Medical Marijuana: 5 Steps to
Successfully Walking the
Workplace Tightrope
Tommy Eden, Partner
Constangy, Brooks & Smith, LLP
SAPAA Board Member
Josephine Elizabeth Kenney, JD, MBA -HR
Senior Compliance Counsel
First Advantage
SAPAA Board Member
Medical Marijuana: 5 Steps to
Successfully Walking the Workplace
Tightrope
Legal Disclaimer
This presentation is for educational
purposes only and is not intended as a
substitute for the legal advice of an attorney
knowledgeable of the issues covered as they
relate to a user’s individual circumstances or
a medical practitioner. The presenter makes
no assurances regarding the accuracy or
completeness of the following information.
Legislative, regulatory, case law and medical
developments regularly impact on general
research and medical information.
Visionaries?
When Cheech and Chong Go to Work:
5 Steps to Dealing with Marijuana in the
Workplace
Constangy, Brooks & Smith, LLP
Legal Disclaimer
This presentation is for educational
purposes only and is not intended as
a substitute for the legal advice of an
attorney knowledgeable of the
issues covered as they relate to a
user’s individual circumstances or a
medical practitioner. The presenter
makes no assurances regarding the
accuracy or completeness of the
following information. Legislative,
regulatory, case law and medical
developments regularly impact on
general research and medical
information.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
5
The first Cheech and Chong
movie, “Up in Smoke”
Released September 1978
followed by 11 other
movies from 1980 to 1990
First States to legalize marijuana
for medicinal purposes:
•California: 1996
•Alaska: 1998
•Oregon: 1998
•Washington: 1998
•today 20 states and DC
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The State Business of Pot
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As Marijuana Goes Legit, Investors Rush In
“Pot entrepreneurs have high
expectations for a future
market in legalized
marijuana.”
http://www.usatoday.com/story/money/business/2013/04
/07/medical-marijuana-industry-growing-billion-dollarbusiness/2018759/
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Investors: Marijuana, Inc.
• Hemp, Inc. is a publicly traded company (Stock Symbol HEMP) that is
working to expand its infrastructure while investing in profitable, legal,
and diversified ventures, bringing reward and value to its shareholders
• Marijuana, Inc., a division of Hemp, Inc., is working toward a green future
with HEMP and is working to expand it’s infrastructure in preparation for
possible legalization of marijuana and hemp.
• Marijuana, Inc. foresees and recognizes the possible benefits that may be
derived from the many uses for industrial hemp and recognizing the
profits that could be made
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Marijuana Candy Bust Prompts Drug Education
•Cheeba Chews, chocolate taffy
infused with the active substance in
marijuana, that were found on a
Kansas State student on spring
break in Gulf Shores on March 23,
2013, has raised concerns with
drug education advocates.
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The War on Marijuana: Is It Going, Going, Gone?
August 29, 2013
U. S. Department of Justice
MEMORANDUM FOR ALL
UNITED STATES ATTORNEYS:
Guidance Regarding Marijuana
Enforcement
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5 Steps an Employer can take
to Successfully Walk the
Tightrope
1. Understand the laws on Medical Marijuana
that are specific to their State;
2. Adopt a pre-duty prescription medication and
impairing effects substances safety policy;
3. Update employee job descriptions;
4. Adopt an ADA complaint handbook policy on
reasonable accommodations; and
5. Let employees know your stance on Medical
and Recreational Marijuana use.
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13
What does falling off “the Tightrope” look
like?
1.Impaired forklift operator misgauges
distance and injuries fellow employee
with forks;
2.You open the mail and employee (who
was about to be fired) files discrimination
complaint under state Medical Marijuana
law;
3.Impaired painter using propane torch
to remove paint forgets to turn off flame
and burns down your factory;
4.You are notified by a state EEOC agency
that you have been served with an ADA
Charge for failure to reasonably
accommodate; or
5.Worker with Medical Marijuana permit
feels empowered and smokes during
lunch break to “ease the pain,” etc.
