Medical Marijuana

Dealing With Employee Medical Marijuana Use in the U.S.

Marijuana is a psychoactive substance prepared from the dried leaves and flowering tops of the hemp plant Cannabis sativa. It is composed of several compounds including over 60 cannabinoids.  The main psychoactive component is delta-9-tetrahdrocanabinol (THC). When taken, marijuana can induce altered perceptions and mood upswings, colloquially called a “high.”

The drug is used for both recreational and medicinal purposes but because the substance is highly addictive, it is either totally outlawed or restricted in most countries. Its therapeutic effects are vastly debated and controversy surrounds the legalization of its use.

marijuana use

Brief History of Medical Use of Marijuana

The use of marijuana for medical purposes began in ancient China where it was first used as an anesthetic. According to Wikipedia, the narcotic properties of the plant were explored in the country as early as during the first millennium B.C. and it was one of the fundamental herbs used in traditional Chinese medicine. This practice of utilizing Cannabis to treat various ailments including chronic pain, fever, and dysentery later spread throughout Asia, Africa, Middle East, and the western countries.

Legal History in the United States

Marijuana first entered the United States sometime during the 1900s and was used for recreational purposes. During this period, it became associated with criminality and was banned in several states which passed marijuana prohibition laws. In 1970, it was formally categorized as a Schedule 1 drug under the Controlled Substances Act (CSA).

Then U.S. President Richard Nixon was strongly opposed to legalizing marijuana and he firmly rejected the recommendations of the National Commission on Marijuana and Drug Abuse to decriminalize personal possession and use of marijuana and to remove it from the scheduling system.

From the middle to the late 1990s, voters in the United States began showing their support for cannabis prescriptions, against federal policy and FDA regulations.  California was the first state to pass an initiative to permit the use of medical marijuana in 1996, and several other states followed. As of March 2016, 24 states and the District of Columbia have legalized medical cannabis while 6 other states have pending legislation, according to this report. Meanwhile, marijuana is approved for recreational use in Alaska, Colorado, Oregon, Washington and the District of Columbia.

At present, the use of marijuana for any purpose is still criminalized by Federal laws and the substance remains to be classified as a Schedule 1 drug, along with heroin, LSD, and other dangerous substances. The Drug Enforcement Agency (DEA) denied the petition to reschedule marijuana in 2001, maintaining the position that “it has a high potential for abuse, has no currently accepted medical use for treatment in the United States, and has a lack of safety for use under medical supervision,” as reported in this article.

The FDA policy likewise maintains the same stance. It has only approved two drugs that contain THC. While it is allowed in some states, its use and acquisition are subject to strict qualifying conditions. Only those patients diagnosed with epilepsy, seizures, cancer, HIV, Parkinson’s disease, multiple sclerosis, Crohn’s disease, glaucoma, wasting syndrome, and post-traumatic stress disorder are legally allowed to obtain cannabis to help alleviate their conditions. However, the use, dosage, and distribution of medical cannabis for the treatment of the aforementioned conditions vary from state to state, according to respective legislation.

As of March 2016, the Marijuana Medical Project recorded an estimate of 1.2 million users of medical marijuana.

Studies on Beneficial Effects of Medical Cannabis

A number of studies have shown that marijuana is effective in controlling and treating various medical conditions. For instance, a 2007 study published in the journal Neurology and conducted by Donald Abrams and colleagues among HIV patients revealed that marijuana is more efficient at reducing neuropathic pain as compared to morphine or other opiates.

Another research which was conducted at the University of Cologne and published in the journal Translational Psychiatry in 2012 found that medical cannabis may be effective for the treatment of schizophrenia.

Also related to mental health was an investigation published in the Journal of Psychoactive Drugs in March 2014. The findings of the study conducted by Dr. George Greer and other physicians revealed that cannabis reduced symptoms of post-traumatic stress disorders among patients diagnosed with the illness.

Other studies have found cannabinoids to be effectual in managing nausea and vomiting among patients undergoing chemotherapy.  Moreover, a cancer study conducted by Sean McAllister, Ph.D. in 2011 suggested that the drug could be helpful in controlling metastasis and tumor progression in breast cancer cases.

Other investigations disclosed that marijuana is useful in the treatment of other ailments including rheumatoid arthritis, multiple sclerosis, chronic pain, glaucoma, Parkinson’s Disease, Chron’s Disease, and ALS. In addition, several published studies showed that medical cannabis provides substantial appetite stimulation among HIV and AIDS patients.

Despite numerous findings, the American Medical Association, and other medical organizations stand firm in their opposition to the use of cannabis, arguing that the clinical samples are too small to render the results conclusive and that the reported therapeutic benefits do not outweigh the adverse side effects.

medical marijuana

Legal Controversy Affects the Workplace

Employers in the private sector are not spared from the effects of the controversy. The divergent positions taken by federal and state laws pose a dilemma relevant to the proper application of anti-drug policies in the workplace.

Companies and human resource practitioners find themselves confronting serious questions such as: Should the regulations be relaxed in view of state legalization? May an employer still validly terminate the services of an employee found positive for marijuana use? Must the policies allow employees to smoke marijuana during working hours? The answers have profound effects on the companies’ policy formulation strategies as well as on the industries’ compliance with federal laws.

