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THE IMPACT OF THE LEGALIZATION OF MARIJUANA AND DRUG TESTING

IN THE WORKPLACE

September 16, 2015

Janica Pierce Tucker

Taft Stettinius & Hollister LLP 65 E. State Street, Suite 1000

Columbus, Ohio 43215614.334.6182

jpierce@taftlaw.com

© 2015 Taft Stettinius & Hollister LLP

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Legalized And Medicinal Marijuana At Work

• Employers benefit from drug free workplaces• Positive drug tests continue to eliminate job applicants• “Medical marijuana” has created unknown

territory and poses many challenges for a “drug-free workplace”

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OhioIssue 3 – Marijuana Reform

• Proposes the legalization of the use of medical marijuana bypatients with debilitating medical conditions

• Proposes the legalization of marijuana infused products forpersonal use in certain amounts for individuals 21 years ofage or older

• Prohibits persons from operating or being in physical controlof a vehicle, aircraft, train or motorboat while under theinfluence of medical marijuana, marijuana, homegrownmarijuana or marijuana-infused products, and requiring theGeneral Assembly to pass laws imposing criminal penaltiesfor doing so

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OhioIssue 3 – Marijuana Reform (cont’d.)

• Provides that nothing in the Amendment is intended to requirean employer to permit or accommodate the possession or useof medical marijuana, marijuana, homegrown marijuana ormarijuana-infused products in the workplace, except that apatient with a medical marijuana certification may self-administer the medical marijuana subject to the sameconditions applied to prescribed medications

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Statistics

23 states and the District of Columbia currently have medical marijuana laws

Positive drug tests have increased for the first time in more than ten years at a

5.7% increase

Marijuana continues to be the drug of choice

• Statutory language varies but each state authorizes individuals with qualifying medical conditions to legally use marijuana

• Colorado, Washington, Alaska, Oregon and the District of Columbia have legalized marijuana for recreational use

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What is Medicinal Marijuana?

• Medical cannabis (or medical marijuana): The use of cannabis and its constituent cannabinoids, as medical therapy to treat disease or alleviate symptoms

• The FDA approved THC to treat nausea and improve appetite

People who receive a prescription for

medicinal marijuana are given a card from

a doctor. The card should be on

their person at all times.

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What is Medicinal Marijuana?

Reasons for Use• Pain is the main reason medicinal marijuana is prescribed• Muscle spasms caused by multiple sclerosis • Nausea from cancer therapy • Poor appetite and weight loss caused by

chronic illness, such as HIV, or nerve pain• Seizure disorders • Crohn’s disease • Glaucoma

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What is Medicinal Marijuana? • How is it Used?

• Smoked• Vaporized (heated until active ingredients are released, but no

smoke is formed)• Eaten (usually in the form of cookies or candy) • Taken as a liquid extract

• Side Effects• Dizziness • Drowsiness • Short-term memory loss • Euphoria • More serious side effects include severe anxiety and psychosis

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Lawsuits Involving Medicinal Marijuana

Lawful Termination?

Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App.2013)

• Colorado Court of Appeals affirmed company’s right to fire employee, but the Colorado Supreme Court accepted the case

• On June 15, 2015, the Colorado Supreme Court ruled that Dish Network LLC was within its rights to fire a quadriplegic customer service representative who used medical marijuana

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Lawsuits Involving Medicinal Marijuana

• Colorado Court of Appeals:– Smoking marijuana was not a “lawful” activity within the meaning

of the statute– For an activity to be lawful, the activity must be legal under

federal and state– The Coats case clarified that an employer is still permitted to

terminate an employee for marijuana use, even if the employee does not use the marijuana on the employer’s premises and is not under the influence while at work

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Lawsuits Involving Medicinal Marijuana

• Dish fired Coats for violating its drug policy after a positive test• Coats’ conduct was unlawful under federal law, despite the

Colorado state law that allowed the use of medicinal marijuana

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Lawsuits Involving Medicinal Marijuana

Practical Implications• State medical marijuana laws do not explicitly provide protected

status to patients• State supreme courts have upheld companies’ decisions to fire

employees for their cannabis use outside the office.• Judges: Medical cannabis laws only protect patients from criminal

penalties, not from termination by their employers

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The Effects of Drug Use

• Decreased Productivity

• Poor Performance

• Increased Absenteeism

• Safety Hazards

• Health Insurance Cost Increase

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What Laws Employers Should Consider

• Americans with Disabilities Act (ADA)

• State Civil Rights Act

• Family Medical Leave Act (FMLA)

• Fourth Amendment

• Employment/Union Contracts

• Right to Privacy

• Defamation

• Workers’ Compensation

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What Are the Responsibilitiesof the Employer

Must an employer accommodate?

