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Substance Abuse Program Administrators Association (SAPAA)Position Paper on Medical Marijuana

By: Josephine Elizabeth Kenney, J.D. MBA- Human Resources Senior Compliance Counsel First Advantage Executive Summary Practical and Legal Considerations Conclusion Josephine.Kenney@fadv.com

September 4, 2013

Reviewed and published by the Substance Abuse Program Administrators Association and Government Relations Committee as a benefit of Membership.

The Substance Abuse Program Administrators Association (SAPAA) is a non-profit trade association whose members represent all types of drug and alcohol testing service agents; including third party administrators (TPAs), in-house administrators, medical review officers (MROs), DHHS Certified Laboratories, Substance Abuse Professionals (SAPs), manufacturers of testing devices, and collection sites/collectors. Our membership includes representation from all 50 states and Canada in all the above professions.

Executive Summary:

The use of medical marijuana has presented a workplace policy conundrum for Employers, Human Resource Professionals and their legal counsel for some time; this is no surprise based on the conflicts between federal law and the state laws authorizing the medical use of marijuana that have evolved over time. It has also presented the Drug and Alcohol Testing Industry a conundrum; is the Industry pro or con Medical Marijuana. Simply stated, the Substance Abuse Program Administrators Association (SAPAA) supports the federal and United States Department of Transportation position and does not support Medical Marijuana because Marijuana is illegal under federal law.

This paper reviews 1) the history of marijuana as medication, 2) medical marijuana considerations, and 3) medical marijuana practical and legal considerations.

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Stuart Hoffman, M.D., F.A.C.P. Chief Medical Review Officer Operations First Advantage History of Marijuana as a Medication Marijuana Medical Considerations Stuart.Hoffman@fadv.com

History of Marijuana as a Medication: The use of marijuana as a medication pre dates recorded history. According to Chinese legend, Chen Nung, the father of Chinese medicine, discovered the healing properties of marijuana about 2700BC. The earliest written reference is found in the Chinese Pharmacopeia of the 15th century BC. At the time of Ramesses II 1213 BC, prescriptions for cannabis were employed in ancient Egypt as therapy for glaucoma, inflammation and a liquid mixture was used as an enema.

About 600 BC references to cannabis in Indian medicine cited it as a cure for leprosy, and in 200BC the Greeks were using it as a remedy for earache, edema, and inflammation. A Greek physician (circa AD 40 – 90) wrote the first edition of De Materia Medica which became the most important medical book for the next 1500 years. It described a juice of the cannabis plant that was used to, “Treat earache and suppress sexual longing”. During the middle ages, most of the practicing herbalists prescribed cannabis for a wide variety of ailments. In 1578, a Chinese medical text described the use of marijuana to treat vomiting, parasitic infections, and hemorrhage. The Oxford scholar, Robert Burton, suggested Cannabis as a treatment for depression in his 1621 book, The Anatomy of Melancholy.

In the American colonies, George Washington’s diaries reveal that he was interested in the medicinal properties of cannabis, and that he was growing cannabis with a high THC content. In the 1840’s cannabis became a popular remedy in England. It was recommended for muscle spasms, seizures, rheumatism, and menstrual cramps. Queen Victoria’s personal physician wrote extensively on the use of cannabis for menstrual cramps, but there is no recorded evidence that the queen was treated with cannabis. During this same time, Jaques Moreau, a French psychiatrist, found that marijuana suppressed headaches, increased appetites, and helped people to sleep.

In 1850, marijuana was first listed in the United States Pharmacopeia (an official public standards-setting authority for all prescription and over the counter medications). It cited marijuana as a treatment for neuralgia, tetanus, typhus, cholera, rabies, dysentery, alcoholism, opiate addiction, anthrax, leprosy, incontinence, gout, convulsive disorders, tonsillitis, insanity, and excessive menstrual bleeding, among others. It also listed many patent medicine marijuana tinctures which were sold over the counter. In 1889, Dr. E. A. Birch, writing in The Lancet (a leading medical journal then and now) outlined the treatment of opium and chloral hydrate withdrawal by the use of cannabis. The Pure Food & Drug Act was passed in 1906 which required accurate and truthful labeling of all prescription, over the counter, and patent medicines, but it did not prohibit any of them, including marijuana.

