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Cannabis in Worker's Compensation Claims

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Cannabis in Worker's Compensation Claims

This course will provide an in-depth overview of cannabis and substance abuse in worker’s compensation claims. By the end of this course, attorneys should understand the relevant considerations when advising their clients on worker’s compensation claims that involve cannabis or other substances. We will discuss the main areas of substance abuse that cause increased risk of injury and reduce productivity within an employment context. We will explore the various practical and legal strategies that can be utilized to prevent drugs and alcohol from entering the workplace.

Transcript

Hi everyone. My name is Debra Leigh Doby-Munster. And today we're going to be talking about cannabis in workers compensation claims. But first, a little bit about me. I have been practicing in this area since about 2012 when in New York they introduced medical marijuana into the state. And since then, I have helped employers and carriers to understand the issues surrounding cannabis, cannabis in the workplace and also have been a lecturer numerous times on the conflict between the state and federal systems. So I have also been a partner with a law firm for approximately ten years, I believe, and just started a pro-bono project called The Misunderstood Lawyer. Hopefully if it is a success, it will be providing scholarships to students. So please feel free to check me out on social media. If you have any questions about today's lecture in of itself, please feel free to email me at Misunderstood lawyer at gmail.com. Or of course, look me up on LinkedIn. I'm happy to discuss. Okay, so let's dive in. There is a lot to discuss, so let's get started. What we're going to talk about is the three main areas of substance abuse that cause increased risk for injury and reduced productivity. We're going to be looking at cannabis from a worker's compensation lens. So we're really looking at the practical and legal strategies to not only prevent drugs and alcohol from entering the workplace, but we're also looking at it to stop an injury from occurring. And funnily enough to do that, we start off with talking about employee empowerment. Now there are three main areas that increase risk for injury and and reduce productivity. Although that is not the main concern of workers compensation attorneys, our major concern is decreasing the risk for injury. And so the three main reasons is alcohol, prescription drugs and cannabis. And in the state of New York, all three are currently legal. So how do we handle the fact that cannabis used to be illegal and now it's legal? And what is the difference between cannabis and alcohol and prescription drugs and why is it different? So what is legal in the majority of states is alcohol, prescription medications, medical marijuana. We'll look at a slide later. But medical marijuana is slowly gaining in popularity amongst most of the states. What is illegal is recreational use of prescription medications and also no marijuana in a lot of states. New York just recently legalized it last year. What is also illegal is that you use either alcohol, prescription medications or cannabis while at work, and or if you show up impaired while at work and impaired is going to become really significant later when we're talking about cannabis because we're not sure what impairment actually means. So there are high incidences for substance abuse is prevalent in food service construction, um, any type of area that involves machine labor, truck drivers. Cannabis is highly prevalent in these areas to the point where it actually becomes an issue for employers to hire. And a lot of them are foregoing cannabis drug screening tests because they can't get workers who don't use cannabis in some form. Um, so the concern of employers is basically what is the overall issue for workplace safety? How can we tell if someone's impaired, how can we tell if it's going to reduce their concentration, cause an injury and and how do we prevent that? And that's mainly their concern. So let's start off with alcohol. And and the reason I'm making the assumption that alcohol, it's very it's easy to understand alcohol. And we all understand when someone is impaired in alcohol. And that is in a direct contrast to cannabis. So alcohol is one of the most commonly abused substances, but there is well established case law and scientific evidence that addresses alcohol abuse. We know exactly how much it takes for a person of a certain weight or a person of a certain height to be intoxicated. And what that means legally, what is the legal level of intoxication? There are statutes going to that. We don't have that for cannabis. Um. We have breathalyzer tests that will detect alcohol in 16% of that will detect alcohol. We don't have that for cannabis just yet. There are some emerging very, very expensive items that are coming on the market that will test for cannabis in the breath. But also right now, we don't have it. And then let's compare the use of alcohol. So in alcohol, we have this culture of drinking. It seems very accepted. There are office parties. We understand it. We we almost encourage the drinking to promote this sort of bonding of employees. Um, but the further we get away from alcohol, which. We almost have a rubber stamp. Like, that's okay. It's completely fine to drink. We just don't think, you know, you shouldn't get sloppy drunk. Is is is typically how people break it up in their head. But once you get into prescription medications, people think, oh, prescription medications. That's for people who have health concerns. They have issues. And we we we think of prescription medications as being okay and rarely abused for recreational purposes, which is not necessarily true. So then we move on to cannabis. And cannabis is in direct contrast with alcohol, which is perfectly acceptable prescription medications which which is thought of as it's not okay to abuse that, but it's usually we think it's usually only abused if you're in pain. And then we move to cannabis. And cannabis has always been around, to be perfectly honest, but it has always had this, um, stigma attached to it. So instead of a culture of drinking, you know, the culture of cannabis is very much of the stoners and the munchies and the people of no productivity. So that's the culture of cannabis. So it's always been kind of looked on in a different view. And the cannabis industry is currently trying to change that. And they're doing a pretty good job of it. What we have to understand about cannabis and the difference between prescription medications and also alcohol is that alcohol we know exactly how much it takes for a person to be intoxicated. Same thing for prescription medications. We know when a person is intoxicated, we know when it's in their blood. We know through scientific evidence whether a person of a certain weight or height will be impaired by that prescription medication. We do not know that for cannabis. We do not have a scientific body of evidence to help us. We do not know if a person of a certain weight or height how that will impact