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Marijuana and Employment: Removing the Smoke Screen

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Marijuana and Employment: Removing the Smoke Screen ICurrentN DevelopmentsBRIEF in Maine Law SPRING ISSUE 2018 / VOL. 30, NO. 2 Index MARIJUANA AND MAINECARE LONG TERM NHD RECOGNIZED BY 1 EMPLOYMENT: REMOVING 6 CARE BENEFITS FOR THE 11 CHAMBERS & PARTNERS THE SMOKE SCREEN ELDERLY WORKERS’ COMPENSATION: RECENT DECISIONS FROM 3 LAW COURT AND APPELLATE 9 THE LAW COURT DIVISION DECISIONS Marijuana and Employment: Removing the Smoke Screen By: Jessica S. Smith, Esq. he first half of 2018 has been a roller Can I refuse to hire someone or fire an JESSICA S. SMITH Tcoaster of a year for marijuana law in employee that uses marijuana outside Maine. The moratorium on recreational of work? marijuana use ended; the Law Court found No, the fact that someone uses that Maine’s Workers’ Compensation Board marijuana outside of the workplace cannot cannot force an employer/insurer to pay for be the reason you refuse to hire or adversely medicinal marijuana; the FDA has approved • Discipline employees under the affect his or her employment. However, influence of marijuana while engaged the first prescription drug with the marijuana impairment while at work or poor job component CBD; and the Maine Legislature in activities within the course and scope performance can be the reason for refusal of employment. overrode three vetoes by Governor LePage to hire or discipline an employee. Under the regarding a bill to legalize recreational Marijuana Legalization Act, 28-B M.R.S. The important thing is that employers have marijuana and two bills rehabbing Maine’s § 112, an employer may create workplace policies in place that prohibit marijuana medical marijuana laws. policies that: use and impairment and they consistently follow those policies. Such policies might All this activity has Maine employers • Prohibit marijuana in the workplace; asking where they stand when managing include a Drug Free Workplace, those that their employees. This article will address the • Restrict marijuana use in the workplace prohibit smoking any substance while at questions employers are asking and what the and within the course and scope of work, and that impose discipline for poor law is today. employment, and work performance. INBRIEF Current Developments in Maine Law How to determine if an employee is positive, then an employer can refuse to hire However, an employer is not responsible using marijuana at work? the employee, change the employee’s work under the Workers’ Compensation Act Maine’s substance use law has not assignment, impose discipline, or terminate for paying the cost of medical marijuana caught up to the legalization of recreational the employee. 26 M.R.S. § 685. However, prescribed for an injured worker under marijuana. The law regarding recreational while traditional drug testing can detect MMUMA. Gaetan Bourgoin v. Twin Rivers use of marijuana is clear that an employer marijuana, marijuana stays in a person’s Paper Company, LLC, et al., WCB-16-433, can discipline an employee who is high at system for several weeks. A test that reads 2018 ME 77 ( June 14, 2018)( J. Hjelm) For work; however, what constitutes sufficient positive for marijuana does not prove that a more detailed discussion of Bourgoin, see proof is still uncertain. the employee is under the influence at the the accompanying article in this issue on time the test was taken. workers’ compensation appellate decisions. An employer is able to drug test an employee if they have an approved substance As an alternative, an employer can Significantly, to support its decision in use testing policy and a compelling reason to conduct an impairment analysis to document Bourgoin, the Law Court cited two cases that believe the employee is under the influence. why they believe an employee is impaired. found that employers were not required 26 M.R.S §§ 683, 684. If the employee An impairment analysis considers an to accommodate employees who used refuses to take the test or the employee tests employee’s physical characteristics, workplace medical marijuana, because the federal behaviors, and work performance as evidence CSA preempted state medical marijuana of impairment. If an employer suspects law. This is a strong indication the Law an employee is high at work, they must Court would find in favor of the Employer “THE IMPORTANT THING document why they believe the employee is in an accommodation or discrimination suit under the influence. The person conducting based on the use of medical marijuana. “[A] IS THAT EMPLOYERS the analysis should have a witness to confirm person’s right to use medical marijuana and corroborate any findings. cannot be converted into a sword that HAVE POLICIES IN Can I refuse to hire or fire someone would require another party…to engage who uses medical marijuana? in conduct that would violate the CSA”. PLACE THAT PROHIBIT Bourgoin, at ¶ 24. No, the Maine Medical Use of Marijuana MARIJUANA USE AND Act (MMUMA) allows an employee to use How does the federal law affect an medical