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Medical marijuana in workplace: a moving target

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Are you prepared should the legislative and executive branches agree to legalize medical marijuana in Pennsylvania?

We can learn from the lessons acquired in other states.

Twenty-three states and the District of Columbia protect marijuana or cannabis users from criminal prosecution when these substances are taken for medical purposes. Another 11 states allow for medical marijuana in limited situations, and another nine have legislation pending.

As a human resource professional and an adviser to business and industry, your business may be subject to far-reaching consequences should marijuana be legalized for medical purposes.

What would you do in this situation?

An employee injures his back on the job. Under Pennsylvania Senate Bill 1182, the Compassionate Use of Medical Cannabis Act, your employee's attending physician recommends cannabis therapy for the worker.

Is the employer obligated to pay for medical marijuana through workers' compensation?

Consider a recent appeals case ruling in New Mexico, Vialpando v. Ben's Auto, where the appellate court found Ben's Auto (the employer) responsible for paying for medical marijuana through workers' compensation.

What would you do?

You own a computer-assisted manufacturing machine shop and an employee informs you that her doctor has recommended medical marijuana to treat cancer, glaucoma, post-traumatic stress disorder or severe and persistent muscle spasms (to name a few).

To allow the employee to operate potentially dangerous and highly complex equipment while under the influence of marijuana may result in placing the employee in a potentially harmful situation.

Does the employee's admission that she is taking medical marijuana for pain relief qualify her under the Americans with Disabilities Act for reasonable accommodations? What job do you assign her?

Marijuana is still considered by the federal government to be a Schedule 1 illegal drug. The ADA is a federal act and does not cover marijuana usage.

In New York state, however, the Legislature has established protection to the medical user of marijuana against discrimination. In that state, when a company learns that a person is on medical marijuana, there may be need to determine reasonable accommodation.

What would you do?

You own a trucking company and you are sending drivers on short and long hauls. Should you be concerned that one of your drivers may be taking medical marijuana?

Yes, you should be concerned, but in this particular case, the Office of Drug and Alcohol Policy and Compliance, which advises the Secretary of Transportation on national drug testing and control issues, has clearly stated: “We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation's regulated testing programs.

“The Department of Transportation's Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize 'medical marijuana' under a state law to be a valid medical explanation for a transportation employee's positive drug test result.”

There is much to be worked through at a legislative level, but for your business, you would be well advised to update your company's human resources handbook.

Many companies have instituted these steps when drugs are suspected as a cause for on-the-job accidents:

• Reasonable suspicion: Employees are subject to testing based on observations by a supervisor of apparent workplace use, possession or impairment. HR must be consulted before sending an employee for reasonable suspicion testing.

• Post-accident: Employees are subject to testing when they cause or contribute to accidents that seriously damage a company vehicle, machinery, equipment or property and/or result in an injury to themselves or another employee requiring off-site medical attention.

In any of these instances, the investigation and subsequent testing must take place within two hours following the accident, if not sooner.

• Follow-up: Employees who have tested positive, or otherwise violated a company's drug policy, are subject to discipline up to and including discharge.

Depending on the circumstances and the employee's work history/record, companies may offer an employee who violates this policy or tests positive the opportunity to return to work on a last-chance basis pursuant to mutually agreeable terms. Those terms could include follow-up random drug testing at times and frequencies for a minimum of one year but not more than two years.

If the employee either does not complete his/her rehabilitation program or tests positive after completing the rehabilitation program, he/she will be subject to immediate discharge from employment.

In the event your company needs to identify a drug test, be aware that different tests have different levels of sensitivity. The average detection periods for marijuana vary greatly by the method used.

An oral fluid test has an average detection period of one to 12 hours. For urine tests, the time is two to three days, while it is two to 90 days for a hair follicle test.

Gregory J. Smith is president of Executive Human Resource Solutions LLC, which provides HR “on-demand” — helping businesses grow by turning fixed HR costs into variable expenses. For information, visit www.executivehrsolutions.com.

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