1. Law Office of Phillip J. Griego 95 South Market Street, Suite 500
WEED AT WORK
Law Office of Phillip J. Griego
95 South Market Street, Suite 500
San Jose, CA 95113
Law Office of Phillip J. Griego © 2017

2. Federal Controlled Substances Act 1970.
Federal Controlled Substances Act 1970
Regulates manufacture and distribution of controlled substances
Drugs categorized into 5 “Schedules”, based on potential for abuse, psychological and physical effects, and medical benefits
Marijuana classified as Schedule 1, considered a harmful substance with no medical benefits.

3. Federal Controlled Substances Act 1970
Drugs / Substances listed in DEA Schedule I include:
Heroin (diacetylmorphine)
LSD (Lysergic acid diethylamide)
Marijuana (cannabis, THC)
Mescaline (Peyote)
MDMA (3,4-methylenedioxymethamphetamine or “ecstasy”)

4. Federal Controlled Substances Act 1970
GHB (gamma-hydroxybutyric acid)
Ecstasy (MDMA or 3,4-Methylenedioxymethamphetamine)
Psilocybin
Methaqualone (Quaalude)
Khat (Cathinone)
Bath Salts (3,4-methylenedioxypyrovalerone or MDPV)

5. Federal Laws & Penalties: Possession
OFFENSE
PENALTY
INCARCERATION
MAXIMUM FINE
Any Amount
(First Offense)
Misdemeanor
1 Year
$1,000
(Second Offense)
15 Days* - 2 Years
$2,500
(Subsequent Offense)
Misdemeanor or Felony
90 Days* - 3 Years
$5,000
*Mandatory minimum sentence

6. Federal Laws & Penalties: Sale
OFFENSE
PENALTY
INCARCERATION
MAXIMUM FINE
Less than 50 kg
Felony
5 Years
$250,000
50 – 99 kg
20 Years
$1,000,000
100 – 999 kg
5 – 40 Years
$500,000
1000 kg or more
10 Years - Life
Sale of paraphernalia
3 Years
N/A
To a minor or within 1000 ft. of a school, or other specified areas carries a double penalty

7. Federal Laws & Penalties: Cultivation
OFFENSE
PENALTY
INCARCERATION
MAXIMUM FINE
Less than 50 plants
Felony
5 Years
$250,000
50 – 99 plants
20 Years
$1,000,000
100 – 999 plants
5 – 40 Years
$500,000
1000 plants or more
10 Years - Life

8. Federal Drug Enforcement Administration 1973
Intended to regulate sale and use of controlled substances, responsible for enforcement of CSA
Responsible for the scheduling of drugs

9. Federal Drug-Free Workplace Act 1988
You must have a Drug-Free Workplace Program in place if:
Your non-commercial organization has contracts of $100,000 or more with federal government
If you receive a federal grant in any amount

10. Other Reasons for a Drug-Free Workplace
If employees work around sophisticated equipment such as fiber optics or lasers
To decrease accidental injuries in the workplace
Establish clear drug policies and avoid expensive litigation

11. Federal Drug-Free Workplace Act 1988
Requirements set forth:
Publish and distribute a policy statement to employees, specifying the actions that will be taken if drug policy is violated

12. Requirements under the Drug-Free Workplace Act
Create a drug-free awareness
Dangers of drug abuse in workplace
Penalties that may be imposed for violations
Any available drug counseling, rehabilitation, EAPs

13. Requirements under the Drug-Free Workplace Act
Notify employees that as a condition of employment on a Federal contract or grant, employees must:
Abide by terms of policy statement
Notify the employer within 5 days if convicted of criminal drug violation in workplace

14. Requirements under the Drug-Free Workplace Act
4. Alert contracting or granting agency within 10 days after notice of employee conviction of criminal drug violation in workplace
5. Impose penalty or require participation in drug abuse assistance or rehabilitation by any employee convicted of workplace drug violation

15. Requirements under the Drug-Free Workplace Act
6. Maintain ongoing, good faith effort to maintain a drug-free workplace under the requirements of the act.
No mandate for employee drug testing. Department of Labor maintains that Congress did not intend to impose any additional requirements.

