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| Medical Cannabis Growing Operation in Oakland, California (Photo credit: Rusty Blazenhoff) |
In an August 15th
“Client Alert,” the Philadelphia-based firm of Drinker Biddle summed it up
neatly: “Across the country, employers in states allowing medical marijuana use
have been grappling with whether these statutes impact employer policies
concerning drug testing and maintaining a drug-free workplace. Though the statutes allow for marijuana use
for medical purposes (and some for recreational purposes), these statutes do
not consistently address the impact of legal medical marijuana on employers, if
at all.”
Adds the Alert, “And the numbers of
states enacting such legislation is continuing to grow.” Indeed, beginning in 1996 and continuing down
to the present day, 20 states, plus the District of Columbia, have enacted
legislation that allows for the non-criminal use of marijuana for medical
purposes. And the trend is upward. Illinois became the 21st American
jurisdiction to join the club when its governor signed the state’s HB 1 into
law on August 1st.
What the Drinker Biddle Alert doesn’t
discuss is insurance coverage for medical marijuana. The overall answer is, “Due
to marijuana’s status as a Schedule 1 substance under the federal Controlled
Substances Act, it will be a long time before health insurers include the drug
on their prescription formularies.” [http://echealthinsurance.com/laws/medical-marijuana-and-health-insurance/]
While
understandable, this posture stands against the tide of both public and
professional opinion. For example, a
June 2013 survey by the prestigious New
England Journal of Medicine garnered replies from 1,446 doctors across 72
nations. Of these respondents, 76
percent favored use of marijuana for medical purposes. A 2011 Harris Poll found that a remarkably
similar 75 percent of Americans supported medical marijuana. [http://www.medicalmarijuanablog.com/benefits/medical-marijuana-and-health-insurance.html]
The
American College of Physicians states on its website, “Marijuana
has been smoked for its medicinal properties for centuries. Preclinical,
clinical, and anecdotal reports suggest numerous potential medical uses for
marijuana. Although the indications for some conditions have been well
documented, less information is available about other potential medical uses.
“Additional research is needed to
further clarify the therapeutic value of cannabinoids and determine optimal
routes of administration. Unfortunately, research expansion has been hindered
by a complicated federal approval process, limited availability of
research-grade marijuana, and the debate over legalization. ACP believes the
science on medical marijuana should not be obscured or hindered by the debate
surrounding the legalization of marijuana for general use”
[http://www.acponline.org/acp_news/medmarinews.htm]
While this statement falls short of a full-blown endorsement of medical
marijuana use, it certainly is a striking statement from influential members of
a traditionally conservative profession.
The American Medical Association has taken a similar position. [http://thinkprogress.org/health/2013/06/03/2090941/doctors-would-prescribe-medical-marijuana/]
Meanwhile, insurers also are
steering clear of coverage for medical marijuana under workers’
compensation. Two states --- Montana and
Vermont --- specifically ban use of marijuana as a medical treatment under
their workers’ comp schemes. [http://www.joepaduda.com/2013/01/medical-marijuana-workers-comp-seriously/] A recent survey of states’ respective
positions on medical marijuana and worker’s compensation can be accessed at http://www.joepaduda.com/2013/01/medical-marijuana-workers-comp-seriously/. The survey was
conducted by the International Association of Industrial Accident Boards, the
website of which [http://www.iaiabc.org/i4a/pages/index.cfm?pageid=1] offers a
wealth of information on this subject to its members. [http://www.iaiabc.org/i4a/search/search.cfm]
Can
you can a cannabis advocate? In what undoubtedly is a case of first
impression, not merely in its home state but nationally, the Supreme Judicial
Court of Maine has ruled that a termination motivated by the employee’s
application for a medical-marijuana-shop license does not offend public policy.
[Savage v. Maine Pretrial Services, Inc.,
58 A.3d 1138 (Maine 2013).]
The decision, we predict, is only the
tip of a wave of litigation to be expected, as more and more jurisdictions
sanction medicinal use of marijuana in the face of federal statutes outlawing
the possession and sale of “pot.”
