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Workplace Risks of Legalized Marijuana

Barry S. Spurlock, Esq., CSP

Clean Show 2019

CrumpSpurlockAttorneys

Cannabis

HempCBDs

Low THC

MarijuanaCBDs

High THC

CBD = cannabidiolTHC = tetrahydrocannabinol∆ 9 THC = Primary Psychoactive/

Therapeutic Chemical

Federal Controlled Substances Act:Schedule 1 SubstancesSchedule I drugs and substances are those that have a high potential for abuse, and are defined as drugs with no currently accepted medical use.

• Heroin

• LSD

• Ecstasy

• Peyote

• Methaqualone

• Tetrahydrocannabinols (Naturally occurring and synthetic equivalents.)

21 CFR § 1308.11

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Legalized Recreational Marijuana States

Legalized Medical Marijuana States

The Issues

• Substance Impairment Thinking

• Occupational Safety Risks

• Laws• Marijuana Legalization• Disability Discrimination• Employer Drug Testing

• Legal Risks• Discrimination Pursuant to Marijuana Legalization Acts• Disability Discrimination• Testing for and Establishing Impairment • Defining Safety Sensitive Positions

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Distinguish….

Recreational Marijuana Medicinal Marijuana

Hypothetical 1: Medical Marijuana Statute

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… [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.

Hypothetical 1: Facts

• Laundry Worker at ABC Institutional Laundry, Inc.

• Employed Since 2008

• Issued Medical Marijuana User Card in 2014 for Pain Associated with Chronic Arthritis

• May 14, 2016, Employee Rolls a Laundry Cart Over Foot – Severe Contusion

• Post Injury Drug Test on May 17, 2016 = 1000 ng/ml (Purported Max Concentration Test Would Report)

• Terminated June 6, 2016, for Positive Drug Test

• Employer had drug testing policy approved per state’s law on employment drug testing.

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Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761 (D.AZ. 2019)• Motion for Summary Judgement

• Wrongful Termination and Discrimination Claims:• Arizona Medical Marijuana Act (AMMA)• Arizona Civil Rights Act (ACRA)• Arizona Employment Protection Act (AEPA)

• Key Legal Questions• Is there a private cause of action?• HR manager’s affidavit admissible “expert”?• Was employee in a safety sensitive position?• Did Arizona’s Drug Testing of Employees Act (DTEA) protect Wal-Mart?• Did the DTEA unconstitutionally amend the AMMA?• Was the employee disabled? Did Wal-Mart discriminate under ACRA?

Hypothetical 2: Medical Marijuana Statute

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

employee's status as a qualifying patient or primary caregiver under

sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision

shall restrict an employer's ability to prohibit the use of intoxicating

substances during work hours or restrict an employer's ability to

discipline an employee for being under the influence of intoxicating

substances during work hours.

Hypothetical 2: Facts

• Justin X. Sample applies for position as at Big Volume Laundry Inc.

• Justin suffers from PTSD, and has a card permitting medical use to treat his PTSD.

• Justin fails drug test because of marijuana…just marijuana.

• Big Volume Laundry retracts offer of employment.

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Smith v. Jensen Fabricating Engineers, Inc.2019 WL 1569048• Motion to Strike Plaintiff’s Complaint

• Claims• Discrimination Under Connecticut’s Palliative Use of Marijuana Act (PUMA)

• Public Policy Wrongful Termination

• Legal Issues• Is PUMA pre-empted by federal CSA and/or ADA?

• Does PUMA create a private cause of action?

• Is Smith’s public policy wrongful termination claim duplicative?

• Can Smith get attorney’s fees?

Nevada Anti-Discrimination Statute: Employment Drug Testing

“1. It is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.

2.The provisions of subsection 1 do not apply if the prospective employee is applying for a position:

(a)As a firefighter, as defined in NRS 450B.071;

(b)As an emergency medical technician, as defined in NRS 450B.065;

(c)That requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests;

or

(d)That, in the determination of the employer, could adversely affect the safety of others.”

Safety Sensitive Position?

• Objective, Factual Analysis

• Individualized Basis

• Tasks vs. Title

• Guidance and Examples• Firefighters• EMS• Police Officers• Interstate Motor Carrier Drivers (DOT/FMCSA)• Airline Pilots (FAA)• Railroad Engineers (FRRA)• Nuclear Facility Workers (NRC)

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Safety Sensitive Position: EEOC Guidance

A "direct threat" is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. (29 CFR § 1630.2(r)).In making a direct threat assessment, the employer must evaluate …and consider• the duration of the risk;• the nature and severity of the potential harm;• the likelihood that the potential harm will occur; and• the imminence of the potential harm.The harm must be serious and likely to occur, not remote or speculative.

Are employers required to accommodate medical marijuana usage?

In recreational marijuana states, can the worker be held accountable for use during non-work hours?

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How do recreational and medicinal marijuana laws impact workers’ compensation claims?

What does OSHA say about drug testing?

What does it mean to de-criminalize marijuana?

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Focal Takeaways

• Marijuana/Cannabis is a substance that can impair workers.

• Research is mixed on whether legalization is helping or heightening abuse and addition to other drugs and alcohol.

• Know your state’s laws.

• Be careful when dealing with medical users.• Marijuana Legalization Statutes

• State Disability (ADA) Laws

• Adjust policies and practices to comport with state laws.

• Seek help from experienced employment law counsel when in doubt.

Questions?

barry@crumpspurlock.com

@BarrySSpurlock

Barry Spurlock