Finding the balance between employer policies and the use of - - PowerPoint PPT Presentation

Stephen C. Lattanzio, Principal Attorney

Finding the balance between employer policies and the use of permitted medical marijuana

The Connecticut Department of Labor

August 11, 2017 1

Purpose of Program

• Academic advancement of the law
• No jeopardy to any participant
• CTDOL is complaint-driven; agency duty

bound to investigate if complaint filed.

• “Method to the Madness”

August 11, 2017 2

Overview

• Highlights of § 21a-408 et seq.

» Definitions » Main provisions

• Interplay with Existing Federal/

State Law

• Practical Considerations
• Physician’s (MRO’s) Perspective

August 11, 2017 3

Highlights of Conn. Gen. Stat. §21a-408 et seq.

• Signed by Governor Malloy – May 31, 2012
• Effective October 1, 2012
• Department of Consumer Protection

» Has regulatory authority

• Two (2) Main Impacts to Workplace:

– (1) Prohibition Against Adverse Employment Actions; and – (2) Prohibition of Palliative Use at Workplace

August 11, 2017 4

Definitions

• “Palliative Use” – § 21a-408(6)

– “the acquisition, distribution, transfer, possession, use or transportation of marijuana or paraphernalia…from the patient’s primary caregiver to the qualifying patient, to alleviate a qualifying patient’s symptoms of a debilitating medical condition…” (Emphasis added.)

August 11, 2017 5

Definitions (cont.)

• “Qualifying Patient” - § 21a-408(10)
• 18 years of age or older
• Resident of Connecticut
• Has been diagnosed by a physician as

having a debilitating medical condition

• Must register with DCP to obtain valid

registration certificate prior to engaging in use.

August 11, 2017 6

Definitions (cont.)

• Difference in Definition of “Employer”

– § 21a-408p(a)(3) - …means a person engaged in business who has 1 or more employees, including the state and any political subdivisions of the state. – § 31-51t - …means any individual, corporation, partnership or unincorporated association, excluding the state or any political subdivision thereof.

August 11, 2017 7

Definitions (cont.)

• Question/Thoughts???:
• What if a municipal employee claims

he/she was fired for palliative use of marijuana – does the CTDOL have jurisdiction?

• Municipality definition

–Not an “employer” per § 31-51t –An “employer” per § 21a-408p(a)(3) DCP has exclusive jurisdiction.

August 11, 2017 8

Definitions (cont.)

• “Debilitating Medical Condition” –

§ 21a-408(2)

• List of medical conditions including

cancer, glaucoma, Parkinson’s disease, MS, etc., OR Any medical condition approved by the Department of Consumer Protection (DCP).

August 11, 2017 9

Medical conditions (cont’d)

• Currently, there are:
• 22 conditions for adults*; and
• 6 conditions for children under

18 years old.

* Includes 7 conditions recommended by Medical Marijuana Program Board

• f Physicians

August 11, 2017 10

• I. No Adverse Action – §21a-408p(b)(3)
• No employer may refuse to hire a person
• r 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.

• In effect, creates a protected class for
• Qualifying patients; and
• Primary caregivers.

August 11, 2017 11

No Adverse Action (cont.)

• Obvious significance of the word “solely”
• Limiting word
• Places high burden on person/employee

to prove no other factor entered employer’s decision-making process.

• May employer consider marijuana

use as one of many factors?

August 11, 2017 12

Benefit of Certification

• Qualifying patients and caregivers are

immune from arrest and prosecution under state law, and cannot be subject to civil or other penalties.

• Query: What about federal law?

(See slides beginning at #36.)

August 11, 2017 13

• II. Use at Workplace
• Statutory Language - § 21a-408p(b)(3)&(c)

– “Nothing…shall restrict an employer’s ability to:

• Prohibit the use of intoxicating

substances during work hours or

• Discipline an employee for being

under the influence of intoxicating substances during work hours.”

August 11, 2017 14

Definition of “Palliative Use”

“…the acquisition, distribution, transfer, possession, use or transportation of marijuana or paraphernalia relating to marijuana, including the transfer of marijuana and paraphernalia relating to marijuana from the patient’s primary caregiver to the qualifying patient… but does not include any such use of marijuana by any person other than the qualifying patient. (Emphasis added.)

See Conn. Gen. Stat. § 21a-408(6)

August 11, 2017 15

Use at Workplace (Cont.)