Facts. Jody
Savage was employed by the defendant as a case manager for the Family Treatment
Drug Court at the Lewiston District Court from June 1, 2009, through June 28,
2010. On March 1, 2010, Savage approached her supervisor to discuss her
interest in applying for a license to open a registered medical marijuana
dispensary. Savage and her supervisors had a series of additional meetings and
communications on this topic. At some point, Savage applied to open a registered medical marijuana
dispensary.
Beginning in April 2010, Savage was
disciplined for her work attire and implementation of the compensable time
policy, despite not having changed her attire or behavior since she began
working at Maine Pretrial Services. Savage was terminated from her employment
at Maine Pretrial Services on June 28, 2010.
Savage alleged in Count I of her
complaint that her termination was a violation of the Maine Medical Use of
Marijuana Act. Maine Pretrial Services moved to dismiss Savage's complaint on
the ground that she failed to state a claim upon which relief could be granted.
The court granted the motion to dismiss with respect to several counts,
including Count I. The parties later stipulated to the dismissal of the
remaining counts, and the court entered its final judgment as to these counts
on March 21, 2012.
Statute
doesn’t protect plaintiff. The court
explained that Section 2423-A of the MMUMA authorizes a qualified patient to
possess a specified maximum amount of marijuana and/or cultivate mature
plants. The same privilege adheres to a
primary caregiver or hospice designated by a qualified patient. Section 2423-E prohibits penalizing any
“person whose conduct is authorized under this chapter.” No employer, school or landlord is allowed to
discriminate against such people.
Physicians are authorized to certify patients as requiring medical
marijuana therapy. [Section 2423-C] And anyone can provide related paraphernalia
to a qualified patient.
Concluded the court,
“Savage has not pleaded any facts in her complaint that she falls into one of
these four categories of persons and has conceded on appeal that sections 2423–A through 2423–D do not govern registered dispensaries or applicants who seek to operate
registered dispensaries.” Rather, “The conduct of applying for a license to operate a
registered dispensary, although contemplated and required by the Act in order
to operate a registered dispensary, is not otherwise illegal and therefore does
not require special protection. Those who operate registered dispensaries,
unlike mere applicants, have the privileges of possessing, cultivating, and
dispensing marijuana.”
Additionally, added the justices, the
MMUMA creates no private right of action against employers. Its thrust, they said, was to provide
immunity from arrest, prosecution, fine, disciplinary action or other penalty
that might be imposed by a public entity.
Devil
in the details. As noted above, 20
states and the District of Columbia have enacted medical-marijuana laws:
- Alaska (1998)
- Arizona (2010)
- California
(1996)
- Colorado (2000)
- Connecticut
(2012)
- District of
Columbia (2010)
- Delaware (2011)
- Hawaii (200o)
- Illinois (2013)
- Maine (1999)
- Massachusetts
(2012)
- Michigan (2008)
- Montana (2004)
- Nevada (2000)
- New Hampshire
(2013)
- New Jersey
(2010)
- New Mexico
(2007)
- Oregon (1998)
- Rhode Island
(2006)
- Vermont (2004)
- Washington
(1998)
An excellent summary chart can be
accessed at http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.
Of
course, as that table indicates, the devil is, as always, in the details. You’ll discover that very state statute is
unique in some ways. Some common
characteristics are as follows:
- Residency
requirements: 16 of the 18 states
require proof of residency in order to be deemed a qualified
patient. Oregon accepts out-of-state
applications. Delaware’s program
is not yet operational; it’s unknown whether it will accommodate
non-residents.
- Home
cultivation: Patients and caregivers may cultivate their own plants in 15
of the 18 states. In Arizona the
patient must live at least 25 miles away from the nearest dispensary in
order to be entitled to grow his/her own.
In Massachusetts a hardship waiver is required.
