Finding the balance between employer policies and the use of - PowerPoint PPT Presentation

Finding the balance between employer policies and the use of permitted medical marijuana Stephen C. Lattanzio, Principal Attorney The Connecticut Department of Labor August 11, 2017 1

Purpose of Program • Academic advancement of the law • No jeopardy to any participant • CTDOL is complaint-driven; agency duty bound to investigate if complaint filed. • “Method to the Madness” August 11, 2017 2

Overview • Highlights of § 21a-408 et seq. » Definitions » Main provisions • Interplay with Existing Federal/ State Law • Practical Considerations • Physician’s (MRO’s) Perspective August 11, 2017 3

Highlights of Conn. Gen. Stat. §21a-408 et seq. • Signed by Governor Malloy – May 31, 2012 • Effective October 1, 2012 • Department of Consumer Protection » Has regulatory authority • Two (2) Main Impacts to Workplace: – (1) Prohibition Against Adverse Employment Actions; and – (2) Prohibition of Palliative Use at Workplace August 11, 2017 4

Definitions • “Palliative Use” – § 21a-408(6) – “the acquisition, distribution, transfer, possession , use or transportation of marijuana or paraphernalia…from the patient’s primary caregiver to the qualifying patient , to alleviate a qualifying patient’s symptoms of a debilitating medical condition …” (Emphasis added.) August 11, 2017 5

Definitions (cont.) • “Qualifying Patient” - § 21a-408(10) • 18 years of age or older • Resident of Connecticut • Has been diagnosed by a physician as having a debilitating medical condition • Must register with DCP to obtain valid registration certificate prior to engaging in use. August 11, 2017 6

Definitions (cont.) • Difference in Definition of “Employer” – § 21a-408p(a)(3) - …means a person engaged in business who has 1 or more employees, including the state and any political subdivisions of the state . – § 31-51t - …means any individual, corporation, partnership or unincorporated association, excluding the state or any political subdivision thereof. August 11, 2017 7

Definitions (cont.) • Question/Thoughts???: • What if a municipal employee claims he/she was fired for palliative use of marijuana – does the CTDOL have jurisdiction? • Municipality definition – Not an “employer” per § 31-51t – An “employer” per § 21a-408p(a)(3) DCP has exclusive jurisdiction. August 11, 2017 8

Definitions (cont.) • “Debilitating Medical Condition” – § 21a-408(2) • List of medical conditions including cancer, glaucoma, Parkinson’s disease, MS, etc., OR Any medical condition approved by the Department of Consumer Protection (DCP). August 11, 2017 9

Medical conditions (cont’d) • Currently, there are: • 22 conditions for adults * ; and • 6 conditions for children under 18 years old. * Includes 7 conditions recommended by Medical Marijuana Program Board of Physicians August 11, 2017 10

I. No Adverse Action – §21a-408p(b)(3) • No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver. • In effect, creates a protected class for • Qualifying patients; and • Primary caregivers. August 11, 2017 11

No Adverse Action (cont.) • Obvious significance of the word “solely” • Limiting word • Places high burden on person/employee to prove no other factor entered employer’s decision-making process. • May employer consider marijuana use as one of many factors? August 11, 2017 12

Benefit of Certification • Qualifying patients and caregivers are immune from arrest and prosecution under state law, and cannot be subject to civil or other penalties. • Query: What about federal law? (See slides beginning at #36.) August 11, 2017 13

II. Use at Workplace • Statutory Language - § 21a-408p(b)(3)&(c) – “Nothing…shall restrict an employ er’s ability to: • Prohibit the use of intoxicating substances during work hours or • Discipline an employee for being under the influence of intoxicating substances during work hours.” August 11, 2017 14

