MEDICAL MARIJUANA HOW THE NEW AND EMERGING … · are each better at treating certain other symptoms. ... Tourette’s syndrome ... safety-sensitive jobs which do not authorize medical

MEDICAL MARIJUANA: HOW THE NEW AND EMERGING

LEGISLATION IMPACT EMPLOYEE SAFETY, DRUG FREE POLICIES AND DRUG TESTING

PROGRAMS

MINNESOTA MARIJUANA LAW

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• Minnesota’s Medical Cannabis law allows for the use and possession of marijuana for medical purposes.

• Law passed in 2014.

AN OVERVIEW OF THE LAW

• There are five major cannabinoids in the plant.

• The best-known, THC, is the only one that delivers the “high”. It is a muscle relaxant that helps lower blood pressure and stimulates the appetite.

• Another compound, CBD, is good at relieving pain, nausea and convulsions. Similarly, the other three main cannabinoids are each better at treating certain other symptoms.

• http://www.unitedpatientsgroup.com/resources/how-medical-marijuana-works

MARIJUANA: WHAT DOES IT DO?

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http://www.unitedpatientsgroup.com/resources/how-medical-marijuana-works

http://www.unitedpatientsgroup.com/resources/how-medical-marijuana-works

• Patients seeking medical marijuana must go through Minnesota Registry Program.

• Only legal to distribute and consume medical marijuana in pill, vapor, and liquid form.

• Smoking marijuana is unlawful. • Cannot use marijuana in public places or at

work.

MEDICAL MARIJUANA OVERVIEW

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• A January 2019 report says the Office of Medical Cannabis has enrolled 14,481 patients (up from 8,129 as of December 2017).

HOW POPULAR IS MEDICAL MARIJUANA?

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• Minnesota’s Medical Cannabis Program is one of the most restrictive.

• Health care practitioners must register in the Minnesota Medical Cannabis Registry in order to prescribe.

• A patient must be diagnosed with a qualifying condition and then apply to be enrolled in the Patient Registry Program.

QUALIFICATION

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• Once approved for the registry, the patient will receive a registry card that allows them to receive marijuana from a dispensary/clinic.

• Marijuana cannot be “prescribed” by physicians or other health care professionals because it is not approved by the FDA.

• Doctors certify patient as having a qualifying condition and then

pharmacists working in clinics dispense.

QUALIFICATION (CONT’D)

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• Marijuana can only be used for the following qualifying conditions:

QUALIFYING CONDITIONS

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• Cancer • Glaucoma • HIV/AIDS • Tourette’s syndrome • Epilepsy • Autism • Obstructive sleep apnea

• Amytophic Lateral Sclerosis (ALS) • Crohn’s disease • “Severe and persistent muscle spasms” • Terminal illness with a probable life

expectancy of under a year • Intractable pain • PTSD

QUALIFYING CONDITIONS, CONT’D

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• Intractable pain is defined as “a condition in which the case of the pain cannot be removed or otherwise treated with the consent of the patient and in which, in the generally accepted course of medical practice, no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.”

• Intractable pain makes up 64% of all patient certifications • PTSD (16%) • Severe/persistent muscle spasms (13%) • Cancer (9%)

According to MN Dep’t of Health January 2019 update

QUALIFYING CONDITIONS, CONT’D

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• Conflicts between state and federal law: • Providers certified by the Centers for Medicare and Medicaid

Services (CMS) are bound by a Condition of Participation which requires providers to operate and provide services in accordance will all state and federal laws.

• Since marijuana is still classified as a Schedule 1 controlled substance under federal law, it is a criminal offense for CMS-certified providers to manufacture, distribute, dispense, or possess medical marijuana.

PROVIDING MEDICAL MARIJUANA TO PATIENTS IN HEALTH CARE FACILITIES

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• Employees of health care facilities are not subject to violations under the Minnesota medical cannabis statues for possession of medical cannabis while carrying out employment duties, such as providing or supervising care to a registered patient, or distribution of medical cannabis to a registered patient.


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• These restrictions may involve: • Restricting a health care provider from storing or

maintaining a patient’s supply of medical cannabis; • Stating that the provider is not responsible for supplying

or providing the medical cannabis for patients; and • Stating that the medical cannabis may only be used in a

location specified by the health care provider.