Up to 1918 pharmaceutical supplies of cannabis were entirely imported from India and Madagascar.

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In this time period, the U.S. became self-sufficient in growing cannabis of equal quality to that of India. In 1918 the U.S. was producing 60,000 pounds annually, all from pharmaceutical company farms east of the Mississippi.

By 1930 the term “cannabis” was being replaced in the popular culture by the term “marijuana”, mainly because of the public debate over use of the drug. Although the word had been known long before it became popular, most prior references to cannabis implied all the medicinal properties of modern day marijuana. At this same time, two American pharmaceutical companies, Parke Davis and Eli Lilly were selling standardized extracts of marijuana for use as an analgesic, an antispasmodic, and a sedative. Another company, Grimault, was marketing marijuana cigarettes as a remedy for asthma.

At the congressional hearings (in 1937) to consider imposing a prohibitive tax on marijuana, the act was opposed by the American Bar Association which claimed it was unconstitutional and the American Medical Association which claimed there might be substantial medical uses for cannabis. Between 1915 and 1937 every state in the union had already passed laws criminalizing the possession and sale of marijuana. The federal marijuana tax act was passed on Oct.2, 1937. On that very day, the FBI raided the Lexington Hotel in Denver, Colorado and arrested Samuel R. Caldwell, an unemployed laborer, for selling two marijuana cigarettes to Moses Baca 26. He was tried and convicted under the marijuana tax law and sentenced to 4 years of hard labor in Leavenworth Penitentiary and fined $1,000. Baca was sentenced to 18 month in prison for possession. Both men served every day of their sentences. Marijuana was removed from the U.S. Pharmacopeia in 1942, thus losing its aura of therapeutic legitimacy.

In 1961, the United Nations adopted the Single Convention on Narcotic Drugs which includes the following rule: “The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible, but in any case within 25 years.” As of May, 2013, 184 nations ultimately became signatories to this convention. Congress approved U.S. participation in 1967, and three years later passed the Comprehensive Drug Abuse & Control Act, which is the basis for the current federal prohibitions on marijuana use. The Controlled Substances Act is a part of this act.

In 1964, Dr. Raphael Mechoulam, professor at Hebrew University in Jerusalem first identified and isolated delta 9 tetrahydrocannabinol as the main psychoactive ingredient in cannabis. He also was the first to synthesize the drug. In 1970, congress asked President Nixon to appoint a bipartisan commission to determine whether or not marijuana should be removed from schedule I, or even Schedule II, and be decriminalized. He appointed the members of the Schafer Commission which issued a comprehensive report on the requisite studies in 1972. They recommended that marijuana should be decriminalized, but President Nixon rejected the findings of his appointed commission. Since it was formed in 1974, the National Institute on Drug Abuse has been the only administrator of the sole federally authorized contract to grow marijuana for medical and scientific purposes. The University Of Mississippi holds the exclusive federal

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contract to grow marijuana, and the Research Triangle Institute has a federal contract to manufacture and distribute cannabis cigarettes for federally approved research.

November, 1976 Robert Randall, a glaucoma patient from Washington, D.C., employed the Common Law Doctrine of Necessity to defend himself against criminal charges of marijuana cultivation. Federal judge, James Washington ruled Randall’s use of marijuana was a medical necessity, dismissed the charges against him, and required the federal agencies to provide him with access to Federal Drug Administration (FDA) approved government supplies of medical marijuana. He was the first American to receive federally approved marijuana for the treatment of a medical disease. Two years later the Department of Health & Human Services (DHHS) settled a lawsuit by agreeing to supply cannabis to individual patients whose physicians applied for and received a compassionate use investigational new drug application. Over the next thirteen (13) years only six (6) patients qualified for this program and twenty eight (28) applications were pending. DHHS decided to discontinue the program, grandfather in those already accepted & recommend Marinol to pending applicants (in 1991). The Assistant Secretary of Health, Dr. James Mason, stated the compassionate use program for medical marijuana was being suspended due to a surge in applications due to the AIDS epidemic. He stated that,” The program was growing too large, too visible, too time-consuming and too expensive for the FDA to administer.”

In 1978 New Mexico passed the first state law recognizing the medical value of marijuana. In the next few years over 30 states had passed similar laws.

