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Cannabis Conundrum 2018

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Josephine Kenney and William Tincup dive into what's happening today with all of the laws and changes affecting marijuana and compliance.

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Cannabis Conundrum 2018

  1. 1. Cannabis Conundrum 2018 U.S. Marijuana laws are changing – What it Means for your business April 12, 2018
  2. 2. Discussion Leaders Josephine Elizabeth Kenney Chief Global Compliance Officer at First Advantage William Tincup President of RecruitingDaily 2
  3. 3. Disclaimer The following Presentation is not offered as business, medical or legal advice but is instead offered for informational purposes in a spirit of cooperation and information exchange. First Advantage is not a law firm or medical provider and does not offer legal, medical advice or business consulting advice. This Presentation 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. First Advantage makes no assurances regarding the accuracy, completeness, or utility of the following information. Legislative, regulatory, case law and medical developments regularly impact on general research and medical information. 33
  4. 4. 1. What is the Cannabis Conundrum? 2. What is the current public opinion and politics of cannabis? 3. What is the difference between State Law vs. Federal Law? 4. Which states are passing which laws? 5. What about case law? 6. Trending: How do other leading-edge companies balance their legal risk concerns with their commitment to a Drug Free Workplace? Today’s Discussion Questions: 44
  5. 5. What is the Cannabis Conundrum? 5
  6. 6. The Cannabis Conundrum How do employers: • Meet the objectives of their Drug Free Workplace Program, while also complying with Federal Law and Guidance on Medical Marijuana vs. the State Medical Marijuana, Legalized/Recreational, Decriminalization, and laws concerning Marijuana Extracts/Oils such as Cannabidiol as well as case law decisions? • Minimize the legal risks associated with cannabis use? • Decide if they should take marijuana/THC off their testing panel, prohibit, permit, treat like prescription medication, or focus on impairment versus use? 66
  7. 7. What is the current public opinion and politics of cannabis? 7
  8. 8. Public Acceptance of Marijuana is Increasing No Jail Time for Recreational Use Support Some From of Legalization 60% Support Medical Marijuana 58% 51%Strong emotional appeal Highly financed 88
  9. 9. The Debate Continues 99
  10. 10. Defining “Cannabis” and “Marijuana” 2017 Report on the Health Effects of Cannabis and Cannabinoids published by the National Academies Press and written by the National Academies of Sciences, Engineering, and Medicine: “Although marijuana and cannabis are used interchangeably, they are two separate entities. Cannabis is an overall term, describing cannabinoids, marijuana, and hemp, all derived from the cannabis sativa plant. Products exist in various forms and are used medically, industrially, and recreationally for different purposes. Included are: • edibles, • oils, • a variety of smoked or vaporized substances • prescribed marijuana – Marinol, Dronabinol, Nabilone and Sativex (sprayed oil not available in US) 1010
  11. 11. Defining The Terms: Office of National Drug Control Policy Medical Marijuana Legalized, Recreational Marijuana Decriminalization Cannabidiol / Marijuana Extracts SOURCE https://obamawhite house.archives.gov/ ondcp/frequently- asked-questions- and-facts-about- marijuana, 1111
  12. 12. Addiction: “The compulsive use of a substance despite ongoing negative consequences, which may lead to tolerance or withdrawal symptoms when the substance is stopped”. Diagnostic & Statistical Manual of Mental Disorders IV – the psychiatrist’s handbook for defining all mental disorders. Some Pushback Related to Evidence of Long Term Deleterious Effects 9% of those who experiment with marijuana will become addicted. --NEJM, June 5, 2014 by Volkow et al, pp2219-2226. 1212
  13. 13. 1313 (Continued) Some Pushback Related to Evidence of Long Term Deleterious Effects
  14. 14. Research Requires: • DEA license to conduct marijuana research • Must use research grade marijuana – National Institute for Drug Abuse (NIDA) controls the only supply in the U.S. and rarely approves supplies for trials to show positive effects of marijuana • 2016 DEA policy shift to foster research may change the equation • Also important Report released January 2017: The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research https://www.nap.edu/catalog/24625/the-health-effects-of- cannabis-and-cannabinoids-the-current-state And Pushback Due to Lack of Medical Evidence Many scientific knowledge gaps about marijuana risks & benefits exist because research has been stymied 1414
  15. 15. What is the difference between State Law vs. Federal Law? 15
  16. 16. Federal Law and these 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. Effective January 13, 2017, the Department of Justice Drug Enforcement Administration published a Final Rule in the Federal Register at Vol. 81, No. 240, page 90194. Final Rule included extracts of marijuana such as Cannabidiol under Schedule I of the Controlled Substances Act. Federal Law vs. State Law! US Federal Law Conflicts with State Law 1616
  17. 17. Which States are Passing Which Laws? 17
