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Since 1996, medical marijuana has steadily moved into mainstream culture, sparking awareness that it can have beneficial effects for some chronically ill and injured people. As state court systems continue to decide whether or not medical marijuana should be legalized or decriminalized, companies with employees in the effected states must start giving the issue their attention and action as well.

The list of states decriminalizing medical marijuana and the number of written prescriptions continues to grow. Since 2004, California has more than 37,000 authorized medical-marijuana cards. The Michigan Department of Community Health has more than 11,000 people with medical-marijuana prescriptions and nearly 5,000 caregivers registered.

-- Can an employer refuse to hire someone who has a medical-marijuana prescription?

-- If an employee who is a medical-marijuana user fails a drug test, can they be fired?

-- Can a fired employee file a discrimination suit under the Americans With Disabilities Act (ADA)?

-- How do employers adjust a zero-tolerance drug program for employees using medical marijuana?

-- What happens when this issue crosses state lines?

There is no national estimate of how many current medical-marijuana users there are in the United States, but with the increase in prescriptions and caregivers allowed to dispense, we will continue to see a jump in court cases at the state and federal level involving marijuana prescriptions and workers' compensation.

LAWSUITS AND CURRENT RULINGS

For cases that have made it to court, rulings have generally sided with employers stating that they do not have to accommodate for medical-marijuana users.

In a landmark case in 2008, the California Supreme Court ruled in Gary Ross vs. Ragingwire Telecommunications Inc. (C043392, No.02AS05476) that employers are able to fire employees who use medical marijuana under the state's Compassionate Use Act, even if they are off-duty and even if their job performance is not affected, because marijuana is illegal under federal law and thus is not a disability-based discrimination.

In Oregon, employers are waiting for a state Supreme Court decision where an employer is appealing a 2008 appellate court ruling in favor of a worker (Emerald Steel Fabricators Inc. vs. Bureau of Labor and Industries, No. 30-05). An employer refused to hire a temporary worker as a permanent employee because he was a medical-marijuana user.

In 2009, Wal-Mart fired an employee after he failed a drug test. An "Associate of the Year" in 2008, Joseph Casias was prescribed medical marijuana to ease the pain caused by sinus cancer. Although he never came to work high, because there are no laws defending medical-marijuana users from employers' drug policies, his employer could legally fire him for testing positive. Wal-Mart is also contesting his unemployment benefits.

Medical marijuana is illegal in Iowa, but an Iowa Workers' Compensation Commission decision in Mary McKinney vs. Labor Ready and ESIS Inc. (No. 5005302) found the employer liable for marijuana expenses. McKinney was injured on the job in Iowa and later moved to Oregon where her doctor prescribed medical marijuana for her symptoms.

Even in states where it is illegal, as with the case in Iowa, employers will have to keep an eye out on other states that approve and pay for marijuana prescriptions in workers' compensation cases. Employees that have a medical-marijuana prescription should also be watching the courts; most rulings have been in favor of the employer and allow them to fire for failing drug tests.

NEXT STEP FOR EMPLOYERS

What options do employers have left? If employers discipline or fire an employee for medical-marijuana use, they face the possibility of a disability discrimination claim. Yet, if they accommodate, they could also create a potential safety issue for the employee, other workers, or on-site consumers.

It benefits employers to get employees quickly back to work, but they also have a responsibility to maintain a safe workplace overall. There are no standards for employers to follow on how much medical marijuana an employee can have in their system and still be able to work safely and productively.

Before the issue arises, employers should re-evaluate their company policy and any other documents addressing drug use and testing. Then they should update all documents so that the company position on medical-marijuana use by employees and an applicant is clear.

Employers must make a consistent companywide decision on how aggressive they want their approach to be on the subject. From extreme (treating medical marijuana as an illegal substance) to moderate (discipline only if employee demonstrates they are impaired at work), employers should treat this situation like any other disability issue. Make human resources, employment counsel and drug-testing personnel aware of the company policy on medical marijuana while creating measures to maintain confidentiality of employees' registry status.

Through an interactive process, and a re-evaluated company drug-tolerance policy, employers should put in place the accommodations that will work best and get the employee back to work.

Employers must enforce any drug tests and policies in a uniform manner. Consistency, within the company policies and actions, is critical and ensures no discrimination will occur. Top priority, however, must be given to getting the employee recovered from their disability, and to do so within state laws. With workers' compensation costs continuing to rise, employers should maintain focus on getting their injured or ill employee back to work as quickly and safely as possible--no matter how the laws continue to change.

(Editor's note: In the first part of this series, we covered the issues that decriminalization of medical marijuana creates for workers' compensation and how some states are beginning to deal with the topic. Read it here.)

MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.

Read more at the WorkersComp Forum homepage.

July 1, 2010

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