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.
Bill Judge didnt read much of him
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