Medical Marijuana and the Workplace

By Beacon Staff

The quagmire of medical marijuana continues to intensify. The exploding number of cards being issued by mostly traveling caravans of doctors who spend less than 10 minutes per patient prior to signing a card allowing the use of marijuana for alleged medical purposes is staggering. The impact of this on Montana businesses is as yet unknown, but common sense indicates it, too, will be staggering.

Montana voters in 2004 approved the use of medical marijuana through passage of Initiative 148 and statutorily is the Montana Medical Marijuana Act. The act was sold to the public as a last resort solution for those suffering from a debilitating medical condition, including wasting syndrome, cancer, AIDS and multiple sclerosis. According to reports, the number of patients was relatively low, not reaching 1,000 patients until June 2008, four years after passage. Now two years later, the number is over 15,000.

Twenty-five percent of the card carriers are 21 to 30 years old with most claiming severe or chronic pain as the debilitating medical condition needing medical marijuana for treatment. Does this translate into nearly 4,000 Montanans in this age group so ill as to need a drug of last resort to function? It will be interesting to find out more in this regard as more facts are unveiled by authorities attempting to regulate medical marijuana.

This brings up why this usage is becoming an increasing concern to those of us involved in businesses that require drug tests as a condition of employment. Sadly, even before medical marijuana showed up on the scene, it was difficult enough to find employees who could pass a drug test prior to employment. The anecdotal stories by employers in mills, construction and mines are many and varied regarding the numbers of applicants turned away because of failure to pass the test.

The issue is relatively new to the legal system in Montana and other states that have also legalized medical marijuana. The cases are just starting to appear wherein workers have been fired because of failure to pass a drug test and have sued employers claiming it violates their rights because of failure to accommodate medical marijuana use by waiving terms of a company’s drug testing policy. A recent ruling by the Oregon Supreme Court stated that state law is trumped by federal law that classifies pot as an illegal drug and therefore an employer was within his right to fire a worker who could not pass the drug test because of medical marijuana use. The ruling has been called “a shot across the bow” by those who support the use of medical marijuana.

The Montana Medical Marijuana Act clearly provides that an employer is not required to accommodate an employee’s use of medical marijuana. Part of a Montana lawsuit, however, claimed that the sued employer violated the American with Disabilities Act (ADA) in addition to the Medical Marijuana Act. It is somewhat unclear as to whether the ADA comes into play. The water continues to become even more muddy as the number of card carriers grows and the issues become more varied.

Another area where medical marijuana users and the workplace is increasingly sticky is worker’s compensation provided by employers for on-the-job injuries. All worker’s compensation policies exclude any employee who is impaired when injured. This includes prescription drugs as well as alcohol use on the job. According to the construction industry, there is nothing on the books that gives guidelines as to when a worker is impaired from medical marijuana use on the job. All employees deserve to feel safe in their work environments and especially when working in places with hazardous equipment, so this is of special concern.

Montana’s mills and manufacturing facilities work diligently to provide safe working conditions for their employees. It is incumbent upon all employers and employees to do their part to ensure everyone is as safe as possible on the job. Accidents do happen even under the best of circumstances, but to add more possibilities to the mix that create hazards simply cannot be tolerated. Many industrial jobs are inherently dangerous and we all need to be vigilant in doing everything within our power to ensure safety.

The entire business community is watching with great interest as the cast of characters involved with medical marijuana continue to make their cases in the court of public opinion, in front of legislative committees and on the front page of newspapers. One clear observation appears to be that this is a well-intentioned effort that has been hijacked and is now running amuck with numerous consequences for Montana’s citizens.

Ellen Simpson is the executive vice president of the Montana Wood Products Association.

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