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15
State Medical Marijuana Statutory
Considerations:
1.Who the law applies to
2.Quantity of Marijuana Permitted
3.How the Marijuana may be obtained/access –
Medical Marijuana Dispensaries/variations
4.The liability protections
5.The statutory requirements for authorized use
and the illnesses/medical conditions covered by
each statute as applicable
NOTE: Each state law varies significantly and a
short summary and the full text of each state
law can be found at:
http://www.sapaa.com/page/wp_statelaws_glance
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16
Alaska
Sections 17.37.010-.080 (2002)
Applicability:
Law applies to patient, caregiver
and alternate caregiver and
physician
Quantity Allowed:
Less than or equal to 1oz. Usable, 6
plants with only 3 able to produce
usable product.
How Obtained:
Growing permitted, otherwise not
specified
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Alaska (cont.)
Liability Protections:
Patient and caregiver have defense if criminally
prosecuted if registered and in compliance with the law
Statutory Requirements for Authorized Use:
Registry Card required and obtained from State
Department of Health and Human Services. Statement
signed by physician, sworn application from patient,
statement form parent or guardian and annual renewal.
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Arizona
An initiative measure amending Title
36, Arizona Revised Statutes. By
adding Chapter 28.1; Amending
Section 42-201, Arizona Revised
Statutes.
Signed by the Governor.
Implementation period will end April
13, 2011. Rulemaking has been an
ongoing process. Regular program
updates are provided on Arizona’s
Website:
http://www.azdhs.gov/medicalmarij
uana/
Retrieved October 25, 2012.
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Arizona (cont.)
Applicability:
Physicians and qualifying patients, visiting qualifying patients and
designated caregivers
Quantity Allowed:
Two and one half ounces of usable marijuana
How Obtained:
Through dispensaries which will be taxed and started to open in July
2012.
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Arizona (cont.)
Liability Protections:
Numerous protections including a discrimination prohibition
with limited exceptions. Protects patients with debilitating
conditions, their physicians and providers, from arrest and
prosecution, criminal and other penalties and property
forfeiture if such patients engage in the medical use of
Marijuana.
Statutory Requirements for Authorized Use:
Registry Card required identifying person as a qualifying
patient, registered caregiver or a registered non-profit
Medical Marijuana dispensary agent.
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California
Cal. Health and Safety Code Sections 11362.583
Applicability:
Law applies to physicians, patients and
caregivers
Quantity Allowed:
8oz. or less dried; or 6 or less mature; or 12 or
less immature plants
How Obtained:
Growing permitted – otherwise not specified
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California (cont.)
Liability Protections:
Physicians: protected from criminal prosecution when
recommending Marijuana for medical use
Patients and Caregivers: protected from arrest for
possession, transportation, delivery or cultivation if
patient or caregiver has a valid I.D. (NOTE: I.D. card is
voluntary).
Statutory Requirements for Authorized Use:
No Registry Card required. I.D. Cards issued by State
Department of Health. I.D. Cards are voluntary and must
be renewed annually. New information must be verified
by County Health Department Efforts to improve
California Medical Marijuana laws thwarted in 2011.
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Colorado
Colo. Const. Art. XVIII Section 14
Applicability:
Law applies to physicians, patients and
caregivers
Quantity Allowed:
Less than or equal to 2oz or 6 plants with only
3 able to produce usable product. Patient may
raise an affirmative defense if greater amount
is needed for debilitating condition.
How Obtained:
Growing is permitted but details not specified.
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Colorado (cont.)
Liability Protections:
Physicians: protected from criminal prosecution when
recommending Marijuana for medical use
Patients and Caregivers: have an affirmative defense if physician
diagnosed and advised use of Medical Marijuana permitted
quantity and if registered with I.D. Card.
