Tony Comden Stephanie Quist - Miller Johnson · 2017. 10. 16. · MMMA now covers edibles and other substances defined as “marijuana infused products.” Extensive and detailed

© 2017 Miller Johnson. All rights reserved. 1

Tony Comden

Stephanie Quist

The materials and information have beenprepared for informational purposes only.This is not legal advice, nor intended to create orconstitute a lawyer-client relationship.Before acting on the basis of any information ormaterial, readers who have specific questions orproblems should consult their lawyer.

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According to Gallup: 2013: 7% of American adults reported currently

smoking marijuana

2016: 13% of American adults reported currentlysmoking marijuana

Percentage nearly doubled over just 3 years

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Source: National Conference of State Legislatures

AR

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• Alaska• Arizona• Arkansas• California• Colorado• Connecticut• Delaware• Florida• Hawaii• Illinois• Maine• Maryland

• Massachusetts• Michigan• Minnesota• Montana• Nevada• New Hampshire• New Jersey• New Mexico• New York• North Dakota• Ohio• Oregon

• Pennsylvania• Rhode Island• Vermont• Washington• West Virginia (2019)

29 States and D.C. have medical marijuana laws:


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• Alaska• California• Colorado• Maine

• Massachusetts• Nevada• Oregon• Washington

8 states and D.C. also permit recreationalmarijuana use:

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This is a fluid, developing area of the law State legislatures have not had a chance to remedy

gray areas

Courts have not had a chance to provide further

guidance

Source: National Conference of State Legislatures


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The Act’s ProtectionsQualified patients “shall not be subject to arrest,

prosecution or penalty in any manner, or deniedany right or privilege, including but not limited tocivil penalty or disciplinary action by a business oroccupational or professional licensing board orbureau, for the medical use of marijuana inaccordance with this Act.”

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Amended effective December 2016

MMMA now covers edibles and other substancesdefined as “marijuana infused products.” Extensive and detailed rules about the amount of a marijuana

infused product that can be possessed by a card holder (orcaregiver)

2.5 ounces of regular medical marijuana

= 36 ounces of liquid marijuana infused products

= 16 ounces of solid marijuana infused product

= 7 grams of gaseous marijuana infused product

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If I have a Michigan Medical Marijuana Card,my employer cannot terminate me for havingTHC in my system when I have a drug test[True / False]

The December 2016 amendments to theMMMA allow me to use marijuana infusededibles at work [True / False]

Marijuana use is a “protected characteristic”under state and federal law [True / False]


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The MMMA does not: Regulate private employment

Casias v Wal-Mart, 695 F.3d 428 (6th Cir. 2012)

Protect Michigan employees from disciplinaryaction for otherwise lawful use of medicalmarijuana

Create any obligation by employers toaccommodate medical marijuana (including edibles)

Require government medical assistance programsor commercial/non-profit health insurers toreimburse for costs associated with medicalmarijuana use (2013 amendments)

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Employees who are terminated for medicalmarijuana use are eligible for unemploymentbenefits in Michigan Braska v Challenge Manufacturing Company,

Michigan Court of Appeals (2014)

Braska was a breakthrough decision, and notclear other states will follow suit


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State marijuana use laws do not changefederal law

Marijuana use, possession, and sale stillillegal under federal law

To date, the USDOJ has not prosecuted forlegitimate medical marijuana use

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Will the Trump Administration changecourse?Attorney General Jeff Sessions is not a marijuana

fan: “Slightly less awful than heroin.”

What about Congress?Marijuana Effective Drug Study Act introduced by

Sen. Orrin Hatch (R-Utah) last month.

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Disability?Use of medical marijuana – No

ADA does not protect individuals “currently engagingin the illegal use of drugs” prohibited under federallaw

But: underlying condition may be disability

Reasonable accommodation? Ingestion at work – No

Being “under the influence” while at work - No

Leave to accommodate use outside of work - ??

