By: Gregory B. Cairns, By: Gregory B. Cairns, Esq.Esq.

CAIRNS & CAIRNS & ASSOCIATES, P.C. ASSOCIATES, P.C.

3900 E. Mexico Ave., 3900 E. Mexico Ave., Suite 300Suite 300

Denver, CO 80210Denver, CO 80210

Mr. Cairns’ practice focuses on workers’ compensation defense and related employment law. Mr. Cairns attended the University of Wisconsin at Madison where he received a Bachelor of Arts degree with honors in Psychology in 1975. He also attended the University of Wisconsin at Milwaukee where he pursued a Master's in industrial psychology. Following graduate school, he obtained his law degree from the University of Texas at Austin in 1982. Mr. Cairns has been licensed to practice law in the State of Colorado since 1982.

Mr. Cairns has 32 years of experience as a defense attorney in matters relating to workers' compensation and employment law. He has published several articles in The Colorado Lawyer concerning employment issues and pre-judgment interest, and has been a frequent speaker concerning workers' compensation, pre-employment testing, the American with Disabilities Act of 1990, and the Family and Medical Leave Act of 1993. In addition, he is the founder and principal instructor for The Center for Workers' Compensation Training, a private occupational school.

Mr. Cairns, who hails from Wisconsin, is currently president of Cairns & Associates, P.C. in Denver, Colorado. In 2003, he was named one of the “Outstanding Lawyers in America.”

Biography:

Gregory B. Cairns, Esq.Gregory B. Cairns, Esq.Cairns & Associates, P.C.3900 E. Mexico Ave., Suite 300Denver, CO 80210(303) 481-63458- main line(303) 248-6548- cell (866) 277-0355 - faxgcairns@cairnslegal.com - email

Uh-oh- Have we created a ZOMBIELANDZOMBIELAND??

1. Twenty-three (23) States and the District of Columbia have explicitly legalized Medical Marijuana (MM). Multiple States have symbolic laws on the book with no practical utility. 15 States have never had a positive MM law.

2. MM is classified by the Food & Drug Administration ( FDA) as a Schedule I controlled substance, which means it is illegal and considered to have a high potential for abuse without any medicinal value.

3. Several states disagree with the federal government about medical efficacy: Specific illnesses covered include cancer, glaucoma, pain/chronic illness and HIV/AIDS.

4. There have been 3 key federal cases regarding MM: Raich v. Ashcroft (federal government can arrest and prosecute patients in states where usage is legal); U.S. v. Oakland Cannibis Buyers’ Cooperative (OCBC) (medical necessity defense cannot be used to avoid federal prosecution); and Conant v. Walters (9th Circuit held doctors cannot be prosecuted for recommending usage).

5. On 2/25/09, the US Attorney General announced that the Drug Enforcement Agency (DEA) would no longer raid dispensaries authorized by state law; on 10/19/09, the US Deputy Attorney released a memo authorizing the use of MM so long as it complies with state law. Starting in 2011, however, the DEA cracked down on dispensaries within 1000 feet of any school or other prohibited area.

6. About 99% of arrests for possession of MM are at state level.7. State laws generally do not regulate MM’s quality or potency, and

many do not address ways to obtain the drug. Twelve (12) states and the District of Columbia regulate dispensaries in some way; most states allow home cultivation. Some designate the National Institute of Drug Abuse (NIDA) or some state agency as primary source.

8. Most states limit the amount of MM that patients or caretakers can possess or cultivate.

9. States vary whether they require registry and identification cards: 19 states and the District of Columbia have a registry. In states where users are issued an ID, patients are protected from arrest and prosecution; in some states users can be arrested but have an affirmative defense.

10. A 2014 Gallup poll found 52% of Americans believe that you should be able to buy and sell pot legally (down from 58% on 2013); 57% of Americans live in states where MM is legal.