Definition of “Palliative Use” “…the acquisition, distribution, transfer, possession , use or transportation of marijuana or paraphernalia relating to marijuana, including the transfer of marijuana and paraphernalia relating to marijuana from the patient’s primary caregiver to the qualifying patient… but does not include any such use of marijuana by any person other than the qualifying patient . (Emphasis added.) See Conn. Gen. Stat. § 21a-408(6) August 11, 2017 15

Use at Workplace (Cont.) • Nothing shall be construed to permit : the palliative use of marijuana in violation of § 21a-408a(b). • § 21a-408a(b)(2): – No protection for “ ingestion ” of marijuana • In the workplace ; • In a motor bus or school bus; • In any public place; • In presence of person under age 18. August 11, 2017 16

Possession v. Ingestion: (Cont.) • § 21a-408(6) – Includes “possession” in definition of “Palliative use” • § 21a-408a(b) – Prohibits “palliative use” that is “ingestion” • Apparent difference between the words “possession” and “ingestion”? (Yes) August 11, 2017 17

Use at Workplace (Cont.) • Net Effect = Same treatment as any other “intoxicating substance” at work – Employer can regulate intoxication at workplace (“during work hours”) • Thus, employer is free to regulate being “under the influence of intoxicating substances” • Words “intoxicating substances” chosen carefully • Exact same language used in § 31-51y(b) August 11, 2017 18

Use at Workplace (Cont.) • Current Drug Testing Statute – § 31-51x provides: • Employer may subject employee to reasonable suspicion testing if employee “is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance …” • Note the use of the present tense language. • Observations must be contemporaneous with request to test. August 11, 2017 19

Questions: • Age-old Question = Possession • Queries: • Can mere possession of marijuana by a qualifying patient subject employee to an adverse employment action? – Only to extent the possession violates § 21a-408a(b), that is, “ingestion.” August 11, 2017 20

Possession v. Ingestion • Current State Drug Testing Law – Requires that employee “is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance …” • Seems to presume ingestion • Seems to require manifestation of symptoms • Mere possession is insufficient basis August 11, 2017 21

Questions (Cont.): • May employee use/ingest marijuana off site during course of work day? – Possibly to the extent that the employee does not become “under the influence of intoxicating substances” at work place. August 11, 2017 22

Impact to Drug Testing • Employer may test to same extent as any other legitimately prescribed drug medications. • Reminder : CTDOL only regulates urinalysis drug/alcohol testing. August 11, 2017 23

Impact to Drug Testing (Cont.) • Positive (urinalysis) test results: – Mandated/Regulated tests, (e.g., random for CDL DOT testing, high-risk, safety-sensitive employees, school bus drivers, etc.) • MRO must conduct a verification interview with the employee to determine whether there is a legitimate medical explanation for the positive result • Employee must present “information” , e.g., prescriptions, which form the basis of a legitimate medical explanation for the positive test. August 11, 2017 24

Impact to Drug Testing (Cont.) • Use of a drug can only constitute a “legitimate medical explanation” when used for its proper and intended purpose. 49 CFR 40.137(e)(3). – Must be used in accordance with dosage stated in prescription. August 11, 2017 25

Impact to Drug Testing (Cont.) • For positive test results in mandated/ regulated scenarios: • Certain tested substances have no legitimate medical use : (1) marijuana (federal); (2) heroin; and (3) PCP. • If the MRO determines that there IS a legitimate medical explanation, the MRO must verify the test result as negative. 49 CFR 40.137(d). • Therefore, MRO MAY not disclose existence of drug in employee’s system to the employer. August 11, 2017 26

Added MRO Duty • However, even when federal law recognizes the presence of a “legitimate” drug, i.e., valium, and the MRO verifies positive test result to negative; – the MRO still may be required to inform the employer of the drug test result. – MRO required to raise fitness for duty considerations with the employer. (See 49 CFR 40.137). – Without employee ‘s consent , MRO may report drug test results if MRO believes “continued performance of safety-sensitive function is likely to pose significant safety risk.” (See 49 CFR 40.327). August 11, 2017 27