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Use of medical marijuana is not a serioushealth condition under the FMLA But, FMLA leave may be required to accommodate

medical use of marijuana due to a serious healthcondition

Employee may be eligible for FMLA leave toseek treatment for substance abuse

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What about federal contractors/DOTregulations?No state requires employers to ignore federal

contract requirements or violate federal licensinglaws or regulations (such as DOT regulations)

Some states have specific carve-out

Arizona: May not discriminate “unless a failure to doso would cause an employer to lose a monetary orlicensing benefit under federal law or regulation”

CT, DE, IL, MN, NY, OH, PA have similar provisions

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Question #1: Can I discipline or discharge anemployee who ingests/smokes marijuana whileat work?

Yes

Two exceptions:Maine: Can only prohibit smoking of marijuana if

owner prohibits all smoking on premises (not clearhow this applies in employment context)

Maryland: May prohibit only if employer has policyprohibiting marijuana use while at work

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Question #2: Can I refuse to hire orterminate employment based only on thefact that an individual possesses a medicalmarijuana card or license?

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Yes:Oregon Emerald Steel Fabricators v. Bureau of Labor, 2010

Montana If employment contract contains “provision prohibiting

the use of marijuana for a debilitating medicalcondition”

No: AZ, AR, CT, DE, IL, ME, MA, MN, NV, NY,PA, RI, WV

Everywhere else: ???

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Question #3: An employee tests positive formarijuana (THC) and presents me with amedical marijuana card.

Can I refuse to hire, discipline or dischargethe employee based solely on the positivetest result (without any other evidence ofimpairment while at work)?

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Yes:CA, CO, FL, GA, MI, MT, OH, OR, WA

Yes, if you have a non-discriminatory policy: IA

No:AZ, AR, DE, MA, MN, RINote: Also use caution in states where adverse

action based on possessing medical marijuana cardprohibited, especially in pre-employment context

Everywhere else: ???

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Question #4: Can I discipline or discharge anemployee who is working while under theinfluence of medical marijuana (i.e., has someevidence of impairment other than a positivedrug test)?

Yes, but what does “under the influence” mean?

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“Under the Influence”

Vast majority of states do not define the term

Some state laws prohibit “undertaking anytask under the influence of marijuana, whendoing so would constitute negligence orprofessional malpractice”DE, DC, MD, RI, WV

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“Under the Influence” (cont.)Arkansas: “Good faith belief” not based solely on

positive test result

New York: If employer has policy prohibitingperformance of duties while impaired

Pennsylvania: When an employee’s conduct “fallsbelow the normal standard of care” for theemployee’s position

And then we have Illinois…

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“An employer may consider a registered qualifying patientto be impaired when he or she manifests specific,articulable symptoms while working that decrease or lessenhis or her performance of the duties or tasks of theemployee's job position, including symptoms of theemployee's speech, physical dexterity, agility, coordination,demeanor, irrational or unusual behavior, negligence orcarelessness in operating equipment or machinery,disregard for the safety of the employee or others, orinvolvement in an accident that results in serious damage toequipment or property, disruption of a production ormanufacturing process, or carelessness that results in anyinjury to the employee or others.”

410 Ill Comp. Stat. Ann. § 130/50

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Question #5: What should I do if anemployee requests an accommodation dueto side effects of medical marijuana use?

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State law has little to say directly on this issue Likely do not need to make reasonable

accommodation where state law does not protectcardholder status or permits discipline/dischargebased on positive drug test

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Nevada Employer must attempt to make reasonable

accommodations for lawful medical marijuana useunless accommodation would (1) pose a threat toothers, (2) impose undue hardship on theemployer, or (3) prohibit employee from fulfillingjob responsibilities

New York Individuals with medical marijuana card have

“disability” under state discrimination law

No further guidance on how employers mustaccommodate medical marijuana use

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Rhode IslandCallaghan v. Darlington Fabrics

(state trial court 2017)