Statutory Requirements for Authorized Use:
Registry Card required. Must be Colorado resident and
registered with Colorado Department of Public Health and
Environment. Current Colorado physician diagnosis required (2
physicians diagnosis required for minors). Annual renewal with
written documentation provided.
Update:
Medical Marijuana Dispensaries Near Schools
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Connecticut
HB 5389 (Effective October 1, 2012)
Regulations to be published.
Applicability:
Law applies to patient, guardian of patient, caregiver,
dispensary producer and physician
Quantity Allowed:
Amount reasonable necessary to ensure the
uninterrupted availability for a period of one month,
as determined by the Department of Consumer
Protection. Specific amounts to be provided no later
than 1/1/2013 by Department of Consumer
Protection.
How Obtained:
Through Dispensaries and producers.
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Connecticut (cont.)
Liability Protections:
Qualifying patient, guardian and caregiver protected from arrest
for possession, transportation, delivery or cultivation of Medical
Marijuana if foregoing has a valid registration certificate from
the Department of Consumer Protection – Validation is not to
exceed one year.
Law includes a restrictive and detailed provision that states that
no employer may refuse to hire a person or may discharge,
penalize or threaten an employee solely on the basis of such
person’s or employees status as a qualifying patient or caregiver.
Some exceptions may apply.
Statutory Requirements for Authorized Use:
Valid registration certificate from the Department of Consumer
Protection required for physician, patient, dispensary and
producers.
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Delaware
Title 16 Chapter 49A Delaware Code (2011)
Applicability:
Law applies to physician, patient and caregiver 21
years or older.
Quantity Allowed:
Patients 18 years or older may possess 6oz. of
Marijuana
How Obtained:
Growing not permitted at home. State Regulated
Non-Profit Distribution System by Compassion
Centers
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Delaware (cont.)
Liability Protections:
Physicians: protected when recommending Marijuana for
medical use.
Patient: no arrest for possession of Medical Marijuana if they
have a valid I.D. card.
Caregivers, visiting patients under certain conditions and
compassion centers and their employees protected.
Discrimination prohibited by school, landlord or employer, with
limited exceptions.
Statutory Requirements for Authorized Use:
Identification card required, copy of physician state required.
Identification cards issued by State Department of Human
Services.
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Hawaii
Stat. Ann. Sections 329-121-128 (2004)
Applicability:
Law applies to physicians, patients and
caregivers
Quantity Allowed:
Less than or equal to 3 mature or 4 immature
plants with yield of 1oz if usable.
How Obtained:
Growing is permitted but details not
specified.
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Hawaii (cont.)
Liability Protections:
Physicians: protected from criminal prosecution when
recommending Marijuana for medical use in writing
Patients and Caregivers: have an affirmative defense if
physician advised use of Medical Marijuana, explained the
risks/benefits of use, and if registered with I.D. card.
Statutory Requirements for Authorized Use:
Registry Card required. Must be registered with Hawaii
Department of Public Safety. Patient needs written
documentation from physician that use outweighs risks
and that the amount permitted will not be exceeded.
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Illinois
625 ILCS 5/11-502.1 Compassionate Use of Medical
Cannabis Pilot Program Act – Effective January 1, 2014
– Act Repealed 4 years after its effective date
Applicability:
Physicians, person diagnosed by a physician as having a
debilitating medical condition, primary caregiver
Quantity Allowed:
No more than 2.5 ounces of usable cannabis during a
14-day period that is derived solely from intrastate
source
How Obtained:
22 Cultivation Centers authorized with associated
taxation and security program
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Illinois (cont.)
Liability Protections:
Protection from arrest
Statutory Requirements for Authorized Use:
Registry Identification Card issued by the Department of
Health
Note: The law does not prohibit an employer from
enforcing a policy concerning drug testing, zero tolerance,
or a drug free workplace provided the policy is applied in a
non-discriminatory manner
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Maine
ME Rev. Stat. Ann. Tit. 22 Sections 2383-B (2004)
Applicability:
Law applies to physicians, patients and caregivers
Quantity Allowed:
Less than or equal to 2.5 oz of usable product or 6 or
less plants with no more than 3 mature and
flowering.
