Adjusting to New Marijuana/Hemp Norms Wayne County Negotiators and - - PowerPoint PPT Presentation
The Wild, Weedy West: Adjusting to New Marijuana/Hemp Norms Wayne County Negotiators and Personnel Administrators Association http://www.luskalbertson.com/WCNPAA2019 Adam Walker Lusk Albertson Detroit-Grand Rapids AWalker@LuskAlbertson.com
Wayne County Negotiators and Personnel Administrators Association http://www.luskalbertson.com/WCNPAA2019
Adam Walker Lusk Albertson Detroit-Grand Rapids AWalker@LuskAlbertson.com @LuskAlbertson / @AJT_Walker
Overview
The Legal
How We Got Here Marijuana Hemp Other Laws
The Practical
Employees Students Policy Suggestions
How We Got Here: A History Lesson
In 1970, Congress classified cannabis as a Schedule I drug
under the Controlled Substances Act (CSA).
In 2018, Congress passed the Farm Bill – hemp removed
from the definition of marijuana in the CSA.
BUT the FDA may still regulate hemp.
Michigan passed matching legislation soon thereafter. Marijuana still remains illegal federally.
How We Got Here: A History Lesson
Hemp definition:
“the plant Cannabis sativa L. and any part of that
plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Marijuana in Michigan
2008: Michigan Legislature passed the Michigan Medical
Marihuana Act (MMMA).
MMMA does not permit possession or use of medical
marijuana on school buses or the grounds of a preschool, primary school, or secondary school. MCL 333.26427(b)(2).
MMMA provides immunity from penalty or prosecution in
certain circumstances, not an affirmative right.
Statutes that provide affirmative rights: Title VII, ADA,
PWDCRA, etc.
Marijuana in Michigan
2018: Recreational marijuana legalized by voters as the
Michigan Regulation and Taxation of Marijuana Act (MRTMA).
Must be 21 years of age or older. Does not allow possession or consumption of marijuana on
school buses or school grounds. MCL 333.27954(1)(h).
Hemp
Industrial hemp legal federally and in
Michigan.
Various regulatory requirements, but… Key Takeaway: Hemp contains a maximum
Hemp: Cannabidiol (CBD)
CBD:
Chemical compound derived from the cannabis plant. Does not feature the psychoactive effects present with THC. Found in both marijuana and hemp. Many products – oils and gummies and sprays, oh my!
Enter the FDA
FDA has authority to regulate food, drugs, and cosmetics
marketed or sold in interstate commerce.
The 2018 Farm Bill preserved the FDA’s authority to
regulate hemp contained in food, drugs, and cosmetics.
This authority includes CBD products derived from hemp.
FDA has different requirements for products depending on
whether they are a drug, a food (or a dietary supplement), or a cosmetic.
FDA Guidance
(https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived- products-including-cannabidiol-cbd#qandas)
Are there any CBD products approved as drugs?
FDA has approved one cannabis-derived drug product and
three cannabis-related drug products, which require a prescription form a licensed healthcare provider.
Epidiolex: Intended to treat seizures. Marinol/Syndros: Intended to treat anorexia. Include a
synthetic THC as an active ingredient.
Cesamet: Treats nausea caused by cancer. Includes a
synthetic active ingredient with a chemical structure similar to THC
FDA Guidance
(https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived- products-including-cannabidiol-cbd#qandas)
Is it legal, in interstate commerce, to sell a food to which
THC or CBD has been added?
No, because THC/CBD is an active ingredient in an approved drug
product and there are substantial clinical investigations regarding CBD.
Can THC or CBD products be sold as dietary supplements?
No, because for the above reasons, they are excluded from the
definition of “dietary supplement.”
FDA Guidance
(https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived- products-including-cannabidiol-cbd#qandas)
Are cosmetic CBD products legal?
Sometimes. Can still be subject to FDA
preapproval if the product is intended to:
Affect the structure or function of the body. Diagnose, cure, mitigate, treat, or prevent disease.
FDA can also regulate a CBD cosmetic if it is unsafe
for consumer use or is adulterated or misbranded.
Other Laws
Drug-Free Workplace, 41 USC 8101 et seq.
Among other requirements, federal grant recipients
must enforce a drug-free workplace in good faith or risk loss of the grant.
Drugs are defined as controlled substances under the
CSA.
Other Laws
Every Student Succeeds Act (ESSA), Title IV – 21st
Century Schools, 20 USC 7111 et seq.
