Managing Workplace Safety & Risk with Medical Marijuana and

Maine Society for Healthcare
Human Resources Administration
September 9, 2011
Peter Lowe
David Ciullo
Peter Lowe
Partner, Brann & Isaacson
[email protected]
(T) 207.786.3566
184 Main Street, 4th Flr.
P.O. Box 3070
Lewiston, ME 04243
David Ciullo
President, CMA-Career
Management Associates
[email protected]
(T) 207.780.1125
(C) 603.303.6124
72 Pine Street
Portland, ME 04102
Impairment in the Workforce – Facts & Figures
Maine’s Medical Marijuana Law
Maine’s Drug Testing Law
Case Studies
In 2007, 8.4% of full-time
employees in U.S. used illicit
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
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%
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
Danger to employees &
Increased workplace
Increased absences
Decreased productivity
Becoming a registered patient
Obtaining medical marijuana
Rules governing possession, and
use of medical marijuana
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”
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
Qualifying Medical Conditions
Hepatitis C
Amyotrophic lateral
Crohn’s disease
Agitation of Alzheimer’s
Nail-patella syndrome
Intractable pain
Seizures (not limited to
those associated with
Severe and persistent
muscle spasms (not limited
to those characteristic of
multiple sclerosis)
Cachexia or wasting
Severe nausea
Any other medical condition
that is approved by the
Physician Certification Form
[ Form to be replaced? ]
Physician Certification Form
Since January 2011 there are:
1. Over 750 Certified
Medical Marijuana
2. Over 400 Certified
3. 4 of the 8 authorized
dispensaries are open
for business
Marijuana may be
cultivated by:
 Patients
 Primary Caregivers
 Dispensaries
Designated by the patient
Must register with the state
unless growing for a family
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.
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
One registered dispensary in each
of the 8 Public Health Districts in
Dispensaries may not be within
500 feet of a school.
Dispensaries must be non-profit
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
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
The Maine Medical Use of Marijuana Act
regulations Prohibit Possessing marijuana
 In a school bus
 At a school
 In a correctional
The Maine Medical Use of Marijuana Act
regulations prohibit Smoking marijuana
 while on public
 in any public place
I sure wish I
could light one
up right now!
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
The Maine Medical Use of Marijuana Act
Prohibits Use of marijuana by a person
who does not have a
qualifying debilitating
medical condition
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)
Medical Marijuana User
◦ 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
22 MRSA § 2423-E(2).
Medical Marijuana User
◦ “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].”
Conflict with Federal
◦ 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
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.
Under the Influence:
◦ “These rules [don’t require] an
employer to accommodate…
any employee working while
under the influence of
Most states have found that employees who are
medical marijuana users are not protected from
◦ 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
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
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
You better
follow the
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.”
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
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
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
Physical characteristics
• Ned works in maintenance at a
• 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)
• 1. His test was a verified
• 2. His test was “positive for
marijuana” but he is certified as
a medical marijuana user in
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
 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
 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
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
1. Does the insurer cover the costs
for her marijuana use?
2. After demonstrated benefit?

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