1. Amendment 20, passed by small majority in 11/00 and now codified as Article 18, Section 14 of the Colorado State Constitution, makes it lawful for Colorado residents to use medical marijuana IF THEY FOLLOW THE RULES.

2. One of the rules is that a patient must have a recommendation (or advisement) from a physician licensed in the State of Colorado that the patient “might benefit from the medical use of marijuana in connection with a debilitating medical condition.”

3. Another rule is that, absent special needs, it is lawful to possess no more than two ounces of a usable form of marijuana and no more than 6 marijuana plants, with no more than 3 which are flowering (mature).

4. Medical marijuana can be smoked, inhaled, ingested through food or tincture, absorbed through the skin, taken in pill form or drunk.

5. There are very few double blind, peer-reviewed studies about the efficacy of medical marijuana; anecdotal evidence suggests that it is helpful for those who suffer from nausea, sleeplessness, pain and lack of appetite.

6. It is still a federal crime to possess, use, sell, store, and grow marijuana; however, the federal Justice Department has instructed federal officers to refrain from prosecution of users of MM in the states where usage is allowed by state.

7. It is estimated that there are between 200,000 to 300,000 Colorado residents who possess recommendations from physicians for use of medical marijuana; not all of them have been registered with the State (which affords even greater protection from prosecution than possessing just a recommendation from a doctor). Since June 2001, 292,387 residents have applied to the registry; 114,097 are now registered ( as of 3/31/15)- about 2 out of every 100 Coloradans.

8. The average age of registered MM users is 42; 467 are minors (<18)9. There are 501 dispensaries operating in Colorado,158 medical

infused product manufacturers,and 739 medical cultivators.10. The 2010- 2015 legislatures have produced legislation regulating

dispensaries and the physician/patient relationship, but issues pertaining to employment, workers’ compensation, child welfare, criminal prosecution, waste disposal, parolees/probationers etc. will need future legislation or judicial determinations.

1. Colorado voters passed a constitutional amendment (Proposition 64) in 11/12 which allowed retail sales of marijuana beginning 1/1/2014- first such law in the nation.

2. You must be 21 or over to purchase pot.

3. You do not have to be a state resident.

4. You may possess up to 1 oz. of pot and up to 6 plants.

5. You can get <15 days in jail/$100 fine for open and public display or use.

6. Dispensaries are highly regulated.

7. BIG PROBLEM: Dispensaries cannot get federally insured banks/CUs. A lot of business is conducted in cash, using safety deposit boxes, private safes, etc. Holding companies are not the solution (i.e., seen as laundering).The federal government is not helping solve this.

8. Dispensaries are taxed by State (sales tax-10%;excise tax-15%), and municipalities creating revenue. ( over $38 Million in 2014-1/2015).

9. Dispensaries and workers are licensed by State, creating revenue. ($3,184,780 in 2014-1/2015).

10. Ten (10) Denver metro-area cities have approved retail sales; 16 have not as of 1/2015.

11. There are 306 retail stores; 92 infused product manufacturers.

12. As of 11/30/2014, there are 15,248 state occupational licenses (required of all workers).

13. Total marijuana (retail and medical) taxes, licenses and fees : $52,570,081 (1/2014 through 1/2015, CO Department of Revenue).

HOW DO WE SURVIVE IN ZOMBIELAND?

Can Municipalities Manage Risk By Zoning?

In Colorado, yes! In Arizona, California ,

Washington state & Elsewhere,

Maybe

☺ Ban production, storage, sale, manufacturing, etc.

☺ Careful zoning

Can Municipalities Manage Risk by Licensing?

In Colorado and New

Mexico, Yes! Elsewhere,

Maybe

☺ In Colorado, local governments can require licensing with them before application with the State. As of 10/14, 20 of 64 counties and 45 municipalities allow recreational sales and manufacturing.

☺ In Colorado, local governments can impose restrictions greater than the State’s.

☺ Licensing is a source of funds.

Can Municipalities Tax Medical Marijuana?

