Medical and Recreational Cannabis and the Workplace: Drug Testing, Determining Impairment, Disability AccommodationsSafety-Sensitive Positions, Workers Compensation, and Proposed Federal Legislation

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THURSDAY, JULY 29, 2021

Presenting a live 90-minute webinar with interactive Q&A

Robert B. Fitzpatrick, Founder, Robert B. Fitzpatrick, PLLC, Washington, D.C.

David L. Zwisler, Shareholder, Ogletree Deakins Nash Smoak & Stewart, Denver

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By Robert B. Fitzpatrick and David Zwisler

Marijuana in the Workplace

1

History

• Marijuana Timeline

• The Mysterious History of ‘Marijuana’

• The Origins of Cannabis Prohibition in California

• Harrison Act (encyclopedia.com)

• Marijuana Tax Act of 1937 (Wikipedia)

• The Boggs Act and Mandatory Minimums

• A brief history of federal mandatory minimum sentencing

• The Narcotics Control Act of 1956 (Drug Library)

• Controlled Substances Act of 1970

• Former Nixon Advisor Admits ‘War on Drugs’ Was Racist

• Legalize It All (Harpers Magazine)

• A Brief History of the Drug War

• Report: Aide says Nixon’s war on drugs targeted blacks, hippies

• National Commission on Marijuana and Drug Abuse

• Drug Enforcement Agency - The Early Years

• The History of The War on Drugs: Reagan Era and Beyond

• Solomon-Lautenberg Amendment (Wikipedia)

Medical Marijuana

• H.R. Joint Resolution 117

• Medical marijuana - Harvard Health

• Are There Benefits of Marijuana for Medical Use?

• How Medical Marijuana Works, and Which Conditions It Treats

• Does Marijuana Help Treat Glaucoma or Other Eye Conditions? (American Academy of Ophthalmology)

• After 50 Years, U.S. Opens The Door To More Cannabis Crops For Scientists

• Medical Marijuana and Epilepsy (Epilepsy Foundation)

• California Proposition 215 of 1998

• Colorado Amendment 20

• Ross v. RagingWire Telecommunications (California 2008).

• Johnson v. Columbia Falls Aluminum, 213 P.3d 789 (Montana 2009).

• Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159 (Oregon 2010).

• Roe v. Teletech Customer Care Management, 257 P.3d 586 (Washington 2011).

• Casias v. Wal-Mart Stores, 695 F.3d 428 (6th Cir. 2012).

• Cole Memo of 2013 / Sessions rescission of 2018

• Coats v. Dish Network, 350 P.3d 849 (Colorado 2015).

Medical Marijuana Alabama Missouri

Alaska Montana

Arizona Nevada

Arkansas New Hampshire

California New Jersey

Colorado New Mexico

Connecticut New York

Delaware North Dakota

D.C. Ohio

Florida Oklahoma

Hawaii Oregon

Illinois Pennsylvania

Louisiana Rhode Island

Maine South Dakota

Maryland Utah

Massachusetts Vermont

Michigan Virginia

Minnesota Washington

West Virginia

Only Medical Marijuana Alabama

Arkansas

Delaware

Florida

Hawaii

Missouri

Louisiana

Maryland

Minnesota

New Hampshire

North Dakota

Ohio

Oklahoma

Pennsylvania

Rhode Island

Utah

West Virginia

6

Arizona

Arkansas

Connecticut

Delaware

Illinois

Maine

Massachusetts

Minnesota

Nevada

New Jersey

New Mexico

New York

Oklahoma

Pennsylvania

Rhode Island

West Virginia

Statutory Protections for Medical Marijuana Users

Medical Marijuana III

• Map of marijuana legality by state

• Legality of cannabis by U.S. jurisdiction

• Marijuana legalization is sweeping the US. See every state where cannabis is legal.

• Cannabis Overview: National Conference of State Legislatures

• Medical Marijuana and the ADA: Following the Path Blazed by State Courts to Extend Protection

Impairment

• Drug Testing of Medical Marijuana Users in the Workplace: An Inaccurate Test of Impairment

• A rocky road so far: Recreational marijuana and impaired driving

• The D.R.E.: Drug Recognition Expert or Experiment?

• Detect THC Use with New Breathalyzer

Workers’ Compensation

• A Primer on Recent Cases Impacting Workers’ Compensation Defense (See VI)

• In the weeds on marijuana and workers’ compensation

• A Budding Star: Medical Marijuana in Workers’ Compensation (See page 31)

• Can You Still Receive Workers’ Comp If You Fail the Drug Test?

Drug Testing

• Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing for safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.

• Law and Legal Definition

• Overview of Drug and Alcohol Rules (FMCSA)

• What You Need to Know About DOT Drug Testing

• What you need to know about DOT Drug & Alcohol Testing

• Section 11(c) of the OSHA Act.

• 29 C.F.R. 1904.35 and 1904.36

• Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv)

• Clarification of OSHA Rule Regarding Drug Testing and Safety Incentive Programs

• How does marijuana use affect school, work, and social life?