16. Drug Testing for Marijuana
Most testing methods don’t test for current, probably or even recent usage or impairment (urinalysis, oral swab, follicle)
Employees can test positive without being impaired at the time (may stay in system for several months for chronic users)
Testing positive does not prove impairment (argument of tolerance)

17. Department of Transportation
Specifically prohibits the use of medical marijuana for transportation works in safety-sensitive jobs (pilots, school bus drivers, truck drivers, subway operators, ship captains, etc.)
Requires that employers subject safety-sensitive employees to regular and/or random drug testing

18. State Law vs. Federal Law
Potential conflicts typically rest on distinction between decriminalization and legalization
Decriminalization: removed criminal penalties for possession and use
Legalization: permitted recreational use

19. State Law vs. Federal Law
CA & AZ have decriminalization laws for medical use that don’t conflict with federal law
Doesn’t prevent federal officers from enforcing federal law, only prosecution under state law; state law not preempted

20. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries
Supreme Court of Oregon determined that legalization laws do conflict federal law since they obstructs enforcement of federal law
However, sections regarding decriminalization were not preempted

21. Coats vs. Dish Network, LLC
Quadriplegic employee licensed to use medical marijuana tested positive – no other workplace violations
Colorado Supreme Court held that its state’s “lawful” activities statute does not protect activities not lawful under federal law

22. Drug Policies Zero Tolerance (Safest) v. Compassion (Risky)
Employers must balance their right and duty to maintain a safe work environment with ethical, if not legal, obligations for accommodating employees with disabilities
No federal requirement to accommodate use of marijuana because it remains an illegal Schedule 1 hallucinogen under federal law

23. Drug Policies
Consider accommodation of employees who have legal right to use to the extent that the employees remain qualified for work
Employers DO NOT HAVE to accommodate employees who have the legal right to posses/use medical marijuana

24. Labor Code Section 1025
Employers with 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehab program, provided it does not impose undue hardship on employer

25. Labor Code Section 1025
Nothing in this chapter shall be construed to prohibit an employer from refusing to hire, or discharging an employee who, because of the employee's current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others

26. GUIDELINES FOR A SUCCESSFUL DRUG-FREE WORKPLACE
Have a written policy
Rationale (e.g., laws, regulations, goals)
Expectations for compliance
Options offered for assistance (e.g., EAP)
Consequences for violating policy (i.e. discipline, referral for assistance, termination)

27. GUIDELINES FOR A SUCCESSFUL DRUG-FREE WORKPLACE
2. Employee Education
Dangers of drug abuse in the workplace
Policy of maintaining a drug-free environment
Available drug counseling and rehabilitation
Penalties imposed for drug abuse violations

28. GUIDELINES FOR A SUCCESSFUL DRUG-FREE WORKPLACE
Supervisor Training
Details of drug-free workplace policy and implications
How to recognize and deal with employees who have performance problems potentially related to substance abuse.
How to refer employees to available assistance

29. GUIDELINES FOR A SUCCESSFUL DRUG-FREE WORKPLACE
4. Employee Assistance Programs (EAPs)
5. Drug Testing: pre-employment screenings, reasonable suspicions of use, post-accident, return-to-duty, random and periodic testing

30. MOST IMPORTANTLY
Provide clear, ongoing communication to employees about the company’s drug policies so that they do not assume consuming state-legalized marijuana will have no impact or consequence.

31. Law Office of Phillip J. Griego 95 South Market Street, Suite 500
Questions & Answers
Law Office of Phillip J. Griego
95 South Market Street, Suite 500
San Jose, CA 95113
Law Office of Phillip J. Griego © 2017