How Obtained:
September 2010 Legislation – Medical Marijuana
Dispensaries established – 8 Dispensaries now listed
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Maine (cont.)
Liability Protections:
Physicians, patients and caregivers – Liability protections
not covered in statute.
Statutory Requirements for Authorized Use:
No state patient registry based on 2010 legislation but
documentation of use is required.
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Massachusetts
Applicability:
The Massachusetts Medical Marijuana Ballot
initiative passed (63% voted in favor) and is effective
January 1, 2013. (An Initiative Petition for a Law for
the Humanitarian Medical Use of Marijuana Petition
Number 11-11)
Quantity Allowed:
Amount permitted for 60-day supply to be
considered by Department of Public Health within
120-days of the law’s effective date.
How Obtained:
Through “Treatment Centers” cultivation/growing
by exceptions for patient and caregivers.
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Massachusetts (cont.)
Liability Protections:
Protection for qualifying patients, caregivers, physicians
and health care professionals, and “Dispensary Agents.”
Statutory Requirements for Authorized Use:
Written certificate from doctor/bona fide relationship
with the patient and full patient assessment required.
Registration card required – issued by the Department of
Public Health.
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Michigan
Voter ballot driven legislation.
Applicability:
Qualified patients and primary caregivers.
Quantity Allowed:
12 plants in an enclosed, locked facility or 2.5 oz
usable Marijuana. Primary caregivers may keep
up to 60 plants (12 for each of 5 patients and
12.5 oz of usable Marijuana in an enclosed,
locked facility).
How Obtained:
Law does not address.
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Michigan (cont.)
Liability Protections:
Qualifying patients and caregivers – not subject to arrest,
prosecution or penalization in any manner.
Statutory Requirements for Authorized Use:
Registry Card required and issued through Bureau of
Health Services.
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Montana
Authority:
A Medical Marijuana initiative vote expanded the
restrictions on the use of Medical Marijuana per
SB0423 on November 6, 2012. Reaffirmed SB0423
which was effective July 1, 2011.
Applicability:
Law applies to physicians, patients and caregivers
Quantity Allowed:
Less than or equal to 6 plants and/or 1oz of usable
marijuana.
How Obtained:
Qualifying patient may grow Marijuana or designate a
provider (limited to three patients).
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Montana (cont.)
Liability Protections:
Qualifying patients and caregivers – not subject to arrest,
prosecution or penalization in any manner (this section requires
review and interpretation relative to new qualifying patients).
Marijuana growers may not accept anything of value in exchange
for services and products. Local governments authorized to
regulate Marijuana providers.
Statutory Requirements for Authorized Use:
Registry Card required. Patient must have written
documentation from physician. Patients and physicians must
register with the Montana Department of Health. Registration
must be renewed annually.
NOTE: Confusing law – requires additional review and
study.
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Nevada
Nev. Rev. Stat. Section 453A (Supp. 2001)
Applicability:
Law applies to physicians, patients and caregivers.
Quantity Allowed:
Less than or equal to 1oz of usable Marijuana or 3
mature or 4 immature plants.
How Obtained:
Growing is permitted through Department of
Agriculture – may also grow to provide and
establish a seed bank.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Nevada (cont.)
Liability Protections:
Physicians: protected from criminal prosecution when
recommending Marijuana for medical use – written
documentation required.
Patients and Caregivers: have a affirmative defense if physician
diagnosed and advised use of Medical Marijuana, explained the
risks and benefits to patient and if within quantity permitted by
statute.
Statutory Requirements for Authorized Use:
Written documentation from physician and Registry Card
required.
