© 2011 Sherman & Howard L.L.C. How Does the Legalization of Recreational and Medical Marijuana Affect Your Employment Policies? Vance O. Knapp, Esq., Partner.

Slides:



Advertisements
Similar presentations
Medical Marijuana’s Unintended Consequences Bruce McIntyre, JD Rhode Island Department of Health June 17, 2011.
Advertisements

Managing the Risks of Wrongful Discharge Claims Raymond L. Hogge, Jr. HOGGE LAW Attorneys and Counselors at Law 500 E. Plume Street, Suite 800 Norfolk,
Page 1 Recording of this session via any media type is strictly prohibited. Page 1 How will the Legalization of Marijuana Affect Your Employment Policies?
By Andrew Stivers GONZALEZ V. OREGON. You decide: Prelude to Gonzalez V. Oregon A 107 year old woman, who is a resident of Portland, Oregon, has three.
Private Rights of Action Under Title II of the ADA Washington State Transit Insurance Pool Board Meeting December 6, 2012.
Constitutional Law Presentation by: Melissa Weatherbie.
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.
JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 Drugs and Alcohol Under the ADA Linda Carter Batiste, J.D.,
Alcohol/Drug-Free Workplace Administrative Policy GBEC Updated 07/31/2012 HR.
COLORADO: COSTING EMPLOYERS An Update on Workplace Realities in the Era of Legalized Marijuana Jo McGuire Five Minutes of Courage
Chapter 7: The Judicial Branch
School Bus Driver In-service INDUSTRY UPDATES Inservice For Bus Drivers 1.
Legal Aspects of Starting a Business Business Management.
Medical Marijuana and The Workplace. Presented by: Brenda JM Sabin, CBP Dir of HR Compliance & Payroll Solutions.
Amendment 64: What a Long Strange Trip It’s Been 2013 SDA Annual Conference.
Effects of the Legalization of Marijuana in the Workplace Local Government Seminar January 29, 2015 Presented by: Karen Singer & Loren B. Smith.
Summer 2011: Submitted to WA Sec. of State w/ 341,000 signatures. April 2012: WA Legislature adjourned w/ no action. November 2012: Advanced to General.
Medical Marijuana: A Brief History Medical Marijuana first legalized On November 5, 1996 California became first state ever to legalize medical marijuana.
1 Team Geyer “Hey, wait a minute, there's no birthday party for me here!”
Administrative Agencies Chapter 4. Copyright © 2007 Thomson Delmar Learning Objectives Identify executive-branch agencies. Explain that administrative.
Copyright © 2004 by Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany BUSINESS LAW E-Commerce and Digital Law International Law and Ethics.
24 Legal and Ethical Considerations. 24 Legal and Ethical Considerations.
Peer Assistance Services, Inc Medical & Legal Marijuana in the Colorado Workplace: An EAP Perspective Chris Knoepke, MSW, LSW, ABD Peer Assistance.
Substance Abuse In the Workplace
Assistance dealing with substance abuse is available on campus for Colby Staff through HR. Contact Ria DeMay to seek confidential assistance in dealing.
Labor-Management Relations l Federal legislation re: labor-management power »labor unions l Labor policies and legislation »wages and income maintenance.
Street Law JEOPARDY May 30, CONTRACTSCRIMINAL CIVIL WRONGS FIRST AMENDMENT EMPLOY- MENT GRAB BAG Street Law JEOPARDY.
I-502 Legalization of Marijuana in the State of Washington.
University of Louisiana at Monroe DRUG FREE WORKPLACE POLICY.
The OSH Act, Standards, & Liabilities
Safety and Health: Legal Framework Statutory – Occupational Safety and Health Act (OSH Act) of 1970 Sets uniform standards – All business affecting commerce.
Richard G. Lorenz 1001 SW Fifth Ave., Suite 2000 Portland, OR (503)
The Civil Rights Act of 1991 Newell Canfield Janet Long Mark Norris Cynthia Spence.
MEDICAL MARIJUANA AND THE AMERICANS WITH DISABILITIES ACT Presented by Hoyt S. Neal of Wood Smith Henning & Berman LLP The following material is intended.
What Is Employment? Compare employee with agent and independent contractor Differences: Control test - Degree of control exercised over an employee is.
Drug Testing in the Workplace Legal Issues and FAQ’s.
Legal Aspects of Starting a Business Business Management.
Criminal Background Checks John Start International Crime Free Association Crime Free Partners Crime Free Platinum Community Policing Trainer Certified.
THE LEGAL ENVIRONMENT OF BUSINESS A Critical Thinking Approach Fourth Edition Nancy K. Kubasek Bartley A. Brennan M. Neil Browne Nancy K. Kubasek Bartley.
Intersection of Federal and State Laws on Marijuana Presented by: Chris Gunn Bonneville Power Administration October 29, 2015.
Presented by: Richard A. Spiers, CPCU, ARM, ARe and Thomas J. Lyons, Esq. The Changing World of Marijuana: Did You Inhale? March 7, 2016.
PLN  Amendments to Chapters 3, 4 and 11 of the Adams County Development Standards and Regulations concerning the regulation of medical and.
Regulating & Taxing Marijuana
Unit 5 – The Employee Stakeholder Prof. Dawn Courtright Copyright (c) Dawn Courtright All Rights Reserved.
Texas and the Federal System, II January 28, 2016.
MEDICAL MARIJUANA IN THE NEVADA WORKPLACE Or: IS IT OKAY TO GET HIGH AT WORK?
NCI – Nursing Corps Presented by: Andrew Powell NCI - Nursing Corps
Employment Law Update – 2017 and Beyond
Law Office of Phillip J. Griego 95 South Market Street, Suite 500
WORKERS’ COMPENSATION/ MEDICAL MARIJUANA It’s a Whole New Game
Proposition 64 County Behavioral Health Directors Association
Bell Work: List 5 things that you did this morning.
Drunk, High, and at Risk – Drug Testing and Medical or “Not-so” Medical Marijuana Jo Ellen Whitney Davis Brown Law Firm.
Texas and the Federal System, II
Employment Drug Testing
The Current (and Future?) Stalemate over Marijuana Law
Legal Aspects of Starting a Business
Proposition 64 County Behavioral Health Directors Association
Is Everyone Going to Be High
SUBSTANCE ABUSE PROGRAMS
Planning for Legalization
Up in Smoke: Legalized Marijuana and the Workplace
Passage of Proposal 1 and Marijuana in the workplace
Thursday, September 8, 2016 Objective: We will go over the perspectives on the Second Amendment and evaluate the effectiveness of gun safety laws and.
Medical Marijuana: Next steps for Oklahoma employers
RECREATIONAL MARIJUANA & THE CONSTRUCTION INDUSTRY
By Tracy A. Armstrong, Esq.
ADA: Legal/Illegal Drug Use in the Workplace Cabarrus Regional SHRM
Marijuana in the Workplace: An American Experiment
DRUG AND ALCOHOL FREE WORKPLACE.
Presentation transcript:

