Medical Marijuana: Current Issues for Camps

Catherine Hansen-Stamp and Charles R. Gregg ©2011*

Introduction

A call recently came into the American Camp Association (ACA) Crisis Hotline from a member camp: Three adults attended a family camp and brought medical marijuana with them. Upon arrival, they advised camp staff that the marijuana was in their possession in compliance with their state’s medical marijuana laws. Camp staff were uncertain as to how to address the issue in light of the camp’s “no smoking” policy, its rules against illegal drug possession or use on the premises, and the possibility that use of the drug might affect the user’s ability to participate in family camp activities. As a result, ACA’s CampLine staff asked that we address the use of medical marijuana. While the subject is novel — new and unusual, in our experience — it is important in itself, and for what we might learn in other circumstances when a camp, committed to inclusivity and opportunities for personal development — as well as compliance with the law — is confronted with the prospect of illegal activity or danger to camp staff and participants.

For those of you who may be unfamiliar with this issue, in the last few years, several states — by one count, fifteen1 — have passed laws allowing marijuana use for medical purposes, in limited circumstances. These laws have created confusion in many areas and conflicts with other state or federal laws. Our focus will be use by adult staff and participants, but we will also touch on use by minors. Our effort here is to highlight some of the current issues, raise your awareness, and give you insight into ways to prepare for these issues before they arise in your camp community.

The Issues

So, what are the issues? Significantly, camps may have an individual applying for a staff position or an existing staff member who currently uses or expects to use medical marijuana. Their desire (they may consider it a need) to use the marijuana, either on camp premises or off, can conflict with a camp’s drug free workplace and “no smoking” policies. In addition, those engaging in marijuana use for medical purposes will likely test positive as part of any camp staff drug testing. Furthermore, use of medical marijuana, depending upon the timing of the use, will likely impair the individual’s ability to conduct their job functions, and impact camper safety. Consider, for example, a staff member who is required to drive a camp vehicle, lead a climbing activity, supervise or facilitate the camp zip line, or conduct other activities that require motor dexterity and clear judgment. Adult or minor campers will bump up against the same rules — including any “no smoking” or use of illegal drug policy. And, just as clearly, if a camper is actively engaged in using medical marijuana while at camp, such use will likely affect the camper’s ability to responsibly participate in camp recreation and adventure activities — affecting the camper’s own well-being and the well-being of his or her co-campers. Think: participation in a high element challenge course, zip lining, climbing, biking, or swimming.

The Law

The law is in a state of flux, as courts deal with issues around the use of marijuana for medical purposes. A short discussion of these laws will put this issue in perspective.

Federal Controlled Substances Act (CSA)2

The CSA encompasses a broad and comprehensive set of laws governing controlled substances. Drugs are classified into “schedules,” considering various factors. Marijuana is considered a “Schedule I” controlled substance — and unlike other “scheduled” drugs, allows no exception for “medical use” or possession via a “prescription.” Schedule I drugs are considered to have a “high potential for abuse,” and, according to the CSA, there is a “lack of accepted safety for use of the drug under medical supervision.”3 As a result, under the CSA, the use, possession, etc., of marijuana (and other Schedule I drugs) is generally illegal.4 The CSA reflects a decision by the U.S. Congress to create a “. . . comprehensive, closed regulatory regime that criminalizes the unauthorized manufacture, distribution, dispensation, and possession of controlled substances,”5 whether those drugs are used or possessed intrastate (within one state) or taken interstate (over state lines).6 The decision to make the CSA so comprehensive was in an effort to aggressively support the war on drugs.7

State Laws Regarding Medical Marijuana

According to one authority, Alaska, Arizona, Colorado, California, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Washington, Rhode Island, and Vermont have passed laws allowing for the lawful use of marijuana for medical purposes. Roughly thirteen states are currently considering the passage of similar laws.8 Generally, these laws provide that the medical use of marijuana is exempted (or provided some limited protection) from state criminal laws regarding the use and possession of marijuana. Laws likely vary in their scope. Colorado’s, for example, provides that an individual suffering from a “debilitating medical condition” must get a letter from a licensed “physician,” certifying that the patient’s condition is indeed debilitating (all quoted terms are defined by the law) and that the patient would benefit from the medical use of marijuana. This physician letter then entitles the individual to obtain a medical marijuana “registry identification card” for the lawful purchase and use of medical marijuana. If certain conditions are met, minors (those, in Colorado, under the age of eighteen) can also use medical marijuana. The Colorado law contains a variety of limitations (common to similar legislation in other states) that prohibit the use of medical marijuana, for example: 1) in a way that endangers the health and well-being of a person, 2) that is in plain view of or in a place open to the general public, 3) that involves undertaking any task while under the influence of medical marijuana, when doing so would constitute negligence or professional malpractice, 4) in any vehicle, aircraft, or motorboat or if operating any vehicle, aircraft, or motorboat while under the influence of the drug.9