Marinol (Dronabinol), a synthetic form of THC was Federal Drug Administration (FDA) approved for use in chemotherapy induced nausea and vomiting in 1985 and in 1992 the FDA approved its use to treat the anorexia of AIDS.

On November 5, 1996, California became the first state in the union to pass a medical marijuana law.

The New England Journal of Medicine published an editorial on January 30, 1997, titled Federal Foolishness and Marijuana, in which they stated, “Federal authorities should rescind their prohibition of the medicinal use of marijuana for seriously ill patients and allow physicians to decide which patients to treat. The government should change marijuana’s status from a schedule I drug to a schedule II drug and regulate it accordingly.” One month later the National Institutes of Health convened an ad hoc panel of experts which concluded that scientific evidence was insufficient to definitively assess marijuana’s therapeutic potential and advised that the traditional scientific process should be allowed to evaluate the drug’s use for certain disorders.

In January, 1997, the Director of the Office of National Drug Control Policy (the federal drug czar) commissioned the Institute Of Medicine of The National Academy of Sciences to review the scientific evidence on the potential health benefits and risks of marijuana and its constituent cannabinoids. The 257 page report, Marijuana and Medicine, was released in March, 1999, and

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essentially straddled the fence, providing some evidence for both sides of the medical marijuana controversy. It emphasized the need for well formulated, scientific research into the therapeutic effects of marijuana and its cannabinoid components on patients with specific disease conditions.

In July, 1999, the Drug Enforcement Administration moved Marinol from a schedule II to a schedule III status.

October 25, 2002. The 9th Circuit Court of Appeals, in a unanimous ruling, prohibited the federal government from either revoking a physician’s license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government’s action is solely the physician’s professional recommendation of the use of medical marijuana. The U.S. Supreme Court denied an appeal of this issue.

June 6, 2005. In Raich vs. Gonzalez, the United States Supreme Court ruled that the commerce clause gave congress the authority to prohibit the local cultivation & use of marijuana despite state law to the contrary.

April 20, 2006. The Federal Drug Administration (FDA) released the following statement: “There is currently sound evidence that smoked marijuana is harmful. A past evaluation by several Department Of Health and Human Services Agencies concluded that no sound scientific studies supported medical use of marijuana for treatment in the United States, and no animal or human data supported the safety or efficacy of marijuana for general medical use. The FDA, as the federal agency responsible for reviewing the safety and efficacy of drugs, DEA, as the federal agency charged with enforcing the CSA, and the Office Of National Drug Control Policy, as the federal coordinator of drug control policy, do not support the use of smoked marijuana for medical purposes.

February 15, 2008. The American College Of Physicians issued a position paper on medical marijuana:

-ACP supports programs and funding for rigorous scientific evaluation of the potential therapeutic benefits of medical marijuana and the publication of such findings. -ACP supports increased research for conditions where the efficacy of marijuana has been established to determine optimal dosage and route of delivery.-Medical marijuana research should not only focus on determining drug efficacy and safety, but also on determining efficacy in comparison with other available treatments.-ACP encourages the use of non-smoked forms of THC that have proven therapeutic value.-ACP supports the current process for obtaining federal research-grade cannabis.-ACP urges review of marijuana’s status as a schedule I controlled substance and its reclassification into a more appropriate schedule, given the scientific evidence regarding marijuana’s safety and efficacy in some clinical conditions.

July 8, 2011. Drug Enforcement Agency (DEA) Administrator, Michelle M. Leonhart published a letter in the Federal Register stating: “Marijuana has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks accepted safety for use under medical supervision.”

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July 24, 2012. The Los Angeles City Council voted unanimously to close all medical marijuana dispensaries within the city limits within 30 days or face legal action from the city. Many other cities in California have adopted similar laws.

Jan. 22, 2013 the U.S. Court Of Appeals for the D.C. Circuit issued a ruling in the marijuana reclassification case (Americans for Safe Access vs. Drug Enforcement Administration). The court granted standing in the case – the right to bring a claim against the federal government, but denied the legal challenge on the merits, agreeing with the government’s assertion that adequate and well controlled studies on the medical efficacy of marijuana do not exist.

Marijuana Medical Considerations:

Classification:

Marijuana is a euphoric – a substance which causes an exaggerated sense of bodily well-being and elation. Marijuana is derived from various species of the cannabis plant. Its major psychoactive ingredient is delta 9 tetrahydrocannabinol. The term, “marijuana” refers to any portion of the cannabis plant which may be ingested for its psychoactive effects.