Employer’s written policy did not contain languagedisqualifying applicants who tested positive on pre-employment drug screen

Court: absent written policy, deciding not toautomatically disqualify an individual with amedical marijuana card may be reasonableaccommodation

Don’t forget about the ADA

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Case Study

Barbuto v. Advantage Sales and MarketingMassachusetts Supreme Judicial Court (July 2017)

Facts:

Employee offered position with employer

Employee informed supervisor she would test positivefor marijuana on pre-employment drug test due tooccasionally taking marijuana for Crohn’s disease

Employee had medical marijuana card

Employer terminated employment under drug policyafter employee tested positive for marijuana

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Case Study (cont.) Trial Court:

No claim under state medical marijuana law

No claim under state disability discrimination law

Request to accommodate medical marijuana use faciallyunreasonable because use of marijuana illegal underfederal law

Dismissed case/plaintiff appealed

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Case Study (cont.)

State Supreme Court: Reversed

Didn’t need to decide whether employee could sueunder state medical marijuana law, because…

Under MA disability discrimination law

Crohn’s disease characterized as “debilitating condition”under state medical marijuana act, and employeestruggled with appetite and weight loss

Request to accommodate marijuana use not “faciallyunreasonable” even though prohibited by federal law

Employer had duty to engage in interactive process toassess alternative medication options

If no alternative existed, employer had burden to proveundue hardship

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Other considerations when addressing statemarijuana laws:

Unemployment Braska v Challenge Manufacturing Company (MI)

Workers compensationNevada: employer does not have to pay workers

compensation if injury caused by effects of medicalmarijuana use

Vermont: employers do not need to cover medicalmarijuana expenses under workers compensation

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1. Don’t panicMedical marijuana may be a hot-button social issue,

but not necessarily new policy ground

In many cases, addressing medical marijuana canbe addressed in the same manner as prescriptionnarcotics or other performance-impairingsubstances

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2. Have a written substance abuse policy

Prohibited substances: Should not be limited to “illegal drugs”

Should include any substance that could adverselyaffect an employee’s judgment, cognition,behavior, ability to perform job duties in a safe andeffective manner

Should cover drugs/substances prohibited understate and federal law

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2. Written substance abuse policy (cont.)

Prohibited Activities: Prohibit possession, use, transfer, being under the

influence or impaired, having a detectable level inone’s body (*where permitted by law)

While on duty, while on company property, or whileperforming any activity in the course of employment

Require notification if employees are takingdrugs/substances that could impairperformance

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Drug Testing Pre-employment (but be careful how you use it)

Reasonable suspicion

Signs of impairment; unexplained changes inperformance, conduct, attendance; coworkerobservations; possession

Post-incident (not “post-accident”): After anyincident that involves actual or potential personalinjury, property damage, or unsafe behaviors

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Drug TestingOn-demand: Typically post-discipline, or under a

last chance agreement

Random: Required by DOT and other federal regulations for various

safety-sensitive jobs

Not widely used elsewhere

Return to work/duty: Be careful if employee isreturning from a protected leave such as FMLA ormilitary leave

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3. Identify state-specific issuesNow is the time to identify red flags

Where practical, tailor your written policies tospecific state requirements

Understand that this is a new and fluid area of law,so periodically ensure relevant state laws have notchanged

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4. Train your supervisors regarding:

Your policy

Protocols/mechanics

Spotting impairment

Required documentation

State-specific issues

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5. Enforce your policyHandle issues on a case-by-case basis, but ensure

consistency

Consider a back-up plan: leave under theADA/FMLA

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Tony Comden616.831.1757

[email protected]

Stephanie J. Quist616.831.1794

[email protected]

100 W Michigan AveSuite 200Kalamazoo, MI 49007

45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503

millerjohnson.com

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Tony Comden Stephanie Quist - Miller Johnson · 2017. 10. 16. · MMMA now covers edibles and other substances defined as “marijuana infused products.” Extensive and detailed