Managing Workplace Safety: Addressing the Use of Medical Marijuana, Drugs and Alcohol in the Workplace

1. Managing Workplace Safety:Addressing the Use of Medical Marijuana, Drugsand Alcohol in the Workplace Maine Society for Healthcare Human Resources Administration September 9, 2011 PRESENTED BY: Peter Lowe David Ciullo

2. Contact Information David Ciullo President, CMA-Career Management Associates dciullo@cmacareer.com (T) 207.780.1125 (C) 603.303.6124 72 Pine Street Portland, ME 04102 • Peter Lowe Partner, Brann & Isaacson plowe@brannlaw.com • (T) 207.786.3566 • 184 Main Street, 4th Flr. • P.O. Box 3070  • Lewiston, ME 04243

3. Presentation Outline • Impairment in the Workforce – Facts & Figures • Maine’s Medical Marijuana Law • Maine’s Drug Testing Law • Brainstorming • Case Studies

5. Maine’s New State Seal?

6. IMPAIRMENT IN THE WORKFORCE

7. Drug & Alcohol Impairment in America’s Workforce • In 2007, 8.4% of full-time employees in U.S. used illicit drugs • 8.8% reported heavy alcohol use • 3.1% of workers admitted to using drugs before or during work hours in the previous year • 2.9% worked under the influence of an illicit drug

8. Drug & Alcohol Impairment in Maine’s Workforce • In 2008, 4% of tested job applicants tested positive for cannabinoids • Nearly 3% of random employee tests showed positive results for cannabinoids • The construction and trade industries had the highest rates of positive test results at 5.6% each • Cannabinoids represented 84.2% of all positive drug tests • At the end of 2008, the Maine Department of Labor had approved 384 drug testing policies

9. Effects of Drug & Alcohol Impairment in the Workplace • Danger to employees & public • Increased workplace accidents • Increased absences • Decreased productivity

10. The Maine Medical Use of Marijuana Act • Becoming a registered patient • Obtaining medical marijuana • Rules governing possession, and use of medical marijuana

11. Registration Process • Authorized patients must have written certification from physician • On tamper-resistant paper • Signed by physician • Good for one year only • Applicants may also register with the state as a “Registered Patient”

12. DHHS Registry Card

13. Becoming a Qualifying Patient • Physicians may • submit a physician certification form • Opinion that person gets therapeutic benefit • Expires 1 year after issuance • In form required by state and require statement of specific medical condition • only recommend the use of medical marijuana in the course of a bona fide physician-patient relationship, evidenced by: • Evaluation • Treatment plan • Periodic review and documentation

14. Becoming a Qualifying Patient • Cancer • Glaucoma • HIV/AIDS • Hepatitis C • Amyotrophic lateral sclerosis • Crohn’s disease • Agitation of Alzheimer’s disease • Nail-patella syndrome • Intractable pain • Seizures (not limited to those associated with epilepsy) • Severe and persistent muscle spasms (not limited to those characteristic of multiple sclerosis) • Cachexia or wasting syndrome • Severe nausea • Any other medical condition that is approved by the commissioner Qualifying Medical Conditions

15. Becoming a Qualifying Patient Physician Certification Form [ Form to be replaced? ]

16. Becoming a Qualifying Patient Physician Certification Form

17. Here are the Numbers! • Since January 2011 there are: 1. Over 750 Certified Medical Marijuana Users 2. Over 400 Certified Caregivers 3. 4 of the 8 authorized dispensaries are open for business

18. Obtaining Medical Marijuana • Marijuana may be cultivated by: • Patients • Primary Caregivers • Dispensaries

19. Primary Caregivers Obtaining Medical Marijuana • Designated by the patient • Must register with the state unless growing for a family member • Minor patients must have parent or legal guardian as primary care giver but may also designate second caregiver • Nursing facilities and hospice providers may serve as registered caregivers.

20. Obtaining Medical Marijuana • May assist up to 5 patients at one time • May possess up to 2 ½ ounces of prepared marijuana for each patient • May cultivate up to 6 marijuana plants for each patient. • May receive reasonable monetary compensation for assisting patients and cultivating marijuana Primary Caregivers

21. Obtaining Medical Marijuana • One registered dispensary in each of the 8 Public Health Districts in Maine • Dispensaries may not be within 500 feet of a school. • Dispensaries must be non-profit Dispensaries

22. Obtaining Medical Marijuana • May possess up to 2 ½ ounces of prepared marijuana per patient • May cultivate up to 6 marijuana plants per patient • No more than 2 ½ ounces may be distributed to any one patient in a 15 day period • May receive reasonable monetary compensation for assisting patients and cultivating marijuana Dispensaries

23. Rules Governing Possession & Use • The Maine Medical Use of Marijuana Act regulations prohibit - Undertaking any task under the influence of marijuana when doing so would constitute negligence or professional malpractice

24. Rules Governing Possession & Use • The Maine Medical Use of Marijuana Act regulations Prohibit - • Possessing marijuana • In a school bus • At a school • In a correctional facility

25. Rules Governing Possession & Use • The Maine Medical Use of Marijuana Act regulations prohibit - I sure wish I could light one up right now! • Smoking marijuana • while on public transportation • in any public place

26. Rules Governing Possession & Use • The Maine Medical Use of Marijuana Act regulations Prohibit - Operating a motor vehicle, aircraft, motorboat, snowmobile, or all-terrain vehicle while under the influence of marijuana

27. Rules Governing Possession & Use • The Maine Medical Use of Marijuana Act Prohibits - Use of marijuana by a person who does not have a qualifying debilitating medical condition

28. Confidentiality Confidential: 1) Patient applications 2) Caregiver applications 3) List of registered cardholders Not Confidential: Applications for dispensary registration (with the exception of patient information contained in applications)

29. Medical Marijuana User Protections • THE STATUTE : • A[n] employer . . . may not refuse to . . . employ . . . or otherwise penalize a person solely for that person’s status as a qualifying patient or a primary caregiver. 22 MRSA § 2423-E(2).

