Medical Marijuana
Donna Rae
11 Posts
Anyone have any information regarding hiring someone with a medical marijuana card? Liability issues?
Donna Rae
11 Posts
Comments
From my brief research (and CA forum folks would know better than me), I found out that the medical marijuana card is a part of a new law Anti Prop 215 that takes effect Jan. 1, 2004 - the cards may be out, but whether or not the new law is even state constitutional seems to be in much debate in California. Additionally, it seems as though California may have it's own set individual protections on this issue but will ultimately conflict with federal laws (individually and especially for your business if your business has gov. contracts, gov. workers, gov. compliance issues you have to adhere to, ex: DOT, etc.).
As to liability - off the top of my head, ADA bells keep ringing - not federal, but state specific which may impact your hiring/term. decisions - but I don't know for sure. I would do your research & try to attend some up coming seminars in California on the subject. To get your research started, you could research Proposition 215 & the enacted The Compassionate Use Act, SB420, People v. Mower, 28 Cal. 4th 457(2002), the California Attorney General website & the California Department of Health Services. Here's some background information that I pulled from the state's website:
SB 420 by Senator John Vasconcellos (D-Santa Clara) This bill establishes a voluntary program for the issuance of identification cards to medical marijuana users and their caregivers. The Department of Health Services would be required to (1) establish a statewide voluntary identification card system, (2) establish protocols for the counties identification card programs (counties actually receive the applications and produce the cards), (3) oversee the counties' operations, (4) establish fees sufficient to cover the DHS (and counties) card program costs, (5) provide information to verify the validity of the card immediately to state and local law enforcement vis-Ã -vis a 24-hour hotline and (6) identify and develop a cost-effective Internet web-based system to replace the 24-hour toll free telephone system. A medical marijuana patient or their primary caregiver could possess eight ounces of dried marijuana and maintain six mature or 12 immature marijuana plans (counties and cities can permit higher amounts and physicians can prescribe a higher amount). The Attorney General is required to develop and adopt security and non-diversion guidelines for marijuana grown for medicinal marijuana plants.
I am sure there are some HIPPA considerations in there also - and then the need for intermittent FMLA so the worker can treat the illness giving rise.
Then the issue of illegal drugs. It is or it isn't illegal?
So, I would ammend my substance abuse policy. Re-work any FMLA and ADA guidance to accomodate the new class. While you're at it, provide a few water bongs in the breakroom. Better yet, designate some "toking rooms" throughout the facility complete with incense burners and CD players blasting Bob Marley.
Gene
Apparently, my company locks us out of websites dealing with marijuana, but I did get into a few using "medical marijuana". And it appears that nine states since 1996 have legalized medical marijuana: AK,AZ, CA, OR, WA, CO, HI and another one that I couldn't read. It's authorized to alleviate certain debilitating conditions: cancer, glaucoma, HIV/AIDS positive, cachexia (?) where severe pain, nausea, seizures, including those characteristic of epilepsy or persistent muscle spasms,including those that are characteristic of mulitple sclerosis.
In Oregon, there were two cases-no dates- that appear to be on appeal. One is Washburn v. Columbia Forest Products. Washburn was a millwright, repairing equipment & machinery who used marijuana for 20 years for a disabling neck and back pain. He failed a random test and was given a last-chance agreement to sign. He sought out a physician who authorized his receiving a card. Six days before receipt of the card, he was tested again and failed. He was told he must seek alternative treatment & when he failed 2 more tests, he was terminated. The Multnomah County Circuit Court granted summary judgment for the company finding that Washburn was not disabled, was not a qualified individual with a disability and his use of marijuana was not a reasonable accommodation because it was not medically necessary.
Issues on appeal include: Was he disabled? Is an employer required to allow an employee who holds a card to work with marijuana in his system and can an employee require an employer to accommodate a non-prescription drug of choice when a prescription drug works?
The second case was Freightliner v. Teamsters Local 305. The labor arbitrator found that the law does not permit an employer to discipline an employee who 1)ingests marijuana pursuant to a valid prescription 2)does so on his/her own time and 3)reports to work in an unimpaired state. But the law does permit mgts right to discipline an employee when the use of medical marijuana interferes with a worker's proficiency and ability in the workplace.
Bottom line, employers are going to be struggling with this issue for awhile - if it becomes an issue for them. We haven't had this occur yet.
Elizabeth
CA is however,more strict in regards to the ADA implications due to our state disability laws. I think CA Disability laws would play a part under the right circumstances since the state sees it as medically prescribed drug when it is. The safety and performance implications for the workplace would be similar to using other legally prescribed drugs, as San Fran pointed out.
This law hasn't really been challenged enough to produce an easy course of action, and the CA lawmakers didn't really provide employers with too much guidance either (No Surprise).
We've had very little experience with this law so far. We've had a couple of ee's tell us after a positive drug test that they use medical mj. We told them to bring in medical documentation and we'd make a decision. Guess what? Nobody has ever brought in the proper documentation.
To answer the original posters question:
Seek the advice of legal counsel if you plan to use the candidate's marijuana card info in your hiring decision.
Naively yours,
Cristina
When it gets to that level, one can easily see how this could turn the workplace upside down. Surely the CA legislative process took this into consideration?
PS I'm never surprised at the stupidity of labor arbitrators.
1) Employee cried 'foul'. Said she had a certificate. They suspended her anyway (thank goodness!)
2) When I got there, employee came in and couldn't find her certificate. We told her to call her doctor.
No response, and we terminated based on the following:
* It's still illegal to smoke inside a public or office building in CA (no smoking policy in the handbook)
* Substance abuse policy in place
So even though she is (allegedly) permitted to smoke pot for medicinal use, she was not allowed (via handbook) to smoke during working hours on company time on company premises.
Case closed. For now, at least.
No doubt we will see this happen with some test cases in the not too distant future. This one will probably get bumpy.