Marijuana Revisited

Catherine Hansen-Stamp and Charles R. Gregg
March 2018
gavel

I. Introduction

We last wrote on the subject of camps and marijuana use in the fall of 2011, following a variety of camp concerns and inquiries to ACA's Hotline. At that time, camp managers, and the rest of us, were concerned about the apparent conflicts between federal laws pertaining to controlled substances and a few states' laws permitting the use of marijuana (cannabis) for medicinal purposes. See: Medical Marijuana: Current Issues for Camps1, and an American Camp Association summary citing to our article.

Since our 2011 article, a significant number (at least 29) states have joined those allowing medical marijuana, and at least seven states now allow, with some variations, the use, possession, growing and sale of marijuana for purely recreational purposes. (See: State Marijuana Laws in 2018 Map - Governing and State Medical Marijuna Laws - National Conference of State Legislatures.) By way of example, as of January 2018, California is issuing licenses to allow the growth, transport, and sale of marijuana for recreational purposes, some 20 years after first allowing the use of marijuana for medical purposes. The early tension between state and federal laws continues, vacillating between federal deference to such state laws and aggressive action against violators.

Camps are challenged to know how to proceed when a staff member, camper, or other visitor (including rental group staff and campers) asks to be allowed to use marijuana on the camp's premises. Other challenges include staff who use marijuana off camp premises, but whose use may be reflected in random drug testing or impairment during work hours.

II. Refresher — Legal Issues

First, a brief refresher regarding laws related to the use of marijuana — medical or otherwise. Marijuana is a scheduled drug (Schedule 1) under the federal Controlled Substances Act of 1970 (CSA). Under that law, marijuana (along with other Schedule 1 drugs) is deemed to have a high potential for abuse and no accepted means of safe use under medical supervision. Accordingly, the CSA comprehensively prohibits its use, manufacture, distribution, dispensing, or possession for any purpose. Violators of the Act are subject to monetary penalties and imprisonment.2

As noted above, the majority of states now allow marijuana for medical purposes, and several for recreational purposes — an awkward situation for, under the Supremacy Clause of the US Constitution, federal law prevails in the event of a clear conflict with a state's laws.3

In his 2008 campaign for the presidency, Barack Obama signaled an intent to scale back the enforcement of the CSA as it pertained to medical marijuana. In fact, in December 2014, after a good bit of haggling in congress, the Rohrabacher-Farr Act was passed, prohibiting the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws. Adherence to this Act has been inconsistent. Penalties, raids, and imprisonments continue to be a threat, and efforts to more formally relax the application of the CSA have routinely failed, even in the face of evidence of the medical benefits of cannabis. The current Department of Justice has indicated an intent to follow the practice of President Obama's Attorney General, declaring that a state can legalize marijuana "for its law enforcement purposes," but the federal law remains in effect — that is, marijuana is an illegal substance under federal law and federal prosecutors will continue to prosecute those in violation of the law, as it sees fit. The confusion continues.4

III. Issues for Camps Conundrum


Conundrum

The problem for camps confronted with the prospect of marijuana use is two-fold: 1) may a camp legally deny such use; and 2) if a camp permits such use, how can it best manage the risks of doing so (including the risk of criminal and civil liability)? These issues impact the camp's staff employment and camper enrollment policies, in addition to a camp's endeavor to manage the risks of harm to campers, visitors, and staff. As we discussed in our 2011 CampLine article, the staff member, camper, or other visitor is expected to engage in camp activities with motor function and mental acuity (absent legitimate program modifications for an individual with a disability). On the flipside, organizations, including camps, may be tempted to "turn a blind eye" to marijuana use, reasoning that since it has been "legalized" in so many states, it can't be that bad. Organizations may believe that if they adopt a strict no-drugs policy, or aggressively enforce their existing policy, they may have very few employees left! Another concern may be a fear that state marijuana laws as well as anti-discrimination laws, may raise barriers to enforcing an explicit workplace "no drugs" policy. Alternatively, camp management may believe that a staff member's off duty medical marijuana use is necessary for that employee's well-being on the job.5