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• Under the Minnesota Medical Cannabis Act, hospitals, nursing homes, boarding care homes, and assisted living facilities may adopt reasonable restrictions on use and storage of medical marijuana.

• The Minnesota Department of Health (MDH) interprets the law to apply to licensed home care providers as well, even though they are not specifically identified.


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• Minnesota permits claims for medical marijuana under an employer’s workers’ compensation plan.

• In 2015, the Minnesota Department of Labor and Industry redefined “illegal substance” to exclude an individual’s use of medical marijuana as permitted under state law.

• This means that medical marijuana is a reimbursable form of medical treatment for Minnesota workers’ compensation claims.

WORKERS’ COMPENSATION

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• Minnesota’s Medical Cannabis law prohibits workplace discrimination based on:

• The person’s status as a patient enrolled in the registry program;

• The patient’s positive drug test for cannabis components or

metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during hours of employment.

EMPLOYEE PROTECTIONS

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• Nothing in Minnesota’s Medical Cannabis law allows an employee to use, possess, or be impaired by medical cannabis while on duty.

• In fact, all use of medical cannabis must occur during non-working hours and in such a manner that does not result in impairment at a future time on the job.

• So, employers should consider including a provision in their policy that prohibits the use of, possession of, and impairment by marijuana on company premises and during work hours.

EMPLOYMENT PROTECTIONS

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• In Minnesota, recreational use is still illegal. • In August 2019, Gov. Walz ordered state

agencies to begin preparing for legalization. But, no vote scheduled on legislation.

• Legal in 11 states. • Very likely that more states will legalize

marijuana in the near future.

RECREATIONAL MARIJUANA

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• Some state recreational use laws include employer protections. • Example: IL law (effective 1/1/2020) legalizes

marijuana, but protects employers by: • Allowing “reasonable” zero tolerance policies • Allowing employer to prohibit use, possession, and

impairment • Allowing employer to discipline employee if employer

has “good faith belief” employee is impaired


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• Unless and until recreational marijuana is legalized at federal level, it is a state-by-state issue.

• Therefore, employee protections and employer rights will depend heavily on the language of the state statute.

• Employers will problems with detecting impairment compounded by the fact that there may be additional problems in determining whether use was legal because recreational users may not have prescription or other proof of legal use.


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• The MLCPA prohibits discrimination against applicant or employee because they have engaged in lawful off-premises use of consumable products during nonworking hours.

• Likely includes medical marijuana use. • But, because Minnesota’s medical marijuana law already prohibits

discrimination based on status as registered user (except for workplace possession, use, or impairment), MLCPA’s protections may be redundant.

• MLCPA may protect recreational use when such use is legalized in Minnesota.

MINNESOTA LAWFUL CONSUMABLE PRODUCTS ACT (MLCPA)

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• Drug Free Workplace Act • Federal Testing Requirements • Minnesota DATWA

TESTING FOR MARIJUANA: WHICH LAWS APPLY?

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• The Drug-Free Workplace Act applies to employers who receive a federal contract of at least $100,000.

• Subject employers must comply with statutory requirements to maintain drug-free workplaces.

• Under this statute, marijuana use or possession is prohibited.

• State laws do not excuse companies subject to the Drug-Free Workplace Act.

THE DRUG FREE WORKPLACE ACT

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• The U.S. Department of Transportation has regulations governing safety-sensitive jobs which do not authorize medical marijuana as a valid medical explanation for a positive drug test, even if the person lives in a state where it is lawful.

• It is unlawful for any safety-sensitive employee subject to drug testing under the DOT’s drug testing regulations to use medical marijuana.

• State jobs that require a commercial license subject to federal DOT regulations are subject to the federal laws on marijuana and employers may discriminate against employees or applicants on the Medical Marijuana registry and who use recreationally.

FEDERAL TESTING

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• If employees not subject to federal law testing, employers can only test in compliance with DATWA.

• Employer must have written drug testing policy that follows DATWA.