them. And we also have to do a lot of education on what cannabis is. A. In of itself. So let's start off with cannabis is a CBD. So we have THC, which is the principal psychoactive constitute of cannabis and it's one of 13 cannabinoids that's identified. Cbd or cannabidiol, is a non-narcotic fraction of cannabis that's been researched for numerous health effects and we're all aware of that. We all know they're CBD oils out there. They're in gummies. They're supposed to promote stress and relaxation and muscle relaxers and all these kind of things. Um, and CBD is and when we say non-narcotic, that doesn't mean that there isn't THC in it. It means that there are exceedingly low levels that to the point where it's not going to make you high. It's, it's basically, as I said, non-narcotic, it's not going to do anything. What we're mainly focusing on is the plant that has active THC and and varying different levels. So again, our issues come through is that cannabis is associated with drowsiness, respiratory issues, short term memory loss, impaired mental function, blood pressure problems, anxiety, earnings, loss of coordination, loss of fine motor skills, issues involving balance and dizziness. Now the problem is, is that there. A person can smoke weed every single day and have none of these issues, and a person could smoke weed once and have all of these issues. So it really depends on the person. Their familiarity with cannabis and the length of time that they're smoking, that seems to impact how a person will respond to it. And unfortunately, we don't have a big enough scientific body of research to figure out how an impaired, how impaired a person actually is, depending on the quantity of cannabis they actually take. Now, what's really interesting about this map is that I can show you a map. Uh. From a couple of years ago and it would be completely different. And we would like to note that the number of states that have recreational ized and legalized recreational and medicinal use of marijuana has exponentially exploded. We do still have some people that are holdouts, but if you will notice the main ones that are still where no cannabis in any form is allowed is Idaho, Wyoming and Nebraska, Texas, Tennessee, North Carolina, South Carolina, Indiana, Kentucky and Wisconsin. They all have low level CBD programs. But basically you're looking at a snapshot of how. That how fast things are changing. A year ago, this map was completely different. So it's really starting to kind of explode. And the most amazing thing to me as an attorney is that at the federal level, it's still illegal. And if you're A1L law student, we all know that the federal government sets sort of the floor or a bar, if you will, and states can make increased protections, but they can't go below the bar like they set the bare minimum. Right. And it's very interesting that in the case of cannabis, that the states are being allowed to create their own standard, which causes a lot of problems. Not only does it cause a lot of problems for businesses, but it also causes a lot of problems for. States and otherwise, because there is such a different conflict not only between the state and the federal, but between different states, because you may be able to carry and walk around with cannabis in California and grow your own, but in Nevada you may have to buy directly from a dispensary. So it's completely different depending on the state that you're in. And you certainly cannot take cannabis across state lines because then you're entering into a federal territory if you're crossing state lines. So again, the the point of this entire presentation is to show you that the impairment is going to be the big focus here. Cannabis has not been as fixed and studied. We have no set impairment level, as I've mentioned before. And the the only minor research that is coming out so far is there very limited studies. I mean, there are some from the Netherlands, there's some from Canada, and they tend to be like under 100 participants in the study and they tend to be either all male or female. And they're not really be a big enough sample sizes for us to draw a good correlation between impairment and cannabis. We will note that there appears to be good evidence that chronic frequent cannabis users exhibit less impairment from acute THC than occasional users, and and that seems very in line with common sense knowledge of how cannabis works. And and and so the Canadian Center for Occupational Safety and Health indicates that there is a definite conclusions that cannabis can impact you in acute and lingering effects. But us pinning that down as to what those effects are for individual people to kind of get like a bright line rule has been difficult to say the least. All right. Now we're going to talk about the federal laws and the. Complex issue or. Let's say, relationship. That's a nice way to put it. Let's talk about the complex relationship between the federal and the state governments. The federal government has. A under the Controlled Substances Act back in the 1970 has put marijuana as a schedule one controlled substances. And for those of you who don't know, schedule one means that there is no medicinal use for any of the drugs that are listed in the schedule. One, As you move further down the schedule two, schedule three, the they will still be. Um, drugs that are regulated under the act as a controlled substance like opiates. But it means that there is some medicinal use. Now, first and foremost, let's address the outstanding question of whether there is no medicinal use for cannabis at all. While we don't have a huge body of evidence of scientific evidence regarding the medicinal use of cannabis, there are a few things that we know for certain. Number one, it certainly serves for those individuals that have been diagnosed with epilepsy. Cannabis has been shown time and time again to help those individuals control their symptoms. Number two, cancer. Time and time again, we have a large body of scientific evidence that indicates that the cannabis helps control nausea. It helps control pain. And for those type of patients, the question remains whether cannabis. Uh, is helpful in terms of musculoskeletal injuries. There's just not enough scientific evidence to support it right now. But it does appear that CBD. Oils could relax the muscles, but whether that's therapeutic or beneficial, it would be similar to icyhot. It will do something. It may not do much. So should it really be a schedule one drug? Does it have no medicinal use whatsoever? No. I mean, it's got some medicinal use. It shouldn't be a schedule one. It shouldn't be up there with cocaine. But there are political and law enforcement reasons that they have placed it at a schedule one drug and keeping it there. There is a movement in Congress at the moment and the bill has yet to pass. It keeps being kicked around to move marijuana from a schedule one to a schedule three drug, one, two, three, it's called, but it has not taken effect yet. Now, the other thing you have to understand about cannabis so that it's illegal at the federal level under the Controlled Substances Act, Right? It's the schedule one drug. No, no medicinal use whatsoever. Now. How then? Our