By: Gregory B. Cairns, Esq.
CAIRNS & ASSOCIATES, P.C.
3900 E. Mexico Ave., Suite 300
Denver, CO 80210
Gregory B. Cairns, Esq.
Cairns & Associates, P.C.
3900 E. Mexico Ave., Suite 300
Denver, CO 80210
(303) 481-63458- main line
(303) 248-6548- cell
(866) 277-0355 - fax
gcairns@cairnslegal.com - email
Biography:
Mr. Cairns’ practice focuses on workers’ compensation defense and related employment law. Mr.
Cairns attended the University of Wisconsin at Madison where he received a Bachelor of Arts degree
with honors in Psychology in 1975. He also attended the University of Wisconsin at Milwaukee where
he pursued a Master's in industrial psychology. Following graduate school, he obtained his law degree
from the University of Texas at Austin in 1982. Mr. Cairns has been licensed to practice law in the State
of Colorado since 1982.
Mr. Cairns has 32 years of experience as a defense attorney in matters relating to workers'
compensation and employment law. He has published several articles in The Colorado Lawyer
concerning employment issues and pre-judgment interest, and has been a frequent speaker
concerning workers' compensation, pre-employment testing, the American with Disabilities Act of
1990, and the Family and Medical Leave Act of 1993. In addition, he is the founder and principal
instructor for The Center for Workers' Compensation Training, a private occupational school.
Mr. Cairns, who hails from Wisconsin, is currently president of Cairns & Associates, P.C. in Denver,
Colorado. In 2003, he was named one of the “Outstanding Lawyers in America.”
Uh-oh- Have we created a
ZOMBIELAND?
1.
2.
3.
4.
5.
Twenty-three (23) States and the District of Columbia have explicitly
legalized Medical Marijuana (MM). Multiple States have symbolic laws
on the book with no practical utility. 15 States have never had a positive
MM law.
MM is classified by the Food & Drug Administration ( FDA) as a Schedule
I controlled substance, which means it is illegal and considered to have a
high potential for abuse without any medicinal value.
Several states disagree with the federal government about medical
efficacy: Specific illnesses covered include cancer, glaucoma,
pain/chronic illness and HIV/AIDS.
There have been 3 key federal cases regarding MM: Raich v. Ashcroft
(federal government can arrest and prosecute patients in states where
usage is legal); U.S. v. Oakland Cannibis Buyers’ Cooperative (OCBC)
(medical necessity defense cannot be used to avoid federal prosecution);
and Conant v. Walters (9th Circuit held doctors cannot be prosecuted for
recommending usage).
On 2/25/09, the US Attorney General announced that the Drug Enforcement
Agency (DEA) would no longer raid dispensaries authorized by state law; on
10/19/09, the US Deputy Attorney released a memo authorizing the use of MM so
long as it complies with state law. Starting in 2011, however, the DEA cracked
down on dispensaries within 1000 feet of any school or other prohibited area.
6.
7.
8.
9.
10.
About 99% of arrests for possession of MM are at state level.
State laws generally do not regulate MM’s quality or potency, and
many do not address ways to obtain the drug. Twelve (12) states
and the District of Columbia regulate dispensaries in some way;
most states allow home cultivation. Some designate the National
Institute of Drug Abuse (NIDA) or some state agency as primary
source.
Most states limit the amount of MM that patients or caretakers can
possess or cultivate.
States vary whether they require registry and identification cards:
19 states and the District of Columbia have a registry. In states
where users are issued an ID, patients are protected from arrest
and prosecution; in some states users can be arrested but have
an affirmative defense.
A 2014 Gallup poll found 52% of Americans believe that you
should be able to buy and sell pot legally (down from 58% on
2013); 57% of Americans live in states where MM is legal.
1.
2.
3.
4.
5.
Amendment 20, passed by small majority in 11/00 and now
codified as Article 18, Section 14 of the Colorado State
Constitution, makes it lawful for Colorado residents to use medical
marijuana IF THEY FOLLOW THE RULES.