30. Medical Marijuana User Protections • DHHS REGULATIONS: • “A person whose conduct is authorized under these rules may not be subjected to… disciplinary action, including disciplinary action by a business… for lawfully [using medical marijuana].”

31. BUT - There Are Limitations • Conflict with Federal requirements: • An employer may not discriminate “unless failing to do so would put the . . . employer . . . in violation of federal law or cause it to lose a federal contract or funding.” • E.g. DOT regulated positions DOPE LIMIT

32. More Limitations • Workplace Consumption: • Can impose “a restriction on the administration” of marijuana on the premises when “inconsistent with the general use of the premises” • May refuse to accommodate the ingestion of marijuana in the workplace I took a bong hit an hour ago and got the munchies. These Keebler guys always have food.

33. The Biggest Limitation • Under the Influence: • “These rules [don’t require] an employer to accommodate… any employee working while under the influence of marijuana.”

34. Good News From Other States • Most states have found that employees who are medical marijuana users are not protected from discharge: • Ross v. Ragingwire Telecommunications (Cal.) – terminating medical marijuana user does not violate state discrimination law • Freightliner v. Teamsters Local 305 (Ore.) – CBA upheld prohibiting employees from having drugs in their systems • Roe v. Teletech Customer Care Management (Wash.) – no cause of action for terminated employee under Medical Use of Marijuana Act • Johnson v. Columbia Falls Aluminum Co. (Mont.) – termination for medical marijuana use didn’t violate human rights act

35. MICHIGAN – Cassias v. WalMart • Unlike Maine, California, Oregon, Washington & Montana’s statutes had no specific employee protections • Maine hoped for guidance from Michigan Courts in Cassias v. Walmartbecause Michigan’s Medical Marihuana Act is more similar to Maine’s • But the Michigan court dodged the issue and found that the Michigan statute did not apply to private employers

36. MHRA/ADA Concerns • Might be protected under MHRA • Likely not specifically protected by ADA • ADA does not protect workers engaged in illegal drug use • Marijuana use is still illegal under federal law • However, if underlying medical condition is a “disability,” it might still require some accommodation

37. Uncle Sam Chimes In You better follow the rules! On May 18, 2011 the U.S. Attorney for Maine sent a letter that stated: “while the department does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law ... we will enforce the (Controlled Substances Act) vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”

38. MAINE’S DRUG TESTING LAW

39. Maine’s Drug Testing Law - Policies • Cannot drug test without a policy approved by the Maine Department of Labor • Must closely conform to Model Policy • Change in the law effective Sept. 2011 • Can only drug test: • Applicants • Employees for probable cause • Employees at random/ arbitrary testing

40. Maine’s Drug Testing Law – Probable Cause • Probable cause means a reasonable belief that an employee may be under the influence of a substance of abuse • Cannot be based only on: • Anonymous tip • Information that employee used or possessed off duty unless observed using or possessing either at work or in proximity of work, during or immediately before work • A single work-related accident

41. Maine’s Drug Testing Law – New Exception • Employers can now use federal drug testing policy if have federally-covered employees (e.g. DOT mandatory testing) • Federal drug testing much more lenient: • Different testing procedures • Can test after accident • No requirement to pay for rehabilitation for positive test

42. DEFINING IMPAIRMENT AND “UNDER THE INFLUENCE”

43. BRAINSTORMING SESSION • Physical characteristics • Behavior • Performance

44. Case Study #1 • Ned • Ned works in maintenance at a hospital • Ned is a medical marijuana user • His post-offer drug test comes back positive for marijuana • The company is notified by the MRO (Medical Review Officer) that: • 1. His test was a verified “Negative” • 2. His test was “positive for marijuana” but he is certified as a medical marijuana user in Maine

45. Case Study #2 • Jimmy & Billy • They are both exceptional employees – nurses • It comes to light that they recently used marijuana at an after work event • Jimmy shows you his medical marijuana registration card and swears that he only smokes according to his doctor’s recommendation • Billy insists that it was his first time using since college

46. Case Study #3 Joey & Jessie • Work in a nursing home kitchen • They are both a bit “off” at work on Sunday evening • It turns out that they were at a friend’s house for a football game earlier in the afternoon • Joey admits to having a “beer or two” • Jessie “might” have smoked marijuana because his back was bothering him; he shows you his medical marijuana card and insists that he did nothing illegal

47. Case Study #4 • Mary • Mary has a compensable work related injury for chronic low back pain. She does not respond to traditional medical care and elects to treat with a non-preferred provider who readily supports medical marijuana use for her chronic pain and her provider qualifies her for medical use of Marijuana. • 1. Does the insurer cover the costs for her marijuana use? • 2. After demonstrated benefit?

48. QUESTIONS