High Times in the Old Dominion Presented by: Anne G. Bibeau, Esq. - - PowerPoint PPT Presentation

High Times in the Old Dominion

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Presented by: Anne G. Bibeau, Esq.

Agenda

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• Current status of marijuana in Virginia
• Americans with Disabilities Act
• Drugfree Workplace Act for federal contractors
• Marijuana elsewhere
• Workers’ Compensation
• Best practices

Terminology

• Cannabis sativa L. – the marijuana plant.
• Cannabinoid – a class of chemical compounds found in

cannabis.

• Cannabidiol (“CBD”) – one of more than 80 active

chemicals in marijuana.

• THC – tetrahydrocannabinol (chemical name (−)-trans-Δ⁹-

tetrahydrocannabinol). This is the principle psychoactive component of cannabis.

• Decriminalization – replace jail sentences with civil fines.
• Legalization – eliminate all penalties for marijuana

possession.

It’s not 4:20 in

• Virginia. Yet.
• 2015: Virginia law allowing use of

cannabis oils to treat intractable

• epilepsy. No provision for production
• r for patients to obtain a doctor’s

permission.

• 2017: Virginia approved in-state

production of medical cannabis oil by five providers, one per Health Service

• Area. Approved, licensed

“pharmaceutical processors” to grow, extract, dispense, and deliver medical cannabis oils, all on site.

• 2018: Virginia expanded medical

cannabis oil program to any diagnosed condition.

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The Affirmative Defense

• The new Virginia law provides an affirmative defense for
• possession. It does not make possession legal.
• Affirmative defense applies to oil products only – not to flower or
• ther products or oil outside the allowable cannabinoid ratios.
• Oil must contain at least 5mg/mL CBD or at least 5mg/mL

THCA-A and may contain no more than 5% THC.

• Patient must have valid written certification from a board-

registered physician and a current active patient and/or caregiver registration issued by the Board of Pharmacy. ($50 fee.)

• Pharmaceutical processors will become operational in late 2019.

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Legalization in VA? Not now.

• Governor Northam and many Democratic senators and

delegates favor decriminalization of marijuana.

• General Assembly bills to legalize and decriminalize marijuana

have been proposed and killed.

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Federal Law – The Controlled Substances Act

• Controlled Substances Act – law regulating the manufacture, importation,

possession, use, and distribution of certain substances. The Act imposes penalties for unlawful manufacturing, distribution, and dispensing of controlled substances.

• The Act places all regulated substances into one of five schedules based
• n the substance’s medical use, potential for abuse, and safety or

dependence liability.

• Schedule I. The drug or substance has a high potential for abuse and has

no currently accepted medical use in treatment in the United States. There is a lack of accepted safety for use of the drug or substance under medical supervision.

• Schedule I examples: heroin, gamma hydroxybutyric acid (GHB), lysergic

acid diethylamide (LSD), methaqualone, and marijuana.

2018 Farm Bill and Industrial Hemp

• Effective Jan. 1, 2019, legalizes cultivation and sale of industrial

hemp at federal level.

• Hemp and hemp-derived products are removed from Controlled

Substances Act.

• States have authority to regulate production/sale of hemp and hemp

products within their borders.

• Hemp is a variety of the Cannabis sativa L. that contains not more

than 0.3% THC by dry weight.

• Marijuana is a different variety of the Cannabis sativa L. plant and

contains high concentrations of THC. Marijuana is still a Schedule I drug.

• CBD may be derived from either variety of the Cannabis sativa L.

plant.

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Food & Drug Administration

• It’s illegal to market any CBD product (from hemp or marijuana) as

having therapeutic benefits or as a dietary supplement unless the FDA has reviewed and approved it.

• FDA approves drugs only after determining that the drug is safe and

effective for its intended indication.

• Approved:
• Epidiolex - contains CBD. For the treatment of seizures associated with

Lennox-Gastaut syndrome or Dravet syndrome.

• Marinol and Syndros – contains dronabinol, a synthetic form of THC. For

therapeutic uses, including the treatment of anorexia associated with weight loss in AIDS patients.

• Cesamet - contains nabilone, a synthetic form of THC. For the treatment of

the nausea and vomiting associated with cancer chemotherapy.

Bu But y you

• u c

can an b buy CBD CBD

• i
• il on

l onlin line!!! !!!!!! !!!

• That doesn’t make it legal.
• Several sites claim to sell the BEST

and MOST EFFECTIVE CBD oil and ship it to your house.

