Nonprofit Report - March 2017

Date: March 30, 2017

What Do New Marijuana Laws Mean for the Workplace?
By: Eric Schlam & Jeff Glassie

Originally published by ASAE in Associations Now Plus.

Federal law conflicts with some state laws regarding marijuana usage, so here's a cheat sheet for association HR departments wanting to comply.

Bob Marley said, "To make marijuana against the law is like saying God made a mistake." While all state legislatures may not concur entirely with that sentiment, many have concluded that legalization in some form makes sense.

As of February 2017, NORML indicated that 20 states have decriminalized marijuana, which means that minimal possession will not earn someone prison time or a criminal record. The District of Columbia and eight additional states have legalized it, which means that possessing small amounts will not result in any civil or criminal penalties, and 28 states have enacted laws permitting its use for medical purposes.

The remaining states maintain that the use and possession of marijuana is a crime punishable by jail time and fines. This view is consistent with the federal law that classifies marijuana as a Schedule 1 substance under the Controlled Substances Act, which means that marijuana is illegal to use or possess in any amount, that it has no legitimate medicinal purpose, and that it poses a high-risk potential for abuse.

With conflicting laws on the books, it begs the question: What is the law of the land?

This strong dichotomy has led to several employment disputes, including court cases in California, Colorado, and Washington state, where more permissive legislation regarding possession and use of cannabis has been enacted. In litigation, courts have allowed employers to drug-test and terminate employees regardless of state laws and have not required organizations to provide a "reasonable accommodation" for illegal activity, such as the use of marijuana, under the Americans With Disabilities Act.

In Coats v. Dish Network, the plaintiff was using marijuana as a result of complications from his quadriplegia. His employer had a zero-tolerance policy on drug use and subsequently tested Coats before renewing his contract with Dish. Since Coats tested positive for marijuana, he was terminated. He argued that his usage of the drug was permissible and that his firing was unfair, citing the Medical Marijuana Amendment to the Lawful Off-Duty Activities (LODA) statute in Colorado. But the Colorado Supreme Court disagreed, finding that the concept of "lawful activity" applied to both state and federal legislation, and since marijuana was illegal under the Controlled Substances Act, Coats' termination was upheld.

Roe v. TeleTech Customer Care Management provides another example of how the courts are dealing with medical marijuana users in the workplace. Roe was a cannabis user under Washington state's Medical Use of Marijuana Act (MUMA). As a condition of employment with TeleTech, he was required to submit to a drug test, which yielded a positive result for marijuana use and Roe's job offer was rescinded. Roe claimed that by consuming cannabis under MUMA, his actions were permissible and his job offer should then be reinstated. The Supreme Court of Washington disagreed, holding MUMA does not protect an employee from discharge for medical marijuana use.

Cases like these illuminate two takeaways for association and HR professionals: First, the doctrine of preemption under the Supremacy Clause of the U.S. Constitution, which mandates that federal law trumps state law, is critical to these outcomes. And second, it is essential that employers have a detailed policy on drug use and impairment.

Under the Drug Free Workplace Act some federal contractors and all federal grantees agree to provide drug-free workplaces as a condition of receiving a contract or grant from the federal government. Therefore, these types of organizations must have a policy that prohibits illegal drug use, including marijuana, and expresses what actions are to be taken for violations. These organizations also must provide education in the work environment about the dangers of drug use.

For those outside of government, here's a checklist of what organizations should include in their policies:

  • Employees may make their own lifestyle choices but such activity cannot interfere with job performance.
  • Employees may not report for duty or remain on duty while impaired.
  • Employees may not consume or possess alcohol or drugs during working hours.
  • Employees are subject to drug testing (the legality of when may depend on the state involved).
  • Employees who refuse such drug testing will be terminated.
  • Employees who fail to comply are subject to disciplinary action, including termination.

The law is likely to continue evolving this year, so vigilance will be important to ensure association and employee rights and protect against liability.

FEC Adjusts Some Political Contribution Limits for 2017-2018 Cycle
By: Jim Kahl & Jeff Altman

The Federal Election Commission has made minor adjustments to some of the individual and PAC contribution limits for the 2017-2018 election cycle.  The amount that individuals and non-multicandidate PACs can give to federal candidates remains at $2700 per election to each federal candidate.  Since primary and general election contests are viewed as separate “elections,” an individual or a non-multicandidate PAC may contribute a total of $5400 to a federal candidate.  The $5,000 per year individual contribution limit to PACs is also not affected.

On the other hand, individuals and non-multicandidate PACs can now give $33,900 per year to each national party committee (up from $33,400).  They can also give $101,700 per year (up from $100,200) to each of the national party committee accounts for presidential nominating conventions, election recount and legal proceedings, and national party headquarters buildings.

Contribution limits for larger PACs are not readjusted each election cycle. As a result, “multicandidate” PACs – those with 51 or more contributors that have contributed to 5 or more federal candidates – can still contribute $5000 per candidate per election, $15,000 per year to a national party committee, $5000 per year to other PACs, and $45,000 per year to each of the national party special accounts.  

The FEC also adjusted the reporting threshold for candidates, leadership PACs and political parties that receive lobbyist bundled contributions.  Now, they must report contributions aggregated by a lobbyist if they exceed $17,900 in a semiannual period.

The 2017-2018 contribution chart is available here.

On the Horizon in 2017: Are Political Spending Restrictions on Section 501(c)(3) Organizations Going Away?
By: Jim Kahl & Jeff Altman

2017 is sure to bring more changes on the political law front.  In February, President Trump repeated his support for overturning the “Johnson Amendment” – a long-standing provision in the tax code that strictly prohibits churches and other Section 501(c)(3) charitable organizations from engaging in any political campaign activities.  If the law is changed, individuals and organizations may be able to support entities engaging in political speech with tax deductible deductions.  At the same time, the administration is also considering an executive order to loosen political restriction on churches. These changes could make religious organizations new vehicles for supporting and opposing candidates in 2018 and beyond.  

At this time, it is unclear whether any repeal of the Johnson Amendment would apply broadly to narrow or remove the prohibition against political activities for all Section 501(c)(3) organizations, or provide just a limited carve-out for churches and religious organizations.  Although the Administration can change the interpretation or enforcement of the current prohibition, any formal repeal of the statutory prohibition would require Congressional action.

We’ll be following this issue and other new developments closely in Political Law Notes. Also, you can view Jim Kahl and Jeff Altman’s recent webinar – Federal Lobbying & Ethics Rules in 2017 – here.  A PDF copy of the webinar PowerPoint can be seen here