There is no shortage of legal issues and regulations about which employers and employees must be aware. And with the introduction of state-legalized cannabis products for both medicinal and adult use, the legal landscape governing these relationships has become even more complicated. Thankfully, you have our panel of experts to help you navigate some of the key issues surrounding cannabis from the perspectives of both employers and employees. In this episode, we’ll address numerous issues, including recent changes to state laws regarding medical and adult-use cannabis; best practices for drug testing (and being tested); dealing with employees who are registered users of medical marijuana; and navigating “drug-free workplace” rules for federal contractors, among others.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/cannabis-legal-business-issues-for-employers-employees-2021/
2. 2
Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.
3. Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
Financial Poise™ makes no guaranty in this regard.
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5. Meet the Faculty
MODERATOR:
Jack O’Connor - Sugar Felsenthal Grais & Helsinger LLP
PANELISTS:
Ruth Rauls - Saul Ewing Arnstein & Lehr LLP
Charles Krugel - The Law Offices of Charles A. Krugel
Emily Farr - Gould & Ratner
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6. About This Webinar - Cannabis Legal & Business
Issues for Employers & Employees
There is no shortage of legal issues and regulations about which employers and employees
must be aware. And with the introduction of state-legalized cannabis products for both
medicinal and adult use, the legal landscape governing these relationships has become even
more complicated.
Thankfully, you have our panel of experts to help you navigate some of the key issues
surrounding cannabis from the perspectives of both employers and employees. In this
episode, we’ll address numerous issues, including recent changes to state laws regarding
medical and adult-use cannabis; best practices for drug testing (and being tested); dealing
with employees who are registered users of medical marijuana; and navigating “drug-free
workplace” rules for federal contractors, among others.
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7. About This Series - Cannabis Law 2020
The U.S. cannabis industry has exploded over the past decade. With every emerging industry comes legislation,
rules, investors, and questions. The legalized cannabis industry is no different. And as more states in the U.S.
adopt adult use and medical cannabis laws and regulations, it is incumbent on businesspeople and
professionals to educate themselves about the challenges and opportunities facing the industry, as well as how
to navigate the legal landscape governing cannabis businesses, whether those businesses “touch the plant,” or
not. Thankfully, we’re here to help. In this series, we provide an essential foundation for any businessperson or
professional looking to get smart about the cannabis industry. In our first episode, we present an overview of the
cannabis industry and the competing legal frameworks at state and federal levels. In our second episode, we will
discuss investment strategies for getting involved in the cannabis industry. Our third episode will discuss specific
legal issues surrounding intellectual property rights in the cannabis space. And we’ll conclude with our fourth
episode, focused on legal and business issues for employers and employees in states where cannabis has been
legalized for both medical and adult use.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without much background in these areas, yet is of primary value to attorneys, accountants, and other
seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to
entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that
participants will enhance their knowledge of this area whether they attend one, some, or all episodes.
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8. Episodes in this Series
#1: Cannabis Basics: Getting up to Speed with Current Laws, Legislation, &
Essential Business Issues
Premiere date: 1/20/21
#2: Cannabis Investment: Successes, Failures, & Strategies for the Future
Premiere date: 2/17/21
#3: Protecting Intellectual Property in the Cannabis Industry
Premiere date: 3/17/21
#4: Cannabis Legal & Business Issues for Employers & Employees
Premiere date: 4/7/21
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10. US Legal Landscape: Federal Prohibition
The Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-971 criminalize the following with
respect to cannabis:
• Growing;
• Processing;
• Selling;
• Knowingly renting, managing, or using property for the purpose of manufacturing or
distribution;
• Selling or offering to sell drug paraphernalia (including equipment, products, or materials of
any kind which is primarily intended or designed for use in manufacturing cannabis); and
• Deriving profits or proceeds from violations of the CSA
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11. A Brief Glossary
THC (tetrahydrocannabinol)
• Best known & most abundant available cannabinoid in marijuana plants, responsible for
psychoactive effects or the “high,” of cannabis products.
CBD (cannabidiol)
• One of many cannabinoids found in cannabis. CBD has gained support for its use as a
medical treatment as research has shown it effectively treats pain, inflammation,
and anxiety without the psychoactive effects associated with THC.
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12. A Brief Glossary
Hemp/industrial Hemp
• a fibrous product that can be produced from the male cannabis plant (meaning it generally
can’t be used to produce intoxicants), used in the manufacture of rope, paper, clothing,
beauty products, and other goods.
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13. The 2018 Farm Bill (Hemp Farming Act of 2018)
• The 2018 Farm Bill legalized production of hemp as an agricultural commodity & removed
hemp from the list of controlled substances.
• Also requires Secretary of Agriculture to conduct study of hemp-related agricultural pilot
programs implemented under prior 2014 Farm Bill.
• Does not create a system for producers to grow hemp as freely as other crops: caps THC
content for industrial hemp plants at 0.3%.