• There are NO testing regulations for

these products and NO way to know whether they are safe or effective, how much CBD is in the oil, and whether any CBD comes from industrial hemp or marijuana.

What does this mean for employers?

• Drug testing typically reveals THC, not CBD. But even

hemp-based CBD may contain trace amounts of THC.

• Drug testing will show whether the individual

consumed THC within the last several weeks. It does not show whether the individual is currently impaired.

• Employee using CBD oil may be entitled to an

accommodation under the ADA for the underlying medical condition.

• Is the employee also entitled to an accommodation for

CBD use? What if it’s derived from industrial hemp?

• Virginia law does not provide any protection in

employment for cannabis use.

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Americans with Disabilities Act

• Applies to employers with 15 or more employees
• Prohibits employment decisions based on disability if the

individual is qualified to perform the essential functions of the job, with or without a reasonable accommodation.

• Exception: if disabled individual poses a direct threat that cannot be

eliminated by reasonable accommodation.

• Requires employers to provide reasonable accommodations to

employee’s/applicant’s disabilities, unless such accommodation creates an undue burden for the employer.

ADA: direct threat

• Direct threat = “a significant risk to the health or safety of others

that cannot be eliminated by reasonable accommodation.”

• The determination that an individual with a disability poses a

direct threat must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Factors:

• 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.

ADA: definition of disability

• A physical or mental impairment that substantially limits* one
• r more major life activities of such individual;
• A record of such an impairment; or
• Being regarded as having such an impairment.

*An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”

ADA: definition of qualified individual

• One who, with or without an accommodation, can perform the

essential job functions.

ADA and Illegal Drugs

• Anyone who is “currently engaging” in the illegal use of drugs is

not a “qualified individual with a disability.”

• The term “qualified individuals” does include those who:
• have been successfully rehabilitated and are no longer engaged in the

illegal use of drugs;

• are currently participating in a rehabilitation program and are no longer

engaging in the illegal use of drugs; and

• are regarded, erroneously, as illegally using drugs.
• EEOC Guidance: “[A] person who casually used drugs illegally in

the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be ‘substantially limited’ because of drug use, s/he must be addicted to the drug.”

ADA: what is “current”?

The EEOC has defined “current” to mean that the illegal drug use

• ccurred “recently enough” to justify the employer’s reasonable

belief that drug use is an ongoing problem.

• If an individual tests positive on a drug test, he or she will be

considered a current drug user, so long as the test is accurate.

• Current drug use is the illegal use of drugs that has occurred

recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem.

• “Current” is not limited to the day of use, or recent weeks or

days, but is determined on a case-by-case basis.

ADA Interactive Process

• Employer should engage in an informal, interactive process with

the disabled individual to identify the precise limitations and potential accommodations.

• The individual must request an accommodation, but does not

have to mention ADA.

• The employer may ask for documentation about the disability,

functional limitations, and what aspect of the workplace is a

• barrier. The employee does not have to specify a precise

accommodation.

ADA Interactive Process, cont’d

An employer must consider each request for a reasonable accommodation to determine:

• Whether the accommodation is needed;
• If needed, whether the accommodation will be effective; and
• If effective, whether providing the accommodation will impose

an undue hardship on the employer.

No ADA Protection for Illegal Drug Use

James v. City of Costa Mesa (9th Cir. 2012)

• Plaintiffs sued two California cities that had closed medical

marijuana facilities, claiming that the cities violated ADA’s Title II, which prohibits states/localities from discrimination on the basis of disability in the provision of public services.

• Held: Marijuana use under a doctor’s supervision in accordance

with state law is not protected under the ADA.

• ADA excludes illegal drug users from its definition of qualified

individuals with a disability.

• Medical marijuana may be legal under CA law, but it is illegal under the

federal Controlled Substances Act.

Sta tate te L Laws

• Recreational use legal in 10

states

• Medical use legal in 33

Marijuana laws and employment

• Some states provide for employment protection for marijuana
• use. E.g., Alaska, Arizona, Delaware, Minnesota, Rhode Island,

Connecticut.

• In those states, employers cannot fire/discipline an employee

for testing positive for marijuana if they are qualified medical marijuana users.

• Employers in those states can fire employees for working under

the influence or using marijuana at work.

• How do you tell if an employee is under the influence of

marijuana?