states, not only legalizing medicinal use of marijuana, but also. Legalizing recreational also known as adult use marijuana. And the answer is in a series of memos that have come out from the federal government. And we won't go too much into it because it's just a little bit too granular. But. Essentially the federal government has come out and basically stated that the states are going to be allowed to experiment with this idea of cannabis and to see if they could make use of it. While it remains illegal at the federal level and there is a amendment, a Russian bar amendment to a appropriations bill. That states that no person. Who is operating lawfully under a state medical marijuana suit can be sued. Um, as long as they're in compliance with that state medical marijuana statute. And it goes further to say that. It further limits the Department of Justice that they can't spend one penny to prosecute those people that are in compliance with a state marijuana statute. Now there becomes some issue with language. Are they protecting recreational use and medicinal use or are they just protecting medicinal use? It's a question that no one's really kind of wanting to know the answer to at the moment. But for right now, the states are. Banking. On the fact that all of their statutes and all the programs that they've put in place, that they will not have to worry about prosecution because of this amendment to an appropriations bill. And that creates kind of a conflict because, as I mentioned before, the federal government sets the floor the bare minimum of what we're allowed to do. And they are making. A large precedent of allowing states to disregard. The federal floor and allow them to do whatever they want to do. So I wouldn't be surprised that if states in the future come up with different ways to challenge federal statutes and just start experimenting on their own because the federal government has opened the door on the issue of cannabis to allow that possibility. So now keep in mind, California has been messing around with medical marijuana since, I think, 1996. And then recreational, you know, since the 2000. So they really set forth kind of a roadmap from the other states to go off of. But where? I guess the rubber meets the road. Was Colorado accepting or implementing recreational use? Marijuana and the profits from the taxes off of that implementation were so high that it caught the attention of all the other states. And the states were basically looking at a giant source of revenue that was just being wasted. And so they certainly want that money. So right after that, you see a domino effect for all these states are authorizing or legalizing marijuana. And solely for the purpose of to tap into that tax revenue stream. If people are going to do it, let's make it safe and let's make it and more importantly, taxable. And that's what's happening at the moment. So the federal government is setting forth several things like. That address Workplace safety. Osha standards that address Department of Transportation Standards, that address safety and security sensitive industries. The federal government regulations still. Trump anything at the state level for those particular areas. Outside of that, there is really interesting case law coming out of California where a California judge basically told the federal government to back off. You can't tell us what to do. And that is a very interesting decision that hasn't been challenged and it's just left sitting there. And basically the California judge was like, hey, we've been doing our own thing for since the 90s. Like, if you really wanted to object to this, you could have done so way before now. Like, just just leave us alone. You're not allowed to talk to us anymore about it. And and that is a very interesting precedent that's being set. So. The next. Thing that we want to pay attention to. Okay. Is that conflict between the federal and state between states and their cities and what are the differing laws about marijuana that are going to sit there and make it more difficult for employers to operate? And for those of you who are actually interested in. In starting a cannabis like business or being a cannabis lawyer, you know, there are ethical obligations or concerns around the fact that could you face prosecution for representing people that are basically in an illegal business? The ABA has come out and certain state guidelines have come out saying, hey, if you represent a cannabis worker, that's perfectly okay. But some states haven't agreed to that. So if your state doesn't agree to it, you know, there is a large ethical concern that you could be brought up on ethical charges because you're reporting someone essentially in a criminal enterprise. The other if you're looking at being a cannabis business owner. You're going to be faced with a lot of kind of uncertainty on how to start and how to get going. You don't know whether or not you can find a place that's willing to lease you. You don't know whether you can find a city that's willing to where to put your business, where to put your dispensary, whether or not you can carry your product across state lines, whether or not you can carry it interstate. You know, and if you're if you're buying product from Colorado, you know, how are you getting it to your state? So there are all of these issues where the federal prohibition and and outlaw of cannabis is causing a massive headache and really putting a prohibition on businesses, trying to do business or expand or to grow. And and finally, the main thing that business owners, people that are interested in starting a cannabis business has to look at is. Whether or not. Um, you have sufficient security around your building because it's largely going to be a cash business. Why is that? Because there aren't any banks that are currently allowed to hand monies in or handle monies from what is considered a criminal enterprise at the by the federal government. So there is what's called a safe Banking Act that is currently in Congress and is being kicked around. It's being close to passing a couple times. And the Safe Banking Act would basically like, hey, listen, if you're in a cannabis business and you're complying with the state and then you're allowed to open a banking account, and that's one thing that we don't think about all the time, is it? We think that it's just an automatic right to go to a bank and get a bank account. We don't think about the fact that that the business that we're in. Although it's a perfectly legitimate business from the state because the federal government has outlawed it, that now I'm restricted in my ability to open a bank account and put money in, which means it's largely a cash business. They're those dispensaries tend to be targeted by criminal elements because they know there's cash on the premises. And there also tends to be quite a large issues if you're running a growing facility of theft of the growing facility. So there are certain. Credit unions that are considering getting into the cannabis industry. There is and which is really interesting, but at the same time, they usually require you to have a very open book. They're allowed to come in and inspect at any point in time. So there are