The Law On Marijuana Consumption What Vending Operators Need To Know

Playing It Safe: Introduction

Heather Bailey

Heather Bailey, a partner with Chicago-based law firm Smith Amundsen, set forth dos and don'ts to help operators abide by new laws and educate and accommodate their employees. Bailey addressed the topics at the National Automatic Merchandising Association's Coffee Tea and Water show in Dallas.

The most recent CTW attracted 750 industry professionals focused on building their total refreshment service businesses in what has become the industry's fastest-growing segment. The educational program, based on topics recommended by NAMA members, was designed for sales executives and senior managers, as well as owners.

Bailey's presentation, titled "Pot-Smokin', Gun-Carryin' Drivers: The Law on Medical Marijuana and Carrying Concealed Weapons," explored a timely topic on the minds of today's route operators who face greater liabilities amid an increasingly confusing legal landscape. In our "Playing It Safe" series, Vending Times senior editor Emily Jed reports on guns, pot and operators in two articles. Click here for Jed's story on concealed weapons laws.

Understanding The Law On Employees' Marijuana Usage

At this writing, some 23 states have legalized marijuana in one form or another. States permitting its medical use are Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont. Marijuana for recreational use is legal in Alaska, Oregon, Colorado and Washington.

Regardless of state law, marijuana in any form is still illegal under federal law. In some states, medical marijuana will not be available or legal until their administrative rules are finalized and implemented.

Legal expert Heather Bailey explained that there are a lot of players developing those rules, including the states' departments of public health, which handle applications, registration forms and fees for users, and oversee marijuana product manufacturers. They also regulate use in nursing homes and healthcare facilities.

The U.S. Department of Agriculture oversees cultivation and transportation of marijuana and the Department of Financial and Professional Regulation is in charge of applications, registration forms and fees, and rules for dispensaries.

"The problem is that, in many states, no one is addressing issues for employers or civil claims," Bailey said. "We're winging it."

When it comes to medical marijuana, the person using it must be a state resident over 18 years old, and have a debilitating medical condition or treatment listed in the law or approved by a state's department of public health.

Some states -- Illinois and Montana, for instance -- require that the patient be registered in the state, and will not recognize medical marijuana cards from other states. Arizona, Delaware, Maine, Michigan, New Hampshire and Rhode Island do recognize out-of-state cards. Other states are silent. "You don't know if they do or don't in those states," Bailey explained. "Another concern is that the law does not differentiate between severe and minor cases of a listed medical condition; and different states have different definitions."

Bailey went on to explain that registered patients and caregivers are allowed to purchase or possess from two ounces to six ounces of marijuana. Each state has different limits on the allowable amount.

Marijuana access rules also vary widely. Many states only permit access through state-licensed dispensaries and cultivators; they do not allow users to grow their own. Additionally, most states restrict dispensaries from getting their marijuana from out-of-state producers; some others have no restrictions on sourcing.

Marijuana 101

Bailey pointed out that many employers are not aware of the effects of marijuana, or that it's not just being smoked. The key substances in marijuana are Delta-9-Tetrahydrocannibinol (THC), which causes a hallucinogenic, euphoric or "high" feeling, and Cannabidiol (CBD), which creates a feeling of being relaxed or "stoned."

Bailey observed that the potency of THC in marijuana has increased from 1% in the 1970s, to 3% to 4% in the 1990s, to nearly 13% today. And medical marijuana potencies can be greater than 30%.

In addition to being inhaled, it can be added to food products like brownies, candy bars, chocolates, cookies and lollipops, as well as sodas and teabags. Depending on how it is consumed, the active components create a "high" or impairment that can last for several hours.

The absorption rate of marijuana depends upon the amount of the drug taken and the method in which it's taken. Smoking marijuana results in immediate absorption through the lungs and the effect is almost immediate, lasting two to three hours. Most behavioral and psychological effects return to baseline levels within four to six hours after drug use, although residual behavioral effects can last for 24 to 48 hours.

Eating marijuana products results in a slower rate of absorption, with the effects starting within one to two hours and causing a high that can last anywhere from two to more than eight hours. Most behavioral effects return to baseline levels within nine to 11 hours after drug use. Residual effects can last 24 to 48 hours, similar to smoking.

