Marijuana & The Workplace 2018 Legal Update

1. Marijuana & The Workplace2018 Legal Update March 14, 2018 178 Court Street Auburn, ME 04210 msm@malloyfirmmaine.com www.malloyfirmmaine.com 207-312-9239 Presented by Michael Malloy, Esq.

2. Today’s Topics • Medical Marijuana • “Adult Use” Marijuana • Employee and Employer Rights • Drug Testing The New Year begins as an Artic Low blasts the entire nation! …With the exception of the High developing over several states.

3. Not a Focus Today, but Important • Municipal Regulation and Zoning of MJ • Dispensary licensing and operations • State Licensing Procedures • Taxation of Marijuana • All the nuances of federal drug testing specific to individual workplaces

4. Not a Focus Today, but Important (cont’d) • Marijuana and firearms • Immigration Consequences • OSHA • ADA and Rehabilitation Act • Maine Human Rights Act

5. First: Lest We Forget Title 17-A/Sched. Z. Possession Offenses Plus trafficking offenses for cultivation Source: 17-A M.R.S. s. 1107-A(1)(F)

6. Maine Criminal Penalties Source: 17-A M.R.S. s. 1107-A(2)

7. Federal Criminal Penalties • Controlled Substances Act prohibits all manufacture, distribution, and possession of a CS unless expressly authorized. • Only authorized use of marijuana is for a preapproved FDA study. • Schedule I Drugs • High Potential for Abuse • No Accepted Medical Use • No Accepted Safe Means of Use in Medically Supervised Treatment

8. Judicial Guidance • Gonzales v. Raich, 541 U.S. 1 (2005) California Compassionate Use Act of 1996 • Up to 8 oz. of dried mj • Up to 6 mature plants • Up to 12 immature plants • Doctor can recommend more • Cities and counties can allow more Exempts physicians, patients, primary caregivers, from criminal prosecution under CA law.

9. Gonzales v. Raich • No violation of CA law. • DEA seizes 6 plants, standoff • DJ • Commerce Clause

10. Gonzales v. Raich • “limiting the activity to marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is ‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’ however legitimate or dire those necessities may be.” 545 U.S. at 29.

11. Medical Marijuana in Maine • History • Today • Who Can Do What • Key Definitions • What Employers Need to Know

12. Medical Marijuana: History • 1998 – Defense Against Prosecution. The Gonzales era. • 2009 – Basic Framework We Have Today • 2018? – More Changes On Way. Changes daily.

13. What can a Qualifying Patient do? • “Qualifying Patient” • * possess up to 2.5 ozs of prepared • * up to 6 mature (flowering) plants • * “harvested marijuana in varying stages of processing” to insure no interruption. • * paraphernalia • * give and receive up to 2.5 ozs. with another QP • * designate primary caregiver to grow it for you • * “accept excess prepared marijuana from a primary caregiver” if you don’t pay for it.

14. QP’s “from Away” • A qualifying patient who is visiting the State from another jurisdiction that authorizes the medical use of marijuana pursuant to a law recognized by the department who possesses a valid written certification as described in section 2423-B from the patient's treating medical provider and a valid medical marijuana certification from that other jurisdiction and photographic identification or a driver's license from that jurisdiction may engage in conduct authorized for a qualifying patient under this chapterMe. Rev. Stat. tit. 22, § 2423-D

15. What can a Registered Caregiver do? • 2.5 ozs. prepared per qualifying patient • Up to 6 plants per patient • Maximum of 5 patients • “reasonable monetary compensation for costs associated with assisting a qualifying patient who designated the primary caregiver.” or for cultivation on behalf of a QP. • Prepare MJ food.

16. Medical MJ: Key Def’s “Cardholder” means a qualifying patient, a registered primary caregiver, an employee of a registered primary caregiver or a principal officer, board member or employee of a registered dispensary or a marijuana testing facility who has been issued and possesses a valid registry identification card.

17. “Debilitating Medical Condition” A. Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, agitation of Alzheimer's disease, nail-patella syndrome or the treatment of these conditions; B. A chronic or debilitating disease or medical condition or its treatment that produces intractable pain, which is pain that has not responded to ordinary medical or surgical measures for more than 6 months; C. A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe nausea; or seizures, including but not limited to those characteristic of epilepsy; D. Any other medical condition or its treatment as provided for in section 2424, subsection 2; or E. Post-traumatic stress disorder, inflammatory bowel disease, dyskinetic and spastic movement disorders and other diseases causing severe and persistent muscle spasms.

