1. KERSTIN MILLER, ESQ. SMITH & DOWNEY, P.A. Kmiller@smithdowney.com (410) 321-9000 “But My Doctor Says It’s Ok…” Medical Marijuana and Substance Abuse Issues in the Workplace

2. Test Your Knowledge… True or False?  Medical marijuana is legal in Maryland?  Recreational marijuana is legal in Maryland?  Employers have to accommodate employees who use medical marijuana?  Employers can ask about marijuana convictions in a job interview?

3. Medical Marijuana and Substance Abuse in the Workplace Substance Abuse Policies Drug Testing Criminal Background Checks Americans with Disabilities Act Family and Medical Leave Act Government Contractor Issues Workplace Safety Employee Assistance Programs Unemployment Insurance

4. Medical Marijuana in Maryland Background:  Law passed in 2013, Overhauled in 2014 Patient Access:  Certifying physicians approved by State commission  Qualified patients may possess up to a “30-day supply”  Licensed dispensaries distribute medical marijuana  Limited number of licensed cultivators Approved Diagnoses:  List of approved medical conditions  “Catch all”: Any other condition that is severe and for which other medical treatments have been ineffective, if symptoms can reasonably be expected to be relieved by medical marijuana

5. Medical Marijuana in Maryland Current Status:  State received 145 grower applications, 124 processor applications, and 811 dispensary applications  August – September, 2016: 15 growers and 15 processors selected; more than 90 dispensaries selected  Medical marijuana sales expected to start summer of 2017

6. Medical Marijuana in Virginia February 2015 – Gov. signed narrow medical marijuana law Affirmative defense for possession of small amounts of marijuana extract Only applies to individuals with “intractable epilepsy” Patients must get written certification from physician on annual basis

7. Medical Marijuana in Washington, D.C. Medical marijuana law passed in 2010 Patients with a wide range of conditions are eligible to participate May possess up to 2 ounces of marijuana from a State- licensed dispensary

8. Increase in Medical Marijuana Use – D.C. July 2014 July 2015

9. Recreational Marijuana - Maryland April 2014 – Gov. signed law to decriminalize small amounts of marijuana Civil fines Minors and repeat offenders may be referred for assessment of substance abuse disorder, substance abuse education and/or treatment

10. Virginia Washington, D.C. Possession of marijuana = criminal offense November 2014 – D.C. voters approved initiative to legalize limited possession and cultivation of marijuana by adults age 21 and older Recreational Marijuana Surrounding States

11. Best Practices for Employer Drug Policies Can prohibit use of both medical and recreational marijuana  Curry v. MillerCoors, Inc. (D. Colo. 2013)  Casias v. Wal-Mart Stores, Inc. (6 th Cir. 2012) Explain expectations regarding marijuana use during non-working hours, outside of the workplace Drug “use” vs. “impairment”  THC levels in medical marijuana user vs. casual user

12. Best Practices for Employer Drug Policies, Cont. Policy should address prescription medication that may affect employees’ ability to work safely and competently Consequences for refusal to submit to test

13. Drug Testing: Special Rules for Job Applicants Conditional offer of employment Preliminary screening procedure:  Uses single test device that can be administered at worksite  Meets federal FDA requirements for commercial distribution  Meets generally accepted cutoff levels Required retesting for positive results Provisional employment pending test results Required training – privacy and integrity

14. Drug Testing: Random v. Reasonable Suspicion Random = Truly random Reasonable Suspicion  Objective and reasonable suspicion that employee is intoxicated or has ingested drugs while working  Work-related accident or injury  Importance of documentation

15. Drug Testing Procedure Must be performed by State- certified lab  No breathalyzer tests!  No hair samples! Provide notice of name and address of testing lab at time of test, upon request

16. Drug Testing Procedure, Cont. Post-test notice after confirmation of positive drug test:  Copy of lab report  Copy of employer written policy on drugs/alcohol  Written notice of intent to take negative employment action  Copy of state law Verification of test results Consequences for refusal to submit to testing

17. Prescription Drugs Confidentiality: Testing lab may not disclose info. regarding EE use of: (1) legal non-prescription drugs (excluding alcohol); or (2) medically prescribed drugs, unless EE unable to demonstrate lawfully prescribed ERs may have zero-tolerance policy prohibiting EEs from reporting to work impaired (even if caused by a prescription drug) May not terminate EE for prescription drug use without evidence of actual impairment

18. Health Care Facilities and HIPAA Unionized Workforce Increased risk of converting information to PHI Drug testing = mandatory subject of bargaining Unionized employee may have right to consult union rep. before taking drug test Unique Considerations for Drug Testing

19. Criminal Background Checks EEOC: All criminal background checks must be “job- related for the position in question and consistent with business necessity” Maryland:  Impact of decriminalization of marijuana  New expungement laws Ban-the-Box Laws:  Baltimore City  Montgomery County  Prince George’s County  Washington, D.C.