Bailey emphasized the importance of understanding the workplace implications of the variation in the speed with which the effects dissipate. The "high," or impairment, generally dissipates more quickly when pot is smoked than when it's eaten. "If they smoke it in the afternoon, they may not be high in the morning. But if they eat it at the end of their shifts, you may see effects in the morning," she said.

Meanwhile, the inactive components that indicate the use of marijuana in drug tests stay in the system anywhere from a week to several months, depending upon the level of use. For chronic users, THC and other cannabinoids can accumulate in fatty tissues. Elimination from the system is not gradual, as it is with alcohol.

"If your driver gets in an accident and took marijuana two weeks ago, you see what we're dealing with ..." Bailey warned.

She explained that urine analysis is the most common test, but does not recognize impairment. It tests only for the presence of the non-psychoactive metabolite THC-COOH that shows if marijuana has been used, not whether active psychoactive components are still present.

Blood tests can show the levels of active psychoactive component, and some states are even setting levels similar to blood alcohol content for driving under the influence. Saliva tests potentially can show within several hours of the sampling, but their reliability is still questionable. "They're still trying to figure out the best way to test for marijuana because of the inactive agent that shows up," noted Bailey.

Legal Or Illegal?

Federal law still classifies marijuana as a Schedule I illegal substance and the Department of Justice continues to prosecute violations of federal law to enforce certain goals and priorities. However, DOJ guidance provides that it will not consider state medical marijuana laws to conflict with federal laws if "strong and effective" regulations are enacted and enforced.

"The Department of Transportation and other federal agencies that enforce employment standards have made clear that a positive drug test for marijuana is still illegal," Bailey noted. "If you have federal contracts, receive federal funding or are regulated by federal agencies that have drug-testing requirements, your policies will not be impacted. If you have routes with federal customers, like post offices and court houses, they prohibit their employees from being impaired that way."

The interplay between the Americans with Disabilities Act and Family Medical Leave Act is also important for employers to consider. Neither the ADA nor the FMLA recognizes medical marijuana as a medical treatment. Employers do not have to accommodate an employee's disability or provide FMLA leave to allow an individual to use marijuana.

However, Bailey made operators aware that an underlying medical condition can be considered a disability and that symptoms listed by state laws also can be symptoms of disabilities.

"Keep up to date on the law and drug classification of marijuana," she stressed. "Under the ADA, employers may ask and test for prescription drugs only when 'job related and consistent with business necessity.' If marijuana is reclassified, it could be considered a prescription drug under the ADA."

There are exceptions and protections under state law that add to the confusion. In Illinois, for example, employers may prohibit employees who are registered users from using, possessing or being impaired by marijuana, while on their premises and during hours of employment.

Employers also can enforce drug-testing policies, including zero tolerance and a drug-free workplace, if applied in a nondiscriminatory fashion. However, employers are prohibited from discriminating against registered users, unless failing to do so would violate law or impact federal funding and licensing.

"Conflicting statements? Yes!" said Bailey. "You have to enter into an interactive process to determine under ADA what's reasonable. No one will tell employers what and what not to do. You have to balance it and put it upfront in your handbook."

That may mean giving employees three weeks off for chemotherapy treatment, but not say it's because of medical marijuana use. "You have to look at the accommodation. Puffing on a joint on their lunch breaks is not a reasonable accommodation," Bailey suggested. "If your driver has to be on the road, maybe don't tell them not to use medical marijuana, but maybe permit them to come in later."

Employers must also decide on drug-testing policies or reevaluate those in place given new medical marijuana laws. One option is zero tolerance and a drug-free workplace, which aligns with federal policies if operators are subject to federal contracts or regulations concerning drug-free workplaces. However, such policies can create the potential for discrimination claims in cases where there are no federal contracts or regulations. "It must be applied to everyone consistently," explained Bailey.

Employers can also opt for a case-by-case analysis drug-testing policy that provides employees and applicants reasonable opportunity to contest being tested. With such a policy, marijuana is treated like a prescription drug, but only if the individual is a registered user. Bailey cautioned that this might create potential for accidents and damages, but also said it potentially limits discrimination claims.

"You have to decide as an employer what to do. Is it one strike and you're out, or case-by-case analysis? We're walking on new ground here," Bailey said. "Clarify your position on marijuana and medical marijuana. Determine whether you want to prohibit or identify it as an illegal drug by stating, for example, that policies prohibit use of any illegal drug as defined by federal law."

