High on the Job-Medical Marijuana in the Workplace

March 7, 2010 – When Colorado voters in 2000 approved the medical marijuana initiative, buried deep in the language was this sentence: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace.”

0306MARIJUANA VERTICAL-LIGHTSince then, only a handful of people in the state have had to deal with that sentence, said Warren Edson, a Denver lawyer who helped craft the constitutional amendment that voters barely approved, by a 51 percent majority.Picture 2

“We may have tolerant employers, or employees weren’t showing up to work messed up, so there’s no reason to go there,” Edson said last week during a telephone interview. “It’s always up to the employer. They don’t have to fire you, but they can if they want to.”

Locally, companies are watching state lawmakers as they grapple with the issue, which fundamentally is based on the rights of the state versus the federal government. Although Colorado voters approved possessing small quantities of marijuana for medical reasons, as have 13 other states, federal law still classifies marijuana as a Schedule 1 controlled substance and illegal to possess. The Obama administration in October said medical-marijuana prosecutions would be discouraged at the federal level.

“It’s so new, it’s really kind of a gray area,” said David Bruzzese, spokesman for Mercy Regional Medical Center, which does pre-employment drug screening but hasn’t ever had to deal with an employee who uses medical marijuana.

Mercy, like many workplaces, has a drug-free workplace policy, which prohibits employees from using illegal drugs. Employees can’t come to work under the influence of any drugs that affect their ability to perform their jobs safely or effectively, whether it’s prescribed or over-the-counter, Bruzzese said. The policy is meant to protect patients’ safety.

Currently, there is no policy against using medical marijuana at Mercy, but the parent company, Catholic Health Initiatives, is looking at creating a policy, Bruzzese said.

In the meantime, if an employee were prescribed medical marijuana, the hospital would look at it on a case-by-case basis, he said.

“Patient safety is our priority,” Bruzzese said. “If an employee is taking any medication, whether it’s over-the-counter or prescription, and that medication could impact their ability to do their job safely or effectively, they wouldn’t be allowed to work.”

THC, the psychoactive compound in marijuana, stays in the human system for 30 days, which means drug tests can detect its presence well after the drug’s effects have worn off.

Purgatory at Durango Mountain Resort also prohibits the use of medical marijuana – even if it’s consumed on the employee’s own time, said Beth Holland, spokeswoman for the resort.

The policy says: “No employee shall report to work or be at work with alcohol or with any detectable amount of prohibited drugs in the employee’s system.” And that policy also applies to prescribed medical marijuana, Holland wrote in an e-mail to the Herald.

Andrea Seid, marketing manager for the Durango & Silverton Narrow Gauge Railroad, declined to comment for this story.

The city of Durango and La Plata County governments seem to follow different criteria than private companies when it comes to employees’ use of medical marijuana.

Both the city and the county said they don’t have a problem with employees using medical marijuana if it was recommended by a doctor, on the following conditions: b That the substance is not consumed at work or during work.

b Employees can’t report to work under the influence of medical marijuana.

b Certain employees, such as police officers and those who operate heavy machinery, can’t use medical marijuana at all.

City Manager Ron LeBlanc said if employees show up to work under the influence of medical marijuana, it would be handled the same as if the employee came to work heavily sedated on prescription drugs. The employee would be sent home until he or she could perform the job safely and effectively.

Kelli Ganevsky, human resource director for the county, said the county has a drug-free-workplace policy, but what employees do on their own time is their business, as long as it doesn’t result in impairment at work. The county doesn’t do pre-employment drug testing, but if county officials suspect an employee of using illegal substances, a drug test can be ordered.

Ganevsky said medical marijuana would be treated like alcohol: If employees drink on their own time and are sober in time for work, there’s no problem. But they can’t show up to work intoxicated or consume alcohol at work or during work.

“Right now, it’s just common sense – you can’t be significantly impaired and do a job,” Ganevsky said.

Criminal offenders on probation often are prohibited from using alcohol or drugs. But when it comes to medical marijuana, offenders with valid medical marijuana certificates can be authorized to use the drug on a case-by-case basis, said Vick Blasi, chief of the 6th Judicial District Probation Department.

“We recognize that marijuana is a controlled substance, and probation officers will not grant that kind of permission without direction from the sentencing judge,” he said.

Two of the four local marijuana dispensaries said they are unaware of clients being fired from their jobs for using medical marijuana.

Stuart Prall, a Durango lawyer who has researched medical marijuana laws, said the state Legislature hasn’t yet outlined what, if any, rights employees have to use medical marijuana and keep a job.

“Nobody yet has addressed it through the courts or the Legislature,” he said. “We’re hoping someone gives us guidance on that.”

How medical marijuana gets incorporated into the day-to-day living of society – whether it’s at the workplace or behind the wheel of a car – is an issue state lawmakers and the courts must deal with in coming years, said Mark Grueskin, a Denver lawyer who drafted Colorado’s medical marijuana amendment.

“I think that’s one of the big issues,” he said Friday during a phone interview. “There’s a lot of uncertainty about this.”

When lawmakers passed the medical marijuana amendment, the intention was that it would be a private activity among those who needed it for personal wellness, Grueskin said.

Colorado is an “at-will employment” state, meaning employers can fire workers almost without cause, except when it comes to race, gender and age. But another state law prohibits employers from firing someone for partaking in legal activities outside the workplace, Grueskin said. The law was passed about 15 years ago under lobbying pressure from the tobacco industry, which wanted to make sure people who smoked at home or in their cars weren’t going to be fired.

It is conceivable that type of protection one day could spill over into the realm of medical marijuana, Grueskin said.

There is no universal answer when it comes to medical marijuana in the workplace, he said. Heavy-equipment operators always are going to be held to a different standard than a file clerk or someone who rakes leaves for the city, he said.

Yet it is doubtful that even a file clerk one day will be able to use medical marijuana while at work, he said.

“It’s a legitimate balancing that’s going to have to be arrived at,” Grueskin said. “I’m not sure anybody has the formula of what that’s going to look like right now.”

In the meantime, the vast majority of people on the medical marijuana registry don’t seem to be testing the boundaries by consuming pot in public or putting their employers in an uncomfortable situation, Grueskin said.

“Right now, I have to believe that the vast, vast majority of people who are on the medical-marijuana registry and are using it for valid purposes have no desire to put their employment at risk or put their employer in a difficult position,” he said.

He added: “By and large, employers aren’t looking to put their employees who have debilitating medical conditions in a more challenging position by forcing them to choose between this level of treatment or a paycheck.” Source.

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