AZ: Whitmire v. Wal-Mart Stores Inc. (2019)

• Arizona Medical Marijuana Act (“AMMA”) prohibits employment

discrimination based on registered qualifying patient’s positive drug test for marijuana, unless the employee used, possess, or was impaired by marijuana at worksite or during work hours.

• Employee, who had AZ medical marijuana card, smoked medical

marijuana as sleep aid and for chronic pain due to arthritis. She claimed she never brought it to work and was never impaired during work hours.

• Post-accident drug test: positive for marijuana metabolites at

quantitative value of >1000 ng/ml. Employer determined that the test results indicated employee was impaired during her shift and terminated her employment for violation of drug policy.

• Employee filed suit alleging wrongful termination in violation of AMMA.
• HELD: Employer needs to present expert witness to testify as to

whether the amount of marijuana metabolites indicates impairment.

CA: Ross v. Ragingwire Telecomm (2008)

• Plaintiff used medical marijuana for chronic pain, as

recommended by his doctor.

• Plaintiff was fired based on preemployment drug test.
• Plainiff sued employer for disability discrimination under

California’s Fair Employment and Housing Act.

• Held: No state law could completely legalize medical marijuana

use because the drug remains illegal under federal law. There is no employment protection under California’s Compassionate Use Act.

CO: Coats v. Dish Network (2015)

• Colorado’s Medical Marijuana Amendment (2014) permits

medical marijuana use.

• Colorado law makes it an unfair and discriminatory labor

practice to discharge an employee based on employee’s “lawful” outside-of-work activities. C.R.S. § 24-34-402.5.

• Plaintiff claimed that employer fired him for using medical

marijuana at home, during non-work time, and that such use is “lawful” and therefore protected by Colorado law.

• Held: Medical marijuana use is not a “lawful” activity under

C.R.S. § 24-34-402.5 because it is illegal under federal law.

MA: Barbuto v. Advantage Sales & Marketing (2017)

• Massachusetts Medical Marijuana Act decriminalizes medical marijuana but

does not provide employment protection.

• Employee, who took medical marijuana for Crohn’s disease, accepted a job
• ffer contingent upon passing a drug test. She told her new employer that she

would test positive for marijuana, but the supervisor said it would be OK.

• She failed the drug test and was terminated.
• The employer argued that it was following federal law prohibiting marijuana.
• HELD: Because employee had a disability, under Massachusetts law the

employer had a duty to engage in the interactive process to determine if there was a reasonable accommodation to help her perform the job. The court also insinuated that an employer should determine whether a medical marijuana user could treat his or her medical condition with a different medicine instead

• f medical marijuana.

RI RI: Callaghan v

• v. Darlington Fa

Fabrics (2017 2017)

• Employer rejected job applicant who was a

registered medical marijuana user based on pre- employment drug test.

• Court: “To adequately perform its task, this Court

must wade into the weeds of the law of private rights of action, federal preemption, and statutory

• interpretation. Hopefully, it will not write out of key
• r analyze out of tune.”
• RI law prohibits employment discrimination on the

basis of status as a medical marijuana cardholder.

• Federal preemption? Congress has passed spending

amendments “preventing the funds appropriated … to [DOJ] to be used to prevent … states … ‘from implementing their own laws that authorize’” medical marijuana.

• Held: the employer illegally discriminated against

plaintiff by failing to accommodate her medical marijuana use.

NJ: Cotto v. Ardagh Glass Packing, Inc. (N.J. 2018)

• NJ Compassionate Use Medical Marijuana Act decriminalized medical

marijuana.

• Plaintiff (forklift operator) required to take post-accident drug test. He

told his employer that he could not pass because he takes several medically-prescribed drugs, including medical marijuana. Plaintiff had a medical marijuana card.

• Employer placed him on indefinite suspension, explaining that he could

not work again unless he tested negative for marijuana.

• Plaintiff filed suit claiming disability discrimination under NJ’s disability

discrimination law. He argued that he could perform the job and should not be required to take a drug test for marijuana.

• Held: New Jersey law does not require private employers to waive drug

tests for users of medical marijuana. Marijuana is still illegal under federal law.

Other states

• Roe v. TeleTech Customer Care Mgmt. (Wash. 2011): Washington’s

Medical Use of Marijuana Act “does not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use.”