Employers should also spell out consumption and timekeeping requirements; specifying that pot consumption is not allowed while working or on breaks, for instance. They should also reevaluate the types of tests used for drugs and alcohol, the circumstances under which testing will be done and how positive tests for marijuana are treated when the individual is a registered user.

When it comes to employer liability for terminating employees related to marijuana use, a majority of states only provide protection from criminal prosecution. Courts in California, Oregon, Washington and Montana have upheld employers' decisions to terminate medical marijuana users for positive drug tests. The courts' positions in those states were that those medical marijuana statutes protect patients from criminal sanctions, but they did not create civil remedies or employment protections.

Bailey noted that Illinois law strictly prohibits discrimination based on an employee's being a registered user. Employees may have claim against an employer if adverse employment action was not based on a "good faith belief" of impairment or use. Third parties may also have claim against employers for damages and injuries caused by the employee if the employer knew or had reason to know the employee was impaired.

The law provides a list of symptoms that an employer may use to determine if an individual is impaired. It can include decreased performance of job duties; impaired speech, physical dexterity, agility or coordination; irrational or unusual behavior; or negligence, carelessness or disregard for the safety of self or others. Before disciplining anyone based on observed symptoms, it's important that the employer provide the employee with a reasonable opportunity to contest the basis of the determination.

Bailey urged operators to review and update job descriptions based on how prescription drugs or medical marijuana impairment would impact a position's job duties and essential functions. She suggested identifying and defining "safety-sensitive" positions and considering their essential functions.

"You don't want to say no to medical marijuana, but you can say that they must pass a drug test and be constantly alert and aware of their surroundings to drive in a safe manner," she said.

The legal expert advised operators to develop procedures and forms for dealing with medical marijuana and suspected impairment, and to revise reasonable suspicion procedures to include symptoms identified in law -- and make sure their procedures comply.

Reasonable suspicion can be aroused by acting anxious, irritable, suspicious or depressed, emotional instability, and manifesting mood changes after lunch or a break. "You might see a change in demeanor, like glassy eyes, that you may not see in the morning, but you see after lunch," she instanced. Other red flags include absenteeism, accidents and interactions in relationships with coworkers. Bailey said that state and federal confidentiality/HIPAA laws require employers to keep medical records and information confidential and in separate medical files, and that this includes medical marijuana.

It remains unclear whether employers will have to pay for medical marijuana as a treatment for a work-related injury. Additionally, the language in many workers' compensation acts still provides that when an employee is "intoxicated" on cannabis, the injury is presumed to be related to the intoxication, rather than the work.

"Still, some states have held that even where the employee has used medical marijuana and was injured at work that the injury is compensable," Bailey said. The Montana Supreme Court recently upheld a worker's compensation court ruling that about $65,000 in medical bills incurred by a man who was mauled while feeding the bears at a tourist attraction should be covered by workers' comp, despite the fact the man had smoked marijuana on the day of the attack.

"Educate your employees on your position toward medical marijuana. Address medical marijuana use and impairment in safety training and orientation," Bailey recommended. "Go through potentially dangerous impairing effects of marijuana in the workplace. Address any changes to your policies and get new acknowledgement that your employees are aware. And address ADA and reasonable accommodation concerns."

It's also critical for operators to educate supervisors on policy changes, and to train them to recognize signs of impairment due to use of marijuana, as well as alcohol and other substances. "You want to be able to say that you trained your management to look for signs if there's an accident," Bailey said. "Address your procedures for responding to questions from an employee or applicant who is a registered user, and about the use and storage of medical marijuana. And make clear the confidential medical nature of information about employees or applicants who are registered users of marijuana."

When a supervisor has reasonable suspicion of impairment from drug use, Bailey said, the next steps are observing and documenting the current indicators with a witness, as well as possession of paraphernalia and/or marijuana or other substance, and making a determination as to whether a drug test is needed. With the legislation around medical marijuana still being shaped, Bailey emphasized that much of the responsibility is on operators to do careful homework and tread lightly to make sure they're in compliance.

SEE ALSO:

The Law On Concealed Weapons: What Vending Operators Need To Know