Oh, and by the way, four more
states have legislation pending as this Bulletin
is being written: Minnesota, New York,
Ohio, and Pennsylvania. [http://medicalmarijuana.procon.org/view.resource.php?resourceID=002481]
But what about the Feds? In October 2009 the U.S. Department of
Justice announced its policy on medical marijuana use under color of state law:
Attorney General Eric Holder
today announced formal guidelines for federal prosecutors in states that have
enacted laws authorizing the use of marijuana for medical purposes. The
guidelines make clear that the focus of federal resources should not be on
individuals whose actions are in compliance with existing state laws, while
underscoring that the Department will continue to prosecute people whose claims
of compliance with state and local law conceal operations inconsistent with the
terms, conditions, or purposes of those laws.
"It will not be a priority
to use federal resources to prosecute patients with serious illnesses or their
caregivers who are complying with state laws on medical marijuana, but we will
not tolerate drug traffickers who hide behind claims of compliance with state
law to mask activities that are clearly illegal," Holder said. "This
balanced policy formalizes a sensible approach that the Department has been
following since January: effectively focus our resources on serious drug
traffickers while taking into account state and local laws."
The guidelines set forth examples of
conduct that would show when individuals are not in clear and unambiguous
compliance with applicable state law and may indicate illegal drug trafficking
activity of potential federal interest, including unlawful use of firearms,
violence, sales to minors, money laundering, amounts of marijuana inconsistent
with purported compliance with state or local law, marketing or excessive
financial gains similarly inconsistent with state or local law, illegal
possession or sale of other controlled substances, and ties to criminal
enterprises.
[http://www.justice.gov/opa/pr/2009/October/09-ag-1119.html]
The referenced guidelines explain, “The
Department of Justice is committed to the enforcement of the Controlled
Substances Act in all States. Congress has determined that marijuana is a
dangerous drug, and the illegal distribution and sale of marijuana is a serious
crime and provides a significant source of revenue to large-scale criminal
enterprises, gangs, and cartels. One timely example underscores the importance
of our efforts to prosecute significant marijuana traffickers: marijuana
distribution in the United States remains the single largest source of revenue
for the Mexican cartels.”
They go on to emphasize DOJ’s determination
to make “efficient and rationale use” of its limited enforcement
resources. So, when will the federal
government take an interest in marijuana commerce in a medical-marijuana state?
Typically, when any of the following characteristics is present, the conduct
will not be in clear and unambiguous compliance with applicable state law and
may indicate illegal drug trafficking activity of potential federal interest:
▪
unlawful possession or unlawful use of firearms;
▪
violence;
▪
sales to minors;
▪
financial and marketing activities inconsistent with the terms,
conditions, or purposes of state law, including evidence of money laundering
activity and/or financial gains or excessive amounts of cash inconsistent with
purported compliance with state or local law;
▪
amounts of marijuana inconsistent with purported compliance with state
or local law;
▪
illegal possession or sale of other controlled substances; or
ties to other criminal enterprises.
While the guidelines are encouraging
to those involved in aspects of medical-marijuana use --- patients, caregivers,
doctors, and providers --- they contain a caveat, which leaves the door open
for discretionary enforcement of federal law.
Of course, no State can authorize violations of federal law, and the
list of factors above is not intended to describe exhaustively when a federal
prosecution may be warranted. Accordingly, in prosecutions under the Controlled
Substances Act, federal prosecutors are not expected to charge, prove, or
otherwise establish any state law violations. Indeed, this memorandum does not
alter in any way the Department’s authority to enforce federal law, including
laws prohibiting the manufacture, production, distribution, possession, or use
of marijuana on federal property. This guidance regarding resource allocation
does not “legalize” marijuana or provide a legal defense to a violation of
federal law, nor is it intended to create any privileges, benefits, or rights,
substantive or procedural, enforceable by any individual, party or witness in
any administrative, civil, or criminal matter. Nor does clear and unambiguous
compliance with state law or the absence of one or all of the above factors
create a legal defense to a violation of the Controlled Substances Act. Rather,
this memorandum is intended solely as a guide to the exercise of investigative
and prosecutorial discretion.
[http://blogs.justice.gov/main/archives/192]
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