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14. Significant Sources of Cannabis & Employment Laws
14
Cannabis
Law
Federal
Controlled
Substances
Act
State
Medical/
Adult Use
Marijuana
Laws
Hemp
Farming Act
Federal
Food, Drug,
& Cosmetic
Act
15. Significant Sources of Cannabis & Employment Laws
Cont’d
15
Labor &
Employment
Law
Fair Labor
Standards
Act
Americans
With
Disabilities
Act (ADA)
Family
Medical
Leave Act
(FMLA)
National
Labor
Relations Act
(NLRA)
Drug Free
Workplace
Act
Equal
Employment
Opportunity
Act
Occupational
Safety &
Health Act
(OSHA)
State
Analogues to
Federal
Statutes
16. US Legal Landscape: State-Based Legalization
At present (and constantly changing):
• 35 states, 4 of 5 US Territories, & the District of Columbia allow medical cannabis use
• 15 states, the District of Columbia, Guam, and the Northern Mariana Islands allow adult (or
“recreational”) use of cannabis, including: Alaska, Arizona, California, Colorado, Illinois,
Maine, Massachusetts, Michigan, Montana, New Jersey*, Nevada, Oregon, South
Dakota**, Vermont, and Washington
• 16 other states have decriminalized cannabis use
*New Jersey legislature delaying ballot measure implementation
**Effective July 1, 2021
16
17. State-Based Legalization of Cannabis
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Source:https://en.wikipedia.org/wiki/Legality_of_cannabis_by_U.S._jurisdiction (last visited January 20, 2021)
18. Common State Laws Governing Medical Cannabis
Patient Registration Cards
• Most states only allow access to medical marijuana through registration or identification card.
• Eligibility for cards varies by jurisdiction, typically requiring a patient have a qualifying medical
condition as determined by state law.
• Rules vary by jurisdiction, but cards generally permit patient to seek physician authorization for
cannabis use, home-grow, and other privileges.
• Cards generally issued by branch of state government, require fee, and are valid for 1 year.
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19. Common State Laws Governing Medical Cannabis
Cont’d
Common Qualifying Medical Conditions:
Source: https://mjbizdaily.com/chart-of-the-week-most-common-medical-conditions-of-registered-mmj-patients/ (accessed 2020.04.21)
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20. Common State Laws Governing Medical Cannabis
Cont’d
Employer right to terminate or discipline employees
• Most state laws carve out exemptions for employers, authorizing prohibitions against use on premises
and on-the-job intoxication.
• Some jurisdictions have produced case law supporting employers' rights to terminate employees for
positive drug tests resulting from medical marijuana use.
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21. Common State Laws Governing Medical Cannabis
Cont’d
Common Restrictions on Employers
• Some states, while authorizing termination or discipline for marijuana use or intoxication in the
workplace, limit employers' right to test for marijuana or prohibit discrimination against individuals
based on medical marijuana registration cards.
21
22. State Law Protections for Employees
• Many states that have legalized cannabis for medical or adult use have incorporated specific
protections for employers and employees
• In 14 states where medical marijuana is legal (AR, AZ, CT, DE, IL, ME, MA, MN, NV, NH, NM, NY,
OK, PA) laws expressly require that employers not discriminate against medical marijuana patients.
• In some states (Maine & Nevada, which also allow adult use), regulations prohibit employers from
making adverse employment decisions about most workers based on cannabis use outside the
workplace.
22
23. Drug Free Workplace & “Zero Tolerance” Policies
• Employers in cannabis-legalized states must determine whether subject to federal Drug Free
Workplace Act.
• Requires federal grant recipients and federal contractors adopt zero tolerance policy at workplace &
certify to federal government that workplaces are drug free.
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24. Drug Free Workplace & “Zero Tolerance” Policies
In addition to certifying drug free workplace, employers generally must:
• Develop and publish for employees a written policy and ensure that employees read and consent to
the policy as a condition of employment;
• Initiate awareness programs to educate employees about the dangers of drug abuse, the company's
drug workplace policy, any available drug counseling, rehabilitation and employee assistance
programs, and penalties that may be imposed on employees for drug abuse violations;
• Require that all employees notify the employer or contractor within five days of any conviction for a
drug offense in the workplace; and Make an ongoing good faith effort to maintain a drug-free
workplace.
24
25. Disability Discrimination Claims & Medical Patients
The federal Americans with Disabilities Act (ADA) prohibits employers from discriminating against
qualified individuals on the basis of disability.
• ADA defines disability as “a physical or mental impairment that substantially limits one or more major
life activities, a person who has a history or record of such an impairment, or a person who is
perceived by others as having such an impairment.”
• ADA also prohibits discrimination in job application procedures; hiring, advancement, or discharge of
employees; employee compensation; job training; and other terms, conditions, and privileges of
employment.
25
26. Disability Discrimination Claims & Medical Patients
Cont’d
ADA Continued:
• Covered employers required to provide reasonable accommodations to disabled employee so
employee can perform essential duties of job, as long as such accommodations do not impose undue
hardship on employer.