certain real business constraints on the fact that cannabis is illegal at the federal level. But again, as an attorney, the whole disparity between the state and federal government is very interesting. It's all a gray area and attorneys thrive in gray areas because we get to sit here and argue about what the statute means, what precedent. And we're literally arguing about precedent being set like right now, which is amazing to me. So we're going to talk about workplace safety in a minute. We're talking about the OSHA standard and the general duty clause. But more importantly, what we want to talk to you about is the fact that we all need to recognize a real problem with employers at the moment is that employers are so. Concerned about the fact that the states have authorized cannabis on a recreational basis and a medicinal basis. The a lot of states have put in prohibitions for even testing for cannabis that a lot of employers are just foregoing testing of cannabis altogether. If the person is on cannabis, unless they are visibly high at work, they just are turning a blind eye to it and they don't want to know because there are so many legal pitfalls that just by drug testing for it. Right. That they have to address that it's not worth their headache. So unless a person which we'll get into into in a minute, unless the person is in a safety sensitive position, if they are regulated by the federal government or if it's a federal contract, you will find that most employers are turning a blind eye and refusing to drug test. But what we're going to talk about next is we're going to talk about. Workplace safety. We're going to talk about what are the federal rules that employers have to contend with that may conflict with state. And then we're going to talk about what can we do? What can employers do to try and make a uniform and consistent policy to address that disparity between the federal and the state governments? So in terms of workplace safety, OSHA, which is the Occupational Center for Safety and Health Administration, has issued a general duty clause, Section five eight, and it basically says that each employer shall furnish to each of its employees employment a place of employment that is free from recognized hazards. So that means that employer has the obligation, outright obligation to make sure that their employment is free from recognized hazards. That means that if a person is showing up that is drunk or high or impaired in any way, shape or form, it is the employer's job to protect the other workers and make sure that person does not come on to the site. Okay. Another federal statute that employers have to worry about is the Drug Free Workplace Act. Under the Drug Free Workplace Act, federal contractors and grantees must must ensure that they make a good faith effort to maintain a drug free workplace, which means, again, employers are being required to make sure that they have a drug free workplace. They have to issue a policy statement. They have to report criminal drug violations. And and they have to make a good faith effort to maintain a good drug free workplace, which means that if a person shows up drunk or high or otherwise, then they need to make efforts to protect their other workers. Okay. What the Drug Free Workplace Act does not require is it does not require drug testing of applicants or employees. It does not prohibit federal contractors from employer users of controlled substance outside the workplace. So this seems to carve out a very narrow exception for those individuals who are maybe imbibing alcohol or drugs or cannabis outside of work. But there and it may be in their system if you test them, but they're not actually impaired at work and there's no requirement for you to do a drug test. So a lot of employers, because it's so difficult for us to figure out what the actual impairment of cannabis is, they're just avoiding the issue entirely. So as long as the person's not showing up visibly impaired to work. Right now, the employers are ignoring the fact that some of their their employees may be partially impaired, at the very least from their cannabis usage off site. So additionally, there are other rules and regulations that that that employers have to be concerned about that directly impact states and interstate commerce, which is safety and security sensitive industries. Like anything that involves the Department of Transportation, that would involve trucking, moving anything to do with interstate commerce. Absolute prohibition on the use of alcohol, certain medications and marijuana. So that means if you are a truck driver or an employee of a truck driver and you're using cannabis and you're driving a big rig that is completely not allowed by the federal rules, and it does not matter that the state. Allows for. Cannabis to be recreational or medicinal, whatever that happens to be. It doesn't matter if the state says, because the federal government, for those safety sensitive and security sensitive industries like like the DOD, they are putting an absolute prohibition on the fact that you cannot use alcohol or test positive for marijuana. And there is requirements for them to test for pre hire, reasonable suspicion and random, and you have to test for drug and alcohol awareness for all employees. So so you're already putting employers in a very difficult spot because now they've got the state saying, hey, everything's legalized, you can't punish people for being on cannabis or buying cannabis or testing positive for cannabis. Additionally, like, for example, New York City implemented a regulation that employers can no longer do pre-employment testing for cannabis. But except for in the case where it would involve a safety or security sensitive industry like transportation, like the DOT, then they are required to do so because they could lose their license. You could lose the ability because you could lose your licenses and ability to to engage this type of employment entirely. So just because and that puts the employer directly at conflict with the state and puts the state in conflict with the the federal federal government. And it also places additional pressures on the employer to somehow, um, educate their employees on the standards that the state and federal government haven't even figured out. So just a moment about the Department of Transportation's drug and alcohol testing and regulation. It does not authorize medical marijuana under a state law. It does not say that a valid medical if you have a medical marijuana card from a state, that's not a valid medical explanation for why you have a positive drug test for marijuana. It's never okay for you to be on marijuana or or under the influence of alcohol when you're working in that safety sensitive position, like for the Department of Transportation. And and that's really important. Again, just drawing you. In fact, there's a conflict that they're creating. Employers that are covered by the DOT or other federal agency rules can and do have to adhere to the drug testing requirements. They can take appropriate action if someone tests positive and they can do some coaching. But and if they have one section where there are some federal contractors that have federal contracts and