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Medical Marijuana: What Employers Need to Know

Level: Advanced
Runtime: 94 minutes
Recorded Date: August 29, 2018
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  • Background
  • A Short Primer on Employment Laws
  • The Laws Concerning Marijuana Use
  • State Laws Coming into Play
  • Practical Challenges Posed by State Legalization of Medical Marijuana
  • Questions and Answers
Runtime: 1 hour and 34 minutes
Recorded: August 29, 2018


Our panel of experts will provide lawyers with guidance on whether and how to accommodate their employees who use marijuana for medical purposes or for off-duty personal consumption.

Twenty-three states and the District of Columbia have legalized medical and/or recreational use of marijuana. The majority of states decriminalize use, while other jurisdictions—Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, and Rhode Island—also provide statutory protections against discrimination, with some of these jurisdictions requiring accommodation of underlying disabilities. However, marijuana is still classified as a Schedule I drug (high potential for abuse, no acceptable medical use) and remains illegal under the federal Controlled Substance Act ("CSA"). Under the Americans with Disabilities Act (ADA), courts have held that marijuana users—regardless of the legality of the use under state law—are not qualified individuals with a disability entitled to anti-discrimination protections. See, e.g., James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012). This legal landscape can be confusing for employers to navigate.

This program was recorded on August 29th, 2018.

Provided By

American Bar Association
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Darryl G. McCallum, Esq.

Shawe Rosenthal LLP

Darryl G. McCallum concentrates his practice in employment law matters, including the defense of race, sex and other discrimination suits, sexual harassment claims, and claims involving wrongful discharge. He routinely advises employers on human resources issues.

Immediately prior to joining Shawe Rosenthal, Mr. McCallum was an Associate Litigation Counsel with the Law and Public Policy Department of MCI in Washington, D.C. While at MCI, he provided advice to management on various employment law issues, and litigated employment matters before federal and state courts and enforcement agencies. After law school, Mr. McCallum served as a Judicial Clerk for the Honorable Robert N. Wilentz, former Chief Justice of the New Jersey Supreme Court. He then spent six years in the litigation group at Shaw Pittman in Washington, D.C., where he concentrated his practice in employment matters, appearing before courts in Maryland, the District of Columbia, and Virginia.

Mr. McCallum serves as a Programs Co-Chair of the ABA Litigation Section Employment and Labor Relations Law Committee and is the Immediate Past Chair of the Maryland State Bar Association Section of Labor and Employment Law. Mr. McCallum formerly served as the Co-Chair of the Labor and Employment Subcommittee of the American Bar Association Litigation Section Committee on Corporate Counsel and has contributed to the Corporate Counsel Committee’s quarterly newsletter, authoring articles entitled “Court Holds That Self Critical Analysis And Attorney-Client Privileges Did Not Apply To Completed Employee Questionnaires” and “A Cautionary Tale: Lessons on Document Preservation from the Quattrone Decision.” Mr. McCallum is also a member of the National Employment Lawyers Council and serves on the Board of the Maryland Hotel and Lodging Association. He has also served as a revisions editor for the Matthew Bender publication: The Employment Law Deskbook and has contributed as an attorney author to the Lexis Practice Advisor. Mr. McCallum is also a contributing author of the MSBA Maryland Employment Law Deskbook.

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Denise E. Elliott, Esq.

McNees Wallace & Nurick, LLC

As a member of the McNees Labor and Employment Practice Group, Denise focuses her practice on defending self-insured employers in workers compensation matters and providing representation and counsel to clients in employment discrimination litigation, ADA/FMLA compliance, safety drug and alcohol testing and health issues.

An experienced litigator, Denise represents public and private sector employers in all phases of employment related litigation, including before state and federal courts, arbitrators, administrative law judges (such as workers’ compensation judges and unemployment compensation referees) and administrative agencies, including the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. Recognizing her clients’ ultimate goal is to stay out of court, Denise provides proactive counseling and training to employers to help employers comply with the law and avoid litigation. Denise also aids employers in investigating allegations of sexual harassment, discrimination and other incidents of workplace misconduct. Denise’s understanding of the interplay between workers’ compensation laws, the ADA, the FMLA and unemployment compensation is critical in helping her clients navigate the complex web these laws often create.

Denise is certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association Workers’ Compensation Law Section and is a member of the Pennsylvania and Lancaster Bar Associations. She is the past chair of the Workers’ Compensation Section and the Labor and Employment Section of the Lancaster Bar Association. Denise is a frequent speaker on workers’ compensation and employment law topics including medical marijuana in the workplace and was named a 2014 and 2015 Select Lawyer. Denise is admitted to practice in the Commonwealth of Pennsylvania, before the Federal District Courts in the Eastern and Middle Districts of Pennsylvania and before the Supreme Court of the United States.

