A TRIP THROUGH EMPLOYMENT LAW: PROTECTING THERAPEUTIC PSILOCYBIN USERS IN THE WORKPLACE.

• Author: Sheppard, Ben

TABLE OF CONTENTS INTRODUCTION 148 I. A MICRODOSE OF PSILOCYBIN 152 A. What is Psilocybin? 152 B. How Psilocybin Can Treat Mental Illness 153 C. Governmental Regulations of Psilocybin 154 1. Federal Governmental Regulations of Psilocybin 154 2. State and Local Laws Concerning Psilocybin 156 II. EMPLOYMENT PROTECTIONS FOR DRUG USERS 157 A. Refer Madness: Hazy State Employment Protections for Drug Users 157 B. The Tension Between Federal and State Drug Law in Employment Law 164 C. Preemption Concerns 164 1 Courts Finding Preemption? 167 2 Courts Finding No Preemption 170 III. STATUTE RECOMMENDATION 171 A. Statute Language 172 B. Statutory Analysis 173 IV. CONCLUSION 176 INTRODUCTION

Imagine losing your job because of medicine prescribed to you by your doctor. This is the situation Rojerio Garcia, who suffered from HIV/AIDS found himself in after he was hired at a new job. (2) Soon after his hiring, he was subjected to a random drug test and tested positive for psilocybin metabolites. (3) Garcia explained to his employer he used psilocybin to treat his HIV/AIDS. (4) Nonetheless, the employer discharged him anyways because the federal Controlled Substances Act ("CSA") prohibits all forms of psilocybin use. (5)

In response, Garcia sued and argued his employer unlawfully terminated him for his state-sanctioned therapeutic (6) psilocybin use. (7) The US District Court for New Mexico held the employer did not engage in employment discrimination because the state mandated no statutory duty to accommodate psilocybin use and it did not fire Garcia on the basis of his disability but instead based on his federally illegal psilocybin use. (8)

Unfortunately, Mr. Garcia is not the only individual fired based on therapeutic or medical drug use. At least six different courts have held without a statutory duty to accommodate drug use (e.g., cannabis (9) or psilocybin) an employer may take adverse action for off-site and off-hours federally illegal drug use despite legalization at the state level. (10) Courts are reluctant to enforce existing state employment protections for individuals who use drugs deemed unlawful by the CSA but legal under their state's law. (11) Additionally, many employees suffer adverse employment action for using federally illegal drugs each year despite states legalizing medical or therapeutic drug use. (12) Thirty-six states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have legalized medical cannabis (13) but only seventeen provide users statutory employment protections. (14)

But this legal rethinking continues with other drugs. In 2020, oregon became the first US jurisdiction to legalize therapeutic psilocybin use. (15) Oregon law permits licensed providers to administer therapeutic psilocybin to individuals over twenty-one. (16) State regulators have two years to work out regulatory details regarding therapeutic psilocybin practices. (17) In addition, legislators in California, Connecticut, Florida, Hawaii, Iowa, Kansas, Missouri, New York, Washington, and Virginia are debating psilocybin reform bills during their current legislative sessions. (18) States are rethinking psilocybin regulation in response to scientific studies showing it is an effective treatment for depression, anxiety, substance use disorders, opioid addictions, migraines, and other mental illnesses. (19)

Despite psilocybin providing users with therapeutic benefits, individuals may fear discrimination from their employer based on their state sanctioned psilocybin use. Employers tend to fear what they do not understand, (20) both psilocybin and mental illness are misunderstood in American society. (21) Research shows that employers are less likely to hire individuals with mental illnesses than those with physical disabilities. (22) Without statutory employment protections regarding therapeutic psilocybin use, patients may hesitate to participate in such programs out of fear of losing employment. (23) If jurisdictions are willing to permit the use of therapeutic psilocybin, they should not force citizens to choose between their health and employment. State protections like those instituted for medical cannabis users could shield patients from employment discrimination solely based on off-site and off-hours therapeutic psilocybin use. (24) This paper recommends states enact employment protections for therapeutic psilocybin users in tandem with state level legalization.

This paper proceeds in three Parts. Part I provides background on psilocybin's medical benefits and its governmental regulation. Part II focuses on state employment protections for drug users and concludes such statutes are likely not preempted by the CSA. Part III proposes a statute that protects employees from wrongful termination solely because of their therapeutic psilocybin use.