state contracts, if a person pops positive for cannabis under the federal contract, they will have to remove that person from the federal contract and put him onto the state project or turn around and pay him leave not to appear on the job site. It really just depends. The final thing we want to talk about is the American with Disabilities Act and reasonable accommodations. And you will find out that each time that we talk about cannabis and we will draw a distinction between recreational use, which is adult use or medicinal use, we're going to draw a distinction between that and the reason we're going to be drawing a distinction between that is too, is because certain states like Connecticut, like New York, like California have a anti-discrimination provision in their statute in their. Uh, on on their books. Now, funnily enough, you may say, well, hey, that's the American Disability Act. If you're taking cannabis and you have a valid medical marijuana card from a state, doesn't that qualify under the Americans Disability Act? The as a disability. And the answer is no, because cannabis is illegal at the federal level. So you cannot use as a basis for a disability. Uh, the Americans with Disability Act, you can't file for protections under that act because and the basis be cannabis because cannabis is illegal. And remains a Schedule One Controlled Substances Act. There is legislation in the. In Congress to move cannabis from schedule one, which is no medicinal use whatsoever to a schedule three, which means there is some medicinal use. But so far all of those efforts have failed. So as long as marijuana is a schedule one controlled substance, the Americans with Disabilities Act is not going to provide any protection from employment based actions. If an employer terminates you for marijuana usage, whether it's recreational or medicinal. We will note that individual states may have individual protections just like New York does. And then you would be able to file in New York under that particular. A statute arguing that you were discriminated against on the basis of your medical marijuana use. Notice that I said medical because there is no. Protection for adult use or recreational use of marijuana. Now let's move on to the state laws. There is a huge body of law that is starting to develop and it's mainly coming out of Colorado, Montana, Massachusetts, and it's very, very fascinating. And I recommend that you go and read the case law book. But because. The marijuana laws are so particular to an individual state. You really have to know what your state set state laws are regarding cannabis and you also need to know. Whether what protections are put in place for medical marijuana users. Users for that particular state. So what we do for employers or what I do on a daily basis is I mainly focus on impairment at the job site and I try not to get bogged down in too many details. And the advice that I'm giving employers is very simple. It's what the case law body of case law is leaning towards. Site Usage of alcohol, drugs or marijuana is an absolute prohibition. Nobody in any state wants anybody to be high at work or to be using alcohol, drugs or marijuana at the job site. Offsite usage, however. Is a different story. As long as you are not actively using it on site, your off site use of cannabis could be perfectly legitimate as long as you are not showing up high at work the next day. So let's do an example. Um. If you smoke cannabis at 11:00 pm and you are still. High at 8 a.m. when you show up for work. That is not okay. But if you smoke at 6 p.m. and you are perfectly fine and not impaired in any way, shape or form, when you show up the next day at 8 a.m., then that is perfectly okay. So that's what the courts seem to be going off of. They seem to be focusing on onsite usage. Absolute prohibition. Off site usage seems to be okay. If the state has legalized recreational or medicinal use marijuana and and certainly if that has been legalized. Either recreationally adult use or medicinally. Then you can certainly. Um. You can certainly. Be perfectly okay with using it off site as long as you're not showing up to impaired the next day at work. But I have to point out the fact that the states are so different, you know, and it's just head wrecking sometimes. I mean, if you look at New York, New York has a state discrimination protection against discrimination of engaging in lawful leisure time activity that's recreational beginning or after the conclusion of employee work hours. So think about the fact that if you like to drink and you drink after work, do you really want your boss coming down after you because you had a couple of drinks at work? No. You can do what you want in your own time. New York is making the same argument for cannabis now that it's legal, recreationally and medicinally. The employer shouldn't be after you to to limit what you can do in your free time. The difference is, is that if you show up drunk or high to work the next day, that's when it becomes the employer's issue. Now, Colorado, there's no separate protection for outside work activities. They are not drawing a distinction between onsite and offsite. They are drawing a distinction between if if you show up high at work, if you are impaired, if the employer, if you decide that you want to do recreational or medicinal use of marijuana and they institute a drug test and you positive for cannabis and the employer has a no cannabis policy, then you can be fired. And the case law in Colorado seems to agree at the moment that that's a perfectly legitimate termination. So that's kind of interesting. It's just so different from state to state. So you really got to know what your state says. Do employers have to hire or retain people using drugs or cannabis? The answer is no. They don't have to accommodate intoxication, use or possession of drugs or cannabis in the workplace. Again, that is on site usage. Okay. The question becomes whether or not you fall into a category that would entitle you to statutory protections. Are you a recovering addict? Do you fall under FMLA ADA now and for certain states? Are you a medical cannabis user? As I said previously, there's no protections for a. A recreational or as the courts are calling it, adult use cannabis use. But if you're using cannabis and have a valid medical marijuana card and you are prescribed marijuana by a doctor and you are using the medical the cannabis in accordance with the way that the doctor is prescribing it, you need all of those things. You can't just decide, Hey, I have anxiety and I use cannabis to help with my anxiety. You have to go to a doctor. The doctor has to agree that cannabis is a good thing to try for your anxiety. He has to prescribe it to you in a certain method and you have to adhere to that. If you have. So if you're taking medical marijuana for that purpose and you live in a state that may protect like New York, those individuals using medical cannabis. Your employer may have a difficulty. Terminating you even if you pop positive for cannabis on a drug test. So what I always advise my employers is that if a person went for a random drug screen and they pop positive for cannabis, the question is whether or not it's recreational