Cannabis Law Prof Blog

Q&A: The "Dopest" Lawyer in Town (Part 2 of 2)

This is a continuation of Q&A: The "Dopest" Lawyer in Town (Part 1 of 2).  

Every U.S. state that shares a border with Texas has passed legislation to legalize medical marijuana -- so what does that mean for the Lone Star State?

I recently had a chance to talk to one of the lawyers on the front lines of that issue, Daniel Mehler, of Dallas's Roper & Mehler. Here, the self-proclaimed "dopest lawyer in town" talks about his front-row seat to what's happening.

It is no secret that "canna-cations" (tourism for legal cannabis use) have become more popular as its become easier to access legal cannabis in other states. Pair the travel trend with the huge black market in Texas and it’s safe to say that a lot of employees have cannabis in their system. Mehler shared some information on the relationship between marijuana and employment law.

AG: Are you aware of any trends that Texas employers are creating to manage potential risks posed by employees obtaining and using “legal” pot out of state?

DM: As far as Texas-based companies, I haven't really seen any change. We have seen a change on the national level. A lot of national companies have started to exempt marijuana smoking from their pre-employment drug testing. In Colorado, most employers don't drug test, but the issue has been litigated and determined that employers can punish you up to and including dismissing you from employment for legal use, off the clock, of medical cannabis, never mind recreational cannabis. So it has become an employment minefield. You also see things like for car salesmen, because of insurance requirements, employers, even though it's legal, not allowing [off the clock use] at all. On the flip side of it, getting away from just the domestic market, Vancouver, British Columbia just announced that it's police officers will be allowed to smoke legal, Canadian cannabis once their market is live beginning October 17th, as long as they're off duty.

AG: It just seems like it's going to be so hard to police for the out of office conduct stuff because of the drug testing issues. How can an employer tell if someone engaged on vacation or right before their shift?

DM: No, that's just it, in Colorado, it doesn't matter. The employer can just fire you regardless of where it actually occurred. You don't actually have a right to consume cannabis, even though it is legal in the state.

Moving into family law, Mehler pointed out a few points of contention that will continue to grow as more people begin to access and use marijuana both medically and recreationally.

AG: Are you aware of any effect either the compassionate use act or the legalization of marijuana in nearby states on family law matters in Texas?

DM: Google Christy and Mark Zartler. They have a profoundly disabled daughter named Kira. She has autism and is extremely self-injurious. They started administering cannabis smoke and discovered that it relieved all of herself injurious symptoms. CPS tried to intervene. It went to court and this past year a Judge ruled that the State would not take custody of their daughter; that nothing that they had done was dangerous to their daughter. So, they actually beat CPS in court, despite having published a YouTube video that got several million views of them administering cannabis to their daughter. So yeah, the impact is there. You see that CPS removes children when parents consume cannabis, but then we've also seen a highly publicized case where a judge, an impartial arbiter, says no, no, no, CPS was out of line on this. So, we’ll see how that plays out as we go forward. Another problem with family laws circles back to the THC concentrate problem, where those people are getting charged with felonies [rather than simple possession]. As more time passes, you're going to see more of their kids in CPS investigations.

AG: What about in divorce or child custody matters? Are parents able to use examples of the other using cannabis in a legal state against one another?

DM: Absolutely. We see it all the time. I have buddies that do divorces, and obviously, some of our criminal defendant clients also have marital issues. We see “drug use” arise in those matters all the time, even if it's strictly cannabis. Parties take and use those facts as a hammer and just club each other with it.

Last, we moved in to talk more about Mehler’s other practice area. I was interested to know about the presence of and risks to Texans in out-of-state, legal cannabis business.

AG: Have you seen any changes in business law in Texas in response to marijuana legalization in the surrounding states?

DM: In Texas, we don't have a lot of business law on it because there's not new jurisprudence and, obviously, you can't contract to do things that are illegal. Originally in Colorado, there was no contract enforcement. Everything was basically done with handshake deals–an understanding that all of this is illegal and there was no contract enforcement because it's all in violation of federal law.  It took an act of the Colorado state legislature; they revised the statutes and specifically made cannabis contracts enforceable in state court. This built the foundation for the business to flourish because without contractual security it's very tough to draw in investors. Everybody wants security and defined rules. Eliminating the risks and making contracts enforceable in state court allowed the cannabis business very much to flourish in Colorado as a result.

