Marijuana Still Best toJust Say NoThe Misleading and Confusing Case of Legal Pot

The Bottom Line:• Marijuana is a Controlled Substance under Federal Law and

Universities and others are subject to laws that condition receipt of Federal Funding upon compliance with Federal drug laws.

• Federal laws with respect to employment, housing and disabilities contain no carve-outs for marijuana.

• The Federal government is enforcing Federal drug laws and has even threatened to arrest state employees who implement state laws allowing for medical marijuana use.

Federal Controlled Substances Act

• Marijuana is a Schedule 1 Drug under the Controlled Substances Act

• Schedule 1 substances have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.

• Some examples of substances listed in Schedule I are: heroin, LSD, marijuana, peyote and Ecstasy.

Other Regulations• Crime to lease, rent

or maintain a place for purpose of manufacturing, distributing or using controlled substances.

• Crime to engage in financial transactions to promote illegal activities including drug trafficking and disguising the source of proceeds of illegal activities.

Gonzales v. Raich, 545 U.S. 1 (2005)Supreme Court finds that Federal Drug Laws trump State Laws.

• California passed medical marijuana law.• Two residents who used doctor-recommended

marijuana had their plants destroyed by DEA.• The Controlled Substances Act prevailed over

California’s medical marijuana law based on the Commerce Clause of the Constitution.

• Local activities can have a substantial effect on interstate commerce if taken in the aggregate.

The Feds Back Off?

The Cole Memo:Federal Enforcement – Priorities

• Prevent distribution to minors;• Prevent revenues going to criminal enterprises, gangs

and cartels;• Prevent diversion across state lines;• Prevent state-authorized activities from being a cover for

other drug trafficking or crimes;• Prevent violence and firearms in growing and distribution

activities;• Prevent drugged driving and other risks; and• Keep marijuana off of federal lands/property.

However, the Cole Memo continued:

• Only address the exercise of prosecutorial discretion• Guidance not intended to be relied upon to create

any rights or defense to arrest• May still investigate and prosecute where serves an

important federal interest

So, despite what we hear in the news, people are still getting arrested because marijuana is still illegal Tacoma: “Karen Strand didn’t

think she’d get in trouble for having a small container of medical marijuana when she went hiking in Olympic National Park this summer. President Barack Obama, she remembered, has said the federal government has “bigger fish to fry” than people who followed state marijuana laws….”

With the misinformation about marijuana in the news, it is hard to make our students and employees understand why we can’t and won’t allow marijuana on campus.

The Drug-Free Workplace Act

• Requires institutions receiving federal contracts in excess of $100,000 or receiving any federal grant to establish a policy prohibiting the manufacture, use and distribution of controlled substances in the workplace.

• If you fail to demonstrate an ongoing, good-faith effort to maintain a drug-free workplace, your institution can be disqualified from obtaining governmental funding.

Occupational Health and Safety Act

• Generally imposes an obligation on employers to maintain a safe workplace.

• Allowing employees who are under the influence of marijuana to operate machinery or work with hazardous materials could create an unsafe workplace and violate OSHA requirements.

Other workplace consideration• Illegal drug use can be a bar to the acquisition or renewal of a

Federal security clearance.• If an individual holds a DEA license as part of their employment,

for example a researcher, it can be revoked for failure to comply with Federal controlled substances laws.

• Employees in certain job classifications are subject to Federal and State laws requiring drug testing – e.g. Commercial Motor Vehicle Operator.

Fortunately State Laws address this:

• Just as an employer does not have to allow workers to drink on the job, employers don’t have to allow employees to be high on the job.

• State “legal” marijuana laws may vary somewhat but each allows employers to disallow drug use in the workplace and take disciplinary action against workers who come to work impaired.

But Note, a number of States have laws in place to prohibit employment discrimination based on employees’ medical use outside of the workplace – unless would subject the employer to loss of licensure or liability for violation of Federal law.

Drug Testing Employees• State laws vary.• In General though:

• Employee put on notice that the employer may drug test;

• There is genuine and reasonable belief that employee is impaired;

• Testing used minimizes invasion of privacy as much as possible.

• Test must be job related and consistent with business necessity – that is, use is adversely affecting the employee’s performance.

• Federal laws for specific employees may also have other limitations and requirements.

Drug Testing Continued• Under Colorado Law, an employer can establish a written drug

or alcohol policy that provides for drug testing that will be conducted by a medical facility or laboratory licensed or certified to conduct such tests.

• This will support testing in the absence of suspicion – that is – annual testing or random testing throughout the year.

• Must be careful not to trigger other legal claims such as discrimination, invasion of privacy or retaliation.

• Termination for failing to pass drug or alcohol tests can result in loss of unemployment benefits.

“Accommodating” Medical Marijuana

• The use of Medical Marijuana is not protected under the Americans with Disabilities Act or the Rehabilitation Act.

• ADA: “[T]he term ‘qualified individual with a disability’ shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”

• Rehabilitation Act: “[T]he term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.”

Marijuana use is not protected under the Fair Housing Act

• Medical Marijuana users are also excluded from the definition of “individual with a disability” under the Fair Housing Act as the Fair Housing Act will not protect a “current illegal drug user.”