In Colorado, Washington state , and

california, Yes! Elsewhere,

Maybe

☺ Many states are planning to tax.☺ In Colorado, both the State and

local governments can tax MM.☺ If all marijuana were legalized

and taxed nationwide, at least one expert projects 20.1 billion dollars boost to government budgets (6.4 billion in tax revenue, remainder in reduced enforcement costs) (Miron, 2010)

Are There Special Enforcement Issues for Law Enforcement Regarding Medical Marijuana?

Not Really

☺ Public usage is usually banned by state law.

☺ For DUID, police should focus on impairment, not possession.

☺ DUID standards vary in the states; in Colorado 5 nanograms per blood liter is presumed impaired but can be rebutted with competent evidence.

☺ Apply same rules regarding confiscation of any contraband: If you break it, you own it.

☺ Is it worth the lawsuit to keep the product and paraphernalia?

Does a private health insurance carrier, govern-mental entity, or any private entity providing health insurance have to reimburse a user of medical marijuana?

In Colorado, NO!

☺ There is no federal or state law that requires a governmental, private or any other entity providing health insurance to pay for it.

☺ Amendment 20 relieves a governmental, private or any other entity providing health insurance of the liability for any claim for reimbursement for the use of medical marijuana.

☺ Further, its usage is still a violation of federal law, and insurance regulations may prohibit payment for illegal treatment.

Does a private health insurance carrier, govern-mental entity, or any private entity providing health insurance have to reimburse a user of medical marijuana?

Across the USA, Probably NO!

☺ There is no federal or state law that requires a governmental, private or any other entity providing health insurance to pay for it.

☺ Medicare and Medicaid will not pay for it, so why would a private or other public plan?

☺ Further, its usage is still a violation of federal law, and insurance regulations may prohibit payment for illegal treatment.

Does a workers’ compensation carrier or self-insured employer have to pay for medical marijuana?

In Colorado, Probably No.☺ Amendment 20 probably relieves insurance carrier and self-insured employers

from payment, although it does not specifically refer to workers’ compensation insurers and it refers to “reimbursement” rather than direct pay.

☺ If Amendment 20 does not specifically protect insurance carriers and self-insureds from liability, there is an equal protection argument that it does.

☺ It is still a federal crime to use it and no carrier can provide illegal treatment.☺ The DOWC has no fee schedule, rule of procedure or other pronouncement

regarding it except for a short treatment guideline summary of research. (However, at least one arbitrator has ordered MM in several cases to allow respondents to submit an order to Medicare authorities and thereby avoid liability for narcotics).

☺ The FDA has not approved it.☺ There is no federal or state case law requiring a carrier or self-insured carrier

to provide it to a workers’ compensation claimant.

Does a workers’ compensation carrier or self-insured employer have to pay for medical marijuana?

Across the USA, Probably No.☺ No state statute addresses the issue, but none requires payment of MM

either.☺ It will be up to the state courts and legislatures to address the issue.☺ An administrative judge in Iowa has ordered payment for MM, but that case

may be under appeal. A judge in New Mexico also ordered MM in a workers’ compensation case.

☺ It is still a federal crime to use it and no carrier can provide illegal treatment.☺ The FDA has not approved it.☺ There is no federal or state case law requiring a carrier or self-insured carrier

to provide it to a workers’ compensation claimant. However, a carrier MAY want to consider paying for MM if it can avoid a massive liability for lifetime narcotics.

Can workers’ compensation penalties be applied to users of marijuana who are injured?

It Depends on the State, but probably Yes!

☺Avoidance of Claim☺Safety Rule Violation☺Intoxication Penalty☺Responsible for separation from employment reduction of benefits

If an employee is injured in Colorado while under the influence of marijuana, can the employer/carrier take a 50% penalty for a safety rule violation?