AG: Should Texas residents seeking to invest in or open a cannabis business across state lines (but do not carry the product into Texas) be aware of any potential punishment in Texas for trafficking, money laundering, conspiracy, etc.?

DM: I don't think there are any problems with it at this point. We assist clients in moving money around the country in the legal markets and in trying to find the proper vehicles to do so. There is, theoretically, federal exposure to conspiracy charges, but I don't think it will become a problem as long as the cannabis is being produced and distributed in compliance with state laws where it's legal and no products are crossing state lines. I've never had any clients implicated in any sort of conspiracy like that. It doesn't happen from a functional standpoint. The feds have been up in the panhandle since the cannabis industry picked up and have started prosecuting cannabis being transferred across borders into Texas. The northern district hadn’t prosecuted this stuff for the previous 20 years. All of the charges went into state court. Now they (the feds) have decided to make that a priority. But, as far as legit business people just moving their funds in the legit markets, there's effectively no barriers at this point. The biggest investors from DFW to have money in California, Oregon, Washington, and Colorado at this point. 

AG: That’s interesting. This is sort of an inexperienced question, but how do these prosecutions end up in federal court? Aren’t these people being stopped by local police officers?

DM: So, generally it is your local police stopping and making an arrest. Unless it starts with a DEA investigation. That's one way, you know, the DEA does its own investigation. But in most of these, loads the weigh 30, 50, 100, 250 pounds, whatever it may be, it’s that the local police have busted some courier moving it around, and the arrest triggers a federal investigator. Usually, it’s a local cop that makes the stop and the arrest and then DEA will pick it up and then the U.S. Attorney will then prosecute it in federal courts plan. Generally, after that happens, State charges will get dropped. They’re not going to spend their time pursuing you once you land in the federal pen.

AG: So it's just a handover process. It's not like there are FBI or DEA agents driving around pulling people over…

DM: No. No. You never see that. You absolutely will never see a federal agent conducting a traffic stop. They form drug task forces and work with local law enforcement. So you'll see like a DEA agent and two sheriff's deputies working together as federally funded task forces. If the DEA wants to stop a vehicle, that's how they'll do. They will put a call into local law enforcement to stop them.

AG: Do you know of any other interesting or surprising effects that have happened in Texas or have any anecdotal stories to share?  

DM: I can't really tell you the specific stories because I'll be trampling on my client confidentiality. But I will say, Texas has always been the most business-friendly place in the country–has always had a lot of people that are interested in making a lot of money– but the state of Texas doesn't want to move towards legalization. There's a lot of Texans’ money that's out there chasing [cannabis] profit and, frankly, I think it's kind of a shame that it's chasing it outside of the state of Texas. You know, a lot of Texan money is making a lot of tax revenue for a lot of other states. That's both in the black market [buying the “legal” stuff and bringing it to Texas] and the legal market [investment and tourism outside the state]. It's kind of ridiculous. And it’s just going to get easier the more concentrated marijuana businesses are surrounding Texas. Once it gets to be a two-hour drive rather than a 12-hour drive from DFW… let's just keep the money at home.  Look at what they did in Colorado the first year it was legalized. The first 40 million in tax revenue every year goes straight to the public schools capital campaign. So they are able to start building schools, giving teachers raises, doing all of this without raising anybody's taxes. If that's not the most Texas shit in the world, I don't know what is. The reality is, the people are smoking pot [in Texas] whether you’re taxing them or not.

- Ashley Goldman

A Federal Court Win for Connecticut Employees Who Use Medical Marijuana

Medical marijuana users in Connecticut now receive extended employment-related protections under the state’s medical marijuana law as a federal court rejects an argument that the state laws conflict with federal laws and are therefore preempted. Dale L. Deitchler and Elizabeth R. McKenna, employment lawyers with national firm Littler Mendelson, report:

A Connecticut federal court has issued another decision in the case of Noffsinger v. SSC Niantic Operating Company LLC, further expanding protections to individuals who are qualified under Connecticut's Palliative Use of Marijuana Act (PUMA) to use marijuana. . . . [T]he parties filed cross-motions for summary judgment. These motions presented the court with another opportunity to address the extent to which PUMA protects qualified medicinal marijuana users—even though marijuana remains illegal as a matter of federal law. On September 5, 2018, the court granted partial summary judgment in the plaintiff's favor and concluded that she had successfully asserted a PUMA discrimination claim, and discussed the damages available. Significantly, the court considered and rejected additional arguments that federal/state law conflicts preempted enforcement of the Connecticut law, concluding that state law can co-exist with federal laws criminalizing marijuana use.

