Archive for the ‘MARIJUANA SERIES’ Category

Colorado Supreme Court Rules: Workers can be Fired for using Pot

Wednesday, June 24th, 2015

GRAND FORKS, ND – Colorado Supreme Court has upheld the firing of a marijuana positive worker. Colorado, a state where “medical marijuana” has been OK for years and where “recreational marijuana” has been legally authorized by state law, the Colorado Supreme Court has upheld the firing of an employee who tested positive for marijuana. This was in violation of company policy. The test did not indicate intoxication, nor use on the job.

The decision was based on the plain language of section 24-34-402.5, 13 C.R.S. (2014) under Colorado’s “lawful activities statute,” which states the term “lawful” refers only to those activities that are lawful under both state and federal law by the statute. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.

Though this Colorado case involves medical marijuana, the decision has a major impact for employers with employees who choose to smoke pot while off-duty in states that have legalized medical or recreational marijuana. Colorado became the first state to legalize recreational marijuana in 2012.

“This is an encouraging ruling considering the trend to liberalization of marijuana prohibitions nationwide.” – Alicia Bouchon, Vice President Business Development Global Safety Network

More information regarding this historic ruling.

Part 7 – Marijuana…The Legal Debate

Friday, October 31st, 2014

Hazards of Legalized Marijuana

By Harold C. Patin, CPP and Alicia Patin Bouchon

HAZARDS AND EFFECTS OF PROLONGED MARIJUANA USE
Relevant research suggest that the effects of marijuana are cumulative and doserelated, and that the prolonged use of marijuana, or less frequent use of the more potent hashish, is associated with at least six different types of hazards. Senator Eastland, then Chairman of the Internal Security Subcommittee of the U.S. Senate, summarized in the following way testimony given before the subcommittee, by a distinguished body of internationally known medical researchers:

  • Bodily effects of CannabisTHC, the principal psychoactive factor in marijuana/hashish, tends to accumulate in the brain and gonads (reproductive organs) and other fatty tissues in the manner of DDT.
  • MARIJUANA, even when used in moderate amounts, causes damage to the entire cellular process.
  • Tied in with its tendency to accumulate in the brain and its capacity for cellular damage, there is a growing body of evidence that marijuana inflicts irreversible damage on the brain, including actual brain atrophy, when used in a chronic manner.
  • There is also a growing body of evidence that marijuana adversely affects the reproductive process in a number of ways, and that is poses a serious danger of genetic damage and even of genetic mutation.
  • Chronic marijuana/hashish smoking can produce sinusitis, pharyngitis, bronchitis, emphysema, and other respiratory difficulties in a year or less, as opposed to ten or twenty years of cigarette smoking to produce comparable  complications.
  • Marijuana/hashish smoke alone or mixed with cigarette smoke, is far more damaging to lung tissue than tobacco smoke alone. The damage done is described as “precancerous.”
  • Chronic marijuana/hashish use results in deterioration of mental functioning, pathological forms of thinking resembling paranoia, and “massive and chronic passivity” and lack of motivation — the socalled “Amotivational syndrome.”

Part 6 – Marijuana…The Legal Debate

Friday, October 31st, 2014

Legal Counsel and Union Agreements

By Harold C. Patin, CPP and Alicia Patin Bouchon

Where there are complicating situations and changes in local or state laws, you should always consult your legal adviser. You can also call either of us below, or your GSN service representative, for specific guidance. Where union contracts are in place, consult your labor law specialist. We are happy to be part of the solution and offer our experienced staff to consult with you and your associates, as requested.

Physicians cannot legally prescribe marijuana. Although a handful of states have legislation authorizing doctors to prescribe marijuana doctors in these states may not legally do so without violating federal law.Federal law dictates that a physician who prescribes marijuana to a patient may be stripped of his or her federal license to prescribe drugs and prosecuted. Also, Physicians will not prescribe marijuana because there are no legal state supply sources from to attain the drug.

Physicians can legally recommend marijuana therapy to a patient. On September 7, 2000, U.S. District Judge William Alsup ruled in Conant v. McCaffrey that federal authorities might not sanction doctors who recommend marijuana to patients. That decision applies in the Northern District of California. Other challenges in other areas may use that decision to support their case.