DATWA

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1. Observe—What do you see, smell, hear? 2. Confirm—Have peer(s) also observe employee 3. Document—Use objective language 4. Confront and Converse—Be direct but supportive 5. Testing—Know your organization’s guidelines 6. Services and Treatment

REASONABLE SUSPICION PROCESS

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• Collect all information • Get confirmation whenever possible • Use only objective data • Consult with HR and/or EAP • Speak to employee in private • Be specific—state your concerns and why • Be prepared for emotional response • Explain expectations and/or consequences • Do not allow employee to leave premises on their own • Document the meeting

CONFRONTING THE EMPLOYEE

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• Move quickly to test once decision is made • Consider testing regardless of admission • Be clear regarding what substances you are testing for • Make sure testing sites are accredited and known to staff • Clearly document refusal to test in policy and in

documentation • Staff need to transport/accompany to facility • Assure ride home from facility

TESTING

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The four most common methods of testing for marijuana are:

• Blood tests: Cannot identify impairment.

• Urine tests: Cannot identify impairment due to length of time between ingestion and excretion.

• Hair tests: Cannot accurately measure impairment because marijuana residue does not appear in the hair until days after first use.

• Saliva tests: Relatively new and less reliable test.

DRUG TESTING FOR MARIJUANA

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• Saliva testing is legally questionable for non-DOT testing in Minnesota, because a saliva test does not utilize the services of a certified laboratory.

• Minnesota employers have three options for marijuana drug testing. • Blood test; urine test; hair test.


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• Blood or saliva tests are not reliable indicators of impairment because cannabinoids remain in the body for up to thirty days but impairment only lasts a few hours.

• Oftentimes, field sobriety tests typically administered by law enforcement during traffic stops are difficult to administer and document in a workplace environment, especially when dealing with disabled individuals.


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• In most states, there are no legal definitions of intoxication levels for drug use. Some states have imposed legal limits for THC blood levels.

• Detection levels are a moving target. • Laboratories set a threshold level for a

positive drug test.

TRACE AMOUNTS AND DETECTION LEVELS

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• Minnesota has no definition of impairment. However, Arizona defines drug impairment as noticeable changes to an employee’s: • Speech, Walking, Standing, Physical dexterity, Agility,

Coordination, Actions, Movement, Demeanor, Appearance, Clothing, Odor

• Arizona also includes irrational or unusual behavior, negligence or carelessness, and/or a disregard for the safety of others as indicators that an individual is impaired by drugs.


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• Unlike alcohol, is very difficult to identify whether an individual who tests positive for marijuana is “impaired.”

• Marijuana stored in fat cells, and can often remain in body (and lead to positive test) for several weeks.

• Blood and saliva tests are not reliable indicators of impairment because cannabinoids remain in the body for up to 30 days but impairment may only last a few hours.

• The Minnesota Department of Health does not currently have any guidelines regarding what constitutes marijuana impairment.

CRITICAL ISSUE: IMPAIRMENT

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• Even when testing accurately measures THC, there is still a lack of scientific agreement, and legal definition, of what levels actually constitute impairment.

• Colorado, Washington, and Nevada have defined the legal limit for driving under the influence of THC. • Colorado and Washington: 5 nanograms of active

THC in the blood. • Nevada: 2 nanograms of THC in the blood.


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• How to identify when someone is impaired? • New technology is aiming to fill the gap • Houndlabs Breathalyzers

• Breathalyzer device, measures THC. • Measures alcohol and marijuana. • Measures recent use of smoked and edible marijuana. • May replace hair and urine testing. • Based on research that THC is detectable in breath for up to three

hours after smoking marijuana, and the three-hour time frame is when most people are likely to be impaired.


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• Predictive Safety SRP Alert Meters • A “cognitive impairment alertness testing tool.” • Measures an individual’s cognitive alertness with a 60-

second interactive graphics test, taken on a touchscreen or smartphone.

• Employees can download the app on their phone.


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Best Practices: • Create clear policies for identifying impairment. • Document everything used to support reasonable

suspicion that an employee is was impaired.


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• Isn’t a positive test sufficient proof of impairment? • Minnesota courts have not ruled on this issue. • Other courts have held that a positive test,

without more, is insufficient to prove that an employee who legally used medicinal marijuana was under the influence at work.


