Wednesday, April 15, 2015

Marijuana: Maryland Law & Causes of Action

I.                   Pertinent Legislation

Maryland has several pieces of legislation which govern the possession and use of Marijuana for both medical and non-medical purposes.  The first piece of legislation is Maryland’s 2003 Compassionate Use Act HB 702 (2003)/SB 502 (2003), which was amended in 2011 by SB 308 (2011)/HB 291 (2011).  The Compassionate Use Act provided a “medical necessity defense” which could be used to limit criminal sentences for marijuana possession.  This act, however, was limited, and Maryland courts noted that it “clearly contemplates a conviction of use or possession of marijuana.”  Jefferson v. State, 883 A.2d 251, 254 (Md. Ct. Spec. App. 2004).  In other words, “the General Assembly did not put its imprimatur on the medical use of marijuana.”  Id. (internal quotation omitted).  The 2011 amendment expanded these protections, indicating that individuals who can provide “clear and convincing evidence” that they need marijuana for medical reasons are “not guilty” of any crime.  See SB 308 (2011)/HB 291 (2011).

The second statute, enacted with the passage of HB 1101 in 2013, is Md. Code Ann. Health-General § 13-3301 et seq., which established the Natalie M. LaPrade Medical Marijuana Commission.  The Commission was established effective October 1, 2013 to regulate the distribution of medical marijuana in Maryland and to study the medical efficacy of marijuana.  However, the statute, as originally enacted, limited distribution to teaching hospitals.  Due to the federal prohibition on marijuana, no teaching hospital participated in the program.  Accordingly, the legislation was amended in 2014 by the passage of SB 923/HB 881 to permit an expanded list of entities to prescribe and distribute marijuana.  The amendments also authorize the Commission to issue fifteen growing licenses.  

Finally, and most significantly, Maryland Governor Martin O’Malley signed SB 364 on April 14, 2014 which removed criminal penalties for possession of small amounts of marijuana.  This act, which became effective on October 1, 2014, replaced criminal penalties with civil fines.  

II.                So Is Marijuana Legal?

In Maryland, the law distinguishes between “medical” marijuana and marijuana used for many other purposes.  Like other prescription drugs, marijuana is only legal if the an individual possesses a valid prescription.  Possession of marijuana without a prescription – for example, recreational marijuana – remains prohibited by Maryland law.  The bill signed by Governor O’Malley did not “legalize” marijuana – it merely removed criminal penalties for possession of small amounts of marijuana and replaced those penalties with civil fines.  Possession of larger amounts of marijuana can still lead to criminal penalties, and, even for possession of smaller amounts, repeat offenses can lead to increased fines and mandatory drug treatment.

Perhaps more importantly, Marijuana remains illegal under federal law.  The United States government has listed marijuana on “Schedule I” of the Controlled Substances Act, 21 U.S.C. § 801 et seq.  Drugs listed on Schedule I are those which are considered to have “a high potential for abuse,” “no currently accepted medical use,” and “lack accepted safety.”  Other Schedule I substances include Opioids and Opium derivatives, such as Heroin, as well as other drugs with severe hallucinogenic, stimulant, or depressant properties.  Cannabimimetic agents, such as marijuana, are a separate category of drugs and are listed separately on Schedule I. 

One consequence of the fact that marijuana remains illegal on the federal level is that it falls within the scope of the Drug Free Workplace Act, 41 U.S.C. § 81.  The Drug Free Workplace Act applies to employers who: 1) have contracts valued at $150,000.00 or more with the federal government; or 2) receive any amount of grant money.  Covered employers are required to publish policies which prohibit the use of illegal drugs, discipline those who violate its policy, and report drug-related crimes in the workplace.  Sanctions for non-compliance include the termination of federal contracts or grant moneys, giving employers a strong incentive to avoid any appearance of tolerating drug use.

