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NEW ORLEANS — Employers navigating the conflict between federal law and state legalization of marijuana should pay attention to case law and legal nuances in their respective states for insights into managing safety and medical accommodation issues in the workplace.
“One of the biggest myths is because (marijuana) is still illegal at the federal level… employers can refuse to hire,” Adele Abrams, president of the Law Offices of Adele L. Abrams PC in Beltsville, Maryland, who also teaches employment law at several universities, said at the American Society of Safety Professionals’ Safety 2019 conference in New Orleans on Wednesday.
To date, 33 states and the District of Columbia have legalized medical marijuana and 10 states and the district have legalized it for recreational use.
The marijuana dilemma is the “number one human resources issue,” she said.
She referred to several examples of court cases in states with approved marijuana legislation, with worker protections written in the law that state employers must accommodate a worker with a medical marijuana card. These court cases have left employers grappling with how to manage the issue while maintaining a safe workplace.
“We now have this crazy quilt of states with legal medical cannabis and every one of these laws is written differently,” Ms. Abrams said. “The fact is you have to look at your state-specific laws.”
Impairment is a reason for the concern as there is no test that can detect marijuana impairment the way alcohol impairment is tested, said Marcos Iglesias, Sunrise, Florida-based chief medical officer for Broadspire Services Inc., the third-party administrator for comp insurer Crawford & Co., who spoke on the lack of scientific data on marijuana testing and its effects on the human body.
“As a society we know very little about marijuana,” he said.
Companies can look beyond drug testing by focusing on fit-for-duty assessments of workers when it comes to ensuring safety, said Eldeen Pozniak, director of Pozniak Safety Associates Inc. in Saskatoon, Saskatchewan, Canada.
“If you have a drug and alcohol policy… change it to a fit-for-work (policy) and expand it to include all aspects of impairment,” she said.
Defining impairment and training supervisors on how to spot impairment should be included in the policy, Ms. Pozniak said.
A worker on the over-the-counter allergy medication Benadryl, which can cause drowsiness, or someone who is fatigued is impaired much the same way a person on drugs or alcohol would be, Mr. Iglesias said.
“Impairment is the issue, it’s not the substance or the cause,” he said.
Slurred speech and unbalanced or slow movements and reactions are some physical indicators for impairment, Mr. Iglesias said.
Stephanie Hopper, CEO for employment consulting firm KSF Consulting in Denver, Colorado, urged attendees to teach employees the “see something, say something” doctrine in the workplace.
Preemployment and random drug testing was another topic discussed, with panelists telling attendees that accurate job descriptions, which can help employers decide which positions are safety-sensitive, can also help them navigate issues with accommodating employees who have legal access to medical marijuana.
“We have companies that say we have a safety culture, every job is safety sensitive, and they paint it with a broad brush,” but the lack of detail could land an employer in court, said Ms. Abrams.
Safety sensitive positions require that applicants and employees be tested, but such mandates are not extended to all job classifications, the panelists said.
Cases of alleged discrimination and medical marijuana use “are the cases that are being successfully litigated,” Ms. Abrams said.
Ignoring the changing legal landscape is one of the worst things an employer can do, according to panelists.
“Keep up with the laws – they are changing as we speak,” said Ms. Pozniak.
Both the Senate and House of Representatives in Hawaii are now considering identical bills that would require workers compensation payers to reimburse patients who are prescribed medical marijuana under state law permitting them to use cannabis.