It depends on the following:

1. Does the employer have a safety rule which prohibits use of controlled substances prohibited by federal or state law?

2. Was the rule communicated to the employee?3. Can the employer show that the employee knew there were

consequences for a violation of the rule?4. Does the employer uniformly enforce the rule?5. Can the employer/carrier demonstrate a causal connection between

violation of the rule and the claimant’s accident?6. Can the employer/carrier demonstrate that the employee’s usage

was “willful”?

Can a Colorado employer/carrier take a 50% penalty for a violation of the intoxication statute?

It depends on the following:

1. Did the test provider retain duplicate samples of the claimant’s drug test?

2. Can the employer/carrier convince the administrative law judge that marijuana is a “non-prescribed controlled substance?”

3. Will the claimant be able to rebut the presumption that there is a causal connection between the presence of cannabinoids in his/her system and the accident?

Can a Colorado employer/carrier avoid paying temporary disability benefits if the claimant is terminated for cause because of the presence of marijuana in his/her system?

YES, if the employer/carrier can prove the following:

1. The employer publishes a rule which mandates termination for usage of controlled substances forbidden by federal or state law.

2. The employer/carrier can prove that the employee knew the rules and consequences of breaking them.

3. The employer/carrier can convince the ALJ that the usage of medical marijuana was “willful” in the sense of a “volitional act.”

4. The employer uniformly enforces the rule.

5. The use of marijuana was NOT the cause of the accident (per Colorado Springs Disposal)(which means that the employer/carrier would not get the intoxication penalty).

Does an employer have to accommodate the use of medical marijuana in the workplace?

Probably NO!

1. “Accommodation” for MM usage may include longer breaks; ignoring positive findings on drug screens; or special storage; smoking or napping areas.

2. Many state statutes specifically state that no employer need accommodate the use of medical marijuana in the workplace.

3. The ADA (as amended) does not require reasonable accommodation for current users of illegal drugs.

4. CAUTION: The ADA may require interactive discussion of accommodation for the medical condition for which the employee takes MM.

Does a Colorado employer have to accommodate the use of medical marijuana in the workplace?

NO!

1. Amendment 20 specifically states that no employer need accommodate the use of medical marijuana in the workplace.

2. The ADA (as amended) does not require reasonable accommodation for current users of illegal drugs.

3. The Colorado Anti-Discrimination Act follows the ADA in this regard.4. The Colorado statute which prohibits termination of an employee for

lawful off premises behavior, if it even applies, does not prohibit an employer from taking negative employment actions other than termination.

5. CAUTION: The ADA may require interactive discussion of accommodation for the medical condition for which the employee takes MM.

Is there any federal or state law which protects the job of an employee who tests positive for medical marijuana pursuant to a lawful drug screen at work or after injury?

Usually, no.

1. None of the following federal statutes can be construed to protect a current user of a controlled substance prohibited by federal law: ADA, FMLA, Title VII, Older Workers’ Protection Act/ADEA, HIPAA, OSHA, ERISA, etc.

2. Further, certain federal laws mandate that some employers cannot retain current users of controlled substances prohibited by federal law: all federal contractors, employers regulated by the Department of Transportation regulations, etc.

3. CAUTION: The ADA may require interactive discussion of accommodation for the medical condition for which the employee takes marijuana.

Is there any federal or state law which protects the job of an employee who tests positive for medical marijuana pursuant to a lawful drug screen at work or after injury?

Sometimes, yes.

1. Most states are silent about whether non-impaired users of MM can be terminated without cause of action.

2. Courts or statutes in Washington, California, Oregon and Montana have ruled that MM users’ jobs are not protected. Laws in Arizona, Delaware and Minnesota prohibit employers from firing employees with positive drug screens IF they have a valid registration card.

3. Remember that certain federal laws mandate that some employers cannot retain current users of controlled substances prohibited by federal law: all federal contractors, employers regulated by the Department of Transportation regulations, etc.

Does Colorado’s statute which protects an employee’s job if he/she engages in lawful activities outside of work protect the job of a medical marijuana user?

