The Wild, Weedy West: Adjusting to New Marijuana/Hemp Norms Wayne County Negotiators and Personnel Administrators Association http://www.luskalbertson.com/WCNPAA2019 Adam Walker Lusk Albertson Detroit-Grand Rapids AWalker@LuskAlbertson.com @LuskAlbertson / @AJT_Walker
Overview The Legal How We Got Here Marijuana Hemp Other Laws The Practical Employees Students Policy Suggestions
The Legal
How We Got Here: A History Lesson In 1970, Congress classified cannabis as a Schedule I drug under the Controlled Substances Act (CSA). In 2018, Congress passed the Farm Bill – hemp removed from the definition of marijuana in the CSA. BUT the FDA may still regulate hemp. Michigan passed matching legislation soon thereafter. Marijuana still remains illegal federally.
How We Got Here: A History Lesson Hemp definition: “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not , with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis .”
Marijuana in Michigan 2008: Michigan Legislature passed the Michigan Medical Marihuana Act (MMMA). MMMA does not permit possession or use of medical marijuana on school buses or the grounds of a preschool, primary school, or secondary school. MCL 333.26427(b)(2). MMMA provides immunity from penalty or prosecution in certain circumstances, not an affirmative right . Statutes that provide affirmative rights: Title VII, ADA, PWDCRA, etc.
Marijuana in Michigan 2018: Recreational marijuana legalized by voters as the Michigan Regulation and Taxation of Marijuana Act (MRTMA). Must be 21 years of age or older. Does not allow possession or consumption of marijuana on school buses or school grounds. MCL 333.27954(1)(h).
Hemp Industrial hemp legal federally and in Michigan. Various regulatory requirements, but… Key Takeaway : Hemp contains a maximum of 0.3% THC.
Hemp: Cannabidiol (CBD) CBD: Chemical compound derived from the cannabis plant. Does not feature the psychoactive effects present with THC. Found in both marijuana and hemp. Many products – oils and gummies and sprays, oh my!
Enter the FDA FDA has authority to regulate food, drugs, and cosmetics marketed or sold in interstate commerce. The 2018 Farm Bill preserved the FDA’s authority to regulate hemp contained in food, drugs, and cosmetics. This authority includes CBD products derived from hemp. FDA has different requirements for products depending on whether they are a drug, a food (or a dietary supplement), or a cosmetic.
FDA Guidance (https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived- products-including-cannabidiol-cbd#qandas) Are there any CBD products approved as drugs? FDA has approved one cannabis-derived drug product and three cannabis-related drug products, which require a prescription form a licensed healthcare provider. Epidiolex: Intended to treat seizures. Marinol/Syndros: Intended to treat anorexia. Include a synthetic THC as an active ingredient. Cesamet: Treats nausea caused by cancer. Includes a synthetic active ingredient with a chemical structure similar to THC
FDA Guidance (https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived- products-including-cannabidiol-cbd#qandas) Is it legal, in interstate commerce, to sell a food to which THC or CBD has been added? No, because THC/CBD is an active ingredient in an approved drug product and there are substantial clinical investigations regarding CBD. Can THC or CBD products be sold as dietary supplements? No, because for the above reasons, they are excluded from the definition of “dietary supplement.”
FDA Guidance (https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived- products-including-cannabidiol-cbd#qandas) Are cosmetic CBD products legal? Sometimes. Can still be subject to FDA preapproval if the product is intended to: Affect the structure or function of the body. Diagnose, cure, mitigate, treat, or prevent disease. FDA can also regulate a CBD cosmetic if it is unsafe for consumer use or is adulterated or misbranded.
Other Laws Drug-Free Workplace, 41 USC 8101 et seq . Among other requirements, federal grant recipients must enforce a drug-free workplace in good faith or risk loss of the grant. Drugs are defined as controlled substances under the CSA.
Other Laws Every Student Succeeds Act (ESSA), Title IV – 21st Century Schools, 20 USC 7111 et seq . Requires federal fund recipients to foster drug-free environments. “Drugs” are: Controlled substances under the CSA. Alcohol or tobacco used illegally. Harmful, abusive, or addictive substances.
The Practical
Scenario Veronica, a tenured teacher who may only be terminated for non-arbitrary or capricious reasons, tests positive for THC. The District enforces a “zero tolerance” policy that provides employees who test positive for THC are terminated. Veronica claims she has a medical marijuana card and consumed only medical marijuana off-site and after-hours. She asserts that she cannot be terminated for medical marijuana use because it would deny her the property interest she has in her employment.
Employees: Marijuana Employees are not entitled to possess/use recreational or medical marijuana on school grounds. Subject to discipline for violating workplace drug policies. What about employees with disabilities and accommodating their off-site use of medical marijuana outside of work hours? It’s complicated. No Michigan case law – unsettled. Other states have weighed in. Engage in interactive process, even if ultimately refusing to accommodate medical marijuana use (as advised).
Scenario Karen, a school employee, arrives to work with CBD mascara (allegedly) derived from hemp. The School District enforces a Board policy prohibiting possession of any CBD product on school grounds. When Karen is disciplined, she claims that the policy does not apply because the mascara is legal, as it is a cosmetic that does not require FDA approval.
Employees: Hemp (CBD) Not marijuana, but… Actually, it may be (regulatory issues and shady companies). Foods/“dietary supplements” are not legal. But also not “controlled substances.” Recommendation: Complete ban on CBD products pending FDA/legal development. What about the ADA/PWDCRA? Again, unsettled territory. Use the interactive process.
Scenario Donovan, a school employee who suffers from seizures, comes to work with a prescription for the FDA-approved medication Epidiolex. The School District enforces “no tolerance” policies for THC and CBD. Donovan seeks an exemption from the School District’s testing policy as a reasonable accommodation for his disability of epilepsy.
Scenario Matthew, a special education student, suffers from frequent seizures. One day, his parent advises the School District that a doctor has prescribed Matthew the CBD medication Fepidiolex, which allegedly is intended to treat seizures. The bottle claims Fepidiolex is “derived from hemp” and that it “typically” contains less than 0.3% THC. Fepidiolex has not been approved by the FDA.
Students No recreational marijuana issue. What about medical marijuana and special education students? Not required to provide illegal substance. What about CBD oil at school and special education students? Case law goes both ways. Not FDA approved, could be harmful, could actually be marijuana and not hemp…but try to reach an alternative accommodation with the parent(s).
Scenario Jen, an 18-year-old general education student with a medical marijuana card, shows up to school with marijuana in her purse, which is clearly visible to the building principal. She is suspended under the School District’s anti -drug policy, which specifically prohibits marijuana on school grounds. Jen claims she is entitled to have the marijuana at school (but not use it) because she is of legal age.
Policy Suggestions (Marijuana) For both students and staff, maintain a policy categorically banning the use or possession of marijuana (recreational or medical) on school grounds. Mirrors MMMA and MRTMA statutory carve-outs that otherwise generally allow recreational/medical marijuana use.
Policy Suggestions (Marijuana) Example language that may be added to alcohol and drug- free workplace policy: “Notwithstanding state permissibility, the use and possession of marijuana, and marijuana-induced intoxication, are prohibited on school grounds. Employees who test positive for THC are subject to discipline regardless of the source of the THC, consistent with the law.” Recommended policy language allows for flexibility where employees test positive for THC. If developing law in the future requires reasonable accommodation for use of medical marijuana at home (not at school), recommended language covers such scenarios.
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