It is no surprise that the U.S. Drug Enforcement Administration (DEA) is not a fan of medical marijuana, which has now been legalized in 15 states and the District of Columbia (see sidebar on page 19). According to the DEA, the campaign to allow marijuana to be used as medicine is a tactical maneuver in an overall strategy to completely legalize all drugs.

Whether or not that is a correct assessment may be up for debate, but the fact remains that thousands of employed Americans can now use marijuana legally in order to treat various maladies from glaucoma to nausea to cancer. For employers, this can raise serious questions, especially when many workplaces have zero-tolerance drug policies in place.

Contractors in particular have a right to be concerned, as marijuana use negatively affects the many skills required for work-related activities, including safe driving. According to DEA, alertness, the ability to concentrate, coordination, and reaction time can all be diminished up to 24 hours after smoking marijuana, and marijuana use can also make it difficult to judge distances and react to signals and signs on the road. Considering that technicians regularly drive company vehicles to work sites that involve high-pressure refrigerants and gas lines, lingering effects of marijuana use may result in threats to safety.

Contractors who wish to terminate the employment of someone who uses medical marijuana may have to tread carefully, as in some states it remains unclear as to whether or not employers must accommodate employees who have legal prescriptions. It is definitely a legal gray area, with employers being left to wonder how they can enforce their drug policies without being slapped with discrimination lawsuits from affected workers.

PICK YOUR POISON

So what is a contractor to do if an employee discloses that he has a medical marijuana prescription and plans to use the drug outside of work? You can fire him, said Brooke Duncan III, attorney, Adams and Reese LLP, New Orleans, La. “If I’m advising an employer, I would say don’t let that person work, especially not in a safety sensitive position. Is that going to free the contractor of all potential liability? Of course not. That’s the problem with this whole scenario.”

However, Duncan noted that contractors may have the law on their side at this point, as the U.S. Equal Employment Opportunity Commission (EEOC), which is the prime enforcer of laws against discrimination in the workplace, has not yet taken a position on medical marijuana. EEOC would most likely provide guidance in regard to the Americans with Disabilities Act (ADA), which addresses employees using prescribed substances for medical conditions, and whether accommodation is required. And the California Supreme Court has chimed in, stating that it is not unlawful to fire an employee for using medical marijuana.

“There has been no guidance or regulation issued by the EEOC stating that medical marijuana use is protected conduct,” said Duncan. “And you don’t have to accommodate any employee under the ADA if to do so would cause harm to the individual or to other people. I don’t see the EEOC being anxious to jump into this fray and with good reason - it’s just fraught with all kinds of problems.”

For contractors, noted Duncan, the issue comes down to which lawsuit they would rather potentially face: the employment discrimination suit from the guy who’s smoking dope and wants to drive the company truck and potentially hurt people in the process, or the lawsuit resulting from that guy plowing the company truck into a van full of children returning from the church picnic.

“I’d choose the discrimination lawsuit,” said Duncan. “I would have no problem telling technicians who are using medical marijuana, ‘No, you can’t drive our trucks or hook up gas lines because that runs the unacceptable risk that you would harm yourself, a co-worker, a customer, or a member of the general public.’”

LINGERING EFFECTS

One of the reasons why marijuana use is of such concern in the workplace is that unlike other prescribed drugs that are flushed out of the body fairly quickly, marijuana can remain in detectable amounts in the system for up to five weeks after use. After five weeks of not using marijuana, it is highly unlikely that an employee would be considered impaired, however, it could still result in a positive drug test, which can be problematic if an accident occurs during that timeframe.

Another important consideration is that there is no standard regarding how much marijuana use results in impairment, which is why states have instituted varying - and somewhat arbitrary - cut-off levels. “With alcohol testing, there is an established link between blood alcohol content and how badly you blow a sobriety test. There is no universally accepted standard as to what constitutes impairment with marijuana,” said Duncan.

“You can have detectable amounts of marijuana in your system weeks after the last time you used it, even though it is unlikely there is any impairment at that point. That’s really the biggest dilemma for employers: There is no protection from liability if a person is using medicinal marijuana and is impaired or allegedly impaired because, once you find out a guy has been smoking marijuana, even by prescription, if he has an accident, that becomes a factor in litigation.”