Marijuana policy in US

States who enacted medical marijuana laws since 1996. There are currently Twenty-one states — Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington — and the District of Columbia have passed laws providing for limited legal protections from arrest for authorized patients who use cannabis with a doctor’s recommendation. Maryland’s new law takes effect on June 1, 2014. Currently, Maryland law eliminates fines and criminal penalties for citizens who successfully raise an ‘affirmative defense’ in court establishing that they possessed limited amounts of marijuana for medical purposes.

Part 5 – Marijuana…The Legal Debate

Thursday, October 30th, 2014

By Harold C. Patin, CPP and Alicia Patin Bouchon

THE SOLUTION
Federal testing programs are not perfect, but they do provide clear direction and providing standing for some of the most effective program requirements. To this end, and to offer a clear position to employee questions related to off-duty activities, we recommend your Company Policy clearly state language such as, “Employees who are found at detectable levels of prohibited substances, regardless of where or when such a substance was used, will be considered in violation of this policy and subject to disciplinary action, up to and, including termination.”

It is extremely hard to defend and nearly impossible to manage and enforce separate, different, or segregated policies were some employees are covered by one policy and others covered by another one, in such where the rules are mixed. We feel it is better to be consistent and cover all employees the same. Handle marijuana as an illegal substance, since it really is by Federal law. Where not all of your employees are covered by Federal regulations, we maintain our recommendation marijuana is a prohibited substance and is to be included in all drug screening. Whatever some state law says, Marijuana is still an intoxicating substance and safety is at stake. Emphasize this policy so none can say they did not know or understand the risks involved on themselves, others and the community as a whole.

Acceptance of marijuana as a medicine should be discussed with your Medical Review Officer (MRO) and labor attorney. Our policy and position (based on Federal law) is that marijuana is not medicine until the FDA declares it is, defines, and supports for what treatments it will treat. Refer to the “Did You Know” section at the end of this document for other facts and supporting information. Eventually, all of this may be resolved. However, we do not think it will be soon. Therefore, until things change, it is better to follow Federal law.

CONSIDERATIONS
Accepting marijuana in all forms, including smoked, makes no real medical sense and will be a nightmare for any company policy. To reiterate, clients who desire to allow such substance are strongly recommended to consult their labor attorney for proper guidance.

GSN does not offer such policy and/or program recommendations, guidance, or program management. Naturally, you should consult your legal advisers especially for specific states with enacted contradictory laws. In all the states where marijuana has been allowed as medicine and now, like Colorado and Washington State, where marijuana has been legalized for recreational purposes, you may still prohibit and screen citing marijuana as an illegal substance under Federal law. No matter what any state does, as long as it remains illegal under Federal law it is illegal in all states.

Part 4 – Marijuana…The Legal Debate

Wednesday, October 29th, 2014

By Harold C. Patin, CPP and Alicia Patin Bouchon

MARIJUANA LISTED AS SCHEDULE 1

Under the Federal Controlled Dangerous Substances Act of 1970, as amended (21 USC 840, et seq.), marijuana, or Cannabis, is listed as a Schedule 1, substance. That means it is illegal in all states, possessions, or territories of the USA. The various state laws avoid the Federal laws prohibiting the substance and declare it a medical use even though avoiding the FDA and DEA.

The FDA monitors and approves all drugs for consumption in he USA. This has been the law for over a century. Drugs must be scientifically (peer reviewed) studied and shown to be pure, safe and efficacious. Efficacious means the drug must perform the beneficial effect the producers claim. This is accomplished by “double-blind” studies. Approved drugs are never 100% effective, but shown to be significantly better than the placebo. The science referred to in these state laws is not real science as it states mostly anecdotal or historic data.

RECOMMENDATIONS
Now, with all this said, how does your company define policies that prohibit drugs on the job, in the workplace, being under the influence of such drugs and for drug screening for these drugs? Specifically, how do you handle this as it relates to marijuana? First, if Department of Transportation (DOT), US Coast Guard, OSHA, Nuclear Regulatory Commission (NRC), or any Federal regulatory agency or contract covers your business and employees, your company must obey the federal rules and regulations. Prohibition in the workplace and drug screening are mandatory and must be followed. Obviously, this includes testing for Marijuana.