In an earlier decision, known as Noffsinger I, the Connecticut federal court held, “that various federal laws prohibiting use and sale of marijuana do not prohibit employers from hiring individuals who use marijuana in compliance with state law.” According to Deitchler and McKenna,

The case involves claims brought by an applicant who accepted a job offer contingent on passing a drug test. Before taking the test, the plaintiff informed her potential employer she was qualified under PUMA to use marijuana to treat post-traumatic stress disorder (PTSD). The plaintiff reportedly used marijuana "in the evenings" and provided current dosage information.

The employer rescinded the job offer after the plaintiff tested positive for cannabis. The plaintiff sued, alleging that the employer violated PUMA's anti-discrimination provision, claiming her rejection was discriminatory because she was qualified to use marijuana under PUMA.

The Noffsinger II court concluded the employer violated PUMA by rescinding the plaintiff's job offer on the basis of a positive pre-employment drug test when it knew she was using marijuana as permitted under Connecticut law.

The employer bases its position on, among other authority, the federal Drug Free Workplace Act and the federal False Claims Act.

Reading the DFWA narrowly to prohibit only the possession and use of illegal drugs at work, the court concluded that the DFWA did not require the defendant to rescind the plaintiff's job offer because she reportedly used marijuana for medicinal use after work during off-hours.

The court reached the same conclusion in response to the employer's argument that the federal False Claims Act barred it from hiring the plaintiff. . . .[T]he court concluded that "there is no federal law that bars defendant from hiring plaintiff on account of her medicinal use of marijuana outside work hours.

The court also found the employer’s argument that the employment decision was based on the positive drug test result, not on the employee’s status of a PUMA-qualified medical marijuana user unpersuasive. The authors explain:

The court disagreed, in effect finding action based on a positive workplace drug test for marijuana constitutes status-based discrimination when an employer knows the result was caused by marijuana use lawful under Connecticut law. The court explained, "[there] would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.

According to Deitchler and McKenna, “[t]he takeaway is that the DFWA is not a "free pass" to justify or defend the application of a "zero tolerance" policy in jurisdictions that have adopted protections for medical marijuana users.”

As 30 states in the US have legalized medical marijuana use, it is likely worthwhile to follow the development of this case as it could have a lasting effect on the relationship between state and federal laws in the labor and employment arena.

--Ashley Goldman

Canadian Cannabis Industry: Now Hiring

Canada’s budding cannabis industry is poised to create over 150,000 jobs over the next several years. However, the newly legalized industry has found a shortage of skilled workers, leaving companies there scrambling for help, according to a story in Newsweek  magazine.

Max Simon, the founder and CEO of Green Flower, told Newsweek that marijuana legalization of marijuana in Canada has ushered in a new industry and with the new industry, jobs. Specifically, legalization has seen a boom in retail and procurement positions such as “retail needs managers, products specialists, purchasing managers, etc.” 

But, with the jobs available, Simon continued, “finding skilled people in cannabis is an enormous problem for the industry right now, and it's affecting every sector.”

One of the biggest issues causing the shortage in skilled workers is the lack of knowledge regarding the industry. “Most people don't really know what actually happens in a legal cannabis business because it's all so new,” Simon told Newsweek. Adding an additional wrinkle is the fact that cannabis industry workers must also be knowledgeable about the many regulations that govern the business. 

Companies are desperately looking to fill vacancies, but cannot find the right talent. In order to become the type of worker this industry is looking for Simon told Newsweek he recommends people  “learn about the plant, the science, the products, the license types, and how people actually use cannabis today,” he said. “It sounds simple, yet most people don't actually have this fundamental knowledge.”

--Colin Heinrich

 

Employment law and marijuana: The view from the Great White North

American states that have legalized marijuana have been wrestling with the question of how to deal with it in the workplace.  On the one hand,  employers have legitimate reasons to want employees to refrain from using it on the job.  On the other, medical marijuana raises issues regarding discrimination against those with medical conditions.