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• Plaintiff was a Walmart employee who had an Arizona medical marijuana card which she used as a sleep aid for chronic pain related to arthritis.

• Two days after a bag of ice fell on her wrist at work, Plaintiff notified Walmart that she was experiencing pain and swelling in her wrist.

• Three days later, while not at work, Plaintiff used medical marijuana prior to going to sleep around 2 a.m.

• At 2 p.m. that afternoon, Plaintiff went to urgent care for her wrist as directed under Walmart policy.

WALMART CASE

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• While at urgent care, she submitted a urine sample for a post-accident drug test and returned to work.

• Upon returning to work, she told Walmart for the first time that she had a medical marijuana card and gave Walmart a copy.

• Plaintiff’s drug screen tested positive for marijuana, and Walmart determined that the high levels of marijuana metabolites in her test indicated that she was impaired during her shift that day.

• Walmart suspended and later terminated her on the basis of her positive drug test.

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• Plaintiff sued, alleging that she was discriminated against in violation of the Arizona Medical Marijuana Act (“AMMA”).

• Walmart argued that the AMMA did not provide Plaintiff a private cause of action against Walmart.

• Walmart also argued that it terminated Plaintiff based on the results of a drug test taken during her shift, which showed that Plaintiff had the highest levels of marijuana metabolites identifiable by the test, which provided a good faith basis to believe that she was impaired during her shift.

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• The court concluded that the AMMA did contain an implied private cause of action for employment discrimination, since no other remedy for a violation was available.

• The court determined that the AMMA and the Arizona drug testing law can be harmonized to hold a qualifying patient may sue their employer if they are terminated for authorized use of medical marijuana unless the employer has a good faith belief that the employee was impaired by marijuana while at work.

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• While a good faith belief may be based on the results of a drug test, Walmart erred in relying solely on the results of the drug test and no other evidence of impairment.

• The court determined that proving impairment based on the results of a drug test is a “scientific matter” which required expert testimony from someone with specialized knowledge, skill, experience, training, or education.

• Here, a statement from Walmart’s Personnel Coordinator was insufficient to meet this standard.

Whitmire v. Walmart Stores, Inc., 359 F. Supp. 3d 761 (D. Ariz. 2019).

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• It is extremely important to have clear policies in place and to document everything used to support a reasonable suspicion that an employee was impaired by marijuana while at work in order to reduce the legal risks involved with taking adverse action against an employee for suspected impairment while at work.


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• Minnesota Cannabis Act includes presumption that applicant or employee enrolled in registry is engaged in authorized use.

• Employee may be required to prove legal use by showing prescription of registry card.

• Employer may rebut the presumption by evidence that conduct related to use of medical cannabis was not for the purpose of treating or alleviating the patient's qualifying medical condition or symptoms associated with the patient's qualifying medical condition.

PRESUMPTION OF LAWFUL USE

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• Post-accident drug testing. • Employers must take care not to violate OSHA’s anti-

retaliation rules, since reporting a work-related injury is a protected activity, and imposing negative consequences for protected activities is prohibited under OSHA’s whistleblower protection rules.

MEDICAL MARIJUANA SAFETY CONCERNS

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• New OSHA Standards Interpretations: Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv) (Oct. 11, 2018).

• Safety incentive programs are problematic if the program seeks to “penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”


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• OSHA does allow employers to drug test employees to “evaluate the root cause of a workplace incident that harmed or could have harmed employees.”

• If the employer chooses to use drug testing to investigate the incident, OSHA says that the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.


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• The Department of Transportation’s Drug and Alcohol Regulation – 49 C.F.R. § 40.151(e) does not authorize “medical marijuana” under a state law as a valid explanation for a transportation employee’s positive drug test.

• Thus, Medical Review Officers cannot verify a drug test as negative based upon information that physician recommended or authorized the employee’s use of medical marijuana.

• It is unlawful for a safety-sensitive employee who is subject to DOT drug testing regulations to use medical marijuana.

• State jobs that require a commercial license subject to federal DOT regulations are subject to federal marijuana laws, and such employers may discriminate against employees or applicants on the medical marijuana registry.


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1. With recreational or medicinal use of marijuana, there is no clear or reliable way to determine current impairment.