One of the rules is that a patient must have a recommendation (or
advisement) from a physician licensed in the State of Colorado
that the patient “might benefit from the medical use of marijuana
in connection with a debilitating medical condition.”
Another rule is that, absent special needs, it is lawful to possess
no more than two ounces of a usable form of marijuana and no
more than 6 marijuana plants, with no more than 3 which are
flowering (mature).
Medical marijuana can be smoked, inhaled, ingested through food
or tincture, absorbed through the skin, taken in pill form or drunk.
There are very few double blind, peer-reviewed studies about the
efficacy of medical marijuana; anecdotal evidence suggests that it
is helpful for those who suffer from nausea, sleeplessness, pain
and lack of appetite.
6.
7.
8.
9.
10.
It is still a federal crime to possess, use, sell, store, and grow
marijuana; however, the federal Justice Department has instructed
federal officers to refrain from prosecution of users of MM in the
states where usage is allowed by state.
It is estimated that there are between 200,000 to 300,000 Colorado
residents who possess recommendations from physicians for use of
medical marijuana; not all of them have been registered with the
State (which affords even greater protection from prosecution than
possessing just a recommendation from a doctor). Since June 2001,
292,387 residents have applied to the registry; 114,097 are now
registered ( as of 3/31/15)- about 2 out of every 100 Coloradans.
The average age of registered MM users is 42; 467 are minors (<18)
There are 501 dispensaries operating in Colorado,158 medical
infused product manufacturers,and 739 medical cultivators.
The 2010- 2015 legislatures have produced legislation regulating
dispensaries and the physician/patient relationship, but issues
pertaining to employment, workers’ compensation, child welfare,
criminal prosecution, waste disposal, parolees/probationers etc. will
need future legislation or judicial determinations.
1. Colorado voters passed a constitutional amendment (Proposition
64) in 11/12 which allowed retail sales of marijuana beginning
1/1/2014- first such law in the nation.
2. You must be 21 or over to purchase pot.
3. You do not have to be a state resident.
4. You may possess up to 1 oz. of pot and up to 6 plants.
5. You can get <15 days in jail/$100 fine for open and public display
or use.
6. Dispensaries are highly regulated.
7. BIG PROBLEM: Dispensaries cannot get federally insured
banks/CUs. A lot of business is conducted in cash, using safety deposit
boxes, private safes, etc. Holding companies are not the solution (i.e.,
seen as laundering).The federal government is not helping solve this.
8. Dispensaries are taxed by State (sales tax-10%;excise tax-15%),
and municipalities creating revenue. ( over $38 Million in 20141/2015).
9. Dispensaries and workers are licensed by State, creating revenue.
($3,184,780 in 2014-1/2015).
10. Ten (10) Denver metro-area cities have approved retail sales; 16
have not as of 1/2015.
11. There are 306 retail stores; 92 infused product manufacturers.
12. As of 11/30/2014, there are 15,248 state occupational licenses
(required of all workers).
13. Total marijuana (retail and medical) taxes, licenses and fees :
$52,570,081 (1/2014 through 1/2015, CO Department of Revenue).
HOW DO WE SURVIVE IN
ZOMBIELAND?
Can Municipalities Manage
Risk By Zoning?
In Colorado, yes!
In Arizona,
California ,
Washington state
& Elsewhere,
Maybe
☺ Ban production, storage, sale,
manufacturing, etc.
☺ Careful zoning
Can Municipalities Manage
Risk by Licensing?
In Colorado
and New
Mexico, Yes!
Elsewhere,
Maybe
☺ In Colorado, local governments
can require licensing with them
before application with the
State. As of 10/14, 20 of 64
counties and 45 municipalities
allow recreational sales and
manufacturing.
☺ In Colorado, local governments
can impose restrictions greater
than the State’s.
☺ Licensing is a source of funds.
Can Municipalities Tax
Medical Marijuana?
In Colorado,
Washington
state , and
california,
Yes!
Elsewhere,
Maybe
☺ Many states are planning to tax.
☺ In Colorado, both the State and
local governments can tax MM.
