Pubdate: Mon, 30 Mar 2015
Source: Albuquerque Journal (NM)
Copyright: 2015 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Marshall Martin
Note: Attorney Marshall G. Martin is in private practice in 
Albuquerque. He has experience in complex litigation, including 
securities, antitrust and lender liability law. He also has 
represented banks and private and public companies.

LEGAL ARENA SORTING THROUGH LEGALIZED POT

As Marijuana Becomes Increasingly Acceptable, Contradictory Federal 
and State Laws Raise Numerous Issues, Ignite Disputes

Marijuana has evolved from a substance that a former U.S. president 
"tried but never inhaled" to a state tax bonanza, exotic medical 
treatment and a frequent subject of employment-related disputes.

Colorado, Washington, Alaska and the District of Columbia have now 
legalized recreational use, although the District's enactment is 
complex and has significant limits.

Almost half the states and the District of Columbia permit medical 
marijuana. Nonetheless, under federal law, marijuana is still listed 
as a Schedule One drug under the U.S. Controlled Substances Act. U.S. 
attorneys can pursue growers and dispensers of marijuana, even though 
such business may be "legal" under state law.

In 2014, the New Mexico Court of Appeals held that medical marijuana 
treatment was a treatment that could be dispensed to injured or 
impaired workers under the New Mexico Workers Compensation Act. The 
court equated medical marijuana with a prescription drug.

Banking is also a problem. Legal marijuana, medical or recreational, 
is a "cash crop." Few financial institutions will open checking 
accounts for medical or recreational marijuana businesses, even if 
legal under state law. Customers deal in cash - no credit cards. The 
marijuana business hides its cash receipts where it can.

In early 2014, the Treasury Department's financial crimes enforcement 
network issued guidelines designed to give guidance to financial 
institutions on banking legal marijuana businesses. The guidance 
followed an earlier Department of Justice memorandum that directed 
U.S. attorneys to concentrate their resources on limited 
high-priority marijuana-related conduct - implicitly omitting normal 
banking operations. The Treasury guidance required detailed due 
diligence investigation and monitoring of any "legal" marijuana 
business. It did not promise immunity from prosecution.

Despite the guidance, there is no sign that any major national bank 
will undertake marijuana banking - and, in fact, they have monitored 
and shut down business accounts that tried to use "front" businesses 
to deposit the marijuana cash. Some banks and credit unions have 
opened accounts with legal medical and recreational businesses, but 
the activity is not widespread.

Surprisingly, in the December 2014 bipartisan spending bill, the U.S. 
Congress bars the Department of Justice from expending federal funds 
to stop the growing or sale of legal medical marijuana.

Medical marijuana is an important issue in employment law. Barbara 
Evans, a Roswell employment lawyer, recently reviewed marijuana in 
the workplace in the New Mexico Lawyer, a publication of the New 
Mexico Bar Association. In her view, it appears clear that employers 
can prohibit the use of marijuana during work hours under the federal 
Drug-Free Workplace Act.

Although her views are not based on New Mexico law, Ms. Evans thinks 
that the New Mexico legislation legalizing medical marijuana does not 
prohibit private employers from discriminating against employees for 
being medical marijuana users.

It is far less certain whether an employer must accommodate an 
employee's use of prescribed medical marijuana as a medical 
accommodation under state law, provided that the use is not during 
work hours. Federal courts in other states have held that medical 
marijuana is not a required accommodation under the federal Americans 
with Disabilities Act.

Medical marijuana "accommodation" is now being tested in a New Mexico 
state court. An employee of a contractor to Presbyterian Healthcare 
Services tested positive on a required Presbyterian drug test. Her 
services were terminated. She sued Presbyterian under the New Mexico 
Human Rights Act, which requires employers to accommodate serious 
medical conditions.

The plaintiff is a military veteran who allegedly suffered from 
posttraumatic stress disorder. She used medical marijuana under a 
prescription to treat her PTSD. Presbyterian is defending on the 
basis that marijuana is an illegal drug and the Drug-Free Workplace 
Act controls over state law. Other defenses are pleaded as well. The 
final outcome may be years away. Stay tuned.
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MAP posted-by: Jay Bergstrom