CANNABIS IN THE WORKPLACE: MAKING YOUR WAY THROUGH AN EVOLVING

CANNABIS IN THE WORKPLACE: MAKING YOUR WAY THROUGH AN EVOLVING LANDSCAPE AUGUST 6, 2020 PRESENTED BY: ANN MARIE PAINTER, PARTNER - DALLAS

Cannabis in the Workplace Cannabis in Our Culture 2 2020 Perkins Coie LLP

CANNABIS IN THE WORKPLACE AGENDA Background on Cannabis as a Controlled Substance Changes in State Law State Law Carve-Outs Pre-Hire Testing Testing Post-Hire Whoa, Dude! Accommodating Cannabis Use Hypotheticals 3 2020 Perkins Coie LLP

Cannabis in the Workplace BACKGROUND Cannabis, Marijuana & Hemp – Oh My! Marihuana Tax Act of 1937 Controlled Substances Act of 1970 2014 Farm Bill 2018 Farm Bill Americans with Disabilities Act 4 2020 Perkins Coie LLP

Cannabis in the Workplace What do you mean “cannabis in the workplace?” 5 2020 Perkins Coie LLP

Cannabis in the Workplace No longer a given that Positive test termination or that Being a cannabis user disqualifier 6 2020 Perkins Coie LLP

Changes in State Law BACKGROUND 33 states DC have legalized cannabis for medical use 11 states DC have legalized cannabis for adult use Federal law remains unchanged: 7 2020 Perkins Coie LLP

State Law Carve-Outs Safety sensitive positions - State laws vary as to what is “safety sensitive” - Public health and safety is the touchstone - Operating machinery, working with children, healthcare Exceptions for - Compliance with federal law or - Compliance to maintain federal contracts, funding or licensing - Note, some states make it difficult to use the exemptions, Noffsinger v. SSC Niantic Op. Co. LLC, 338 F. Supp. 3d 78 (D. Conn. 2018)/ Job positions regulated by federal agencies, e.g. DOT, FAA, US Department of Energy, DOD, US Nuclear Regulatory Commission, etc. - Requires testing - Disqualify a person from holding job if testing positive - Check state law corollaries 8 2020 Perkins Coie LLP

Additional State Law Considerations Legal off-duty conduct generally - California, Colorado, Connecticut, Illinois, Massachusetts, Minnesota, Montana, Nevada, New York, North Dakota and Vermont - No express mention of cannabis use but should be presumed Off-duty use of cannabis - Arizona, Arkansas, Connecticut, Delaware, Maine, Minnesota, New Jersye, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Utah, West Virginia - Expressly state that employers cannot take adverse action because of offduty conduct related to cannabis use. Prohibition of discrimination against medical marijuana card holders - Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Utah, West Virginia. 9 2020 Perkins Coie LLP

Pre-hire Testing and Cannabis-related Offenses Is pre-hire testing for marijuana permitted in your jurisdiction? Does jurisdiction address whether declining applicant is permitted? New York City Washington, D.C. Nevada Arizona Delaware Minnesota New Jersey Oklahoma Rhode Island 10 2020 Perkins Coie LLP

Testing Post-Hire Reasonable suspicion, post-accident and random - Check rules in jurisdiction - Urinalysis does not necessarily suitable for showing cannabis impairment or recent cannabis use - Oral fluid testing for THC - Little if anything available to measure “impairment” What does it mean to be “impaired?” - States requiring evidence of impairment Arizona, Connecticut, Delaware, Illinois, Minnesota, Nevada, New Mexico, New York, Oklahoma - Developing internal standards Illinois – “specific, articulable symptoms” that “decrease performance” Speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment, disregard for safety . - Verification of medical authorization 11 2020 Perkins Coie LLP

Whoa, Dude! Accommodating Cannabis Use Accommodating use under the ADA - No accommodation for current users - Accommodation for past users recovering from use or addiction - Possible discrimination for adverse action if it’s a pretext for disability discrimination Accommodating use under state law - States requiring accommodation of off duty use Massachusetts, Nevada, New York - States specifically not requiring accommodation California, Colorado, Georgia, Hawaii, Montana, Ohio, Oregon, Utah and Washington - States that allow medical use but silent on accommodation 12 2020 Perkins Coie LLP

Hypotheticals #1: Applicant tests positive for presence of THC. Hire or no hire? #2: Current employee of an Essential Business in a safety sensitive has an accident at work and tests positive for THC. Claims use was from prior week. Terminate or no terminate? #3: Current employee is observed with edibles on Instagram post. Test or no test? Terminate or no terminate? #4: Current employee is observed having slurred speech and a little unsteady on feet. Tests positive for THC. They advise prior to test they have a medical marijuana card and are taking some form of cannaboids for cancer. Terminate or no terminate? #5: Current employee works remotely. Tells colleagues that they ingest edibles a couple of times a week to address anxiety associated with the pandemic. Test or no test? 13 2020 Perkins Coie LLP

THANK YOU! 14 2020 Perkins Coie LLP