Some Realities

Impairment
There is no question that marijuana use can result in significant impairment, regardless of whether the use is medical or recreational. The National Institute on Drug Abuse reports serious impairment issues affecting both the mind and body, including an altered sense of time, impaired or delayed body movement, difficulty in thinking and problem solving, and, with high doses, hallucinations or delusions. Recent studies also show that marijuana affects brain development in youth. Disturbingly, the primary (and mind-altering) cannabinoid in marijuana, delta-9 tetrahydrocannabinol (THC), is significantly more concentrated now than in the recent past — and even more so when it is extracted from marijuana in the form of a resin (a practice frequently referred to as "dabbing").6 Importantly, depending upon a variety of factors, impairment can last from a shorter period to up to one to three days. Studies have shown a correlation between marijuana use and a significant increase in workplace absenteeism and on-the-job incidents and injuries, and a decrease in productivity.7

Protections for Employers in State Marijuana Laws
Some states provide protections for employers within their laws legalizing marijuana. Colorado, for example, provides with regard to laws legalizing medical use of marijuana: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace" and in its laws legalizing recreational use of marijuana: "Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees," and among other restrictions, prohibiting driving under the influence or while impaired [by marijuana].8 If your state has legalized marijuana, you and your legal counsel should be aware of any such protections.

Protections in Other Federal Laws
As we discussed in our 2011 article, certain federal laws expressly provide protection to organizations. For example, Titles I and III of the Americans with Disabilities Act (ADA) requiring, respectively, employers and private organizations not to discriminate against individuals with disabilities, does not protect individuals (employees or prospective campers, for example) who are currently engaging in the use of illegal drugs.9 In addition, 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.10 Other federal laws may come into play (see our 2011 article). The goal is often a "safe" work environment.11

Varying Court Legal Interpretations
Our 2011 article identified several cases where courts held that state marijuana, anti-discrimination, or other laws were pre-empted by the CSA, or otherwise finding that state law could not prevent an employer from enforcing anti-drug policies with its staff.12 Consistent with those cases, recently, in Brandon Coats v. Dish Network, LLC, the Colorado Supreme Court upheld the firing of an employee for off-duty use of medical marijuana (he tested positive at work). The worker claimed that such use was allowed by a state "lawful activities" statute which prevented discriminatory or unfair employment practices in terminating an employee for "lawful activities" off the employer's premises. The court cited federal law, and its supremacy over state law, in finding that use of marijuana was illegal under the CSA, and so was not a "lawful activity" off premises.13

Recent cases out of other states have taken different directions, giving some strength to state laws. In an interesting 2017 case, the Massachusetts Supreme Court found that an employer unlawfully discriminated against an employee who was fired after testing positive for (off-duty) medical marijuana use. Massachusetts has a state law legalizing the possession and use of marijuana for medical treatment, but the court acknowledged that an individual using marijuana in compliance with that law was nevertheless subject to criminal prosecution under the CSA. Against that backdrop, the court found the employer acted illegally in terminating the employee. The illegal conduct of the employer, however, was not the firing for marijuana use — it was its failure to attempt to accommodate (under a state handicap antidiscrimination law), the employee's handicap (Crone's disease). Under that disability law, the court found that the employee had a legitimate claim for handicap discrimination, as the employer was required to engage in an interactive process with her, before termination, to determine whether it could make a reasonable accommodation consistent with its drug policy (which it had not). The court went on to find that in this case, since there was no reasonable alternative to medical marijuana for this employee (based upon her physician's opinion), the employer was entitled to make an exception to its drug policy to allow the off-site use of marijuana — which, in these circumstances, the court found to be a "facially reasonable accommodation." The case was sent back to the lower court to determine whether other aspects of the disability law might relieve the defendant of its obligation to provide accommodation to the employee.14 Recent cases out of Rhode Island and Connecticut have also ruled in favor of employees, upholding claims brought by medical marijuana users under state laws, and declining to find that the CSA preempted application of those laws.15 In another case, a New Mexico court held that an employer must reimburse an injured worker for his medical marijuana costs, under a state "Compassionate Use Act."16