• Accommodation is generally: “any change in the work environment or the way things are customarily
done that enables an individual with a disability to enjoy equal employment opportunities.” according
to EEOC
Some states have imposed duty on employers to accommodate employee cannabis use (known as
“accommodation states”)
26
27. Recent Case Law
Chance v. Kraft Heinz Foods Co. (Del. Sup. Ct. 2018)
• Fact synopsis: Kraft Heinz fired employee after job site accident for failing drug test despite holding
medical marijuana card.
• Court held anti-discrimination provision of Delaware's medical marijuana law is not preempted by
federal Controlled Substances Act, and allowed worker to proceed with most of his claims.
27
28. Recent Case Law
Palmiter v. Commonwealth Health Systems, et al., No. (Pa. Com. Pl., Lackawanna Cnty. Nov. 22,
2019)
• Fact synopsis: medical assistant terminated by health care employers for authorized off-site use of
medical marijuana. Employee sued asserting private right of action against employer implied by anti-
discrimination provision of Pennsylvania Medical Marijuana Act
• Court held Pennsylvania Medical Marijuana Act does create implied private right of action against
employer by employee terminated for off-site use of medical cannabis.
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29. Recent Case Law
Whitmire v. Wal-Mart Stores, Inc. (Dist. Ariz. Feb. 7, 2019)
• Fact synopsis: medical cardholder employee in Arizona tests positive for cannabis after drug test
triggered by on-the-job injury at Wal-Mart. Wal-Mart fired employee claiming test results indicated
intoxication at time of injury, during employee’s shift. Employee sued claiming termination violated
Arizona Medical Marijuana Act.
• Court sides with employee and allows claim to proceed.
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30. Recent Case Law
Wild v. Carriage Funeral Holdings Inc., 241 N.J. 285 (March 10, 2020)
Fact synopsis: medical patient employed by funeral home diagnosed with qualifying medical condition
under NJ Medical Marijuana Act. Patient was involved in traffic accident caused by another driver, and
disclosed medical card status to treating physician. Patient was not intoxicated at time of accident, but
was terminated by employer. Patient sued employer for unlawful discrimination.
Court sided with employee, holding that employer, while not required to accommodate medical patient
status at work, could not discriminate against employee for using medication off-site.
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32. About The Faculty
Jack O’Connor - joconnor@sfgh.com
Jack is partner in the Chicago office of Sugar Felsenthal Grais & Helsinger LLP. Jack’s practice covers a
range of healthy and distress business engagements. Jack leads Sugar Felsenthal’s “Vice,” practice,
working with business clients in the Beer, Spirits, and Cannabis industries.
Jack is also widely recognized for his excellent work as a restructuring attorney including recognition by
various organizations for his strategic thinking and tactical expertise, including SuperLawyers Magazine,
Leading Lawyers Magazine, and the Turnaround Management Association.
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33. About The Faculty
Ruth Rauls - ruth.rauls@saul.com
Ruth concentrates her practice on complex commercial litigation, employment litigation, real
estate litigation and litigation involving closely-held corporations. She has extensive
experience litigating matters at the trial and appellate levels in state and federal court in New
Jersey and New York, as well as in private mediations and arbitrations. She has litigated
claims arising under the New Jersey Consumer Fraud Act, the New Jersey Law Against
Discrimination, and various other federal and state statutory and common law causes of
action.
To read more about Ruth, please visit: https://www.saul.com/attorneys/ruth-rauls
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34. About The Faculty
Charles Krugel - cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor,
Charles Krugel, www.charlesakrugel.com, has 25 years of experience in the field & has been
running his own practice for 20 years. His clients are small to medium sized companies in a
variety of industries. Charles has been lead negotiator for hundreds of labor & employment
agreements & contracts. Additionally, he’s litigated dozens of court cases, administrative
proceedings & arbitrations. In addition to providing traditional labor & employment law
services, he represents companies desiring to institute preventive & proactive HR functions.
These functions include policies & procedures, which help to efficiently & discreetly resolve
issues in-house & prevent lawsuits & complaints; they also help to reduce costs & act as
catalysts for increasing productivity & profits. Moreover, he’s frequently the subject labor &
employment law related TV, radio & print interviews.
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35. About The Faculty
Emily Farr - efarr@gouldratner.com
With years of experience as both a litigator and an employment attorney, Emily Wessel Farr
advises employers on a wide-range of issues such as civil rights violations, harassment and
discrimination, protection of trade secrets, NLRB matters, peer review and credentialing and
HR training. Emily also regularly advises businesses on corporate matters including insurance
coverage, breach of contract, unfair labor practices, civil rights and ADA violations,
disciplinary actions and licensing issues. Before joining Gould & Ratner, Emily founded Farr &
Farr, a Chicago-based law firm focused on litigation and employment matters. She is also
admitted to practice in North Carolina, where she spent several years representing
corporations and medical practice groups in a variety of matters affecting their businesses
and has spent significant time litigating civil rights cases in federal court. In 2018, she was
named one of Crain’s “Notable Women Lawyers” and has been recognized as a Rising Star in
employment law by Super Lawyers magazine for 2019 and 2020.
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36. Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
36
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37
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