Indications:

There are myriad conditions for which medical marijuana has been recommended. Most of these recommendations have been put forth by the medical marijuana proponents and the physicians who routinely recommend its use to patients who are actively seeking the drug. Very few of these recommendations are supported by any sort of rigorous medical research or proof of efficacy. Rather, they are supported by anecdotal accounts from patients with a strong motivation to continue their use of marijuana or by recommending physicians who derive the preponderance of their incomes from individuals seeking a quasi-legitimate form of marijuana. Those physicians who legitimately recommend cannabis to an occasional patient when other therapies have failed, do not appear to be the practitioners who are continually expanding the indications or treating conditions for which there is little evidence to support the diagnosis. There is a great deal of scientific research into the medical uses of cannabis, but little of the type of documentation required by the Federal Drug Administration (FDA) to approve its use as a prescribed drug.

Nonetheless, there appears to be a group of medical conditions emerging which most physicians might agree could warrant the use of medical marijuana when other therapies have failed. These include:

-spasticity associated with multiple sclerosis—approved in Canada as an oral spray (Sativex)

-chronic wide angle glaucoma -- as a secondary agent, since it is less effective than current standard drugs (Trusopt and Lumigan)

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-appetite stimulant* -- for chronic wasting conditions such as advanced malignancies, AIDS, and chronic renal insufficiency

-anti nausea** -- for side effects of chemotherapy

-chronic pain*** -- difficult to assess without objective findings as in fibromyalgia or migraine headache

* A much more effective therapy is high dose progesterone administered in a good tasting syrup either 4 times a day or a more concentrated syrup once a day. Megace (megestrol acetate).

** Much more effective treatments are the 5HT receptor antagonists, Zofran (ondansetron) or Anzemet (dolasetron) administered in tablet form or intravenously for intractable vomiting or pretreatment for chemotherapy.

*** Generally not used as first line therapy for relief of chronic pain, since the opiates are far more effective, and the milder opiates have a low potential for addiction, as does marijuana. It is often employed by pain specialists as an adjuvant to the milder opiates in hopes of not having to advance the patient to higher doses or more potent opiates.

Side Effects and Adverse Reactions:

It is widely agreed that marijuana intoxication impairs intellectual and physical performance as well as interpersonal functioning. These are typically classified as Acute (during the period of the “high” or obvious intoxication, usually beginning within 10 minutes of smoking and lasting 2 – 6 hours after ingestion), Intermediate (in the 24 -48 hours after ingestion), Long Term (up to 28 days or possibly longer effects from chronic high dose usage).

Acute: Drowsy state of awareness

Lackadaisical attitude

Prolonged response time to stimuli & danger

Decreased ability to judge distance and space

Decreased ability to judge time

Decreased ability to maintain focus & concentration on a task or environmental

danger

Impaired balance

Decreased memory

With very high doses: anxiety, panic attacks, and hallucinations

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Intermediate: Correlated with amount ingested and frequency of usage

Decreased hand to eye coordination

Prolonged lack of motivation for up to 3-4 days after last usage

Prolonged: Strongly correlated with amount ingested and frequency of usage

Amotivational syndrome manifested by apathy, lethargy, and decreased drive to

complete tasks

Lack of ambition to seek and maintain employment

Increased risk of chronic obstructive pulmonary disease

Increased risk of lung cancer (difficult to separate from associated tobacco use)

Weak associations with increased incidence of seizures and schizophrenia

Equivocal evidence of true addiction – observed withdrawal symptoms after

chronic, heavy use and abrupt cessation

Current and Future Research:

Research into possible medical uses of cannabis has been exceptionally robust in the past several years. In 1999 The American Journal of Psychiatry reported that the use of THC could alleviate the symptoms of Tourette’s syndrome. Since that time the list of medical conditions and symptoms that can be treated with cannabis has grown exponentially, and today it is estimated that there are over 2,000 published scientific papers on the use of cannabis for medical treatment.

