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What a can of worms this is.
Twenty three states and the District of Columbia currently have laws legalizing marijuana for “medicinal” use; four states and DC have completely legalized marijuana for recreational use. Some medical marijuana laws are broader than others, with the medical conditions that qualify for treatment varying from state to state. If all this is not already confusing enough, many cities and local governments have passed their own versions of laws or ordinances that decriminalize the possession of small amounts of marijuana held for personal use, or treat it at minimum as a misdemeanor that will earn a violator nothing more than a ticket. The direction of this trend throughout the country is pretty clear; expect to see more easing of marijuana laws as time goes on. Yet marijuana is not legal according to federal law. Its classified as a Schedule I drug because it is considered to have no “accepted medical use”. No producer of marijuana medicines in the 23 states that legalized the drug for medical use has sought or received FDA approval of its products. Doctors cannot prescribe it and pharmacies cannot sell it.
This creates some big headaches for employers. Here’s a short list of some of the most troublesome issues raised by increasing acceptance of marijuana use.
First, consider that marijuana is not like alcohol. Alcohol metabolizes relatively rapidly; except for serious abusers, a day after consumption alcohol’s effects are mostly gone, except for a possible headache. Workers in safety sensitive jobs can party on Saturday night and show up Monday morning ready and able to work safely. Marijuana’s effects linger much longer. The science is not settled but what research has been done suggests that the active ingredients only dissipate from the system slowly, and build up over time in the systems of habitual users. There is not much research on what lingering effect it has on users, but there appears to be evidence that some degree of impairment can linger for a period of time, resulting in measurable impairment and raising real concerns about the safety of such workers, and coworkers and members of the public around them.
Because of the way marijuana lingers in the system testing for it creates other issues. While alcohol can be tested for easily and reliably and degrees of impairment determined with some credibility, marijuana poses different problems. Unlike alcohol, no scientific measure of marijuana impairment has been established. Tests available will readily detect it, but can’t tell how recently it was used or if the user is impaired, or to what degree. A current or prospective employee that tests positive for marijuana could claim they used it legally (whether medicinally or recreationally) on their own time, and claim discrimination if you enforce any policy prohibiting it’s use.
Consider another complication: as mentioned, many state laws allow for marijuana use with a doctor’s order. Federal law, however, prohibits doctors from prescribing marijuana. Doctors can only write a recommendation for medical marijuana, which is different than a prescription. What does this mean? How can, and must, employers accommodate medical marijuana use? Do you have to make reasonable accommodation? Must employers pay for employee’s medical marijuana if they are injured on the job? How can an employee claim to be legally using a drug he doesn’t have a prescription for?
More questions: Can employers fire employees for engaging in legal activities off the clock? Can employees use legal marijuana off the clock even if they may be impaired the next day? What if courts hold that failing a pre-employment drug test is no longer a valid reason to deny employment to applicants? Must employers pay unemployment compensation to employees fired for failing a marijuana drug test? If drug testing only reveals use of the drug but not degree of impairment, how can employers whose businesses involve driving or other safety-sensitive positions protect their workers and the public from injuries and deaths cause by stoned drivers? How can employers in legalization states comply with federal law that maintains marijuana is illegal no matter what states say? These questions, and others, are all still unsettled, and answers can vary from state to state.
So, what will all this cost employers? There are two sets of problems for employers, increased marijuana use and all the costs this brings to employers in the form of accidents, absenteeism, poor job performance and lost productivity, and uncertainty and costs from litigation arising from the questions raised above and others issues yet to emerge.
For the first, in jurisdictions where marijuana use has been legalized, managers will need to be educated in safety, job performance and productivity issues to deal with the first set of problems. Even where legal, employees are still required to show up for work on time and be fit and ready to work.
In terms of the litigation exposure, a well written employment practices liability insurance policy will be more important than ever. So far there has been no noticeable movement in the insurance industry to add any exclusions in these policies for claims arising from marijuana use. If that’s going to happen it will likely happen first in those states that have legalized it for recreational use, but even there, so far, so good. Its something we are keeping an eye on.
These issues, and others arising out of legal use of marijuana are just now beginning to be considered. It will be many years before answers are known, and new questions not yet contemplated are sure to arise.