  18. 18. Marijuana is still illegal under the Federal Controlled Substances Act • But what about the state laws? • Smoking v. Vaporizing, Edibles, Extracts/Oils such as Cannabidiol to be considered… State Law Review 1818
  19. 19. State Laws By the Numbers 18 Non Traditional although some do not permit smoked and some oils 19 Decriminalized + Guam and the Virgin Islands 30 Traditional (30 states +D.C. and Puerto Rico) 8 Legalized/ Recreational Use (8 states + D.C.) Vermont 1st state with legalized recreational law effective July 1, 2018 18 Low Level THC Laws (some do not have workplace testing impact) Maine Recreational Marijuana troubling implementation evolution 191919
  20. 20. Who the law applies to Quantity of marijuana permitted How the marijuana may be obtained/access – medical The liability protections The statutory requirements for authorized use and the illnesses/medical conditions covered by each statute as applicable Each State Law Varies Significantly 20200
  21. 21. What about Case Law? 21
  22. 22. • Gonzales v. Raich No. 03-1454 – argued November 30, 2004 United States Supreme Court – Employer friendly Decision June 6, 2005 • Washburn v. Columbia Forest Products, Inc., 340 Ore. 460 (Or. 2006) – Employer friendly Decision, January 12, 2006 • Ross v. Ragingwire Telecommunications, Inc., S 138130, Ct. App.3 C043392 – Employer friendly Decision, January 24, 2008 Historical Medical Marijuana Case Law Review 2222
  23. 23. Addressing whether an employer must accommodate the use of medical marijuana: Johnson v. Columbia Falls Aluminum Co., LLC, 2009, MT 108N (MT 2009) and Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, BOLI 3004; CA A130422; SC S056265, Filed April 14, 2010 Historical Medical Marijuana Case Law Each Court held that an employer was not required to accommodate an employee’s use of medical marijuana. Notably, the plaintiff in the Johnson case was an applicant and the plaintiff in Emerald case was a temporary employee refused permanent status after the Emerald learned that the temporary employee was a medical marijuana user. 2323
  24. 24. Coats v. Dish Network Colorado Supreme Court's Decision published June 15, 2015. More Recent Medical Marijuana Case Law "...under the plain language of section 24-34- 402.5, C.R. S. (2014), Colorado's "lawful activities statute", the term "lawful" refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute. We therefore affirm the court of appeals' opinion." 2424
  25. 25. • Connecticut Employers Union Independent (SC 19590) (August 30, 2016) • Barbuto v. Advantage Sales and Marketing, LLC. Civil Action No. 15-02677 (Mass Superior Ct. May 31, 2016) • Garcia v. Tractor Supply, No. 15-CV-00735 (D.N.M. Jan.7, 2016) • Montana Cannabis Industry Ass’n v. Montana. 2016 Mont. LEXIS 168 (Mont. Feb. 25, 2016) Sources: General Research and Attorney Faye Caldwell, Caldwell & Everson, presentation at SAPAA Conference, September 16, 2016. ... 2016 Medical Marijuana Case Law Update 2525
  26. 26. • Rhode Island: Callahan v. Darlington Fabrics Corp., C.A. No. PC- 20145680, 2017 (R.I. Super: May 2017) • Massachusetts: Barbuto v. Adv. Sales & Mktg., 78 N.E. 3d 37 (Ma. Super. Ct. July 17, 2017) • Connecticut: Noffsinger v. SSC Niantic Op. Co. 2017 U.S. Dist. LEXIS 124960 (D. Conn. August 8, 2017 Sources: General Research and Attorney Faye Caldwell, Caldwell & Everson, Quest Webinar, March 2018 2017 Medical Marijuana Case Law Update 26266
  27. 27. Trending: How do other leading-edge companies balance risk? 22
  28. 28. Marijuana Programs and Policies: What’s the Trend? Of company policies that First Advantage has on file, the % of companies that do not accept medical marijuana is significantly higher than those who do accept. • Clients who do accept- retailers, banks, private companies, health industry (office functions) • Clients who do NOT accept have policies outside MRO process for making exceptions: • Exceptions made related to safety position held (e.g. desk worker ok, warehouse worker not ok) • Exceptions made based on their individual clients (e.g. staffing agency) States where we generally see clients accept medical marijuana (as an exception): • Arizona, California, Colorado, Connecticut, Delaware, Illinois, Massachusetts, Maine, Minnesota, Nevada, New York, Rhode Island, Washington State • As of April 2, 2018, only 25 of our clients, some with multiple locations, do not include THC in their testing panel. There are currently no accounts with an address in Maine that have a panel set up without THC. Medical Marijuana Policy # of Clients % of Total Accepts Medical THC 157 16.30% Accepts Medical THC, but has exceptions 10 1.04% Does NOT Accept Medical Marijuana 755 78.40% Does NOT Accept Medical THC, but has Exceptions 24 2.49% Third Party- Need to check their client’s policy 17 1.77% Grand Total 963 Data from 3/29/2018 28288
  29. 29. The Cannabis Conundrum is a Complex Subject • Overall suggestion on this topic is for employers to “stay the course.” • Follow your organization’s policy if in place on marijuana, medical and recreational that were in place prior to the Ballots/Election outcomes in 2016 and since. but… • Review and enhance the language in your policy relative to legalized/recreational marijuana if legal in the state or states in which your organization does business. • Add language relative to cannabis extracts such as Cannabidiol and do not forget to review and consider all the medical marijuana laws passed to date. • Consider your organization’s legal risk mitigation strategy balanced with its level of commitment to a drug free workplace. • Engage legal counsel familiar with your organization and its legal risk mitigation strategy to review your policy or create one on cannabis if you do not have language in your Drug Free Workplace Testing Policy. • Also see: CBS Report: https://www.cbsnews.com/news/should-employers-keep-testing-workers-for-pot/ 29299