There are ongoing investigations for the possible use of marijuana to diminish the severity of various autoimmune disorders such as inflammatory bowel disease, rheumatoid arthritis, and multiple sclerosis. It has been well documented that marijuana can reduce the spasticity and neuropathic pain of multiple sclerosis. It is now being reported that cannabis can actually reverse the pathologic process by remyelinating the diseased demyelinated nerve segments.

The cannabis treatment of two neurologic disorders, Alzheimer’s disease and amyotrophic lateral sclerosis are recent areas of interest. There is steadily accumulating data that cannabis can actually slow down the spread of certain cancer cells by inhibiting the growth of new blood vessels within the tumors.

An article in the February, 2010 edition of Neuropharmacology showed evidence to suggest that medical marijuana can reduce the maintenance dose of opiates in prescription dependent pain patients by 40% - 60%. This finding requires long term prospective double blind studies to be

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substantiated. However; many addiction specialists are already employing medical marijuana to wean their patients off of opioids.

One of the major efforts by the proponents of legalizing marijuana has been repeated requests to remove marijuana from schedule I status, & place it in schedule II or even III, which would allow it to be prescribed by physicians. In the past, such renowned medical entities as the New England Journal of Medicine, The American Medical Association, & the American College Of Physicians have published positions either directly advocating the rescheduling of marijuana to a less restrictive category, or at least considering the rescheduling of marijuana. These requests have repeatedly been denied by various departments of the federal government such as the courts, the Drug Enforcement Administration, and the Food And Drug Administration. The pro-legalization community points out that the government position on two absolutely identical molecules of delta 9 tetrahydrocannabinol is different solely based on their source. One molecule is defined as having a high potential for abuse, may lead to severe physical or psychological dependence and has no proven medical benefit if it comes from the plant material while the other identical molecule has a potential for abuse, may lead to low to moderate physical dependence or high psychological dependence, and has demonstrable medical benefits if it is synthesized. In that context the government position appears untenable.

However, the federal government has several arguments in their favor:

1. It is impossible for the FDA to assess the efficacy of a substance which comes in such variable forms, potencies, and adulterated by many other inert or potentially toxic additives. The government has available for approved scientific research standardized marijuana cigarettes for appropriately designed, controlled and executed pre-clinical and clinical studies analogous to those the FDA requires of all other drugs to gain FDA approval.

2. No potential manufacturer (i.e. pharmaceutical company) is willing to take on the extremely expensive, arduous, and years long process of doing 3 and 4 phase studies to prove medical marijuana’s benefit for each proposed condition and its efficacy compared to currently available therapies for each condition. Prospective manufacturers would have no way to recoup their research expenses or ultimately profit from FDA approval since the substance could not be patented. Anyone could manufacture it to the FDA standards, and, even then, if the cost was too high, individuals would simply opt to “grow their own”.

3. To date there is insufficient evidence for the FDA to make an informed scientific judgment as to the therapeutic value of smoked marijuana in standardized dosage forms, objectively measurable effects upon various medical conditions, and the comparative efficacy of marijuana against other therapies for the same condition with the same degree of severity.

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Practical and Legal Considerations:

For employers, a company specific, individualized, approach to medical and “recreational” marijuana developed after consulting with, and obtaining guidance from, legal counsel is strongly recommended. Legal counsel must be familiar with your organization’s tolerance for legal risk and its legal risk mitigation policies. An organization’s general employment policies, in particular those related to workplace safety, the Americans with Disabilities laws, state and federal and discrimination compliance should all be considered in the context of medical and “recreational” marijuana. There is no silver bullet or easy answer that provides the best or only approach. However, following are some considerations that may help start such policy development and thereafter assist in an organization’s notification to its organization’s Medical Review Officer, who reviews its test results if the organization conducts drug testing.

There are strong feelings on both sides of the argument as to whether smoked marijuana is a medication or an illegal substance. There is a great deal of ongoing publicity and lobbying pro and con. State legislation initiatives on medical marijuana continue while such laws become more protective of the medical marijuana patient and treat smoked marijuana as if it were the Federal Drug Administration prescription medication that it is not.

Some states also believe that they can control distribution through regulation. These distribution activities can help build a state’s tax base through revenue generation from licensed and therefore taxed businesses authorized to grow and or distribute marijuana to medical marijuana patients in the respective states.

