On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace. Continue Reading Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User
Going in to this election, the possession and use of medical marijuana was illegal in Oklahoma. However, arguments against cannabis legalization have now gone up in smoke. The Oklahoma voters have spoken by enacting State Question (SQ) 788, which now makes it legal to grow, sell, and use marijuana for medicinal purposes. Under the law, adults with a medical marijuana license would be authorized to, among other things, possess up to three ounces of marijuana on their person, six flowering plants, seventy two ounces of edibles, and one ounce of concentrated marijuana derived from the plant. SQ 788 will go into effect 30 days from June 26, 2018. Continue Reading Oklahoma Creates a Buzz by Legalizing Medical Marijuana
Can employers deny employment to people who use cannabis under a medical prescription authorized by state law? In more and more states, the answer is now “No.”
Changes in cannabis laws are creating a new haze for employers. What follows is a quick summary citing some (not all) states that now require employers to think twice before denying employment to individuals because they tested positive for the use of marijuana that they are ingesting for state-authorized medical reasons. Continue Reading Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use
A recently-filed lawsuit in the federal district court in Arizona alleges that an employee’s use of medical marijuana may be permissible under the federal Americans With Disabilities Act (“ADA”). Although the employee faces an uphill battle, the case presents a challenge to the commonly-held view that the ADA does not support such a claim.
In Terry v. United Parcel Services, Inc., No. 2:17-cv-04972-PHX-DJB (D. Ariz., filed Dec. 29, 2017), a former UPS sales director alleges, among other things, that UPS terminated his employment in violation of the ADA and the Arizona Medical Marijuana Act (“AMMA”). Terry alleges that he was a medical marijuana card holder under the AMMA, and that, at the direction of his doctor, he used medical marijuana during non-work hours to treat his nearly constant and extreme hip pain. He claims that he never possessed, used, or was impaired by marijuana, alcohol, or any other impairing substance while present on UPS’s premises or during working hours. According to the complaint, in April 2017, UPS required Terry to report immediately for a drug and alcohol screening test, and was informed that the reason for the test was “observable behavior.” At a meeting with UPS officials one week later, Terry claims that UPS terminated his employment due to his positive drug and alcohol screening results and violating the company’s drug and alcohol policy. Terry claims that he responded by notifying UPS that he has a valid medical marijuana card under the AMMA and a valid prescription for Adderall that he took to treat his ADD. Continue Reading A Potential P[l]ot Twist for Medical Marijuana and the ADA
Despite the dearth of approved marijuana products, the term “medical marijuana” has become commonplace, and the term’s prevalence continues to increase as more states legalize the use of the marijuana plant and its active derivatives for medical purposes, and marijuana dispensaries continue to expand throughout the United States. As of 2017, 29 states and the District of Columbia have approved the use of marijuana for medical purposes. (Despite state laws legalizing marijuana for medical and/or recreational use, marijuana remains a Schedule I controlled substance its distribution and use remain illegal under Federal law.)
Studies on the potential of the marijuana plant or its extracts continue to expand and include, among others, treating pain, preventing seizures, and treating autoimmune disorders such as Crohn’s disease. However, despite assertions of efficacy, the U.S. Food and Drug Administration (FDA) has not recognized or approved the marijuana plant as a medicine, and to date, the FDA has only approved three products – Marinol® and Syndrox®, which include the active ingredient, dronabinol, a synthetic delta-9-tetrahydrocannabinol (“THC”), to treat nausea associated with chemotherapy and loss of appetite in AIDS patients; and Cesamet®, which includes the active ingredient, nabilone, a synthetically derived compound with a structure similar to THC, to treat nausea and vomiting associated with chemotherapy. These drugs are available by prescription only.
Seyfarth Synopsis: Federal officials have been asking states where marijuana is legal to turn over demographic data of patients who have obtained a medical marijuana card, raising privacy concerns and compliance questions over whether state officials should cooperate with the federal government. Continue Reading How Going Green Can Have Adverse Effects on Your Privacy
On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual’s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies. Continue Reading Is Medical Marijuana A Reasonable Accommodation? Mass. Court Says … Possibly
New York state’s Medical Marijuana Program historically has been one of the most restrictive in the United States with strict limitations on the number of licensed producers and various barriers preventing patients from accessing medical cannabis. However, recent expansions to New York’s qualifying conditions and changes to the licensing requirements for medical professionals will allow more patients to participate in the program. Continue Reading New York Medical Marijuana: Can the Fire Keep Burning?
Attorney General Jeff Sessions is in the news for two reasons today: he’s testifying before the Senate Intelligence Committee on his possible links to Russia and a letter he wrote to Congress indicating his disapproval of the Rohrabacher-Farr Amendment has surfaced.
Last month we reported that Congress extended the Rohrabacher-Farr Amendment. No sooner was this extension passed, but Sessions wrote to Congress seeking its repeal. As many readers know, the Amendment prohibits the Justice Department from using federal funds to prevent states from implementing their own medical marijuana laws. It is, in essence, a victory for states’ rights, in the sense that they can decide whether to make medical marijuana legal, without fear of federal government interference.
Yesterday massroots.com, and today The Washington Post reported that in May, Sessions wrote to Congress stating that “it would be unwise for Congress to restrict the discretion of the Department [of Justice] to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long term uptick in violent crime.”
Of course, the “historic drug epidemic” to which Sessions refers has nothing to do with cannabis, but involves opiates, and, according to the Washington Post, a growing body of research shows that opiate overdoses decrease in states in which medical marijuana is legal. Sessions also wrote that “[t]he Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous traffickers who threaten American lives.” It is difficult to understand how Rohrabacher-Farr prevents the federal government from enforcing the Controlled Substances Act against those engaged in trafficking in drugs across state lines.
Sessions’ position is contrary to that of the President who expressed support for medical marijuana laws during his campaign. However, over the past several months there have been a number of mixed signals from the Administration regarding enforcement of the federal prohibition on the possession and sale of cannabis. These mixed signals have created tremendous uncertainty in all segments of the cannabis industry, but it is hard to believe that the Administration really intends to disrupt what has become a multi-billion dollar industry.