Josephine Kenney and William Tincup dive into what's happening today with all of the laws and changes affecting marijuana and compliance.

1. Cannabis
Conundrum 2018
U.S. Marijuana laws are changing – What it
Means for your business
April 12, 2018

2. Discussion Leaders
Josephine Elizabeth Kenney
Chief Global Compliance
Officer at First Advantage
William Tincup
President of RecruitingDaily
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3. Disclaimer
The following Presentation is not offered as business, medical or legal advice but is
instead offered for informational purposes in a spirit of cooperation and information
exchange. First Advantage is not a law firm or medical provider and does not offer
legal, medical advice or business consulting advice.
This Presentation is not intended as a substitute for the legal advice of an attorney
knowledgeable of the issues covered as they relate to a user’s individual circumstances
or a medical practitioner. First Advantage makes no assurances regarding the accuracy,
completeness, or utility of the following information. Legislative, regulatory, case law
and medical developments regularly impact on general research and medical
information.
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4. 1. What is the Cannabis Conundrum?
2. What is the current public opinion and politics of
cannabis?
3. What is the difference between State Law vs. Federal Law?
4. Which states are passing which laws?
5. What about case law?
6. Trending: How do other leading-edge companies balance
their legal risk concerns with their commitment to a Drug
Free Workplace?
Today’s Discussion Questions:
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5. What is the
Cannabis
Conundrum?
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6. The Cannabis Conundrum
How do employers:
• Meet the objectives of their Drug Free Workplace
Program, while also complying with Federal Law and
Guidance on Medical Marijuana vs. the State Medical
Marijuana, Legalized/Recreational, Decriminalization, and
laws concerning Marijuana Extracts/Oils such as
Cannabidiol as well as case law decisions?
• Minimize the legal risks associated with cannabis use?
• Decide if they should take marijuana/THC off their
testing panel, prohibit, permit, treat like prescription
medication, or focus on impairment versus use?
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7. What is the current
public opinion and
politics of cannabis?
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8. Public Acceptance of Marijuana is Increasing
No Jail Time
for
Recreational
Use
Support
Some From
of
Legalization
60%
Support
Medical
Marijuana
58% 51%Strong
emotional
appeal
Highly
financed
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9. The Debate Continues
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10. Defining “Cannabis” and “Marijuana”
2017 Report on the Health Effects of Cannabis and Cannabinoids published by
the National Academies Press and written by the National Academies of
Sciences, Engineering, and Medicine:
“Although marijuana and cannabis are used interchangeably,
they are two separate entities.
Cannabis is an overall term, describing cannabinoids, marijuana,
and hemp, all derived from the cannabis sativa plant. Products
exist in various forms and are used medically, industrially, and
recreationally for different purposes.
Included are:
• edibles,
• oils,
• a variety of smoked or vaporized substances
• prescribed marijuana – Marinol, Dronabinol, Nabilone and
Sativex (sprayed oil not available in US)
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11. Defining The Terms:
Office of National Drug Control Policy
Medical Marijuana
Legalized, Recreational Marijuana
Decriminalization
Cannabidiol / Marijuana Extracts
SOURCE
https://obamawhite
house.archives.gov/
ondcp/frequently-
asked-questions-
and-facts-about-
marijuana,
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12. Addiction: “The compulsive
use of a substance despite
ongoing negative
consequences, which may
lead to tolerance or
withdrawal symptoms when
the substance is stopped”.
Diagnostic & Statistical Manual of
Mental Disorders IV – the psychiatrist’s
handbook for defining all mental
disorders.
Some Pushback Related to Evidence of
Long Term Deleterious Effects
9% of those who experiment
with marijuana will become
addicted.
--NEJM, June 5, 2014 by Volkow et al, pp2219-2226.
