Occupational Health & Safety Apr 2006

HOW STATE MEDICAL MARIJUANA LAWS AFFECT WORKPLACE DRUG TESTING
Josephine Elizabeth Kenney

SUMMARY: There has been a great deal of publicity, significant legislative activity, and recent case law on the authorized use of medical marijuana during the past few years that must be taken into consideration in workplace drug testing programs. However, under state and federal Americans with Disabilities Act (ADA) laws, employer still may have to consider accommodating an employee whose medical condition has led to a recommendation of medical marijuana use. Based on the state or states in which an employer is located, different statutes affect the policies the employer must follow. Even if a particular state in which an employer's business is located has state marijuana laws, the employer is not necessarily bound to accept medical usage as a legitimate reason for a positive test. In addition to medical marijuana state law, state case law decisions must be considered in an employer's policy decision. A critical point is that the laws of 13 states are inconsistent with federal law.

There has been a great deal of publicity, significant legislative activity, and recent case law on the authorized use of medical marijuana during the past few years that must be taken into consideration in workplace drug testing programs. Legislation and case law are constantly changing and affecting this topic, making it difficult for employers to determine what they must do to minimize their legal risk but still meet the objectives of their drug-free workplace programs.

Currently, and as a result of the critically important U.S. Supreme Court decision Alberto R. Gonzales, Attorney General, et al. v. Angel McClary Raich, et al., No. 03-1454 (decided June 6, 2005, 125 S.Ct. 2195), in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result. (This case is generally referred to as Ashcroft v. Raich or Gonzales v. Raich.)

The case was argued on Nov. 29, 2004. It involved two California patients' rights to cultivate and possess prescribed marijuana. These patients had previously been protected from federal prosecution by a 9th U.S. Circuit Court of Appeals decision. More fundamentally, the case debates states' rights versus federalism. On June 6, 2005, the Supreme Court ruled the federal government may enforce the Controlled Substances Act's prohibition on the use of marijuana for medical reasons against persons who use marijuana under state medical marijuana laws.

This decision may affect the way medical marijuana use is interpreted in the workplace in future court decisions. By affirming that the use of medical marijuana is illegal under federal law, employers can refuse to consider accommodations that would acknowledge or support illegal activity.

Accordingly, and of most significance to workplace drug testing: "Medical Review Officers, too, can verify drug test results as 'positive' for marijuana even if the employee is using the drug under state law without fear that by so doing, they are ignoring medical authority making such use lawful." Source: Dale L. Deitchler and Nancy N. Delogu, Littler Mendekon, P.C.-DATIA Resources

However, under state and federal Americans with Disabilities Act (ADA) laws, employer still may have to consider accommodating an employee whose medical condition has led to a recommendation of medical marijuana use. What an employer may need to do to accommodate the individual will involve a determination of what is a "reasonable" accommodation under ADA. The employer should clearly state its position on medical marijuana in its Drug Free Workplace Policy. In addition, the employer must approach a challenge to the test result based on state or federal disabilities law with care and the benefit of knowledgeable, local legal counsel.

The Impact of These Laws on Workplace Drug Testing

Based on the state or states in which an employer is located, different statutes affect the policies the employer must follow. Even if a particular state in which an employer's business is located has state marijuana laws, the employer is not necessarily bound to accept medical usage as a legitimate reason for a positive test.

The exceptions are Montana, whose laws state that "penalizing in any way" is prohibited, and California, because litigation exposure is high. The government 's position is that both medical marijuana and hemp product ingestion are not reasonable medical explanations for a positive laboratory drug test result. A contrary policy decision may very well undermine the objectives of an employer's program.

Thirteen states have medical marijuana laws: Alaska, Arizona, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington. The purpose of these laws was to insulate physicians from criminal liability for prescribing or recommending the use of smoked marijuana and their patients from possessing and using smoked marijuana for specific medical conditions.

Additionally, each of the 13 states with such laws have unique statutory requirements that must be followed in order to claim the protection of the statute. All of the statutes have some type of limitation on the amount of marijuana the patient or caregiver may purchase/grow/possess/obtain. For example, Arizona requires employers to accommodate the medical use of marijuana in the workplace, and Maine specifically prohibits marijuana in any place of employment. Furthermore, the possible conflict of the Arizona medical marijuana state law with federal law makes it questionable as to whether making a workplace accommodation for use of medical marijuana is a prudent election. A critical point is that the laws of these 13 states are inconsistent with federal law.

Highlights for each of the 13 states are as follows:

1. Alaska. Identification cards are required for both the patient and the caregiver. The card must include the physician's recommendation and the diagnosis of the debilitating condition. The patient must register with the Department of Health and Human Services.

2. Arizona. Any medical doctor licensed to practice in Arizona may prescribe a Schedule 1 Controlled Substance, including marijuana, to treat a disease or to relieve the pain and suffering of a seriously ill patient. A second doctor must provide a second opinion in writing stating the controlled substance is appropriate to treat the disease or to relieve the pain and suffering. The opinion must be kept with the patient's medical file. The doctor must obtain the patient's written consent prior to prescribing the controlled substance.

