Category Archives: Marijuana and Employment

Maine becomes first state to protect marijuana use outside of work

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Author

Valerie Bolden-Barrett

Published

Feb. 1, 2018

Dive Brief:
  • Beginning today, employers in Maine are prohibited from discriminating against employees based on their marijuana or marijuana byproduct use outside of work, attorneys at Littler Mendelson report. Maine’s Labor Department also removed the drug from the list of substances for which employers may test applicants.
  • The law prohibits employers from disciplining or refusing to hire workers age 21 or older based on their off-site marijuana use. Employers are still free to prohibit its use and possession in the workplace and can discipline employees who are under the influence of marijuana in the workplace. According to Littler, a spokesperson for the state labor department says that a positive test result won’t be enough to prove that an employee was under the influence.
  • Littler says Maine’s law doesn’t affect compliance with federally mandated testing for marijuana, like that required by U.S. Department of Transportation regulations.
Dive Insight:

Some other states, like California, have legalized recreational marijuana use, but until now, none prevented employers from enforcing anti-drug policies or refusing to hire candidates who test positive for the drug. With the recent influx of employee-friendly state and local laws, however, employers may see other states and cities adopt laws similar to Maine’s.

And while the Maine law’s provisions certainly raise some compliance and enforcement questions, employers remain free to prohibit drug use at work. HR managers at affected employers, however, may want to update their organization’s handbook or other drug policies to reflect the changes.

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Labor unions see organizing California marijuana workers as a way to grow

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Unions have caught a whiff of a rare opportunity to organize a whole new set of workers as recreational marijuana becomes legal in California.

The United Farm Workers, Teamsters and United Food and Commercial Workers are looking to unionize the tens of thousands of potential workers involved in the legal weed game, from planters to rollers to sellers. The move could provide a boost to organized labor’s lagging membership — if infighting doesn’t get in the way.

The United Farm Workers, co-founded by iconic labor leader Cesar Chavez, says that organizing an industry rooted in agriculture is a natural fit, and that growers could label their products with the union’s logo as a marketing strategy.

“If you’re a cannabis worker, the UFW wants to talk with you,” national Vice President Armando Elenes said.

But United Food and Commercial Workers, which represents grocery store employees, meat packers and retail workers, registered its intent to organize cannabis workers across the country.

“We would hope they respect our jurisdiction,” UFCW spokesman Jeff Ferro said.

Teamsters organizer Kristin Heidelbach said there’s no need for unions to battle each other. There will be plenty of workers needing representation as small cannabis businesses run by “happy stoner” types give way to large pharmaceutical corporations, she said.

The green rush that begins in 2018 is an opportunity for unions to regain influence that began declining in the late 1950s, said David Zonderman, a professor of labor history at North Carolina State University. But discord between unions could upend it, as could resistance from cannabis business leaders.

California's top marijuana regulator talks about what to expect Jan. 1, when legal pot market opens

“Are they going to be new age and cool with it,” Zonderman said, “or like other businesspeople, say, ‘Heck, no. We’re going to fight them tooth and nail’?”

Last year, California voters approved sales of recreational marijuana to those 21 and older at licensed shops beginning Jan. 1.

Cannabis in California already is a $22-billion industry, including medical marijuana and a black market that accounts for most of that total, according to UC Davis agriculture economist Philip Martin. Medical marijuana has been legal since 1996, when California was the first state to approve such a law.

Labor leaders estimate recreational pot in California could employ at least 100,000 workers from the north coast to the Sierra Nevada foothills and the San Joaquin Valley, harvesting and trimming the plants, extracting ingredients to put in liquids and edibles, and driving it to stores and front doors.

Pot workers have organized in other states, but California should be especially friendly territory for unions, said Jamie Schau, a senior analyst with Brightfield Group, which does marketing analysis on the marijuana industry.

The state has one of the nation’s highest minimum wages and the largest number of unionized workers across industries. Its laws also tend to favor employees.

At least some workers say they’re open to unionizing.

“I’m always down to listen to what could be a good deal for me and my family,” said Thomas Grier, 44, standing behind the counter at Canna Can Help Inc., a dispensary in the Central Valley community of Goshen.

The dispensary — with $7 million in yearly sales — sells medical marijuana.

