Navigating the Intersection of Employer Policies and Medical Marijuana Use

Exploring the legislation in Connecticut surrounding medical marijuana use in the workplace, this content delves into the balance employers must strike between their policies and accommodating valid certification holders. Key definitions, provisions, and practical considerations are highlighted to provide insights into managing this complex issue effectively.

• Employer Policies
• Medical Marijuana
• Connecticut Legislation
• Workplace Accommodation
• HR Considerations

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1. Finding the balance between employer policies and the use of permitted medical marijuana Stephen C. Lattanzio, Principal Attorney The Connecticut Department of Labor 2/19/20 1

2. Overview of PUMA Highlights of 21a-408 et seq. Definitions Main provisions Interplay with Existing Federal/ State Law Practical HR Considerations Physician s (MRO s) Perspective 2/19/20 2

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 Intent to treat marijuana like any drug: (1) Prohibition Against Adverse Employment Actions Against Valid Certification Holders; and (2) Prohibition of Palliative Use at Workplace by Valid Certification Holders 2/19/20 3

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.) [Will revisit at Slide #14] 2/19/20 4

5. Definitions (cont.) Qualifying Patient - 21a-408(10) Includes minors* 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. *changed by P.A. 16-23 to include minors 2/19/20 5

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. 2/19/20 6

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 Notan employer per 31-51t An employer per 21a-408p(a)(3) DCP has exclusive jurisdiction. 2/19/20 7

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). 2/19/20 8

9. Medical conditions (contd) Currently, there are: 36 conditions for adults; and 10 conditions for minors under 18 years old. 2/19/20 9

10. I. No Adverse Action 21a-408p(b)(3) No employer may refuse to hire a person or 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 classfor Qualifying patients; and Primary caregivers. 2/19/20 10

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? 2/19/20 11

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 federallaw? (See slides beginning at #31.) 2/19/20 12

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 substancesduring work hours. 2/19/20 13

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) 2/19/20 14

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. 2/19/20 15

16. Possession v. Ingestion: (Cont.) 21a-408(6) Includes possession in definition of Palliative use 21a-408a(b) Prohibits palliative use that is ingestion Apparent difference between the words possession and ingestion ? (Yes) 2/19/20 16

17. Use at Workplace (Cont.) Net Effect = Same treatment as any other 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) 2/19/20 17

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 affectsuch employee s job performance Note the use of the present tense language. Observations must be contemporaneous with request to test. 2/19/20 18

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. 2/19/20 19

20. Possession v. Ingestion Current State Drug Testing Law Requires that employee is under the influence of drugs or alcohol which adversely affects or could adversely affectsuch employee s job performance (See Conn. Gen. Stat. 31-51x.) Seems to presume ingestion Seems to require manifestation of symptoms Mere possession is insufficient basis 2/19/20 20

21. Questions (Cont.): May employee use/ingest marijuana off siteduring course of work day? Possibly to the extent that the employee does notbecome under the influence of intoxicating substances at work place. 2/19/20 21

22. Impact to Drug Testing Employer may test (for marijuana) to the same extent as any other legitimately prescribeddrug medications. Reminder: CTDOLonlyregulates urinalysisdrug/alcohol testing. (See Conn. Gen. Stat. 31-51u et seq.) 2/19/20 22

23. Impact to Drug Testing (Cont.) Usual MRO process when Positive (urinalysis) test results for drugs: 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. (See 49 CFR 40.137). Employee must present information , e.g., prescriptions, which form the basis of a legitimate medical explanation for the positive test. 2/19/20 23

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. 2/19/20 24

25. Impact to Drug Testing (Cont.) Forpositivetest results in mandated/ regulated (federal) scenarios: 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). However, certain tested substances have no legitimate medical use: (1) marijuana (federal); (2) heroin; and (3) PCP. Therefore, MRO MAY or MAY NOT disclose existence of drug in employee s system to the employer. Depends on whether there is a legitimate medical explanation 2/19/20 25

26. Added MRO Duty Noteworthy: Even when federal law recognizes the presence of a legitimate drug, i.e., valium, and 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(e)(4)). Without employee s consent, MRO may report drug test results if MRO believes continued performance of safety-sensitive function is likely to pose significant safety risk. (See 49 CFR 40.327). 2/19/20 26