The critical problem with these state laws is that although they may protect the medical marijuana user from criminal prosecution under state law, they do not protect the user from prosecution under federal law. As discussed above, the CSA prohibits the use or possession of marijuana — a Schedule I controlled substance — and an illegal drug. The U.S. Department of Justice (the attorneys who prosecute individuals for violation of federal laws, like the CSA) have issued guidelines for their prosecutors advising that they will not focus their resources in the war against drugs to prosecute, for example, a long-term cancer patient using medical marijuana pursuant to an applicable state law. This relaxed focus, however — and this is important for our readers to understand — does not change the fact that marijuana remains an illegal drug.10 As the California Supreme Court stated: “No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users.”11

State Court Decisions

In the last three years, courts in at least four different states (three of those from that state’s highest court), have issued opinions ruling, in different fact settings, that the use of medical marijuana by a staff member, even when the use is off of the employer’s premises, is not protected, in light of, among other things, conflicting federal law (the CSA). In three of these cases, the staff member tested positive for marijuana, following the employer’s mandatory drug test, and was fired.12 In the case of Oregon Steel13, the employee disclosed to his employer that he was using marijuana for medicinal purposes, in conformity with that state’s medical marijuana law. He, too, was fired. In two of these cases, the terminated employee filing suit claimed, essentially, under state and/or federal anti-discrimination laws (including the Americans with Disabilities Act [ADA]), that it was unlawful to terminate the employee for the legitimate use of the drug to alleviate a medical condition.14 The argument is often that the employee is using medical marijuana to address a current “disability” and that the use of the drug is a “reasonable accommodation” required of the employer. Title I of the ADA, for example, requires employers covered by the law to allow reasonable accommodations for employees suffering from protected disabilities, if those accommodations allow the employee to perform the essential functions of their job. State disability laws contain similar provisions.15 In Oregon Steel, the employee made just this argument. The Oregon Supreme Court reversed the lower court’s ruling, finding that the employer had not discriminated against the employee under Oregon’s disability rights law. The court noted that the protections provided under both Title I of the ADA and Oregon’s companion state disability rights law do not apply to individuals currently engaging in the illegal use of drugs.16 The court reasoned that because the federal CSA had imposed a blanket prohibition on the use of marijuana, without regard to whether it is used for medicinal purposes, conflicting state law (Oregon’s Medical Marijuana Act) was “without effect” — as marijuana remains an illegal drug under federal law.

A common theme running through these cases is that under the supremacy clause of the U.S. Constitution, the federal CSA preempts conflicting state law — and the use and possession of marijuana is a federal crime. The reasoning is that employers are thus entitled, for example, to fire employees that use marijuana, or that may possess it on their premises. (Colorado’s medical marijuana law specifically states that “nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.”17) Some states, including California, are attempting to enact state laws that address this issue — that is, to protect employees from being terminated for “lawful” (at least under that state’s laws) use of medical marijuana. Other states’ medical marijuana laws already contain these types of provisions, but the laws have not been tested. However, without a fundamental revision of the federal CSA, allowing for the use of marijuana for medicinal purposes, it appears that these state efforts will continue to fail in the face of the CSA’s clear mandate.18

Other Laws

The Department of Transportation requires mandatory drug testing for those holding a commercial driver’s license, and prohibits drivers from using CSA Schedule I drugs (including marijuana).19 The premise of the federal Occupational Safety and Health Act (OSHA) is that employers will commit to providing a safe work environment.20 The Drug-Free Workplace Act of 1988 requires federal agency contractors and grantees to certify that they will provide a drug-free workplace as a pre-condition to receiving a contract or a grant from a federal agency.21 Title III of the ADA, which requires private organizations (that must comply with that law) to provide access to programs and services for individuals with disabilities, does not protect individuals (prospective campers, for example) who are currently engaging in the use of illegal drugs.22

What to Do?

Confer with your legal counsel to understand your state’s medical marijuana laws, and state anti-discrimination, disability rights, or other laws, should you be confronted with prospective employees or campers — or existing employees — using or seeking to use medical marijuana. However, it appears that organizations, including camps, will not likely be restricted (for example, by ADA Title I, or state disability rights laws) from terminating employees, or refusing to hire employees who are using medical marijuana pursuant to applicable state law, considering the federal CSA, and the fact that marijuana use, possession, manufacture, and distribution is considered a crime under federal law. Likewise, camper applicants who may be suffering from an ADA protected disability are not protected under the ADA (and many state disability rights laws) if they are currently treating that disability with illegal drugs.

