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Legalize It?

 

 

 

 

 

 

By Scott Orr

Say your best employee, someone with real drive and potential, violates your workplace drug policy by testing positive for marijuana use. Invoking your zero-tolerance rules, you fire him or her, as your drug-free workplace policy requires.

Now, suppose that person has cancer and is using weed not to get high, but to ease pain under a state medical marijuana law. He or she wasn’t stoned at work, didn’t bring the pot to your business and has otherwise been an exemplary employee. Do you still issue a pink slip?

That’s a question a growing number of employers across the country are facing as laws allowing the use of medical marijuana spread like, well, weeds. The quick answer, for now, is that in most states you can fire that person. Looking at the broader picture, however, is when the issue be­comes more complicated.

A State Issue
"In most states that permit medical marijuana, employers are not required to accommodate medical marijuana use — that is, employers can continue to maintain drug policies that prohibit employees from reporting to work un­der the influence of marijuana or with any amount of marijuana in their sys­tem," said Danielle S. Urban, a labor lawyer with Fisher & Phillips LLP.

Urban cautions that employers must proactively keep track of the laws, which are constantly evolving and vary from state and state. At least one state, Arizona, has included a prohibi­tion against workplace discrimination in its medical marijuana law and oth­ers may follow.

According to the Marijuana Policy Project, which has been lobbying to ease legal restrictions on the use of pot for 15 years, 16 states and the District of Columbia now have effective medical marijuana laws and 29% of Americans live and work in those states. They are Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Ver­mont and Washington. At least 18 other state legislatures are considering whether to enact new laws that would protect medical marijuana patients.

Zero Tolerance
Let’s get back to our example: the star employee whose only negative is a pos­itive test for marijuana. Why is that dif­ferent than if the same employee were taking narcotic painkillers prescribed by his doctor? Or, what about someone who drinks a fifth of whiskey at home but sobers up in time for his shift?

The answer to those questions lies at the collision between state and fed­eral law. Unlike prescription drugs and alcohol, marijuana remains an illegal substance under federal law despite the state statutes. In fact, the federal government classifies marijuana the same way it does for drugs like LSD and heroin, which have "no accepted medi­cal value in treatment."

So while employers probably cannot ban the use of prescription drugs and off-hour consumption of alcohol, courts have sided with employers every time zero-tolerance workplace drug policies have been challenged based on medical marijuana laws. So while employers probably cannot ban the use of prescription drugs and off-hour consumption of alcohol, courts have sided with employers every time zero-tolerance workplace drug policies have been challenged based on medical marijuana laws.

Of course, there are no protections anywhere for employees who show up for work stoned, just as employers are free to fire workers who show up drunk. Complicating the issue, though, is the challenge of differentiating be­tween someone who has just gotten high and someone who smoked a joint to ease his pain a week ago.

Unlike alcohol, which metabolizes quickly and generally cannot be de­tected 12 to 24 hours after use, marijuana is slow to metabolize and can be detected in an employee’s system for up to 30 days or more.

Urban notes that finding traces of marijuana in a worker’s system does not mean he or she is necessarily high. "But because there is no widely avail­able way to test impairment, most em­ployers prohibit employees reporting to work with any amount of marijuana in their system."

One Example
So far, courts have sided with employ­ers who have fired workers when their use of medical marijuana has violated zero tolerance workplace drug policies.

Take the case of Joseph Casias, who is essentially the personification of our opening scenario. Casias had been working at a Battle-Creek, Michigan, Walmart for five years when he be­gan using medical marijuana to con­trol pain associated with a rare form of sinus cancer. He obtained a medical marijuana registry card under the 2008 Michigan Medical Marijuana Act.

In 2009, Casias, who was the Michi­gan store’s Associate of the Year the previous year, injured his knee while unloading a truck. Since the injury took place at work, the company’s drug test­ing policy required him to be tested. Needless to say it came back positive for THC, the stuff in pot that gets you high, and Casias was summarily canned as Walmart’s drug policy demands.

He sued. Walmart argued that the Michigan medical marijuana law was preempted by the federal Controlled Substances Act and that the state law provided no employment protection. The court said that while the state law provides protection against criminal prosecution, it does not regulate pri­vate employment decisions.

Now, if Casias had been working at a Walmart in Phoenix, he’d probably still have his job even after the positive drug test.

Testing, Testing
Like other states, Arizona’s 2010 medical marijuana law permits reg­istry cardholders to possess — and in some situations — grow pot for their own consumption. It goes even fur­ther by prohibiting employers from imposing any special workplace conditions on medical marijuana users or discriminating against them in hiring or firing.

Arizona’s law could be the nation’s enduring exception, or become a model for other states. In California, the first state to legalize medical marijuana in 1996, the legislature is considering a bill that would add to its existing laws Arizona-like protections that would prohibit employees from being fired because they use medical marijuana. Arizona law also bans discrimination against registered users based on a pos­itive drug test, unless the patient was stoned at work or during work hours.