Twenty states and the District of Columbia now have medical marijuana laws that vary greatly in content and scope, thereby presenting different challenges for Human Resource Professionals and their organizations. State legislative initiatives must be monitored closely because additional states are passing laws on medical marijuana on an ongoing basis.

These states that have passed medical marijuana laws include 1) Alaska, 2) Arizona, 3) California, 4) Colorado, 5) Connecticut, 6) Delaware, 7) Hawaii, 8) Illinois 9) Maine (the Maine law was amended retroactively to December 12, 2009), 10) Massachusetts, 11) Michigan, 12) Montana (13) Nevada, 14) New Hampshire 15) New Jersey, 16) New Mexico, 17) Oregon, 18) Rhode Island, 19) Vermont, and 20) Washington. Please note that the Illinois and New Hampshire laws were only recently signed by the Governors in Illinois (August 1, 2013) and New Hampshire (July 23, 2013). The Illinois law is effective date January 1, 2014 and the New Hampshire law will be practically effective October 2013 because implementation cannot begin until the practical logistics are in place such as access to medical marijuana, registry details, and regulations published.

Hawaii also recently amended its medical marijuana law by two separate pieces of legislation. However, because the laws are not effective until January of 2015, additional information on the medical marijuana law in Hawaii which requirements require study closer to the effective dates of each law.

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Maryland has a law that references marijuana use relative to criminal defense only.

Arizona, Connecticut, Delaware, Massachusetts, Montana, and Rhode Island are particularly challenging based on the specific restrictive language referencing a prohibition of some sort against employment discrimination. Although employer friendly, case law in Oregon and California should be taken into consideration when making a policy decision on whether or not to accept medical marijuana as a legitimate medical explanation for a positive drug test result.

A critical point to highlight is that the laws of these twenty states and the District of Columbia conflict with Federal Law and policy. 21 United States Code Section 812 (b) (1) Schedule 1 c (17) specifically prohibits tetrahydrocannabinoids/marijuana. State’s Rights versus Federalism is at the heart of the debate. A second point of note is that Medical Marijuana is not a legitimate medical explanation for a positive test result for marijuana under United States Department of Transportation or Federal Employee testing programs, although the prescription drug Marinol is.

Currently, and as the result of the critically important U.S. Supreme Court decision, Alberto R. Gonzales, Attorney General, et al., Petitioners, v. Angel McClary Raich et al. No. 03-1454. Supreme Court of the United States. Decided June 6, 2005. 125 S.Ct. 2195, in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result. (This case is generally referred to as Ashcroft v. Raich or Gonzales v. Raich.)

The United States Supreme Court case Ashcroft v. Raich No. 03-1454 was argued on November 19th, 2004. This case involved two California patients’ rights to cultivate and possess prescribed marijuana. These patients had previously been protected from federal prosecution by the U.S. 9th Circuit Court’s decision. More fundamentally, the case debates states’ rights versus federalism. With the new administration, the case became Gonzales v. Raich, No. 03-1454 rather than Ashcroft v. Raich. On June 6, 2005, the Supreme Court ruled that the federal government may enforce the Controlled Substances Act prohibition on the use of marijuana for medical reasons against persons who use marijuana under the state medical marijuana laws. This decision may impact the way medical marijuana use is interpreted in the workplace in future court decisions. By affirming that the use of medical marijuana is illegal under federal law, employers can refuse to consider accommodations that would acknowledge or support illegal activity.

In addition to medical marijuana state law, state case law decisions must be considered in an employer’s policy decision. The most important recent state law decision addressing medical marijuana in the workplace is the California case, Ross v. Ragingwire Telecommunications, Inc., which was initially decided on the pleadings. The initial Decision in Ross, published subsequent to the U.S. Supreme Court Decision Gonzales v. Raich, discussed previously in this article, held that employers were not required to hire an applicant that tests verified positive on a pre-employment drug test but provides a medical marijuana explanation for the positive laboratory test result. The lower court's Decision was upheld on appeal to the California Court of Appeal. The Court of Appeal held that employers have legitimate interests in not employing persons who use illegal drugs. The Court further held that such use had resulted in, among other things, increased absenteeism from work, diminished productivity, greater health costs, and increased problems with respect to safety in the workplace. 132 Cal. App. 4th 590, September 7, 2005.