Called a “bud tender,” Grier recently waited on a steady flow of regular customers walking through the door to pick out their favorite strains.

He said that so far, no unions have contacted him. Grier gets along with his boss and said he doesn’t want to pay union dues for help ironing out workplace disputes. But he hasn’t discounted the possibility of joining.

After recently entering the marijuana industry, Los Angeles resident Richard Rodriguez said one sticky traffic stop three months ago converted him into a “hard core” Teamster. He’d never been in a union until this year.

Rodriguez said an officer pulled him over while he was delivering a legal shipment of pot. He was accused of following too closely behind a semi-truck and was detained for 12 hours, he said.

A union lawyer stepped in, and Rodriguez said he was released without being arrested or given a ticket.

“Most companies can’t or are unwilling to do that,” he said, “because employees are easily replaced.”

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Medical marijuana patient wins employment discrimination suit in Rhode Island

 

This April 15, 2017 file photo shows marijuana plants on display at a medical marijuana provider in downtown Los Angeles. (AP Photo/Richard Vogel)

 

By Andrew Blake – The Washington Times – Wednesday, May 24, 2017

A Rhode Island fabrics company violated the state’s medical marijuana law when it refused to hire a card-carrying patient who couldn’t pass a drug test, a state Superior Court judge ruled Tuesday.

Christine Callaghan sued Darlington Fabrics Corp. for compensatory and punitive damages in 2014 after the company said her medical marijuana usage precluded it from offering her a paid internship position while she pursued a master’s degree at the University of Rhode Island. Ms. Callaghan promised not to bring weed into the workplace or arrive for work stoned, but Darlington said her failure to pass a pre-employment drug test prohibited her hiring, according to court filings.

In a 32-page ruling Tuesday, Associate Justice Richard A. Licht said Darlington broke the state’s Hawkins-Slater Medical Marijuana Act by rejecting Ms. Callaghan because she legally uses pot to treat migraine headaches in accodance with state law.

“Employment is neither a right nor a privilege in the legal sense,” Judge Licht ruled, but protection under the law is, he added.

While employers aren’t required to accommodate the medical use of cannabis in the workplace under Hawkins-Slater, the ruling noted, the law specifies that “no school, employer or landlord may refuse to reenroll, employ or lease to or otherwise penalize, a person solely for his or her status as a cardholder.”

Darlington had argued that it rejected Ms. Callaghan not because her status as a medical marijuana cardholder but her inability to pass a drug test. The judge called his claim “incredulous” in Tuesday’s ruling and took aim at its interpretation of the state’s medical marijuana law.

“This argument is not convincing,” he wrote, adding: “…it is absurd to think that the General Assembly wished to extend less protection to those suffering with debilitating conditions and who are the focus of the [act].”

“The recreational user could cease smoking long enough to pass the drug test and get hired… allowing him or her to smoke recreationally to his or her heart’s content,” he continued. “The medical user, however, would not be able to cease for long enough to pass the drug test, even though his or her use is necessary…”

More than 17,000 Rhode Islanders are currently members of the state’s medical marijuana program, the Providence Journal reported. While most of those individuals are patients who use marijuana to treat covered medical conditions, that number also includes people categorized as official “caregivers,” the newspaper reported.

“This decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take,” Carly Beauvais Iafrate, a volunteer American Civil Liberties Union attorney and Ms. Callaghan’s legal counsel, said in a statement after Tuesday’s ruling.

Darlington plans to appeal the ruling before the state Supreme Court, defense attorney Meghan Siket told the Journal. Neither the company nor its lawyer was immediately available to comment Tuesday, the Associated Press reported.

Medical marijuana laws are currently on the books in 29 states and Washington, D.C., including Rhode Island, notwithstanding the federal government’s prohibition on pot.

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(OR) Senate Bill 301 may make marijuana drug tests illegal in the workplace

by Kimberly Kolliner

Monday, January 30th 2017

MEDFORD, Ore. – Regardless of if it’s legal in the state, right now, failing a marijuana drug test could cost you your job.

“For us, marijuana is still classified federally as a schedule 1 controlled substance so we do include it in our drug screening,” People’s Bank Chief Operating Officer, Jeri Reno.

However, this may change.

The Oregon Senate has introduced Bill 301, which proposes marijuana testing in the work place to be illegal, because its use in the state is legal.