How can an employer show that a worker is high? Good question — Ari­zona’s medical marijuana law doesn’t define "impaired," but amendments to another state law offer some guidance.

The drug testing law in Arizona says that symptoms of impairment might include an individual’s speech; walk­ing, standing, movement or physical dexterity; appearance; odor; irratio­nal or unusual behavior; disregard of workplace safety and other factors.

If you’re thinking those are pretty subjective symptoms then you’re right, but the only other option is testing to determine the presence of marijuana metabolites in amounts sufficient to cause impairment — and that’s a pricey burden for employers.

Common urine tests are the cheap­est and easiest tests to administer, but they only check for the presence or absence of THC metabolites. Much more costly and invasive blood tests are needed to determine the concen­tration of these metabolites and allow for an estimation of how long ago the marijuana was used.

The California National Organiza­tion for the Repeal of Marijuana Laws says there is no simple way to guess how long marijuana traces stay in your body: "Detection time depends strongly on the kind and sensitivity of the test em­ployed; the frequency, dosage and last time of use; the individual subject’s ge­netic makeup, the state of one’s metabo­lism, digestive and excretory systems; and other random, unknown factors."

Decriminalizing Use
Further complicating matters from a legal standpoint is the national trend toward liberalizing laws dealing with non-medical marijuana use. Some 13 states already have decriminalized marijuana use, most replacing crimi­nal charges with civil fines, drug edu­cation or drug treatment. Nine states are considering decriminalization.

Still, even if states were to go further and legalize recreational use of mari­juana, the federal laws would remain in play. If the federal law were to be changed, marijuana would be treated more like alcohol abuse in that employ­ers would not be required to tolerate stoned workers.

"If the federal government were to legalize the use of marijuana, you can bet that some enterprising businesses would come up with an inexpensive, reliable way to test impairment. Just as employers are free to fire drunk em­ployees, I cannot imagine any set of cir­cumstances under which an employer would be required to put up with an employee who comes to work impaired from marijuana use," Urban said.

Scott Orr is a freelance writer based in Washington, D.C. He can be reached at scott@jscottorr.com.

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Understanding Medical Marijuana Laws
Danielle S. urban, a labor lawyer with Fisher & Phillips LLP and an expert on medical marijuana laws, answered a few questions about medical marijua­na in the workplace that employers may be asking:

Q: Are employers required to accom­modate after-hours and off-site use of marijuana by employees who have valid prescriptions?

A: The law regarding medical marijua­na use is uncertain in some states, but in all states where the issue has been litigated, courts have universally held that employers are free to prohibit an employee from reporting to work with any amount of marijuana in his or her system. Because marijuana could stay in an individual’s system for as long as 30 days or more, the employer is effectively prohibiting the employee from using medical marijuana. Only one state, Arizona, explicitly forbids employers from discharging employ­ees for testing positive for mari­juana, unless those employees are in safety-sensitive positions and only if the employer complies with certain drug-testing provisions.

Q: What about possession of marijuana at work by employees who have medi­cal marijuana cards?

A: employers may prohibit the posses­sion of medical marijuana on company premises.

Q: Are there ways to test employees for impairment, measuring the con­centration of THC in their blood, for example?

A: urine tests, which are commonly used by employers to test for prohibit­ed drug use, test the level of metabo­lites in the urine, which is a by-product of the breakdown of THC. It is possible to test for the level of THC in an indi­vidual’s bloodstream, but it is difficult to tell at which level an individual may be impaired. Such tests tend to be more expensive and less convenient than urine tests. Impairment may also be measured by testing present coor­dination level, but coordination tests require a trained, certified individual to administer such tests, and employ­ees might exhibit poor coordination with even low levels of THC in their bloodstreams. At present, there is no reliable, inexpensive and convenient way to test for impairment.

Q: How much can you legally ask job candidates about their use of medical marijuana?

A: I would advise that you never ask a job candidate about his or her medical marijuana use.

Q: Can employers legally decline to hire someone because that person is a medical marijuana user?

A: employers should not decline to hire an employee because he or she uses medical marijuana. Instead, after extending a job offer, an employer may ask new employees to take a drug test, and may refuse to employ any employee who might test positive for prohibited substances in violation of company policy.

Q: Can employers set limits on after-hours medical marijuana use, like prohibiting use within, say, eight hours of a shift?

A: employers could require employ­ees to refrain from using marijuana within eight hours of a shift, but unfortunately, there is no easy or inexpensive way currently to moni­tor whether marijuana was used two hours ago or last week.

If the federal law were to be changed, marijuana would be treated more like alcohol abuse in that employers would not be required to tolerate stoned workers.