• Nothing shall be construed to permit:

the palliative use of marijuana in violation of § 21a-408a(b).

• § 21a-408a(b)(2):

– No protection for “ingestion” of marijuana

• In the workplace;
• In a motor bus or school bus;
• In any public place;
• In presence of person under age 18.

August 11, 2017 16

Possession v. Ingestion: (Cont.)

• § 21a-408(6)

– Includes “possession” in definition

• f “Palliative use”
• § 21a-408a(b)

– Prohibits “palliative use” that is “ingestion”

• Apparent difference between the words

“possession” and “ingestion”? (Yes)

August 11, 2017 17

Use at Workplace (Cont.)

• Net Effect = Same treatment as any
• ther “intoxicating substance” at work

– Employer can regulate intoxication at workplace (“during work hours”)

• Thus, employer is free to regulate being “under

the influence of intoxicating substances”

• Words “intoxicating substances” chosen carefully
• Exact same language used in § 31-51y(b)

August 11, 2017 18

Use at Workplace (Cont.)

• Current Drug Testing Statute – § 31-51x

provides:

• Employer may subject employee to

reasonable suspicion testing if employee “is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance …”

• Note the use of the present tense language.
• Observations must be contemporaneous

with request to test.

August 11, 2017 19

Questions:

• Age-old Question = Possession
• Queries:
• Can mere possession of marijuana by

a qualifying patient subject employee to an adverse employment action?

– Only to extent the possession violates § 21a-408a(b), that is, “ingestion.”

August 11, 2017 20

Possession v. Ingestion

• Current State Drug Testing Law

– Requires that employee “is under the influence

• f drugs or alcohol which adversely affects or

could adversely affect such employee’s job performance …”

• Seems to presume ingestion
• Seems to require manifestation of symptoms
• Mere possession is insufficient basis

August 11, 2017 21

Questions (Cont.):

• May employee use/ingest marijuana
• ff site during course of work day?

– Possibly to the extent that the employee does not become “under the influence of intoxicating substances” at work place.

August 11, 2017 22

Impact to Drug Testing

• Employer may test to same extent

as any other legitimately prescribed drug medications.

• Reminder: CTDOL only regulates

urinalysis drug/alcohol testing.

August 11, 2017 23

Impact to Drug Testing (Cont.)

• Positive (urinalysis) test results:

– Mandated/Regulated tests, (e.g., random for CDL DOT testing, high-risk, safety-sensitive employees, school bus drivers, etc.)

• MRO must conduct a verification interview

with the employee to determine whether there is a legitimate medical explanation for the positive result

• Employee must present “information”, e.g.,

prescriptions, which form the basis of a legitimate medical explanation for the positive test.

August 11, 2017 24

Impact to Drug Testing (Cont.)

• Use of a drug can only constitute a “legitimate

medical explanation” when used for its proper and intended purpose. 49 CFR 40.137(e)(3). – Must be used in accordance with dosage stated in prescription.

August 11, 2017 25

Impact to Drug Testing (Cont.)

• For positive test results in mandated/

regulated scenarios:

• Certain tested substances have no

legitimate medical use: (1) marijuana (federal); (2) heroin; and (3) PCP.

• If the MRO determines that there IS a

legitimate medical explanation, the MRO must verify the test result as negative. 49 CFR 40.137(d).

• Therefore, MRO MAY not disclose existence of

drug in employee’s system to the employer.

August 11, 2017 26

Added MRO Duty

• However, even when federal law recognizes the

presence of a “legitimate” drug, i.e., valium, and the MRO verifies positive test result to negative;

– the MRO still may be required to inform the employer of the drug test result. – MRO required to raise fitness for duty considerations with the employer. (See 49 CFR 40.137). – Without employee ‘s consent, MRO may report drug test results if MRO believes “continued performance

• f safety-sensitive function is likely to pose significant

safety risk.” (See 49 CFR 40.327).

August 11, 2017 27

Non-Federal Context

• But what about a State mandated/regulated test?

– Scenario: – Non-federal, non-mandated/regulated positive test for valium or marijuana, (e.g., § 14-261b permissive random of driver of > 10,001 lbs. but < 26,000 lbs., or pre-employment test); – MRO persuaded that legitimate medical explanation exists – Does MRO change positive test to negative? (Yes) – Does MRO follow federal procedures above , i.e., inform employer of fitness for duty concerns? (No)

August 11, 2017 28

Marijuana Certificate

• Question: Is a “valid registration

certificate” for marijuana the equivalent of a prescription?

