Workers Using Medical Marijuana Hold Their Breath, but Employers Worry They'll Take a Hit

April 29, 2011
Every day at lunch and several other times during the workday, stockbroker Irvin Rosenfeld lights up a joint in his car in his company's parking lot.
He isn't just toking up over a sandwich. He's using medical marijuana to alleviate pain caused by a rare bone disorder, and he has been doing it every day for nearly 30 years. Rosenfeld says his clients and co-workers in Fort Lauderdale, Florida, know about his pot use, and aside from one harrowing lunchtime encounter with federal drug enforcement agents, he has used cannabis during work hours without incident.
Rosenfeld, 58, sees marijuana as no different than oxycodone or any other prescription pain reliever. So when legislators in Montana held hearings last month to discuss repealing a 2004 law that allows medical marijuana for such conditions as cancer and HIV/AIDS, he was eager to testify about the drug's benefits.
“I want people to know that it is possible to be a productive employee and a marijuana patient,” says Rosenfeld, who was invited to speak by local medical marijuana activists. “You don't want marijuana to interfere with your life—you want it to enhance it. When you're sick like me, you don't want to sit around and think about your disease all day. You want to be active. That's why work is so important.”
Medical marijuana is a burning political issue in a growing number of states, and employers are scrambling to understand how the laws affect workplace safety, job discrimination and other legal issues. Complicating matters is the lack of uniformity among the states and the fact that, except for Arizona, Maine, Michigan and Rhode Island, none address employment issues, legal experts say.
Employers also need to be concerned about federal law, which considers marijuana an illegal controlled substance. Rosenfeld is among a handful of medical marijuana users who don't risk prosecution because he actually gets his pot supply from the federal government. He is part of a little-known initiative called the Compassionate Use Investigational New Drug Applications program, which is administered by the National Institute on Drug Abuse, a federal research agency. The program was shut down in 1992, but Rosenfeld says he and the few surviving patients continue to receive monthly marijuana supplies.
Currently, 15 states and the District of Columbia have laws that allow patients with certain medical conditions to use marijuana without fear of prosecution. Several more are considering similar legislation, including Connecticut, Delaware, Illinois and Maryland, according to Karen O'Keefe, director of state policies for the Marijuana Policy Project in Washington, D.C. Since California became the first state to legalize medical marijuana in 1996, she says public awareness and support have been growing.
    And so has the market for medical marijuana. It generates $1.7 billion a year—a figure that is expected to double over the next five years as more states adopt medical marijuana laws, according to a new study conducted by See Change Strategy for the American Cannabis Research Institute and Deal Flow Media, a financial research firm.
In 2010, Arizona, New Jersey and the District of Columbia enacted medical marijuana legislation. And currently, Montana's law stands because a state senate committee is deadlocked over the repeal vote.
While Maine, Michigan and Rhode Island include some employee protections, only Arizona's law states that employers cannot fire or discipline patients “solely for testing positive for marijuana.” However, the law, which took effect last April, does recognize an employer's right to fire a worker who has “used, possessed or was impaired by marijuana” while on the job.
Arizona's law, approved by voters in a ballot measure, is widely viewed by both critics and supporters as the nation's strictest and most comprehensive. Still, the law may raise more questions than answers for employers who are wondering how to determine impairment on the job or how to deal with an employee who tests positive for marijuana.
“We've got lots of employers scratching their heads,” says Chris Mason, a Phoenix-based lawyer with Fisher & Phillips, a national labor and employment law firm. If workers test positive, “Do I fire them and risk legal action or let them stay and wait until they cause an accident? We've consistently sent the message that you need to protect your workplace from drugs. Now we're telling them: ‘Put the brakes on.' ”
Milissa Danceur, human resources director for Phoenix-based Capital Lumber Co., knows the quagmire employers face all too well. In addition to the company's facilities in Arizona, the wholesale lumber distributor operates in four other states that have passed medical marijuana laws. In the past three years, the company wrestled with two cases of job applicants who, during their interviews, revealed their status as registered medical marijuana patients. Both were applying for jobs that involved working with heavy machinery. They indicated that they needed to ingest the drug in the morning before coming to work, which “precluded them from doing the job because we had OSHA requirements to contend with,” Danceur says, referring to the Occupational Safety and Health Administration.
After consulting with a lawyer in both cases, Danceur says the local HR representative asked the applicants to take a drug test. But both declined and decided not to pursue employment. She says the company was concerned about asking too many questions for fear of violating the Americans with Disabilities Act and patient privacy laws.
Employers are finding themselves in the difficult position of being caught between state and federal laws, Mason says. Those with U.S. government contracts must comply with the Drug-Free Workplace Act. Also, the federal Transportation Department prohibits the use of medical marijuana for transportation workers in safety-sensitive jobs, such as pilots and school bus drivers.
While a state law may permit the use of medical marijuana, employers aren't necessarily required to accommodate its use. Those who face a legal challenge from a fired employee are likely to find sympathy in the courts, as Wal-Mart Stores Inc. did after it terminated an employee in 2009 who tested positive for marijuana. The Michigan Supreme Court ruled that the state's medical marijuana law protects users from arrest but not from employers' drug policies. The American Civil Liberties Union then sued Wal-Mart in federal court on behalf of the former employee. The lawsuit was dismissed in February, but the ACLU has appealed the decision.
Nevertheless, Mason is advising his clients to review their drug and alcohol testing policies and eliminate any rules stating that an employee will be fired for a positive marijuana test. Employers should treat medical marijuana as they would any prescription drug, he says. “You wouldn't fire an employee who had a tooth pulled and took a narcotic for the pain.”
A huge point of contention in the Arizona law is the difficulty of defining impairment. Most companies use a urine test that reveals only the presence of pot—not when it was ingested or in what quantity, according to Barry Sample, director of science and technology for employer solutions at Quest Diagnostics Inc. in Madison, New Jersey. Tetrahydrocannabinol, or THC—the active ingredient in marijuana—can stay in the body for weeks.
In response to such uncertainty, many employers are supporting a proposed amendment to Arizona's employee drug testing statute that would protect them from lawsuits if they fire a worker suspected of being impaired on the job. Garrick Taylor, spokesman for the Arizona Chamber of Commerce and Industry, says that while most tests can prove the presence of marijuana, there is no easy way to determine impairment. The amendment defines impairment “as a set of symptoms that cause reasonable suspicion of drug or alcohol use.” It would allow employers to check suspected workers' coordination and cognitive ability, much like a roadside sobriety test, and fire them if they fail.
While activists applaud the passage of state medical marijuana laws, the courts will determine their success, says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, or NORML. So far, decisions in various states do not bode well. “The Michigan case is terrible,” he says. “It would certainly appear that patients don't have a legal leg to stand on in arguing that they can both be patients and employed.”
Medical marijuana proponents in Arizona hope their program will set the standard for other states, according to Lee Phillips, a Flagstaff lawyer who is a member of NORML's legal committee.
Given the strict eligibility standards, Phillips expects only a small number of people to qualify at first.
“This will be by far the most regulated, supervised program in the country,” Phillips says. “We have a very conservative Legislature and police force, and they are very opposed to medical marijuana. The people who will be implementing these regulations are as far from hippies and pot smokers as you can get.”
Workforce Management, April 2011, pgs. 6, 8 -- Subscribe Now!