PRESENTED BY: Peter Lowe Maine Society for Healthcare Human Resources Administration September 9,...

Managing Workplace Safety:

Addressing the Use of Medical Marijuana, Drugs

and Alcohol in the Workplace

PRESENTED BY:

Peter Lowe

Maine Society for HealthcareHuman Resources Administration

September 9, 2011

David Ciullo

Contact Information

David CiulloPresident, CMA-Career Management Associates

dciullo@cmacareer.com

(T) 207.780.1125(C) 603.303.6124

72 Pine Street Portland, ME 04102

Peter LowePartner, Brann & Isaacson

plowe@brannlaw.com

(T) 207.786.3566

184 Main Street, 4th Flr.P.O. Box 3070 Lewiston, ME 04243

Presentation Outline

Impairment in the Workforce – Facts & Figures

Maine’s Medical Marijuana Law Maine’s Drug Testing Law Brainstorming Case Studies

Maine’s New State Seal?

IMPAIRMENT IN THE 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

Drug & Alcohol Impairment in America’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

Drug & Alcohol Impairment in Maine’s Workforce

Danger to employees & public

Increased workplace accidents

Increased absences

Decreased productivity

Effects of Drug & Alcohol Impairment in the Workplace

Becoming a registered patient

Obtaining medical marijuana

Rules governing possession, and

use of medical marijuana

The Maine Medical Use of Marijuana Act

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”

Registration Process

DHHS Registry Card

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

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

Becoming a Qualifying Patient

Physician Certification Form

Becoming a Qualifying Patient

[ Form to be replaced? ]

Physician Certification Form

Becoming a Qualifying Patient

Since January 2011 there are:

1. Over 750 Certified Medical Marijuana Users2. Over 400 Certified Caregivers3. 4 of the 8 authorized dispensaries are open for business

Here are the Numbers!

Marijuana may be cultivated by:

Patients Primary Caregivers Dispensaries

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.

Obtaining Medical Marijuana

Primary Caregiver

s

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

Obtaining Medical Marijuana

Primary Caregiver

s

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

Obtaining Medical Marijuana

Dispensaries

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

Obtaining Medical Marijuana

Dispensaries

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

Rules Governing Possession & Use

Possessing marijuana In a school bus At a school In a correctional facility

The Maine Medical Use of Marijuana Act regulations Prohibit -

Rules Governing Possession & Use

Smoking marijuana while on public transportation

in any public place

The Maine Medical Use of Marijuana Act regulations prohibit -

I sure wish I could light one up right now!

Rules Governing Possession & Use

Operating a motor vehicle, aircraft, motorboat, snowmobile, or all-terrain vehicle while under the influence of marijuana

The Maine Medical Use of Marijuana Act regulations Prohibit -

Rules Governing Possession & Use

Use of marijuana by a person who does not have a qualifying debilitating medical condition

The Maine Medical Use of Marijuana Act Prohibits -

Confidentiality

Confidential:

1) Patient applications2) Caregiver applications3) List of registered cardholders

Not Confidential:

Applications for dispensary registration (with the exception of patient information contained in applications)

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).

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].”

Medical Marijuana User Protections

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

BUT - There Are Limitations

DOPELIMIT

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

More Limitations

I took a bong hit an hour ago and got the

munchies. These Keebler guys always have food.

Under the Influence:◦ “These rules [don’t require]

an employer to accommodate… any employee working while under the influence of marijuana.”

The Biggest Limitation

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

Good News From Other States

Unlike Maine, California, Oregon, Washington & Montana’s statutes had no specific employee protections

Maine hoped for guidance from Michigan Courts in Cassias v. Walmart because 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

MICHIGAN – Cassias v. WalMart

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

MHRA/ADA Concerns

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.”

Uncle Sam Chimes In

You better

follow the rules!

MAINE’S DRUG TESTING LAW

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

Maine’s Drug Testing Law - Policies

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

Maine’s Drug Testing Law – Probable Cause

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

Maine’s Drug Testing Law – New Exception

DEFINING IMPAIRMENT AND “UNDER THE INFLUENCE”

Physical characteristics

Behavior

Performance

BRAINSTORMING SESSION

Case Study #1Ned

• 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

Case Study #2Jimmy & 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

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

Case Study #3

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?

Case Study #4

48

QUESTIONS