What makes it more challenging for employers is that legislation varies among states and no standard set of guidelines could be implemented. Thus, they must look to jurisprudential doctrines within their respective jurisdictions for guidance.

In the case Roe v. Teletech Customer Care Management, LLC decided in 2011, the Washington Supreme Court held that the Washington State Medical Use of Marijuana Act does not prevent an employer from validly imposing disciplinary sanctions including termination on an employee for using medical marijuana. This means that the state law legalizing medical cannabis does not impose upon the employer the duty to accommodate the use of marijuana even for medicinal purposes anywhere within the workplace premises.

The same doctrine was laid down by the Oregon Supreme Court in the case of Emerald Steel Fabricators, Inc. v. BLI decided in 2010, which confirmed that the Oregon Medical Marijuana Act did not oblige employers to accommodate the medical use of the drug in the workplace. The Court upheld the validity of the employer’s revocation of the employee’s permanent employment and his subsequent termination.

In a more recent case of Coats v. Dish Network, LLC decided in June 2015, the Colorado Supreme Court upheld the validity of the termination of an employee (Brandon Coats) for violation of the company’s anti-drug policy. In the case, Coats had tested positive at a random drug test conducted by the employer and was subsequently discharged. Even though the plaintiff only consumed marijuana in his home after office hours in compliance with Colorado’s Lawful Off-Duty Activities statute, the Court opined that his use of medical marijuana could not be considered lawful per se in view of the strict federal laws that declare it illegal.

The rulings are consistent in upholding the validity of employers’ zero tolerance policies on drug use as well as in maintaining that state legislation authorizing the use of medical marijuana only provide an affirmative defense against criminal prosecution for possession and use of the substance. Such defense, however, does not lend its application to the workplace policies.

How To Deal With Employees Using Medical Marijuana

It can be inferred from the above rulings that courts tend to interpret the laws in favor of the employer and to uphold the employer’s efforts to adhere to federal laws. So how does an employer balance the scales between protecting his business and respecting his employee’s disabilities? Here are a few guidelines:

marijuana workplace policy

Stay abreast on current laws and jurisprudence

It is incumbent upon the employer and the HR professionals to keep up to date with current state laws and case rulings in their respective jurisdictions. Cases doctrines such as those mentioned should be resorted to as basic guidelines in reviewing their company regulations and formulating strategies for the implementation of their policies.

Employers must strive to ensure that their workplace rules are compliant with both federal and state laws. The best way to protect themselves against lawsuits is to confirm that their policies are pursuant to the applicable statutes and case laws.

Discuss accommodation requests

Under the Americans with Disabilities Act, an employee can request an employer to “reasonably accommodate a disability” so that he can perform his work duties. When this request is raised, the employer should be sent to the HR Department where dialogue should be conducted as to the extent of accommodation requested. At this point, the workplace policies must be explained to the employee.

The employer is not mandated to accommodate conditions that may impair work performance or pose potential hardships on the business. Although the Act protects employees against discrimination on the basis of their disabilities, the protection does not extend to use of marijuana. Thus, an employer may qualify that while the “medical condition” may be accommodated, it is subject to the requirement that elected treatment options including medical marijuana will not impair work functions.

Handle exceptions with extreme caution

Employers may choose to make “reasonable exceptions” to their drug policies. But this approach should be taken only after thorough deliberation and careful considerations of possible repercussions. The same note of caution applies in defining “reasonable accommodations.”

For instance, companies that are federal contractors are required to implement the Drug- Free Workplace Act and those operating under the Department of Transportation are mandated to observe certain drug testing standards. Hence, employers must take these matters into strict consideration when attempting to modify their policies to ensure that the implemented regulations do not compromise the company’s adherence to federal laws.

Measure work performance

In the event that accommodation is granted, employers should carefully monitor the employer’s work performance without being discriminatory. Like all other employees, a medical marijuana user is subject to the same performance evaluation procedures but in this case, the employer must check to see if the use of the substance in any way impairs or negatively affects his work output.

For instance, does it cause him to incur tardiness or absenteeism? Does it result in failure to meet work quotas?  If performance issues are linked to cannabis use, the employer is certainly entitled to address the matter and review the accommodation considerations.

Train and communicate

Lawsuits and termination disputes often arise due to a lack of effective communication of company policies and procedures. These could be avoided if the employees are made aware of the employer’s stand on the issue of drug use, to avoid misinterpretation of regulations.

Line managers, supervisors, and HR personnel should especially be trained in communicating and implementing anti-drug policies as well as in handling drug-related concerns. Given the sensitive nature of the issue, it is best addressed professionally. Supervisors and HR personnel should be consistent as to their answers to queries and positions taken on the matter.

Implementing a drug-free workplace policy remains a sound practice that protects the industry from the dangers of drug use. Fortunately, more case laws are now emerging to address the gray areas that affect the implementation of these regulations.  Employers can be assured that their zero-tolerance policies can be validly applied and upheld despite state legalization and decriminalization statutes. Employers must monitor legal developments and consult appropriate legal counsel in cases of doubt to ensure their policies keep up with current laws.

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