbia

2010 General Election November elections will see another wave of medical marijuana ballot initiatives.

Colorado Usage Medical marijuana use has exploded beyond government and employers expectations. Over 105,000 applications have been submitted. More than 30,000 hold cards.

Colorado Usage In March 2010, changes were made to the Colorado Health Department’s review of applications. The Department reported it had been receiving about 1000 applications per work day!

HOW DOES ONE BECOME A MEDICAL MARIJUANA CARD HOLDER? Fill out 1 page application form. Provide Physician’s Certificate. Provide copy of patient and caregivers IDs. Pay $90.

Federal Law

Marijuana Use is Illegal Under Federal Law Since 1970, marijuana has been listed as a Schedule 1 Controlled Substance under the Federal Controlled Substances Act. 21 U.S.C. § 812(c)

Gonzales v. Raich, US 2005 Federal drug laws have supremacy over state medical marijuana laws. The federal government may enforce the Controlled Substances Act’s prohibition on the use of marijuana against persons who use marijuana under state medical marijuana laws.

Gonzales v. Raich, US 2005 There is no medical necessity defense to federal marijuana crimes. Raich, however does not invalidate state medical marijuana laws.

Current Enforcement of Medical Marijuana by the DEA In February 2009, Attorney General Eric Holder commented that the federal Drug Enforcement Agency will no longer raid medical marijuana dispensaries in states that have approved medical use of marijuana.

Department of Justice Memorandum In October 2009, the DOJ issued a memorandum that federal law enforcement will not prosecute medical marijuana patients or their caregivers in states that have enacted laws authorizing the medical use of marijuana.

DOT Response to DOJ Memorandum 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.”

DOT Response to DOJ Memorandum Use of “medical marijuana” under state law is not a valid medical explanation for a transportation employee’s positive test result, according to DOT drug testing regulations.

OSHA OSHA 29 U.S.C. 654 requires a safe place of employment.

Medical Marijuana Uses The U.S. FDA has NOT APPROVED smoking marijuana for any condition or disease in the United States.

Medical Marijuana Uses The Department of Veteran Affairs will now allow some patients to use medical marijuana.

Colorado State Law

Marijuana is classified as a Schedule 1 Controlled Substance under the Uniform Controlled Substances Act of C.R.S. § In 2000, Colorado voters approved Amendment 20 of the Colorado Constitution which authorizes the medical use of marijuana under limited circumstances. Art. XVIII, § 14

Amendment 20 Permitted Uses Amendment 20 Permitted Uses “Debilitating medical condition”: cancer, glaucoma, positive status for HIV or AIDS or treatment for such conditions; chronic or debilitating disease or medical condition, or treatment for such conditions.

Amendment 20 Provides a Defense Amendment 20 provides a defense to a patient or caregiver charged with a violation of the state’s criminal laws.

Limitations in the Workplace Amendment 20 provides, in part, that “nothing in this section shall require any employer to accommodate the medical use of marijuana in the work place.”

House Bill A.A person shall not engage in the medical use of marijuana: 1. In a way that endangers the health and well being of a person.

House Bill In plain view or in a place open to the general public.

House Bill In a vehicle, aircraft or motorboat.

House Bill If that person does not have a debilitating medical condition.

House Bill B.A person may not be under the influence of medical marijuana when: 1.Doing so would constitute negligence or professional malpractice.  Under the influence – how does one determine?

House Bill  Negligence and Professional malpractice.  Does this section apply to all or only some of your employees?

House Bill When operating, navigating or in actual physical control of any vehicle, aircraft or motorboat.

House Bill C.Possess medical marijuana or otherwise engage in the use of medical marijuana in or on grounds of a school or in a school bus.

Colorado’s Off-Duty Statute Off-Duty Activities Colorado law prevents an employer from terminating an employee due to the employee’s engaging in a lawful activity off the premises of the employer during non- working hours. § C.R.S.

Colorado’s Off-Duty Statute The statute creates exemptions when the termination decision: (1)relates to a bona fide occupational requirement, or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; (2) or it is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of a conflict of interest.

Applicability of Disability Laws The Colorado Anti-Discrimination Act and the Americans with Disabilities Act prohibits discrimination on the basis of disabilities.

Colorado Courts have not addressed any of the questions relating to work place usage.

Decisions From Other States

Major Medical Marijuana Cases California Ross v. Raging –Wire Telecommunications, Inc. (2008) California Fair Employment and Housing Act did not require the employer to accommodate an employee who used medical marijuana. California voters merely exempted medical users and their primary care givers from criminal liability. Nothing in the state medical marijuana law suggests that the voters intended to address the rights and obligations of employers.

Major Medical Marijuana Cases Montana Johnson v. Columbia Falls Aluminum Co., LLC (2009)  Medical Marijuana Act did not provide an employee with a private right of action against the employer under the state’s anti-discrimination laws or ADA.  Employee wanted employer to waive drug testing requirements.  Montana statute is a decriminalization statute only.

Major Medical Marijuana Cases Washington Roe v. Teletech Customer Care Management, LLC (2009) The Washington Court of Appeals held that the Washington medical marijuana statute did not create an implied cause of action against employers who fail to hire a person based solely on their use of medical marijuana. Valid at home use at issue. This case is under review by the Washington Supreme Court.

Major Medical Marijuana Cases Oregon Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries (April 14, 2010) Employee disabled. Employer was not required to accommodate the employee’s use of medical marijuana because use is illegal under federal law. Federal law preempts the Oregon statute.

Major Medical Marijuana Cases Michigan Cassias v. Wal-mart Stores, Inc. Filed June Employee terminated after drug test. Pending.

Major Medical Marijuana Cases Rhode Island Protects medical marijuana users in their school, place of employment, and housing.

Application of Other States’ Decisions to Colorado Marijuana is an illegal substance under federal law. The laws address criminal liability and not work place issues.

Colorado Differences Off-duty conduct statute. Colorado’s law is Constitutional.

The Centennial Case A district court judge in Arapahoe County found against the City of Centennial. Issue was whether a city or governmental agency can shut down a business that may operate pursuant to the Colorado Constitution on the basis that it would be operating in violation of the Federal Controlled Substances Act. The City of Centennial sent a cease and desist letter to medical marijuana dispensary, Cannamart, forcing it to close its doors.

The Centennial Case Court held that the Colorado Constitution provides Cannamart patients with the Constitutional right to use medical marijuana. Court further held that the Controlled Substances Act did not preempt the Constitutional Amendment.

Colorado’s Workers Compensation Limitation on payment where employee is impaired at the time of injury. § , C.R.S.

Best Practices Cannabis Chaos

Best Practices Adopt policies clarifying employer’s position on the use of medical marijuana. Ensure that drug-free workplace policies conform to Colorado’s lawful off-duty activities statute.

Best Practices Notify applicants of the medical marijuana policy at the time of application. Allow FMLA leave when necessary.

Best Practices Best practice when faced with a disability claim: Engage in the interactive process. Apply your drug-free policy and the lawful off-duty conduct statute. Consider and apply HB

QUESTIONS?