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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
(T) 207.780.1125(C) 603.303.6124
72 Pine Street Portland, ME 04102
Peter LowePartner, Brann & Isaacson
(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
