High Times in the Old Dominion Presented by: Anne G. Bibeau, Esq. 1 1
Agenda • Current status of marijuana in Virginia • Americans with Disabilities Act • Drugfree Workplace Act for federal contractors • Marijuana elsewhere • Workers’ Compensation • Best practices 2
Terminology • Cannabis sativa L. – the marijuana plant. • Cannabinoid – a class of chemical compounds found in cannabis. • Cannabidiol (“ CBD ”) – one of more than 80 active chemicals in marijuana. • THC – tetrahydrocannabinol (chemical name (−) -trans- Δ⁹ - tetrahydrocannabinol ) . This is the principle psychoactive component of cannabis. • Decriminalization – replace jail sentences with civil fines. • Legalization – eliminate all penalties for marijuana possession.
It’s not 4:20 in Virginia. Yet. • 2015: Virginia law allowing use of cannabis oils to treat intractable epilepsy. No provision for production or for patients to obtain a doctor’s permission. • 2017: Virginia approved in-state production of medical cannabis oil by five providers, one per Health Service Area. Approved, licensed “pharmaceutical processors” to grow, extract, dispense, and deliver medical cannabis oils, all on site. • 2018: Virginia expanded medical cannabis oil program to any diagnosed condition. 4
The Affirmative Defense • The new Virginia law provides an affirmative defense for possession. It does not make possession legal. • Affirmative defense applies to oil products only – not to flower or other products or oil outside the allowable cannabinoid ratios. • Oil must contain at least 5mg/mL CBD or at least 5mg/mL THCA-A and may contain no more than 5% THC. • Patient must have valid written certification from a board- registered physician and a current active patient and/or caregiver registration issued by the Board of Pharmacy. ($50 fee.) • Pharmaceutical processors will become operational in late 2019. 5
Legalization in VA? Not now. • Governor Northam and many Democratic senators and delegates favor decriminalization of marijuana. • General Assembly bills to legalize and decriminalize marijuana have been proposed and killed. 6
Federal Law – The Controlled Substances Act • Controlled Substances Act – law regulating the manufacture, importation, possession, use, and distribution of certain substances. The Act imposes penalties for unlawful manufacturing, distribution, and dispensing of controlled substances. • The Act places all regulated substances into one of five schedules based on the substance’s medical use, potential for abuse, and safety or dependence liability. • Schedule I . The drug or substance has a high potential for abuse and has no currently accepted medical use in treatment in the United States. There is a lack of accepted safety for use of the drug or substance under medical supervision. • Schedule I examples: heroin, gamma hydroxybutyric acid (GHB), lysergic acid diethylamide (LSD), methaqualone, and marijuana.
2018 Farm Bill and Industrial Hemp • Effective Jan. 1, 2019, legalizes cultivation and sale of industrial hemp at federal level. • Hemp and hemp-derived products are removed from Controlled Substances Act. • States have authority to regulate production/sale of hemp and hemp products within their borders. • Hemp is a variety of the Cannabis sativa L. that contains not more than 0.3% THC by dry weight. • Marijuana is a different variety of the Cannabis sativa L. plant and contains high concentrations of THC. Marijuana is still a Schedule I drug. • CBD may be derived from either variety of the Cannabis sativa L. plant. 8
Food & Drug Administration • It’s illegal to market any CBD product (from hemp or marijuana) as having therapeutic benefits or as a dietary supplement unless the FDA has reviewed and approved it. • FDA approves drugs only after determining that the drug is safe and effective for its intended indication. • Approved: • Epidiolex - contains CBD. For the treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome. • Marinol and Syndros – contains dronabinol, a synthetic form of THC. For therapeutic uses, including the treatment of anorexia associated with weight loss in AIDS patients. • Cesamet - contains nabilone, a synthetic form of THC. For the treatment of the nausea and vomiting associated with cancer chemotherapy.
Bu But y you ou c can an b buy CBD CBD oi oil on l onlin line!!! !!!!!! !!! • That doesn’t make it legal. • Several sites claim to sell the BEST and MOST EFFECTIVE CBD oil and ship it to your house. • There are NO testing regulations for these products and NO way to know whether they are safe or effective, how much CBD is in the oil, and whether any CBD comes from industrial hemp or marijuana.
What does this mean for employers? • Drug testing typically reveals THC, not CBD. But even hemp-based CBD may contain trace amounts of THC. • Drug testing will show whether the individual consumed THC within the last several weeks. It does not show whether the individual is currently impaired. • Employee using CBD oil may be entitled to an accommodation under the ADA for the underlying medical condition. • Is the employee also entitled to an accommodation for CBD use? What if it’s derived from industrial hemp? • Virginia law does not provide any protection in employment for cannabis use. 11
Americans with Disabilities Act • Applies to employers with 15 or more employees • Prohibits employment decisions based on disability if the individual is qualified to perform the essential functions of the job, with or without a reasonable accommodation. • Exception: if disabled individual poses a direct threat that cannot be eliminated by reasonable accommodation. • Requires employers to provide reasonable accommodations to employee’s/applicant’s disabilities, unless such accommodation creates an undue burden for the employer.
ADA: direct threat • Direct threat = “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” • The determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Factors: • the duration of the risk; • the nature and severity of the potential harm; • the likelihood that the potential harm will occur; and • the imminence of the potential harm.
ADA: definition of disability • A physical or mental impairment that substantially limits* one or more major life activities of such individual; • A record of such an impairment; or • Being regarded as having such an impairment. *An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”
ADA: definition of qualified individual • One who, with or without an accommodation, can perform the essential job functions.
ADA and Illegal Drugs • Anyone who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.” • The term “qualified individuals” does include those who: • have been successfully rehabilitated and are no longer engaged in the illegal use of drugs; • are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and • are regarded, erroneously, as illegally using drugs. • EEOC Guidance: “[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be ‘substantially limited’ because of drug use, s/he must be addicted to the drug.”
ADA: what is “current”? The EEOC has defined “current” to mean that the illegal drug use occurred “recently enough” to justify the employer’s reasonable belief that drug use is an ongoing problem. • If an individual tests positive on a drug test, he or she will be considered a current drug user, so long as the test is accurate. • Current drug use is the illegal use of drugs that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem. • “Current” is not limited to the day of use, or recent weeks or days, but is determined on a case-by-case basis.
ADA Interactive Process • Employer should engage in an informal, interactive process with the disabled individual to identify the precise limitations and potential accommodations. • The individual must request an accommodation, but does not have to mention ADA. • The employer may ask for documentation about the disability, functional limitations, and what aspect of the workplace is a barrier. The employee does not have to specify a precise accommodation.
ADA Interactive Process, cont’d An employer must consider each request for a reasonable accommodation to determine: • Whether the accommodation is needed; • If needed, whether the accommodation will be effective; and • If effective, whether providing the accommodation will impose an undue hardship on the employer.
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