• Remember though: If an individual who has a disability WAS a user of medical marijuana and is not currently, they could be protected as an “individual with a disability” with respect to other accommodation requests.

What about using at home?

“Lawful Off-Duty Activities” statutes have been passed by a number of states and prohibit termination of an employee for engaging in activities during non-working hours that are legal.

Courts that have considered terminations for marijuana use off-duty focus on Federal law violation.NOTE: A few states have specifically addressed this to prohibit terminations based on use of medical marijuana when off duty.

Quadriplegic Customer Service Employee fired for off-duty use

Colorado Court of Appeals upheld the firing of Brandon Coats who used medical marijuana after work hours to control muscle spasms after he failed a random drug test. The Colorado Supreme Court recently upheld the termination.

Students verses Employees• Students as

employees are subject to employment laws and policies.

• Student use can trigger additional impacts on them and your institution.

Drug Free Schools and Communities Act

• Institutions receiving federal financial assistance must establish a drug and alcohol abuse prevention program for students and employees.

• Once a year, students and employees must receive materials that disclose standards of conduct expected, laws applicable to drugs and alcohol, health risks associated with drugs and alcohol, assistance programs available and sanctions for violations.

Biennial Review• Conduct a biennial review of prevention programs in

even numbered years to determine how effective these programs are and if changes are needed.

• Review includes determining number of drug and alcohol violations/fatalities on campus or as part of institutional activities and the types of sanctions imposed.

• Ensure that sanctions are consistently enforced.

Department of Education is expected to step up enforcement

March 2012 OIG report found the Department of Education had performed “no oversight activities” of the drug and alcohol prevention programs for the past twelve years.

“If the Department of Education does this, which it looks like it might, it’s entirely possible that the federal government might hold up your student aid packages and federal assistance packages pending approval of your compliance efforts.” Peter Lake, Director of Stetson University’s Center for Excellence in Higher Education and Law as quoted at: http://www.magnapubs.com/blog/recruitment-and-retention/Ramped-Up-Student-Safety-Law-Enforcement-Could-Affect-Federal-Aid-Eligibility/

Required Training of Employees:• The link between alcohol and drug use and sex-based harassment;• Best practices to address that link, including, but not limited to:

• How to address the challenges of investigating incidents involving alcohol or drug use; and

• How to encourage victims and witnesses of sex-based harassment to cooperate with investigations if they have concerns about possible conduct implications of their own alcohol and drug use….

Mandatory Student Training:• These sessions will emphasize:…the role of alcohol and drug use in

incidents of sex-based harassment, including how such use does not excuse the perpetrator’s conduct and how such use relates to consent….

Like your Financial Aid?Higher Education Act:

(r) SUSPENSION OF ELIGIBILITY FOR DRUG-RELATED OFFENSES-(1) IN GENERAL- A student who has been convicted of any offense under any Federal

or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this title during the period beginning on the date of such conviction and ending after the interval specified in the following table ….

The possession of a controlled substance Ineligibility period is: First offense 1 year; Second offense 2 years; Third offense Indefinite.

The sale of a controlled substance Ineligibility period is:First offense 2 years; Second offense Indefinite.

(Although there are ways to rehabilitate yourself in some cases)

Background Check Anyone?

CAREER BUILDER 2015Surveyhttp://advice.careerbuilder.com/posts/post-tweet-pin-follow-how-social-media-can-help-and-hurt-the-job-hunt

• 52% of employers research job applicants on social networking sites – up from 42% in 2014 and 39% in 2013.

• 35% said they are less likely to interview someone if they cannot find them online.

So what have employers found to keep them from hiring someone? Some of the most commonly cited answers include:• Provocative or inappropriate photographs – 46%• Information about candidate drinking or using drugs – 40%• Candidate bad-mouthed previous company or fellow employee – 34%• Poor communication skills – 30%• Discriminatory comments related to race, religion, gender, etc. – 29%

But what about working in the hemp or marijuana industry?

Conspiracy and Personal Liability

• It is a federal crime for an individual to assist others in violating federal law.

• The US Department of Justice has specifically warned that they “do not consider state employees who conduct activities under state medical marijuana laws to be immune from liability under federal law.”

• Not to mention a plain old violation of the Controlled Substances Act.

But wait!• “None of the funds made available in this Act to the Department

of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

• Similar law for Industrial Hemp operations.

US v. Marin Alliance for Medical Marijuana --10/19/15

• MAMM dispensary was shut down in 2011 for violating the Controlled Substances Act (“CSA”) although it was otherwise in compliance with California laws regarding medical marijuana.

• Congress in the Appropriations Act “defunded” DEA enforcement of the CSA against medical marijuana dispensaries and programs unless the operations violated state laws. (Section 538)

• The DEA argued that they could still enforce the CSA against medical marijuana dispensaries operating in compliance with state law because Section 538 only limited actions against the States’ implementation of such programs – not actions against individual businesses. (What?)

• The Court rejected the DEA’s argument as defying language and logic and being counterintuitive and opportunistic.

Yet, a few days later…

So, in conclusion:

• The law is a very fluid area.• Some things are pretty

clear in terms of employees on the job.

• How the industry is treated under Federal Law is in flux.

• So, stay tuned.