Rocky Mountain High
The Legalization of Recreational Marijuana
April 29, 2014
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Page 1
Welcome!
Housekeeping
 This is an interactive session. Please share your
insights!
 Please place your phone in silent mode.
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Panelists
Grant Butterfield, Esq.
•Staff Counsel at Pinnacol Assurance
•16 Years of providing workers' compensation legal
representation, education and support for Colorado
employers
•Juris Doctor – University of Denver College of Law
Scott Collins, CRM
•Director of Risk Management & Insurance at Digital
First Media
•16 Years Environmental Safety, Risk Management &
Loss Control Experience
• Past President, Officer & Director - Rocky Mountain
Chapter of RIMS
•Certified Risk Manager, Lean Six Sigma Yellow Belt
Paul Smith
• 9 Years, Senior Manager at EY
• 21 Years of experience working with Fortune 1000 clients
to review and improve their risk management departments'
coverages, processes, and controls
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What to Expect
With the passage of marijuana legalization, Colorado's
companies and workers' compensation insurers are grappling
with how to prepare for the potential new exposures.
Learning Objectives:
• Examine the exposures potentially brought on by
marijuana legalization.
•
Determine possible risk management program
adjustments to address new exposures.
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Audience poll:
Do you have a drug abuse policy?
Drug testing requirements (pre-employment, postaccident, upon suspicion, random)?
Are you required by federal or state laws to test?
Do you think your current program is a benefit to your
organization?
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Marijuana as a Controlled Substance
Marijuana is classified as a Schedule 1 Drug by the 1970 Controlled Substances Act.
Rescheduling marijuana to the less restrictive Schedule II or III Drug Types remains a
contentious issue.
Schedule I Drugs
(LSD, Heroin, Marijuana)
Schedule II Drugs
(Cocaine, Opium, Amphetamine)
Schedule III Drugs
(Anabolic Steroids, Marinol, Ketamine)
-
-
-
High potential for abuse
No currently accepted
medical use
-
High potential for abuse
Currently accepted medical use
in treatment or a currently
accepted medical use with
severe restrictions
Abuse may lead to severe
psychological or physical
dependence
-
Potential for abuse less than drugs
or substances in schedules I & II
Currently accepted medical use in
treatment
Abuse may lead to moderate or
low psychological or high physical
dependence
Source: www.fda.gov/regulatoryinformation/legislation/ucm148726.htm
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Marijuana: A Historical Perspective
VISULIZE ACTIVITIES WITH TIMELINES!
http://medicalmarijuana.procon.org/view.timeline.php?timelineID=000026#2010-present
THE OLD WORLD
Marijuana is a popular
medicine among multiple
civilizations, religions, and
cultures around the world
2900
BC
1450
BC
800 –
900 AD
THE 20th CENTURY
COLONIALISM AND
THE INDUSTRIAL AGE
Marijuana becomes a
controlled substance that
is a hotbed of debate
around medical benefits
and criminality of use
Marijuana becomes a
staple medical treatment
in Europe via returning
military and in North
America via English
colonists.
17th
19th
Century Century
1911
1930
1960s
1971
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1970s
–
1980s
1991
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Marijuana: A Historical Perspective (continued)
VISULIZE ACTIVITIES WITH TIMELINES!
Source: http://medicalmarijuana.procon.org/view.resource.php?resourceID=000091
1996
TURNING TIDE
RESISTANCE TO CHANGE
CONTINUED EVOLUTION
Despite contentious
debate, more states
legalize the medical
use of marijuana.
Law enforcement, federal
agencies, and the US
government grapple with
the presence of medical
marijuana even in
permitted jurisdictions.
Reception to marijuana and
synthetic derivatives
continues to vary on a caseby-case basis, while legal
products lead to economic
opportunities.
1998
1999
2002
2006
2009
2011
2012
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2013
2014
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Marijuana Legalization in the U.S.