So, what if your camp is approached by a staff applicant, an existing staff member who is using marijuana, or a camper applicant who has brought his medical marijuana with him to camp? Again, work with your legal counsel beforehand to understand the laws, and have a plan in place. The law seems clear, even in states that have passed medical marijuana laws, that an employer can refuse to hire, terminate an employee, or refuse to allow a camper to attend, who is currently using marijuana, whether for medical reasons or otherwise.

If you are inclined to accommodate the use of medical marijuana on or off your premises by one of your employed staff, consider the consequences. Even if you choose to allow such use, consider that there is a well-documented body of research identifying that use of marijuana impairs an individual’s ability to function — and that impairment would logically extend to many traditional camp activities (for example, driving vehicles or running a zip line or challenge course) and the supervision of co-workers and campers. This premise is evident in the state medical marijuana laws (as previously discussed) that specifically exclude use of medical marijuana in situations where it might impair another’s safety, etc., as well as in the federal CSA determination to list marijuana as a Schedule I controlled substance. Interestingly, according to one expert, the marijuana (medical or otherwise) available today is many times stronger than that available a decade or more ago.23 Camps are about providing adventure and recreational opportunities for campers, oftentimes in an outdoor or wilderness setting. Camps inclined to support individuals’ use of marijuana should proceed very cautiously, considering the risk management issues associated with its use — whether the user is a staff member or a participant. A camp may decide to “accommodate” a staff member’s medical marijuana use off the premises (as allowed by the state’s laws). If the staff member comes to work still under the influence, and a camper under his or her supervision is hurt as a result, litigation may result, exposing the camp to a variety of claims. The staff member would be in violation of the CSA and, in addition, has likely violated the conditions of the applicable state law (e.g. see limitations in Colorado’s medical marijuana law, previously described).

Stay tuned, as the evolution of these issues continues.

*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail rgregg@gregglaw.net; www.rebgregg.com

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com

Notes

  1. Rights of Medical Marijuana Users in the Workplace, Arizona State University Law Journal, May 30, 2011.
  2. 21 U.S.C. 801, et seq.
  3. 21 U.S.C. 812(b)(1).
  4. The CSA prohibits all use of Schedule I drugs with the only exception being use of a Schedule I drug as part of a Food and Drug Administration preapproved research project. See 21 USC § 823(f).
  5. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Ore. Supreme Court, 2010).
  6. 21 U.S.C. 801.
  7. Id.
  8. Id, supra note 1.
  9. See Colorado Constitution, Article XVIII, Section 14 (2011); 5 CCR 1006-2 — Rules and Regulations Pertaining to Medical Use of Marijuana (2011).
  10. U.S. Department of Justice Memo and Guidelines dated October 9, 2009, to selected state U.S. Attorneys, from David W. Ogden, U.S. Deputy Attorney General.
  11. Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. Supreme Court 2009)
  12. Roe v. Teletech, et al., 2011 Wash. Lexis 393 (Wash. Supreme Court June, 2011); Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914 (U.S.D.C. Mich. February, 2011); Emerald Steel, supra note 5; Id, Ross.
  13. Supra note 5.
  14. The other two cases alleged wrongful termination in violation of that state’s medical marijuana laws and “public policy.”
  15. Emerald Steel discusses such language in Oregon’s state disability rights law, supra note 5.
  16. ADA Title I, 42 U.S.C. 12114(a).
  17. Id, supra note 9, Colorado Constitution, part 10.
  18. Some commentators believe that state disability laws may provide protection. See footnote 1.
  19. In a 2009 “DOT Office of Drug and Alcohol Policy Compliance Notice” the DOT clarified that its longstanding regulations requiring mandatory drug and alcohol testing for DOT regulated drivers do not authorize “‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result” (49 CFR Part 40, at 40.151(e)). The Notice continued: “therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana.’ Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana. We want to assure the traveling public that our transportation system is the safest it can possibly be.” Apparently, the DOT had received questions following the Department of Justice’s issued guidelines (see supra, note 10), indicating that federal prosecutors would not make it a priority to prosecute those using medical marijuana pursuant to applicable state law.
  20. 29 U.S.C. 651, et seq.
  21. 41 U.S.C. 701, et seq.
  22. 42 U.S.C. 12210 (“illegal use of drugs” is defined in ADA Title III regulations as those drugs that are defined as unlawful under the federal CSA — see 28 CFR 36.104); this is similar to the Title I restriction, described in the text accompanying note 15, above.
  23. August 23, 2011 telephone conversation with Lynn Reimer, www.actondrugs.com. (Act on Drugs, Inc. is a nonprofit company organized to provide drug awareness and prevention training for communities.) Ms. Reimer has over ten years of experience in narcotics and has been recognized as a national expert.

 

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