2. Prior to requesting a drug test, employers should observe and document behaviors that indicate a “reasonable suspicion” that the employee is impaired.

3. If the employee tests positive, employer may ask to see patient registry card.

4. Unless subject to federal law, Minnesota employers who choose to drug test for marijuana must follow DATWA.

TAKEAWAYS

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• Minnesota’s Medical Cannabis Law has some of the strongest employment protections in the nation. • Employers cannot discriminate because someone is enrolled on the registry or

because registered patient tests positive for marijuana. • Employees can provide proof of their enrollment in the registry to explain a positive

marijuana test. • Employers can still drug test for marijuana and discipline employees who

possess or are impaired by marijuana.

• Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) still applies. • Remember, proving marijuana impairment via a drug test is difficult and you may

need behavioral observations to support the drug test result.

TAKEAWAYS

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MARIJUANA OTHER STATES

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Nevada • Became the first state to ban pre-employment testing for marijuana.

• Effective Jan. 1, 2020, it is “unlawful for any employer in [Nevada] to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.”

• Exceptions for certain jobs (firefighter, paramedic) and conflicting federal law (e.g., DOT regulations).


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New York City • Passed a city ordinance banning pre-employment testing for THC.

• Effective May 10, 2020, “[e]xcept as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”

• Exceptions for certain jobs (firefighter, paramedic) and conflicting federal law (e.g., DOT regulations).


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Arizona • Arizona Medical Marijuana Act prohibits employers from discriminating against

employees unless the failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law on the basis of an employee’s participation in Arizona’s medical marijuana registry program.

• Authorized medical marijuana users are still prohibited from possessing or being impaired by medical marijuana during work hours.

• However, a legal medical marijuana cannot be considered impaired “solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” – See Whitmire v. Walmart case


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Arkansas • Patients registered with the state’s medical marijuana program cannot be

discriminated against in employment.

• And, employers cannot take adverse employment action against patients possessing less than 2 ½ ounces of medical marijuana while at work.

• However, employers are not required to accommodate the ingestion of marijuana during working hours.

• Employers can also take adverse action against employees who are under the influence of medical marijuana at work.

• Employers can also exclude medical marijuana patients from safety sensitive positions.


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Michigan • The Michigan Medical Marijuana Act does not provide any

employment protections for employees who use or are impaired by medical marijuana.

• An employer may even refuse to hire an applicant who uses medical marijuana and tests positive on a mandatory pre-employment drug test.


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• Plaintiff was a qualifying patient under the Michigan Medical Marijuana Act (“MMMA”) when she interviewed for a position with the Lansing Board of Power and Light.

• Plaintiff received a conditional offer of employment, which included a provision that she comply with the Board’s drug testing policies.

• She submitted a drug test in accordance with the policies and informed the Board that she was a qualifying patient under the MMMA.

• Plaintiff’s drug screen came back positive for THC and negative for other controlled substances.

• Thereafter, the Board rescinded its conditional offer of employment but denied that it was because of her status as a registered qualifying patient.

• Plaintiff sued, alleging that under the MMMA, the Board was prohibited from rescinding her conditional job offer due to her positive drug screen as a result of medical marijuana use.

EPLEE V. CITY OF LANSING,

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• Plaintiff relied upon a provision of the MMA which provides that a qualifying patient may not be subject to a penalty or denied any right or privilege on the basis of use of medical marijuana.

• The court determined that this is an immunity provision and does not create affirmative rights.

• The MMMA does not create an “independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for uses of medical marijuana.”

• Since Michigan is an at-will employment state and the MMMA does not provide any employment protections, the court found that rescinding Plaintiff’s conditional offer of employment was not a penalty.

EPLEE V. CITY OF LANSING,

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Drug Addiction as a Disability: • A past addiction to illegal drugs or controlled substances is a covered

disability under the ADA

• Individuals who are addicted to drugs, have a history of addiction, or who are regarded as being addicted have an impairment under the law.

• To qualify as disabled, the employee’s addiction would have to pose a substantial limitation on one or more major life activities – and he or she cannot currently be using illegal drugs.

