Between the Lines of Marijuana Legislation

(Fall 2014) New York’s governor recently signed a law making the state the 23^rd and newest state to legalize medical marijuana.  With each state’s iteration, the scribes of these laws learn from those who have gone before.  If we, the populous, are to vote on these issues, it should be our mandate that we do the same.

Why?  Medical marijuana laws have never existed before nor do they reside in a silo.  The scribes of these laws are learning and adapting each new version.  As elements of one state’s law comes under challenge, scribes in states without marijuana laws proactively address these challenges in their proposed laws.

The use of medical marijuana by adults has a direct relationship to workplaces.  It stands to reason that employers’ rights and responsibilities are being addressed in some of the medical marijuana laws.   Are you aware and watching?

Marijuana laws primarily dictate details about the use of the substance, but not how the law interacts with other state laws.  Unfortunately this interaction is something that gets worked out later.  However, voters, particularly employers, should be advised to think situationally as they review proposed legislation:

• Although many of the laws detail that an employee may not consume/ingest marijuana at work, it is important to review the relationship of marijuana legalization to any off-duty protections the state law provides:  Consider that if an employee consumes marijuana (for recreational or medicinal purposes) off-duty, the lingering effects come into work with the individual.  Will an employer be able to legally to take action if that individual tests positive on a reasonable suspicion drug test?

• The relationship of medical marijuana legalization to state discrimination laws: A state’s medical marijuana law, its discrimination law requirements and the federal Americans with Disabilities Act could all be in conflict.  Circumstances wherein questions about how these laws relate to each other can likely result in the employer paying the defense and court costs to unravel the confusion.

• Awareness about the accommodations an employer may be responsible for as a result of medical marijuana laws: Consider a circumstance wherein the employee tests positive for marijuana and it becomes known that they have a debilitating condition for which they are using marijuana.  Does this mean the employer uncovered a medical condition that they now need to accommodate?

Currently, the various state marijuana bills are either silent about these interactions or have varying degrees of directives. However, one issue germane to workplace interests is showing up frequently now in the scribes’ work – marijuana impairment and what constitutes proof of impairment.

For over 20 years, private sector employers applied a drug test to scientifically verify a belief or suspicion that an employee was possibly under the influence of a drug by measuring for a pre-set amount of that drug in the donor’s system.  The test determined “yea” or “nay” for the presence of a drug as well as the amount in the employee’s system.  This process has defensibly been used for decades in law to justify the finding of “positive” that an employee was under the influence of a specific drug (a.k.a. “impairment”).  It justified an employer’s adverse employment actions e.g. standing down an employee, sending an employee for an assessment or terminating an employee for a workplace violation.

However, many of the more recent marijuana laws are requiring proof of impairment to justify an employer’s administration of a drug test.  This contradicts the practice of using an employer’s informed (supported by training) belief or suspicion to justify the scientifically objective drug test used to verify if the employee has marijuana in his/her system at an unacceptable level (which is pre-announced to employees through workplace policies) and thereby is under the influence of marijuana and is actionable.

Unfortunately, having to prove impairment before drug testing means employers face a catch-22.  Unlike alcohol, there is currently no scientific measurement for impairment of marijuana.  This first criterion of “impairment” would have to be satisfied before a drug test (the system presence, scientific process) would be allowed.  Further, when a drug test is administered, many recent medical marijuana laws are requiring that the results of a drug test not qualify as actionable proof of impairment.

Clever scribes incorporating impairment language within their laws may limit and seriously impact when testing for marijuana can be done. Determining what constitutes impairment precisely changes the landscape that has been long established for private-sector employers.

This circular conundrum is like the old saying, “I can’t get a job because I do not have experience and I can’t get experience without getting a job.”

This can be a complicated issue to understand (and that’s probably why it gets lost in the argument).  Let’s review the multitude of complicating dynamics:

• To date, there is no scientific way to determine impairment of marijuana.

• If suspicion of impairment is dependent upon articulable, objective, and documentable information, that decision should be made by trained supervisory personnel, similar to the Department of Transportations requirements, “… based in fact on specific, contemporaneous, articulable observations by a trained supervisor(s) concerning the appearance, behavior, speech or body odors of the employee.”  These are known as short-term observations.It is doubtful that other fact patterns which have typically qualified as reasonable suspicion (a.k.a. belief or suspicion) for private sector employers such as absences, abuse of sick time and other patterned behaviors, will qualify as suspicion of impairment which warrants either a drug test or is actionable. This can further limit the employer’s rights and responsibility to operate a safe work environment.

• Effects of marijuana use that negatively impact the workplace are often not recognizable as they are mental compromises, e.g., misjudgment in mental and physical responses due to slowed reactions and mental processing, lower accuracy, and slowed performance to name a few.

• If action to be taken requires observations by a trained supervisor
  • Employers notoriously do an inadequate job training such skills to supervisors.
  • There are as many workplace situational circumstances where there is no trained supervisor to make such observations, e.g., second shift or an off-site location.
  • Such observations will be more easily challenged unless there is a concurring observation by another trained supervisor – which can be challenging in some workplaces.
  • Supervisor may be at risk e.g., employee retribution or, in many states, face personal legal liability.
  • Supervisor documentation carries less legal weight than a standardized drug test result which has a long standing as established evidence protected by chain-of-custody.

As state laws differ, it is difficult to create a specific, universal list of “What Should Employers Do?” as marijuana laws are proposed.  Here are some thoughts to guide you:

• Get and stay informed. Learn what is being proposed and think through how these issues will or could intersect with your business operations.  Use the legal hierarchy Working Partners®trains against:
  • Considering the higher law, discover how you as an employer might get caught between the federal law and your state’s law (marijuana is still illegal under federal law).
  • Think about the intersections between marijuana laws and other state laws on privacy, employment law (workers’ compensation, unemployment, and corporate liabilities), disability & discrimination laws, accommodation requirements, etc.
  • Examine company-specific protocols and how the proposed law, as written, will impact your ability to operate as you have been.  Such as your drug-free workplace program, your HR policies, your disciplinary practices, how you assign your employees’ responsibilities, etc.
  • Carefully read the fine print.
  • Review your corporate policies.
  • Educate your employees.

Be an active part of this discussion! There are well-financed interests supporting these bills and the scribes who write them.  Employers need to be their own guardians and advocates realizing that marijuana laws will impact workplaces. It is up to us to be motivated, knowledgeable and to influence the creation of laws that do not compromise safety, health and productivity.