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Employers may need to revise their drug policies to avoid potential liability in light of new California and Arizona laws that permit the medical use of marijuana.
Policies that call for automatically refusing to hire potential employees or firing existing employees who test positive for marijuana use may have to be re-examined in light of California's Proposition 215 and Arizona's Proposition 200, which voters approved in November.
These laws state that people can lawfully possess or cultivate marijuana for medical treatment and that physicians will not be punished for recommending marijuana use to a patient.
Employers who have blanket policies "could face a problem, because they are arguably denying employment to someone who is lawfully using a drug, and that could be considered illegal, or illegal discrimination," said Larry J. Shapiro, an attorney and publisher of the Tiburon, Calif.-based California Employer Advisor.
But numerous complicating issues surround the propositions and their effect on the workplace.
These include federal law, which discourages doctors from actually writing prescriptions for marijuana; provisions of the Americans with Disabilities Act, which protects employees from termination if they are disabled and calls for employers to make reasonable accommodations for them; and safety issues over the use of vehicles or heavy machinery by employees who may be under the influence of drugs.
Meanwhile, risk managers say that so far they have not changed their current policies against marijuana use in response to the new laws.
Clearly, voters gave little thought to these propositions' impact on the workplace, say observers.
"I feel certain when the voters voted, they didn't really give any thought to the work-related implications of this," said Andrew Kaplan, an attorney with Silver & Freedman in Los Angeles who represents employers.
But now, employers are going to have to rethink their policies, Mr. Shapiro said.
"I think it's very important for them to review their policies so they don't have a blanket policy of automatically excluding applicants who test positive for marijuana use," he said.
Mr. Kaplan agreed. In the past, when tests determined marijuana use, it was simply assumed the drug was illegal and the employee was subject to termination.
"Now, the employer can't simply make that assumption," and the employer "must take the next step to protect itself and make those post-test inquiries. I'm concerned because I don't think many employers are thinking about that. I don't think their consciousness level has been raised yet."
Dennis J. Walsh, an attorney with Walsh & DeClues in Los Angeles, said some employers may tend to overreact. "It's easy for some employers to say 'We can't possibly have anybody that does this in our workplace'*" without first analyzing the situation.
On the flip side, Mr. Walsh said, employers also "do not have to be overly cautious and put up with decreased productivity or decreased job performance or decreased expectations of performance by employees" because of the use of marijuana or any prescription drug.
"I think that's where analysis is necessary, to make sure you're getting what you're entitled to as an employer without violating any of the rights the employees may have," he said.
It is important that if an employee or potential employee does test positive, that the employer analyze each situation individually to determine whether the marijuana use was recommended for medical purposes and whether its use will interfere with the person's job performance, said Mr. Shapiro.
"The drug test should be performed and analyzed by a doctor who is familiar with the drug testing procedures and drug abuse issues," he said.
If someone tests positive, the doctor should speak to the person involved to determine whether marijuana was used and whether it was on a doctor's recommendation. Then the doctor should determine whether its use would interfere with that person's ability to perform essential job functions. The physician would then report his decision to the employer.
One complicating factor is "the law doesn't require any kind of written prescription," and the employee may not actually have anything in writing showing the drug was recommended by a doctor because federal law, under which marijuana is still considered an illegal drug, prohibits doctors from writing prescriptions for it, said Mr. Shapiro.
As a result, "a lot of doctors are very paranoid about writing anything down at all, which leaves the applicant in a bad position, because they can tell the examining doctor what the story is, but that person may have no evidence to back up what they're saying," Mr. Shapiro said.
This is why the city of Glendale, Ariz., does not consider Proposition 200 a major concern, said its risk manager, Allen Iampaglia. "Federal law will still override Proposition 200," he said.
"I don't think there are many doctors in Arizona who will or are prescribing marijuana," he said. And without a written prescription, he said, the employee can't justify its use. "It's something that the state and federal government must coordinate," said Mr. Iampaglia.
"I need a prescription (from employees). Otherwise, it's an illegal substance," said Mary Ann Matz, human resources director and risk manager for Phoenix Newspapers.
Another relevant issue is the ADA, which calls for reasonable accommodation of employees with disabilities.
The law "increases the dilemma we have" relating to the issue of who must be hired under ADA vs. the protection of other employees and third parties, including customers, from individuals who are impaired, said Jeffrey Pettegrew, vp-risk management and insurance for Walnut Creek, Calif.-based Western Staff Services.
The law "raises a whole set of issues and questions that are going to have to be resolved by accommodation" between this law, existing employment laws, developing laws and regulations and judicial decisions, said Mr. Kaplan.
A related issue is whether employees who even justifiably use marijuana should be permitted to do certain jobs.
In this respect, say observers, marijuana is no different than any other prescription drug that can impair employees' ability to perform certain tasks.
The use of any prescription drug that has side effects would prevent an employee from using machinery or operating a motor vehicle, said Mr. Iampaglia. Marijuana is "just another drug, and I think we're going to look at it from a liability standpoint as simply just another drug," he said.
Mr. Kaplan noted that unlike alcohol, where amounts under a certain level are permissible by law, "there is no such level established by law for marijuana, so the employer can't simply say, 'You've reached that level where you're deemed under the influence-you're terminated.'
As a result, Mr. Kaplan said, "the employer has to look at marijuana as any other prescription drug in this circumstance."
Company policy should provide that if an employee is discovered to have taken a prescription drug that makes him unable to perform essential functions of his job, then he could be subject to discipline or termination, he said.
Observers also point out that federal Department of Transportation regulations would prohibit certain transportation workers from using marijuana in any case.
Risk managers say for now, they have made no changes in their drug testing policies in response to the new law.
Western Staff Services, which certifies that all its employees are drug-free and tests them accordingly, has "not changed our policy. We don't intend to, and we will have to deal with the exceptions as they arise," said Mr. Pettegrew, though he added it could become an issue for the company.
"At this point, we have not had a problem with it, so I'm not aware it's become an issue for us," said Terry McNeil, assistant vp and director of insurance services at San Francisco-based ABM Industries Inc., a building services company.
"I think it'll be a progression over time," said Mr. Shapiro. As problems begin to surface, and more and more employers find themselves faced with this issue, they will adjust their policies, but "it will not be an overnight sort of metamorphosis that occurs so much as an evolution."
However, he added, "I think it's a good idea to address the issues now in their policies so they are prepared and aren't faced with a crisis when it does come up. It'll make it much easier to handle the problems that inevitably will arise."
Brad Kampas, an attorney with Jackson, Lewis, Schnitzler & Krupman in San Francisco, said there will be some litigation as a result of the new laws "just as there's always potential for litigation under new statutes until employers and employees have the opportunity to find out in greater detail how it works."
There will be lawsuits on this issue, predicted Mr. Kaplan. "We're going to see them. There's no doubt in my mind about that."