AMERICANS WITH DISABILITIES ACT

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• Drug Addiction as a Disability: • Casual drug use is not a disability under the ADA. • Individuals who currently engage in illegal drug use are

specifically excluded from the ADA’s protection. • Employees are protected, however, if they:

• Successfully completed rehab and are no longer using; • Are participating in supervised rehab and are no longer using; or • Are erroneously regarded as using illegal drugs.

AMERICANS WITH DISABILITIES ACT

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• Courts have found that the ADA does not require employers to allow medical marijuana use as a reasonable accommodation.

• The ADA specifically excludes individuals engaging in “illegal” drug use from the definition of a qualified individual.

• Even if prescribed, marijuana remains illegal under federal law.

• The ADA’s definition of illegal drugs includes prescribed marijuana.

MEDICAL MARIJUANA AS A REASONABLE ACCOMMODATION

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• Ross v. Raging Wire Telecommunications, Inc., 42 Cal. 4th 920 (2008) • California resident, Gary Ross, suffered from muscle spasms in his back as a result

of his time in the U.S. Air Force. California state law considered him to be a person with a disability. He began using medical marijuana as part of a physician’s recommendation.

• He was offered a job and as part of the hiring process took a post-offer drug test. After a positive result for THC he was suspended and terminated. He sued claiming failure to make a reasonable accommodation.

• The California Supreme Court found that he did not have a cause of action because the Compassionate Use Act did not give marijuana the same status as a lawful prescription drug. As long as marijuana remained unlawful under federal law, employers do not have to accommodate.


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• In Garcia v. Tractor Supply Co., a Federal judge rejected disability

claims of a tractor supply company employee who had HIV/AIDS. • The judge considered decisions out of California and Colorado

and found that the state’s medical marijuana law did not have any affirmative language requiring the accommodation of registered medical marijuana users.

• The judge also found that reading the state’s human rights law in tandem with the state’s compassionate use law as imposing such a duty would conflict with the federal Controlled Substances Act, which makes marijuana use illegal.


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• In Kamakeeaina v. Armstrong Produce, Ltd.,, Plaintiff alleged that the employer violated the ADA by rescinding its conditional offer of employment after Plaintiff disclosed that he was a registered user under the Hawaii Medical Cannabis program but before administering a drug test.

• In its motion to dismiss, the employer argued that Plaintiff was not a qualified individual with a disability because admitted to being a marijuana user in his federal complaint.

MEDICAL MARIJUANA AND THE ADA

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• In EEOC v. Pines of Clarkston, an assisted living facility refused to employ a nursing administrator after she tested positive for marijuana prescribed to treat epilepsy.

• The employer in this case had not made it clear to the candidate that the reason employment was refused was the drug test and made comments about the candidate’s ability to perform the job due to her epilepsy.

MEDICAL MARIJUANA AND THE ADA

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• The employer comments raised the question of whether the candidate was rejected because of the positive drug test or for the disability that required marijuana for treatment. The Judge denied the employer’s motion to dismiss finding the use of marijuana is not itself a disability, but using positive drug tests to screen out disabled job applicants violates the ADA and most state disability laws. There was sufficient evidence to move forward on the theory that the test was used to screen out disabled applicants.

EEOC V. PINES OF CLARKSTON

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• Bottom line: The ADA does not require employers to accommodate medical marijuana use at the workplace.

• However, employers are not immune from state law liability even though they may not be liable under the ADA.

• While not illegal under ADA, failing to accommodate may violate Minnesota’s medical marijuana law by “discriminating” against patient status.

THE AMERICANS WITH DISABILITIES ACT

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• Case law - States are finding an obligation to accommodate medical marijuana use under state law

DEVELOPING EXCEPTION

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• Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181 (R. I. Super. May 23, 2017)

• Plaintiff applied for a paid internship position and disclosed that she had a Rhode Island medical marijuana card, was currently using medical marijuana, and would test positive on the pre-employment drug test.

• The employer’s policy prohibited the illegal use, sale, or possession of drugs or alcohol on company property, but did not state that a positive result would cause a withdrawal of a job offer.

• The employer refused to hire Plaintiff because she was currently using marijuana.


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• Plaintiff sued the employer under the Rhode Island medical marijuana law and the state’s disability discrimination law.