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13. 1313
(Continued) Some Pushback Related to
Evidence of Long Term Deleterious Effects

14. Research Requires:
• DEA license to conduct marijuana
research
• Must use research grade marijuana
– National Institute for Drug Abuse
(NIDA) controls the only supply in
the U.S. and rarely approves
supplies for trials to show positive
effects of marijuana
• 2016 DEA policy shift to foster
research may change the equation
• Also important Report released
January 2017: The Health Effects of
Cannabis and Cannabinoids: The
Current State of Evidence and
Recommendations for Research
https://www.nap.edu/catalog/24625/the-health-effects-of-
cannabis-and-cannabinoids-the-current-state
And Pushback Due to Lack of
Medical Evidence
Many scientific knowledge
gaps about marijuana risks
& benefits exist because
research has been stymied
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15. What is the
difference between
State Law vs.
Federal Law?
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16. Federal Law and these state laws conflict due to Federal Law and Policy – especially
21 United States Code Section 812 (b) (1) Schedule I.c (17) prohibiting
tetrahydrocannabinoids.
Medical Marijuana is not a legitimate medical explanation under DOT although
Marinol is.
Effective January 13, 2017, the Department of Justice Drug Enforcement
Administration published a Final Rule in the Federal Register at Vol. 81, No. 240,
page 90194. Final Rule included extracts of marijuana such as Cannabidiol under
Schedule I of the Controlled Substances Act.
Federal Law vs. State Law!
US Federal Law Conflicts with State Law
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17. Which States
are Passing
Which Laws?
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18. Marijuana is still illegal under the
Federal Controlled Substances
Act
• But what about the state laws?
• Smoking v. Vaporizing, Edibles,
Extracts/Oils such as Cannabidiol to be
considered…
State Law Review
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19. State Laws By the Numbers
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Non Traditional
although some
do not permit
smoked and
some oils
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Decriminalized +
Guam and the
Virgin Islands
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Traditional
(30 states +D.C.
and Puerto
Rico)
8
Legalized/
Recreational Use
(8 states + D.C.)
Vermont
1st state with
legalized
recreational law
effective July 1,
2018
18
Low Level THC
Laws (some do
not have
workplace
testing impact)
Maine
Recreational
Marijuana
troubling
implementation
evolution
191919

20. Who the law applies to
Quantity of marijuana permitted
How the marijuana may be obtained/access –
medical
The liability protections
The statutory requirements for authorized use and
the illnesses/medical conditions covered by each
statute as applicable
Each State Law Varies Significantly
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21. What about
Case Law?
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22. • Gonzales v. Raich No. 03-1454 – argued November 30,
2004 United States Supreme Court – Employer friendly
Decision June 6, 2005
• Washburn v. Columbia Forest Products, Inc., 340 Ore.
460 (Or. 2006) – Employer friendly Decision, January
12, 2006
• Ross v. Ragingwire Telecommunications, Inc., S
138130, Ct. App.3 C043392 – Employer friendly
Decision, January 24, 2008
Historical Medical Marijuana Case
Law Review
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23. Addressing whether an employer must accommodate the use of medical marijuana:
Johnson v. Columbia Falls Aluminum Co., LLC, 2009, MT 108N (MT 2009) and
Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, BOLI 3004; CA
A130422; SC S056265, Filed April 14, 2010
Historical Medical Marijuana
Case Law
Each Court held that an employer was not
required to accommodate an employee’s use of
medical marijuana. Notably, the plaintiff in the
Johnson case was an applicant and the plaintiff
in Emerald case was a temporary employee
refused permanent status after the Emerald
learned that the temporary employee was a
medical marijuana user.
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24. Coats v. Dish Network Colorado Supreme Court's Decision published June 15, 2015.
More Recent Medical Marijuana Case Law
"...under the plain language of section 24-34-
402.5, C.R. S. (2014), Colorado's "lawful activities
statute", the term "lawful" refers only to those
activities that are lawful under both state and
federal law. Therefore, employees who engage in
an activity such as medical marijuana use that is
permitted by state law but unlawful under
federal law are not protected by the statute. We
therefore affirm the court of appeals' opinion."