Physicians and patients must register with the Department of
Agriculture. Documentation from attending physician must be
updated annually.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Hampshire
New Hampshire HB492:
An Act relative to the legalization and regulation
of marijuana – Regulations expected for
marijuana distribution by October 1, 2013
Applicability:
Legalization for personal use by persons 21 or
older.
Quantity Allowed:
Up to one ounce legal
How Obtained:
State Licensed and Taxed distribution system.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Hampshire (cont.)
Liability Protections:
Protections similar to alcohol and regulated similar to
alcohol
Statutory Requirements for Authorized Use:
Licensing of marijuana wholesale, retail, cultivation. And
testing facilities. Associated taxation requirements
authorized relative to sale of marijuana
Special provisions relative to employers, driving
Employers, Driving, Minors, and Control of Property
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Jersey
N.J.S.A. 24:61
The New Jersey Medical Marijuana Law was signed into law
in January of 2010. the Department of Health and Senior
Services has established a process to register qualified
patients, caregivers, and alternative treatment centers and
has begun to approve alternative treatment centers.
Updates are available from:
The Department of Health and Senior Services
(600) 292-7837 and by checking:
http://www.state.nj.us/health/medicalmarijuana/
Retrieved October 25, 2012
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Jersey (cont.)
Applicability:
Law applies to physicians, primary caregivers, and those
authorized to produce Marijuana for medical purposes.
Quantity Allowed:
90-day supply of usable Marijuana.
How Obtained:
New type of pharmacy – called alternative treatment centers –
centers starting to open.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Jersey (cont.)
Liability Protections:
Protection from arrest, prosecution, property forfeiture, and
criminal and other penalties for patients, physicians, primary
caregivers, and those who are authorized to produce Medical
Marijuana for medical purposes.
Statutory Requirements for Authorized Use:
Registry Identification cards will be issued by the Department of
Health and Human Services which will identify a person as a
registered qualifying patient or a primary caregiver.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Mexico
Senate Substitute for Senate Bill 523 Effective July 1,
2007
Applicability:
Law applies to physicians, patients and caregivers
and licensed producers.
Quantity Allowed:
6oz of usable medical cannabis is allowed at any
given time.
How Obtained:
Department of Health licensed producers.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
New Mexico (cont.)
Liability Protections:
Physicians and Licensed Producers: not subject to arrest,
prosecution, criminal or other penalties or property forfeiture.
Patients and Caregivers: not subject to arrest, prosecution,
criminal or other penalties or property forfeiture.
Statutory Requirements for Authorized Use:
Registry ID card required. Written certification from practitioner,
registered with Department of Health and renewed annually.
Program Information and details available at:
http://www.health.state.nm.us/idb/medical_cannabis.shtml
Retrieved October 25, 2012.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Oregon
OR. Rev. Stat. Sections 475.300 to .346 (2003 & Supp.
2004)
Applicability:
Law applies to patients and caregivers.
Quantity Allowed:
Less than or equal to 1oz of usable Marijuana or 3
mature or 4 immature plants.
How Obtained:
Growing is permitted but details not specified.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Oregon (cont.)
Liability Protections:
Patients and Caregivers – have an affirmative defense if
physician diagnosed and advised use of Medical Marijuana,
explained the risks and benefits to patient and if within quantity
permitted by statute.
Statutory Requirements for Authorized Use:
Written documentation from physician and Registry Card
required. Patients and caregivers must be registered with
Oregon Department of Human Resources, Health Division.
Documentation from attending physician must be updated
annually.
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Rhode Island
2005 H.B. 6052, RI GEN. LAWS Section
21-28.6
Applicability:
Law applies to physicians, patients and
caregivers.
Quantity Allowed:
12 plants and/or 2.5oz of usable
Marijuana.
How Obtained:
Not specified.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Rhode Island (cont.)