– 49 CFR Part 40 § 40.137 provides: “… the employee must present information [proving a legitimate medical explanation]…” There is no requirement of a “prescription”.

August 11, 2017 29

Marijuana Certificate

• Query: If an employee’s primary caregiver

presents the MRO with proof that the employee is a “qualifying patient” and has been issued a “valid registration certificate” for the palliative use of marijuana, is that a sufficient “medical explanation” to verify the (mandated/regulated) test result as negative?

August 11, 2017 30

Federal Law

• Federal Law Answer: 49 CFR 40.151(e).

– “[An MRO] must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the ‘medical marijuana laws that some states have adopted).” (Emphasis added.)

August 11, 2017 31

Controlled Substance I*

• Significance of Controlled Substance I:

(1) a high potential for abuse; (2) no currently acceptable medical use...

• See 21 U.S.C. § 812 (b)(1).
• Thus, federal law does not recognize

medical marijuana as a legitimate medical explanation because it is a Controlled Substance I.

– * Marijuana has been a Controlled Substance I under federal law since 1970, with the passage of the Controlled Substances Act.

August 11, 2017 32

State Law Reclassification

• However, Conn. Gen. Stat. § 21a-243(e)

mandated that DCP reclassify marijuana from Schedule I to II as a controlled substance.

• Conn. State Agencies Regs. § 21a-243-8(g)

reclassified marijuana as a Schedule II controlled substance. *Effective 9/17/13

August 11, 2017 33

Federal Law v. State Law

• Federal law has NOT reclassified marijuana

as Controlled Substance II. – Still recognizes marijuana as Controlled Substance I.

• 8/11/16 – DEA refused to reclassify

marijuana as a Controlled Substance II.

August 11, 2017 34

• DOT Office* Compliance Notice

– “…state initiatives will have no bearing on DOT’s regulated drug testing program. The DOT’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.” – “an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use ‘medical marijuana’…”

(Emphasis supplied.)

*Office of the Secretary of Transportation, 12/3/12

Federal Law v. State Law (Cont’d.)

August 11, 2017 35

• Accordingly, federal law at odds with state

medical marijuana law.

• Significance: Employee protections from arrest,

discharge, penalty, threatening, etc. under state law do NOT apply if federal law applies, i.e., CDL DOT testing, etc.

• Conn. Gen. Stat. § 21a-408p(b) permits

employers to follow federal law without penalty.

Federal Law v. State Law (Cont’d.)

August 11, 2017 36

Federal Law v. State Law: Criminal Ramifications?

• “…while the Department of Justice does not focus

its limited resources on seriously ill individuals who use marijuana… in compliance with state law… the DOJ maintains the authority… to enforce the CSA [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution, even if such activities are permitted under state law.” (Emphasis supplied.)

• David Fein, US Attorney District of CT, Letter, 4/23/12

August 11, 2017 37

Federal Law v. State Law: Criminal Ramifications? (Cont’d.)

• Former (Obama) Attorney General Holder:

– The Justice Department will not attempt to challenge state laws that allow for the medical and recreational use of marijuana as long as the drug sales do not conflict with eight new federal enforcement priorities. – Those [priorities] include the distribution of marijuana to minors and sales that assist or act as cover for trafficking operations...

See USA Today Article “Justice Department Won’t Challenge State Marijuana Laws,” 8/29/13

August 11, 2017 38

• Presently, federal authorities, i.e., US Justice

Department, are seeking to abolish the current policy prohibiting use of federal funds to prosecute medical marijuana patients and physicians.

• Thus, federal authorities could seek to enforce the

Controlled Substances Act (federal law classifying marijuana as Controlled Substance I).

See Washington Post Article, “Jeff Sessions Personally Asked Congress to Let Him Prosecute Medical Marijuana Providers,” 6/13/17.

Federal Law v. State Law: Criminal Ramifications? (Cont’d.)

August 11, 2017 39

Federal Law v. State Law (Cont’d.)

• Federal law at odds with public opinion
• April, 2017 Quinnipiac Poll:

– Medical marijuana is incredibly popular; – Supported by 94% of public; – Nearly 75% of public disapprove of federal government enforcing federal laws in states that have approved medical marijuana use.