18. More Key Definitions • “Medical use” means the acquisition, possession, cultivation, manufacture, use, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a qualifying patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition. • “Qualifying patient” or “patient” means a person who has been diagnosed by a medical provider as having a debilitating medical condition and who possesses a valid written certification regarding medical use of marijuana in accordance with section 2423-B.

19. More Key Definitions • “Registered primary caregiver” means a primary caregiver who is registered by the department pursuant to section 2425, subsection 4. • “Registered patient” means a qualifying patient who is registered by the department pursuant to section 2425, subsection 1. • “Registry identification card” means a document issued by the department that identifies a person as a registered primary caregiver, an employee of a registered primary caregiver or a principal officer, board member or employee of a dispensary or a marijuana testing facility.

20. What should employers know about medical? • 1. Rights of persons or entities acting pursuant to this chapter. A person whose conduct is authorized under this chapter may not be denied any right or privilege or be subjected to arrest, prosecution, penalty or disciplinary action, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for lawfully engaging in conduct involving the medical use of marijuana authorized under this chapter. • Me. Rev. Stat. tit. 22, § 2423-E

21. Non-Discrimination Provision - Medical • 2. School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person's status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises. • Me. Rev. Stat. tit. 22, § 2423-E

22. What Medical Marijuana Doesn’t Protect • 22 M.R.S. s.2246 – Scope • negligence of professional malpractice, violation of professional standards • no use on school bus, at schools, in correctional facilities * (unless minor using in non-smokable fashion as administered by parent) • no use on public transportation • no “in any public place” • no OUI in vehicle, aircraft, motorboat, snowmobile, ATV • anyone who’s not a QP, caregiver, dispensary, or other expressly authorized

23. What Medical Marijuana Doesn’t Protect • This chapter may not be construed to require: • A. A government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana; or • B. An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana. • 22 M.R.S. s. 2426(2)

24. What Medical Marijuana Doesn’t Protect • 3-A. Penalty for fraud. Fraudulent misrepresentation regarding lawful possession or medical use of marijuana and fraudulent procurement under this chapter are governed by this subsection. • A. A person who misrepresents to a law enforcement official any fact or circumstance relating to the possession or medical use of marijuana under this chapter to avoid arrest or prosecution commits a civil violation for which a fine of $200 must be adjudged. • B. A qualifying patient who obtains marijuana from more than one source with the result that the person receives more than 2 ½ ounces of prepared marijuana in a 15-day period commits a civil violation for which a fine of $200 must be adjudged. • Me. Rev. Stat. tit. 22, § 2426(3-A)

25. Recreational 2016 Ballot Initiative: Question 1 Do you want to allow the possession and use of marijuana under state law by persons who are at least 21 years of age, and allow the cultivation, manufacture, distribution, testing, and sale of marijuana and marijuana products subject to state regulation, taxation and local ordinance?

26. Recreational 2016 Ballot Initiative: Question 1 7 M.R.S c. 417 – Marijuana Legalization Act – adopted by voters. LD 88 (Jan 27, 2017) - Moratorium to February 1, 2018

27. Maine Marijuana Legalization Act (for now) Overview • Individuals 21+ can • Use, possess, and transport up to 2.5 oz. of “prepared marijuana” • Possession of up to 6 “flowering” plants, 12 “immature plants” and unlimited seedlings “at the adult’s residence” • Buy up to 2.5 oz. from a retail store (once stores are authorized) • Buy up to 12 seedlings/immature plants from cultivation facility • Grow at home – up to 6 flowering plants, screened from public visibility

28. Maine Marijuana Legalization Act (for now) Impact on Employers • New Law Specifically States Employers Not Required to Allow at Work: (2). Employment Policies. This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.” - 22 M.R.S. s. 2454(2)

29. BUT – Employees on their own time…[Rec] • “A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.” – • 7 M.R.S. s. 2454(3) (emphasis added).

30. Maine Marijuana Law: Use • “A person may consume marijuana in a nonpublic place including a private residence.” [Doesn’t define “public place”] • BUT - Can’t smoke where tobacco smoking is already prohibited (nothing says can’t take through other means) • Not on federal property

31. Where Smoking is Already Prohibited • “Smoking is prohibited in all enclosed areas of public places, outdoor eating areas . . . And all restrooms made available to the public.” 22 M.R.S. s.1542(1). • But exceptions for public places when closed to the public, up to 1 hour before opening; for smoking by the during stage performances (only by the performer as part of performance), and for religious purposes.