Liability Protections:
Patients and Caregivers -- not subject to arrest,
prosecution, criminal or other penalties and property
forfeiture. No school, employer or landlord may refuse to
enroll, employ or lease, or otherwise penalize solely for
his/her status as a registered, qualified patient or
registered primary caregiver.
Statutory Requirements for Authorized Use:
Registry card required. Written certification from
practitioner registered with Department of Health
required and must be renewed annually.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Vermont
VT. Stat. Ann. Tit. 18, Sections 4472-4474 (2004)
Applicability:
Law applies to physicians, patients and caregivers.
Quantity Allowed:
Less than or equal to 1 mature or 2 immature plants or
2oz of usable Marijuana.
How Obtained:
Growing is permitted but details not specified.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Vermont (cont.)
Liability Protections:
Physicians, Patients and Caregivers – have an affirmative
defense if physician advised use of Medical Marijuana if within
quantity permitted by statute. State level criminal penalties on
use, possession and cultivation of Marijuana by patients
removed effective July 1, 2007.
Statutory Requirements for Authorized Use:
Written documentation from physician and Registry Card with
photo required. Patients and Caregivers must be registered with
Vermont Department of Public Safety (Three Physician Review
Board involved in issuance process).
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Washington
Wash. Rev. Code Ann. Section 69.51A (Supp.
2003)
Applicability:
Law applies to physicians, patients and
caregivers.
Quantity Allowed:
No more than a 60-day supply.
How Obtained:
Not specified in statute.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Washington (cont.)
Liability Protections:
Physicians and Patients have an affirmative defense if
diagnosed, physician advised use of Medical Marijuana
and patient and licensed physician (M.D.) are Washington
residents.
Statutory Requirements for Authorized Use:
None, but documentation of use is required.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
District of Columbia
D.C. Law 13-315; 57 DCR 3360 as Amended
Applicability:
Physicians, patients and caregivers.
Quantity Allowed:
Maximum amount is 2oz of dried Marijuana.
Mayor has authority to change quantity through
rulemaking.
How Obtained:
From “Cultivation Centers” as defined in the
statute.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
District of Columbia (cont.)
Liability Protections:
Protections from sanctions for physicians, patients and
their caregivers, otherwise not specified.
Statutory Requirements for Authorized Use:
Registration with the Mayor pursuant to statutory
requirements.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Federal Law v. State Law
Federal Law and theses state
laws conflict due to Federal Law
and Policy – especially 21 United
States Code Section 812 (b)(1)
Schedule I c (17) prohibiting
tetrahydrocannabinoids.
Medical Marijuana is not a
legitimate medical explanation
under DOT although Marinol is.
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61
DOT’s Position – October 22, 2009:
The Department of
Transportation’s Drug and
Alcohol Testing Regulation –
49 CFR Part 40, at 40.151(e) –
does not authorize “medical
marijuana” under a state law
to be a valid medical
explanation for a
transportation employee’s
positive drug test result.
-- Jim L. Swart, Director Office of the Secretary
of Transportation, Office of Policy and
Compliance, Department of Transportation
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62
DOT’s Position – December 3, 2012:
Recently, some states passed
initiatives to permit use of marijuana
for so-called “recreational”
purposes. We want to make it
perfectly clear that the state
initiatives will have no bearing on
the Department of Transportation’s
regulated drug testing program. The
Department of Transportation’s Drug
and Alcohol Testing Regulation – 49
CFR Part 40 – does not authorize the
use of Schedule I drugs, including
marijuana, for any reason.
-- Jim L. Swart, Director Office of the Secretary
of Transportation, Office of Policy and
Compliance, Department of Transportation
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63
Marijuana:
Marijuana is Classified as a Schedule I Drug by the DEA
Drugs are classified as Schedule I Drugs if:
(A) The drug or other substance has a high potential for
abuse.
(B) The drug or other substance has no currently
accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug
or other substance under medical supervision.
