
Sun Sentinel

Medical Marijuana: A Problem For Employers

Connecticut recently became the 17th state, in addition to the District of Columbia, to legalize marijuana as a so-called medicine. So what's the big deal? Besides the fact that another state has literally gone to pot, the new law forbids employers from refusing to hire, discharge or penalize individuals based upon their marijuana use.

The law prohibits employment decisions based upon a positive drug test if the individual is a medical marijuana cardholder and did not use, possess or indicate impairment while on the job. But how will impairment be determined? No "impairment" level has ever been established; drug tests only detect the presence of drugs, not "impairment." Studies, including one by the National Highway Traffic and Safety Administration, indicate impairment caused by marijuana use can persist for as long as 24 hours.

Studies by the U.S. Department of Labor and the U.S. Chamber of Commerceshow that drug users are only two-thirds as productive as non-users. Drug use contributes to increased thefts, damaged equipment and other costs in the workplace. National data tell us that drug-using employees are 3.6 times more likely to be involved in workplace accidents and five times more likely to file workers' compensation claims. They are also three times more likely to use medical benefits. Business owners lose an estimated $100 billion per year due to substance abuse.

This new law will make business operations extremely complicated for public, private and non-profit entities. The costs for employers will skyrocket and small businesses, who can least afford it, will suffer the most.

Non-profit and public organizations will risk qualifying for federal grants as all employers must certify they are a drug-free workplace. In the private sector, those who receive federal contracts of $100,000 or more are required to prohibit the use of marijuana as per the Drug Free Workplace Act of 1988. Also, the Department of Transportation prohibits the use of marijuana for any purpose by transportation workers in safety-sensitive jobs. The Occupational Safety and Health Administration maintains that employers have a "general duty" to provide a safe work environment to their employees.

To date, there have been many court rulings supporting employers' rights to maintain drug-free workplaces regardless of state laws pertaining to medi-pot. These rulings vs. the new marijuana law certainly put Connecticut employers in a legal quagmire. The hands of Connecticut business leaders have been tied, putting them at risk for legal liability. They will not be able to screen out risky job applicants who are pot smokers or eliminate the risky behavior of current employees.

As public and private employers struggle in today's unstable economy, this law could be crippling. Connecticut employers are likely to experience more workplace accidents, injuries, property damage and thefts and yet will likely find it more difficult to obtain insurance. As rates climb due to increased claims, many employers will struggle to cover these costs. But, more important, many may become uninsurable.

Insurance companies typically exclude liability for "illegal activities" and marijuana, even as a so-called medicine, remains illegal under federal law. At least one insurance company has already refused to provide liability coverage for a contracted county employee who would be overseeing marijuana dispensaries in Colorado. In a letter from the insurer, it was stated "Liability arising from the willful commission of a crime or other dishonest fraudulent act:), may preclude coverage due to the inherent conflict of state laws that provide a limited exemption for medical marijuana versus federal laws that may apply." Further advice was given by the insurance company that the cited exclusion is applicable to all of its insured's employees, thus rendering the client uninsurable.

It is unfair, and certainly unwise, to grant special rights to a small minority to smoke pot while jeopardizing the safety of others forced to work with those who may be impaired. How can Connecticut refuse to indemnify businesses when it is the workforce that continues to help the state prosper? Why would any company consider bringing new business into the state under these employer-hostile conditions? Legalization of marijuana for any reason is just plain bad for business.

Calvina Fay is the executive director of Drug Free America Foundation, a national and international nonprofit organization that promotes effective drug policy.

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