‘What Were They Smoking?’ States’ Legalizing of Marijuana Means Headaches for Employers
by Roxanne Wilson | 2/26/2013 @ 9:54AM
The federal government says there is no such thing as “medical” marijuana. Despite that, an increasing number of states have legalized the use of marijuana for medicinal purposes, and a couple, so far, have okayed recreational use of marijuana for adults.
In the medical context, doctors often prescribe marijuana to manage chronic pain, and those patients must register in a confidential patient database. Registration triggers issuance of registry identification cards so recipients avoid criminal liability. Because many such patients are in the workforce, however, employers need to be aware of existing medical marijuana laws and pending legislation in each state where they employ workers.
The states of Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington currently legalize marijuana use for varying reasons. Washington and Colorado approved recreational marijuana use by adults, with regulations to monitor its possession, use and sale.
Expect more smoke. In 2013, Alabama, Illinois, Iowa, Kansas, New Hampshire, Maryland, North Carolina, Oklahoma, and West Virginia introduced bills to make marijuana use lawful. On February 21 2013, for instance, Maryland Democratic Delegate Curt Anderson introduced a bill to legalize and tax marijuana use by “over 21” adults. The titles of several of these proposed bills contain words like “compassionate use” and “compassion and care” that reveal or suggest empathy for individuals with chronic pain who, with marijuana, want to function and work with less or no pain.
Some existing and pending state laws place specific restrictions on the management of employees who are registered medical marijuana users. In other states, however, regulations state that “their” laws do not deprive businesses from maintaining a drug-free workplace. Still other states have yet to address application of their marijuana laws to the workplace while their regulations remain embryonic.
In California, Colorado, Michigan, Montana, Nevada, Oregon, and Washington, businesses need not currently accommodate employees who legally use marijuana for medicinal purposes. Washington’s statute, for example, says that employers may establish drug-free work policies, and nothing in it requires accommodating the medical use of marijuana. Others are not so clear, forcing employers to develop what sometimes must be “best guess” workplace policies to comply with “fog-filled” laws.
Marijuana use laws in Arizona, Connecticut, Delaware, Maine, and Rhode Island expressly forbid businesses from refusing to hire applicants and from disciplining and otherwise adversely affecting the employment of registered medical marijuana card holders based solely on that status. Arizona and Delaware extend that by forbidding businesses from refusing to hire applicants or disciplining employees on the basis of drug tests that reveal marijuana components or metabolites. There are exceptions to these rules where, for example, the employees are “impaired” by marijuana while on an employer’s property and/or during work hours. But in those states, employed medical marijuana card holders are not “impaired” simply because marijuana components or metabolites are “in” their systems. Even worse, there currently are no bright-line tests for marijuana “intoxication” comparable to those for alcohol intoxication. That means employers in disciplining “impaired” employees will have to rely on observations of an employee’s behavior to prove impairment and avoid liability if the employees file a charge or sue.
With the changing landscape of state regulation, businesses cannot rely on federal classification of marijuana as a Schedule I substance (meaning it has no currently accepted medical use and has high potential for abuse). Instead, the federal-state “tug of war” means that every employer must be on “high alert” to ever-broadening marijuana use state laws and regulations.
Employers also need to educate law-makers as to the practicalities of employing marijuana users so any legislation passed can and does avoid unintended, harsh, and perhaps dangerous workplace consequences. Here are examples of opportunities for workplace input. In Colorado, there is a task force to propose regulations for its new use laws. Massachusetts health officials held three public “listening sessions” during February to help draft the regulations for the medical marijuana law passed by voters in November 2012.
Employers also should ensure that their human resources professionals and management teams are knowledgeable about the marijuana laws in each state where they employ workers, including updating their policies.
As more and more states relax the use of marijuana, perhaps, in part, because tax revenues from the sale of marijuana can help solve budget woes, business owners will also need pain management.
*Barbra Diallo also contributed to the content of this article.
Colorado marijuana regulators sign off on pot tourism
Published February 19, 2013
Marijuana tourism is on the way to Colorado, under a recommendation made Tuesday by a state task force to regulate the drug made legal by voters last year.
But Colorado should erect signs in airports and borders telling visitors they can’t take pot home, the task force recommended.
Colorado’s marijuana task force was assembled to suggest regulations for pot after voters chose to flout federal drug law and allow its use without a doctor’s recommendation. Made up of lawmakers, law enforcement authorities and marijuana activists, the task force agreed Tuesday that the constitutional amendment on marijuana simply says that adults over 21 can use the drug, not just Colorado residents. If lawmakers agree with the recommendation, tourists would be free to buy and smoke marijuana.
“Imposing a residency requirement would almost certainly create a black market for recreational marijuana in the state,” said Rep. Dan Pabon, a Denver Democrat who sits on the task force.
Tourists could see purchasing caps though, possibly as low as an eighth of an ounce per transaction.
Afraid that marijuana tourism could open the door for traffickers to load up and take it across state borders for illegal sale, task force members agreed that non-residents should be able to buy only limited amounts, though a specific amount wasn’t set.
“Marijuana purchased in Colorado must stay in Colorado,” Pabon warned.
“We could attract greater federal scrutiny and displeasure of our neighbors,” if marijuana flows across state lines, he said.
Task force members were less successful agreeing to recommendations on marijuana growing and public use. Colorado’s marijuana law allows home growing but requires plants to be in a locked, secure location out of public view. The task force couldn’t agree whether a “locked” and “secure” location would mean a backyard surrounded by a fence, or whether an enclosure such as a shed or greenhouse should be mandatory.
One of the task force’s most vocal marijuana critics, Greenwood Village Police Chief John Jackson, worried that backyard pot gardens would need more than a chain-link fence to keep kids out.