© 2011 Sherman & Howard L.L.C. How Does the Legalization of Recreational and Medical Marijuana Affect Your Employment Policies? Vance O. Knapp, Esq., Partner Labor and Employment Department, Sherman & Howard L.L.C th Street Ste. 3000, Denver, CO (303)

© 2011 Sherman & Howard L.L.C. BACKGROUND 23 states and the District of Columbia have legalized possession and use of limited amounts of marijuana for medical purposes. Colorado and Washington state have also legalized limited amounts of marijuana for recreational purposes.

© 2011 Sherman & Howard L.L.C. BACKGROUND In Colorado, Amendment 64 Legalized Recreational Marijuana-- –Marijuana to be obtained as easily as alcohol. –Allows individuals 21 or over to cultivate, use and possess limited amounts of marijuana, without having to be certified as having a serious illness or debilitating health condition.

© 2011 Sherman & Howard L.L.C. Marijuana is Still Illegal Under Federal Law or Is It? “We’ve got bigger fish to fry,” President Obama in response to a question concerning prosecution of marijuana users by Barbara Walters on ABC’s “Good Morning America” on December 14, 2012.

© 2011 Sherman & Howard L.L.C. Marijuana is Still Illegal Under Federal Law or Is It? On August 29, 2013, The U.S. Department of Justice issued a memorandum to all U.S. Attorneys updating its Guidance on marijuana enforcement. –The DOJ is deferring its right to challenge legalization efforts at this time.

© 2011 Sherman & Howard L.L.C. Bipartisan Congressional Support Representatives Dianna DeGette (D) and Mike Coffman (R), have introduced the “Respect States’ and Citizens’ Rights Act,” in Congress. –The bill is designed to exempt states from the federal Controlled Substances Act provision on marijuana—this bill is still pending.

© 2011 Sherman & Howard L.L.C. Drug Free Workplace Act Applies to any organization that receives a Federal contract of at least $100,000 to establish a drug-free workplace. –It also requires that all organizations receiving Federal grants of any size establish and maintain such a policy. –Does not require employers to drug test employees.