• Under the ADA, an employer generally is required to provide reasonable accommodation to a qualified disabled individual unless the accommodation would impose an undue hardship

• Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal ADA

• 23 states have legalized medical marijuana use, creating a conflict with state laws– Employers may be on notice of an employee’s disability if the employee

inquires about the company’s policies regarding the use of medical

marijuana.

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ADA – The Duty to Accommodate

• Test for illegal drugs that reveal the presence of legally prescribed medication must be treated as a confidential medical record

• Under the ADA, a person illegally using drugs is excluded from coverage

• The employer must treat those who do illegal drugs and alcohol users to the same performance and behavior standards applicable to all employees

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Practical Implications• Medical marijuana is currently illegal under

Ohio law and federal law • Ohio companies do not have an obligation to

accommodate an employee’s medical marijuana use and except the employee from the zero-tolerance drug policy (this may soon change)

• Human resources personnel should know how to handle medical marijuana issues as they arise

What Now In Ohio

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What Happens if Issue 3 Passes

• Generally – may not ask employees about prescription medication– Prohibited from asking employees about illegal drug use

• Allowed to possibly ask (if there is an issue with public safety)– Whether he/she taking any prescription drugs or medications– Monitor the employee taking these medications

• Those who use medical marijuana may create a class of protected “registered” users

• Prohibits arrest/prosecution for authorized use, sale, possession• Will only protect individuals from prosecution and other adverse

action from state, not from consequences for violation of workplace policies

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Drug -Free Workplace Polices Drug Free Workplace Act

• Drug-free workplace policies promote safety and accountability• Act requires any entity that receives federal contracts with a value of

more than $100,000 or that receives any federal grant to maintain a drug-free workplace

• Employees who work for federal contractors may be subject to discipline or termination if they use marijuana while on the job or show up for work under the influence, regardless of whether marijuana is permitted by state law

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The Department of Transportationrequires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries

• Marijuana’s permitted use under state law for either medical or recreational purposes will not excuse an employee’s positive drug test result

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Drug -Free Workplace Policies

• Under federal and state laws and regulations, employers generally have a duty to provide a safe work place for all employees

• Would support an employer’s decision to terminate an employeewho poses a threat to the health and safety of other workers due toimpairment from the use ofmedical marijuana

• Just as would be the case for other drugs or alcohol

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Drug -Free Workplace Polices What Should a Drug Policy Contain

• The reason for the policy– Discover and correct drug/alcohol use in the workplace and deter

drug/alcohol use by others

• What it is designed to do• How it was developed• The employee behaviors that are expected• Exactly what substances and behaviors are prohibited• What legal drugs are allowed on the job • Substance abuse testing and the process • Precisely what will happen if an employee violates the policy• Procedures for determining if an employee has violated the

policy

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Drug -Free Workplace Polices

What Should a Drug Policy Contain (cont’d.)• How appeals will be handled• Efforts to help employees comply with the policy• How requests for help will be handled• How the policy interacts or is affected by Workers

Compensation • How employee confidentiality will be protected• How fairness and consistency will be maintained• The Employee Assistance Program, if applicable

*Federal contractors require specific language as required by the

Drug Free Workplace Act.

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Drug Free Safety Program Policies

• Administered by BWC• Premium discounts offered for implementing loss-prevention

strategy

The Program should have the following:• Written substance policy and operational procedures• Recordkeeping practices• Testing agreements• Employee assistance plan• Provide employee education• Provide supervisor training

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Best Practices • Continue to comply with federal regulations • Employers are still in control and free to decide what

their policies should look like and how they will address claims related to medical marijuana use –Be Consistent for all Illegal Drugs

• Ensure policy prohibits the use of marijuana in and outside the workplace (pre-employment and random testing)

• Articulate whether you wish to ban all employee drug use or merely impairment

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Best Practices

• Communicate the policy to all employees and clearly state expectations

• Train managers about confidentiality relating to sensitive employee information including drug-tests and requests for accommodations for medical conditions

• Know the laws of the state where employees work• Be mindful of the information the company receives

regarding one’s disability because an accommodation, other than one involving medical marijuana, may be required

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Janica Pierce Tucker

Taft Stettinius & Hollister LLP 65 E. State Street, Suite 1000

Columbus, Ohio 43215(614) 334-6182 / jpierce@taftlaw.com

Questions?