That scenario is of particular concern to Rich Imfeld, president, IC Refrigeration, Ceres, Calif. “The state tells us what the alleged acceptable amounts of THC [tetrahydrocannabinol, the main active ingredient] are, but those are set up by some arbitrary person who says this is the amount acceptable for a person who is under medical marijuana versus someone who is just a stoner. I fail to see how that works.”

Imfeld recently had an experience with an employee who disclosed he had a prescription for medical marijuana after being hired and passing a drug test (this employee no longer works for the company for unrelated reasons). As a result, Imfeld lives “in abject fear” as to what could happen if another employee obtains a prescription. “If an employee has a medical amount of marijuana in his system and runs over a person in the company truck, the victim’s family is going to look at me. As a business owner, I am perceived as having deep pockets, and they’re going to come after me.”

Travis Smith, owner/general manager, Sky Heating and Air Conditioning, Portland, Ore., is also concerned about the medical marijuana law, although he has not yet had any employees admit to having a prescription. “If an employee got a card [for prescription use], who knows if we would ever even know? We have a drug policy in place that states no drugs on the company premises or in the company vehicles, and I just don’t see how allowing medical marijuana is a workable policy. Technicians are running exhaust venting and working with gas lines, both of which can be fatal; they’re lifting heavy equipment and machinery and driving trucks all day long. They’re not just sitting in the office where they can’t cause physical harm to other people.”

If one of Smith’s employees ever did admit to having a prescription for medical marijuana, he would let him go and take a chance on a discrimination lawsuit. “We would just have to see how it plays out. Marijuana is still illegal under federal law [see sidebar above], so we’re going to side with the federal government on this issue. I think the state of Oregon may side with the employee, but at the Supreme Court level, I think they would side with the employer.”

THINKING AHEAD

While contractors doing business in states allowing medical marijuana should not panic, said Duncan, they should start thinking about how they would react to an employee who comes forward and says he is using medical marijuana. “Employers should ask themselves, ‘Is this person in a safety sensitive position? Do I wish to simply prohibit drug use completely and across the board in my workplace?’ Contractors can modify their existing zero-tolerance drug policies to allow for medical marijuana use by employees in non-safety-related positions, but I would suggest handling each situation as it arises with particular emphasis on safety.”

For potential new hires, Duncan recommends that contractors make job offers contingent upon answering questions about medical health after the offer is made. This last point is particularly important, because the ADA states that medically related questions cannot be asked before an offer of employment is made. If these questions are on the job application form, this would violate the ADA, since presumably an offer of employment has not been made at the point an application is filled out.

“The way it works under the ADA is you assess the person’s qualifications for the job, and if you make them an offer, then you can ask a range of medical questions, but you have to ask everyone - you can’t just select applicants in wheelchairs and ask what’s wrong with them,” said Duncan. “You have to direct your medical questions to everybody but only after you’ve made the offer. And you can make the offer contingent upon those answers.”

As to specific language to use with those who have been made an offer of employment, Duncan recommends the following: Do you have any medical condition that could interfere with or impair your ability to do the work for which you’re being hired? If they fail to reveal a medical marijuana card, and it comes up later, noted Duncan, then the employee has misrepresented himself in the application process and the offer of employment can be rescinded.

The key is to keep the medical questions as simple and to the point as possible, so as to limit intrusiveness and avoid areas that could smack of discrimination, said Duncan. “The classic example is being HIV positive, which has zero impact on a person’s ability to do their job. If you capture that information, then it’s really of no use to you in making a job-related decision. By asking only if the person has a medical condition that could possibly interfere with his ability to do the job, you’re limiting your questions to those conditions that would indeed have a direct bearing on work, and you’re excluding conditions that would not.”

Contractors should also be proactive in learning everything they can about the medical marijuana laws in their particular state, as they will vary from one state to another. The bottom line in all states, however, is that nobody has the right to come to work impaired, especially if their job poses a safety risk to others.