ME
WA
VT
NH
ND
MN
MT
OR
ID
NY
WI
SD
MI
PA
WY
IA
NE
IN
UT
NV
CO
OH
KS
MO
IL
NJ
MD
RI
CT
W
V VA
NC
OK
AZ
SC
AR
MS
NM
AK
TX
DE
DC
KY
TN
CA
MA
AL
Legend
Legalized Recreational
Use
GA
LA
FL
Legalized for Medical
Use Only
Pending Marijuana
Legalization Legislation
HI
Criminalized with no
current plans to legalize
Source: ©http://medicalmarijuana.procon.org/view.resource.php?resourceID=000091
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Will this trend go away?
2014 - Most Popular Spring
Break Destinations
(via Priceline.com):
#1
#2
LAS VEGAS
NEW ORLEANS
#3
DENVER
#4
#5
#6
#7
#8
NEW YORK
SAN DIEGO
CHICAGO
PANAMA CITY BEACH
ORLANDO
Colorado:
$2M in Revenue on $20M of sales so
far, $40M of revenue earmarked,
$67M expected, legislature debating
how spend the tax revenue.
Other states and countries are noticing:
There are legalization bills and ballot
measures currently being discussed in
19 states (plus the District of
Columbia)
Recent CNN survey:
55% of U.S. adults believe that
marijuana should be legalized
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Colorado Marijuana Sales – A Revenue Boon and a Social
Responsibility
Governor George Hickenlooper estimates that FY2014-2015 marijuana revenues could
reach $1B. $600M of that revenue is expected to be from recreational sales.
A voter-approved 12.9% sales
tax on recreational marijuana,
in addition to existing monies,
will help fund the Governor’s
FY 2014 – 2015 budget for
social programs, public health
and safety, and other priorities.
Sources: www.denverpost.com/news/ci_25185649/hickenlooper-expects-marijuana-tax-money-exceed-prior-expectations
And www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251943287907&ssbinary=true
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Marijuana & the Workplace
A Legal Perspective
Grant Butterfield
Staff Counsel – Pinnacol Assurance
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Amendment 20
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Amendment 20
Colorado voters approved Amendment 20 in November, 2000
authorizing patients with certain debilitating medical
conditions to receive a registry identification card to obtain
and use marijuana.
• Cancer, AIDS, MS, glaucoma, severe and chronic pain
It did not make marijuana legal, but decriminalized state
possession, use, distribution and cultivation laws for card
carrying members on the state registry.
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Amendment 20
What does it mean for Colorado employers?
“Nothing in this section shall require any employer to
accommodate the medical use of marijuana in any
work place.”
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Amendment 20
Employers may prohibit use or impairment from
marijuana at work and enforce drug policies
• No need to accommodate ‘special’ smoke breaks
• No need to accommodate MMJ on modified duty
• MMJ registration card does not protect job
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Amendment 20
A zero tolerance drug policy still effective if clearly
communicated and equally enforced:
• Need to expressly prohibit marijuana and being under influence or having
detectable amounts of any non-prescribed controlled substances in
system while at work.
• Sosa v Swift Beef Co., ICAO (July 27, 2010) decision confirmed employers’
right to enforce zero tolerance policy and termination where employee
tests positive for marijuana in work place.
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Amendment 20
Unlawful Prohibition on legal off duty activities as
condition of employment (CRS 24-34-402.5) does not
protect medical marijuana user because use of
marijuana is not a lawful activity.
• Not a defense that it is permissible under state law in this
context
• Coats v Dish Network, Colorado Ct. of Appeals (2013)
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Amendment 20
Amendment 20 does not address workers’
compensation
• WC insurers and self insured employers should not pay for
medical marijuana because Amendment 20 does not provide
authority to do so
• Patient’s right to use and doctor’s right to recommend does
not confer any protection to an insurer to lawfully pay for
marijuana
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Amendment 20
Workers’ compensation 50% indemnity benefit
reduction for safety rule violation applies under
Amendment 20
• Presence of marijuana in system at time of injury still subject
to 50% indemnity reduction for safety rule violation per
C.R.S. 8-42-112
• Safety rule must be communicated, equally enforced and
was knowingly and intentionally violated by the employee
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Amendment 20
Workers’ compensation 50% indemnity benefit
reduction for non-prescribed controlled substances
still applies under Amendment 20
• Presence of marijuana in system at time of injury still subject
to indemnity reduction for controlled substances per CRS 842-112.5 because marijuana cannot be prescribed under
federal or state law.