While the American courts have been addressing things in a piecemeal fashion, all Canadian provinces and territories will have to deal with the issue beginning on October 17, which is Day 1 of the new Marijuana Era there.  Employment lawyer Patrick Essaminy of Montréal's Stikeman Elliott LLP  discusses the looming issue on an interesting new podcast.  There is a lot of good discussion, but Essaminy points out some of the difficulties employers will have in dealing with employees who are impaired at work.  What should employers do?

This is a very interesting question and a great challenge for employers in that, unlike alcohol testing, testing for cannabis is tricky. The first priority for employers should be to ensure that their workplace is safe and that any employees that are demonstrating signs of impairment be managed accordingly.

In the world of law enforcement officers rely on the Standardized Field Sobriety Test, also called the SFST. Drug recognition experts are highly trained under the Drug Evaluation and Classification Program and employers can certainly decide to implement testing based on these sophisticated programs. However for now, we can talk about the standard signs of impairment which by the way can be the result of cannabis use, but also in other cases it can be when someone is simply fatigued or overworked.

Given that random testing or testing without proper justification is difficult in Canada, we recommend that employers manage situations of potential impairment by properly training their managers to recognize signs of impairment, whatever the cause is, and to act upon these signs by meeting with the employees, and if necessary removing the employees from the workplace in order to protect both the affected employee and any other people that may come into contact with that employee.

Some of the signs that employers need to be sensitive to in assessing whether someone is impaired include the following: glossy or red eyes; slurred speech; poor coordination; lack of focus or concentration; someone who is easily irritable or demonstrates inappropriate or emotional responses. Other signs may include an unsteady posture, someone whose personal hygiene or appearance is getting worse, someone who has a delayed reaction or appears to have an increased appetite while at work.

I want to emphasize that all of these signs should make an employer proactively react, but it does not mean that the employer can conclude automatically that an employee is impaired as a result of the use of cannabis. That said, the obligation of an employer is to ensure health and safety at the workplace and therefore the cause of the impairment is not the relevant immediate concern in this case. There may be other situations where an employer may be reacting to a near miss, an incident, or a serious accident, which will warrant specific testing and that is a whole different topic.

--Frank Snyder

 

 

New Jersey: Employer not required to waive drug test for MMJ patient

Employers in the Garden State are not required to waive drug tests for employees who use medical marijuana under a state-legal system.  In a recent case, Cotto v. Ardagh Glass Packing, Inc. (D.N.J. Aug. 10, 2018), the plaintiff was a forklift operator who was injured on the job and was prescribed marijuana and other painkillers.  The employer required him to pass a drug test before returning to work. 

The employee sued, arguing that he could not pass a drug test with medical marijuana in his system, and argued that the employer was required to accommodate his disability under the state's Compassional Use Medical Marijuana Act.

The federal district court refused to do so.  Attorney Mark Saloman of NYC's FordHarrison LLP offers a nice and succinct rundown of the case:

Disability vs. Treatment: The court accepted Cotto's argument he was qualified to perform his work as a forklift operator and that he suffered from a known disability (i.e., neck/back pain). The key distinction here is that Cotto did not claim Ardagh discriminated against him based on his disability; rather, he claimed to be the victim of discrimination because Ardagh refused to accommodate his use of medical marijuana by waiving a drug test.

This required analysis of whether "treatment" of the disability can be distinguished from the "disability" itself. The court gave the cogent example that discrimination against wheelchair use (i.e., the treatment) is inseparable from discrimination against the disability. That was absent here because Ardagh had no objection to Cotto's disability but only "with a consequence of his treatment." This follows the LAD, which prevents discrimination premised upon the disability, not upon conduct resulting from the disability. Because the dispute was based upon conduct resulting from treatment (passing a drug screen), Cotto's disability itself was not an issue. Cotto's possession of a medical marijuana card and a note from his doctor stating that he could operate machinery while taking prescription drugs were equally unpersuasive.

What about CUMMA? The court held nothing within CUMMA supports or invalidates Cotto's claims or requires an employer to permit the use of medical marijuana in the workplace. Likewise, CUMMA does not waive an employer's obligations under the LAD. Citing precedent from jurisdictions where recreational marijuana already is legal, the court confirmed decriminalization of marijuana does not shield employees from adverse employment actions.

Besides dismissing the discrimination claim, the court also rejected Cotto's failure to accommodate claim under the LAD because neither CUMMA nor the LAD require Ardagh to waive its drug test as a condition for continued employment. Likewise, his retaliation claim failed because refusing to take a drug test is not a protected activity under New Jersey law.