Not all task force members agreed. User advocate Meg Sanders said the covering requirement wouldn’t be fair to rural Coloradans.
“I think it goes too far in restricting what people can do on their own private property,” Sanders said.
Public use also prompted a dispute that wasn’t resolved Tuesday. Jackson and others wanted to ban marijuana use on publicly visible patios, porches and backyard. Marijuana activists
“So I can drink a beer on my porch? But I can’t smoke a joint?” asked marijuana advocate Christian Sederberg.
State Sen. Cheri Jahn, D-Wheat Ridge, said lawmakers would hesitate to regulate something legal people do on private property. What about backyard grills that send the smell of hamburgers into the nose of a neighbor who’s vegetarian?, she asked.
“I don’t know how far we want to go telling people what they can’t do on their own porches,” she said.
The porch marijuana question was left unsettled. Task force members also put off a decision on proposals from Jackson to exempt law enforcement from maintaining marijuana and marijuana plants seized during criminal investigations.
Potency and labeling recommendations for commercial marijuana will also be discussed later.
The task force has until Feb. 28 to recommend marijuana regulations, which will ultimately be set by the state Legislature and the Department of Revenue, the agency which oversees gambling and alcohol and will also regulate recreational pot.
Marijuana Laws: Bipartisan Reform Efforts In Congress Range From Pot Legalization To Hemp
By GENE JOHNSON 02/04/13 04:26 PM ET EST
SEATTLE — An effort is building in Congress to change U.S. marijuana laws, including moves to legalize the industrial production of hemp and establish a hefty federal pot tax.
While passage this year could be a longshot, lawmakers from both parties have been quietly working on several bills, the first of which Democratic Reps. Earl Blumenauer of Oregon and Jared Polis of Colorado plan to introduce Tuesday, Blumenauer told The Associated Press.
Polis’ measure would regulate marijuana the way the federal government handles alcohol: In states that legalize pot, growers would have to obtain a federal permit. Oversight of marijuana would be removed from the Drug Enforcement Administration and given to the newly renamed Bureau of Alcohol, Tobacco, Marijuana and Firearms, and it would remain illegal to bring marijuana from a state where it’s legal to one where it isn’t.
The bill is based on a legalization measure previously pushed by former Reps. Barney Frank of Massachusetts and Ron Paul of Texas.
Blumenauer’s bill would create a federal marijuana excise tax of 50 percent on the “first sale” of marijuana – typically, from a grower to a processor or retailer. It also would tax pot producers or importers $1,000 annually and other marijuana businesses $500.
His office said Monday it doesn’t yet have an estimate of how much the taxes might bring in. But a policy paper Blumenauer and Polis are releasing this week suggests, based on admittedly vague estimates, that a federal tax of $50 per ounce could raise $20 billion a year. They call for directing the money to law enforcement, substance abuse treatment and the national debt.
Last fall’s votes in Colorado and Washington state to legalize recreational marijuana should push Congress to end the 75-year federal pot prohibition, Blumenauer said.
Washington state officials have estimated that its legal marijuana market could bring in about half a billion dollars a year in state taxes.
“You folks in Washington and my friends in Colorado really upset the apple cart,” Blumenauer said. “We’re still arresting two-thirds of a million people for use of a substance that a majority feel should be legal. … It’s past time for us to step in and try to sort this stuff out.”
Advocates who are working with the lawmakers acknowledge it could take years for any changes to get through Congress, but they’re encouraged by recent developments. Senate Minority Leader Mitch McConnell last week came out in support of efforts to legalize hemp in his home state of Kentucky, and U.S. Rep. Dana Rohrabacher, R-Calif., is expected to introduce legislation allowing states to set their own policy on marijuana.
Senate Judiciary Chairman Patrick Leahy, D-Vt., has indicated he plans to hold a hearing on the conflict between state and federal marijuana laws and has urged an end to federal “mandatory minimum” sentences that lead to long prison stints for drug crimes.
“We’re seeing enormous political momentum to undo the drug war failings of the past 40 years,” said Bill Piper, director of national affairs for the Drug Policy Alliance, who has been working with lawmakers on marijuana-related bills. “For the first time, the wind is behind our back.”
The Justice Department hasn’t said how it plans to respond to the votes in Washington and Colorado. It could sue to block the states from issuing licenses to marijuana growers, processors and retail stores, on the grounds that doing so would conflict with federal drug law.
Blumenauer and Polis’ paper urges a number of changes, including altering tax codes to let marijuana dispensaries deduct business expenses on federal taxes, and making it easier for marijuana-related businesses to get bank accounts. Many operate on a cash basis because federally insured banks won’t work with them, they noted.
Blumenauer said he expects to introduce the tax-code legislation as well as a bill that would reschedule marijuana under the Controlled Substances Act, allowing states to enact medical marijuana laws without fear that federal authorities will continue raiding dispensaries or prosecuting providers. It makes no sense that marijuana is a Schedule I drug, in the same category as heroin and a more restrictive category than cocaine, Blumenauer said.
The measures have little chance of passing, said Kevin Sabet, a former White House drug policy adviser. Sabet recently joined former Rhode Island Rep. Patrick Kennedy and former President George W. Bush speechwriter David Frum in forming a group called Project SAM – for “smart approaches to marijuana” – to counter the growing legalization movement. Sabet noted that previous federal legalization measures have always failed.
“These are really extreme solutions to the marijuana problem we have in this country,” Sabet said. “The marijuana problem we have is a problem of addiction among kids, and stigma of people who have a criminal record for marijuana crimes.
“There are a lot more people in Congress who think that marijuana should be illegal but treated as a public health problem, than think it should be legal.”
Project SAM suggests people shouldn’t get criminal records for small-time marijuana offenses, but instead could face probation or treatment.