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Out of Joint: How the Growing Disconnect Between Federal and State Marijuana Laws Impacts Businesses



Tuesday, May 14, 2013
1:00 PM - 2:30 PM ET
Product Code - LGA144
Speaker(s): Barbara L. Johnson, Paul Hastings LLP; Lewis Maltby, National Workrights Institute
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This program will explore whether the legalization of marijuana will affect an employer’s right to discipline employees for the recreational use of the substance. State and federal courts have routinely upheld an employer’s right to discipline employees who test positive for marijuana in violation of a company’s substance abuse policy, even when the positive test results from the use of marijuana for medicinal purposes. The federal Controlled Substances Act (CSA) (21 U.S.C. § 801 et seq.) strictly prohibits the possession and use of marijuana. The United States Supreme Court has held that possession of marijuana is illegal under the CSA regardless of whether a state allows the use of medical marijuana. Gonzales v. Raich, 545 U.S. 1, 27-29 (2005). Similarly, the Sixth Circuit has held that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 437 (6th Cir. 2012). Employers have relied on these court holdings and federal law when dealing with employees who test positive for marijuana. However, last year, voters in Colorado and Washington passed initiatives legalizing the recreational use of marijuana. Other states are expected to follow suit, especially if taxation of marijuana sales proves to be a source of revenue that cash-strapped state and local governments can tap into.

The faculty will present both employer and employee perspectives and will provide an overview of the legal landscape for workplace substance policies, with a special focus on how the legalization of marijuana affects drug testing. Participants will learn about the on-going obligations of some employers to maintain a drug-free workplace and to test for marijuana, even in those states where marijuana is legal. The program will include a discussion of the applicability of various employment laws, such as the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), to employees who use marijuana.

Educational Objectives:

• Find out about suggested revisions to substance abuse policies and communications to employees now that marijuana is legal in certain states.
• Learn how to handle positive drug tests for marijuana when an employee presents a “prescription” for medical marijuana or claims that a positive test results from the medicinal use of marijuana or from a long-ago use, such as in the case of “hair testing.”
• Understand how to analyze the applicability of employment laws, such as the Americans with Disabilities Act, to employees who use marijuana.
• Find out about the preemptive relationship between state and federal laws in this area.

Who would benefit most from attending the program?

Human resources managers; in-house employment law counsel; privacy officers; traditional labor attorneys; arbitrators; managers responsible for administering workplace drug testing programs.

Program Level: Intermediate

Credit Available: CLE. For more information, please click on the “CLE Credit” tab.

Barbara L. Johnson, Paul Hastings LLP; Lewis Maltby, National Workrights Institute

Barbara L. Johnson, Paul Hastings LLP
Barbara L. Johnson is a partner in the Employment Law practice of Paul Hastings and is based in the firm’s Washington, D.C. office. She is a nationally known employment jury trial and class action lawyer representing employers. Ms. Johnson regularly tries cases in various state and federal courts, raising issues of alleged race, age, gender, and disability discrimination, wage and hour violations retaliation, breach of contract, and various employment torts. She has tried more than 30 employment law cases and provides employment law advice, handles administrative matters before state and federal agencies, and conducts investigations into all types of workplace matters. In addition to her employment law trials, Ms. Johnson has litigated ERISA, Sarbanes-Oxley, premises liability, toxic tort, environmental racism, and business tort cases. Before joining Paul Hastings, Ms. Johnson was a shareholder in a minority owned litigation boutique in Houston, Texas and in-house counsel with a major chemical company.

Ms. Johnson earned a J.D. from William & Mary Law School and a B.S. from Hampton University.

Lewis Maltby, National Workrights Institute
Lewis Maltby is president and founder of the National Workrights Institute. He is the former head of the ACLU's national workplace rights office and is quoted frequently in the media. He is a member of the American Arbitration Association; the New Jersey Civil Court Mediation Program; and the International Mediation Institute. Mr. Maltby is listed on the roster of neutrals of Cornell University’s Scheinman Institute on Conflict Resolution.

Mr. Maltby earned a J.D. from the University of Pennsylvania Law School and a B.A., cum laude, from the University of Pennsylvania. He has written and lectured extensively in the area of employment law.

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska, and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator.

Hardship Policy
Bloomberg BNA offers a hardship policy for attorneys earning less than $50,000 per year. If an attorney wishes to take advantage of this option, he or she must contact Bloomberg BNA directly. For attorneys who are unemployed or earning less than $35,000 per year, a full discount off the price of the program will be awarded upon written proof of hardship. Attorneys earning between $35,000 and $50,000 per year will receive a 50% discount off the price of the program. Any attorney working in the public service sector also qualifies for a special price. If you have further questions regarding the hardship policy or seek additional information, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditations Coordinator, or email us at accreditations@bna.com.

Questions
For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at http://www.abanet.org/cle/mandatory.html.

• Bloomberg BNA Subscriber - Webinar and OnDemand formats $149
• Non-Subscriber - Webinar and OnDemand formats $224
• CD with webinar registration $75
• CD without webinar registration $224 / $149

Only paid registrants are eligible for CLE credit for both webinars and OnDemand offerings.

Registration for Legal & Business programs is simple. You may either visit the registration page to register –or– call 1-800-372-1033, Option 6, and refer to the date and title of the program. Lines are open Monday through Friday from 8:00 a.m. to 8:00 p.m. ET.