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25. • Connecticut Employers Union Independent (SC 19590)
(August 30, 2016)
• Barbuto v. Advantage Sales and Marketing, LLC. Civil Action
No. 15-02677 (Mass Superior Ct. May 31, 2016)
• Garcia v. Tractor Supply, No. 15-CV-00735 (D.N.M. Jan.7,
2016)
• Montana Cannabis Industry Ass’n v. Montana. 2016 Mont.
LEXIS 168 (Mont. Feb. 25, 2016)
Sources: General Research and Attorney Faye Caldwell, Caldwell & Everson, presentation at
SAPAA Conference, September 16, 2016.
...
2016 Medical Marijuana Case Law Update
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26. • Rhode Island:
Callahan v. Darlington Fabrics Corp., C.A. No. PC-
20145680, 2017 (R.I. Super: May 2017)
• Massachusetts:
Barbuto v. Adv. Sales & Mktg., 78 N.E. 3d 37 (Ma. Super.
Ct. July 17, 2017)
• Connecticut:
Noffsinger v. SSC Niantic Op. Co. 2017 U.S. Dist. LEXIS
124960 (D. Conn. August 8, 2017
Sources: General Research and Attorney Faye Caldwell, Caldwell & Everson, Quest
Webinar, March 2018
2017 Medical Marijuana Case Law Update
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27. Trending: How do
other leading-edge
companies
balance risk?
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28. Marijuana Programs and Policies:
What’s the Trend?
Of company policies that First Advantage has on file, the % of companies that do not accept medical marijuana is
significantly higher than those who do accept.
• Clients who do accept- retailers, banks, private companies, health industry (office functions)
• Clients who do NOT accept have policies outside MRO process for making exceptions:
• Exceptions made related to safety position held (e.g. desk worker ok, warehouse worker not ok)
• Exceptions made based on their individual clients (e.g. staffing agency)
States where we generally see clients accept medical marijuana (as an exception):
• Arizona, California, Colorado, Connecticut, Delaware, Illinois, Massachusetts, Maine, Minnesota, Nevada, New
York, Rhode Island, Washington State
• As of April 2, 2018, only 25 of our clients, some with multiple locations, do not include THC in their testing
panel. There are currently no accounts with an address in Maine that have a panel set up without THC.
Medical Marijuana Policy # of Clients % of Total
Accepts Medical THC 157 16.30%
Accepts Medical THC, but has exceptions 10 1.04%
Does NOT Accept Medical Marijuana 755 78.40%
Does NOT Accept Medical THC, but has Exceptions 24 2.49%
Third Party- Need to check their client’s policy 17 1.77%
Grand Total 963 Data from 3/29/2018
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29. The Cannabis Conundrum is a
Complex Subject
• Overall suggestion on this topic is for employers to “stay the course.”
• Follow your organization’s policy if in place on marijuana, medical and recreational that
were in place prior to the Ballots/Election outcomes in 2016 and since.
but…
• Review and enhance the language in your policy relative to legalized/recreational
marijuana if legal in the state or states in which your organization does business.
• Add language relative to cannabis extracts such as Cannabidiol and do not forget to
review and consider all the medical marijuana laws passed to date.
• Consider your organization’s legal risk mitigation strategy balanced with its level of
commitment to a drug free workplace.
• Engage legal counsel familiar with your organization and its legal risk mitigation
strategy to review your policy or create one on cannabis if you do not have language in
your Drug Free Workplace Testing Policy.
• Also see: CBS Report: https://www.cbsnews.com/news/should-employers-keep-testing-workers-for-pot/
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30. The use of marijuana for medical purposes, even if permitted by state law, or where
marijuana is legalized for recreational use , even if permitted under state law, regulation or
city ordinance, will not be considered an acceptable /reasonable explanation for a
confirmed positive laboratory report for marijuana and will be reported by the Medical
Review Officer as a verified positive drug test for marijuana because such use is in violation
of Schedule I of the Controlled Substances Act.
Procedurally, the Medical Review Officer will not continue an interview with the donor or
conduct a further medical/legal review to determine whether the donor’s claim of alleged
use is consistent with a particular state marijuana law or ordinance if the donor claims his
or her use is authorized by a marijuana law. Instead, the donor will be informed that the
employer's policy is to not accept a medical marijuana explanation and that the Medical
Review Officer will report the result as positive with notice to Company
Contact/Designated Employer Representative of the reason.