August 11, 2017 40

CT Statistics as of 7/23/17

• 715 doctors (“primary caregivers”)
• 19,223 “qualifying patients”:
• 4,775 patients in Hartford County;
• 4,462 in New Haven County;
• 3,916 in Fairfield County;
• 2,130 in New London County;
• 1,181 in Litchfield County;
• 1,168 in Middlesex County;
• 932 in Tolland County;
• 669 in Windham County

August 11, 2017 41

Practical Problems

• Medical Issues:
• Urinalysis cannot determine:

– When marijuana was ingested, i.e., > 30 days – Quantity in system at time of test – Level of impairment – unlike alcohol

• Chronic or acute user

August 11, 2017 42

Practical Problems (Cont’d.)

• CT DUI – Conn. Gen. Stat. § 14-227a(a) provides:
• “Under the Influence” means:
• “…’elevated blood alcohol content’ means a ratio of

alcohol in the blood of such person that is eight hundredths of one per cent or more of alcohol, by weight, except that if such person is operating a commercial motor vehicle, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is four-hundredths of one per cent or more

• f alcohol, by weight…”

(Emphasis Supplied.)

August 11, 2017 43

Practical Problems (Cont’d.)

• MRO Issues:
• “Excused positive – marijuana”
• Pressure from employer as client to know

results, i.e., “I’m paying for this test.”

• What panel to use – must an employer

test for marijuana?

• Any consent issues confronting MRO?

August 11, 2017 44

Practical Problems (Cont’d.)

• Notice to Employer:
• HR policy requires employee to inform

employer of need to take medication

• MRO notice: “excused positive –

marijuana”

• Insurance concerns:
• Risk of liability
• Other problems?

August 11, 2017 45

Practical Problems (Cont’d.)

• Scenario: In-the-field employee voluntarily

tells manager (who informs superiors) that employee has a medical marijuana card:

– What are employer’s concerns?

• Can employer subject employee to a test?
• No immediate supervision in the field

(thus, hard to conduct reasonable suspicion test)

• If accident occurs, is employer liable for

knowing that employee is marijuana user?

August 11, 2017 46

Unemployment Compensation Benefits Denied:

• Claimant (CDL driver) who tested positive

for medical marijuana on random mandatory /regulated federal DOT drug test is disqualified from receiving unemployment compensation benefits.

• MRO confirmed positive test pursuant to

federal regulations (i.e., did not change result to negative).

• Claimant discharged pursuant to federal law.
• CT medical marijuana law did not apply.

See Meade v. City of New Haven, Board Case No. 340-BR-17 (5/26/17).

August 11, 2017 47

Rhode Island Case

• Employee required by employer to take

(non-mandatory/regulated) pre-employment drug test;

• Employee tested positive for marijuana;
• Employer’s policy prohibited drug use on property;
• Employer did not hire the employee solely due

to employee’s status as medical marijuana cardholder;

• Employee sued the employer
• Court decision: held for Employee under state law

Callaghan v. Darlington Fabrics Corp., et al., No. PC-2014- 5680 (R.I. Super. Ct., May 23, 2017)

August 11, 2017 48

Michigan Case

• Wal-Mart employee obtained certification card;
• Employee failed mandated /regulated post-accident

test (after twisting knee while pushing a cart);

• Wal-Mart fired the employee based solely on his

status as a marijuana card holder;

• Semi-ambiguous language of MI statute prohibited

discrimination “by a business or occupational or professional licensing board…”

• Court decision: state law protections did not apply

to a private company, only to adverse actions by the state (“business licensing board”).

• Casias v. Wal-Mart Stores, Inc., 695 F.3d 428

(6th Circuit Court of Appeals) 9/19/12

August 11, 2017 49

Michigan Case

• Wal-Mart employee obtained certification card;
• Employee failed mandated /regulated post-accident

test (after twisting knee while pushing a cart);

• Wal-Mart fired the employee based solely on his

status as a marijuana card holder;

• Semi-ambiguous language of MI statute prohibited

discrimination “by a business or occupational or professional licensing board…”

• Court decision: state law protections did not apply

to a private company, only to adverse actions by the state (“business licensing board”).

• Casias v. Wal-Mart Stores, Inc., 695 F.3d 428

(6th Circuit Court of Appeals) 9/19/12

August 11, 2017 50