This is something that Reno sees no immediate threat with.

“I think that’s going to be a wave of the future in that just like alcohol, marijuana is going to be used recreational and it would be honored as such. I think we’ll just see what it brings,” Reno said.

As an employer, Reno says work performance is the only thing she would be concerned with.

Something the bill also clearly outlines.

“We essentially are looking for employees who are productive and without possibility of being impaired in the workplace,” Reno said.

She believes if marijuana is used on employees off time, it should have no burden on employees while they’re on the clock.

“I would think our employees would continue to be responsible in the way they use marijuana or alcohol and I wouldn’t see much difference in the workplace,” Reno said.

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Legal Marijuana Poses New Problems For Employee Drug Testing

Pot is legal in some form in 28 states, but it remains illegal under federal law

By

Rachel Emma Silverman

Nov. 22, 2016 11:00 a.m. ET

21 COMMENTS

A raft of new state marijuana legalization laws presents employers with hazy challenges when it comes to workplace drug testing.

Companies that wish to maintain drug-free workplaces face a confusing patchwork of state and federal laws, and it is a gray area in some states whether employers can fire or discipline workers for pot use, say employment lawyers.

In California, where medical marijuana is already legal, voters approved recreational pot on Election Day. Maine, Massachusetts and Nevada passed similar measures, while Arkansas, Florida, Montana and North Dakota legalized or expanded medical marijuana measures. These new laws make pot legal in some form in more than half the country—28 states. Meanwhile, it remains illegal under federal law.

 

The legal, recreational use of marijuana passed in four states on Tuesday with another three states passed it for medicinal use. Lance Rogers, manager of the cannabis law practice for law firm Greenspoon Marder, explains how Tuesday’s votes could influence efforts to legalize pot in other states. Photo: Getty

In states like Massachusetts and California, where recreational and medicinal pot use is now legal, employers should tread carefully when testing workers for pot under drug-free workplace policies, says Amanda Baer, an attorney at the Mirick O’Connell law firm in Worcester, Mass. Firing or disciplining a worker for a positive drug test could open firms to legal challenges from employees, she says.

“No company wants to be the test case,” she says. “If workers are not in a safety-sensitive position, they probably shouldn’t be tested.”

One concern is that the active ingredient in marijuana can stay in a worker’s body for several days and it may be hard to tell whether employees used the drug off the job or if they are currently under the influence, she says.

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Employers are at risk for liability, however, if workers in safety-sensitive positions are high while operating heavy equipment, driving passenger vehicles or doing other tasks that jeopardize worker safety.

In either case, employers should make their policies on pot and drug testing clear to workers ahead of time so workers know what to expect, adds Ms. Baer. Firms should also receive legal counsel specific to their state, since the details of marijuana laws vary state by state.

As pot becomes legal in more states, some employers may also permit on-the-job pot smoking, just as some allow workplace happy hours and beer fridges, according to Ms. Baer. Under Massachusetts’ law, for instance, employers have the right to prohibit or expressly allow on-site marijuana use.

“If your employer allows it, Pot Fridays could happen,” says Ms. Baer.

Write to Rachel Emma Silverman at rachel.silverman@wsj.com

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New Study Confirms Marijuana Use Up Drastically in Workforce

Cully Stimson / @cullystimson / October 12, 2016 / comments

This November, there are a record number of ballot initiatives in at least nine states regarding so-called medical marijuana or outright legalization of the Schedule I drug. The pot pushers, both small businesses and large, want more people smoking, eating, and consuming more pot because it is good for their bottom line.

Before voting yes, voters—and, in particular, employers—should take a look at more disturbing data that was released two weeks ago at a national conference.

At the annual Substance Abuse Program Administrators Association conference, Quest Diagnostics—one of the nation’s largest drug-testing companies—unveiled the results of its Drug Testing Index. The index examines illicit drug use by workers in America each year.

In 2015, Quest examined more than 9.5 million urine, 900,000 oral fluid, and 200,000 hair drug samples. Following years of decline in overall illegal drug usage, the results showed that the percentage of employees testing positive for illicit drugs has steadily increased over the last three years to a 10-year high.

