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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