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Ross v. Ragingwire Telecommunications, Inc. was thereafter appealed to the California Supreme Court, was argued to the Court on November 6, 2007 and decided on January 24, 2008. The Court affirmed the California Appeals Court’s Decision holding as follows:

The Compassionate Use Act of 1996 (Health & Saf. Code, Section 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf. Code, Section 1137; see id., Section 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug’s possession, even by medical users. (21 U.S.C. Sections 812, 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29; United States v. Oakland Cannabis Buyer’s Cooperative (2001) 532 U.S. 483, 491-495.).

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov. Code. Section 12900 et seq.; see id., Section 12940, subd. (a); hereafter the FEHA) or for wrongful termination in violation of public policy (see, e.g., Stevenson v. Superior Court (1997) 16 Cal. 4th 880, 887, Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3rd 167, 170, 176-178). We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal use into consideration in making employment decisions. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883.) We thus affirm.Ross v. Ragingwire Telecommunications, Inc., S138130, Ct. App. 3 C043392, January 24, 2008.

Another example of state case law that should be considered is the Oregon Appeals Court Decision of Washburn v. Columbia Forest Products, Inc. A116664 filed January 12, 2005. The Washburn Court ruled that Oregon employers might have to make reasonable accommodation for disabled workers invoking the protection of Oregon’s Medical Marijuana Statute due to the requirements of the Oregonians with Disabilities Law. The Court also ruled that Washburn’s medical use marijuana does not automatically entitle him to accommodations. Rather, an employer could argue that certain accommodations might be unreasonable or create “undue hardship”.

In the two cases addressing whether an employer must accommodate the use of medical marijuana, Johnson v. Columbia Falls Aluminum Co., LLC, 2009, MT 108N (MT 2009) and Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, BOLI 3004; CA A130422; SC S056265, Filed April 14, 2010 each Court held that an employer was not required to accommodate an employee’s use of medical marijuana. Notably, the plaintiff in the Johnson case was an applicant and the plaintiff in Emerald case was a temporary employee refused permanent status after the Emerald learned that the temporary employee was a medical marijuana user.

In a more recent case, Casias v. Wal-Mart Stores, Inc. Case No. 1:10-CV-781, Filed February 11, 2011, an employer friendly decision, the Court held that Michigan’s medical marijuana law

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“says nothing about private employment rights” but “only provides a potential defense to criminal prosecution or other adverse action by the state”. The Decision was affirmed by U.S. Court of Appeals on September 19, 2012.

Turning to so called “recreational” or “legalized” marijuana, on November 6, 2012, the states of Colorado and Washington legalized marijuana through Referendum initiatives, becoming the first two states to do so. This summarizes the election outcomes. It has been reported in the national press that a number of former heads of the Drug Enforcement Administration (DEA) have been asking for the Government to challenge the state laws legalizing the recreational use of marijuana. Also, the United Nations International Narcotics Control Board’s Annual Report “stressed the importance of universal implementation of international drug control treaties by all States parties and urges the Government of the United States to take necessary measures to ensure full compliance with the international drug control treaties in its entire territory.” Oregon - 55% of Oregon’s voters voted against the legalization of marijuana, thereby defeating the initiative to legalize marijuana in Oregon.Colorado – 54% of Colorado’s voters supported a constitutional amendment permitting recreational marijuana use. This amendment seems focused on taxing and regulating marijuana. The amendment specifically states that employers do not have to permit the use of marijuana and also notes that the Amendment has nothing to do with the State’s Medical Marijuana law. See pages 11 and 12 of the Colorado Amendment 64 Use and Regulation of Marijuana.

Washington – 55% of Washington’s voters voted for the legalization of marijuana. Initiative 502 establishes the ground rules for marijuana possession, use, and includes a tax structure. It only has indirect impacts on the State’s Medical Marijuana law and those are limited to protection from arrest and access to marijuana.

Please note that the popular press predicts litigation on the Colorado and Washington legalization of marijuana. Although whether to accept medical marijuana as a reasonable medical explanation is an employer policy election for Non-Mandated, Non-Regulated, Non-DOT testing programs, the laws in Colorado and Washington do not require an employer to accept a marijuana explanation from a donor.

