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Medical pot and workers’ comp

By Jay MacDonald ·
Tuesday, October 19, 2010
Posted: 10 am ET

If California passes Proposition 19 to legalize marijuana, what effect would it have on medical marijuana laws?

There's a high likelihood, pun intended, that California will legalize marijuana in less than two weeks when voters decide the fate of controversial Proposition 19. While the dawning of Age of Aquarius 2 catches all the buzz these days, workers' compensation and human resources directors have been wrestling the broader implications of legalized pot for years.

A central issue has been whether workers' comp should cover the cost of medically prescribed marijuana in the 14 states that have legalized it, plus the District of Columbia. A California judge last January basically punted the issue to an independent medical evaluator to decide whether a claimant should be supplied with medical marijuana to treat a work-related injury or illness.

Employee use of legalized marijuana has raised a number of conundrums for human resources directors, most of which revolve around an employer's legal responsibilities. For instance:

  • Are medical marijuana users exempt from my anti-drug policies?
  • Can I fire an employee for using medical marijuana?
  • Can I refuse to hire a job candidate based on their medical marijuana use?
  • Can a medical marijuana user sue me under the Americans with Disabilities Act?
  • Do state laws supersede federal laws that classify pot as an illegal substance?
  • Could I run afoul of federal contracts if I don't enforce a no-drug policy?

Understandably, medical marijuana users have similar concerns:

  • If I use medical marijuana, will I get fired, or perhaps not hired in the future?
  • How will medical marijuana use impact my employer's mandatory drug testing?
  • Should I even divulge my "med-hemp" use to my employer?

To say that the answers to these questions are smoky at best would be to understate the bong-fog of federal, state and local laws concerning medical use of marijuana, many of which are in direct opposition to one another. Caught in the middle are people needing relief from pain and well-meaning employers who want to do the right thing.

In 2003, the U.S. Supreme Court ruled that employers can refuse to accept medical marijuana as a reasonable explanation of a positive drug test. In 2005, the Court ruled that the federal government may enforce the Controlled Substances Act's prohibition on "med-hemp" use, even on those who use the drug under state laws.

Many believe that, as California goes, so goes the nation. And if Cali legalizes marijuana, as polls suggest it will, the whole debate over medical marijuana is likely to grow exponentially into such areas as health insurance, auto insurance and work place safety that have gone largely uncharted in the med-hemp debate.

Two questions: Do you think workers' comp should pay for medical marijuana? And how do you think legalized marijuana would affect your work place?

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Erica R
October 21, 2010 at 1:04 pm

If the pharmaceutical companies were smart, they would realize that they can set up growing operations to create hydroponic, "medicinal grade" marijuana.

As far as drug testing is concerned, I have known many people to have prescriptions for opiates and sedatives that very likely weren't needed, and because they had a prescription they were given a bye on that portion of the drug test. Why should it be any different for medical marijuana? I would much rather work with someone under the influence of something as harmless as cannabis than with someone on a narcotic.

Jay MacDonald
October 20, 2010 at 1:50 pm

Thanks for your comments, Dale. I would only add that there's one other player that's likely acting as the hidden planet here, exacting considerable gravitational pull on this debate: the major pharmaceutical manufacturers.

Dale Gieringer
October 20, 2010 at 12:57 pm

Economically, it makes sense for health plans to cover medical marijuana, since it is both safer and cheaper than most prescription drug substitutes. Physicians consistently report a significant reduction in the use of prescription opiates, sedatives, NSAIDs, and other drugs among medical marijuana users.
Legally, there is no question that medical marijuana use is illegal under federal law. All of this makes one question the competency of the federal government in running health care, since there's no doubt that legalization of medical MJ would save the taxpayers billions of dollars. Under state law, the California Supreme Court ruled (illogically, IMHO) that employers have a right to discriminate against medical marijuana users in the workplace. The legislature passed a bill to undo this decision, but Gov. Schwarzenegger vetoed it.
The US remains in the grip of last-century prohibitionist prejudices with regards to cannabis. In Europe and other civilized countries, drug testing of employees is rarely used, with no evident adverse impact on workplace safety. The Netherlands has a better workplace safety record than the U.S., despite having legal marijuana and little drug testing.

B. Watson
October 20, 2010 at 11:37 am

Federally mandated testing (trucking, federal contracts) must not accept recreational or "medical" use as a medically legitimate explanation. Use a certified Medical Review Officer to review test results, be sure the MRO has your company policy to work with.

If a person's performance is not up to standard, for whatever reason, follow your policy. Taking Nyquil or many other OTC drugs is more likely to affect performance than small amounts of THC. If performance is the issue, it doesn't matter what is the cause.

October 19, 2010 at 9:09 pm

Really interesting, thanks for the info.

Aaron Payne
October 19, 2010 at 1:34 pm

PErsonally I believe that if marijuana were to be paid with taxes that it should be legal. Weather it is legal or not people well smoke it.

Don Roberto Hill
October 19, 2010 at 1:29 pm

Dope is for dopes. The dopamine flood demotivates. If you've partaken you know this. It's a chemical "all's well" signal. Why strive when you can feel good as you are wit ha little dope in your system? Only the ignorant would argue that the smoke isn't harmful to the lungs. If you have any doubt, go and get a textbook and read about the cardiopulmonary system (or look it up online).

Legalization will increase dope consumption and hurt our economy. (Exports of dope will present our neighbors with a substantial negative externality.) It will be terribly detrimental to social mores, as well. Those who scoff at the gateway drug effect should just consider how many foolish behaviors take place while under the influence of liquor. And if sober people don't care about problems in the world—the poor, malaria in the third world, teen pregnancy, global warming, suffering feral cats, etc.—I guarantee you that doped up losers will care even less.

Vote NO on 19! For the sake of our future. Please vote responsibly.

C. Burke
October 19, 2010 at 1:27 pm

I think it depends on if you're a national company, or a local company. If your company is national (i.e., have a Brick & Mortar presence in more than one state, you can get away with using the Federal Standard. Since Federal still trumps State laws, per the above mentioned cases, the company can get away with it. If you're only in one location, or several within the same state, then you can still get away with the federal rulings, but you're probably better off just going with the state guidelines. Just my opinion, which doesn't matter in this situation.