Requires federal fund recipients to foster drug-free
Controlled substances under the CSA. Alcohol or tobacco used illegally. Harmful, abusive, or addictive substances.
Scenario
Veronica, a tenured teacher who may only be
terminated for non-arbitrary or capricious reasons, tests positive for THC. The District enforces a “zero tolerance” policy that provides employees who test positive for THC are
marijuana card and consumed only medical marijuana off-site and after-hours. She asserts that she cannot be terminated for medical marijuana use because it would deny her the property interest she has in her employment.
Employees: Marijuana
Employees are not entitled to possess/use recreational or
medical marijuana on school grounds.
Subject to discipline for violating workplace drug policies.
What about employees with disabilities and
accommodating their off-site use of medical marijuana
It’s complicated. No Michigan case law – unsettled. Other
states have weighed in.
Engage in interactive process, even if ultimately refusing to
accommodate medical marijuana use (as advised).
Scenario
Karen, a school employee, arrives to work with
CBD mascara (allegedly) derived from hemp. The School District enforces a Board policy prohibiting possession of any CBD product on school grounds. When Karen is disciplined, she claims that the policy does not apply because the mascara is legal, as it is a cosmetic that does not require FDA approval.
Employees: Hemp (CBD)
Not marijuana, but…
Actually, it may be (regulatory issues and shady companies). Foods/“dietary supplements” are not legal.
But also not “controlled substances.”
Recommendation: Complete ban on CBD products pending
FDA/legal development.
What about the ADA/PWDCRA?
Again, unsettled territory. Use the interactive process.
Scenario
Donovan, a school employee who suffers from
seizures, comes to work with a prescription for the FDA-approved medication Epidiolex. The School District enforces “no tolerance” policies for THC and CBD. Donovan seeks an exemption from the School District’s testing policy as a reasonable accommodation for his disability of epilepsy.
Scenario
Matthew, a special education student, suffers
from frequent seizures. One day, his parent advises the School District that a doctor has prescribed Matthew the CBD medication Fepidiolex, which allegedly is intended to treat
from hemp” and that it “typically” contains less than 0.3% THC. Fepidiolex has not been approved by the FDA.
Students
No recreational marijuana issue. What about medical marijuana and special education
students?
Not required to provide illegal substance. What about CBD oil at school and special education
students?
Case law goes both ways. Not FDA approved, could be harmful, could actually be
marijuana and not hemp…but try to reach an alternative accommodation with the parent(s).
Scenario
Jen, an 18-year-old general education student
with a medical marijuana card, shows up to school with marijuana in her purse, which is clearly visible to the building principal. She is suspended under the School District’s anti-drug policy, which specifically prohibits marijuana on school grounds. Jen claims she is entitled to have the marijuana at school (but not use it) because she is of legal age.
Policy Suggestions (Marijuana)
For both students and staff, maintain a policy
categorically banning the use or possession of marijuana (recreational or medical) on school grounds.
Mirrors MMMA and MRTMA statutory carve-outs that
use.
Policy Suggestions (Marijuana)
Example language that may be added to alcohol and drug-
free workplace policy:
“Notwithstanding state permissibility, the use and possession
prohibited on school grounds. Employees who test positive for THC are subject to discipline regardless of the source of the THC, consistent with the law.”
Recommended policy language allows for flexibility where
employees test positive for THC.
If developing law in the future requires reasonable
accommodation for use of medical marijuana at home (not at school), recommended language covers such scenarios.
Policy Suggestions (CBD)
Example policy language:
“The use or possession of CBD products on school grounds is
prohibited, except for CBD products permitted by the U.S. Food and Drug Administration or as otherwise required by law.”
Alternative (allows CBD cosmetics):
“CBD food, drug, or dietary supplement products are prohibited on
school grounds, except for CBD products permitted by the U.S. Food and Drug Administration or as otherwise required by law.”
Additional alternative: If school district maintains policy
regarding non-FDA approved supplements / over the counter medications, apply policy to CBD products.
Policy Suggestions (CBD)
Is a CBD policy necessary? Up to individual school districts. Consider:
Quickly-changing landscape may result in outdated policy. Difficult to create policy flexible enough to anticipate how FDA /
law will treat CBD in the near future.
Places students, parents, and staff on notice of District stance on
CBD.
Bob Lusk RLusk@LuskAlbertson.com (248) 988-5662 – Direct (248) 709-3596 – Cell @BobLusk1 Adam Walker AWalker@LuskAlbertson.com (616) 278-0822 – Direct / Cell @AJT_Walker