Denise resides in Lancaster Township with her husband and two daughters. Since moving to Lancaster, Denise has given her time to community organizations focused on children. Currently, Denise serves on the Board of Directors for Girls on the Run Lancaster and is the head coach of the St. Anne’s Girls on the Run Team. Denise also serves as classroom volunteer for Junior Achievement of Central PA and on the board of Directors for Lancaster Health Center (formerly Southeast Lancaster Health Services) and is the President of the parent School Board at St. Anne School. She served on the Board of Directors of the Hands-on House Children’s Museum for six years and is a 2009 graduate of Leadership Lancaster. In her spare time, Denise enjoys running, watching her daughters swim for the Lancaster Aquatic Club and rooting for all Philadelphia sports teams.

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Christian C.M. Beams

Fredenberg Beams

Chris has been helping his clients improve their bottom lines for nearly two decades. His clients range from small startups in hyper-regulated industries to Fortune 100, publicly traded companies. And while many will tout their business expertise and know-how based upon representation of other clients, Chris is unique in that he has actually been there. He has extensive directorship experience, having served on the Boards of non-profit companies, community organizations, elected school organizations, and for-profit institutions. In these roles, he has recruited and hired high level executives, successfully built and managed successful teams, and interacted and developed credibility with regulatory authorities. His perspective is not just one of an experienced attorney, but of a seasoned business professional.

As a lawyer, his background is diverse. He has litigated and resolved, whether through negotiated settlement or trial, hundreds of commercial cases in a wide variety of areas, from contract breaches to fraud, intellectual property to employment, trade secret misappropriation to collections and bankruptcy. He also actively works with his clients in avoiding litigation through calculated risk analysis, and otherwise assists businesses and individuals in resolving disputes and making business deals happen. Over the years, he has represented lenders, real estate brokerages and property owners, health care companies, hospitals, nursing homes, franchisors, mining companies, title companies, manufacturers, and business executives. In addition, Chris serves as outside general counsel to various organizations, and his clients rely on him for corporate governance, regulatory compliance, contract drafting, and internal dispute resolution advice and guidance.

Chris also is an accomplished neutral who has resolved countless disputes through the mediation and arbitration processes. He has served as a Judge Pro Tempore for the Maricopa County Superior Court, and is routinely hired by peers at other firms to resolve disputes as a private mediator. He has also been hired to arbitrate disputes, when parties request that he decide the issue. Chris has been named by AZ Business magazine to the “Top Lawyers List” for alternative dispute resolution and bankruptcy on multiple occasions.

Finally, Chris is a skilled writer who has been published extensively in law reviews, trade journals, and business publications, and has spoken extensively to business leaders on how to effectively manage outside counsel.

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Andre B. Caldwell

Of Counsel
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Andre' B. Caldwell is an experienced trial lawyer whose practice focuses on all aspects of civil and criminal litigation in state and federal court. He has tried to a jury verdict over 20 cases in federal courts in Oklahoma.

Mr. Caldwell began his career as an Assistant United States Attorney in the Western District of Oklahoma where he was assigned to the Violent Crime and Organized Crime Drug Enforcement Task Force. During his tenure he was awarded the FBI Director's award from FBI Director Robert Mueller for his outstanding prosecutorial skills.

Just prior to joining Ogletree Deakins Mr. Caldwell was a shareholder at one of the largest and oldest law firms in Oklahoma, and was an active member of the Criminal Defense Compliance and Investigations and Litigation and Trial practice groups. Mr. Caldwell utilized his wealth of trial and investigative experience to represent private and public companies of various sizes in all aspects of commercial litigation, preparation of compliance guidelines and conducting corporate criminal risk assessments.

At Ogletree, Mr. Caldwell has a national litigation practice wherein he defends employers of all sizes in state and federal trial courts against allegations of harassment and discrimination under Title VII of the Civil Rights Act of 1964 and other alleged violations of the Family and Medical Leave Act, Fair Labor Standards Act, and Pregnancy Discrimination Act. In addition, Andre’ has leveraged his prosecutorial and litigation experience to conduct workplace and internal investigations for clients around the country.

Mr. Caldwell is actively involved in the American Bar Association’s Section of Litigation where he currently serves as co-chair for the Minority Trial Lawyer Committee. Locally, Caldwell serves as vice-chair of the Board of Directors for Positive Tomorrows, a private, tuition-free elementary school meeting the education and social service needs of homeless children and their families.

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