Bottom Line: The federal court predicts the state judiciary will reach the "similarly obvious conclusion" that the LAD does not require accommodation of an employee's use of medical marijuana with a drug test waiver. This follows New Jersey courts' general acceptance of drug testing in private employment. It would not, however, be surprising if the competing bills pending in our legislature to legalize adult-use recreational marijuana carve out further protections for New Jersey employees.

--Frank Snyder

"Seasoned Experts" may not Find Jobs in Legal Cannabis Industry

Proponents and adversaries of marijuana legalization can agree that a new regulated industry will create jobs. Unfortunately for those who indulged in cannabis prior to legalization, legal marijuana businesses are often not welcoming of job applicants with prior marijuana-related criminal convictions. This weeds out many applicants who's loyalty to cannabis helped drive its legalization.

The Orlando Sentinel reports that only about ten percent of applicants who applied for Florida's new cannabis market are considered employable by hiring companies. The industry has been working hard to fight "stoner stereotypes" and are not looking to employ applicants with a "strong admiration for weed" according to Forbes writer Mike Adams.  

--Kylee Debler

Getting high may cost you a job selling weed

Marijuana industry employers are rejecting job applicants who regularly smoke. Particularly in states where only medical use is permitted, employers tend to disqualify roughly 9 out of every 10 applicants. A main reason why is the criminal history of many users, and the reluctance of employers to hire felons, even if the felony was directly related to marijuana. 

In Florida, where the state’s medical marijuana market is just now starting to build some momentum, cannabis operations are in a frenzy to hire budtenders, cultivation experts and various other team members to assist in serving the hundreds of thousands of patients expected to participate in the program. The state already has around 147,000 patients in the pool, so finding quality, reliable talent to run the show is top of mind for most human resources managers.

However, the process is not going as smoothly as expected. Many of these businesses are simply refusing to hire marijuana users and people with drug-related blemishes on their record -- regardless of their qualifications. Such high standards have disqualified the majority of job applicants. Roughly only about “10 percent” of those who apply for positions in Florida's cannabis market are employable, according to the Orlando Sentinel.

Employers tend to be more lenient in states that have legalized adult use of marijuana, but marijuana related job recruitment firms recommend not bragging to your interviewer about any intense passion for weed or prior criminal activity. 

-- Alex Bennett

Connecticut Act Not Preempted by Federal Law

A Connecticut act that protects applicants and employees who are prescribed medical marijuana is not preempted by federal law according to a recent federal district court ruling.   The opinion is  Noffsinger v. SSC Niantic Opeprating Co., LLC, No. 3:16-cv-01938 (JAM) )D. Conn. Aug. 8, 2017).  In the opinion, Judge Jeffrey Meyer held that federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA), which prohibits employers from firing or refusing to hire employees who use medical marijuana.  Over at the National Law Review, lawyer Sara J. Robertson of Polsinelli PC gives a good rundown of the case.

Plaintiff Katelin Noffsinger was prescribed a daily dose of Marinol (capsulated synthetic marijuana) to treat symptoms arising from post-traumatic stress disorder, which she took only at night. Bride Brook, a nursing home, extended an offer of employment to Noffsinger, contingent upon passage of a drug test. Noffsinger disclosed her Marinol prescription to Bride Brook, and, as anticipated, tested positive for marijuana metabolites. Thereafter, Bride Brook rescinded her job offer. Noffsinger filed a lawsuit against Bride Brook alleging a violation of PUMA’s anti-discrimination provision.

[The court . . . held that PUMA did not create an “actual conflict” with any of the three federal statutes. First, the [Controlled Substances Act] did not preempt PUMA because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. Second, the ADA did not preempt PUMA because, while the ADA allows employers to prohibit the illegal use of drugs in the workplace, PUMA does not authorize individuals to use marijuana while at work, and the ADA does not address use of drugs outside of the workplace. Finally, the FDCA did not preempt PUMA because the FDCA does not regulate employment, but PUMA does.

The Noffsinger decision creates further complications for employers that conduct drug testing for marijuana, particularly in states that have enacted laws that protect medical marijuana patients from adverse employment actions based solely on their use of medical marijuana. While the Noffsinger decision is not binding on other courts, courts in other jurisdictions with similar medical marijuana statutes might follow its lead. Therefore, employers may wish to reevaluate policies that either automatically deny employment to, or require termination of, an employee following a positive drug test resulting from the employee’s use of prescribed medical marijuana. 