1. A MICRODOSE OF PSILOCYBIN

   This section introduces the reader to psilocybin. It begins with a discussion on how psilocybin works and its therapeutic applications for mental illnesses. This section then surveys the federal, state, and local regulations regarding psilocybin.

   1. WHAT IS PSILOCYBIN?

      Psilocybin is the main psychoactive component of hallucinogenic mushrooms. (25) Hallucinogenic mushrooms were used by indigenous people for thousands of years primarily for spiritual or religious purposes. (26) Psilocybin entered US public discussion in 1957 when R. Gordon Wasson published an essay in Life Magazine regarding his experience ingesting hallucinogenic mushrooms in a Mazatec ritual. (27)

      Psilocybin works as a "serotonin receptor agonist," by primarily affecting the brain's serotonin. (28) The effects of psilocybin occur in two distinct stages. First, shortly after psilocybin is consumed, the user enters an acute psychedelic state that significantly alters the conscious experience. (29) This phase may cause users to feel a sense of unity, ineffability, extreme positivity, transcendence of time and a feeling of revelation. (30) This stage lasts from minutes to hours. (31)

      Second, after the acute psychedelic state, the user often experiences the "afterglow phase" where they may have an increased positive mood and feel less preoccupied by worries and stresses. (32) This phase usually lasts about two to four weeks. (33) There may be lasting long-term psychological changes such as increased emotional and brain plasticity caused by psilocybin's effects or of the subjective psychedelic experience itself. (34)

      Neuroscience research suggests the aforementioned stages occur because of significant changes to the brain's default mode network ("DMN"). (35) The DMN supports cognitive processes such as introspection and contemplation of one's past and future. (36) Psilocybin consumption promotes an unrestrained style of thinking by reducing neural activity inside the DMN and creates its mystical effects. (37)

   2. HOW PSILOCYBIN CAN TREAT MENTAL ILLNESS

      Psilocybin has been used as an effective treatment for depression, anxiety, substance use disorders, opioid addictions, and other mental illnesses. (38) Recent scientific research showed psilocybin rapidly improved symptoms and even resulted in remission in some cases for patients with major depressive disorders. (39) The results of the trial showed psilocybin treatment was associated with a greater than fifty percent reduction in depressive symptoms in sixty-seven percent of study participants. (40) Additionally, seventy-one percent of participants showed progress in reducing their major depression at a four-week follow-up. (41) A total of fifty percent of participants achieved remission from their major depression. (42) These findings are particularly exciting because psilocybin worked as a treatment only after a single session or a few sessions and had enduring effects. (43) By contrast, most conventional depression treatments are given frequently and have chronic side effects. (44) However, researchers believe patients who suffer from decades long depression may require more than one or two psilocybin doses. (45)

      Other related studies support psilocybin uses in depression treatment. In 2016, research showed psilocybin helped treatment resistant major depression patients. (46) In this study, sixty-seven percent of participants showed significant reductions in symptoms after only one week. (47) Another study showed psilocybin dramatically improved depressive symptoms for cancer patients. (48) The panoply of studies supporting psilocybin as a treatment for depression caused the Food and Drug Administration ("FDA") to designate psilocybin a "breakthrough therapy" for treating major depressive disorder. (49)

   3. Government Regulation of Psilocybin

      1. FEDERAL GOVERNMENT REGULATION OF PSILOCYBIN

         Despite the FDA deeming psilocybin a breakthrough therapy the CSA outlaws all uses of psilocybin. Some of the earliest federal regulations concerning psilocybin were the 1962 Kefauver-Harris Amendments to the 1938 Food, Drug, and Cosmetics Act. (50) The Amendments required detailed and well-controlled investigations showing that drug was safe and effective before marketing to the public. (51) Under the Amendments, psychedelics could no longer be provided to physicians directly by pharmaceutical companies. (52) Now psychedelics could only be supplied after permission from federal or state agencies. (53)

         After the Kefauver-Harris Amendments, the federal government tightened psilocybin regulation with the Drug Abuse Control Amendments of 1965 that forbid the sale or manufacture of any drug with a "hallucinogenic effect." (54) However, the Amendments did not criminalize the possession of psilocybin. (55)

         The federal criminalization of psilocybin came at the urging of President Richard Nixon. (56) In 1969, Nixon officially announced the "War on Drugs," and claimed "[drug use] afflict[ed] both the body and soul of America." (57) Subsequently, in 1971, President Nixon stated, "America's public enemy number one in the United States is...