We believe the best option is for the employer’s policy to conform to Federal laws. Marijuana is an illegal drug, on the job or off. Medical marijuana does not exist according to Federal laws. Therefore, keep marijuana as prohibited under your policy. You cannot tell employees what to do on their off duty time, but testing positive for marijuana is still in violation of company policy. Employees are encouraged to have their doctor prescribe something else (legally prescribed under federal law) for their ailment. Marijuana for medical problems will not be a legitimate medical reason for testing positive. Make this clear to all employees, notify them, remind them, and explain your company will err on the side of caution and safety.

Getting caught between a state law (not based in good legal, nor scientific principles) and a Federal law (FDA), passed in 1906, which has stood many challenges and the (DEA), passed by Congress, over 40 years ago (1970) after many hearings and scientific and legal arguments, is not a good idea. Laws change and policy changes much easier. The Department of Justice (DOJ) has placed the DEA in a hold status, while many states change their laws to conflict with Federal laws. The argument is not over and a change of DOJ policy could have dire consequences in those states.

Clients who have operations and employees in a state where marijuana can be considered as a medicine have other things to consider. If some employees are under DOT and some are not, or no employees are covered by any Federal rule, then how do you handle this situation? Find out in Part Five of this series.

Part 3 – Marijuana…The Legal Debate

Wednesday, October 29th, 2014

By Harold C. Patin, CPP and Alicia Patin Bouchon

WHAT THEY DON’T SAY
Marijuana advocates often fail to mention the legal, pill form of marijuana. The pill form is often omitted from their advocacy message in large part due to these tablets are not smoked, injected or snorted. Employees who report such prescriptions will be detected as positive for marijuana in the drug test and the MRO knows how to handle these situations.

Company policies vary, however; the common policies employers mandate are no authorized exceptions or an alternative medicine replacement therapy is prescribed, that is one with no marijuana ingredients. Current legal prescriptions including marijuana are below with their applicable CDS classification and schedule.

  • Marinol® (dronabinol) – Classified as Schedule III
  • Cesamet® (nabilone) – Classified as Schedule II
  • Sativex® (nabiximols) – (Not yet available in USA, undergoing trials)

While high profile and anecdotal reports of results from high-CBD/low-THC preparations have sparked interest in treatment with cannabinoids, there is insufficient medical evidence to draw conclusions about their safety or efficacy. There is still much call for caution and research from legislators, and from the medical community. An orally administered liquid containing CBD has received orphan status in the US, for use as a treatment for Dravet syndrome under the brand name, Epidiolex.

As this expands in the news, it is important to understand what Cannabidiol (CBD) is and how it differentiates from “so-called” medical marijuana and typically high concentrations of THC found in recreational marijuana. CBD is one of at least 60 active cannabinoids identified in cannabis. It is a major phytocannabinoid, accounting for up to 40% of the plant’s extract. CBD is considered to have a wider scope of medical applications than tetrahydrocannabinol (THC). CBD, called Realm Oil and Alepsia does not induce the psychoactive high typically associated with marijuana strains high in THC, used for recreational purposes.

COMPASSIONATE USE

Compassionate use of Cannabis (marijuana) means the authorization to use forms of Cannabis medically to alleviate or treat serious diseases or conditions that have not responded to usual procedures or treatment would need great consultation with legal advisers.

Part 2 – Marijuana…The Legal Debate

Wednesday, October 29th, 2014

MEDICAL MARIJUANA

By Harold C. Patin, CPP and Alicia Patin Bouchon
The Controlled Substance Act, as well as all Federal laws, applies to all 50 US states, possessions and territories. Many states and the District of Columbia (see map at end of document) now have permitted “Medical Marijuana”, which allows marijuana for use as a medicine. These rules vary among the several states. Smoking marijuana is allowed and the various illnesses are loosely defined. This generally makes medical marijuana authorized under state laws for almost any ailment.

This “medical marijuana” has not passed muster under Federal law and regulation, e.g., the FDA and DEA. Marijuana has not been submitted to adequate, controlled, scientific studies under the FDA to officially be designated a lawful medicine. For this to be legal under Federal law, marijuana must also be lowered below a Schedule I Controlled Dangerous Substance. There are studies under way to determine what, if any, medical condition marijuana can treat and/or cure. Moreover, it is hard to determine how long it will take to ever scientifically prove their safety and efficacy. This means, as of now, marijuana is an illegal substance, under Federal law, and cannot be used as a medicine or for any other purpose.