27. MRO Fitness for Duty Language Accompanying a Negative Result Based upon the information learned about the donor's medical history, test results, diagnoses and/or treatment, the MRO has reasonable concerns about the donor's ability to safely perform essential job functions. The MRO strongly urges that the donor undergo a fitness for duty evaluation by a qualified clinician. The MRO will release pertinent information to the examining health professional. 2/19/20 27

28. Non-Federal Context But what about a State mandated/regulated test? State mandated pre-employment/random for school bus drivers (CGS 14-276a(d); OR State 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? (?) 2/19/20 28

29. Marijuana Registration 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 norequirement of a prescription . 2/19/20 29

30. 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? (Depends ) 2/19/20 30

31. Federal Law Federal Law Answer: 49 CFR 40.151(e). [An MRO] mustnot 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.) 2/19/20 31

32. 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. 2/19/20 32

33. 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 2/19/20 33

34. 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. 2/19/20 34

35. Federal Law v. State Law (Contd.) DOT Office* Compliance Notice state initiatives will have nobearing on DOT s regulateddrug 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 2/19/20 35

36. Federal Law v. State Law (Contd.) Noteworthy: Federallaw at odds with state medical marijuana law. Significance: Employee protections from arrest, discharge, penalty, threatening, etc. under state law do NOTapply if federal law applies, i.e., CDL DOT testing, etc. Conn. Gen. Stat. 21a-408p(b) permits employers to follow federal law without penalty. 2/19/20 36

37. Federal Law v. State Law (Contd.) Federal Drug Free Workplace Act (1988) Requires federal contractors to make a good faith effort to maintain a drug-free workplace. Possible defense for employers (based on 21a-408p(b) federal law)? Not in Noffsinger case (Slide #52) Court held that DFWA does not require: Drug testing; The employer to rescind an offer of employment ; or Prohibit hiring of employees who use illegal drugs off duty 2/19/20 37

38. 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 2/19/20 38

39. Federal Law v. State Law: Criminal Ramifications? (Cont d.) Former (Obama) Attorney General Eric Holder: The U.S. 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... SeeUSA TodayArticle Justice Department Won t Challenge State Marijuana Laws, 8/29/13 2/19/20 39

40. Federal Law v. State Law: Criminal Ramifications? (Cont d.) Presently, federal authorities, i.e., U.S. 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). SeeWashington PostArticle, Jeff Sessions Personally Asked Congress to Let Him Prosecute Medical Marijuana Providers, 6/13/17. 2/19/20 40

41. Federal Law v. State Law (Contd.) 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. 2/19/20 41

42. CT Statistics as of 7/28/19 1,226 physicians ~40,000 qualifying patients : 8,212 patients in Hartford County; 8,034 in New Haven County; 7,533 in Fairfield County; 3,798 in New London County; 2,111 in Litchfield County; 1,961 in Middlesex County; 1,541 in Tolland County; 1,140 in Windham County 2/19/20 42

43. Practical Problems Black market sales thriving; Fatal car crashes have increased in Colorado and Washington; Youth use is up; Emergency room visits have tripled in Colorado; and May not stem the use of opioids. 2/19/20 43

44. Practical Problems (Contd.) 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 2/19/20 44

45. Practical Problems (Contd.) CT DUI Conn. Gen. Stat. 14-227a(a) provides: Under the Influence means: elevated blood alcoholcontent 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 of alcohol, by weight (Emphasis Supplied.) ***No comparable quantifiable measure for drugs*** 2/19/20 45

46. Practical Problems (Contd.) MRO Issues: Verify test only as positive or negative See 49 CFR 40.137(d) Can MRO tell the employer: Excused positive marijuana ? (NO, but it is done.) 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? 2/19/20 46

47. Practical Problems (Contd.) Notice to Employer: HR policy requires employee to inform employer of need to take medication Must be job related and consistent with business necessity i.e., positions affecting public safety like police, firefighters, airline pilots, etc. Insurance concerns: Risk of liability understandable. Other problems? 2/19/20 47

48. Practical Problems (Contd.) 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? 2/19/20 48

49. 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 verified 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). 2/19/20 49

50. 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) 2/19/20 50

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