or whether it's medicinal. If it's medicinal, the question becomes you need to engage into an interactive process. As described. It would be an 88 to like interactive process because you're looking to see whether or not they can do their jobs, whether or not they're high at work, whether or not they're intoxicated at work, but whether or not they can do your job and still be on the medical cannabis with the understanding that the medical cannabis is not being used on site at all, ever. So obviously, this federal and state law disparity causes a lot of confusion. And for any employers insurance companies, cannabis right now is a massive headache across the board because from from banking, environmental regulations, land use, leasing, zoning, workers compensation, all the way to contracts. Cannabis is proving to be a very difficult issue for everyone to deal with because it's illegal at the federal level and everyone is concerned about facing prosecution if or when the federal government changes its mind. So there really needs to be some sort of guidance from the federal, state, from federal, and we need a little bit more uniformity amongst the states than we have right now, because honestly, it's just it's so complicated going per state that it really is impacting business and employers and our ability to actually just get business done. On top of the federal issue, On top of the state issue, you have larger cities that are now offering additional protections, a good one, which is called the New York. New York City. New York issued New York Compassionate Care Act, and it said the medical marijuana is legal for those who are certified patients. That means a certified patient just simply means that you have a medical marijuana card from a doctor who is allowed to prescribe medical marijuana. A person who has a certified patient is automatically deemed as having a disability under the New York State human rights law, which is very interesting because I'm not really sure how you taking marijuana for a mild anxiety might qualify you as having a disability, but they obviously did that in order to trigger protections from employers trying to terminate those employees that pop positive on a medical marijuana sorry, a marijuana test. The law does allow employers to enforce a policy prohibiting employee from employing his jobs while impaired so that again, on site usage is never okay for any reason, whatever happens to be. They also carve out a reason that if the employer is bound by a federal contract like he's a federal contractor building site, or if he is obligated under the federal Department of Transportation. Again, that's carved out because you're required by the federal government to do these things. Beyond that, those those two very specific carves out the city itself. New York City has provided an additional protection for those individuals that are using cannabis. Now, a big issue at the moment is what we're talking about in New York at the moment is whether or not. If you pop positive for cannabis in a drug test, does that matter for termination? Does that mean that if you have a medical marijuana card, does that automatically entitle you to protection under this statute? The and the answer is maybe, maybe not. Again, you need to have a medical marijuana card that's certified by the doctor. You have to be taking it in accordance in the way that he prescribes it. So it's not And what we're finding that most cannabis users are not necessarily taking cannabis in accordance with the way the doctor is prescribing it. And some doctors aren't even prescribing cannabis. They're just kind of saying like, Oh, hey, go try some and let me know how much and then report back. So it's becoming kind of an issue where we're looking at. Um. What would be a fair way for employers to figure out? Impairment at work so that they can also provide a safe workplace for other workers. Now in now in Connecticut, Connecticut law prevents the use of medical marijuana. They've also created a statutory protection for those people using marijuana as well. In Massachusetts. The Massachusetts has a really interesting case where a medical marijuana patient sued her employer because the termination was solely based on testing positive for marijuana use. The court found that the termination for qualified medical marijuana use could be considered a handicap discrimination, largely because as soon as she popped positive for the marijuana use, she was automatically terminated. There was no further inquiry as to whether she was taking it for medicinal use or recreational use, whether she was taking it at work or was it on site versus off site usage. So that's really what they found. There was no, you know, 80 ADR like interactive process with the the individual. Now, in terms of drug testing, drug testing policies do have to be very specific nowadays, and they have to be included in employer employee handbook. Drug testing can be occur on a frequent and random basis and random means truly random mean. Most of the time drug testing is used by employers because they was like, Oh, we have an issue in the doc. Let's random test everybody on the docs. That's not random testing. Random testing is, is that every single employee in the company is put their names into a hat and you pull it out. And even if that's the owner of the company, he gets randomly tested. That's random testing. So. And there are six nesting cereals that should always be included in your employment policy. Pre-employment post-incident, random, reasonable suspicion, return to duty and follow up and your policy should be followed across the board regardless of the substance. It doesn't matter if it's alcohol, prescription drugs, cannabis, whatever it happens to be, you need to set forth the policy and then stick to it. Okay. Now, what's really interesting to me is employers who come through in reasonable suspicion and what reasonable suspicion is. And the answer is it's really kind of the sight see, smell test, which is very subjective and difficult. To prove. So what you really need is education. We need to be educating people on how to connect with your workers, making sure that you understand that that that there's physical psychosocial performance issues and what you're looking for. You just can't assume like, hey, the guy looks like he's hung over, he's hung over and he had a hard night drinking. You need to do a little bit more research than that. Now, in terms of employee manuals, there always needs to be an implicit and strong policy on the prohibition of cannabis in the workplace. But again, because the states are so incredibly different, you now need to consult your defence counsel to see if your state allows medical marijuana to state. If you need know, are you in two different states that are right next to each other that have completely different policies? Well, then you need a comprehensive policy that addresses both states. And then you after you update your policy, then you need to go and tell your employers that you updated your policy and come back. All right. So drug testing policies, really, you're looking for purpose. You're stating your purpose. You're stating why you're looking for a safe work environment. You're