With medical cannabis now legal in 15 states and the District of Columbia, the issue of medical pot in the workplace is becoming increasingly significant, affecting various companies and government agencies as well as thousands of individual medical marijuana patients.
The ongoing conflict between the legal right to self-medicate versus concerns over workers being intoxicated on the job warrants a closer look at the recent history and latest developments regarding medical marijuana in the workplace.
In Montana, a state where medical marijuana may soon be outlawed, House Bill 43 (HB 43), sponsored by Gary MacLaren (R), would create certain exceptions to the protections granted by the state marijuana law, significantly increasing the number of employees that could face random drug tests. More damaging, if medical marijuana is discovered via testing, an employee could be fired, regardless of their level of intoxication or even their previous job performance history; all wiped out with one positive test for legal medicine.
(HB 43) puts the use of medical marijuana on a par with the use of alcohol or other drugs in the workplace or outside the workplace, Rep MacLaren told KFBB News Channel 5 without a hint of irony.
The real motivation for HB 43’s creation may have been revealed by supporters who claim the bill not only promotes safety in the workplace, but it offers protection from costly legal action.
In Washington State, which legalized medical pot in 1998, a case heard by the Washington Supreme Court in January may shape the legal boundaries of medical marijuana in the workplace. In 2006 a female known as Jane Roe€ was fired from a Bremerton, WA call centre because she failed a pre-employment drug screening, despite having a legal recommendation from a doctor to use medical-pot for migraines.
It will be fascinating to see what comes out in Washington, as courts have already found favour of businesses over employees in the other two Pacific Rim states of California and Oregon. If the court legally defines medi-pot use as a disability, that could protect employees testing positive for medical marijuana.
In 1998 the Washington medical marijuana law had a provision stating employers did not have to accommodate medi-pot use in any workplace. In 2007, the State Legislature modified the law, specifying that on-site medicinal use of pot was not to be accommodated by employers. However, there was no specification regarding outside use of medical cannabis or for those who use it before they take their initial drug-screening test for a given employer.
Rhode Island’s progressive medical marijuana law prohibits employers from refusing to employ or penalizing a person simply on the basis of being a medi-pot patient or even a caregiver. Colorado has an equally sane Lawful Off-Duty Activities Statute, protecting employees from being penalized for any legal activity conducted outside the workplace (and medical marijuana is legal in Colorado).
The United States Department of Transportation issued new guidelines in 2009 prohibiting medi-pot use by employees in safety-sensitive jobs even in states where it is legal and regardless of the fact that the medicine was used during a patient’s off-time.
In semi-related news, the Ninth U.S Circuit Court of Appeals in San Francisco ruled on March 2 that employers could refuse to hire an individual who has ever tested positive for any drugs, including marijuana, even if the applicant is currently drug-free.
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