--Victoria Olivarez

 

NFL v. NFLPA: The Battle for Medicinal Marijuana

Although the health-related NFL issue currently occupying major headlines are focused on chronic traumatic encephalopathy (CTE), increasing rates of former and current players becoming addicted to pain killers are quietly becoming the NFL's second largest health issue. In response to the pain killer addiction crisis, the NFL reached out to NFL Players Association and agreed to use a portion of the “joint contribution funds” to study medicinal marijuana effects on treating players dealing with chronic pain. The players' union has claimed that the NFL has not been transparent regarding which players they treat for chronic pain and how the treatment is conducted, but it apparently will push for more study of the issue and ultimately for use of medical marijuana for treating current and former players.

A good overview of the debate is Peter King’s Lesson of the Week: Medical Marijuana, Painkillers Could Be Next NFL vs. NFLPA Battleground. A sample:

The MMQB has obtained the correspondence between the two sides—comprised of four letters, two from NFL general counsel Jeff Pash to the PA, and two from union lawyer Ned Ehrlich back to Pash—and it’s largely what you’d expect. Last week, we said if you give these guys a walking-on-eggshells topic (like domestic violence) then these guys will just fight on the eggshells, and this is more proof of it.

And that is on the heels of comments made by union president/Bengals tackle Eric Winston on the potential damage another work stoppage could do. (Though I’ll agree with Pro Football Talk in that Winston’s “dies out in 20 years” quote was blown way out of proportion.)

But it’s still important, and there’s a lesson in here to be learned. That lesson is this: While the public has focused on the issue of traumatic brain injury and CTE, there’s another topic out there that’s just as important and potentially scary, and that’s how painkillers are affecting the NFL.

-- Jake Wiggins

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Employee MMJ Rights in Oregon: A Good Q&A

With recreational marijuana arriving tomorrow (Wednesday, July 1) the incidence of employees testing positive for weed is likely to go up substantially.  What obligations do employers have to take into account the fact that ingesting THC is now legal?  That's the subject of a very nice Q&A on The Oregonian's web site:  Recreational pot and the workplace: Q&A on Oregon's new marijuana law.

Short answer: there won't be much of a change.   But the whole exchange is worth checking out.

Federal Job Candidates Advised to Lie About Marijuana Use

The federal government drug tests potential employees for certain positions.  Young people who want those positions, and who use drugs, need to game the system to avoid having the feds find out.  That's the take from a piece in the New York Times:  State Marijuana Laws Complicate Federal Job Recruitment:

    For all the aspiring and current spies, diplomats and F.B.I. agents living in states that have liberalized marijuana laws, the federal government has a stern warning: Put down the bong, throw out the vaporizer and lose the rolling papers.

    It may now be legal in Colorado, in Washington State and elsewhere to possess and smoke marijuana, but federal laws outlawing its use — and rules that make it a fireable offense for government workers — have remained rigid. As a result, recruiters for federal agencies are arriving on university campuses in those states with the sobering message that marijuana use will not be tolerated.

    So members of a new generation are getting an early lesson in what their predecessors have done for as long as there has been espionage, diplomacy and bureaucracy. They are lying and, when necessary, stalling to avoid failing a drug test.

    As any regular marijuana smoker will tell you, it usually takes about two weeks for evidence of marijuana use to disappear from urine, a urine sample being the method by which drug use ordinarily is tested.

    “Delaying something is part of what a good diplomat is supposed to know how to do,” said John, a young American diplomat who lives in Washington, D.C., where marijuana use became legal this year. “If you can’t put off a test for two weeks, I mean, come on.” He spoke on the condition that only his first name be used in an effort to avoid losing his job.

I suppose it's bound to come to this.  In a culture where we expect the country's leaders to lie to us, we probably can't expect to get honesty from the ordinary folks.  Of course the key to successful lying is to make sure you deny it in public:

    Based on interviews with a handful of federal workers living here, John’s marijuana-smoking story is not unique. One recent federal hire with a security clearance said he and many of his friends believed that the government was basically asking them to lie when applying for jobs. The hire, a university graduate from a Western state with liberal marijuana laws, was adamant that neither his name nor the agency where he was about to start working appear in print.