☺ If all marijuana were legalized
and taxed nationwide, at least
one expert projects 20.1 billion
dollars boost to government
budgets (6.4 billion in tax
revenue, remainder in reduced
enforcement costs) (Miron,
2010)
Are There Special
Enforcement Issues for Law
Enforcement Regarding
Medical Marijuana?
Not Really
☺ Public usage is usually banned
by state law.
☺ For DUID, police should focus
on impairment, not possession.
☺ DUID standards vary in the
states; in Colorado 5
nanograms per blood liter is
presumed impaired but can be
rebutted with competent
evidence.
☺ Apply same rules regarding
confiscation of any contraband:
If you break it, you own it.
☺ Is it worth the lawsuit to keep
the product and paraphernalia?
Does a private health
insurance carrier, governmental entity, or any private
entity providing health
insurance have to
reimburse a user of medical
marijuana?
In Colorado,
NO!
☺ There is no federal or state law
that requires a governmental,
private or any other entity
providing health insurance to
pay for it.
☺ Amendment 20 relieves a
governmental, private or any
other entity providing health
insurance of the liability for any
claim for reimbursement for the
use of medical marijuana.
☺ Further, its usage is still a
violation of federal law, and
insurance regulations may
prohibit payment for illegal
treatment.
Does a private health
insurance carrier, governmental entity, or any private
entity providing health
insurance have to
reimburse a user of medical
marijuana?
Across the USA,
Probably NO!
☺ There is no federal or state law
that requires a governmental,
private or any other entity
providing health insurance to
pay for it.
☺ Medicare and Medicaid will not
pay for it, so why would a
private or other public plan?
☺ Further, its usage is still a
violation of federal law, and
insurance regulations may
prohibit payment for illegal
treatment.
Does a workers’ compensation carrier or self-insured
employer have to pay for medical marijuana?
In Colorado, Probably No.
☺
☺
☺
☺
☺
☺
Amendment 20 probably relieves insurance carrier and self-insured employers
from payment, although it does not specifically refer to workers’ compensation
insurers and it refers to “reimbursement” rather than direct pay.
If Amendment 20 does not specifically protect insurance carriers and selfinsureds from liability, there is an equal protection argument that it does.
It is still a federal crime to use it and no carrier can provide illegal treatment.
The DOWC has no fee schedule, rule of procedure or other pronouncement
regarding it except for a short treatment guideline summary of research.
(However, at least one arbitrator has ordered MM in several cases to allow
respondents to submit an order to Medicare authorities and thereby avoid
liability for narcotics).
The FDA has not approved it.
There is no federal or state case law requiring a carrier or self-insured carrier
to provide it to a workers’ compensation claimant.
Does a workers’ compensation carrier or self-insured
employer have to pay for medical marijuana?
Across the USA, Probably No.
☺
☺
☺
☺
☺
☺
No state statute addresses the issue, but none requires payment of MM
either.
It will be up to the state courts and legislatures to address the issue.
An administrative judge in Iowa has ordered payment for MM, but that case
may be under appeal. A judge in New Mexico also ordered MM in a workers’
compensation case.
It is still a federal crime to use it and no carrier can provide illegal treatment.
The FDA has not approved it.
There is no federal or state case law requiring a carrier or self-insured carrier
to provide it to a workers’ compensation claimant. However, a carrier MAY
want to consider paying for MM if it can avoid a massive liability for lifetime
narcotics.
Can workers’ compensation
penalties be applied to
users of marijuana who are
injured?
It Depends on the State,
but probably Yes!
☺Avoidance of Claim
☺Safety Rule Violation
☺Intoxication Penalty
☺Responsible for
separation from
employment reduction of
benefits
If an employee is injured in Colorado while under the
influence of marijuana, can the employer/carrier take a 50%
penalty for a safety rule violation?
It depends on the following:
1.
2.
3.
4.
5.
6.
Does the employer have a safety rule which prohibits use of
controlled substances prohibited by federal or state law?
Was the rule communicated to the employee?
Can the employer show that the employee knew there were
consequences for a violation of the rule?