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Policy Language Thoughts:
Legal Counsel to be Consulted
[Company’s] Medical Review Officer will not accept a Medical Marijuana,
Marijuana Extract, or a Legalized/Recreational Marijuana explanation for a
positive drug test even where permitted by state law, regulation or ordinance.
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31. Thereafter the [Company] will:
• Consider state law, regulations and ordinance requirements/limitations and
exceptions relative to disciplinary consequences.
• Conduct an individualized assessment related to the applicant or employee’s
ability to perform required job functions.
• Conduct a reasonable accommodation review as applicable or as required by the
federal and state Americans with Disabilities Law and any applicable state law,
regulation, ordinance or case law/administrative decision precedent.
Company’s Medical Review Officer cannot and will not accept a medical,
legalized/recreational or marijuana extract (such as Cannabidiol) explanation for
Federal and DOT testing programs. Such confirmed laboratory drug test results will
be verified by Company’s Medical Review Officer as a verified positive drug test.
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(Continued) Policy Language Thoughts:
Legal Counsel to be Consulted
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32. • Consult with your legal counsel in the context of your organization’s risk
tolerance position and legal risk mitigation strategy.
• Include clear information about your organization’s position on medical
marijuana, including marijuana extracts and oils such as Cannabidiol as well as
legalized/recreational marijuana in your organization’s Drug and Alcohol Testing
Policy.
• Watch the state and federal laws carefully and do not take adverse
action or impose disciplinary consequences against an employee or
applicant that makes a medical marijuana claim without consulting legal
counsel.
• Consider Equal Employment Opportunity Commission (EEOC)
Guidance (individualized assessment), consider job functions, and do
not overlook American with Disabilities federal and state law
implications.
• Monitor state and federal rulemaking/regulations and guidance.
Best Practices
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33. • Going To Pot, Why The Rush To Legalize Marijuana is Harming America, Bennett, William J. and White, Robert
A., Center Street Hachette Book Group, 2015.
• Weed the People, The Future of Legal Marijuana In America, Barcott, Bruce, Time Books, 2015.
• http://www.transportation.gov/odapc, Office of Drug and Alcohol Policy and Compliance, Retrieved,
September 20, 2015.
• The Marijuana Report.Org, Retrieved September 20, 2015.
• Click on “Legal Efforts—State Name” press coverage of ballot initiatives to
• legalize marijuana for recreational use, medical use, decriminalization, and
• legalize hemp in various states. Updated daily. National Families in Action.
• http://norml.org/laws/ Norml.
• http://transit-safety.volpe.dot.gov/publications/substance/RxOTC/RxOTC_April2011_Feb2012_Update.pdf,
Retrieved September 20, 2015.
• A Protocol to Evaluate Drug-Related Workplace Impairment, Reisfield, Gary P, Shults, Theodore, Demery,
Jason, DuPont, Robert Journal of Pain & Palliative Care Pharmacotherapy, J Pain Palliat Care Pharmacother
2013 27:43-48.
• http://event.onlineseminarsolutions.com/eventRegistration/EventLobbyServlet?target=lobby.jsp&eventid=10
29849&sessionid=1&partnerref=webinarpage&key=E3C4576F5FBFF86D371C8B5DB614A46A&eventuserid=12
4655087 www.fadv.com, What are they smoking now? First Advantage Webinar, September 2015.
Sources and Resources
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34. 1. What is the Cannabis Conundrum?
2. What is the current public opinion and politics of
cannabis?
3. What is the difference between State Law vs. Federal Law?
4. Which states are passing which laws?
5. What about case law?
6. Trending: How do other leading-edge companies balance
their legal risk concerns with their commitment to a Drug
Free Workplace?
Today’s Discussion Questions:
3434

35. Thank you!
Any questions? Contact:
First Advantage
844.317.5232
solutions@fadv.com
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