III.             Potential Causes of Action

a.      Recreational Use

Although it has been decriminalized, the Maryland legislature has chosen, at least for the time being, to leave in place certain penalties for the possession of “small” amounts of marijuana for non-medical use.  The situation which now obtains with regard to non-medical marijuana is thus analogous to that which existed in 2004 with regard to medical marijuana – that is, the legislature has substantially reduced the penalties associated with the drug, but has not give its “imprimatur on the…use of marijuana.”  Jefferson, 883 A.2d at 254.  As such, and especially given that marijuana remains illegal on the federal level, it is unlikely that an employee who uses recreational marijuana, and is subsequently disciplined or terminated by her employer, will be able to bring a successful lawsuit challenging the employer’s action.

b.      Medical Marijuana

Unlike non-medical marijuana, marijuana which is prescribed by a doctor for a qualifying medical condition has been largely legalized, at least under Maryland state law.  In Maryland, an employer may not discriminate against any individual because of that individual’s disability, and may also not fail or refuse to make a reasonable accommodation for the known disability of an otherwise qualified employee.  See Md. Code Ann. State Gov’t. § 20-606(a)(1), (4).  Many medical conditions treatable with marijuana, such as glaucoma and epilepsy, qualify as “disabilities” under the Maryland statute.  The determinative issue in such cases is likely to be whether marijuana use is a “reasonable” accommodation to an individual’s disability.

Maryland has not yet addressed this, and many other, issues surrounding the implications of its medical marijuana laws.  That said, an employer faced with the loss of federal grants or contracts for permitting the use of medical marijuana could likely argue that the requested accommodation constituted an “undue burden”.  This is especially true if other medications are capable of treating the individual’s condition. 

In the absence of such contracts or grants, and assuming that an employee was not “under the influence” (i.e. impaired) at work, they will undoubtedly attempt to maintain a claim for failure to accommodate a disability in the event that they were terminated or disciplined for off-duty marijuana use.  Md. Code Ann. State Gov’t § 20-606(a)(4).

Maryland courts have not yet had the opportunity to pass on whether such a claim is permissible.  However, most courts to address the issue have concluded that, absent a statutory command to the contrary, employers remain free to set their own drug policies, and may discipline or terminate employees who violate those policies.  SeeCoats v. Dish Network, 2013 COA 62 (Colo. Ct. App.  2013), cert. granted (Court held that medical marijuana is not a  “lawful activity” under CO statute because activity must be legal under  both state and federal law); Casias v. Wal-Mart, Inc. 695 F. 3d 248 (2012) (Court held that the Michigan Medical Marijuana Act does not regulate private employment); Roe v.Teletech Customer Care Management LLC,  171 Wash 2d 736(Wash. Sup. Ct. 2011) (Court held that Washington’s  Medical Use of Marijuana Act did not regulate private employer’s conduct  and employee who used medical marijuana had no claim for wrongful  discharge); Beinor v. Industrial Claim Appeals Office, 262 P.3d  970 (Colo. Ct. App. 2011), (Court found that Colorado’s medical  marijuana amendment provided an affirmative defense to criminal  prosecution but did not preclude denial from unemployment benefits after  plaintiff was terminated for violating employer’s zero tolerance drug  policy); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries,  224 P.3d 518 (Ore. 2010) (Court found that under Oregon's employment  discrimination laws, employer was not required to accommodate employee's  use of medical marijuana); Ross v. RagingWire Telecommunications, Inc., 174  P.3d (Cal. 2008)(Court held that state law cannot completely legalize  marijuana for medical use because it is illegal under federal law); but see Arizona Revised Statutes 36-2801, 2813 (2104) (“An  employer may not discriminate against a person in hiring, termination  or imposing any term or condition of employment….for a registered  qualifying patient's positive drug test for marijuana components or  metabolites, unless the patient used, possessed or was impaired by  marijuana on the premises of the place of employment or during the hours  of employment.”).  

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