20. Substance Abuse and the Americans with Disabilities Act Drug Addiction  Current use of illegal drugs is not a protected disability Alcoholism  Current alcoholism is a protected disability  May hold alcoholic EEs to the same standards and work conduct rules as other EEs Prescription Drug Use  No requirement to allow EE use of prescription medication to interfere with job performance ADA Interactive Process  Reasonable accommodation: Modified work schedule to attend AA meeting vs. NO right to modified work schedule because hung over

21. Example 1: ADA Issues Sam, a pharmacy technician, is involved in an accident on hospital property while driving into work and is charged with driving under the influence of alcohol. Soon after, Sam receives a termination notice stating that he is being terminated for his misconduct. Sam states that this incident made him realize that he is an alcoholic, and he would like to obtain treatment and continue his job. How should the employer respond?

22. Example 2: ADA Issues Rachel is a nurse whose supervisor has warned her several times about her tardiness. The next time Rachel is late to work, her supervisor issues a written warning stating one more late arrival will result in termination. Rachel tells her supervisor she is an alcoholic, her late arrivals are due to drinking the previous night, and she recognizes that she needs treatment. She asks to take leave for several weeks to enter a rehab program. How should the employer respond?

23. Family and Medical Leave Act “Serious health condition” under the FMLA may include substance abuse May take leave under FMLA for substance abuse treatment referred by or administered by health care provider Qualified treatment may include stay in rehab facility DOL Rule – Need for established policy for discipline based on substance abuse

24. Government Contractor Issues Drug-Free Workplace Act of 1988 requires covered federal contractors to:  Publish and provide drug-free workplace policy statement;  Establish a drug-free awareness program and make good-faith effort to maintain drug-free workplace;  Provide certain notices to employees and federal contracting agency; and  Impose penalty on – or require satisfactory participation in drug rehab program by – any employee who is convicted of workplace drug crime

25. Workplace Safety Occupational Safety and Health Act (“OSHA”) and Maryland OSHA (“MOSHA”):  General duty to provide safe work environment Dram Shop Laws:  Under MD law, ERs generally not responsible for actions of EEs who leave work intoxicated  But proceed cautiously! Workers’ Compensation:  General disqualification for injury caused by EE’s own improper drug use or intoxication  Injury caused by another’s use of marijuana likely covered

26. Employee Assistance Programs What are EAPs?  Programs and/or resources to help EEs identify and resolve personal concerns impacting job performance  Examples: Career counseling, wellness and health promotion, drug and alcohol-related services and referrals Who Should Consider an EAP?  Assess need on a case-by-case basis  Larger employers = greater access to resources, perhaps greater need

27. Employee Assistance Programs, Cont. What are the legal concerns?  ADA - Mandatory referral could give rise to ADA claims (e.g., perceived disability)  EEOC – ER may not force EE with disability to choose between EAP participation or discipline in situations where other EEs would not be disciplined  Other Legal Concerns  ERISA  HIPAA  Affordable Care Act

28. Unemployment Insurance On-the-Job Drug/Alcohol Abuse:  Employees fired for drug/alcohol abuse on the job have engaged in misconduct  Examples:  Claimant drove the employer’s truck while under the influence of alcohol. This was gross misconduct. Howard v. Ray Sears and Son, 517-SE-87.  Claimant took and gave another employee controlled dangerous substances while on dinner break. Both reported back to work, and other employee behaved in crazed manner. This was gross misconduct. Hadaway v. Convention Complex, 98-BR-88.

29. Unemployment Insurance, Cont. Drug Abuse/Alcoholism as Diseases:  Maryland DLLR takes position that drug abuse and alcoholism are diseases  Where alcoholism results in “irresistible compulsion to drink,” resulting absenteeism and performance problems not misconduct for UI purposes  Does not excuse conduct where employee refused chance to get treatment, deliberately failed to complete treatment, and/or has not shown urge to drink is irresistible compulsion

30. Unemployment Insurance, Cont. Refusal to Submit to Drug Testing:  May be grounds for gross misconduct  But ER must follow all legal drug testing procedures  Example: Claimant appeared impaired, smelled of marijuana, and refused drug test against ER’s policy, direct order, and warnings. Claimant could have taken drug test in private. Claimant’s actions were gross misconduct. Conney v. Fort Howard Cup Corporation, 552-BH-88.

31. THANK YOU! Questions?