looking for the scope that it applies to all employees and applicants, everybody. And then you need to provide them with some sort of assurance as to how a drug testing program is actually going to work and what happens. So if you refuse to be tested, what happens? Is it confidential? That needs to be noted in the policy as well. And also the right of whether or not you have the right to inspect the premises. So if the person has a locker on the campus, do you have the right to go into the locker even though it's locked? Is that that is that the employee's personal property that you can't look at without having a warrant? Or are you reserving your right to do a random search for drugs as part of your policy? If it's not in your policy, you may not have that right. So. The another main issue that we're having to deal with on a daily basis is safety sensitive positions. And the question is, is even if a person is on medical marijuana and they and let's say they're in a state where medical marijuana users are in a protected class, they are considered to have a disability and that you are undergoing a interactive process to see if you can keep them on. The question comes down to whether the person is actually in a safety sensitive position if they are in a safety sensitive position. The person and and let's also assume that the person is using marijuana solely off site. So no on site usage whatsoever. We have to point out that. Analyzing your job safety is going to determine whether or not. The person can go back to work in that position using cannabis. There are four basic steps to completing a job safety assessment. You got to pick out the job. You got to break it down in sequence of steps. You got to identify potential hazards and then the preventive measures to overcome those hazards. Why is this important? Why do we care? Why are we talking about it? We're talking about it because you've got to figure out whether that job can be affected. By a person using marijuana off site. Or on site. And if that person is even partially impaired. Off site and comes to work. Partially impaired. Are you. Affecting or increasing the risk that other people could be injured. If so. Even if that person has a valid medical marijuana card. Um, and in a state where they are in a protected class, then they should not be put back in that safety sensitive position. Now, if your safety sensitive position is quite low and there is no inherent risk right, then the person could be returned to that job because there's there's no risk to other workers. Okay. So the employer's bottom line issues remain is how do we protect. Because we're required by all these different laws to provide a safe place of work for our workers. How do we do that when the federal government is telling us one thing, when the state government is telling us another one? When the city is telling us another standard. And finally, we have the courts telling us a different standard. So we they have four different standards that's coming at them and they've got to somehow figure out and navigate. A policy and we've a policy through those contradictions. And it's not an easy thing to do. It causes a lot of sleepless nights, I'll tell you that much. So what I always recommend is that we really emphasize and focus on education and training. We really focus on what is legal regarding marijuana in your state and your city and make them aware that they've got it before they trigger a decision to terminate or before they take any adverse reaction on an employee that is taking cannabis. They need to talk to counsel because they need to figure out what protections, what should we undergo an interactive process with this person. And if we should, why they need to start understanding the process of of of handling cannabis in their workplace because it's not going away, that's for certain. Sure. So now a big issue that we have because I work in workers compensation a lot. So a big question that my employers always have is that if a person comes back to work, they suffered an injury job and they're looking to come back to work, but they use medical marijuana. They use marijuana on a medical basis to control pain or to relieve their symptoms or to enable them to work. Or can we just can we just allow them back? That's their question. Can they come back? And the answer is maybe. I mean, what we want to do is we want to walk the list. We want to make an analysis of it. We want to look at, you know, go back to that job safety analysis that we just talked about. Look at their job, break it down, figure out whether or not it's a safety sensitive job. Would putting them in increase the risk of harm to other people? Can the employee safely return to work in his prior position? Can you modify the position so that he can safely return to work? And can the employee safely perform his job without the use of medical marijuana? And this is a crucial this is a crucial step because he can't use it on site. So if he requires. Uh. Even if it's CBD, if he requires cannabis every two hours, then that means he's using it on site. And the the. Probability that you are impaired at work is much higher, and that is an unacceptable risk. If, however, he's solely using it off site, he only needs it once a day and he's able to take that in his own time, then, yeah, maybe he could probably safely return to the job. So it just depends on what it is. Again, when we're talking about injured workers, what I find the most effective is communication. If the person. Um. Is. Already on or has an issue or is already using cannabis. Then. You're you're you're looking at the fact of is this going to continue? Is this going to escalate? Um, is cannabis going to be the end of it or are we looking at and you're kind of looking down the road of being like, did he have any substance abuse issues in it previously? If no, cannabis is probably it. But if he had substance abuses in the, you know, previously, he may be further down the road, he might be exploring other options and that might create a risk. But you can't make decisions based on future potential risk that might never happen. You have to analyze the data that you actually have. So I have to be very careful with employers by telling them you have to communicate with the injured worker, figure out what is working for them. Figure out the issues that they're having and then compare it. And the ultimate question being, can you safely return to your job? Because everybody wants you to get back to work. Now, when I say that we're going to look at the ADA interactive process and if they can't. Well, let me stop for a second. If they can't go back to work. Then you look at an interactive process to see if you can modify the job or if you can put them into a different job. And we call that the ADA interactive process because there is a clear line of cases under the American Disabilities Act that inform employers how to undergo an interactive process. But I do want to emphasize something really quickly. Even though I state that it's ADA, keep in mind that you are afforded no protections under the ADA for cannabis usage medicinally or recreationally because it is illegal at the federal level. But the interactive process that is