• The Court granted Plaintiff’s motion for summary judgment, holding that the state medical marijuana law created an implied private action against employers, since the law provided that employers may not refuse to employ a person solely for his or her status as a medical marijuana cardholder.

• Contrary to the employer’s argument, the Court also found that there was no distinction between failing to hire based on cardholder status and failure to hire based on inability to pass a mandatory drug test.

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• The Court found that the employer did have some obligation to accommodate medical marijuana use under the Rhode Island Medical Marijuana Act.

• While the statute stated that “nothing…shall be construed to require…[a]n employer to accommodate the medical use of marijuana in any workplace,” the Court determined that statute does, in some way “require employers accommodate the medical use of marijuana outside the workplace.”

• Although employers do not have to tolerate employees who come to work under the influence of marijuana and are unable to perform their duties competently, the Rhode Island law expressly provides that employers may not refuse to hire someone based on their status as a cardholder. On this level, the law requires employers to accommodate medical marijuana use.

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• Plaintiff began working for Carriage as a funeral director in 2013. • In 2015 he was diagnosed with cancer and prescribed medical marijuana

as part of his treatment as permitted by the New Jersey Compassionate Use Act.

• Plaintiff did not disclose his use of medical marijuana to Carriage. • In 2016, a vehicle Plaintiff was driving during a funeral was struck by

another vehicle that ran a stop sign. He sustained injuries and was taken to the hospital.

• At the hospital he told the physician that he had a license for medical marijuana, but the physician did not administer blood tests since the physician determined Plaintiff was not under the influence of marijuana.

WILD V. CARRIAGE FUNERAL HOLDINGS, INC

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• Carriage learned of Plaintiff’s medical marijuana use on the day of accident after the accident occurred.

• Carriage then told Plaintiff that a blood test would be required before he could return to work.

• Plaintiff took a blood test, but told Carriage it would come back positive because of his prescribed marijuana and the painkillers he had been given related to the accident.

• Plaintiff also told Carriage that he only used the medical marijuana at home.

• Several days later, Carriage terminated Plaintiff’s employment because of the positive drug test result.

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• On appeal, the New Jersey reversed the dismissal of Plaintiff’s claims under the New Jersey Law Against Discrimination (LAD), which relied upon the New Jersey medical marijuana law’s statement that nothing “require[s]…an employer to accommodate the medical use of marijuana in any workplace.”

• The appeals court determined that even though the New Jersey medical marijuana law did not require accommodation of medical marijuana in the workplace, it also did not “immunize an employer’s obligation already imposed elsewhere” – such as obligations in antidiscrimination statutes like LAD.

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• Since the LAD makes it unlawful for an employer to discharge or discriminate against an individual due to disability, the employer’s obligation to accommodate must be analyzed on a case by case basis.

• Here, the court determined that Plaintiff had sought a reasonable accommodation to use medical marijuana while off duty, not in the workplace.

• Since the New Jersey medical marijuana law only states that employers are not required to make workplace accommodations for marijuana users, Plaintiff’s rights under LAD were not impacted.

• Whether Carriage failed to reasonably accommodate Plaintiff’s medical marijuana use and whether Carriage engaged in disability discrimination were fact-based questions not suited for a motion to dismiss.

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• On July 2, 2019, New Jersey amended its medical marijuana law. • The law now specifically prohibits adverse employment actions

based solely on the employee’s status as a medical cannabis program registrant.

• Employers must provide applicants or employees who test positive for cannabis written notice of their right to explain a positive result and their right to provide a “legitimate medical explanation” for the result.

• A legitimate medical explanation includes evidence that a health care provider has authorized the use of medical cannabis, proof that the applicant/employee is a registered patient, or both.

WILD EPILOGUE

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• Employers are not restricted from taking adverse employment action based upon possession or use during working hours or on the premises of the workplace outside of working hours.

• Employee protections are not deemed to require an employer to be in violation of federal law or would result in a loss of a licensing-related benefit, federal contract, or federal funding.

WILD EPILOGUE

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• In the process of applying for a position with the employer, Plaintiff disclosed that she had a valid medical marijuana prescription under the Massachusetts medical marijuana law to treat Crohn’s disease.