marijuana and their employment employer’s state law requirements? IMPAIRMENT AND THEY cannot be adversely affected because they This area of the law is still very much use medical marijuana. As of July 9, 2018, developing. The Department of Justice CONSISTENTLY revisions of MMUMA became law. These under the Obama administration had issued revisions not only protect patients and their an advisory letter stating that the federal FOLLOW THOSE caregivers, but also anyone that is involved government was not going to delegate in the marijuana industry. Therefore, the resources or funds to prosecuting parties that POLICIES. SUCH fact that an applicant or employee works or violated the federal CSA when complying has worked at a marijuana manufacturing with state law. However, the Trump POLICIES MIGHT facility, a manufacturing testing facility, or for administration issued a rescission of this INCLUDE A DRUG FREE a dispensary cannot be a factor in the hiring policy. In Bourgoin, the Law Court found that process or be the basis of any change to an this policy was transitory and that whether or WORKPLACE, THOSE employee’s terms of employment. This also not the federal government was committed to applies to directors and officers associated enforcing the law, it had nothing to do with THAT PROHIBIT with these organizations. the existence of the law. “The magnitude of Can an employer regulate the use of the risk of criminal prosecution is immaterial SMOKING ANY medical marijuana at the workplace in this case. Prosecuted or not, the fact at all? remains that Twin Rivers would be forced SUBSTANCE WHILE AT to commit a federal crime if it complied with Yes, the law does provide that an the directive of the Workers’ Compensation WORK, AND THAT employer can prohibit employees from using Board.” Bourgoin, at ¶ 28. medicinal marijuana if their use would put However, on June 25, 2018, the FDA IMPOSE DISCIPLINE the employer in violation of federal law, or if an employee’s administration of marijuana approved the first prescription derived from a component of the marijuana plant. The FOR POOR WORK on the premises of the business is inconsistent with the use of the premises. Additionally, prescription is Epidiolex and is derived from CBD, a component of the marijuana PERFORMANCE.” an employer can prohibit the smoking of marijuana on its premises if it prohibits all plant, which does not cause euphoria or smoking (marijuana, tobacco, e-cigarettes). intoxication like the THC component of the 22 MRS § 2430-C. plant. Epidiolex is approved to treat seizures in children who suffer from Lennox-Gastaut 2 INBRIEF Current Developments in Maine Law and Dravet syndrome.; Because CBD is Summary of what an employer can 6. Refuse to be complicit in any activity classified as a Schedule I Drug and is illegal do to limit marijuana use in the where the employer would necessarily for use under the CSA, the developer of workplace: violate federal law to comply with state Epidiolex conducted studies to assess the 1. Prohibit employees from using recreational marijuana laws. abuse-potential of the drug in order to win marijuana at work or coming to work In conclusion, the legal landscape DEA approval for medical use. Prior to the impaired. surrounding marijuana use in the workplace, actual release of the drug for prescription especially the use of medical marijuana, use, the DEA and FDA will review the data 2. Discipline employees under the influence of recreational marijuana while engaged is volatile. New state and federal laws and to make a scheduling determination for regulations, as well as court decisions, Epidiolex, separate from marijuana. in activities within the course and scope of employment. will continue to influence an employers’ While this new approval and new obligations to employees who use marijuana. scheduling does not affect Maine Law at 3. Conduct drug testing of employees who Future interpretations of the Law Court’s the moment, it could in the future. The new an employer reasonably believes is under decision in Bourgoin are likely to have a schedule classification of Epidiolex opens the the influence of recreational marijuana. significant impact on how employers comply door for rescheduling and FDA approval of 4. Prohibit smoking or the administration of with state laws and regulations. other CBD based prescriptions. If CBD or medical marijuana on workplace premises. specific prescriptions that contain CBD are 5. Refuse to pay for medical marijuana no longer Schedule I drugs, the manufacture, prescribed for an injured worker under distribution, dispense, or possession would the Workers’ Compensation Act. not be illegal under the CSA. Workers’ Compensation: Law Court and Appellate Division Decisions By: Stephen W. Moriarty, Esq. STEPHEN W. MORIARTY Employer Responsibility for Medical prescribed under medical supervision in were inconsistent with each other. Marijuana accordance with a state law. Under MMUMA The issue was finally addressed in a ince the enactment of the Maine Medical a “qualifying patient” may be prescribed recent decision of the Law Court.
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