NO!

The Colorado Court of Appeals recently held that Section 24-34-402.5, C.R.S. (“The Philip Morris Law”), which protects the jobs of employees engaged in lawful activities outside of work which do not pose a conflict of interest for the employer, DOES NOT protect users of MM. Coats v. Dish Network, LLC, 2013 COA 62 . The Colorado Supreme Court is expected to rule the same way.

IT IS STILL A FEDERAL CRIME TO POSSESS AND USE MARIJUANA!

Can an employer avoid paying unemployment compensation benefits if the claimant is terminated for cause because of the presence of medical marijuana in his/her system?

Maybe. It depends on the applicable state statute.

1. Consult with your attorney or human resources specialist about whether your state’s unemployment compensation statute allows disqualification or reduction of benefits for usage of medical marijuana.

2. In some states, the mere trace of THC in a worker’s system is enough to preclude payment of benefits.

Can a Colorado employer avoid paying unemployment compensation benefits if the claimant is terminated for cause because of the presence of medical marijuana in his/her system? YES, if the employer can prove the following:

1. The employer publishes a rule which mandates termination for usage of controlled substances forbidden by federal or state law.

2. The employer can prove that the employee knew the rules and consequences of breaking them.

3. The employer uniformly enforces the rule.4. The employer can convince the referee that the applicant has: engaged in on-

the-job use of not medically prescribed controlled substances; engaged in off-the-job usage of not medically prescribed controlled substances resulting in interference with job performance; demonstrated the presence, during working hours, of not medically prescribed controlled substances; or violated a statute or company rule which resulted in serious damage to employer property/interest. See Beinor v. ICAO, 262 P.3d 970 (Colo. App. 2011).

5. A recent Court of Appeals case allowed benefits where no proof of certified lab.

What should be the role of doctors with respect to reporting positive drug screens and prescribing narcotics to marijuana users?

It depends on why the drug screen is administered :

1. If during a non-DOT pre-employment physical, the doctor should report all results requested by the potential employer; DOT regs require disclosure of all results and the applicant should not be hired. 2. If during a random or “for cause” screen, doctors should report all results requested by the employer; employer should act per policy.

3. If during workers’ compensation treatment, the doctor should report all positive results requested by the employer AND consider no prescription for narcotics if marijuana usage continues. A simple clause in a narcotics contract regarding possible disclosure to carriers and employer can solve all HIPAA concerns; if the claimant will not sign the contract, he/she does not get narcotics.

Can a self-insured employer design drug policies which are more liberal than “zero tolerance”?

YES, of course, but be prepared for a tougher row to hoe.

1. You may have to offer rehabilitation options2. You may be accused of inconsistent enforcement.3. Be tough on repeat offenders or you may have problems.4. Be sure to offer drug education.5. Make sure that your work force is properly trained to the rules.6. Consider random and post-accident (injury or damage) testing to help you

enforce your rules.

It is recommended that employers implement the following ten-point plan to ensure that they control the usage of medical marijuana in the work place:

1. Publish clearly worded policies prohibiting the usage of controlled substances prohibited by federal or state law.

2. Test employees to demonstrate that they understand the rules.

3. Consistently enforce the rules.4. Consider drug testing for “reasonable suspicion”.5. Consider drug testing after work-related injury or

property damage.

6. In Colorado, make sure your laboratory keeps a duplicate sample and make sure the intoxication defense is litigated within one year.

7. In Colorado, consider carefully whether you would rather have the intoxication penalty or avoidance of temporary benefits due to responsible for separation from employment.

8. Make sure, in appropriate cases, to send your samples to a medical review officer (MRO) for review.

9. Do not be intimidated by those who insist that medical marijuana users have the right to use the substance both off premises and on premises at work.

10. Do not rely on the media for the facts about MM; they specialize in half-truths and sensationalism rather than factual or legal accuracy.

Know the facts ….and follow the rules!