Medical Marijuana Poses Problems for Work Places That Require Drug Testing
Montana User Sues Under Disabilities Act after Failing Mandated Tests
BY ELLEN SIMPSON
The quagmire of medical mariju-ana continues to intensify. The exploding number of cards being issued by travelling caravans of doctors who spend less than 10 minutes per patient prior to allowing the use of marijuana for alleged medical purposes is staggering. A criminal indictment of a Livingston member of the notorious Outlaw motorcycle gang revealed that the member told an undercover agent that all members of the gang had procured medical marijuana cards in connection with distribution. Medical marijua-na cards are carried by 1.25 percent of the general population in Montana, yet by about 9 percent of parolees in the state. The impact of this on Montana communities and businesses is as yet unknown, but common sense indicates it, too, will be staggering.
Montana voters in 2004 approved the Montana Medical Mari-juana Act through passage of Initiative 148. The Act was sold to the public as a last resort solution for those suffering from certain debili-tating medical conditions including wasting syndrome, cancer, AIDS, and Multiple Sclerosis. According to reports, the number of patients was relatively low, not even 1,000 by June 2008, four years after passage. Now two years later, the number of individuals with medical marijuana cards is over 15,000 and climbing, and the state medical board has had to discipline a medical doctor for wholesale approval of marijuana cards via “cannabis caravans.”
Twenty-five percent of the card carriers are 21 to 30 years old with most claiming chronic pain. Are 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 as more facts are unveiled by authorities attempting to regulate medical marijuana.
This usage is of 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 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 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 legalized medical marijuana, but cases are starting to appear in which workers have been fired for failure to pass a drug test and who have sued employers claiming a violation of their rights for failing to accommodate medical marijuana use by waiving terms of a company’s drug testing policy. The Oregon Supreme Court recently ruled that state law is trumped by federal law classifying pot as an illegal drug and that an employer is within his rights to fire a worker who could not pass the drug test because of use of medical marijuana. 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 accom-modate an employee’s use of medical marijuana. However, part of a Montana lawsuit claimed that the sued employer violated the American with Disabilities Act in addition to the Medical Marijuana Act. It is unclear as to whether the ADA applies, but the water has become even murkier 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 employ-ers for on-the-job injuries to workers. All worker’s compensation policies exclude any employee who is impaired when injured. This includes prescription drugs and 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. Yet, all employees deserve to feel safe in their work environments, especially when hazardous equipment is involved. So, this is of special concern as a matter of public safety.
Montana’s mills and manufac-turing 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. However, accidents do happen even under the best of circumstances, but adding more possibilities that create hazards 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 case in the court of public opinion and to legislative committees. One clear observation appears to be that this is a well-intentioned effort that has been hijacked and now is running amok with numerous consequences for those who live and work in Montana.
Ellen Simpson is Executive Vice President of the Montana Wood Products Association.