Does the employer uniformly enforce the rule?
Can the employer/carrier demonstrate a causal connection between
violation of the rule and the claimant’s accident?
Can the employer/carrier demonstrate that the employee’s usage
was “willful”?
Can a Colorado
employer/carrier take a
50% penalty for a
violation of the
intoxication statute?
It depends on the
following:
1. Did the test provider retain
duplicate samples of the
claimant’s drug test?
2. Can the employer/carrier
convince the administrative
law judge that marijuana is
a “non-prescribed
controlled substance?”
3. Will the claimant be able to
rebut the presumption that
there is a causal
connection between the
presence of cannabinoids
in his/her system and the
accident?
Can a Colorado
employer/carrier avoid
paying temporary disability
benefits if the claimant is
terminated for cause
because of the presence of
marijuana in his/her system?
YES, if the employer/carrier
can prove the following:
1. The employer publishes a rule which
mandates termination for usage of
controlled substances forbidden by
federal or state law.
2. The employer/carrier can prove that
the employee knew the rules and
consequences of breaking them.
3. The employer/carrier can convince
the ALJ that the usage of medical
marijuana was “willful” in the sense
of a “volitional act.”
4. The employer uniformly enforces the
rule.
5. The use of marijuana was NOT the
cause of the accident (per Colorado
Springs Disposal)(which means that
the employer/carrier would not get
the intoxication penalty).
Does an employer have to accommodate the use of medical
marijuana in the workplace?
Probably NO!
1. “Accommodation” for MM usage may include longer breaks; ignoring
positive findings on drug screens; or special storage; smoking or
napping areas.
2. Many state statutes specifically state that no employer need
accommodate the use of medical marijuana in the workplace.
3. The ADA (as amended) does not require reasonable accommodation
for current users of illegal drugs.
4. CAUTION: The ADA may require interactive discussion of
accommodation for the medical condition for which the employee
takes MM.
Does a Colorado employer have to accommodate the use of
medical marijuana in the workplace?
NO!
1. Amendment 20 specifically states that no employer need
accommodate the use of medical marijuana in the workplace.
2. The ADA (as amended) does not require reasonable accommodation
for current users of illegal drugs.
3. The Colorado Anti-Discrimination Act follows the ADA in this regard.
4. The Colorado statute which prohibits termination of an employee for
lawful off premises behavior, if it even applies, does not prohibit an
employer from taking negative employment actions other than
termination.
5. CAUTION: The ADA may require interactive discussion of accommodation for
the medical condition for which the employee takes MM.
Is there any federal or state
law which protects the job of
an employee who tests
positive for medical
marijuana pursuant to a
lawful drug screen at work
or after injury?
Usually, no.
1. None of the following federal statutes
can be construed to protect a current
user of a controlled substance
prohibited by federal law: ADA,
FMLA, Title VII, Older Workers’
Protection Act/ADEA, HIPAA, OSHA,
ERISA, etc.
2. Further, certain federal laws mandate
that some employers cannot retain
current users of controlled
substances prohibited by federal law:
all federal contractors, employers
regulated by the Department of
Transportation regulations, etc.
3. CAUTION: The ADA may require
interactive discussion of
accommodation for the medical
condition for which the employee
takes marijuana.
Is there any federal or state
law which protects the job of
an employee who tests
positive for medical
marijuana pursuant to a
lawful drug screen at work
or after injury?
Sometimes, yes.
1. Most states are silent about whether
non-impaired users of MM can be
terminated without cause of action.
2. Courts or statutes in Washington,
California, Oregon and Montana have
ruled that MM users’ jobs are not
protected. Laws in Arizona,
Delaware and Minnesota prohibit
employers from firing employees with
positive drug screens IF they have a
valid registration card.
3. Remember that certain federal laws
mandate that some employers cannot
retain current users of controlled
substances prohibited by federal law:
all federal contractors, employers
regulated by the Department of
Transportation regulations, etc.
Does Colorado’s statute
which protects an
employee’s job if he/she
engages in lawful activities
outside of work protect the
job of a medical marijuana
user?
