At this writing, 17 states and the District of Columbia have legalized medical cannabis —most of them for what Arizona calls "qualified patients," which are defined differently by different states. We mention Arizona because the Arizona law could be the best-designed in the nation.
Each state is different. California was the first state to allow such use, in 1996, and its law may be the least strict in the nation. Connecticut is the most recent: Its law will not go into effect until October 2012. The others are Alaska, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
Arizona’s law used the state’s health officials to divide it into 126 geographic regions, each of which can have licensed dispensaries for marijuana. They must offer educational material to patients, follow security rules for storage and tracking of the drug, and be supervised by a medical director. In general, the states’ medical marijuana laws only protect qualified users from criminal prosecution for doing something that federal law still prohibits.
Arizona is one of only three states—Connecticut and Rhode Island are the others—that contains some protections for employees while they are at work. In four other states—California, Michigan, Montana, and Washington—applicants or employees who tested positive for marijuana were rejected or fired for violating the employers’ drug-free workplace policies. Note that all four were qualified to use the drug for medical purposes. Note, too, that the drug stays in an individual’s system for an average of 13 days after its use.
Arizona in 2011 modified its Drug Testing of Employees Act to list what the state calls symptoms of impairment that mean an employee has used the drug too recently to be reliable at work. Symptoms include effects on speech, walking, or appearance; carelessness; involvement in an accident; and others. The clear intent of this legislation is to give employers maximum leeway to make a good-faith determination that an employee is impaired by medical marijuana on the job. But there’s no scientific agreement about impairment. Cannabis affects people differently.
Employers are responsible, though. Most employers in states where the drug is legal bar employees from using it during the workday and from bringing it into the workplace. But employers’ responsibilities go well beyond that.
Under the Occupational Safety and Health Administration’s (OSHA) general-duty clause, they must maintain safe workplaces. OSHA specifically includes impairment by drugs (legal, prescribed, or illegal) as a potentially avoidable workplace hazard. So any employee who is impaired must be prevented from injuring himself, co-workers, or members of the public, especially with a motor vehicle. And, employers must identify all safety-sensitive jobs in the workplace—such as those working with moving machine parts or driving company vehicles—and barring medical marijuana users from those jobs, even if they show no signs of impairment and never use the drug during work hours.
Further, the Omnibus Transportation Employee Testing Act requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.
This isn’t going away. The public’s perspective is increasingly favorable toward marijuana use, especially medical use. Employers should avoid having a knee-jerk negative reaction to marijuana use. Remember that alcohol and some prescription drugs, all of which are legal, can also impair employees. If increasing numbers of state laws lead employers to grapple with the issue, that’s a good thing.
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