Then there's this, which is particularly appalling:

    Now, [a State Department] official owns his home here in Washington, [D.C.,]where it is legal to grow up to six plants, though only three can be mature at any given time. If discovered, he said, he would claim that the plants belonged to his wife, who does not work for the government.

This has got to be reassuring to foreign leaders who have to decide whether to believe what an American State Department official says.

Colorado Employers Can Fire Workers for Medical Marijuana Use

Colorado employees who demand drug-free workplaces can fire employees who test positive for marijuana, even if the employees have a medical marijuana authorization and consume the weed in their off-duty hours.

That's the ruling in Coats v. Dish Network, a much-watched decision, in which the Centennial State's highest court upheld an earlier decision by the state's court of appeals.  The unanimous opinion (Justice Monica Márquez did not participate) was written by Justice Allison Eid, a former law professor.

At issue in the case was a state law prohibiting employers from terminating employees for engaging in "lawful" activities in their off-hours.  The plaintiff argued that using marijuana was "lawful" under Colorado law.

The decision is a pretty straightforward application of statutory construction.  The court finds that the word "lawful" means "not . . . prohibited by law."  Marijuana possession is explicitly prohibited by federal law --  the Controlled Substances Act -- and so would generally not be considered "lawful."  The court went on to consider whether the legislature, in using the word "lawful," meant only things prohibited by Colorado law.  But the language, the court found, is not restricted.  Ordinarily, something is not lawful if it is prohibited by any level of government.  Thus, employers presumably can fire employees for engaging in federal crimes (such as tampering with the U.S. mail or violating customs laws) that are not expressly illegal under state law.

The case is a blow to MMJ patients whose employers have drug-free workplaces.  They will have to decide whether to use their medication or find alternate employment.  It's a win for employers who face pressure from the feds to be drug-free and faced the possibility of being whipsawed between state and federal law.

Because the court's opinion involved interpreting a statute, the Colorado legislature could reverse the decision simply by passing a new law saying that Coloradoans cannot be fired for using medical marijuana on their own time. 

Related articles

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Colorado Supreme Court: Employee Can Be Fired For Marijuana Use, Even Though It Is Legal Under State Law

You can still get fired in this state for using medical marijuana

Can Second-Hand Pot Smoke Cause You to Fail a Drug Test?

WELL . . . MAYBE, BUT IT'S NOT VERY LIKELY, according to reports of a new study in the Journal of Analytical Toxicology. 

    Many people assume that simply being around pot-smokers and marijuana smoke isn’t likely to result in trouble during a drug test, and that has been the general scientific consensus.

    But as weed has gotten more potent, scientists decided to investigate if secondhand smoke from strong strains of cannabis could lead to positive drug test results.  

    Urine tests look for a metabolite, or bodily by-product of THC, the chemical that accounts for many of marijuana’s psychoactive properties. In recent years, many strains of marijuana have been bred to contain more THC.

    So researchers paired several regular pot smokers and nonsmokers and put them in a sealed compartment together for an hour, while one smoked a joint containing a relatively strong strain of marijuana.

    The 12 nonsmoking participants were then tasked with peeing into a cup 13 times over the next 34 hours. Their urine was tested for 9-carboxy-THC, the marijuana metabolite commonly measured in standard drug tests.

    The results, published this month in the Journal of Analytical Toxicology, gives nonsmokers with weed-using friends reason to breathe easy. The scientists found urine levels of this metabolite surpassed typically detectable levels (50 nanogram per milliliter) in only one experiment participant, and this happened during a brief window four to six hours after exposure.

    Using a more sensitive test, however, which is not usually employed in the workplace, scientists could detect blood THC levels above the 20 nanogram per milliliter in several participants in the hours after exposure. But these concentrations dipped below this threshold for all participants within 24 hours, according to the study, conducted by researchers at the Johns Hopkins University School of Medicine and elsewhere.

    Positive tests are “likely to be rare” from secondhand smoke, the authors concluded, “limited to the hours immediately post-exposure, and occurring only under environmental circumstances where exposure is obvious.” Like, for example, sealing yourself in a car with several smokers for several hours and then peeing in a cup shortly thereafter.

    When researchers ventilated the smoking chamber, thus making the smoke fumes less concentrated, the urine levels of THC’s metabolite did not come close to reaching the 50 nanogram per milliliter threshold for any participant.