• Injured worker still has right to overcome the presumption if
s/he can show the injury not a result of the presence of the
controlled substance
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Amendment 64
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Amendment 64
Allows recreational use of marijuana in Colorado for
persons 21 and older
Driving under influence of marijuana remains illegal
Allows retail sales of marijuana by licensed businesses
in 2014
Does not change existing law regarding medical
marijuana
No public or open consumption allowed
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Amendment 64
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Amendment 64
“Nothing in this section is intended to require
an employer to permit or accommodate the
use, consumption, possession, transfer, display,
transportation, sale or growing of marijuana in
the workplace or to affect the ability of
employers to have policies restricting the use
of marijuana by employees.”
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Amendment 64
Employers retain right to maintain a safe and drug free
work environment and to maintain zero tolerance
drug policies
Employers free to have no drug policy, progressive
discipline policy or zero tolerance policy in regard to
marijuana depending on the safety sensitivity of jobs
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Amendment 64
Workers’ compensation insurers retain the same
rights to reduce benefits for the presence of
marijuana in a person’s system at time of
injury and for violation of employer’s safety
rules
Termination for cause for drug policy violation
will result in termination of temporary
indemnity benefits
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Amendments 20 and 64
Final reminders:
• Individual’s constitutional right to use
marijuana does not trump or supersede an
employer’s constitutional right to maintain a
drug free work environment.
• Employer’s drug policy should expressly
identify marijuana as an illegal drug
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Marijuana & the Workplace
A Risk Manager’s Perspective
Scott D. Collins, CRM
Director of Risk Management –
DigitalFirst Media
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Today’s Presentation
Is:
• My own opinion
• Possibly misguided, silly, short-sighted, contagious,
dangerous, unsound or just plain wrong
• Intended to provoke intelligent discussion
• Interactive – participation STRONGLY encouraged
Is Not:
• The viewpoint of my employer, RIMS, any other person
or entity other than myself
• Legal Advice . . . I am not a lawyer or other legal
professional – use at your own risk.
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Some reactions to legalization:
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Raabe, Steve. “Colorado employers increase testing for drug use, survey shows.” The Denver Post. 14 Mar. 2014.
Web. 16 Mar. 2014
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Some reactions:
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Raabe, Steve. “Colorado employers increase testing for drug use, survey shows.” The Denver Post. 14 Mar. 2014.
Web. 16 Mar. 2014
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Some reactions:
“National Council on Compensation Insurance
named medical marijuana one of the top
issues for workers compensation in 2014. . .”
“. . . insurers are already seeing an increase in
workers comp claims related to medical
marijuana. To date, however, there have been
no known approvals of those claims. ”
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1. Widmer, Lori. “Marijuana: The Implications of Legalization”. Risk Management Magazine. 1 Apr. 2014. RIMS Inc.
Web. 3 Apr. 2014.
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A Risk Manager’s View:
1. Despite the hype, the legal landscape for employers is
basically unchanged
2. Your main concerns regarding drug abuse in the
workplace should remain focused on the cost-drivers:
i.
ii.
iii.
Alcohol
Prescription drug abuse (esp. opioids for long term pain
management)
Smoking
3. Your policy can remain unchanged (but should it?)
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A Risk Manager’s View:
Do nothing
Or
Manage Risk
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A Risk Manager’s View:
Evaluate your particular business – every policy
should be crafted to support the organization
mission and objectives. There is no one-size-fitsall solution.
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A Risk Manager’s View:
Considerations:
Safety-sensitive positions?
2) Federal grants or contracts >$100,000?
3) DOT, NRC, DoD, regulations, state laws
4) Reputational, jurisdictional risk, workplace
culture, consistency and enforcement issues
5) Cost / benefit analysis
1)
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A Risk Manager’s View:
Some additional thoughts:
1. A drug abuse policy and resources for affected employees
remains a good idea
2. Be careful – your policy becomes your law!
3. Drug testing can incur liabilities:
i.
ii.
iii.
iv.
Pre employment
Post accident
Upon suspicion
Random
4. Consider leaving your policy broad and providing training
and management guidelines
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A Risk Manager’s View:
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Questions, Final Comments and
Contact Information
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