Issues Camps Face
A camp screening for medical marijuana use or denying such use does not, merely by virtue of that screening or prohibition, violate the ADA. Marijuana is illegal under federal law, and illegal drug use is not protected under the ADA. However, recent state court decisions (examples cited above) make clear the importance of camps working with legal counsel to understand the implications of state anti-discrimination, lawful activities laws or other state laws that may impact the camp's decisions. Any decision to hire or allow accommodation for a staff member who may be using medical marijuana should be considered very carefully. A camp that allows the medical use of marijuana must reasonably manage the risk of harm by strict policies governing the time and circumstances of medication — on or off the premises — and the nature of permitted tasks or activities. In setting these policies/requirements for use, the camp should rely on sound medical expertise and advice — not simply a vague notion of the effects of the drug, or the assurances of the user, regarding, for example, his or her tolerance for the drug. Remember that the rationale behind the federal classification of medical marijuana as a Schedule 1 controlled substance is its potential for abuse and the dangers of its use even under medical supervision.

The camp must carefully weigh the risk that a staff member using medical marijuana may come to work impaired, and thus endanger his own health or well-being or that of campers, visitors, or other staff members. This could occur as the staff member engages in his work duties — leading and supervising activities, driving vehicles, or otherwise. This directly impacts the camp's legal duty of care to protect its campers, and others on its premises, from unreasonable risks of harm.

As reflected above, a camp permitting staff members to engage in the off-premises/off-duty use of medical marijuana cannot be sure that it is immune from CSA penalties, even if the camp operates in a state whose laws permit the use of marijuana. Importantly, consider the camp's own drug policies and any professed intention or required legal obligation to provide a drug-free workplace.

Other issues may arise if the camp allows employees — or campers — to engage in marijuana use (medical or recreational) on its premises. As noted above, camp activities — and simply moving about the premises — might expose a marijuana user to certain harm and cause that user to be a danger to others. Even state laws that allow the use of marijuana frequently prohibit such use when engaged in skilled activities while under the influence, in a way that endangers the health or safety of another. Consider an employee or camper, arguably impaired, on the waterfront, or rifle range, or on a zip line, climbing wall, or challenge course. Importantly, if marijuana use is allowed on camp premises, what if the camp maintains the supply for the user? Is the camp thereby an illegal possessor of the drug? Might the camp be considered an abettor to the crime merely by knowingly allowing the use?

Hiring or enrollment that permits the use of marijuana would certainly violate at least the spirit of the ACA standards, and, more clearly, camp prohibitions against smoking and drug use. And a camp that employs a strict "zero tolerance" drug use policy, but ignores marijuana use at camp (among campers or staff) sets itself up for problems — both in the increased potential for incidents and injuries, and regarding its duty of care. A violation of the camp's own policies may, in the event of an injury or other loss, allow a plaintiff to successfully argue, without more, the violation of a duty of care owed to the injured person.

 An over-arching concern associated with the camp's decisions regarding marijuana is, of course, the camp's mission, its culture, and the relationship of trust it has with its camper families. The camp's reputation is one of its most valuable assets. The camp owes it to itself and its camp community to be clear on its marijuana policies, and firm in enforcing them.

IV. Conclusion

In closing, whether your camp operates in a state that has legalized marijuana or not (and most have, to some degree), work closely with informed legal counsel to:

  • Thoughtfully develop an employee drug policy and consider zero tolerance — incorporating the importance of a drug-free workplace, and consideration of specific ramifications for illegal drug use — including marijuana17. Any drug policy should be crafted carefully and informed by an understanding of state statutes and case law — considering the tension between marijuana's status as an illegal CSA controlled substance and continuing efforts by states to make inroads on employee rights. That being said, any exceptions for medical marijuana use may run a slippery slope — consider with caution!
  • Develop drug policies for campers specifically addressing use or possession of marijuana on camp premises; consider a "zero-tolerance" policy for unauthorized drug use on camp premises, including marijuana18, considering the potential for impairment and other legal issues.
  • Comply with state and federal laws that require a drug free workplace (including the Drug Free Workplace Act of 1988).
  • Consider a drug testing policy for your camp staff, compliant with applicable law. Despite the fact that testing is variable and inconsistent, the science is evolving and can assist the camp in targeting users and managing risks to both staff and campers.
  • Be alert to legislative and legal developments in this rapidly changing landscape!
  • Ask your insurance representative to explain your insurance coverage (or lack of coverage), for losses related to marijuana use (including medical) and how the camp's actions or policies may impact that coverage.