Regarding DOT and federal employee mandated testing; through Drug and Alcohol Testing Industry communications from the United States Department of Transportation Office of Drug and Alcohol Policy and Compliance, an ODAPC Representative has confirmed that the Referendums in Colorado and Washington do not impact ODAPC’s official position that medical marijuana is not a reasonable medical explanation for a positive DOT drug test. Marijuana, including medical marijuana, continues to not be considered a reasonable medical explanation for a marijuana positive, as per prior guidance from ODAPC.

The foregoing being stated, consultation with an organization’s legal counsel on the impacts of the Colorado and Washington legalization laws consistent with an organization’s workplace drug testing program and legal risk mitigation strategy is critically important. An organization’s Drug Free Workplace or Employment Policy should at a minimum consider including a statement that the recreational use of marijuana in the workplace is prohibited. If an organization includes drug

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testing in its Drug Free Workplace Policy, and depending on the organization’s risk mitigation tolerance, approach, policy, and strategy, a statement that the recreational use of marijuana will not be considered to be a reasonable medical explanation for a positive drug test result during the Medical Review Officer’s review of the laboratory test result and that the test result will be reported to the organization as a positive with a notation that a “recreational marijuana” explanation was provided to the MRO.

Conclusion: Again simply stated, the Substance Abuse Program Administrators Association (SAPAA) supports the current legal position of the federal government, including the United States Department of Transportation’s position on the use of medical marijuana.

The foregoing position paper has been reviewed and is published by the Substance Abuse Program Administrators Association (SAPAA) and its Government Relations Committee as a benefit of Membership with the permission of its Authors and subject to the Authors’ Copyright. The foregoing position paper reflects the position of the Substance Abuse Program Administrators Association, its Government Relations Committee, and its Board of Directors. It is not intended to represent the position of each and every SAPAA Member on this subject.

The foregoing position paper is not offered as business, legal or scientific advice but is instead offered for informational purposes. Neither SAPAA nor First Advantage provide legal advice, are not medical providers and do not offer business, medical or scientific advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide scientific advice. SAPAA and First Advantage make no assurances regarding the accuracy, completeness, currency or utility of the foregoing information. Legislative, regulatory and case law developments regularly impact on general research and the science in this area is evolving rapidly.

References

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Blake, D.R., et. al. Preliminary Assessment of the Efficacy, Tolerability & Safety of a

Cannibis-Based Medicine (Sativex) in the Treatment of Pain Caused by Rheumatoid

Arthritis. Rheumatology, Jan., 2006.

Eden, T. & Kenney, J. 2012, 5 Steps to Successfully Walking the Legal Tightrope, SAPAA

Webinar presented by Thomas M. Eden, III, Attorney, Constangy, Brooks & Smith LLP Kassiner, Jerome. Federal Foolishness & Marijuana. New England Journal of Medicine,

Jan. 30, 1997.

Kenney, J. 2013, Medical and Legalized “Recreational” Marijuana: A Human Resource

Challenge http://www.hreonline.com/HRE/view/story.jhtml?id=534355275

Retrieved, August 27, 2013.

Leirer, V.D. et al. Marijuana Carry-Over effects on Aircraft Pilot Performance, Aviation,

Space & Environmental Medicine, 1991; Vol. 62, P.221.

Ludovic, J. & Yamamura, T. Cannabinoids & the Immune System: Potential for the

Treatment of Inflammatory Diseases? Journal of Neuroimmunology, Sept., 2005

Muller-Vahl, K.R. et al. Treatment of Tourette Syndrome With Delta 9 THC. American

Journal of Psychiatry, 1999, Vol. 156, P. 395.

Vaney, C. et al. Efficacy, Safety & Tolerability of an Orally Administered Cannabinoid

in the Treatment of Spasticity in Patients with Multiple Sclerosis. Multiple Sclerosis,

April, 2004 Vol. 15 Issue 46, P. 36.

Woodward, William C., Testifying For the American Medical Association before the U.S.

House of Representatives Ways & Means Committee - Opposing Taxation on

Marijuana Because “There are substantial medical uses for Cannabis”. May 4, 1937

15

Yesavage, J.A. et al. Carry-Over Effects of Marijuana Intoxication on Aircraft Pilot

Performance: A Preliminary Report. American Journal of Psychiatry, 1985, Vol. 142,

Position Paper Supporting Reclassification of Marijuana from Schedule I to a more

Appropriate Schedule. American College of Physicians, Feb. 15, 2008.

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