In all the states where marijuana has been allowed as medicine and now, like Colorado and Washington State, where marijuana has been legalized for recreational purposes, an employer may still prohibit and screen for marijuana citing it as an illegal substance under Federal law. No matter what any state does, as long as it remains illegal under Federal law it is illegal in all states.

LEGAL PILL FORM
It may surprise some, but the FDA & DEA have authorized a marijuana-based drug for years as a legal CDS drug, which may be prescribed by licensed physicians. These drugs are Marinol (dronabinol) and Cesamet (nabilone). Both are listed as CDS and must follow those prescription rules. These are legal forms of drugs similar to marijuana, or THC.

They are typically prescribed for neuropathic pain or as an anti-emetic for those with vomiting problems not helped by standard treatments. These drugs are chemical copies of the THC molecule and have shown an ability to help in scientific studies. They are produced in pill or tablet form. Smoking marijuana is not scientifically sound as smoking may cause respiratory problems in addition to the condition being treated. MROs will consider legitimate use of these prescriptions as a medical explanation and report as negative. Usually, the MRO will report negative but with a letter advising the employer that although legally negative the employee us taking a lawful drug that should be evaluated by a physician to determine capability of performing their duties.

In our experience, people with debilitating conditions who might consider marijuana or some of its chemical ingredients, are usually so sick that they are not able to perform a safety-sensitive job. They can use whatever drugs they desire while on medical leave. Employers may consider reassignment to non-safety-related positions. These policies can be very complicated and would need great consultation with legal advisers.

Part 1 – Marijuana…The Legal Debate

Wednesday, October 22nd, 2014

By Harold C. Patin, CPP and Alicia Patin Bouchon

Times change and with them, many other things do as well. The marijuana legal debate is currently underway and armed with some facts and skewed with plenty of banter funneling through the media, political action committees, lobbyists, and many marijuana enthusiasts. The current marijuana situation is causing much confusion especially as it relates to businesses, their drug testing policies and safety overall. The current debate questions whether marijuana is legal, or illegal; is it a medicine or is it a toxic substance.

Exacerbating the debate, questions now arise whether an employer can prohibit this substance or if an employer is allowed to conduct marijuana drug screening in the workplace. Current events in many states have made this a confusing subject.

Therefore, it is necessary to spell out some facts to help your company decide how to handle the issue today, under the current laws and regulations governing workplace programs, DOT mandated employers and workers, and various state and local laws.

REGULATION HISTORY 

The Controlled Substances Act, Title 21 USC 840, et seq., passed in October 1970’s the Federal law controlling the sale, possession, distribution, manufacture or cultivation of all controlled dangerous substances (CDS). This law created five (5) Schedules for these substances. Marijuana is in the Schedule 1 category. By definition, that means, it is in the highest level of control and has no currently accepted medical use. The Federal law also placed the Food & Drug Administration (FDA) in the position of deciding which drugs may have a legitimate medical use, and which drugs may shift schedules. The Drug Enforcement Administration (DEA) also holds a large responsibility in deciding the dangers of controlled substances and coordinating with the FDA. Their findings and pronouncements are the only true, and legal, way to make legislation.

STATE OF CONFUSION

States and the District of Columbia have recently decided to take matters into their own hands. However, controlled and dangerous substances are under the jurisdiction of federal and state laws. As we know, Federal law preempts state law, and this situation is no different. State laws are written, and in many cases, passed onto law. This causes a huge conflict with long standing, well-defined Federal laws, regulations and policy. By policy issuance of the U.S. Attorney General, the DEA is prohibited from interfering with states where such laws have passed to allow these exceptions. In response to this and the reduction of felony drug convictions being overturned, the Association of Assistant US Attorneys have expressed their immediate concern that such actions will have long lasting negative impacts on our communities and people. These actions, allowances, and laws are conflicting at best.

Colorado also has a local law, which holds that an employer cannot fire someone for doing something allowed by state law. The local law legality is undetermined and has not cleared the judicial system. In fact, a ruling of a higher court in the future may overturn all of this. This isn’t possible to predict. We will do our best to keep informed on this and spread the word on any decisions we learn.