Medical Marijuana in and around the...

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Medical Marijuana in and around the Classroom Lisa Anne Smith & Sesaly Stamps ASBA Law Conference 2015

Transcript of Medical Marijuana in and around the...

Page 1: Medical Marijuana in and around the Classroomazsba.org/.../Friday-BR3-Medical-Marijuana-Presentation.pdf · Medical Marijuana in the U.S. ! Medical Marijuana laws enacted in 23 states

Medical Marijuana

in and

around the Classroom

Lisa Anne Smith & Sesaly Stamps

ASBA Law Conference 2015

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Hypothetical:

Ethan is a 13 year-old student in eighth grade who has ADHD and an anxiety disorder. Ethan receives special education services. On the first day of school, Ethan’s teacher smells a strong odor of marijuana on Ethan and sends him to the principal’s office who then calls the police. After searching Ethan and his backpack, it is determined he is not in possession of marijuana.

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Hypothetical (cont.)

The principal informs Ethan that the odor is enough to discipline him for suspected use of marijuana, imposes a short term suspension, and schedules a discipline hearing for a long term suspension. Ethan’s mother arrives at the school that afternoon and produces a medical marijuana card in Ethan’s name. Mother assures the principal that Ethan will never bring marijuana to school but insists that he be allowed to come to school after smoking marijuana at home.

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Now what?

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Arizona Medical Marijuana Act The Medical Marijuana Act (MMA) was a voter-initiated ballot measure approved in 2010. See A.R.S. Sections 36-801 thru 36-2819.

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Arizona Medical Marijuana Act

Permits people suffering from debilitating medical conditions to possess and use marijuana for medicinal use.

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Arizona Medical Marijuana Act

Must have an authorization card issued by the Department of Health Services.

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Arizona Medical Marijuana Act

In general, marijuana must be obtained from an authorized dispensary. (Exception for patients more than 25 miles from a dispensary.)

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Arizona Medical Marijuana Act

Minors are permitted to have cards.

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What is a Debilitating Medical Condition? (a) Cancer, glaucoma, HIV, AIDS, Hepatitis

C, ALS, Crohn’s, Alzheimer's; (b) A chronic or debilitating disease or

medical condition or its treatment that produces: wasting syndrome, severe & chronic pain, severe nausea, seizures, severe & persistent muscle spasms;

(c) Any other medical condition or treatment added by DHS.

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Medical Marijuana Statistics in AZ

As of the end of 2014: �  61,272 qualifying patients with cards �  639 designated caregivers (permitted

to possess medical marijuana) �  85 dispensaries open and operating �  Average age = 43.9 years old �  0.2 % under 18 years old

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Medical Marijuana in the U.S.

�  Medical Marijuana laws enacted in 23 states plus District of Columbia.

�  Marijuana remains illegal under federal law.

�  Federal government sending mixed messages regarding enforcement

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Employment Anti-Discrimination

A.R.S. section 36-2813(B):

Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

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Employment Anti-Discrimination A.R.S. section 36-2813(B) (cont.):

1. The person’s status as a cardholder.

2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

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A.R.S. sec. 36-2814: Nothing in the MMA requires “An employer to allow ingestion of marijuana in any workplace or any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

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A.R.S. sec. 36-2814:

Nothing in the MMA prohibits an employer from disciplining any employee for ingesting marijuana in the workplace or working while under the influence of marijuana.

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Subsequent Legislation

A.R.S. section 23-493:

Impairment means symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, walking, standing, physical dexterity . . .

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A.R.S. sec. 23-493 (cont.): . . . irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident that results in serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.

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Subsequent Legislation

A.R.S. sec. 23-493 & 23-493.06 amended to allow employers to identify “safety-sensitive” positions and prohibit such employees from being medical marijuana cardholders.

WARNING: Probably invalid and unenforceable.

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What’s happening around the country? �  Lawsuits cropping up all over.

�  May 2015, Colorado Supreme Court upheld firing of quadriplegic employee who used marijuana at night. (Colorado law does not have the same anti-discrimination provision as Arizona.)

�  August 2015, ACLU in Rhode Island survived a motion to dismiss lawsuit filed on behalf of an applicant to a textile manufacturing company who was not hired because she had a medical marijuana card. (R.I. law has an anti-discrimination provision.)

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Student Anti-Discrimination

A.R.S. sec. 36-2813(A):

No school may refuse to enroll and may not otherwise penalize a person solely for his status as a cardholder, unless failing to do so would cause the school to lose a monetary or licensing related benefit under federal law or regulations.

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Does this mean students get to bring pot to school?

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No A.R.S. sec. 36-2802:

The MMA does not prevent the imposition of penalties for possessing or engaging in the medical use of marijuana on a school bus or on the grounds of any preschool or primary or secondary school.

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Federal Safe and Drug Free Schools and Communities

Act

Enhanced criminal penalties remain in place for possession of marijuana (medicinal or not) on and around school campuses.

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But what about Ethan?

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Medical Marijuana is Medicine

A.R.S. sec. 36-2813(C):

A registered qualifying patient’s authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.

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Can you discipline Ethan?

Ethan’s classmate, Miguel, is also diagnosed with ADHD and an anxiety disorder. Miguel takes Adderall for the ADHD and Xanax to manage his anxiety. Both medicines are prescribed by his doctor and Miguel frequently comes to school after taking both.

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If you discipline Ethan (but not Miguel) will the district be sued?

Discrimination Claim? � Under the MMA? � Under the ADA or Section 504? � Under the IDEA? � Under Arizona’s equivalent of the

ADA?

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Will the District win?

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?

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Counterarguments �  Marijuana is still illegal under federal law

and thus the school does not have to comply with the MMA.

�  The Safe and Drug Free Schools and Communities Act means “drug free”!

�  The district might lose federal grant funding.

�  A student who reeks of pot is just plain disruptive.

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One more twist

If you want to impose a long term suspension on Ethan, will the disciplinary violation of smoking marijuana be determined to be a manifestation of his disability?

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?

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What’s happening around the country?

�  May 2015, Colorado passes a law that allows districts to permit administering medical marijuana to students on campus.

�  August 2015, New Jersey lawmaker introduces legislation to enable parents to administer medical marijuana to students on campus.

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Questions?