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Presented by:Lara J. Makinen, SHRM-CP, PHR

Lara.Makinen@atkinsglobal.com

https://www.linkedin.com/in/laramakinen/

Human Resource professional for over 19 years.

Current Role: Human Relations Manager/EEO Officer at Atkins (civil engineering)

Graduated: Regis University with honors in 2006 in Human Resource Management

Colorado SHRM State Legislative Affairs Director 2012 – 2016

Colorado SHRM State Diversity & Foundation Director 2017 - present

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Marijuana is a Schedule I drug.

USDOL estimates costs of drug and alcohol abuse in the workplace at $75-$100B per year.

10% of the workforce abuse alcohol and/or drugs.

9.7% of Americans smoke marijuana before going to work.

Of the 8.5M workplace drug tests conducted in 2014 3.7% came back positive (314,500).

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2011 = 9.8M FT workers over the age of 18 reported abuse or addiction to drugs or alcohol in the previous 12 months.

Affects on Performance (results vary with individual factors and can last up to 6 hours): Short-term memory problems. Impaired thinking. Loss of balance and coordination. Decreased concentration. Changes in sensory perception. Impaired ability to perform complex tasks. Decreased alertness. Decreased reaction time.

http://adai.uw.edu/marijuana/factsheets/workplace.htm

As marijuana is legalized, usage increases. For example, after marijuana was decriminalized in Colorado, the number of positive workplace drug tests increased by 20 percent between 2012 and 2013, compared to a national average increase of five percent. (http://www.naag.org/publications/nagtri-journal/volume-1-number-2/the-effects-of-marijuana-legalization-on-employment-law.php)

In 2014, positive drug tests for marijuana in the general U.S. workforce increased 14.3 percent from the previous year to 2.4 percent incidence rate, according to the Quest Diagnostics Drug Testing Index. Marijuana continues to be the most commonly detected illicit drug. (http://a15777.actonservice.com/acton/attachment/15777/f-0010/1/-/-/-/-/Assurex_Global_Medical_Legalization_Marijuana_in_Workforce.pdf)

There has been a 49-percent increase in the rate of positives for marijuana among drivers stopped by State Troopers for suspicion of Driving Under the Influence in the first six months of 2013 in the State of Washington. (https://www.drugfreeworkplace.org/10-facts-about-marijuana/)

A 2011 study entitled Marijuana Use and Motor Vehicle Use found that “crash risk appears to increase progressively with dose and frequency of marijuana use.” Key study findings included that “drivers who test positive for marijuana or self-report using marijuana are more than twice as likely as other drivers to be involved in motor vehicle crashes.” (https://www.drugfreeworkplace.org/10-facts-about-marijuana/)

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Total legal marijuana sales came in at $996M (2015).

Legal marijuana activities generated $2.39B in state output (2015).

Created 18,005 new FTE positions (2015).

Spending on marijuana creates more output and employment per dollar spent than 90% of industries.

Legal marijuana demand is projected to grow by 11.3% through 2020.

Marijuana was the 2nd largest excise revenue source with $121M in combined sales and excise tax revenues (2015). This is 3x larger than alcohol and 14% larger than casino revenues.

http://www.mjpolicygroup.com/pubs/MPG%20Impact%20of%20Marijuana%20on%20Colorado-Final.pdf

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In 2000, Amendment 20: Colorado Medical Use of Marijuana passed by a 54% margin.

Interesting Statistics: 334.680 new patients have applied since the Registry began in 2001. 102,620 active patients of medical marijuana as of July 2016. 64% are male with an average age of 42.2. 36% are female with an average age of 45.8.

https://www.colorado.gov/pacific/sites/default/files/CHED_MMR_Monthly_Report_Statistics_July_2016.pdf

Ballot Text:“Shall there be an amendment to the Colorado Constitution authorizing the medical use of marijuana for persons suffering from debilitating medical conditions, and, in connection therewith, establishing an affirmative defense to Colorado criminal laws for patients and their primary care-givers relating to the medical use of marijuana; establishing exceptions to Colorado criminal laws for patients and primary care-givers in lawful possession of a registry identification card for medical marijuana use and for physicians who advise patients or provide them with written documentation as to such medical marijuana use; defining "debilitating medical condition" and authorizing the state health agency to approve other medical conditions or treatments as debilitating medical conditions; requiring preservation of seized property interests that had been possessed, owned, or used in connection with a claimed medical use of marijuana and limiting forfeiture of such interests; establishing and maintaining a confidential state registry of patients receiving an identification card for the medical use of marijuana and defining eligibility for receipt of such a card and placement on the registry; restricting access to information in the registry; establishing procedures for issuance of an identification card; authorizing fees to cover administrative costs associated with the registry; specifying the form and amount of marijuana a patient may possess and restrictions on its use; setting forth additional requirements for the medical use of marijuana by patients less than eighteen years old; directing enactment of implementing legislation and criminal penalties for certain offenses; requiring the state health agency designated by the governor to make application forms available to residents of Colorado for inclusion on the registry; limiting a health insurer's liability on claims relating to the medical use of marijuana; and providing that no employer must accommodate medical use of marijuana in the workplace?”https://ballotpedia.org/Colorado_Medical_Use_of_Marijuana,_Initiative_20_(2000)

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What I do as a Human Resource Professional once a law passes: Go to THE SOURCE for actual language; Could also use other sources, but BE CAREFUL: SHRM

MSEC

Law firms

Colorado Constitution, Article XVIII, Section 14: Medical Use of Marijuana for Persons Suffering from Debilitating Medical Conditions (10)(b):

“Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.”

https://www.colorado.gov/pacific/sites/default/files/Section%2014%20-%20Medical.pdf

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Dakota

Ohio

Hawaii

Illinois

Maine

Maryland

Massachusetts

Michigan

Minnesota

Montana

Oregon

Pennsylvania

Rhode Island

Vermont

Washington

Washington, DC

West Virginia – starting in 2019

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In 2012, Amendment 69: Colorado Marijuana Legalization passed by a 55.3% margin.