“This is a serious issue, and because of the type of work they do, HVAC contractors are especially susceptible to the unintended consequences that can come from legalizing marijuana even on a limited basis,” said Duncan. “But in dealing with employees who have a legal prescription for medical marijuana, contractors must continually ask themselves, ‘Which lawsuit do I want to defend? The marijuana medical card lawsuit? Or the terrible automobile accident on the interstate?’ I think the answer is pretty clear.”

Sidebar: Testing, Unions

Some unions oppose drug testing in the workplace, which is why contractors running union shops may shy away from requiring drug testing for employees. Attorney Brooke Duncan noted that there is no reason why contractors cannot pursue mandatory drug testing when a contract comes up for negotiation.

“For those in a union shop, when the contract comes up for renewal, make a proposal to the union that includes drug testing,” said Duncan. “You can’t unilaterally impose drug testing, as that would be a violation of federal labor law, but you can propose it.”

When renegotiating the contract, contractors would be correct in stating to union officials that customers prefer knowing that technicians are drug-free. In addition, if the contractor is engaged in federal work, the Drug-Free Workplace Act requires some contractors to agree that they will provide a drug-free workplace as a precondition to receiving a contract from a federal agency. In fact, large commercial customers often require all their vendors who come on-site to certify their employees have tested drug-free. Contractors can make drug testing more palatable by offering an inducement elsewhere in the contract - such as a small raise in the technicians’ hourly rate - should the union agree to the change.

“Even in union shops, an employer is free to - and should consider - proposing the inclusion of drug testing to a union in contract negotiations,” said Duncan. “I would include language that would allow drug testing in all forms: pre-employment, random, post-accident, and reasonable suspicion. Just because you have it in a union contract doesn’t mean you have to do it, but it’s there if you need it. It is also necessary to look at state law, because some states don’t allow random testing except for certain kinds of positions.”

For those contractors just starting a relationship with the union, remember that the first contract is just a blank piece of paper. “As the employer, contractors are obligated only to negotiate - they don’t have to give in to the union at all, and they can make whatever proposals they want,” said Duncan.

This includes adding drug testing to the contract, which may be a smart move for every contractor in a union shop to consider.

Sidebar: State Laws

Fifteen states and Washington, D.C., have enacted laws that legalize medical marijuana. These include the following, along with the date when medical marijuana was legalized:

Alaska (1998)

Arizona (2010)

California (1996)

Colorado (2000)

Hawaii (2000)

Maine (1999)

Michigan (2008)

Montana (2004)

Nevada (2000)

New Jersey (2010)

New Mexico (2007)

Oregon (1998)

Rhode Island (2006)

Vermont (2004)

Washington (1998)

Washington, D.C. (2010)

Sidebar: Conflicting Information

Under federal law, it is illegal to grow, sell, purchase, or use marijuana, even for health-related reasons, which is why the following statement made by the Department of Justice in October 2009 came as a bit of a shock to some: The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the department’s efforts against narcotics and dangerous drugs, and the department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.

For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the department.

After the Department of Justice issued this statement, which essentially means that they will not prosecute those involved with the medical marijuana trade, the Department of Transportation came out with a statement telling employees to basically disregard that notice:

Recently, the Department of Justice (DOJ) issued guidelines for federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana” (www.justice.gov/opa/documents/medicalmarijuana.pdf.) We have had several inquiries about whether the DOJ advice to federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s long-standing regulation about the use of marijuana by safety sensitive transportation employees - pilots, school bus drivers, truck drivers, train engineers, subway operators, among others.

We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to federal prosecutors.

The Department of Transportation’s Drug and Alcohol Testing Regulation - 49 CFR Part 40, at 40.151(e) - does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

Given the conflicting views regarding medical marijuana at the federal level, including the silence on the matter from the EEOC and the ADA, it is no wonder that there is confusion at the state level about how to handle the issue. It is safe to assume that someday in the future, rules will be devised regarding how to handle employees who utilize medical marijuana, but until then, employers will continue to cross their fingers and hope they are making the right decisions in this legal gray area.

Publication date:02/07/2011