Smoked Marijuana v. Dronabinol/Marionol v. Sativex
NOTE: No drugs administered by smoking have been approved by the FDA
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64
Medical Marijuana Case Law
Gonzales v. Raich 545 U.S. 1 (2005)
Roe v. Teletech Customer Care Management, 060607 WAWDC, C07-5149 RBL (W.D. Wash. 2007)
Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 920, S138130 (Sup Ct. Cal 2008)
Johnson v. Columbia Falls Aluminum Co., LLC, 033109 MTSC, DA 08-0358 (MT Sup Ct 2009)
Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Or. 159 (Or. 2010)
Beinor v. Industrial Claim Appeals Office of Colorado (Ct of Appeals of CO, 7th Div.) (CO. 2011)
Casias v. Wal-Mart Stores, Inc., 764 F. Supp. @d 914 (W.D. Mich. 2011)
Coats v. Dish Network LLC, (CO Ct Appeals April 25, 2013)
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
65
5 Steps an Employer can take
to Successfully Walk the
Tightrope
1. Understand the laws on Medical Marijuana
that are specific to their State;
2. Adopt a pre-duty prescription medication
and impairing effects substances safety
policy;
3. Update employee job descriptions;
4. Adopt an ADA complaint handbook policy on
reasonable accommodations; and
5. Let employees know your stance on Medical
and Recreational Marijuana use.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
66
Step 2: Adopt A Pre-duty Prescription
Medication And Impairing Effects Substance
Safety Policy
•Requires employees working in
safety-sensitive classification to
pre-duty disclose that they have
taken an impairing effect
prescription or other substance;
•Define safety-sensitive and list
job classifications if possible;
•Make it part of the employer’s
safety policy;
•Employee does not have to
disclose drug or medical condition
to comply with policy;
•Once disclosed, employer reserves
right to send employee for fitnessfor-duty evaluation with copy of job
description;
•Encourages employees to first
provide their own physician a copy of
their job description and make a
fitness-for-duty determination; and
•Employer reserves right to make
final fitness-for-duty determination,
maybe using Medical Review Office
(MRO).
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67
5 Steps an Employer can take
to Successfully Walk the
Tightrope
1. Understand the laws on Medical Marijuana
that are specific to their State;
2. Adopt a pre-duty prescription medication and
impairing effects substances safety policy;
3. Update employee job descriptions;
4. Adopt an ADA complaint handbook policy on
reasonable accommodations; and
5. Let employees know your stance on Medical
and Recreational Marijuana use.
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68
Step 3: Update Employee Job
Descriptions
•Every job description to be in
compliance with the Americans
with Disability Act (ADA) should
list “Essential Job Functions.”
•If the employee works in a
safety-sensitive job category, one
of the essential functions listed
should be “the ability to work in a
constant state of alertness and in
a safe manner.”
•Educate yourself on the
workplace related impairing
effects of Marijuana.
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69
Step 3: Update Employee Job Descriptions
(cont)
Workplace Related Impairing Effects of Marijuana Include:
•Inability to accurately gauge
lengths of time and distance as
well as impairment of hearing and
vision and short term memory
•Inability to cope with sudden
changes in surrounding and/or
emergency situations
•Loss of balance
•Visual and/or auditory
hallucinations
•Non-caring, uncommitted,
unconcerned attitude
•Decreased cognitive reasoning
•Decreased motor coordination
•Inability to concentrate or remain focused
on a single thought or idea
•Increased drowsiness, fatigue and lethargy
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70
Step 3: Update Employee Job Descriptions
(cont)
Workplace Related Impairing Effects of Marijuana Include:
Marijuana: Causes an inability to concentrate or remain focused on a
single thought or idea. Increased drowsiness, fatigue and lethargy.
Inability to accurately gauge lengths of time and distance as well as
impairment of hearing and vision and short term memory. Inability to
cope with sudden changes in surrounding and/or emergency situations.