Ballot Text:“Shall there be an amendment to the Colorado constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana; permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana; providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores; permitting local governments to regulate or prohibit such facilities; requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana; requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund; and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp?”https://ballotpedia.org/Colorado_Marijuana_Legalization_Initiative,_Amendment_64_(2012)

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Colorado Constitution, Article XVIII, Section 16: Personal Use and Regulation of Marijuana (6)(a):

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

https://www.colorado.gov/pacific/sites/default/files/Section%2016%20-%20%20Retail.pdf

Alaska

California

Colorado

Maine

Massachusetts

Nevada

Oregon

Washington

Portland, Maine

South Portland, Maine

Keego Harbor, Michigan

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Updating Policies

Drug Screening

Accommodating

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It is still designated as a Schedule I substance under the federal Controlled Substance Act (CSA), which criminalizes the possession, manufacture, distribution, and sale of the drug.

Federal Contractors are still bound by the Drug-Free Workplace Act of 1988 which mandates a zero-tolerance towards drugs in the workplace. The Act does not require mandatory drug tests.

http://www.naag.org/publications/nagtri-journal/volume-1-number-2/the-effects-of-marijuana-legalization-on-employment-law.php

It is still designated as a Schedule I substance under the federal Controlled Substance Act (CSA), which criminalizes the possession, manufacture, distribution, and sale of the drug.

You can also adopt a zero-tolerance policy – at least for those workers in “safety-sensitive” positions. A “safety-sensitive” position, generally, is one in which an employee is responsible for the

safety of herself or others. Positions that fit into this designation would include those involving driving or the use of

machinery, among many others. If such a position requires a commercial driver’s license (CDL), then the employer is mandated

to abide by the Omnibus Transportation Employee Safety Act of 1991, which requires that all employers drug test employees whose duties require a CDL.

http://www.naag.org/publications/nagtri-journal/volume-1-number-2/the-effects-of-marijuana-legalization-on-employment-law.php

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What does policy say?

Who do you test?

Can you fire for a positive result?

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals on the basis of disability, which is defined as “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”

The ADA prohibits discrimination in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Covered employers are required to provide reasonable accommodations to the disabled employee so that the employee can perform essential duties of his job, as long as such accommodations do not impose an undue hardship on the employer.

According to the Equal Employment Opportunity Commission, an accommodation is generally “any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”

http://www.naag.org/publications/nagtri-journal/volume-1-number-2/the-effects-of-marijuana-legalization-on-employment-law.php

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Section 12114(a) of the ADA states that a qualified individual with a disability shall not cover any employee or applicant who is currently engaging in the illegal use of drugs, when the employer acts on the basis of such use, and that employers may require that employees behave in conformity with the Drug-Free Workplace Act of 1988. The ADA defines “illegal use of drugs” as the use of drugs, the possession or distribution of which is unlawful under the CSA, but excludes from this definition the use of a drug taken under supervision by a licensed health care professional.

http://www.naag.org/publications/nagtri-journal/volume-1-number-2/the-effects-of-marijuana-legalization-on-employment-law.php

Can employers prohibit employees from using medical marijuana?

How do state medical marijuana laws affect companies that work with the Federal government?

Are employers required to accommodate an employee’s use of medical marijuana if used to treat a disability?

Can employers screen applicants for medical marijuana use?

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US Senate currently considering the Marijuana Justice Act of 2017 (S.1689). It would amend the Controlled Substances Act to provide for a new rule regarding the

application of the Act to marijuana, and for other purposes. Remove marijuana and tetrahydrocannabinols from the Schedule of Controlled Substances.

https://www.forbes.com/sites/janetwburns/2017/08/01/marijuana-justice-act-would-end-weed-prohibition-throughout-the-land/#5b0d7b2968c0

Can you think of any ways this would impact workplaces?

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Brandon Coats was a call center representative for Dish for three years. He sat at a desk all day and answered calls as well as logged his conversations into a computer. During his tenure with Dish, he received periodic performance reviews which all indicated his performance was satisfactory.

Brandon is a quadriplegic. Every evening, he takes medicinal marijuana, as prescribed by his doctor, to subdue seizures while he is sleeping. This one dose also lasts throughout the following day so he can work with a reduced risk of having a seizure.

One day, Brandon was randomly selected for a drug test. He failed because it detected THC. Dish immediately fired Brandon for failing the drug test per their company policy.

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Brandon sued Dish. He lost. He appealed this decision and lost again.

He petitioned the Colorado Supreme Court and they agreed to hear his case. Brandon’s case was built upon the foundation that Dish violated the Colorado Lawful Activities Statute (CRS 24-34-402.5(1)) which states: “It shall be a discriminatory or unfair employment practice for an employer to terminate the

employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction: (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the

employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.”

http://www.lpdirect.net/casb/crs/24-34-402_5.html

Outcome“The supreme court holds that under the plain language of section 24-34-402.5, 13 C.R.S. (2014), Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute. We therefore affirm the court of appeals’ opinion.”https://www.courts.state.co.us/userfiles/file/court_probation/supreme_court/opinions/2013/13sc394.pdf

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Lara J. Makinen, SHRM-CP, PHR

Lara.Makinen@atkinsglobal.com

https://www.linkedin.com/in/laramakinen/