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Thursday, 11 April 2013

Managing marijuana in the workplace

The November election brought yet another twist in our nation’s roller-coaster ride with marijuana.
Massachusetts became the 18th state to allow medical use of marijuana. Two states, Colorado and Washington, and one city, Detroit, mirrored Ann Arbor, Chicago and Springfield, Mo., by voting to decriminalize personal possession of limited amounts of marijuana.
The long-term impact of such measures is undetermined, but in states where the highest court has reviewed medical marijuana laws as they relate to the workplace, all have so far decided in favor of the employer.
That’s not to say it will remain that way.  For example, Connecticut’s new law (effective Oct. 1, 2012) appears similar to laws in Delaware and Rhode Island that limit employer actions based only on a positive drug test.  Courts in those states have not yet interpreted these laws.
Do the latest developments mean employers should rush to amass new company policies? I don’t think so. Most employers can and should add appropriate language to the workplace drug and alcohol prohibition testing policies and procedures they already have in place. Procedures for responding to medical use or claims of legal use also should be addressed with service providers so everyone is clear about what the response will be.
Workplace substance abuse policies typically prohibit the use of marijuana. A response to medical use of marijuana should be no different than a response to the medical use of an opiate or amphetamine.
If the lab detects use, a medical review officer (who is a licensed physician) will review that use with the employee and decide if it was medically legitimate. If the MRO determines the use was not legitimate, the result will be reported to the company as a positive. The employee can then appeal that decision through the usual company channels. If no appeal process exists, one should be considered.
Legal use of marijuana is a somewhat different issue.
The obvious comparison will be made to the use of alcohol.  But don’t forget that many state laws prohibit employers from discriminating against an employee’s use of “legal” products.  Nonetheless, employers can appropriately design policies that limit “legal” product use for safety reasons.
None of this discussion deals with the conflict between state and federal laws on the subject of either medical or personal use of marijuana. Possession of marijuana is still a violation of federal law. Employers who believe they can simply rely on federal law may find themselves on the losing side of a lawsuit. This balancing act is going to have to be maintained without guidance until the courts or Congress resolve the matter.
This is a very complex issue that can’t be avoided. Many states have legislation pending to legalize the personal or medical use of marijuana. It’s best to consult with experienced medical and legal professionals and keep abreast of developments as they unfold. The next two to three years promise to very interesting.

Written by Bill Judge

Bill Judge is an attorney specializing in legal issues associated with substance abuse in workplaces and schools. He is the co-founder of FightReady™, an online risk management service that systematically provides employers with state-specific drug and alcohol testing policies and procedures. He is the author of Marijuana at Work, which will be published soon by FightReady, Itasca, Ill.

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