32. Smoking at work: 22 M.R.S. s.1580-A “Each employer shall establish, or may negotiate through the collective bargaining process, a written policy concerning smoking and nonsmoking by employees in that portion of any business facility for which the employer is responsible . . .” (emphasis added”)

33. Smoking at work: Defining “Business Facility” “a structurally enclosed location or portion thereof at which employees perform services for their employer. A business facility does not include any workplace or portion of a workplace that also serves as the employee’s or employer’s personal residence. A business facility is a place of employment. . . . A residential facility, nursing home or hospital is a business facility.”

34. Smoking at work: 22 M.R.S. s.1580-A “In order to protect the employer and employee from the detrimental effects of smoking by others, the policy must prohibit smoking indoors . . ., prevent environmental tobacco smoke from circulating into enclosed areas and prohibit smoking indoors except in designated smoking areas. The policy may prohibit smoking throughout the business facility, including outdoor areas.”

35. Anti-Smoking Policies • Policy must be posted by employer. • Give copies to employees – handbooks • Employers face exposure to up to $100-$1500 fine for failure to develop and enforce anti-smoking policy.

36. Moratorium Still on Hold Until Augusta Makes Some Decisions (regulation dependent) • MJ social clubs • Retail sales • Independent testing and certification regime

37. Moratorium • Not on hold – legal since 1/30/17: • Possession of up to 2.5 oz. by anyone 21 or older • Giving it away, by an adult to an adult – up to 2.5 oz. or up to 6 immature plants or seedlings. • Growing it – up to 6 flowering, 12 immature plants, unlimited seedlings. • Can have entire yield of these plants at home • Use by anyone 21 or older in a private residence

38. Moratorium – Expired. • Employer/Landlord Nondiscrimination Provision • Possession of Edibles • Consumption “in a nonpublic place” now allowed.

39. LD 1719 – Pending – Some highlights for Employers • Would shift from Title 7 to Title 24-B. • Better Employer Protections – proposed 24-B M.R.S. s. 112. Employment Policies • Participating Municipality Requires Opt-In by Legislative Body of Municipality • No home extraction using inherently dangerous methods

40. Proposed Employer Protections in LD 1719 • “Notwithstanding any provision of this chapter or chapter 3 to the contrary, an employer: • 1. Marijuana in the workplace. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana in the workplace. • 2. Workplace policies regarding marijuana use. May enact workplace policies restricting the use of marijuana and marijuana products by employees; and • 3. Discipline of employees. May discipline employees who are under the influence of marijuana in the workplace in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.” • L.D. 1719, s. 112 (http://www.mainelegislature.org/legis/bills/bills_128th/billtexts/HP119901.asp • last accessed February 13, 2018)

41. Compare Citizen-Initiated Law: • 2. Employment policies. This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. • 3. School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside of the school's, employer's or landlord's property. • 7 M.R.S. § 2454 • Note: NO DEFINITION OF “UNDER THE INFLUENCE”

42. Judicial Guidance • Thomas v. Adecco

43. Judicial Guidance • Savage v. Maine Pretrial Services, Inc. 2013 ME 9, 58 A.3d 1138 • Applying for dispensary license is not within scope of nondiscrimination provision.

44. No Private Right of Action: • 1. Rights of persons or entities acting pursuant to this chapter. A person whose conduct is authorized under this chapter may not be denied any right or privilege or be subjected to arrest, prosecution, penalty or disciplinary action, including but not limited to a civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for lawfully engaging in conduct involving the medical use of marijuana authorized under this chapter. • Me. Rev. Stat. tit. 22, § 2423-E

45. Savage – limited protection • 2. School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person's status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises. • Me. Rev. Stat. tit. 22, § 2423-E

46. Savage – other lessons • Watch out for pretext and inconsistent application of workplace policies – general HR guidance. • Selective enforcement of attendance, dress codes? • Policies, counsel, patience?

47. Judicial Guidance • Coats

48. Prosecutorial Discretion • DOJ Priorities Under the Cole Memos (2009, 2011, 2013) • Preventing the distribution of marijuana to minors • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;

49. Prosecutorial Discretion • DOJ Priorities Under the Cole Memos Cont’d •  Preventing violence and the use of firearms in the cultivation and distribution of marijuana; • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and • Preventing marijuana possession or use on federal property.

50. Prosecutorial Discretion – from the Cole Memos … Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.