• Casias v. Wal-Mart Stores, Inc. (Mich. 2011): “The fundamental

problem with Plaintiff’s case is that the [Michigan Medical Marijuana Act] does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”

• Garcia v. Tractor Supply Co. (N.M. 2016): New Mexico’s medical

marijuana law does not “combine” with New Mexico’s civil rights statute to require an employer to accommodate medical marijuana.

Ohio

• Statute permitting medical marijuana expressly states that it

does NOT

• Require employer to permit or accommodate employee’s use,

possession, or distribution of medical marijuana;

• Prohibit employer from refusing to hire, discharging, disciplining, or
• therwise taking an adverse employment action against a person

because of that person’s use, possession, or distribution of medical marijuana;

• Prohibit employer from establishing and enforcing a drug testing policy,

drug-free workplace policy, or zero-tolerance drug policy.

Drug-Free Workplace Act of 1988

Applies to businesses with at least one federal contract of more than $100,000. It does not apply to subcontractors. Covered contractors must:

• Inform employees that the unlawful manufacture, distribution, dispensation,

possession, or use of a controlled substance is prohibited in the workplace and specify the consequences for violating this policy.

• Establish a drug-free awareness program to make employees aware of a) the

dangers of drug abuse in the workplace; b) the drug-free workplace policy; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties for drug abuse violations.

• Make an ongoing, good faith effort to maintain a drug-free workplace by meeting

the requirements of the Act.

DFWA, cont’d

• Notify employees that as a condition of employment on a

Federal contract or grant, the employee must a) abide by the drug-free workplace policy; and b) notify the employer, within 5 calendar days, if he or she is convicted of a criminal drug violation in the workplace.

• Notify the contracting agency within 10 days after notice that an

employee has been convicted of a criminal drug violation in the workplace.

• Impose a penalty on—or require satisfactory participation in a

drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.

CT: The DFWA is No Defense.

• CT law prohibits employers from refusing to hire a person or discharging,

penalizing, or threatening an employee solely on the basis of such person’s status as a qualified medical marijuana user. The law provides an exception if discrimination is “required by federal law or required to

• btain federal funding.”
• Noffsinger v. SSC Niantic Operating Company, LLC (CT 2018)
• Federal contractor rejected plaintiff, who was a qualified medical marijuana user,

based on pre-employment drug screen.

• Contractor argued the DFWA requires discrimination based on marijuana usage.
• Held: The DFWA does not require drug testing. . . . Nor does the DFWA prohibit

federal contractors from employing someone who uses illegal drugs outside of the workplace, much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law. That defendant has chosen to utilize a zero tolerance drug testing policy in order to maintain a drug free work environment does not mean that this policy was actually ‘required by federal law or required to obtain federal funding.’

Workers’ Compensation

• In Virginia, WC insurers are required by law to provide a

premium discount of up to 5% to employers that institute and maintain a drug-free workplace program. Each insurer must establish its own discount criteria.

• If an injured worker was terminated from their employment for a

positive drug test, he or she will not be able to collect lost wages if/when the doctor releases them to light duty work (the injured worker does not have a job to return to because of the termination of employment as a result of the positive drug test).

• If the injured worker was under the influence of marijuana at the

time of the injury, the insurer is not responsible for the injured worker’s medical bills.

Virginia: what do you do?

• Employee is a heavy equipment operator. His performance has

been fine. After a workplace accident, you tell him he has to submit to drug testing. He responds: “I’ll test positive. I’m a medical marijuana user.”

Virginia: what do you do?

• An applicant tests positive for THC on a pre-employment drug

screen and claims that …

• She must have been exposed when she was visiting her sister in

Denver last week. OR

• She’s a medical marijuana user.

Virginia: what do you do?

• Manager Mike wants to send Employee Eve for drug testing.

“She smells like my college dorm room after a Grateful Dead concert and her eyes are red. Plus I know she used to use.”

Virginia: what do you do?

• You drop off some papers on Tim’s desk while he’s at lunch and

notice this next to his keyboard:

Virginia: what do you do?

• Earl requests a meeting with HR. He explains that he is in near

constant pain because of a chronic condition and that his doctor has recommended he try CBD oil. Earl thinks this will allow him to continue working; otherwise, he anticipates he’ll be out more

• ften as his medical condition worsens.

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THANK YOU!

Anne G. Bibeau, Esq. 757.446.8517 ABibeau@VanBlackLaw.com

The information in this presentation is for general information about the topics discussed, and is not legal or tax advice. Nor does any exchange of information associated with this presentation in any way establish an attorney-client relationship.