August 24, 2014
■State laws vary, but employers still have the right to enforce drug-free workplace policies and dismiss workers if they can prove impairment on the job, experts say.
■The issue remains in flux as legal battles play out in state courts across the country.
■Research is limited on the subject, but two medical organizations recently formed a task force to study workplace health and safety issues associated with marijuana.
Julie Carter is well aware of the burgeoning movement to legalize medical marijuana. It's debated at jobsites. It's splashed across headlines. It's discussed among safety professionals. And no matter your stance on the issue, one thing is certain: It's not going away anytime soon. "I think it's going to be a hot-button issue for some time yet because things are changing so rapidly," said Carter, director of environmental, health and safety at Roy Anderson Corp., a Gulfport, MS-based construction company. "As a corporation, we are maintaining that we have the right to a drug-free workplace. Those are our policies, period." Yet when it comes to recent medical marijuana laws and what they might mean for workplace safety, the predominant punctuation is a question mark. The language of each law varies, leaving all parties involved having to navigate a legal maze when it comes to employers' and workers' rights. As of press time, 23 states and the District of Columbia had passed laws allowing the use of medical marijuana, and two of those states – Colorado and Washington – had passed laws permitting the recreational use of marijuana. (See map.) All of those laws stand in contrast to federal law, which prohibits marijuana as a Schedule I controlled substance in the same category as LSD, heroin and ecstasy. The federal government has said it will not prosecute people who abide by their state's marijuana laws. As to whether employers can ban its use by workers – including those with prescriptions to use medical marijuana outside of the workplace for chronic diseases and conditions such as cancer, glaucoma, multiple sclerosis and Crohn's disease – the answer depends on each state and its courts. In some states, including Washington, Oregon and Michigan, judges have ruled on the side of employers. In other states, including Minnesota, Arizona and Delaware, lawmakers have added specific protections for workers with medical marijuana prescriptions, shielding them from adverse action by employers based solely on a positive test result. "There are a lot of layers to it," said Vance Knapp, a lawyer who represents employers in Colorado and Arizona for Denver-based Sherman & Howard LLC. "What we're seeing is sort of a hodgepodge of rules and regulations from state to state to state." Safety implications Marijuana is a mind-altering drug that contains more than 400 chemicals, according to the Drug Enforcement Administration. One of those chemicals, THC, is believed to be the main cause of psychoactive effects as it travels from the bloodstream to the brain. For a crane operator, pipe fitter, welder, truck driver or anyone else in a safety-sensitive position, the drug can pose dangers. The short-term effects of marijuana include distorted perception; loss of coordination; and problems with memory, learning and problem-solving, according to DEA. Workers should treat medical marijuana the same as other prescription drugs such as Vicodin or Percocet, which can impair mental and physical abilities and affect worker safety, said Rosalie Liccardo Pacula, a senior economist with Santa Monica, CA-based nonprofit research institute RAND Corp. Workers also should know the rules of their state and their employer, particularly if they are subject to Department of Transportation regulations or if their employer has federal contracts – both of which can supersede protections in state laws. Other variables exist, such as a wide range in potency levels of THC in different types of marijuana. Someone who ingests marijuana that has a higher THC content may become more impaired and, in turn, less safe. "We're not talking about a single substance when we talk about marijuana," said Pacula, who serves as co-director of the RAND Drug Policy Research Center. "It's the equivalent of saying 'alcohol' and encompassing hard liquor with low-alcohol-content stuff. We need our laws and policies to be more mindful of that." Meanwhile, many safety professionals have become more diligent about observing employees during stretch-and-flex drills, lunch breaks and other encounters. "In some of the states where medical marijuana is legal, we have been increasing our awareness and making sure that we look at our employees," Carter said. "Get a visual on them. [Be aware] if they seem not on their game, if they seem distracted – for any reason, but especially for that. We have this saying. We call it, 'Eyes on hands, mind on task.' When you're stoned, you've got none of that going on." Employers' rights versus workers' rights If an employer can prove a worker is impaired on the job, then that employer can take action regardless of the residing state. But what if a worker shows no impairment but tests positive for marijuana? Does the employer have the right to fire that worker as part of its drug-free workplace policy? Knapp's short answer consists of two words: "Yes, but …" His long answer covers a slew of recent court cases, most notably Colorado's Coats v. Dish Network. The plaintiff in that case, Brandon Coats, is a quadriplegic licensed to take medical marijuana. After Coats failed a drug test, Dish Network fired him from his job as a customer service representative. Coats sued the company, but the state's Court of Appeals sided with Dish Network. At press time, the case was pending in the Colorado Supreme Court. "I've been advising my clients that you can have a zero-tolerance drug policy in your workplace, but there is that risk that there's going to be litigation," Knapp said. "The issue for employers, especially employers who are engaged in safety-sensitive activities, is that they have to be concerned about, 'Can I still discipline an employee that has trace amounts of THC in their bloodstream?' … When it comes down to the particulars of what you can or cannot do under your particular state law, that's when you really need to contact your employment counselor." Employers have been doing exactly that in Minnesota, which in May became the 22nd state to legalize medical marijuana. On the surface, the language in Minnesota's law might make it the most employee-favorable law in the country, said Dale Deitchler, a Minneapolis-based attorney who specializes in labor law with Littler Mendelson. "In states where employment is not addressed, employers have the upper hand," Deitchler said. "In states where employment is addressed, there's no clear-cut winner coming out of this, and companies are going to have to understand that if there's a legal challenge, they're going to have to make new law." Searching for answers As more states legalize some form of marijuana use, researchers and medical professionals are doing their best to keep pace by studying the drug's effects. Earlier this year, the American College of Occupational and Environmental Medicine and the American Association of Occupational Health Nurses announced plans to create a collaborative task force to study workplace health and safety issues associated with the use of marijuana and other drugs. Dr. Kathryn Mueller, president of ACOEM, said the task force's goal is to avoid politicized rhetoric and analyze scientific information to help physicians and employers. "For safety-sensitive jobs, I think that people are not going to allow marijuana to be used on the job because it's going to be a problem, most likely," Mueller said. "The question remains, if you are using medical marijuana in some way, does that preclude you from all jobs that are available?" The answer, as with almost everything else regarding medical marijuana, is up for debate. "I suspect this is something that is going to get resolved by lawyers in court, and it will take a little while," Pacula said. "But right now, there appears to be a lot of variation in how states are addressing it because they haven't really been thinking about it. It's all very new." Tom Musick Associate Editor