© 2011 Sherman & Howard L.L.C. ADA Issues Involving Marijuana ADA does not require employers to accommodate the use of marijuana. –However, if an employee enters a substance abuse program, employers have to accommodate the employees participation. ADA does not consider drug testing to be a medical examination.

© 2011 Sherman & Howard L.L.C. Accommodation of Medical Marijuana Beware, some state anti-discrimination laws do not address marijuana use as an accommodation. –Plaintiff’s counsel could argue in states that have legalized medical marijuana, that under state anti- discrimination laws, an employee’s use of marijuana to ameliorate the effects of a disability constitutes a reasonable accommodation.

© 2011 Sherman & Howard L.L.C. Federal Status Bottom Line—marijuana remains classified as a Schedule I narcotic under the Federal CSA –Marijuana cultivation, distribution, possession and use are still criminal acts under federal law. –Marijuana is in the same category as Cocaine, Heroin, LSD and Ecstasy.

© 2011 Sherman & Howard L.L.C. Can I Regulate My Employees’ Use of Marijuana? YES! –At a minimum, employers in all 50 states and the District of Columbia can regulate an employee’s use of marijuana by: Prohibiting marijuana possession and use at work; and Reporting to work impaired or under the influence of marijuana.

© 2011 Sherman & Howard L.L.C. Can I Regulate My Employees’ Use of Marijuana? In Colorado both Amendment 20 (medical marijuana) and Amendment 64 (recreational marijuana) provide that employers do not have to accommodate employees use of marijuana.

© 2011 Sherman & Howard L.L.C. Can I Regulate My Employees’ Use of Marijuana? Benoir v. Industrial Claims Appeals Office –Employee can be denied unemployment for testing positive for marijuana in violation of employer’s zero tolerance drug policy. –Medical Marijuana Amendment only provides an affirmative defense to criminal prosecution.

© 2011 Sherman & Howard L.L.C. Can I Regulate My Employees’ Use of Marijuana? Employers may restrict the use of marijuana by employees; but can employers prohibit, the lawful off-duty and off-premises use. –Does having a trace amount of THC in your body constitute use or possession at work? –When is an employee “impaired” or “under the influence” by THC? –Combating employees’ perceptions concerning their “constitutional right” to use marijuana v. reality.

© 2011 Sherman & Howard L.L.C. Can I Regulate My Employees’ Use of Marijuana? Colorado’s Lawful Off-Duty Activities Statute, C.R.S. § , makes it a discriminatory or unfair employment practice to terminate an employee who is engaged in lawful off-duty, off-premises activities. Coats v. Dish Network, the Colorado Court of Appeals held that medical marijuana use is not lawful for purposes of Colorado’s Law Off-Duty Activities Statute.

© 2011 Sherman & Howard L.L.C. Can I Regulate My Employees’ Use of Marijuana? The Colorado state legislature has passed a driving under the influence of marijuana bill. –This bill sets the threshold for impairment at 5 nanograms, and allows a defendant to argue at trial that they were not impaired.

© 2011 Sherman & Howard L.L.C. Policy Options No Testing v. Reasonable Suspicion/Post Accident Testing v. Random Testing

© 2011 Sherman & Howard L.L.C. Policy Options Beware local drug testing ordinances. Is there a threshold for impairment?

© 2011 Sherman & Howard L.L.C. Can I Still Have a Zero-Tolerance Drug Policy? Yes, but--“Damn lawyers! There is always a but!” –Marijuana is still illegal under federal law. You could have a zero-tolerance policy for positive test results and the courts would probably uphold your right to terminate an employee for a positive test. –However, the expense to defend a wrongful termination suit through the appeal process could easily cost $300,000 in legal fees and costs.

© 2011 Sherman & Howard L.L.C. How Should I Address Marijuana Use in My Employment Policies? Review your substance abuse policy to ensure its restrictions concerning marijuana use are consistent with the restrictions contained your respective jurisdiction. –E.g., “Acme Company does not permit the possession, distribution or use of illegal substances (including medical and recreational marijuana).”

© 2011 Sherman & Howard L.L.C. How Should I Address Marijuana Use in My Employment Policies? Review your job descriptions—can you make a case for all employees having safety sensitive positions? If not, why? Treat similarly-situated employees the same.

© 2011 Sherman & Howard L.L.C. How Should I Address Marijuana Use in My Employment Policies? The ADA does not require employers to accommodate the use of marijuana to mitigate the effects of a disability. –However, some state anti-discrimination statutes may require accommodation of medical marijuana use. Educate your employees and guests about your marijuana possession and use policies.