Don't become complacent regarding employee or camper marijuana use. Impairment is real, and the camp must strongly consider the legal and risk management issues associated with "normalizing" marijuana and thinking that because it is now "legal" in most states, it can't be so bad. As discussed above, despite the increased "legalization" of marijuana across the US, federal law still prohibits the use, sale, possession, and distribution of marijuana — and classifies it as a Schedule I controlled (and illegal) substance. Stay engaged and stay tuned!

**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 by email at rgregg@gregglaw.net; www.rebgregg.com.

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

In addition, see the ACA's short summary of issues at: www. ACAcamps.org/resource-library/public-policy/medical-marijuanaand- camps and a very informative article at www.acacamps.org/ resource-library/camping-magazine/dont-let-your-camp-go-potimpacts- policy-challenges-legalized-marijuana-youth-camps.

CSA – 21 U.S.C. 801, et seq.; 812(b)(1) and 844.

3 Id., 21 U.S.C. 903.

4www.washingtontimes.com/news/2017/nov/14/jeff-sessionsclarifies-dojs-mar... U.S. Department of Justice Memo, Attorney General James Cole, August 29,2013; 4/3/17 Letter from Alaska, Colorado, Oregon and Washington Governors to Attorney General Jeff Sessions, and his various responses to those governors dated 7/24/17.

5 12/6/17 Interviews with Lynn Reimer, www.actondrugs.com. (Act on Drugs, Inc. is a nonprofit company organized to provide drug awareness and prevention training for communities) and Jo McGuire, www.jomcquire.org, private consultant, on the board of directors for the Drug and Alcohol Testing Industry Association and co-chairs the Marijuana Education Committee. Both Ms. Reimer and Ms. McGuire are recognized national experts in their field.

6 Id (interviews; see also www.drugabuse.gov/publications/drugfacts/marijuana.

7 ohsonline.com/Articles/2016/02/01/Marijuana-Use-and-Its-Impact-on-Workplace-Safety-and-Productivity.aspx; www.tsssafety.com/wp-content/uploads/2014/10/Colorado-Marijuana-Experien....

8 Colorado Constitution, Article XVIII, Section 14 and 16 (2017).

9 ADA Title III, 42 U.S.C. 12210 - "illegal use of drugs" is defined in accompanying regulations as those drugs that are defined as unlawful under the federal CSA – see 28 CFR 36.104, similar to ADA Title 1 restriction at ADA Title I, 42 U.S.C. 12114(a).

10 41 U.S.C. 701, et seq.

11 See Federal Occupational Safety and Health Act ("OSHA"), 29 U.S.C. 651, et seq.

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 Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Ore. Supreme Court, 2010); Ross v. Raging Wire Telecommunications, Inc., 174 P.3d 200 (Cal. Supreme Court 2009).

13 350 P.3d 849 (Co. Sup. Ct. 2015); see also, People v. Crouse, 388 P. 3d 39 (Co. Sup. Ct 2017), where the court reached a similar finding in a criminal case, holding that a state law allowing officers to return seized medical marijuana to an acquitted patient is in direct conflict to (and preempted by) the CSA which prohibits the distribution of marijuana.

14 Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (MA Sup. Ct. July, 2017).

15 Both cases involved an employer who declined to hire the individual and involved various claims. See, Callaghan v. Darlington Fabrics Corp, 2017 R.I. Super. Lexis 88 (May, 2017); Noffsinger v SSC Niantic Operating Co. LLC, 2017 U.S. Dist. Lexis 124960 (CT U.S. Dist. Ct., August, 2017); 16 Vialpando v. Ben's Auto. Servs., 331 P. 3d 975 (N.M. Ct. App. 2014).

17 Although marijuana may be "legalized" under a state law, it remains illegal under Federal law, per the CSA.

18 See above note. The camp's policies will allow for certain drug use – that is, a camper's authorized prescriptions or other medications – via its medical and health processes. Unauthorized substances would include illegal drugs, like marijuana, or a camper's unauthorized use of prescription drugs, narcotics or other substances, like alcohol.