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Cutting Through the Haze Marijuana in the Workplace

Explore current laws, drug testing challenges, workers' compensation implications, and legal considerations for medical marijuana in the workplace. Get insights for balancing employee rights and business interests.

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Cutting Through the Haze Marijuana in the Workplace

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  1. Cutting Through the Haze Marijuana in the Workplace September 24, 2019 Myra Barsoum Stockett, Esq., Partner, Reminger Co., LPA Stella Skaljac, Esq., SHRM-SCP, ImagineHR, LLC Lisa Brennan, Esq., Executive Claims Examiner, Markel Brian Sammons, Senior Risk Manager, Walmart

  2. Chicagoland Risk Forum

  3. Today’s Session

  4. What are the biggest questions on your mind about Medical Marijuana in the Workplace?

  5. Most Common Questions

  6. Current Landscape for Marijuana in the U.S.

  7. Companies who have federal contracts or receive grant money from the federal government (and state equivalent). DOT-regulated industry positions, such as truck drivers, pilots, pipeline workers, railroad operators (safety sensitive). Federal Law

  8. What’s the Current Buzz?

  9. The Current Buzz (continued)

  10. Private sector drug testing is regulated under state law. There is no comprehensive federal law which regulates private sector drug testing. Testing for marijuana is different than testing for alcohol since alcohol is generally only detectible in a person’s breath, saliva, or blood for 12-48 hours after use. Marijuana is detectible in the urine for 3-30 days, depending on frequency of use, and in a person’s hair follicles for up to 90 days. Drug Testing

  11. Alcohol testing can determine whether a person is “under the influence,” whereas the blood level of cannabis is not directly correlated to impairment level. It is anticipated that additional states will legalize the medical and/or recreational use of marijuana. Given this proliferation of legal pot, it is inevitable that marijuana issues will arise more frequently in the workplace. Drug Testing (continued)

  12. “Medical marijuana is legal now. I have a card and bought marijuana from a licensed dispensary. It’s for medical reasons. You can’t drug test me or discharge me.” What Will Employers Experience?

  13. BWC Reimbursements are typically limited to medications approved by the Food & Drug Administration (FDA). • Marijuana – including Medical Marijuana – is illegal under Federal law and therefore not approved by the FDA. Medical Marijuana and Workers’ Compensation

  14. An Employer with a valid medical marijuana user’s license injured in a work-place accident: • Many States have a “rebuttable presumption” rule. • Rebuttable presumption that being under the influence of marijuana (or any other controlled substance) is the proximate cause of the injury. • An Employee may rebut the rebuttable presumption with evidence that the substance played no role in the injury. • Unsafe working conditions, malfunctioning equipment, guilty co-workers, etc. • In most States, presumption law applies the same way regardless of whether marijuana use is recommended by a physician. • i.e., a positive test triggered by medical marijuana will, absent evidence of an alternate cause for the injury, disqualify an injured worker from receiving workers’ compensation benefits. Workers’ Compensation(Continued)

  15. ADA/FMLA Considerations • Unemployment Benefits • Union Implications Other Legal Considerations

  16. Prior to 2017, court decisions regarding medical marijuana were generally employer friendly. For example, the Colorado Supreme Court ruled that an employer’s termination of an employee for his or her off-duty use of prescribed medical marijuana was permissible because marijuana was illegal under federal law. A Washington federal court ruled that employers were not required to accommodate medical marijuana use in a drug-free workplace, and since marijuana use was illegal under federal law, an employer was not required to provide a reasonable accommodation. Courts Try to Clear the Haze

  17. The Courts Weigh-In

  18. The Courts Weigh-In

  19. Going Forward:States Hash it Out

  20. Going Forward

  21. Who Takes the Hit?

  22. Legal Intentto help people manage pain, symptoms and increase quality of life Business Interestssuch as safety, liability, productivity and reputation/public image Balancing the Blunt

  23. Do You Have an Updated Drug & Alcohol Policy? • Is it Clear and Complete? • Do Your Employees Understand the WHY behind it? • Are You Following it Consistently? Best Practice Considerations

  24. Riding the Wave: Cultural Considerations

  25. Questions?

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