• New York City Adopts Rules Clarifying the “Safety-Sensitive” Exception for Pre-Employment Marijuana Tests

• No Level of Marijuana is OK for Safety Sensitive Jobs, Safety Council Says

• President Trump repeals law allowing OSHA to fine for “Continuing Violations”

• Trump administration proposes safety rule on drug testing, incentives

• Safety-Sensitive Carve-Outs by State

Expungement

• As more states legalize marijuana, people with drug convictions want their records cleared

• Legalizing marijuana and expunging records across the country

• Record Sealing for Decriminalized and Legalized Offenses Amendment Act

• Marijuana Opportunity Reinvestment and Expungement Act of 2019

• Legalized marijuana in Virginia: What happens to prior drug charges?

• Cannabis (Marihuana) and Expungement Under New York State Law

• How to Get Your Weed Record Expunged

• Black Americans Need Marijuana Expungement NOW

• With legalization of marijuana, New York will expunge prior convictions

• High Time for Change: Cannabis Expungement Statutes (ABA Membership required for access)

• In the first year since Illinois enacted recreational marijuana, the Illinois State Police have expunged 492,192 non-felony cannabis arrest records (State Officials: Nearly 500,000 Marijuana Arrest Records Have Been Expunged)

• The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law

11

Recreational Marijuana

MARIJUANA TYPES

•HEMP-BASED PRODUCTS

•JOINTS

•BONGS

•EDIBLES

•BEVERAGES

•CBD PRODUCTS

14

Alaska

California

Colorado

District of Columbia

Illinois

Maine

Massachusetts

Michigan

Nevada

Oregon

Vermont

Washington

Recreational Marijuana

15

Neither Medical nor Recreational Marijuana

Georgia

Idaho

Indiana

Iowa

Kansas

Kentucky

Mississippi

Nebraska

North Carolina

South Carolina

Tennessee

Texas

Wisconsin

Wyoming

Current Development at Federal Level I

• Cannabis Administration and Opportunity Act

• MORE Act of 2019

• Bill that would federally decriminalize marijuana passes House committee

• US House passes historical bill to legalize marijuana at federal level, but Senate looms

• Long-awaited US Senate marijuana reform bill unveiled, but measure faces long climb

• Senate Democrats Embrace Marijuana Federalism. Will Republicans?

• It’s time for Washington to get serious about federal marijuana policy

• Democrats have a new plan to legalize marijuana federally

• Here are the full details of the new federal marijuana legalization bill from Chuck Schumer and Senate colleagues

• U.S. Senate Democrats roll out draft bill to legalize weed

• Biden Is Too Busy To Decriminalize Marijuana, Harris Says

• Did Kamala Harris Flip-Flop On Marijuana Again to Adopt Biden’s Anti-Legalization Position?

• Big Pot Tries to Stop Patrick Kennedy From Becoming Drug Czar

Current Development at Federal Level II

• US Congress Passes Cannabis SAFE Banking Act

• Senator Booker opposed to the Senate just doing a banking bill. (Cory Booker Vows To Block Marijuana Banking Until Senate Passes Comprehensive Legalization)

• Marijuana Banking Bill Reintroduced In Senate, With Nearly A Third Of The Chamber Signed On

• Why Cannabis Firms Are Focused on Banking and Tax Reform

• Quick Hit: What Dispensaries Can Deduct According to 280E Tax

• Appellant’s Brief to the 9th Circuit in Patients Mutual Assistance

• High Stakes for Cannabis Industry: The Case Pitting 280E Against the Sixteenth Amendment Could Ease High Tax Burden

SAMSHA• 1 in 10 people who use marijuana will become addicted. The rate of addiction rises to 1 in 6 ifs use starts before 18.

• Permanent IQ loss of as much as 8 points when people start using it at a young age.

• Links to depression, anxiety, suicide planning, and psychotic episodes.

• Affects timing, movement, and coordination, which can harm athletic performance.

• For drivers: slower reactions, lane weaving, decreased coordination, and difficulty reacting to signals and sounds on the road.

• During pregnancy may cause fetal growth restriction, premature birth, stillbirth, and problems with brain development, resulting in

hyperactivity and poor cognitive function. THC can be passed from a mother to her baby through breast milk.

• Research shows that people who use marijuana are more likely to have relationship problems, worse educational outcomes, lower career

achievement, and reduced life satisfaction.

BY THE NUMBERS

BY THE NUMBERS

BY THE NUMBERS

BY THE NUMBERS

BY THE NUMBERS

BY THE NUMBERS

ACLU - A Tale of Two Countries: Racially Targeted Arrests in the Era of

Marijuana Reform

BY THE NUMBERS

BY THE NUMBERS

Challenges for Employers and Employees

By Robert B. Fitzpatrick and David Zwisler

Marijuana in the Workplace

28

Contact Information

Robert B. Fitzpatrick, FounderRobert B. Fitzpatrick, PLLC

rfitzpatrick@robertbfitzpatrick.com

David L. Zwisler, ShareholderOgletree Deakins Nash Smoak & Stewartdavid.zwisler@ogletree.com