  30. 30. The use of marijuana for medical purposes, even if permitted by state law, or where marijuana is legalized for recreational use , even if permitted under state law, regulation or city ordinance, will not be considered an acceptable /reasonable explanation for a confirmed positive laboratory report for marijuana and will be reported by the Medical Review Officer as a verified positive drug test for marijuana because such use is in violation of Schedule I of the Controlled Substances Act. Procedurally, the Medical Review Officer will not continue an interview with the donor or conduct a further medical/legal review to determine whether the donor’s claim of alleged use is consistent with a particular state marijuana law or ordinance if the donor claims his or her use is authorized by a marijuana law. Instead, the donor will be informed that the employer's policy is to not accept a medical marijuana explanation and that the Medical Review Officer will report the result as positive with notice to Company Contact/Designated Employer Representative of the reason. 30 Policy Language Thoughts: Legal Counsel to be Consulted [Company’s] Medical Review Officer will not accept a Medical Marijuana, Marijuana Extract, or a Legalized/Recreational Marijuana explanation for a positive drug test even where permitted by state law, regulation or ordinance. 30
  31. 31. Thereafter the [Company] will: • Consider state law, regulations and ordinance requirements/limitations and exceptions relative to disciplinary consequences. • Conduct an individualized assessment related to the applicant or employee’s ability to perform required job functions. • Conduct a reasonable accommodation review as applicable or as required by the federal and state Americans with Disabilities Law and any applicable state law, regulation, ordinance or case law/administrative decision precedent. Company’s Medical Review Officer cannot and will not accept a medical, legalized/recreational or marijuana extract (such as Cannabidiol) explanation for Federal and DOT testing programs. Such confirmed laboratory drug test results will be verified by Company’s Medical Review Officer as a verified positive drug test. 31 (Continued) Policy Language Thoughts: Legal Counsel to be Consulted 31
  32. 32. • Consult with your legal counsel in the context of your organization’s risk tolerance position and legal risk mitigation strategy. • Include clear information about your organization’s position on medical marijuana, including marijuana extracts and oils such as Cannabidiol as well as legalized/recreational marijuana in your organization’s Drug and Alcohol Testing Policy. • Watch the state and federal 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 legal counsel. • Consider Equal Employment Opportunity Commission (EEOC) Guidance (individualized assessment), consider job functions, and do not overlook American with Disabilities federal and state law implications. • Monitor state and federal rulemaking/regulations and guidance. Best Practices 32332
  33. 33. • Going To Pot, Why The Rush To Legalize Marijuana is Harming America, Bennett, William J. and White, Robert A., Center Street Hachette Book Group, 2015. • Weed the People, The Future of Legal Marijuana In America, Barcott, Bruce, Time Books, 2015. • http://www.transportation.gov/odapc, Office of Drug and Alcohol Policy and Compliance, Retrieved, September 20, 2015. • The Marijuana Report.Org, Retrieved September 20, 2015. • Click on “Legal Efforts—State Name” press coverage of ballot initiatives to • legalize marijuana for recreational use, medical use, decriminalization, and • legalize hemp in various states. Updated daily. National Families in Action. • http://norml.org/laws/ Norml. • http://transit-safety.volpe.dot.gov/publications/substance/RxOTC/RxOTC_April2011_Feb2012_Update.pdf, Retrieved September 20, 2015. • A Protocol to Evaluate Drug-Related Workplace Impairment, Reisfield, Gary P, Shults, Theodore, Demery, Jason, DuPont, Robert Journal of Pain & Palliative Care Pharmacotherapy, J Pain Palliat Care Pharmacother 2013 27:43-48. • http://event.onlineseminarsolutions.com/eventRegistration/EventLobbyServlet?target=lobby.jsp&eventid=10 29849&sessionid=1&partnerref=webinarpage&key=E3C4576F5FBFF86D371C8B5DB614A46A&eventuserid=12 4655087 www.fadv.com, What are they smoking now? First Advantage Webinar, September 2015. Sources and Resources 3333
  34. 34. 1. What is the Cannabis Conundrum? 2. What is the current public opinion and politics of cannabis? 3. What is the difference between State Law vs. Federal Law? 4. Which states are passing which laws? 5. What about case law? 6. Trending: How do other leading-edge companies balance their legal risk concerns with their commitment to a Drug Free Workplace? Today’s Discussion Questions: 3434
  35. 35. Thank you! Any questions? Contact: First Advantage 844.317.5232 solutions@fadv.com 35