• The employer had Plaintiff undergo a standard pre-employment drug test and allowed her to begin work before it received her results.

• Plaintiff tested positive for marijuana, and the employer terminated her employment.

• Plaintiff sued, alleging disability discrimination and failure to accommodate her disability in violation of Massachusetts law and violations of Massachusetts medical marijuana statute.

BARBUTO V. ADVANTAGE SALES AND MARKETING, LLC,

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• On appeal, the Massachusetts Supreme Court overturned the lower court’s dismissal of Plaintiff’s disability discrimination and failure to accommodate claims.

• The Supreme Court rejected the employer’s argument that requiring an employer to accommodate medical marijuana use is per se unreasonable because marijuana is illegal under federal law.

• The Court found that disabled employees in Massachusetts have a statutory right or privilege to reasonable accommodations under state antidiscrimination law, and if an employer’s tolerance of an employee’s use of medical marijuana were a facially unreasonable accommodation, the disabled employee would be effectively denied this privilege solely because of the use of medical marijuana.

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• The court also found that the employer had a duty to engage in the interactive process to determine if there was an alternative, equally effective medication she could use which was not prohibited by the employer’s drug testing policy.

• “Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation.” Id. at 464.

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• The court acknowledged that employers may be able to show that use of medical marijuana may impose an undue hardship on their business, including the risk that use of medical marijuana could impair performance and pose a significant safety risk, or if the use of marijuana would violate a contractual or statutory obligation (such as DoT regulations, safety sensitive positions, etc.). 85

• Plaintiff alleged that the employer terminated her employment in violation of the Washington State Medical Use of Marijuana Act (“MUMA”) and in violation of clear public policy when it rescinded a conditional offer of employment her after she tested positive on a standard pre-employment drug test.

• The Washington Supreme Court determined that MUMA only provides an affirmative defense to state criminal prosecution and does not provide a private cause of action for discharge of an employee who uses medical marijuana nor does it contain a public policy to support a cause of action for wrongful termination on this basis.

• Notably, the Plaintiff did not raise disability discrimination or reasonable accommodation claims under Washington’s anti-discrimination laws.

ROE V. TELETECH CUSTOMER CARE MGMT. (COLORADO) LLC,

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• MHRA Overview: • The MHRA, like the ADA, prohibits discrimination on the

basis of disability. • The MHRA’s coverage of individuals with disabilities is

generally very similar to the ADA. • Generally, individuals with alcohol or drug addiction may be

considered to have a disability and are protected.

MINNESOTA HUMAN RIGHTS ACT

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• The MHRA does not require employers to permit impairment at work or the use or possession of marijuana at work.

• Critical issue is determining what constitutes “impairment.”

• Must document facts to show impairment (or possession/use at work) to support right to discipline employee.

MARIJUANA UNDER THE MHRA

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• No one has challenged whether or not this includes the duty to allow an employee’s use of medical marijuana as part of an accommodation.

• It is unclear whether employers in Minnesota run the risk of violating the MHRA by failing to accommodate an employee’s lawful medical marijuana use.


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• While failing to accommodate medical marijuana use may not violate the ADA or MHRA, failing to accommodate such use may violate the Minnesota medical marijuana law itself.

• This is because failing to do so may “discriminate” against the patient based on status as registered user. • Minn. Stat. § 152.32, subd. 3.


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Employers must accommodate the underlying condition for which the medical marijuana was prescribed, even if not required to allow medical marijuana use.


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• Do not ask applicants or employees to disclose whether they are medical marijuana patients.

• If you learn an employee or applicant is a registered patient, do not take adverse action based on this fact alone.

• Discuss expectations regarding use of medical marijuana before work and at work and expectations regarding coming to work impaired.

• Gather evidence to support workplace impairment, use, or possession. • Workplace policies should be clear about these procedures, and the

penalties for violating these procedures.

BEST PRACTICES

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QUESTIONS?

Thank you.

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Documents

MEDICAL MARIJUANA HOW THE NEW AND EMERGING … · are each better at treating certain other symptoms. ... Tourette’s syndrome ... safety-sensitive jobs which do not authorize medical