3. California. Under the California law, "seriously ill" individuals have the right to obtain and use medical marijuana for medical purposes where the use is deemed appropriate and has been recommended (it does not have to be prescribed) by a physician who has determined that the person's health would benefit from marijuana use in the treatment of cancer, anorexia, AIDS, chronic pain, spascity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. 11362.5.

Under section 11362.71 (f), it is not necessary for a person to obtain an identification card in order to claim the protections of 11362.5.

Registry Identification cards are voluntary for patients and caregivers but must include a physician's recommendation regarding the patient's diagnosis. Should an individual choose to use the identification card as proof he is entitled to the protection of the statute, it is valid for one year. 11363.745. During the renewal process, the county health department or its designee verifies all new information and may verify any other information that has not changed prior to issuing a new card.

(Note: Ross v. Ragingwire Telecommunications, Inc., decided in September 2005 on the pleadings, is under review/on cert to the California Supreme Court. The initial decision in Ross, published after the Supreme Court's decision in Gonzales v. Raich, held that employers were not required to hire an applicant who tests verified positive on a pre-employment drug test but provides a medical marijuana explanation for the positive laboratory test result.)

4. Colorado. Registry Identification cards are required for patients and caregivers.

5. Hawaii. Registry Identification cards are required for patients, as well as a physician's written diagnosis and opinion. The physician must register the patient's name with the Department of Health.

6. Maine. Although no Registry Identification cards are required, patient must have an authenticated medical record or written documentation from a physician that states the diagnosis and advises of the benefit of medical marijuana. The patient must be under the continuing care of the same physician.

7. Maryland. This law relates only to criminal prosecution for medical marijuana and related medical necessity defenses.

8. Montana. Registry Identification cards are required for patients and caregivers by the Department of Public Health and Human Services. The department must maintain a confidential list of patients and caregivers issued cards. The names may not be disclosed except to employees of the department and authorized employees of state or local law enforcement authorities. A qualifying patient (debilitating medical condition required) or caregiver who possesses a card may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by a professional licensing board or the Department of Labor and Industry, for the medical use of marijuana or for assisting in the medical use of marijuana if the qualifying patient or caregiver possesses marijuana not in excess of the amounts allowed in subsection (2).

9. Nevada. Both patients and physicians must register with the Department of Agriculture. Written documentation from a physician that marijuana may alleviate a condition (chronic or debilitating condition is defined in the statute) is required.

10. Oregon. Registry Identification cards are required for the patients, including a physician's written statement of the diagnosis and the need for medical marijuana.

11. Rhode Island. Registry Identification cards are required for the patients, including written certification from a practitioner registered with the Department of Health. The card must be renewed annually.

The Rhode Island law, passed after the Gonzales v. Raich decision over the governor's veto, states that "no school, employer, or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a registered qualifying patient or a registered primary caregiver."

12. Vermont. Registry Identification cards are required for patients. The cards are obtained from the Department of Public Safety, and the patient must apply to the department by attaching his or her medical record documenting he or she has a debilitating medical condition as determined by a physician in the course of a bona fide doctor-patient relationship.

13. Washington. Although no Registry Identification cards are required, patients must have physician's documentation of diagnosis and need for medical marijuana use.

Important Steps for Employers

In addition to medical marijuana state law, state case law decisions must be considered in an employer's policy decision.An example of this is the Oregon Appeals Court Decision in Washburn v. Columbia Forest Products, Inc., A116664, filed Jan. 12, 2005. The court ruled that Oregon employers might have to make reasonable accommodation for disabled workers invoking the protection of Oregon 's Medical Marijuana Statute because of the requirements of the Oregonians with Disabilities Law. The court also ruled that Washburn's medical use of marijuana does not automatically entide him to accommodations. Rather, an employer could argue that certain accommodations might be unreasonable or create "undue hardship."

What should an employer do?

* Specifically notify applicants of its medical marijuana policy in writing at the time of application and notify current employees of its policy on medical marijuana, as well.

* Include clear information about its position on medical marijuana in its drug and alcohol testing policy.

* Approach the issues related to use of medical marijuana in the workplace with special care and sound legal advice in California, Montana, and Rhode Island.

Based on the state or states in which an employer is located, different statutes affect the policies the employer must follow.

Approach the issues related to use of medical marijuana in the workplace with special care and sound legal advice in California, Montana, and Rhode Island.

Josephine Elizabeth Kenney (jkenney@FADV.com), J.D., is Senior Vice President of Compliance far First Advantage Corp.'s Occupational Health Group, Employment Screening Services Division. Prior to joining St. Petersburg, Fla.-based First Advantage in June 2004, she was Choice Point's Director of Special Services and Compliance, responsible for legal and regulatory compliance.

This article is not offered as legal advice but is instead offered for informational purposes. First Advantage Corp. is not a law firm and does not offer legal advice; the article is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user's individual circumstances. First Advantage Corp. makes no assurances regarding the accuracy, completeness, currency, or utility of the information. Legislative, regulatory, and case law developments regularly affect general research.