Loss of balance. Visual and/or auditory hallucinations. Non-caring,
uncommitted, unconcerned attitude. C. B. Thuss, Jr., M.D., MRO SAPAA
Board Member
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71
5 Steps an Employer can take
to Successfully Walk the
Tightrope
1. Understand the laws on Medical Marijuana
that are specific to their State;
2. Adopt a pre-duty prescription medication and
impairing effects substances safety policy;
3. Update employee job descriptions;
4. Adopt an ADA complaint handbook policy on
reasonable accommodations; and
5. Let employees know your stance on Medical
and Recreational Marijuana use.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
72
Step 4: Adopt an ADA Compliant Handbook
Policy on Reasonable Accommodation
•State in your pre-duty prescription
medication and impairing effects
disclosure policy that you do not
accommodate the use of medical or
recreational Marijuana by safetysensitive employees;
•Having
ADA
reasonable
accommodation handbook language
that discusses the typical interactive
steps is a good risk reduction practice;
•The linchpin of the ADA is an
individualized assessments based on
essential job duties; and
•Suggest
use
of
consulting
MRO/Occupational Physician to guide
you through the ADA reasonable
accommodation dance steps.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
73
5 Steps an Employer can take
to Successfully Walk the
Tightrope
1. Understand the laws on Medical Marijuana
that are specific to their State;
2. Adopt a pre-duty prescription medication and
impairing effects substances safety policy;
3. Update employee job descriptions;
4. Adopt an ADA complaint handbook policy on
reasonable accommodations; and
5. Let employees know your stance on Medical
and Recreational Marijuana use.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
74
Step 5: Let Employees Know Your Stance on
Medical and Recreational Marijuana Use
•Include clear information about the Employer’s position on Medical
Marijuana in its Drug and Alcohol Testing Policy.
•In your employee awareness session, go through the workplace related
impairing effects of Marijuana.
•Make it all about safety.
•Watch the state laws carefully and do not take adverse action or impose
disciplinary consequences against an employee or applicant that makes a
Medical Marijuana claim without consulting knowledgeable legal counsel.
•Treat medical and recreational Marijuana like any other impairing effect
prescription medication or substance.
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75
Five Action Plan Puzzle Pieces
The issues surrounding medical and recreational Marijuana use
are complex and will continue to “grow.” Fitting together the
following puzzle pieces now will keep your business from “going
up in smoke.”
“If it wasn’t for marijuana there wouldn’t be any pot”
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76
5 Action Plan Puzzle Pieces
1. Adopt a pre-duty prescription
medication and impairing effects
substances safety policy;
2. Update employee job descriptions
3. Adopt an ADA complaint handbook
policy on reasonable accommodation;
4. Let employees know your stance on
medical and recreational Marijuana
use; and
5. Adopt a state specific legally
compliant Drug-Free Workplace
Policy and Forms which cover medical
and recreational marijuana.
Constangy, Brooks and Smith, LLP ©2013 All Rights Reserved
Success:
Because you can own this face of
pure accomplishment
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Future for “Up in Smoke”
•10 States with Pending Legislation to
Legalize Medical Marijuana
(as of Apr. 3, 2013)
•Alabama
•Florida
•Illinois
•Iowa
•Kansas
•Kentucky
•Missouri
You're not hallucinating (but they are)...
It's the legendary tokers jokers Cheech &
Chong as you've never seen them before
-- in their very first Animated Movie.
•New Hampshire
•New York
•West Virginia
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Contact Information and Questions
Josephine Elizabeth Kenney, J.D., MBA – Human Resources
Senior Compliance Counsel
First Advantage
Josephine.Kenney@fadv.com
Thomas (Tommy) M. Eden, III Attorney
Constangy, Brooks & Smith, LLP
Management Labor and Employment Law Firm
“The Employers’ Law Firm Since 1946
www.Constangy.com
Email: teden@Constangy.com
Mobile : 205-222-8030
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