NO!
The Colorado Court of Appeals
recently held that Section 24-34402.5, C.R.S. (“The Philip Morris
Law”), which protects the jobs
of employees engaged in lawful
activities outside of work which
do not pose a conflict of interest
for the employer, DOES NOT
protect users of MM. Coats v.
Dish Network, LLC, 2013 COA
62 . The Colorado Supreme
Court is expected to rule the
same way.
IT IS STILL A FEDERAL CRIME TO
POSSESS AND USE MARIJUANA!
Can an employer avoid paying unemployment compensation
benefits if the claimant is terminated for cause because of
the presence of medical marijuana in his/her system?
Maybe. It depends on the applicable state statute.
1. Consult with your attorney or human resources specialist about whether your
state’s unemployment compensation statute allows disqualification or reduction
of benefits for usage of medical marijuana.
2. In some states, the mere trace of THC in a worker’s system is enough to
preclude payment of benefits.
Can a Colorado employer avoid paying unemployment
compensation benefits if the claimant is terminated for cause
because of the presence of medical marijuana in his/her
system?
YES, if the employer can prove the following:
1. The employer publishes a rule which mandates termination for usage of
controlled substances forbidden by federal or state law.
2. The employer can prove that the employee knew the rules and consequences
of breaking them.
3. The employer uniformly enforces the rule.
4. The employer can convince the referee that the applicant has: engaged in onthe-job use of not medically prescribed controlled substances; engaged in offthe-job usage of not medically prescribed controlled substances resulting in
interference with job performance; demonstrated the presence, during working
hours, of not medically prescribed controlled substances; or violated a statute
or company rule which resulted in serious damage to employer
property/interest. See Beinor v. ICAO, 262 P.3d 970 (Colo. App. 2011).
5. A recent Court of Appeals case allowed benefits where no proof of certified lab.
What should be the role of doctors with respect to reporting
positive drug screens and prescribing narcotics to marijuana
users?
It depends on why the drug screen is administered :
1. If during a non-DOT pre-employment physical, the doctor should
report all results requested by the potential employer; DOT regs
require disclosure of all results and the applicant should not be hired.
2. If during a random or “for cause” screen, doctors should report all
results requested by the employer; employer should act per policy.
3.
If during workers’ compensation treatment, the doctor should report
all positive results requested by the employer AND consider no
prescription for narcotics if marijuana usage continues. A simple
clause in a narcotics contract regarding possible disclosure to
carriers and employer can solve all HIPAA concerns; if the claimant
will not sign the contract, he/she does not get narcotics.
Can a self-insured employer design drug policies which are
more liberal than “zero tolerance”?
YES, of course, but be prepared for a tougher row to hoe.
1.
2.
3.
4.
5.
6.
You may have to offer rehabilitation options
You may be accused of inconsistent enforcement.
Be tough on repeat offenders or you may have problems.
Be sure to offer drug education.
Make sure that your work force is properly trained to the rules.
Consider random and post-accident (injury or damage) testing to help you
enforce your rules.
It is recommended that employers implement the
following ten-point plan to ensure that they control the
usage of medical marijuana in the work place:
1. Publish clearly worded policies prohibiting the usage of
controlled substances prohibited by federal or state
law.
2. Test employees to demonstrate that they understand
the rules.
3. Consistently enforce the rules.
4. Consider drug testing for “reasonable suspicion”.
5. Consider drug testing after work-related injury or
property damage.
6. In Colorado, make sure your laboratory keeps a
duplicate sample and make sure the intoxication
defense is litigated within one year.
7. In Colorado, consider carefully whether you would
rather have the intoxication penalty or avoidance of
temporary benefits due to responsible for separation
from employment.
8. Make sure, in appropriate cases, to send your samples
to a medical review officer (MRO) for review.
9. Do not be intimidated by those who insist that medical
marijuana users have the right to use the substance
both off premises and on premises at work.
10. Do not rely on the media for the facts about MM; they
specialize in half-truths and sensationalism rather than
factual or legal accuracy.
Know the facts ….
and follow the rules!