The Drug Testing Index is an analysis of test results from three categories of workers—including federally mandated, safety-sensitive workers, the general workforce, and the combined U.S. workforce

Oral fluid drug testing results—best at detecting recent drug usage—showed an overall positivity rate increase of 47 percent over the last three years in the general workforce to 9.1 percent in 2015 from 6.7 percent in 2013.

According to Quest, the increase was “largely driven by double-digit increases in marijuana positivity.” In fact, according to the report, in 2015 there was a “25 percent relative increase in marijuana detection as compared to 2014.” The report also showed a significant increase in heroin positivity in urine tests for federally mandated safety-sensitive employees.

Another disturbing trend is the rising positivity rate for post-accident urine drug testing in both the general U.S. and the federal mandated, safety-sensitive workforces. According to the index, post-accident positivity increased 6.2 percent in 2015, compared to 2014, and increased a whopping 30 percent since 2011.

To those of us who have warned about the growing liberalization of the use of marijuana, from so-called “medical marijuana” to recreational abuse of the Schedule I drug, the results of the index are all too predictable.

It is also not surprising that none of the major organizations that push for pot legalization and decriminalization of marijuana have written major stories about the Quest Diagnostics report.

The more people use marijuana, the more likely it is that those who work and are subject to testing will pop positive for marijuana, even in safety-sensitive jobs. Think about that next time you hop on an airplane, ride Amtrak, or go about your daily life thinking everyone is focused on their job and your safety.

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Employers tightening drug policies since marijuana legalization

 
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"There is what I consider to be a significant number of employers that are saying they wouldn’t hire an employee that uses marijuana," said Evren Esen, SHRM’s director of survey programs.

 

Published: Dec 15, 2015, 11:37 am

By Bloomberg News

With marijuana legalization spreading state-by-state and the U.S. government backing away from aggressive enforcement of federal laws, employers have begun to reconsider their substance abuse policies. They’re making them tougher.

In a first-of-its-kind survey, the Society of Human Resource Management asked 623 HR managers in states where marijuana is legal about their drug policies.

Unsurprisingly, getting stoned at work is largely frowned upon, SHRM found, regardless of legality. It turns out a large chunk of workplaces also won’t hire employees who smoke on their own time.

Marijuana is legal for recreational use in the nation’s capital and four states, including Colorado. In almost 20 others, it’s allowed for medicinal purposes.

More than half of the HR managers surveyed said they have policies, or plan to implement them, restricting the employment of marijuana users. About 38 percent said they will flat-out reject users even if they claim medical reasons. Six percent said their policy will exclude only those who partake for fun.

“There is what I consider to be a significant number of employers that are saying they wouldn’t hire an employee that uses marijuana,” said Evren Esen, SHRM’s director of survey programs.

Companies can maintain stricter policies in states where pot is legal because federal law, which governs most workplace rules, still considers marijuana to be a controlled substance.

Over the summer, the Colorado Supreme Court said it was legal to fire an employee for legally smoking medicinal marijuana while not at work.

That said, what HR managers proclaim and what they do don’t always match up. Fewer employers are drug testing now than five years ago, SHRM numbers show. A 2011 survey of 632 HR professionals found that 55 percent were testing all potential employees.

A little less than half of those surveyed in the new study said their organization does pre-employment drug testing for all candidates, which just about matches testing practices nationwide.

Denver-based Mountain States Employers Council reported that only one in five companies in Colorado planned to make drug-testing more stringent after marijuana legalization last year.

Employers are most likely to test current employees if there’s an accident or a reason to think they’re coming to work high, the survey found.

“Some companies have stated more clearly that they reserve the right to test, letting employees know that it’s not OK to come to work under the influence,” said Lara J. Makinen, an HR coordinator at the Denver-based Atkins, a design and engineering consulting firm.

In states where weed is legal for recreational use, 39 percent of those surveyed have policies that single out marijuana use.

Employers might make more drastic changes if pot use were to start interfering with work life.

So far, apart from one local news story, there haven’t been reports of hordes coming to work stoned. That jibes with SHRM’s findings. Only 21 percent of employers reported more than three incidents of employees violating policy regarding marijuana use over the last year.

“It doesn’t appear to be a really major problem,” Esen said. “It doesn’t seem like employees are going out there and rampantly using marijuana in greater numbers than before.”

This story was first published on DenverPost.com

Topics: drug testing, employers, employers drug testing policies, workplace, zero tolerance

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