that is talked about in those line of cases from the ADA are very important and crucial to this entire process. And obviously the interactive process is a communication and a good faith effort between the employer and the injured worker about accommodations. Can you do the original job? And if you can't, can we modify that position so that you can do it? And if you can't do the modified, do we have another position that we could slot you into? And that's what the whole process of the interactive process is for. It's about working with an injured worker. It's about communicating with them and making sure that they can return safely and and not and also the other workers are protected as well. Okay. Here are some examples of reasonable accommodations of job restructuring. You can modify your work hours, reasonable leaves, additional training, modifications. Like all of those are examples of reasonable accommodations. The main thing that you want to do when you have an interactive process is that you want to make sure that it's uniform and you want to make sure it's consistent. You want to gather information, you don't want to accept blanket statements, and then you want to analyze each request individually. There's not going to be a part where ever, ever you have to walk in. You're going to do the same exact thing. It is an individual process. It is a case by case basis, and you are going to want to show through extensive documentation of the factors that you included to determine whether or not the claimant can return to work safely. What modifications did you consider? What what job restructuring did you consider? What are the other positions that you have that you considered and you declined because you didn't think it was a good fit? All of these things need to be written down, documented in order for you to turn around and. Figure out what would be an appropriate, reasonable accommodation for those individuals. And then the most important thing that I have to say is that you really need to educate your managers and to eliminate informal accommodations. Basically, a really bad example is that a person is a great employee, so I told them to take breaks whenever he needs to. That's not a formal program. It's not a formal policy. It is not something that should be encouraged. We need it to we need the interactive process to be uniform and consistent. I like the fact that, you know, the person's like, Oh, he's a great employee. I'm trying to help him out. That's wonderful. But let's make it a uniform process so that even the person that you don't like, that you think is not a great employee, still gets the same benefit, still gets something consistent, interactive process. And that's the difference. It shouldn't be determinative on how a person feels about another person. That's why the process needs to be uniform and consistent. Now in. So here's at the end, we have a couple more minutes. So I just wanted to point out a few things and which is the most important part in workers compensation we have. We are mainly concerned with safety of the injured worker and preventing worker act workers having accidents. Okay. If an injury does occur, then we're focused on whether cannabis can be utilized, in their case, to control their pain, to help them get back to work or in some other method. There remains a real problem in workers compensation about insurance carriers concerned about the prosecution at the federal level. And these are very real concerns. Because some of the employers are large employers that tend to be targets for the federal government. The the question really becomes is should. The employer or insurance carrier be required to pay for a person's medical marijuana that's being used to treat a work injury. And most of the case law that's coming out of New York, Arizona is saying that, yes, you're required to pay for it. Funnily enough, California and Maine appear to agree that they do not have to pay for it because it's illegal at the federal level. And that's just creating a headache for everyone. But New York has certainly come out in favor of saying that, and they certainly twisted. Uh. The statutory language in order to make this ruling. But they have come out strongly saying if you have an injury and workers compensation in New York, that and your treatment and part of that treatment plan to get you better is cannabis then yes, the worker's compensation insurance carrier has to pay for it. Um, practically, it's getting more difficult for treating physicians to prescribe it. It's difficult to find a doctor that's willing to stick his neck out to prescribe it. And out of those few doctors willing to prescribe it, there is very little rhyme or reason as to how they are prescribing it. It's very much the Wild West where doctors are just prescribing a little bit and then hoping that that works and if the person comes back goes, No, my pain's not controlled, then they'll throw in a little bit more. Um. So it's all very much a gray area. It's a very exciting area to practice in as an attorney because it's one of the few areas that there is not a lot of case law out there. And so you're really kind of making it up or making the case law as you go, which is very exciting from an attorney standpoint, from an employer and business standpoint. It is exhausting the number of calls that we have to field from human resources individuals trying to figure out how to handle someone who has started taking cannabis for an unrelated job injury. How do they handle that? What do they do? And it's really difficult for us now to walk them through that process and do on the spot training. And so literally, I'll get a call and it will be about cannabis and we will have to do it on a case by case basis. That's how complicated cannabis has become in today's world because of the disparity between the state, between and federal, but the spirit between the city and the state. So depending on where the person is located, depending on whether they live in New Jersey and travel to New York or whether they live in New York or they travel to New Jersey, All of these things play into how we can approach the issue of cannabis in the workplace, and there is no simple solution at the moment. There is no timely solution at the moment. And so the best thing I can say is that if you're looking to get into cannabis and you're interested in that, I highly recommend that you take some continuing legal education credits for it. It is a fascinating area to be. There are wide range of opportunities in cannabis, as I mentioned earlier, from worker's compensation in zoning premises, liability, employment issues and constitutional issues. I mean, it is such a wide gamut because the disparity between federal and state is so broad that it's really quite interesting. And I would highly encourage you to check it out because it's a new and burgeoning area that you can certainly dive into and help grow this new body of business and casework that's out there. So if you have any questions, please reach out to me directly. I am happy to answer any of them, but for now, thank you and goodbye.

Presenter(s)

DDL
Debra Doby, LLM
Partner
Vaughan Baio & Partners

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